Goldie & Anor, Ex parte - Re MIMA, Goldie v MIMA

[2004] HCATrans 117

[2004] HCATrans 117

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Perth  No P1 of 2001

In the matter of -

An application for Writs of Certiorari and Mandamus and Prohibition against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

JAMIE McCORMACK

Second Respondent

Ex parte –

BRIAN GERALD JAMES GOLDIE

First Prosecutor

VALERIE MARGRET FINNIS

Second Prosecutor

Office of the Registry         
  Perth  No P22 of 2001

In the matter of -

An application for Writs of Certiorari and Mandamus and Prohibition against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

JEFFREY PAUL TUNBRIDGE

Second Respondent

Ex parte –

BRIAN GERALD JAMES GOLDIE

Applicant/Prosecutor

Office of the Registry
  Perth  No P47 of 2001

B e t w e e n -

BRIAN GERALD JAMES GOLDIE

Applicant

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 19 APRIL 2004, AT 2.09 PM

Copyright in the High Court of Australia

MR H.C. BURMESTER, QC:   If it please the Court, I appear for the Minister. (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Burmester.

MR BURMESTER:   Your Honour should have an affidavit of service concerning attempts to serve Mr Goldie.

HIS HONOUR:   Yes.  What is the current situation involving the other party?  He is not in the country, as you understand it?

MR BURMESTER:   He voluntarily departed Australia on 24 April 2002.  There is an email address which has been used to communicate with him as well as the formal service of his last known address.

HIS HONOUR:   Yes.  So far as I am concerned there seems to be a review under Order 71 rule 89.  Would that be right?

MR BURMESTER:   That is correct, your Honour, and rule 22 under that same order has a general provision as well.

HIS HONOUR:   Yes, thank you.

MR BURMESTER:   The review we seek is essentially for what we say is an error of law in the interpretation of rule 93.

HIS HONOUR:   Yes.  Now, it is a bit awkward dealing with this without a contradictor.  There is a provision under Order 71 rule 90 for the receipt of further evidence on review, is there not?

MR BURMESTER:   Yes, there is.

HIS HONOUR:   Now, I will just indicate to you some of the things I have on mind.  The starting point would seem to be section 64 of the Judiciary Act because without a statute like section 64 there would be the situation that the Commonwealth neither sought nor suffered costs, which is a provision that lingers with interveners.  Section 64, as we know, says – have you section 64 handy?

MR BURMESTER:   Yes, your Honour.

HIS HONOUR:   It says:

In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.

Now, on the face of it, rule 93 is a rule that operates, as it were, in the same way with firms of practitioners or the Commonwealth or a State.  So it seems to be in line with section 64 of the Judiciary Act, but what I do not quite understand – perhaps also I should say there is a long history behind all this and it is conveniently indicated to some extent in a work you will be familiar with, Robertson’s Civil Proceedings by and against the Crown 1908, chapter 13 dealing with costs.  The relevant section I have just mentioned in the Judiciary Act seems to come in its costs aspect from section 61 of the Crown Suits Act 1855 (UK).

Now, what I do not presently understand is the changes that have taken place in the nature and role of the Australian Government Solicitor or the enactment as at Part VIIIB.  Now, the mischief behind rule 96 seems to be protective of the position of the party on the other side, namely, that there is not an additional add‑on burden, as it were, when in truth there is just a receipt of a salary, not a rendering of a bill that could be vouched for by a barrister.  Now, to understand how all this applies here I have to understand how these so‑called in‑house counsel fit in with those ideas, and that requires some understanding of Part VIIIB and that requires some understanding of the relationship between the AGS and the Minister.

Now, in the old days, when I had some familiarity with this, counsel would send fees in to the Commonwealth Crown, so they could be vouched for.  The Commonwealth Crown itself – I may be wrong about this – did not separately then bill any department or Minister.

MR BURMESTER:   That is certainly correct as old practice.

HIS HONOUR:   That would be right, would it not?

MR BURMESTER:   Yes, your Honour.

HIS HONOUR:   That has all changed, has it not?

MR BURMESTER:   That has all changed, yes.

HIS HONOUR:   I need to understand that.  The rule is drafted before the 1999 changes is part of the problem that I have.  Now, the earlier High Court rule which is worth looking at, the pre‑1952 Rules, they had I think it is Order LIV rule 64.  It said:

No fee to counsel shall be allowed on taxation unless vouched by his signature or unless it is proved to the satisfaction of the taxing officer that the fee has actually been paid.

That has disappeared.

MR BURMESTER:   Your Honour, there is rule 103 now, which is in somewhat different language, which says:

A fee . . . shall not be allowed on taxation unless unconditional payment is vouched by the signature of counsel or otherwise proved to the satisfaction of the taxing officer.

HIS HONOUR:   Rule 103, so that is still there.

MR BURMESTER:   We would say where the bill has been rendered by AGS to the client in relation to counsel’s expenses then the taxing officer could be appropriately satisfied, even if not vouched by a certificate of counsel themselves.  But even if that rule was a barrier, ultimately the problem we encounter is as long as rule 93 applies, that seems to be an absolute prohibition, while if that is held not to be applicable, then the residual discretions of the taxing officer under rule 76, for instance, would be applicable.

HIS HONOUR:   Now, the mischief of the rule I think was pointed out by Sir Samuel Griffith a long while ago in a case called Irving v Gagliardi (1895) 6 QLJ 200 at 201 where he said:

I do not like the possibility of the Crown making a profit by recovering costs in litigation which may amount to more than would pay the expenses of the Crown Solicitor’s Department, or so much of the expenses of that department as are attributable to litigation with unsuccessful parties -

That is the mischief of the rule.

MR BURMESTER:   That might have been, your Honour, but as the Victorian authority that I referred to shows, it is not unheard of for Crown counsel to receive fees and it was really in that Victorian case of Registrar of Titles v Watson turned on what the rules actually provide rather than any other broader principle.

HIS HONOUR:   That turned on the voucher principle.

MR BURMESTER:   That turned on the voucher principle, that is right.

HIS HONOUR:   Yes, but Watson is in an era when the Crown law they are talking about, the Crown Solicitor they are talking about is quite different from what now exists.

MR BURMESTER:   Quite different.  The thrust of the submissions we have put in, your Honour, I would submit is that AGS cannot properly be regarded as the Commonwealth or the Crown or whatever.  It is essentially a business enterprise which charges fees for its work, whether as solicitor work or in‑house counsel work.  The clients ‑ ‑ ‑

HIS HONOUR:   I know, but then you get yourself into the first limb of 93 you see.  It is a firm of practitioners and you just happened to have settled on a practitioner.

MR BURMESTER:   But, your Honour, we would say a body corporate, an incorporated legal practice, is not properly described as a “firm of practitioners”.  One has to turn then to general rules in relation to taxation such as the principles in rule 76 about a general discretion.  There would then at least be an ability to accord payment for work actually done, and that is the fees that are sought, fees for the work actually done.

HIS HONOUR:   Yes.

MR BURMESTER:   So, in our submission, rule 93 in either of its limbs, whether because AGS in some way can be equated with the Commonwealth or in relation to firm of practitioner operation, we say, again, not applicable and once rule 93 goes, then, in our submission, rules like 103 do not stand in the way of ultimately a discretion by the taxing officer under rule 76.

HIS HONOUR:   Yes, I know that, but then that brings me back to Sir Samuel Griffith who, you say, has been consigned to history, but if you get out of this rule which was designed to deal with the Sir Griffith situation, you are not necessarily in a healthy state.

MR BURMESTER:   Sorry, your Honour?

HIS HONOUR:   You are not necessarily in a healthy state because one of the realities – and I will be giving you the opportunity to put on some more evidence about this – but how is this actually administered?  Who was the client?  Was there a contract with the client?  Who bills who?

MR BURMESTER:   Your Honour, there is a contract.  A department representing the Commonwealth has a contract with law firms, including the Australian Government Solicitor, for the provision of legal services.  That includes the retention of counsel for court appearances.

HIS HONOUR:   What do you mean by “counsel”, you see?

MR BURMESTER:   The persons who appear and do counsel work, either in drawing pleadings or appearing in court as an advocate.  Sometimes AGS and other law firms will brief private counsel in the ordinary way.

HIS HONOUR:   I know.

MR BURMESTER:   Other times they will brief in‑house counsel as if they ‑ ‑ ‑

HIS HONOUR:   This expression “in‑house counsel”, what is the content of it?

MR BURMESTER:   Your Honour, there are certain officers in AGS, entitled counsel who do counsel‑type work who receive briefs from AGS solicitors to appear in court.

HIS HONOUR:   Yes.  Now, is that part of some administrative arrangement that is documented in any way?

MR BURMESTER:   It is usually documented in the form of delivery of a brief as if it was delivery of brief to ‑ ‑ ‑

HIS HONOUR:   Do they hold any particular position in the departmental structure, these people, or is it purely ad hoc?

MR BURMESTER:   They have titles as counsel, your Honour, just as I have a title “Chief General Counsel”.  There is no sort of specific or special segmented part of the organisation.

HIS HONOUR:   Yes.  Well, I would like some evidence about that, too.

MR BURMESTER:   Yes.

HIS HONOUR:   It seems to me it may be that the position is no different than if the Minister had have retained Mallesons Stephen Jaques and they sent up one of their staff to appear in court, one of their employed solicitors – not a partner, but one of their employed solicitors.  Now, what would the result be then?  Rule 93 would apply, would it not?

MR BURMESTER:   If they were just paid clerks in receipt of a salary, rule 93 would apply.  We have sought to argue that that ought not to be read, as it were, as overriding every other rule such as the discretion, but the Registrar has read it that way.

HIS HONOUR:   Yes, I understand that.  If there is a crack in rule 93, a gap in which you say you sit, given the mischief that rule 93 is designed to deal with, why should you then have the benefit of a discretion in your favour?  That is what I am puzzled about at the moment.

MR BURMESTER:   Your Honour, the difference is that private law firms can arrange their affairs so that they appear through partners and, hence, are entitled to charge.  AGS, because it is not a firm of practitioners with partners in the ordinary sense, is not able to organise its affairs in that way, so that it is not in a position to, as it were, organise its affairs to fall within that limb of the rule.

HIS HONOUR:   You may be right, but I would need some evidence about that.  That is what I am trying to say.  This may be an important case in that sense ‑ ‑ ‑

MR BURMESTER:   Yes, your Honour, it does have broad implications.

HIS HONOUR:   Even though it is only over $16,000.

MR BURMESTER:   Your Honour, I took it from your introductory remarks, focusing on section 64 of the Judiciary Act, that ‑ ‑ ‑

HIS HONOUR:   Yes, without some statutory basis somewhere you cannot get any costs.  That is the common law rule.

MR BURMESTER:   Your Honour, what I do not understand is the focus on section 64.

HIS HONOUR:   Section 64 gives you that footing without which you would be nowhere.  That is why it is there.

MR BURMESTER:   Your Honour, that is not right.  We say that the Judiciary Act itself in the provisions which create the Australian Government Solicitor and give it the right to bill clients and to recover fees in the ordinary way gives us the authority to recover these fees. 

HIS HONOUR:   Because, in effect, you are not the Crown.

MR BURMESTER:   Because we are not, in effect, the Crown.

HIS HONOUR:   Yes, I understand that.

MR BURMESTER:   And there are these special provisions in the Judiciary Act which authorise AGS to render bills to its clients and to recover ‑ ‑ ‑

HIS HONOUR:   That only opens up the nature of the gap, Mr Burmester.  That is what I am trying to get across to you.  You are not the Commonwealth.  You are not a firm of solicitors.  You are some statutory creature in between.

MR BURMESTER:   To which the Judiciary Act has provided specific rights and entitlements, if you like.

HIS HONOUR:   Yes.

MR BURMESTER:   We would say they cover the situation.  My concern, your Honour, is that by focusing on section 64 and the Commonwealth or focusing on a firm of practitioners that one not ignore those specific provisions.

HIS HONOUR:   I understand that.

MR BURMESTER:   I am quite happy, if it would assist your Honour, to get further evidence in terms of the practice and procedures that are followed.

HIS HONOUR:   Because that then goes to the discretion, you see.

MR BURMESTER:   Yes.

HIS HONOUR:   You see what I am putting.

MR BURMESTER:   I see what you are putting and I said if that would assist your Honour I am prepared to ‑ ‑ ‑

HIS HONOUR:   Yes.  Now, I do not know if there is any provision – one reason why it is worth taking some time over this is that we are revising our Rules, so this is a good opportunity to think in a practical situation.

MR BURMESTER:   My understanding, your Honour, this is a problem that only arises in the High Court.  It does not arise in other federal courts that I am aware of, or even State courts.

HIS HONOUR:   Now, it is worth looking at the Supreme Court Act (Can), section 99 – which under their previous Act was section 105, I think, 106 ‑ which has been there for a long time, says:

In any proceeding to which Her Majesty is a party . . . costs adjudged to Her Majesty shall not be disallowed or reduced on taxation merely because the solicitor or the counsel who earned the costs . . . was a salaried officer of the Crown performing such services ‑ ‑ ‑

et cetera.

MR BURMESTER:   And in the Federal Court Rules, your Honour – I do not remember the exact provision, it is Order 62, I think, perhaps rule 1A – again, there is express provision made that vouchers do not need to be produced in terms of Crown Solicitors or other employees of the Crown.

HIS HONOUR:   Yes.

MR BURMESTER:   So other courts have made provision.

HIS HONOUR:   Yes.

MR BURMESTER:   I agree that if it will help I will undertake to get some more information.

HIS HONOUR:   Could you provide that as well?

MR BURMESTER:   And return and have another hearing before your Honour.

HIS HONOUR:   Yes.  Now, I have given a reference to Robertson.

MR BURMESTER:   Yes, thank you, your Honour.

HIS HONOUR:   There is also a Canadian case that may be of some help called Nickel Mines [1967] SCR 672. You can pick up references there to the history of this problem in Canada and the way they have sought to solve it. That Victorian case of Watson seems not to have been followed by Justice Higgins in the ACT Supreme Court in a case of Marks (1996) 131 FLR 462. It would assist me now, though, if you could take me through Part VIIIB and explain how you say it gets you across the line, as it were.

MR BURMESTER:   Yes, your Honour.  If I could then take you to Part VIIIB starting with section 55I of the Judiciary Act.

HIS HONOUR:   Yes.  Now, I sort of disengaged from this area of debate at the time Part VIIIA went in, which is back in the 1980s, I think.

MR BURMESTER:   What happened, your Honour, I think some amendments were made to Part VIIIA at the time the AGS amendments were made, in particular, section 55E and following, to deal with Attorney‑General’s lawyers who are ‑ ‑ ‑

HIS HONOUR:   Yes, there was a useful article by Mr Brazil in 58 ALJ 457 at the time 55E first went in.

MR BURMESTER:   Your Honour, I think all that changed when AGS was established.

HIS HONOUR:   And that has changed since.

MR BURMESTER:   And 55E today deals with Attorney-General’s lawyers.  It deals with a different issue.

HIS HONOUR:   Yes.

MR BURMESTER:   The replacement, if you like, of 55E is now Part VIIIB, starting with 55I, in particular, 55J, which establishes the Australian Government Solicitor.

HIS HONOUR:   Yes, I see.

MR BURMESTER:   Section 55M sets it up as a “body corporate”, so instead of an individual holding the office, it is a body corporate.  It is an organisation.  Its functions are set out in section 55K.

HIS HONOUR:   Who constitutes the body corporate?

MR BURMESTER:   Your Honour, it is established as a body corporate.

HIS HONOUR:   I know, but what is the ‑ ‑ ‑

MR BURMESTER:   You will see in section 55S the CEO is the sole director:

for the purposes of the Commonwealth Authorities and Companies Act 1997, and has the function of managing the AGS.

So there is no board of directors.  The CEO is the sole director.

HIS HONOUR:   And the funding?

MR BURMESTER:   And the funding, section 55P provides that “AGS may charge for services” and, in particular, subsection (2):

If the AGS has charged a client an amount under subsection (1), the amount may be recovered by the client as costs incurred by the client.

If one then goes ‑ ‑ ‑

HIS HONOUR:   So if you do not get this $16,000 allowed, you cannot recover it.

MR BURMESTER:   Well, we would still bill the client.  The client would still be liable to pay AGS.  It is just that the client does not recover the sum if it was – so in that sense, AGS is not out of pocket.  It is the client who is out of pocket.

HIS HONOUR:   Yes.  So you said the CEO is the only ‑ ‑ ‑

MR BURMESTER:   Yes.  Division 5 starting at 55ZC is under the heading “Money”.  We are not subject to any taxation and in 55ZD “AGS must make tax‑equivalent payments to the Commonwealth” and 55ZE:

Corporate governance requirements

(1)      The Attorney-General and the Finance Minister (acting jointly) may, after consultation with the CEO, inform the CEO in writing of corporate governance arrangements –

and these may include in subsection (3):

(a)      to pay a dividend . . . 
(b)      to make a payment of a specified amount –

and the AGS is liable to pay an amount so specified.  But AGS receives no appropriation from the Parliament.  It depends on its fees billed to clients, predominantly Commonwealth clients, but not exclusively.  There is then, as it were, through the arrangement of shareholder ministers, as they are entitled, the Attorney-General and the Finance Minister, approval of corporate plans, corporate governance arrangements through section 55ZE, but there is no general power of direction or approval in advance of the provision of legal services.

HIS HONOUR:   You rely on revenue for your fees, do you?

MR BURMESTER:   Revenue for our fees.  Well, we rely on revenue paid by our clients who are billed for the services rendered to them.

HIS HONOUR:   Yes.

MR BURMESTER:   Some of that money is Commonwealth money that has been appropriated to departments for their administrative costs, including legal expenses.  Some may come from non‑Commonwealth clients.  If a profit is made, then in consultation with the shareholders a dividend may be required to be paid.  Payment of salaries to ‑ ‑ ‑

HIS HONOUR:   No shareholder.

MR BURMESTER:   ‑ ‑ ‑ AGS employees depends on making a profit.

HIS HONOUR:   I was going to ask you that.  What security of payment of the wages is there of employees?

MR BURMESTER:   Your Honour, section 55ZB you will see:

The CEO may, on behalf of the AGS, employ persons as staff –

so we would be like the employees of any company.  If it does not have money available, it cannot pay us.

HIS HONOUR:   But you cannot go bankrupt, presumably?

MR BURMESTER:   Well, I am not sure about that, your Honour.  I mean, we are different from a department of State which might be more difficult to say could go bankrupt.

HIS HONOUR:   You are, yes.  I perceive that.

MR BURMESTER:   I would have thought a statutory body, a body corporate, could ‑ ‑ ‑

HIS HONOUR:   Yes, but I was not being facetious.  Is there any provision for, as it were, grants of finance?  Section 55ZD is going in the other direction.  If the money goes ‑ ‑ ‑

MR BURMESTER:   That is right.  Your Honour, I think when AGS was established as a body corporate there was some transfer of assets and moneys from the Commonwealth to AGS.

HIS HONOUR:   Yes.

MR BURMESTER:   And I guess it would always be open for the Commonwealth to decide to appropriate – through an appropriation to give money to the AGS, but in the normal course there is no such appropriation.

HIS HONOUR:   But I mean do you pay rent?

MR BURMESTER:   We pay rent to the owner of the buildings we occupy, most of which are not Commonwealth buildings.  That would be paid to private landlords.

HIS HONOUR:   Yes.

MR BURMESTER:   As I said, the employees are employed under contract with the CEO.  They are not public servants under the Public Service Act.

HIS HONOUR:   They are not?

MR BURMESTER:   They are not public servants, no.  It is section 55ZB.  They are employed as staff of the AGS by the CEO and they are not subject to the Public Service Act.  So, in all intents and purposes, it is treated as a government business enterprise and that is what has been designated under the regulations made under the Commonwealth Authorities and Companies Act.  So it is treated as a government business enterprise.  I think there was a reference to that in the written submissions.

HIS HONOUR:   There is.  I am not quite sure I understand the business enterprise legislation either.  I looked at it fleetingly in that Canadian Airlines Case we had a couple of years ago.

MR BURMESTER:   Yes.  I mean, its purpose, your Honour, essentially is to let the authority and to indicate the authority is intended to be a business out there for the purpose of making a profit.

HIS HONOUR:   Yes.  What role does the Auditor‑General play?

MR BURMESTER:   The Auditor‑General does audit the accounts of the Australian Government Solicitor, but that is common with many ‑ ‑ ‑

HIS HONOUR:   That comes through the Authorities Act, does it?

MR BURMESTER:   I think that comes through the Authorities Act rather than through the Judiciary Act.  I am sure there is a provision on that, your Honour, if I could ‑ ‑ ‑

HIS HONOUR:   Yes, I thought there was.  Anyhow, that can be looked at, section 35 perhaps of the Authorities Act.

MR BURMESTER:   Yes, your Honour.

HIS HONOUR:   That talks about a Commonwealth company.

MR BURMESTER:   That is a Commonwealth company.  I think there is probably a provision somewhere else in relation to Commonwealth authorities or government business enterprises.  I can give your Honour a reference later.

HIS HONOUR:   Anyhow, there is no need to rush that.  Now, that is the sort of problem I have at the moment understanding how it all fits together.

MR BURMESTER:   So essentially, your Honour, some more extensive submissions that set out that and perhaps attach some material – I am not sure it is evidence, but maybe it is evidence and we can put it in in the form of an affidavit ‑ ‑ ‑

HIS HONOUR:   It can be treated as evidence.

MR BURMESTER:   ‑ ‑ ‑ the things like forms of bills and so on.

HIS HONOUR:   Yes, that would be helpful.

MR BURMESTER:   We can do that.

HIS HONOUR:   All right.  How long will you need to do that?

MR BURMESTER:   I would not think too long, your Honour, but a couple of weeks perhaps.

HIS HONOUR:   No, I am not pressing you.

MR BURMESTER:   No.  Maybe a couple of weeks, if that is possible.

HIS HONOUR:   Yes.  Monday, 24 May – I am sorry, if we adjourn until Monday, 24 May and you had until, what, Monday, 17 May, would that be enough time?

MR BURMESTER:   Yes, your Honour, that should be fine.

HIS HONOUR:   So any further submissions and materials to go on on or before Monday, 17 May and I will adjourn until 2.15 pm on 24 May.

MR BURMESTER:   Your Honour, I just note that it is section 8 of the Commonwealth Authorities and Companies Act which provides for the Auditor‑General to be the auditor of each Commonwealth authority, which includes a government business enterprise as well as – but certainly AGS is treated as a Commonwealth authority within the meaning of the definition of “Commonwealth authority”.  So the Auditor‑General does act as auditor.

HIS HONOUR:   But assume one of your staff sued for wages unpaid – just assume that – you are saying that would not be an action against the Commonwealth?  Assume they sued the AGS.

MR BURMESTER:   That would not be an action against the Commonwealth, no, your Honour.  We say it is a separate legal person.  We are not dealing with privilege and immunities and we are not dealing with jurisdiction of a court such as under section 75(iii) or whatever.  There is no reason not to treat it as a separate legal person.  If one examines the provisions of the Judiciary Act Part VIIIA and B, in particular, you will see a distinction drawn between Attorney‑General’s Department lawyers where the Commonwealth sues for those fees or has a right to charge fees and the provision dealing with the Australian Government Solicitor where it is the Australian Government Solicitor who can charge fees.

HIS HONOUR:   Yes.  Could you just refer me to that?

MR BURMESTER:   If one goes to section 55E which deals with “Attorney‑General’s lawyers” and then section 55G “Commonwealth may charge for services of Attorney‑General’s lawyer”.  If one then goes over into Part VIIIB dealing with the Australian Government Solicitor, one sees section 55P which is the separate provision where it is AGS that may charge fees, and we say, no, they are separate legal persons and cannot properly be equated.

HIS HONOUR:   What is the interrelation between 55E in Part VIIIA and Part VIIIB?

MR BURMESTER:   None, your Honour.  One deals with departmental employees, employees of the Attorney‑General’s Department, public servants, and the other one deals with employees of a separate organisation, separate body corporate, the Australian Government Solicitor.  There is no longer any relationship between the two.

HIS HONOUR:   Is there some form of Commonwealth work that has to be retained by the Attorney‑General’s lawyer, security work and advisings?

MR BURMESTER:   There are directions, your Honour, under the general power in Part VIIIC “Attorney‑General’s Legal Services Directions” and directions that have been given which tie certain categories of work, such as Cabinet‑related, national security, international law and constitutional law, to the Australian Government Solicitor.

HIS HONOUR:   Right.

MR BURMESTER:   But all other work, including most litigation, Commonwealth clients are free to choose who to instruct.

HIS HONOUR:   Yes.

MR BURMESTER:   But that is something, again, I can put it in the further submissions.

HIS HONOUR:   Yes, I would be grateful.  You have lived with it all – a lot of things have been changing.

MR BURMESTER:   They certainly have, your Honour.  It has changed quite dramatically.

HIS HONOUR:   All right.  So we will adjourn then until Monday, 24 May 2004 at 2.15 pm.  I will now adjourn.

AT 2.44 PM THE MATTERS WERE ADJOURNED
UNTIL MONDAY, 24 MAY 2004