Goldsmith v Sandilands

[2000] HCATrans 478

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P16 of 2000

B e t w e e n -

TREVOR JOHN GOLDSMITH

Applicant

and

MICHAEL DARREN SANDILANDS

First Respondent

THE STATE OF WESTERN AUSTRALIA

Second Respondent

THE COMMISSIONER OF POLICE

Third Respondent

THE STATE GOVERNMENT INSURANCE COMMISSION

Fourth Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 27 OCTOBER 2000, AT 12.03 PM

Copyright in the High Court of Australia

__________________

MR M.D. COLE:   I appear for the applicant.  (instructed by Terrace Law)

MR G.T.W. TANNIN:   May it please the Court, with MS K.E. McDONALD, I appear for the first, second and third respondents.  (instructed by Crown Solicitors for the State of Western Australia)

GUMMOW J:   I hold a certificate from the Deputy Registrar stating that he has been informed by the solicitors for the fourth respondent that the fourth respondent does not wish to be represented at the hearing of this application and will submit to any order of the Court, save as to costs.  Yes, Mr Cole.

MR COLE:   Thank you, your Honours.  The point that I wish to address your Honours on today concerns the question about whether the applicant injured himself at indoor cricket.  You will recall, your Honours, that the case concerned a question of whether he had injured himself in a high‑speed pursuit and the Commissioner found that he had, in fact, injured himself previously at indoor cricket.

Now, there were three bases upon which that could be found.  The first was the first respondent alleged that he had collected the applicant from the indoor cricket arena and the applicant had said to the first respondent he had injured himself.  Now, on appeal to the Full Court, the Full Court said that the Commissioner had erred in not exercising his discretion to allow the applicant to reopen this case or to call rebuttal evidence.  It will be recalled that the matter had been pleaded on the basis that the ‑ ‑ ‑

CALLINAN J:   The only evidence that he had injured himself at the cricket match was said to be the admission made by him to another police officer.  Is that right?

MR COLE:   Yes, that is correct.

CALLINAN J:   And did that emerge for the first time in examination in‑chief of that police officer in the defence case?

MR COLE:   That is correct, yes.

CALLINAN J:   But I take it the matter was put to the plaintiff?

MR COLE:   Yes, the matter was put to the plaintiff, your Honour, and the difficulty the plaintiff was confronted with in relation to the matter was that he was not able to recall any details to deal with that matter.

CALLINAN J:   How much detail was put to the plaintiff?  Was the place where he was said to have injured himself put and was the date put?

MR COLE:   It was not a precise date but it was within a few days of the high‑speed pursuit, your Honour.

CALLINAN J:   So there was an argument about where it occurred, which indoor, or if any ‑ ‑ ‑

MR COLE:   There was also an argument about where it occurred in the sense that there was confusion on the part of the first respondent as well, because the first respondent said he could not be 100 per cent sure.

CALLINAN J:   I know, but the plaintiff knew before he closed his case that there was an issue whether he had injured himself at an indoor cricket centre, if not at a precise time, at a time that was identified sufficiently to give him some idea of the occasion that was being put to him.  Is that not correct?

MR COLE:   Yes, that is correct, your Honour.  The difficulty was that what the applicant or the plaintiff did not know was that he was proceeding on a misapprehension in terms of what had been put to him, in terms of where the street could have been.  So there were various propositions that were put to him describing the street and the name of the street, but he was not able to respond to any of those.  It was only when he visited that street subsequently, President Street, during the adjournment, that he realised that all the propositions that were put to him in terms of the features of that street, in fact, did coincide with President Street but it was, in fact, the wrong street.

It was a situation in which, when the first respondent gave his evidence, he acknowledged that he was not 100 per cent sure about that and he had chosen that street name because he had been looking for that street and it matched the features that he recalled.  So it was very much a matter that it was not the name of the street, it was the features of the street.  The problem was that the applicant was not able to recall any of the features of the street, which was not surprising given the length of time that had elapsed.  He has played at various ‑ ‑ ‑

CALLINAN J:   Can you refer me to the transcript where the matter was put to your client?  Is that before us?

MR COLE:   No, you do not have the transcript, unfortunately, your Honour.  Certainly, your Honour, the matter was put to the applicant on the basis that there were a number of features and he was asked if he could recall features about the street and the applicant had to respond that he could not recall any of the features of the street other than to say that he identified the street as being in a particular industrial locality off Belmont Road.

That is where part of this confusion arose because the indoor cricket centre is, indeed, in Belmont, but that it was being put to him that it was in President Street and it was put to him that it was President Street in Belmont and he says, “Well, that rings a bell”, but the reality is that President Street is in Welshpool, which is three kilometres away from Belmont.

CALLINAN J:   All right.  Well, I understand that issue.  What was the other issue about the physiotherapist?

MR COLE:   The issue about the physiotherapist is not a matter that I need to address you on today, your Honour, because that is an issue which, in terms of the determination by both the Commissioner – because the Commissioner found that that issue at the end of the day was not the relevant issue.  It related to a subsequent accident he was involved in that may have had an impact on the injury, but the Commissioner found that that was of minor consequence at best.

So it was not really relevant to the Commissioner’s decision.  It is just a matter of which, we would say, when looked at generally in terms of the question of credibility, if you had been able to call the physiotherapist, it was a matter in which he would have then had the opportunity to bolster his evidence.

CALLINAN J:   But you are not really relying upon that ‑ ‑ ‑

MR COLE:   No, I am not relying on that point in my address to you today.  Your Honour, if I move on.  Essentially the Full Court found that the Commissioner had erred in not allowing us to call that evidence and we would say that that was the ‑ ‑ ‑

GUMMOW J:   This is at page 163, is it not, of the record?

MR COLE:   Yes, that is correct, your Honour.

GUMMOW J:   Paragraph 191, but then you quarrel with the statement that “no injustice flowed”.

MR COLE:   Yes.  Essentially the Full Court said that it would be fanciful, if he was allowed to present that evidence, that there would have been a different outcome and our submission would be that the Full Court erred in terms of how it viewed the evidence of the two other police officers.

So the second basis upon which there could have been a finding that he injured himself at indoor cricket was the basis of evidence of two police officers, Cross and Harmer.  Cross and Harmer gave evidence.  Both Cross and Harmer were police colleagues of the first respondent.  Harmer acknowledged he was a friend of Sandilands, the first respondent.  Cross acknowledged he was a friend of Harmer and that Harmer had approached Cross for assistance in relation to the hearing.

Now, in relation to the evidence of those two police officers, the evidence of Harmer, we would submit, was misunderstood by both the Commissioner and the Full Court.  If I take you to page 149 of the decision of the Full Court of Templeman J at paragraph 111:

Detective Sergeant Harmer gave evidence about a conversation he had with the appellant sometime after 26 June 1993, which related to the appellant “having injured himself playing indoor cricket”.  Sergeant Harmer said that he had not asked the appellant “any great questions about how it actually happened but he inferred it happened while playing indoor cricket”.

It was clear from Sergeant Harmer’s evidence in cross‑examination that to a certain extent at least, the source of his knowledge about the cricket injury said to have been suffered by the appellant was Constable Sandilands.  He could not recall precisely what Constable Sandilands had told him:  but whatever it was, prompted him (Sergeant Harmer) to speak to the appellant about the matter.

Your Honour, I now take you to page 19 of the application book and I am towards the bottom of that.  Now, this is the extracts of the transcript of evidence that I was permitted to put before you, your Honour.

GUMMOW J:   It seems to have been a rather bumpy trial.

MR COLE:   Yes, your Honour, it was a rather bumpy road which, of course, is his allegation as well.  So that in relation to the evidence of Harmer, the point we would wish to emphasise is that, in fact, Harmer did not say that Goldsmith had said to him that he had injured himself playing indoor cricket.  If I refer you, commencing at paragraph 33 – so he has been asked the question by counsel for the first through third respondents:

I had a conversation with Trevor.  It was in the centre of the office part.  I can’t quote it word for word but it related to Trevor having injured himself playing indoor cricket.  He said something about how he had injured himself.  This is over the period ‑

Then there is an interruption:

of 26 June 1996.  Trevor said he had injured his back, and he was quite animated.  He showed me how he had injured himself.  Trevor could be quite comical, and I remember he said to me, “It bloody hurt.”  I didn’t ask him any great questions about how it actually happened but he inferred –

and I emphasise the word “inferred” ‑

it happened while he was playing indoor cricket.

Then he is asked by counsel in the next one if he could demonstrate that animation and he said that, effectively, he could not.  Now, unfortunately, I was not able to put before you the aspect of the cross‑examination, but under cross‑examination he denied that he had used the word “inferred” and said that it was his opinion that it had occurred at indoor cricket.  Now, it was specifically put to Mr Goldsmith that Mr Harmer would say that he had told Mr Harmer that he had injured himself at indoor cricket.  Now, that is not what the evidence showed and, similarly, if I ‑ ‑ ‑

GUMMOW J:   Well, that is one reading that is open, is it not?

MR COLE:   I think the conclusion must be, your Honour, that he said that he inferred it happened.  If I refer you then to the Commissioner’s reasons for decision in relation to that, which is contained at page 61 of the application book at, roughly, line 18:

Godfrey Harmer (“Detective Sergeant Harmer”) has been a police officer for about 15 years.  He gave evidence that within about three or four weeks of the pursuit he had a conversation with the plaintiff who told him that he had injured his back playing indoor cricket.

There is no reference there again about it being inferred, so that in relation to Harmer’s evidence we would say ‑ ‑ ‑

GUMMOW J:   But that is a finding of fact, I suppose, at line 18 there.  It was open to find that way, was it not?  You seem to be depending an awful lot on this phrase used by the witness of the plaintiff “he inferred” ‑ ‑ ‑

MR COLE:   Prior to that all he says ‑ ‑ ‑

GUMMOW J:   ‑ ‑ ‑ as descriptive of the gist of a conversation between the two of them at some past time.

MR COLE:   Yes, but all he could say was – he said, “I can’t quote it word for word but it related to” ‑ ‑ ‑

GUMMOW J:   It may be that this witness does not really understand what the word “infer” means.

MR COLE:   As I said, under cross‑examination, he denied he had even used the word “inferred” and said that it was an opinion he had arrived at that he had injured himself at indoor cricket.  But it was put to Mr Goldsmith that he had said that he had injured himself at indoor cricket and we would say that that was not Harmer’s evidence.    Now, in relation to Cross, Cross did give that evidence but it was very brief evidence just simply saying that Goldsmith had told him that he had injured himself at indoor cricket.

Now, I have referred the Court to the authorities in relation to the matter and there must be some concern in relation to a situation in which a person has a finding against him on the basis of an admission because of the difficulties of trying to refute an admission.  We are in a situation where the Full Court has agreed that the applicant should have had the opportunity to have called that evidence.  If he had have called that evidence then, we would say, the court would have been satisfied that Sandilands could not have collected him from the indoor cricket centre and, accordingly, if he had not have collected him, he could not have said to him that he had injured himself playing indoor cricket.

Those are questions of credibility and although, of course, the Commissioner did make findings of credibility adverse to the applicant, nevertheless it was on the basis of what the Full Court has said is incomplete evidence.  They have simply said there is no prejudice and they have then proceeded to rely upon the admissions that were made to Cross and Harmer.  But the Full Court, we would submit, was under a misapprehension as to the nature of that so‑called admission, that Harmer’s evidence was, at best, unsatisfactory.  Cross’ did amount to an admission but we would submit that the court is then left with a much too fragile base ‑ ‑ ‑

GUMMOW J:   Where is the Cross material?

MR COLE:   The Cross material is at page 16, the last paragraph there.  Cross gives evidence:

Sir, I recall speaking to Mr Goldsmith about his indoor cricket.  I believe it could have been during the week commencing about 28 June.  The reason why I think it was that week is because I had been away with a couple of officers to the country and so I think it was about the following week.  I spent quite a bit of time in the office and during that time I had a conversation with Mr Goldsmith where during the course of that conversation he mentioned the fact that he had hurt his back playing indoor cricket.

GUMMOW J:   Now, is there a finding based on that?

MR COLE:   Yes, there is a finding.

GUMMOW J:   Where is that?

MR COLE:   The Commissioner recites the evidence at page 60.

GUMMOW J:   Page 60, yes.

MR COLE:   Yes, and certainly the Commissioner adopts ‑ ‑ ‑

GUMMOW J:   Page 60, line 35, is it not?

MR COLE:   Yes, at the bottom.  Well, that is where he recites the evidence.  I am just trying to find in his reasons for decision where he ‑ ‑ ‑

GUMMOW J:   Well, he seems to have accepted it.

MR COLE:   Yes.

GUMMOW J:   He is reciting it to indicate his adoption of it, I think.

MR COLE:   I just cannot find it.  I think there is somewhere in pages 90 through 94.

GUMMOW J:   Is there cross‑examination of Detective Sergeant Cross?

MR COLE:   Yes, there was and Cross adhered to his position in relation to it.  The challenge in relation to Cross’ evidence was that it was put to the witness that his, Cross’, recollection was that this had occurred about the time of the high‑speed pursuit but by the time he gave the evidence it had firmed up to being a specific time after the high‑speed pursuit.

GUMMOW J:   28 June.

MR COLE:   Yes, so it had moved to after the pursuit.  The final matter that I quickly wish to address to your Honours here is that the third basis upon which the finding that he injured himself at indoor cricket was based upon the evidence of Dr Silver, who was the respondent’s doctor who had examined him on one occasion.  We would say in relation to that, the substance of Dr Silver’s evidence was simply to say that it was more likely that the injury occurred in the high‑speed pursuit than at indoor cricket, but he acknowledged quite candidly that if he had not injured himself at indoor cricket he would accept the injuries could have arisen from the high‑speed pursuit.

So we would say Dr Silver’s evidence could not be confirmatory of an injury at indoor cricket occurring, being recalled that, of course, there never was any evidence as to what this incident was and, of course, in relation to what Mr Sandilands had to say, that was contradicted by a statutory declaration he had given to the SGIC investigators shortly after the accident where he made no mention of this so‑called injury at indoor cricket and was contrary to a statement that he gave the following year which he signed.  Those are my submissions.  Thank you.

GUMMOW J:   Now just a minute.  Do not go away.  Just turn to page 182, please.  These are the prospective grounds of appeal.  Am I right in thinking that you do not press ground 3, that is, the discontinuance point?

MR COLE:   I am not pressing that.

GUMMOW J:   Yes, thank you.

MR TANNIN:   If your Honours please, the applicant’s submission commenced this morning with the proposition that the only evidence against the applicant was the alleged admission that he had made to the first respondent and that that falling away on their view rendered the entire decision palpably unjust and palpably ‑ ‑ ‑

CALLINAN J:   Only admission that he made that he injured himself at a cricket match.  It was not suggested that that was the only admission he may have made in his evidence.

MR TANNIN:   With respect, it is not correct that that is the only admission he made about an injury at cricket.  The evidence of the first respondent was that he had gone to pick the applicant up after an indoor cricket match at a place which he had never been to before.  He received the admission that the applicant had either injured his back or his neck, I think it was, playing cricket.

CALLINAN J:   I think the problem might be a bit more fundamental than that.  The Full Court, Justice Templeman, accepted that in six respects, and they are at paragraphs 107, 155, 157, 160, 171 and 180, the Commissioner erred in making various findings against the plaintiff.

MR TANNIN:   That is correct.

CALLINAN J:   Then his Honour went on to say that despite the fact that the Commissioner said that he relied upon the totality of the evidence, none of those, either alone or in combination, were sufficient to warrant interference.  Now, at first sight, it seems to me that in a case which, on any view, depended upon credibility, six errors were made, findings were made that should not have been made.  One wonders whether there has been a fair trial.

MR TANNIN:   Well, with respect, that very issue was agitated before the Full Court and, in essence ‑ ‑ ‑

CALLINAN J:   I know it has.  That is the whole point.

MR TANNIN:   No, but the point, your Honour, is that, in essence, the Full Court, reviewing the evidence, found that the findings of the Commissioner, based as they were principally on a finding as to the credibility of the applicant but supported and corroborated by findings in respect of the witnesses Harmer ‑ ‑ ‑

CALLINAN J:   …..you are not dealing with the point.  The point is at paragraph 184 on page 62.  How could his Honour Justice Templeman say that the points, which he has analysed in some detail, did not make:

a significant contribution to the Commissioner’s overall view of the appellant’s credibility.

The Commissioner would not have mentioned them and dealt with them in some detail had he not regarded them as important and indicators of the way in which he should decide the matter.  What do you say about that?  There are six points.

MR TANNIN:   Your Honour, the analysis that the Full Court did fully comprehended the errors.  What it did, however, was to look at the evidence again in detail, bearing in mind that the applicant put before the court grounds of appeal that were 25 pages long.  It went through a meticulous analysis of the evidence, and the weight of the evidence, and found ‑ ‑ ‑

CALLINAN J:   And concluded that on six matters the Commissioner was wrong.  That was the result of the analysis.  The real problem is in the conclusion.  How can Justice Templeman reach that conclusion?

MR TANNIN:   With respect, the basis of the conclusion was set out by his Honour, that it would be fanciful in the context of the evidence that was properly before the court and in respect of those findings which were properly found and properly based, bearing in mind that they were corroborated admissions, to find that the errors, even accepting that they were made, would have affected the fundamental finding of the Commissioner as to the credibility of the applicant.  That is the basis upon which the Full Court relied.

CALLINAN J:   I have a very uncomfortable feeling about this trial.  Counsel for the plaintiff was accused of being paranoid.  There was a refusal to allow the applicant to call a witness.  There does not seem to be any good reason at all why the applicant should not have been allowed to call that witness and the Commissioner made a number of errors on points of credibility.  I have a very, very uncomfortable feeling about this trial.

MR TANNIN:   With respect, the suggestion of the remark about paranoia as somehow informing the quality of the judgment, with great respect, is not correct.  The Full Court had argued before it this very point in the context of an application of bias ‑ ‑ ‑

CALLINAN J:   Yes, but it does not instil any confidence in you, does it?  It hardly instils confidence in you.  It certainly does not instil any confidence in me with respect to the conduct of the trial.

MR TANNIN:   Your Honour, the very issues that cause your Honour concern were agitated in supreme detail before the Full Court.  The Full Court unanimously found in respect of the remarks to counsel that there was no suggestion in them that affected the quality of the judgment.  The remarks to counsel were in response to what the court itself found was petulance and rudeness from counsel for the applicant.  His Honour Justice Pidgeon, in particular, deals with that matter.  They are not matters, with great respect, that should exercise a question of special leave being granted.  There is nothing in these matters that does not, in the end, rest fundamentally on matters of fact.

CALLINAN J:   But do you dispute that the case depended very much upon credit?

MR TANNIN:   No.

CALLINAN J:   So it was not a credit case at all.

MR TANNIN:   No, I am sorry, your Honour.  I do not dispute that.  It is entirely a matter of credibility.  We say that on the question of credibility there were pivotal findings made by the Commissioner, which were set out.  It was not just simply the general statement that he made at the outset that he had assessed the evidence and disbelieved the applicant.  He then set it out and albeit that there were errors acknowledged that were made, that the Full Court found were made, there was a body of evidence, sufficient, in our respectful submission, to indicate that the basis of the judgment was sound and that is that there was not only an admission to the first respondent but an admission to other persons, independent witnesses.

The point that my friend made to the Court about what appears at page 19 of the application book is an illustration of how stretched the applicant’s approach in this is.  The witness, Harmer, did, in fact, at line 35 testify that “Trevor” – that is the applicant’s Christian name – there was a conversation:

I can’t quote it word for word but it related to Trevor having injured himself playing indoor cricket.  He said something about how he had injured himself.

At that final line, my friend then develops that was the witness’ inference.  What the witness actually says at line 41:

I didn’t ask him any great questions about how it actually happened but he inferred it happened while he was playing indoor cricket.

It was not the witness making the inference.  It was the witness saying that the applicant telling him inferred that and that puts an entirely different colour, with respect, on what the witness testified.  Then there is the unshaken testimony of the further witness, Cross.  In that regard, with respect, there is a sound basis for the matter that was judged and the judgment that the Full Court made that, regardless of the acknowledged errors, there was a proper basis for judgment.  There was not glaring or palpable error in that regard.

In respect of the final point as to the medical evidence, that is an analysis of the medical evidence of Dr Silver and the analysis of the Full Court is best picked up at pages 153 and 154 of the application book.  There were two contrasting medical opinions as to the possible cause of the injury.  The Commissioner had before him the evidence that was independent of the doctors, which suggested the cause of the injuries was the cricket incident, and there was simply no suggestion here and no basis to say that it was not open to accept Dr Silver’s evidence.  My friend has not put any argument to demonstrate how that could be so.

CALLINAN J:   But did not Dr Silver’s evidence depend upon certain assumptions and those assumptions, in turn, depended upon cricket injuries?

MR TANNIN:   Yes.  The two doctors simply gave evidence about what were the preferable bases of finding causation but they did not ‑ but form the essence of the evidence.  That goes back to what was admitted.

CALLINAN J:   It was not only Justice Kirby who said something about credibility in State Rail Authority.  I said something about questions of dissecting credibility in Yates v Boland and I know other members of the Court in other cases have said that.  We have said it in criminal cases when the case essentially depends upon credibility.  It is very difficult to dissect unwarranted findings from findings that you might be able to justify in some way.

GUMMOW J:   We were referred the other day too to a decision of the New South Wales Court of Appeal in the matter of Beale v GIO 48 NSWLR 430, which is in a similar key, I think.

MR TANNIN:   Your Honours, the basis that we say you can properly dissect the findings of credibility here and leave intact the fundamental and just finding that the applicant was not a person to be believed in respect of this particular incident, was the presence of the unshaken testimony of the witness who is the first respondent, Sandilands.                  The only issue to which the evidence that would have been introduced went was whether the indoor cricket centre, to which he had never been, was in one suburb rather than another.

CALLINAN J:   But the question about it was put misleadingly to the applicant.  The misleading aspect of the matter was introduced by the respondent.  Is that not right?

MR TANNIN:   The question of how the matter was put was put in a way that was capable of being so construed, with respect ‑ I concede that ‑ but in the end all of that was acknowledged before the Full Court.  The court was fully cognisant of the way the cross‑examination took place.  The pleadings actually changed before the trial so that the respondent alleged an injury of

this kind, but it did not plead in its pleadings, as it could not and should not, the evidence.

What fundamentally happened, however, was that the applicant, before he had his case closed, knew what the issues were.  It was not as if all of this is some kind of surprise.  Sandilands was cross‑examined at length.  Cross and Harmer were cross‑examined.  They were not shaken.  It is not simply the word of one against another.  There is a strong basis, with respect, for the judgment, regardless of the errors ‑ and they are not issues that should exercise this Court in a grant of special leave.

GUMMOW J:   Thank you, Mr Tannin.  Mr Cole, do you wish to add anything in reply?

MR COLE:   Your Honour, simply to emphasise that there was an aspect in which it was not possible for the applicant to deal with the case as it progressed.  The matter had been put in a particular way.  We would say it had been put in a misleading way so that on the face of it it appeared reasonable.  Through the benefit of an adjournment he realised that none of that was going to accord with the streets he had visited and, therefore, application was made to lead further evidence.  That was declined and, because of that, because credibility was so important, the trial must be tainted because what was not clear from the pleadings had now become the pivotal issue in the trial.

GUMMOW J:   But it is said against you that you could not succeed unless Cross, at least, was disbelieved.

MR COLE:   All his evidence consisted of was to say there was a conversation.  That is it.  As against that we could present the evidence in terms of the location of the cricket centre and ‑ ‑ ‑

GUMMOW J:   When I say “disbelieve”, I should have said “not accepted”.

MR COLE:   Yes.  There is nothing that we can do in relation to Cross, as simply the problem, he has, in effect, been verballed by a fellow police officer.  There is nothing we can do to disprove that.  There is no suggestion there were other witnesses around, so that the court has to look at the totality of the evidence and we would say when the court – if it had been presented with the totality of the evidence, that is, in terms of location, which was the crucial point, the court would have been left in a situation where it would have verified the statutory declaration as being correct and that his statement was correct.  Your Honour, as you will be aware from the appeal grounds to the Full Court there was considerable disquiet in relation to what happened there and we certainly would take that view still.

GUMMOW J:   Yes.

MR COLE:   Thank you.

GUMMOW J:   Yes, thank you, Mr Cole.  If leave were granted this would be, I think, probably a half‑day case.  Would counsel agree with that?

MR COLE:   I know that it took two days to argue before the Full Court, but certainly the issues would be ‑ ‑ ‑

GUMMOW J:   They will be rather narrower now.

MR COLE:   Yes, I understand.  They will be much narrower.  I am just focusing on the points that I have raised previously.

CALLINAN J:   You might give some careful thought to editing the transcript so that we are only troubled with the parts of it that are really relevant.

MR COLE:   I understand.  I think from memory it is 1500 pages.

GUMMOW J:   Yes, well that will have to be looked at.

MR COLE:   Yes.

GUMMOW J:   Because it does not assist our preparation when we are burdened with a lot of irrelevant transcript.

MR COLE:   I understand that.

GUMMOW J:   I expect what I have said to be seriously attended to in that respect.

Now, there will be a grant of leave limited to grounds numbered in paragraphs 2 and 4 of the draft notice of appeal at pages 181 and 182 and the matter should be prepared on the footing that it will be a half‑day case.

AT 12.40 PM THE MATTER WAS CONCLUDED