Golden Eagle International Trading Pty Ltd & Anor v Zhang & Ors

[2006] HCATrans 531

[2006] HCATrans 531

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S75 of 2006

B e t w e e n -

GOLDEN EAGLE INTERNATIONAL TRADING PTY LTD

First Applicant

CHEN GUANG

Second Applicant

and

YU ZHANG (BY HIS TUTOR THE PROTECTIVE COMMISSIONER)

First Respondent

RUI MANUEL SOUSA MENONGA AND JOSE ALCIVO DE FREITAS T/AS D M P AUTOMOTIVE REPAIRS

Second Respondents

Office of the Registry
  Sydney  No S189 of 2006

B e t w e e n -

YU ZHANG (BY HIS TUTOR THE PROTECTIVE COMMISSIONER)

Applicant

and

RUI MANUEL SOUSA MENONGA AND JOSE ALCIVO DE FREITAS T/AS D M P AUTOMOTIVE REPAIRS

First Respondents

GOLDEN EAGLE INTERNATIONAL TRADING PTY LTD

Second Respondent

CHEN GUANG

Third Respondent

Applications for special leave to appeal

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 SEPTEMBER 2006, AT 12.08 PM

Copyright in the High Court of Australia

MR E.G. ROMANIUK:   If it please the Court, I appear for the applicant.  MR K.P. REWELL, SC is hopefully appearing for the applicant.  (instructed by Sparke Helmore)

MR H.G. SHORE, SC:   If it please the Court, I appear with MR E.G.H. COX for the respondent in the first matter and the applicant in the second.  (instructed by Graham Jones Lawyers)

HEYDON J:   Yes, Mr Romaniuk.

MR ROMANIUK:  Mr Rewell is just detained in another court at this time.  I was going to ask the Court’s momentary indulgence to pursue those inquiries, to find out what his situation is.  He is in the Court of Appeal downstairs.

HEYDON J:   It is a very hard place to extract people from.

MR ROMANIUK:   It is a hard place to extract people from.

HEYDON J:   Let us just see how we go, Mr Romaniuk.  If you want to renew, in effect, an application for a short adjournment later, we will consider it, but let us see how we go.  Mr Shore, the tentative thinking, and I stress it is only tentative, is that special leave ought to be granted on what might be called the contributory negligence point and that if that special leave is granted, special leave might as well be granted on the historical tables point, which I apprehend is, in any event, only a very short point.  So we would like to hear you on those questions and then we would like to hear you on your special leave application.

MR SHORE:   The absence of Mr Rewell poses one particular problem and that is that about a week ago I made some inquiries of the Motor Accidents Authority and learned that there was a proposal on foot and currently before the Minister for change in relation to section 45 to rectify the effect of the judgment in the case under appeal.  Because that is difficult to establish definitively, I spoke to Mr Rewell about it who, in fact, is being instructed and assisted by officers from the Motor Accidents Authority.  He said he would make some inquiries.  He will be in a position to tell you whether legislative change is contemplated.  That may well be something that is particularly relevant to the question of whether you grant leave. 

HEYDON J:   Do you know, Mr Romaniuk?

MR ROMANIUK:   Not at the moment, your Honour.

HEYDON J:   Yes, very well.  I think we will continue on.

MR SHORE:   Thank you.  Your Honours, on the section 45 point, it is a very clear case, it is submitted, of statutory construction.  The approach in the Court of Appeal was undoubtedly right.  It construed the words of the section as they needed to be.  If one needed to go for additional assistance to section 74, and the court did, then the conclusion was the same in each case.  It was the fact of the employment of the words “a defence”.  The consequences of that logically follow.  The Court of Appeal followed that logic.  It was undoubtedly correct in the circumstances to do so. 

Appropriately analysed, the submissions made in the documentation on behalf of the applicant are really that the intention must have been different to that that one should seek to discern in other documentation – second reading speeches and the like – a conclusion which even could not be discerned from those documents.  In my submission, the conclusion was right but I understand the view that has been tentatively arrived at by the Court. 

HEYDON J:   I think your view has some force as a matter of close textual analysis but it does lead to a rather bizarre result, so the applicant says. 

MR SHORE:   The other matter I should mention is that if there is any or even a realistic prospect of legislative change – and we know that the Motor Accidents Authority has an advisory council, makes recommendations for review and has a government which is generally regarded as not being disfavourable to the applications it makes for review – it may be that by the time this case came on for hearing of the full appeal that there would be no point in it except in relation to cases such as Mr Zhang.  That would be indeed unfortunate given that he has obtained a minor benefit in circumstances where otherwise he did not achieve spectacular success.  Your Honour, I will move on to the question of the life tables. 

HEYDON J:   Yes.

MR SHORE:   It is true that there has been a practice – that practice was reflected in the judgment of the court below – but it has always simply been a matter of fact.  It depends upon what the tables indicate at any point in time.  This case was somewhat unusual in that there was a great deal of evidence put on by the plaintiff as to the way in which one should go about the assessment.  There was all of the documentation from the Bureau of Statistics that were put before the court.  The court was in a position to see what the real life expectancy was likely to be. 

In short, what was being proposed in that case and accepted as a realistic proposal by the Court of Appeal was to approach the determination of the question on the basis of the best evidence that was available.  It was

not a matter of where there was any cross-examination of our expert and it was not a matter where any material was put in any legitimate or rival sense. 

HEYDON J:   Would it be right though that this decision quite independently of evidentiary considerations would tend to be followed by District Court judges in the considerations they take into account in estimating life expectancy?

MR SHORE:   Your Honour, one could imagine that submissions would be made in District Court cases, where the appropriate evidence was put on, that a different view ought be followed and that the traditional way of following tables without reference to evidence might not be appropriate in the circumstances.  Yes, reference would be made to it, but it would still have to be established on the evidence since it could not just be a reflection of tables in a given place.  There would need to be some evidence to support that.  There was in this case.  There is not in every case.  It is really a matter of practice rather than a matter of the law, I suppose.  Your Honours, if your Honours were minded to ‑ ‑ ‑

HEYDON J:   Is it convenient to deal with the contribution that Mr Rewell made?

MR SHORE:   Yes, it is. 

HEYDON J:   Mr Rewell ‑ ‑ ‑

MR REWELL:   May I first apologise, your Honour, for being unable to get up the stairs fast enough.

HEYDON J:   That is perfectly all right, Mr Rewell.  Mr Romaniuk has, no doubt, explained where we are tactically.

MR REWELL:   Yes, your Honour.

HEYDON J:   What prospect is there of the legislation that was on your case misconstrued in the Court of Appeal being amended in the near future?

MR REWELL:   None of which I am aware, your Honour. 

HEYDON J:   Right.  You would be likely to know, would you?

MR REWELL:   In fact, I have made inquiries and as far as I am aware there is no current proposal to amend section 83 of the Motor Accidents Compensation Act which is the current provision corresponding to section 45 of the Motor Accidents Act.

HEYDON J:   Yes, thank you.

MR SHORE:   I do not take that matter any further.  Your Honours, if the matter were to go forward in the way that the Court has indicated, I would ask for something special in relation to a costs order given that we would be dealing with a test case scenario.

HEYDON J:   Speaking for myself, I think you would not have much trouble, but perhaps that should be flagged at the end.

MR SHORE:   That request is made at page 134 of the application book. 

HEYDON J:   The precise order or condition you want would be that the applicant pay your costs of the appeal in any event?

MR SHORE:   Yes.

HEYDON J:   Any other order?

MR SHORE:   None that I can presently think of. 

HEYDON J:   Is it convenient then to move to your special leave application?

MR SHORE:   Yes, it is.  There might need to be some relief for Mr Zhang in relation to the costs in the Court of Appeal as well, given that he was successful there, and he would need to be protected in the event that a successful test case appeal took place. 

HEYDON J:   So it would be the applicant to pay the respondent’s cost of the appeal in any event and not to disturb costs orders in favour of the respondent made in the courts below?

MR SHORE:   Yes, your Honour, thank you.

HEYDON J:   Yes.

MR SHORE:   If I could deal with Mr Zhang’s application.  Your Honours, there was a very severe accident.  There was very little dispute about what caused the accident and the circumstances in which it took place.  The circumstances are well outlined in the application book at pages 2 and 3. 

The vehicle in question was a light commercial truck, a Toyota HiAce.  It was a refrigerated van.  It was in the process of being used commercially to carry fresh fish from the fish market to various Chinese restaurants in the Wollongong area.  It was serviced by Menonga and always had been.  It had been purchased and at the time of purchase earlier that year it had passenger tyres on it.  There was no indication that the owner was aware that passenger tyres were inappropriate for the vehicle.  The fact was they were dangerous.  The fact was that there was an inspection in May that year, 1997, and the evidence established beyond any doubt that the person carrying out the service would have realised that they were passenger tyres.  There is no indication of any warning being given and there is no indication of any change in the practice of the use of the vehicle from that point on. 

Your Honours, in November an inspection for registration purposes took place.  It was carried out by the same organisation and by an employee who happened to be certified as an examiner for the purposes of RTA pink slip inspections.  The evidence established that he realised the tyres were the wrong tyres and that he concluded that they would not last long in those circumstances.  He concluded wrongly that he had not the power to refuse to register in terms of the pink slip and, accordingly, he issued a pink slip which appears in the appeal papers. 

He certified the vehicle safe, the words “passed safe” appear there, and the consequence of that was that registration took place.  There was no relevant box in relation to passenger tyres or commercial vehicle tyres but he did have powers which were set out in the judgment in the Court of Appeal to reject the circumstances that existed.  That is covered on page 84 and 85.  At line 25, you see:

Where an Authorised Examiner considers that a vehicle is unroadworthy in any way that is not covered in these Rules, the vehicle should on no account be passed.

Later on, on the same page:

100.01          The objectives of the inspection are:

(a)to check that the vehicle is free from apparent safety defects [that] would affect its use on a road –

The accident occurred because of the inevitable consequence of using the vehicle with passenger tyres carrying loads in excess of that which it was designed to cover.  The relevant finding is at page 83, line 45:

that the rear tyre failed because it was not designed to carry the loads which the vehicle could carry and which it did in fact carry in the operation of the First Respondent’s business.

Accordingly, the evidence to that point and the findings established that the tyre was in fact dangerous, that it was the wrong tyre for the vehicle, that it could not carry appropriate loads for which the vehicle was otherwise calibrated or designed, that it was not going to last, according to the examiner, for very long – and very long might be interpreted to be in the circumstances in which it was likely to be used – and the examiner, of course, was part of an organisation that was responsible for the servicing of a fleet of vehicles of which this vehicle was one. 

In those circumstances, the plaintiff in the court below, the applicant here, ought to have succeeded at a number of points.  In relation to the May inspection, it was said that there ought to have been a warning, it ought be inferred there was no warning and it ought be inferred that the consequence of that was what in fact happened.  Also, at the point where the November inspection was taking place, it was not a case where one was dependent upon what the examiner might have seen.  The examiner said he saw the wrong tyres, he knew they were the wrong tyres, he said he made no recommendation and he said erroneously that he felt that he could not do other than pass it in the circumstances. 

A very strange finding seems to have been made in the court below and appears to have been accepted in the Court of Appeal.  It appears at page 80 at about line 32.  It was the notion that there was no relevant unfitness in relation to the vehicle because it was only unfit if a load was carried above the appropriate limit for passenger tyres. 

Your Honours, it needs to be understood just how much of the carrying capacity of the vehicle had disappeared.  It was a vehicle which on the evidence – and the relevant extracts are in the application book but, unless you desire, I do not propose to take you to those specifically.  The carrying capacity of the vehicle ought to have been at 1.3 tonnes.  The carrying capacity of the vehicle was something of the order of 750 kilograms with passenger tyres.  There was a difference between those positions of half a tonne.  So that in the circumstances of this case, if the vehicle was laden anywhere beyond just a little above half capacity, the consequence was almost inevitable that an accident was going to occur, an accident on the basis of tyre separation – tyre separation because it was overloaded not for the vehicle but because of the tyres.  That is exactly what happened.  It was tyre separation that caused the accident.  It could be foreseen.  It ought to have been avoided at a number of points. 

Your Honours, that proposition that at the point where safety had to be considered – and there were a number of points where that arose – that something is safe except when you load the vehicle to a point beyond the capacity of the passenger tyres, when there is no indication that the person who owned the vehicle was aware of where that point was, was simply to require the owner to engage in some sort of lottery that could result in serious injury or death.  The notion that it was not presently unsafe was an inappropriate conclusion to arrive at and certainly in the context of inspections in relation to vehicles in the context of a statutory regime that was designed to protect the public, and including those who might travel in or on vehicles. 

Your Honours, that is a proposition which really sets the law of negligence back a significant way.  If it were a correct approach in relation to the things that have previously been called dangerous machines, it would not have been necessary to impose restrictions in relation to guards upon them because it might never happen, people might not put their hands in the machines, or going back even further, to snails in bottles, it might not be a risk at all if the person who ultimately consumed it only consumed the first half.  It is simply a notion which ought receive no acceptance in the context of the law of negligence or in relation to the way in which the case was put in relation to negligence and in relation to representations.  That, it is submitted on behalf of the applicant, is not only a serious matter, not only one that causes injustice so far as he is concerned, but it raises a matter of very significant principle and at the various points at which it arose it is an error of legal principle. 

Your Honours, the other approach that was taken that seems to have had the effect of causing the applicant not to succeed in his case relates to something which is said at the bottom of page 85 at line 45.  It is the proposition that the duty of care imposed on the inspector was limited.  Your Honours, it is not said how or to what extent a duty of care is limited.  It was an unusual finding because the submission of Mr Rewell in the Court of Appeal was to the effect that one should go to the question of reasonable response.  There was no argument to the effect that there was no duty.  But by suggesting that there was a duty of care and it was limited the approach that has been adopted seems to have been that of taking up the question of scope of duty. 

In the enormous number of pages that are contained in the volumes – and I do not propose to take your Honours to them specifically – there is a current debate, in my submission, in the High Court as to the way in which duty is approached.  That debate could equally take place in relation to how questions of scope of duty can take place.  Your Honour Justice Heydon has from time to time expressed views in relation to that and also Justice Gummow and Justice Hayne.  In the Oyster Case, which is on the list, certain things were said about duty which would be equally applicable in relation to the question of scope of duty.  None of those questions were here examined but, more importantly, they arise as a matter of importance if leave to appeal were granted in relation to them. 

There is another problem, your Honours, in relation to that, namely, there seems to have been no consideration of the question of safety or of a question of care or the need to provide it within the limited regime of duty of care that was adopted.  In short, it seems to be a duty of care which does not involve having to provide care.  It follows that passage at 85, line 45.  It follows a detailed analysis in relation to the Australian Design Rules but it does not involve any analysis of what was required in relation to whether it was roadworthy, whether it was an apparent safety defect or even the question that is posed by regulation 13 of the Motor Traffic Regulations which appears at page 81, namely, whether it was suitable for safe use. 

At all of those points the question of safety arose.  At all of those points the question was avoided unless it was dealt with by saying things are not safe simply because when you get to a certain point you have an incredibly dangerous situation.  Your Honours, in my submission, they are matters of importance that require the attention of this Court, especially if the question is otherwise to go further by reason of the related matters in the application in which Mr Rewell appears as the applicant. 

Your Honours, can I deal also with the question of the representations – I am sorry, more particularly, conduct.  The judgment, for whatever reason, does not record the submissions that were made in that regard.  There are representations that were put in the Court of Appeal upon which the applicant relied inter alia and they appear at paragraphs 5 and 6 of the application for special leave.  It has not been suggested by Mr Rewell that they were not put or they do not arise, but they are in no respect otherwise recorded.  Arrangements had been made for the transcript of the argument, or at least parts of it, to be put before the members of the Court.  Has that taken place, if I could inquire?

HEYDON J:   A document “Extracts of Transcript of Argument in the Court of Appeal before Ipp JA, McColl JA and Basten JA on 3 February 2006”.

MR SHORE:   Thank you very much.  If I could simply say that the page references there are page 3, line 30; page 5, line 57 to page 6, line 17; page 8, line 27 to 37; page 12, line 55 to page 13, line 1; and page 13, line 46 to line 50.  Of the essence of the representations that were contended for inter alia in the Court of Appeal was the proposition that the vehicle was safe and that the vehicle was roadworthy.  Your Honours can see from the references in the judgment to the Rules and to regulation 13 that that was a correct proposition that it was something that the examiner had to consider. 

In my submission, if it was the fact that the vehicle was not safe and was not roadworthy, the conduct of the examiner in passing the vehicle safe for registration and the consequence of registration then following upon it was such as to represent to all persons who thereafter could see that the vehicle had gone through a process of registration, it was sufficient to provide representation to them. 

Your Honour, in the course of the list of authorities there is a reference to a certain practice – and I apologise to your Honour because I did not understand that your Honour would be sitting on the application, but the point that I wish to make about that is that that practice, to refer to it neutrally, identifies ways in which a representation might go beyond the immediate recipient of the representation.  Reference was made to Patrick v Steel Mains in that practice, and there is a copy of it in the volume, and also to a decision in America of the Clinton Watch Company Case where, again, it involved the proposition of representations being made to a person who was not in fact deceived but going beyond that to other persons in the general public. 

Your Honour, in my submission, if that is the state of the authorities as they currently exist in relation to the way in which a representation provided immediately to person A may be regarded by a wider class of persons – and it was at all times agreed at the trial that, whatever the class of persons was, the plaintiff, Mr Zhang, was one of that class – in those circumstances there are important matters to be decided upon any appeal pursuant to leave that might be given in this case. 

There was a finding to which I have referred in the documentation but which I have not referred to hitherto and that is that in the mind of the relevant class of the public that registration and pink slips were synonymous.  That was a finding that the appellant to the Court of Appeal did not challenge.  The consequence of that finding is that whoever in that class perceived the vehicle to be registered, whether by noting the registration label or seeing it upon the road or whatever, that they would be entitled to conclude and it would amount to a representation to them or, alternatively, the conduct of the registration was such as to cause the vehicle to be upon the roadway in circumstances where the almost inevitable consequence was that when and if it failed it would cause injury or would be likely to perhaps cause injury to persons who were working in it or on it, as in this case, or persons in close association with it. 

Your Honours, it is submitted also that other matters of importance arise, namely, whether it was appropriate in the present circumstances to consider the test that might apply to a representation to an individual, namely, the owner, and to draw the conclusions that were drawn in this case by the Court of Appeal in relation to a representation that was not specifically the one contended for.  That, with respect, does not pay attention to Butcher to which reference is made, it does not take account of the fact that – I am sorry, I note that time seems to be up.

HEYDON J:   It is not up yet but it will be in two minutes.

MR SHORE:   Very well.  There is the proposition embraced in the riders or gloss put on the matter by the Court of Appeal to the effect that seemingly only authorised representations can be misleading or deceptive.  The scope of duty concept that seems to have been employed in relation to the common law counts seems to have been transposed across to the situation of representations or conduct.  It is a proposition which is not supported by authority.  It is a proposition which, if it is to be investigated, ought be investigated by this Court. 

The fact of the matter is, in my submission, that a great injustice has been caused to Mr Zhang in the circumstances.  If he had succeeded in relation to the statutory count, the benefit that he would have obtained would have been significant.  It was agreed that there was no reduction for contributory negligence in the circumstances.  The difference, therefore, to him would be very substantial.  Yet, despite the representations and conduct that were alleged, despite the fact that the vehicle failed for the very reason it ought to have been anticipated, despite the fact that the vehicle and tyres failed precisely because of the lack of safety that was evident at the time of the examination, inspection, certification and pink slip, the result is that he lost.  That is an injustice to him.  It ought be rectified and the fact is that some important questions arise for determination by this Court, both in relation to the common law aspects and in relation to the question of the statutory counts. 

Causation was also dealt with and mentioned by the Court of Appeal.  The satisfaction of the word “by” in the equivalent of section 82 would, in my submission, be satisfied by the pink slip having the effect of registration and by registration then permitting the vehicle to be on the roadway.  Otherwise that would not have taken place.  The consequence was causation was established. 

HEYDON J:   Thank you, Mr Shore.  Mr Rewell, what do you say to Mr Shore’s proposition that the question of what tables should be used is really just a question of fact, it depends what material is put before each trial judge from case to case?

MR REWELL:   Firstly, we say that if that were to become the law that would be a very inconvenient and regrettable position.

HEYDON J:   Is it a question of law or evidence?

MR REWELL:   It is a question of law because it is a question of approach.  It was until recently a question of convention but the convention was broken in this case.  It ought not be in the interests of the administration of justice left to be a matter where in each and every case both parties start putting forward evidence as to what statistics should be used in the particular case for life expectancy.  Because it is essentially predictive no matter which statistics you use, it is appropriate, as has always been the case, to have a general approach which is followed invariably in this State.  In that way, of course, a great deal of time and expense on a matter that ought not have to be litigated each and every time a trial comes to court is avoided. 

CRENNAN J:   Why was it said in the Court of Appeal in paragraph 55, application book 95 that:

the projected tables would appear to be a more accurate assessment of future trends than the historical tables.

MR REWELL:   That was the impression of the court.  It was put to the court, and there was evidence to this effect, that over recent decades life expectancies of human beings had tended to increase for various reasons and that to ignore those trends risked in exactitude where better statistics were available.  We made the point that these trends in the end must finish and in any event tend to go forward and backward depending upon whether there is some mass difficulty with public health or whether there is a stall in the advance of medical treatment, whether there is a new illness or disease which affects life expectancies.  We put forward that the only reliable approach is to use historical data. 

Now, from time to time that data may not reflect the current position, but it is the best, we said, that one can do because it will take into account adversity as well as the recent trend towards propensity in increasing life expectancy.  So the comment made there by the Court of Appeal was simply the court’s impression that perhaps in view of the recent trend the better approach was to take the projected data which necessarily assumes that the trend will continue.

HEYDON J:   Does that conclude what you want to say about that subject?

MR REWELL:   Yes, but I do wish to say that it would be, with respect, ineffective, inefficient and inappropriate to require the issue of life expectancy to be litigated in every case.  It would generate an enormous amount of expense because it would mean actuarial evidence would be required.  Better to have a consistent approach to be applied in every case, not only for the purpose of running litigation but to make the outcome of litigation predictable, which assists, of course, in shortening and settling litigation.  Once one gets to the stage that life expectancy is up in the air in every case, things are going to be very difficult. 

HEYDON J:   On another topic, assuming special leave is granted on either ground in S75 of 2006 which is the one in which you are the applicant, do you have any problem with the condition as to costs which Mr Shore and I were talking about?

MR REWELL:   No, I have no problem with the condition as to costs except that one simply ought say that the plaintiff is protected in the sense that the costs order made in the Court of Appeal is maintained because the order was not entirely in the plaintiff’s favour.  It was a part/part order.  It said to the extent that the plaintiff succeeded, he has costs, to the extent that we did, we have costs.  I am not entirely sure I know what that means in the end, but it ought be maintained. 

HEYDON J:   What I have written down – let me see if this formulation offends you or not.

MR REWELL:   Yes, your Honour. 

HEYDON J:   That special leave be granted on condition that the applicant is to pay the respondent’s costs of the appeal in any event ‑ ‑ ‑

MR REWELL:   Yes, we have no difficulty with that.

HEYDON J:   ‑ ‑ ‑ and not to seek to disturb costs orders in favour of the respondent made in the courts below. 

MR REWELL:   Perhaps your Honour could just delete the words “in favour of” – costs orders made in the court below.

HEYDON J:   Mr Shore?

MR SHORE:   Yes, your Honour, there is no difficulty with that.

HEYDON J:   Very well.  We do not wish to hear you on any other issue really on either of the applications. 

MR REWELL:   Thank you, your Honour.

HEYDON J:   Mr Shore, have you anything more or anything you want to say in reply on the question of these tables?

MR SHORE:   Only this, that the question of the accuracy of the projected tables flowed from the evidence that was put as to the accuracy of those tables.  It was not just an attempt by the court to identify out of the air what might be more accurate or what might not be.  They followed evidence and the evidence was to that effect.  It showed it in enormous detail in relation to the way in which things had changed, life expectancies had changed, and that to use the most up‑to‑date figures most closely reflected the accuracy of the current situation but recognising that any figures are not the same as something which is happening in a real time environment. 

Your Honour, there is one other matter I should mention on the question of costs, and that is it would be appropriate that there be some protection as to costs in relation to the leave application as well.

HEYDON J:   That will be covered by the costs of the appeal. 

In our opinion, in S75 of 2006 there should be a grant of special leave on condition that the applicant is to pay the respondent’s costs of the appeal including this special leave application in any event and not to disturb the costs orders made in the courts below.  It should only take a day, should it not?

MR REWELL:   At the most, your Honour, yes.

HEYDON J:   The sort of thing that might be decided on a Thursday, for example, where the Court intends to adjourn early. 

MR REWELL:   Yes, your Honour. 

HEYDON J:   It is noted that it will take less than a day. 

In S189 of 2006 we are of the opinion that there are insufficient prospects of success in any appeal and on that ground special leave is refused.

MR SHORE:   Would your Honours contemplate that there be no order as to costs in that circumstance?

HEYDON J:   I think so.  Is that all right?

MR REWELL:   I do not wish to be heard on that, your Honour. 

HEYDON J:   There will be no order as to costs in S189 of 2006. 

Thank you.  The Court will adjourn to 10.15 am on Wednesday, 4 October in Canberra.

AT 12.48 PM THE MATTERS WERE CONCLUDED