Goldspan Investments Pty Ltd & Ors v Chappell as executor of the estate of Robert Hastings Hitchcock

[2022] HCATrans 137

[2022] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P54 of 2021

B e t w e e n -

GOLDSPAN INVESTMENTS PTY LTD

First Applicant

KEVIN ROBINSON

Second Applicant

NEIL ROBINSON

Third Applicant

PETER ROBERT HALLAM

Fourth Applicant

and

PAULA SUSAN CHAPPELL AS EXECUTOR OF THE ESTATE OF ROBERT HASTINGS HITCHCOCK

Respondent

Application for special leave to appeal

KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 19 AUGUST 2022, AT 10.30 AM

Copyright in the High Court of Australia

____________________

KEANE J:   As the Court is sitting remotely, I will announce the appearances for the parties.

MR B.W. WALKER, QC appears with MR G.E.S. NG for the applicants.  (instructed by Mills Oakley)

MS J.K. TAYLOR, SC appears with MS A. PIENIAZEK for the respondent.  (instructed by Jones Day)

KEANE J:   Yes, Mr Walker.

MR WALKER:   May it please the Court, the statutory prohibition of misleading and deceptive conduct now appears in a number of iterations. They have, for the purposes of this case, in the ASIC Act, the Corporations Act and the so-called Australian Consumer Law in its West Australian manifestation, borrowed, for obvious reasons, by replication, the language that your Honours will recall from section 82 of the Trade Practices Act, where the statutory cause of action is given to, and for the benefit of, persons who suffer loss or damage.

That phrase, with respect to its use in section 82, the evident model for the latter iterations with which this case is concerned, has been held by the Full Court of the Federal Court in Pritchard v Racecage 72 FCR 203 to exclude the possibility of others, apart from the person who suffers loss or damage, such as the legal personal representative of that person’s estate, from claiming damages.

GORDON J:   Mr Walker, is that right in relation to Pritchard?

MR WALKER:   Yes, your Honour.

GORDON J:   I thought Pritchard was different legislation and facts.  In the circumstances there the action was brought by the dependents, it had not been brought, was it, by the person who subsequently became deceased.

MR WALKER:   That is – as to the facts of that case, your Honour is, with respect, quite right, but what mattered so far as the Court of Appeal in this case was concerned was the Full Court’s reasoning which excluded by an understanding of the phrase “person who suffers loss or damage”, a person such as a legal personal representative, or, for that matter, any other successor.

Now, in particular, Pritchard stands only for that aspect of the case, it does not cover the field. The reason why we seek special leave is that against that background ‑ which their Honours found in our favour, namely, the provisions in question did not grant a cause of action to anyone other than the person who suffers loss or damage ‑ then, in our submission, one can see from the outcome the serious departures from the principle and rules requiring alternatively attention to section 109 of the Constitution or to the effect of section 79 of the Judiciary Act, this being a case where the Supreme Court was exercising Federal jurisdiction.

In our submission, at pages 176 and 177, in paragraph 30(g), your Honours will see a succinct statement of the central proposition upon which we succeeded at first instance and wrongly failed, as we have it, on appeal. In our submission, when one goes to the core of the reasoning, which can be seen in particular as commencing at page 191 of the book, starting perhaps with paragraph 90, at the top of that page. Their Honours have wrongly failed to characterise section 4 of the Law Reform Miscellaneous Provisions, subsection 1, which is what I will call the “survival” or “non‑abatement” provision in question.

This Court has made plain, by the detailed discussion and explanation, and the outcomes respectively in Rizeq and Masson, the two cases discussed in the reasons of the Court of Appeal, in particular.  But that characterisation is an essential step in order to apply this Court’s jurisprudence concerning the requisite gap in the powers of the State Parliament, requiring to be filled by resort to section 79 of the Judiciary Act in the exercise of Federal jurisdiction.

Though there are a number of different ways of describing the possible characters to be chosen from – for the purposes of that exercise – we would urge that the basic distinction, now clear in this Court’s authorities, is between a law which substantively disposes of, or creates, rights or obligations, or other aspects of a legal position, not depending in itself on the operation of a court, and on the other hand, laws which, properly understood, seek to regulate or control the exercise of a jurisdiction by a court.

Familiarly, as your Honours know, it is not the case simply by observation of the examples to date that a provision must be one or the other, wholly substantive or wholly controlling of the exercise of jurisdiction, and I do not need to dwell on the familiar examples by which a law may have a character which is split between those two categories.  But the split between the two categories is essential in order to understand that which is available or a candidate for pickup by section 79.

Any law which is not capable of being picked up by section 79 because there is not a relevant gap is of course, as a State law, always an object of scrutiny through the lens of section 109, and this case, as you have seen it in the alternative or fallback way in which we propose the analysis can properly be carried out, therefore raises important issues concerning the nature of the State enactment as to its proper character in order to answer the essential anterior question before you come to section 79.

As your Honours will see, in paragraph 90 of the majority reasons, their Honours go, as it were, immediately to the question of section 79 and pick up by finding that section 4 – to use the jargon:

does not apply of its own force to proceedings in federal jurisdiction.

That required, and requires, explanation by reference to characterisation, as this Court’s decision in Masson v Parsons trenchantly pointed out.  That is, in our submission, the first of the reasons why the special leave questions that we pose arise and are apt for a grant of special leave in order for this considerable error of approach to be corrected.

Can I explain, both by reference to section 109 and also in the different but somewhat related question arising under the words otherwise provided in section 79, how the provisions in this case ought to have been understood. It being a premise, as I opened, that these prohibitions of misleading and deceptive conduct, with the corresponding bestowal of the cause of action under the statutes on persons who suffered loss and damage thereby, it being a premise that that does not create a claim or cause of action for the legal personal representative, the Court of Appeal found nonetheless that proceedings did not abate upon death by reason of section 4.

As your Honours have seen in the exchanged written material for this special leave – and it is dotted throughout the reasons – there is an insistence that the claim in question is the same claim, that is, the claim that was given by words which in Pritchard v Racecage were held to confine or limit the availability of the claim to the person who suffered loss not being, for example, that person’s legal personal representative after that person has died.

Now, that can only come about by what is not possible to achieve, first of all, by a statute which, if properly characterised, as may well be the case, as having at least a relevant substantive effect; it cannot possibly survive a section 109 examination. It seems banal to the point of obvious that a State Parliament lacks the competence to amend Commonwealth legislation. If the State Parliament wished to pick up so as to prevent abatement of the kind of cause of action created, say, by section 82 of the Trade Practices Act, then it could have created by a form of its own pickup a State cause of action available, for example, to legal personal representatives.  That has not been done, or anything like that.

KEANE J:   Mr Walker, why cannot a State enhance ‑ ‑ ‑

MR WALKER:   It can.

KEANE J:   ‑ ‑ ‑ the value of a cause of action created by Federal law by, for example, providing that the cause of action provided by Federal law inures for the benefit of an estate.  The Commonwealth could not do that because it cannot make laws with respect to succession of personal estates.  But why cannot a State do that, and I suppose more pertinently, why would we see an inconsistency in a State law that simply operates to enhance the value of enhanced right created by Federal law?

MR WALKER:   The first observation to make is that the questions your Honour asks me are plainly matters that informed the parallel approach of Justice Pritchard in the Court of Appeal.  Yes, that is a live matter in consideration of the possibility of this argument.

The second point is that – as I have already noted – of course the State has well within its legislative competence to observe what is properly called in this case the beneficial effect of the control of misleading and deceptive conduct, and that would have the effect, of course, of such a case not being within Federal jurisdiction.  It would be simply to sue on a State cause of action, there being nothing wrong at all with the legislative device, the borrowing – by the sincerest form of flattery – the drafting of a Commonwealth cause of action.

That has not been done. Or to put it another way, notwithstanding the observations of Justice Pritchard to which I have generally referred, you will not find in her Honour’s reasons or in the plurality reasons an analysis of section 4 as having created a State claim to be administered in State jurisdiction. The whole of this case has been argued and decided on the basis – truly correct – that Federal jurisdiction was involved. The Federal causes of action are not, as it were, simply borrowed by a legitimate State pickup through section 4.

Now no doubt, if there had been such an argument, or such reasoning had been essayed, there would have been a slightly different slant to the interpretation of section 4 itself, and in particular the reference to the expression “cause of action”. But if anything – with respect – that is all the more reason for such ubiquitous and generally‑expressed provisions as section 4 – ubiquitous around the Commonwealth in various iterations by different Parliaments – that all the more reason for this Court to pay attention through an appeal to the correctness – or otherwise – of the Court of Appeal’s resolution of the evident problem raised by section 4 being a State enactment, two of the statutory causes of action arising under Commonwealth legislation, and those, of course, not being amenable to amendment.

Justice Keane also asked concerning the nature of an enhancement as it may inform first of all, a section 109 inconsistency. In our submission, notwithstanding the presence in the authoritative gloss of inconsistency that includes the word “detract” and the word “impair”, one can never forget that it also includes the word “amend”. In our submission, a Commonwealth law that gives a boon to a specified class is amended by a State law which would purport to give that boon to other persons other than those named in the class.

That, in our submission, is a simple and straightforward application of a section 109 argument of a kind that would rarely arise because to call an amendment an enhancement, which, by the way would probably always come from the mouth of those who sponsor the amendment, is not likely to be seen as somehow escaping the character of inconsistency within the meaning of section 109. But, in any event, there is the fundamental problem, of course, a State cannot amend a Commonwealth statute. At best, it could do what Justice Keane has raised with me, what I wholeheartedly accept, it could borrow the text, enact its own legislation, but with an improvement for that State. Can I then move to the ‑ ‑ ‑

GORDON J: Mr Walker, may I just ask one question about your special leave questions 1 and 2 which are directed at this, as you could call it, the characterisation of section 4(1) which in effect is the precursor to this 109 argument. Is your argument dependent on uncoupling section 4(1) from 4(2)?

MR WALKER:   They are different provisions.  That is, in our submission, one does not find in subsection (2) any expressions which require a reading of subsection (1) otherwise than the ordinary and contextual meaning would

otherwise give. But obviously any State provision such as section 4(1) will be required to be interpreted contextually. It is not being proposed, we think, that there is any radical alteration to a characterisation question, depending upon the immediate context of subsection (2). Now, in our submission, it thus appears that there is what we submit the primary result is, that there is, of course, no gap to be filled.

However, in order to pursue the analysis and expose the error which, in our submission, this Court should take on, one does need to turn to the supposed operation of section 79 by way of a pickup and, as your Honours have already read, it is our submission that if one were to do that then one asks whether in administering Federal jurisdiction, particularly with these two Federal statutes, whether or not it can be said that there is no provision otherwise by the words of the, as it happens, very same statute invoked in Federal jurisdiction, providing otherwise from the extension of a claim to legal personal representatives by section 4(1).

For the same reasons as appeared in the relevant reading of section 82 of the Trade Practices Act in Pritchard v Racecage the answer, in our submission, has to be: of course there is provision otherwise. The Federal provisions in question make the claim available to the person who suffers loss or damage. The supposed operation of section 4 by a supposed pickup to fill a supposed gap fails, even if you overcome those earlier conceptual obstacles, because it would provide that very same claim – insisted on by our opponents and by the court below – that very same claim to someone other than a member of the circumscribed class described by reference to whether they have suffered loss or damage.

It is for those reasons that, whether one, as we urge, treats it as the anterior question of substantive operation, there being no gap . . . . . role of section 79 leaving only the residual analysis under section 109, or whether one actually travelled to the position of asking section 79, the outcome by reason of the proper application of the principles this Court has so recently articulated in Rizeq and emphasised in Masson, requires correction.  If it please the Court.

KEANE J:   Thanks Mr Walker.  Yes, Ms Taylor.

MS TAYLOR:  Your Honours, I propose to begin with the proper construction of section 4, which relates to proposed ground 1 of the appeal and permeates all of the issues in the appeal.

In our submission, the fault in the applicants’ construction is that the operative provisions, that is, section 236 of the ACL as applied in WA, section 10.41I and section 12GF, are not confining provisions in that they do not contain a statutory command that only a person who has suffered loss or damage may recover damages to the exclusion of any other law, including succession laws. Rather, the operative provisions confer a cause of action upon a person who suffers loss or damage by reason of another person’s breach. In so doing, they do not exclude the operation of a provision such as section 4 of the Law Reform (Miscellaneous Provisions) Act which would have the legal effect of continuing the cause of action for the benefit or against the person’s estate.

The operative provisions and section 4 each have different objects and functions. The object of the operative provisions is to create a cause of action providing for rights and liabilities in favour of, or against, specified persons arising on breach. The object of section 4 is to provide for causes of action already vested in, or subsisting against, persons to be continued by or for their estate. Section 4 operates when the cause of action already exists in favour of or against a person under some different principle of law or statutory provision. The operative provisions vest the cause of action and section 4 continues it in certain circumstances, namely, the death of a party to the claim.

Section 4 does not involve an amendment or repeal of a cause of action and it does not amend or repeal the operative provisions when it applies to a cause of action arising under them. The effect of the applicants’ construction is that section 236 and its equivalents require the cause of action to abate on death of one of the persons mentioned in the provisions.

There is no express provision in the relevant statutes which would support such an assumption or construction, nor is there anything in the object and purpose of the act which would support it.  The operative provisions leave open the possibility that a cause of action vested in a person prior to their death may be continued by another law.

Now, the applicants may emphasise that section 52 or 82‑style claims have traditionally been held not to be capable of inter vivos assignment, but exceptions have been traditionally recognised for bankruptcy and death.  The different between inter vivos assignment and devolution of transmission on death or bankruptcy is at least two-fold.

First, the situations of death and bankruptcy have long involved legislative mandates for the devolution of the cause of action that is a chose in action.  Second, the traditional prohibitions on assignment due to champerty and maintenance do not arise, and in any event are displaced by the relevant legislation.  Each instance will require an analysis of the applicable legislation.

The competing constructions between the applicants and respondent may be demonstrated or tested in this way: if we consider the scenario which occurs when it is the defendant to a proceeding under section 236 of the ACL or other legislation who dies before a cause of action is merged in judgment, the applicants must say that in those circumstances, on their construction, section 236 and other provisions would confine the availability of a remedy to the person who engaged in misleading or unconscionable conduct, excluding the ability to claim against an inflated estate – even despite the operation of section 4. That is unlikely to have been the intention of the Federal or State Parliaments in enacting legislation with the stated objects of consumer protection. It also limits – without justification – the operation of section 4, which itself is beneficial legislation.

The applicants make the point in writing that even on the most expansive language that section 4 can accommodate, it does not make or deem the executor a person who suffers loss or damage, and that being so they say Ms Chappell has no viable claim. To this we would make these further points: section 4 requires that a vested cause of action continue for the benefit of or against the estate. Some sensible meaning must be given to that provision in the context of claims accrued to or against a person who dies. That leaves open the question of who is to vindicate or satisfy the cause of action, which has been statutorily mandated to continue.

Section 4 is not read in isolation, there is a legal framework of succession laws which identify the person who is appropriate to pursue the cause of action for the estate’s benefit. The legal framework in this state was discussed by Justice Pritchard at paragraphs 279 to 286, and 292; outlining the framework which informs the operation of section 4. Her Honour highlighted that in Western Australia, immediately on death of a person, the estate of the deceased person vests in the public trustee until the grant of probate or administration is made.

Then, under section 8 of the Administration Act – which we have reproduced in the white book at 331, all real and personal estate which the deceased person possessed, or was entitled to, passes to and becomes vested in the executor or administrator.  As her Honour highlighted at 286, the personal estate of the deceased includes a cause of action and:

A right may still devolve for the benefit of the testator’s estate even –

if it is not assignable. It is then left to the rules of court to allow for the substitution of the person to whom the cause of action is devolved – which, as we know, occurred in this case. Therefore, when section 4 is construed in the context of the established legislative and general law landscape relating to succession, there is no legislative absence of a person appointed to pursue the cause of action – which section 4 requires must be continued.

It has not been suggested that the Administration Act or other succession laws are inconsistent with section 236 or sections 12GF and 1041I. In our submission, section 4 should also be given the broadest operation that can sensibly be permitted, so as to give effect to its remedial objects. The applicants’ suggestion that it would be necessary for section 4 to deem an executor to be the person who suffers loss or damage, or to create a new cause of action, leads back to the same debate on construction. We submit it is not necessary for the legislation to deem an executor to be the person who suffers loss or damage.

Section 4 can and does work by continuing the cause of action for the benefit of or against the estate, leaving it to the surrounding legislative framework and rules of court to identify the appropriate person to deal with the cause of action.

Can I turn briefly to section 109. In our submission, the section 109 issues do not arise in this case in a way that would materially affect the outcome. As between section 4 and section 236 of the ACL (WA), both of which are State Acts, no question of section 109 inconsistency could possibly arise. This means that even if section 109 inconsistency could be established as between sections 12GF and 1041I and section 4, the respondent would still be entitled to recover damages in the proceedings by reason of section 236(1) of the ACL (WA) and section 4 of the Law Reform (Miscellaneous Provisions) Act. 

If it were necessary for the Court to consider the proper construction of section 4 vis‑à‑vis the causes of action provided in sections 1041I and 12GF, there is no inconsistency because the Commonwealth provisions, in our submission, do not purport to cover the field. They leave open the possibility of being enhanced or complemented by continuation of a provision such as section 4 and equivalent succession legislation. That disposes of our submissions on ground 1 of the proposed grounds of appeal in relation to construction, and I turn to section 79 issues which would arise on ground 2 in the event that special leave is granted.

The first question is whether section 4 is of a character which can be picked up by section 79. In our submission, the Court of Appeal was correct to proceed on the basis that it was, as the joint judgment did at paragraph 90 and Justice Pritchard did at paragraphs 329 to 332. For the purposes of section 79, section 4 is capable of a dual characterisation in the sense that it may be determinative of rights and obligations, but it is also directed to the manner of exercise of jurisdiction. Such laws are picked up by section 79 of the Judiciary Act unless a law of the Commonwealth otherwise provides.

In the court below, Justice Pritchard highlighted this at paragraphs 330 to 331 by reference to this Court’s decision in Masson v Parsons at 38 in relation to section 4 of the Civil Liability (Third Party Claims Against Insurers) Act (NSW) which this Court said would be picked up by section 79 despite the fact that it is determinative of rights and obligations. Her Honour held that section 4 of the Law Reform (Miscellaneous Provisions) Act is a similar law. It is therefore also picked up by section 79. This is consistent with the joint judgment at paragraph 111, holding that section 4 regulated the court’s exercise of Federal jurisdiction at first instance. The Court of Appeal was correct on this point.

It is appropriate for section 79 to operate in this way because there is a deficiency or gap in the State legislative power arising when one of the parties engaged in proceedings in the court’s Federal jurisdiction dies.  The State legislature does not have power to provide for the survival of causes of action in Federal jurisdiction, hence the need for section 79 to pick up and apply State laws addressing that subject.

Turning then to the question of whether the Commonwealth has otherwise provided, in relation to section 236 of the ACL (WA), no relevant inconsistency arises because that is not a law of the Commonwealth.  In relation to section 12GF and 1041I, the Commonwealth also has not otherwise provided.  There is no direct or indirect inconsistency.  Each of the provisions are silent on what is to happen when a person dies after engaging Federal jurisdiction in their lifetime.

There is no intention to cover the field.  The statutory text, context and purpose do not indicate that a plaintiff’s cause of action under section 1041I or 12GF in pending proceedings must abate if the plaintiff dies before judgment to the exclusion of any other State laws.

Clearer words, in our submission, would be required to exclude the operation of State laws which are consistent with and complement the object and purpose of sections 12GF and 1041I.  This is reflected in the Court of Appeal’s reasons at paragraphs 106 to 109.  There are three key propositions to be drawn from those paragraphs.  First, section 1041I and 12GF do not reveal:

an intention that a plaintiff’s cause[s] of action –

under those provisions:

in pending proceedings abates permanently upon the plaintiff’s death.

Second, that construction is supported by the text and purpose and the:

beneficial or remedial –

nature of the causes of action.  And, third ‑ ‑ ‑

GORDON J:   Ms Taylor, in relation to that second point, is it to say that if you adopted the alternative construction it would frustrate the purpose of the legislation?

MS TAYLOR:   Yes, your Honour.  Third on that construction, sections 1041I and 12GF operate consistently with what the joint judgment described as:

the general law concerning succession.

Which relevantly, includes the survival of causes provisions enacted in every Australian State and Territory.  That is what is meant by the court in paragraphs 106 and 109 when their Honours said that the provisions operate subject to the general law in respect of succession and transmissibility of causes of action in pending proceedings.  Similarly, at paragraph 336, Justice Pritchard said that:

the applicable Acts manifest no intention in relation to the survival of the causes of action in question.

The applicants argue that by picking up section 236 the Commonwealth has otherwise provided in the sense that on their construction of that provision the operation of section 4 is excluded. Even if the applicants’ construction were correct, section 79 does not change a State law into a law of the Commonwealth for the purposes of determining what the Commonwealth has in fact provided.

The applicants’ submissions on this point would lead to inconsistent results, depending on whether a claim brought or maintained by an executor under section 236 of the State law and section 4 is in State or federal jurisdiction. Such an incongruous construction of the applicable provisions is not justified and is contrary to the very purpose of section 79 of the Judiciary Act. The better view is that if section 236 of the State Act is picked up by section 79, section 4 is also.

Can I make some comments in relation to Pritchard v Racecage. In our submission, the court correctly distinguished this for the reasons given at paragraph 114, and Justice Pritchard also did so at paragraphs 334 to 336, and no inconsistency between competing intermediate court decisions arises. The key points of distinction between this case and Pritchard

include these:  first, no cause of action vested in Mr Pritchard in his lifetime, whereas causes of action were vested in Mr Hitchcock in his lifetime.

Second, Mr Hitchcock, unlike Mr Pritchard, was therefore able to, and did, commence proceedings while alive.  And, third, Mr Pritchard validly engaged federal jurisdiction in respect of that cause of action while alive, hence the section 79 gap in legislative power.  So, in our submission, there is no error in the Court of Appeal’s conclusion that Pritchard v Racecage was relevantly distinguishable.  Further, there is no law of the Commonwealth that otherwise provides the court was correct so to conclude and there is no need for this Court to revisit the question.

Finally, in relation to the exercise of this Court’s discretion to grant special leave, in our submission special leave should be refused.  First as the decision of the Court of Appeal is not attended by a sufficient doubt to warrant a grant of leave.  As there is a cause of action on this section 236 of the ACL as a law of the State, many of the questions regarding inconsistency under section 109 and whether the Court has otherwise provided as between sections 12GF and 1041I in section 4 do not arise in the sense that they would not affect the outcome of the proceeding. The case is therefore not an appropriate vehicle to consider those points.

There is, in our submission no need to revisit the Court’s relatively recent decisions on the operation of Section 79 of the Judiciary Act, Masson v Parsons, which were correctly applied by the Court of Appeal in this case. 

Finally, the interests of justice in the particular circumstances of this case favour refusal of the grant of leave, having regard to the fact that in the time since Mr Hitchcock engaged Federal jurisdiction in May 2014, there has been the unfortunate death not only of himself but now also his executor and wife Ms Chappell, and the interests of finality of the litigation strongly favour a refusal of a grant of leave.

Your Honours, those are my submissions.

KEANE J:   Thanks, Ms Taylor.  Yes, Mr Walker, anything in reply?

MR WALKER:   Your Honours, no.  The issues that we propose are ripe for consideration by the Court emerge from what has already been said and written.

Can I say this however, that nothing in the way our learned friend proposes the analysis should proceed does anything to detract from the large and general importance to the judicature in this country of the proper analysis of the interaction under the aegis of the Judiciary Act of the enactments of the Federal legislatures, that is State and Commonwealth as it, in particular, comes to a focus with the exercise of Federal jurisdiction.  The exercise of Federal jurisdiction, of course, can proceed by reference to, as we have pointed out in our written outline, such matters as diversity rather than, for example, subject matter.

There needs to be a principled approach, and, in our submission, the starting point is one which is not clear on any authority in this Court, namely as to whether the statement of the persons to whom a statutory cause of action or claim is available supplies its own limit by the parameters conveyed by that statement or description.  We submit that it is self-evident, that it is clear that there is an important conflict between the arguments of the parties in that regard.

That is a fundamentally important question to the understanding as to whether some other statutes supposedly picked up can alter what our learned friend says is a non-existent limitation or confinement.  That, in our submission, is sufficient to show the general importance of the judicial method applied by all three judges in the Court of Appeal and, in particular, the approach that my learned friend has drawn to attention, conveniently, at page 194 of the book, say, in paragraph 106, the theme continues elsewhere.

Your Honours will detect there an approach which reverses, as it were, the ordinary way in which one would read a description of a category and looks, as it were, for words of emphatic reminder that what has been stated is what has been stated and what is not stated is not included within the description.

That is not, in our submission, the proper way to approach the creation of a statutory claim or cause of action by reference to those who may advance it.  Thereafter, in our submission, in a reply to the whole of our learned friend’s careful analysis, is that at every point, important issues are raised to which satisfying answers – jurisprudentially – are not given in the reasons of either of the two judgments in the court below.  This is a matter which calls, in our submission, for the intervention of this Court to provide a conspectus of the principles and rules that govern the disposition of such important jurisdictional matters as arose in these proceedings.  May it please the Court.

KEANE J:   Thanks, Mr Walker.  The Court will adjourn briefly to consider the course it will take in this matter.  Adjourn the Court, please.

AT 11.11 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.15 AM:

KEANE J:   The proposed appeal does not enjoy sufficient prospects of success to warrant the grant of special leave to appeal.  The application is dismissed with costs.

The Court will now adjourn until 11.30 am.  Adjourn the Court, please.

AT 11.15 AM THE MATTER WAS CONCLUDED