Howard v The Commissioner of Taxation of the Commonwealth of Australia

[2013] HCATrans 269

[2013] HCATrans 269

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M116 of 2012

B e t w e e n -

STEPHEN JAMES HOWARD

Applicant

and

THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 NOVEMBER 2013, AT 9.52 AM

Copyright in the High Court of Australia

MR A.H. SLATER, QC:   If the Court pleases, I appear with my friend, MR D.J. McINERNEY, for the applicant.  (instructed by Oakley Thompson & Co Solicitors)

MR J.W. DE WIJN, QC:   If the Court pleases, MR P.G. SEST, SC and I appear with MR P.R. BENDER for the Commissioner.  (instructed by Maddocks)

MR SLATER:   Your Honours, I am in your Honours’ hands.  If your Honours did not have any particular preference, I propose to deal with the matters in the order in which they appear in the judgment.

CRENNAN J:   Yes, that would be convenient, Mr Slater.

MR SLATER:   Your Honours, the first matter which is dealt with in the application book commencing at page 115 concerns the consequences of a successful claim by the applicant upon third parties, and the obligations of the applicant to account for the proceeds of that claim to the company, Disctronics.  In our submission, your Honours, the essential error of the Full Court lies in its decision that the obligation of a fiduciary to account for profits arising from the position as fiduciary occurs only where the fiduciary is in breach.  That reasoning can be seen at the outset of the court’s reasons – it is a decision of the whole court – at page 115, paragraph 3 in the middle of the page:

During the course of hearing, the dispute between the parties became considerably refined and primarily concerned whether Mr Howard had been in breach of his fiduciary duty owed to Disctronics.

It is re‑emphasised that that is what the matter is about on pages 118 to 119.  At the foot of page 118, after referring to the inquiry, which is the central inquiry in the tax dispute:

as to whether Mr Howard received the award beneficially or as trustee for Disctronics –

their Honours went on to say –

That enquiry will involve an analysis of the facts to determine whether Mr Howard breached his fiduciary obligations to Disctronics.

Again, at the end of their Honours’ reasons, at the foot of page 122 in paragraph 20:

In these circumstances, there could be no conflict of interest in the way contended for by Mr Howard, and no breach of Mr Howard’s fiduciary duty to Disctronics.  Accordingly, the award of damages in question had the character of assessable income in Mr Howard’s hands ‑ ‑ ‑

CRENNAN J:   Is the question of whether there was a constructive trust dealt with in the Full Court’s reasons?

MR SLATER:   Only to that extent, your Honour.  It was common ground between us that if there was a constructive trust from which the amount awarded to Mr Howard flowed, then it accrued to him in his position as constructive trustee and passed through to the company.

KIEFEL J:   Do you say paragraph 20 does not answer that?

MR SLATER:   We say that paragraph 20 answers on a false premise.  That premise is that the trust can only arise if there is a breach of duty by the fiduciary.  We submit that the point which merits the attention of the Court is whether breach is essential to the operation of the constructive trust.  We say that a fiduciary who performs his obligations – does not breach them, but performs them – does so in his capacity as constructive trustee ‑ ‑ ‑

KIEFEL J:   You say that capacity arose because of the position of Mr Howard as a director, and it continued throughout, once the company was identified as the intended participant in the joint venture the fiduciary duty arose?

MR SLATER:   Yes, your Honour.  There was not any real conflict about the underlying principles.  They are set out by the court on page 115 at paragraph 4 ‑ ‑ ‑

BELL J:   You say the obligation extended to the bringing of proceedings to obtain the award of equitable damages that was made?

MR SLATER:   We do say that, but we say more particularly that the obligation fixes upon the gain made from a fiduciary office, even if that gain is made not in breach of the fiduciary’s duties, even if it is received by the fiduciary who continues to observe and perform his duties, as Mr Howard did – Mr Howard accounted for all these funds to the company ‑ ‑ ‑

BELL J:   Mr Howard was not under an obligation to bring the proceedings, but to the extent that he did, the award that was made you say is then subject to the obligation?

MR SLATER:   It is brought within the constructive trust and accrues through to the company.  That is the essence of our case, your Honour.

KIEFEL J:   Just as a side question, was Mr Howard’s capacity as trustee identified in the proceedings?

MR SLATER:   It was at issue from the very beginning, your Honour.  I was not in the case at first instance ‑ ‑ ‑

KIEFEL J:   I mean in the pleadings.

MR SLATER:   There are no pleadings in the tax case, your Honours.

KIEFEL J:   Case?

MR SLATER:   I am sorry, I may have misunderstood your Honour.

CRENNAN J:   In the case below, Mr Slater, in the Supreme Court.

MR SLATER:   In the proceedings in the Federal Court between the Commissioner of Taxation and Mr Howard, the basis for Mr Howard’s claim has throughout been that he received these funds as constructive trustee.

KIEFEL J:   I am sorry, I meant in the proceedings involving the joint venture.

MR SLATER:   In the proceedings involving the joint venture, it did not matter because ‑ ‑ ‑

KIEFEL J:   A capacity in which ‑ ‑ ‑

MR SLATER:   ‑ ‑ ‑ he had such rights as – they were not strictly legal rights, they were equitable rights.  It was a claim for equitable compensation.

KIEFEL J:   Did not have to disclose it for the purpose of the proceedings.

MR SLATER:   Did not require it to be disclosed.

KIEFEL J:   Probably procedurally incorrect, though.  Anyway, we do not need to go there.

MR SLATER:   I do not think we do, your Honour.

KIEFEL J:   For the moment.

CRENNAN J:   In any event, Disctronics was a party to those proceedings, and was it not found ultimately in the Court of Appeal that the lodging of a caveat by Disctronics over the relevant property was not an improper course of conduct?

MR SLATER:   It was, your Honour, although Disctronics had for whatever reason not pursued an appeal against the other findings made in the case.

CRENNAN J:   Mr Slater, we will call on Mr De Wijn in relation to this.

MR SLATER:   If your Honours please.

MR DE WIJN:   If it please the Court.  Your Honours, we say the Full Court applied agreed principles and correctly applied them, and they did them in the correct way.  The first thing the Full Court did was to identify the content of the duty owed by Mr Howard to Disctronics.  That was an important step.  So the court did not proceed, as my learned friend suggested, there is some general duty and when you are a director, everything that you do must be as a fiduciary for the company.  The court first of all identified the content of the duty owed by Mr Howard to Disctronics and then the court asked the next logical question, had Mr Howard discharged that duty or had he acted in breach of it?  They were the two questions.  That was the way the court approached the case ‑ ‑ ‑

CRENNAN J:   The discharge there seems to be a temporal concept.

MR DE WIJN:   With respect, no, because the discharge depends upon the content of the duty and the content of the duty, the Full Court found – and there was really no dispute about this – was to use reasonable endeavours to have the other joint venturers accept Disctronics as a purchaser of the proposed golf course. 

Your Honours will recall in the Supreme Court, and Justice Jessup accepted this, that a joint venture had been found to exist only between the six individuals – that is, Mr Howard and three on the Howard side of the fence, and Mr Cahill and Mr Edmonds – and although Mr Howard and his team wanted to have Disctronics introduced as a purchaser, there was no obligation on Edmonds and Cahill to accept Disctronics as a purchaser.  They were not bound to do so, and they were entirely within their rights to reject Disctronics as a purchaser.  So the content of the duty identified by the Full Court, and that is the critical, in effect, factual basis or factual finding, was the content of the duty is fact dependent ‑ ‑ ‑

CRENNAN J:   But when I raised the temporal aspect or dimension to the judgment, what I was intending to indicate is that the Full Court seemed to have conceived of the duty as coming to an end at a particular point and therefore no possibility of Mr Howard holding moneys as a constructive trustee.

MR DE WIJN:   Your Honour is right, and the reason the Full Court did that, and we say correctly, is because they identified the duty as the duty to use best endeavours to have Disctronics accepted by Cahill and Edmonds as a purchaser.  There is no doubt that Mr Howard and his team used best endeavours, but Edmonds and Cahill said “No, we are not accepting this company as a purchaser of the golf course”.  They could do no more.  That was all that their duty extended to.  Cahill and Edmonds were not bound to accept Disctronics as a purchaser and it was probably contrary to their interests, but everyone accepted they were not contractually bound and there was no other basis upon which Edmonds and Cahill were bound to take on Disctronics as a purchaser.

BELL J:   Justice Jessup suggested that it was wrong to look at the matter on what he described as “the Edmonds/Cahill axis”.  In that respect, his Honour took into account that the equitable compensation that was awarded was with respect to the profits of Kingston Links over a 30‑month period or something of the character, not the one‑day profit.

MR DE WIJN:   But it did not matter how the compensation was calculated for the purposes of the tax case.

BELL J:   Just looking at the analysis that Justice Jessup made, from the meeting in July in London, Mr Howard and the two other directors were committed to promoting the interests of Disctronics and the circumstance that in the events that happened Disctronics did not become the equity investor did not necessarily prevent the characterisation that Justice Jessup favoured.

MR DE WIJN:   With respect, his Honour did fall into error there because what happened in London was that there was a meeting of the board members of Disctronics.  Disctronics expressed an interest in becoming the ultimate purchaser of the land subject to two conditions.  There were two conditions that needed to be satisfied.  The other joint venturers needed to accept Disctronics as the purchaser and the equity requirement had to be less than $1.5 million.

There were two conditions precedent, so the duty – and this is the way the Full Court approached it, and we say quite correctly – the first thing is to work out what the content of the duty is.  What the Full Court said was you look at all these facts, and the content of the duty of Mr Howard and his other directors was to promote the interests of Disctronics to try and have Edmonds and Cahill accept Disctronics as the purchaser.  That was the duty.

The first thing the Full Court did was identify the duty.  That was the duty.  It was not any general duty.  This was not a deal that was in Disctronics’ ordinary line of business or anything else.  They fulfilled that duty, and that was what the court meant by the discharge of the duty.  Having fulfilled that duty that was the end of the matter.  Disctronics no longer had any interest or entitlement to the profits.  It brought proceedings itself.  It did not appeal.  That does not ‑ ‑ ‑

CRENNAN J:   But they had come into this, discussed this joint venture on the basis that Disctronics would have a role.  They have taken the view obviously when they have been awarded equitable damages that they are not beneficially entitled to them.  All the directors seem to have taken that view.  The damages insofar as they are to be assessed as income will be assessed as income in the hands of Disctronics.  Is that not how it works?

MR DE WIJN:   Only if one can establish a trust.  One cannot simply say “I have got some income.  I do not like the idea of it being my income and having to pay tax on it.  I will give it to someone else”.

BELL J:   But Justice Jessup at application book 45, paragraph 85, reasons:

Because of the contractual arrangements which governed the availability of the investment opportunity, the company could not sue.  But the directors could.  They did sue, and secured damages which represented not what they, as individuals beneficially entitled, had actually lost, but what would have been the gain of the company had the breaches . . . not occurred.

MR DE WIJN:   That is the way in which the losses were calculated.  But the question is not how the losses were calculated because what had happened, and what my learned friend’s argument does is conflate two distinct factual scenarios.  The first factual scenario arises out of the meeting in London where Mr Howard and his team wanted to introduce Disctronics as a purchaser, and they had a duty then to use reasonable endeavours to get Cahill and the other team, the defendant joint venturers, to accept Disctronics.  That was the first thing.  They discharged that duty.  They had discussions with Cahill and his team, and that was rejected.  They rejected the idea of having Disctronics come in as a purchaser of the land.

KIEFEL J:   Essentially, what you are saying is that Mr Howard and the other directors received the award of equitable damages in their personal capacity because there was no prospect of a contractual relationship with the other joint venturers between Disctronics and the joint venturers.

MR DE WIJN:   No, what we are saying is that in July, it was a joint venture agreement entered into between six individuals.  All that was in play at that point in time was that Mr Howard and his team had said to Disctronics “We will try and get you accepted as a purchaser of this land” and there were certain conditions.  That was the duty.  This was not a deal brought by Disctronics.  It was a deal that came from Mr Donovan and Mr Howard.  Disctronics was an afterthought – when I say “an afterthought”, a thought in July after the deal had started to emerge.  So one looks at ‑ ‑ ‑

BELL J:   What does it matter that it was an afterthought?  It seems to be common ground that by the July meeting, Mr Howard and the other two directors of Disctronics were committed to ‑ ‑ ‑

MR DE WIJN:   They were committed to – and this is the important thing, with respect – use best endeavours or to try and get Disctronics accepted by the other two joint venturers as a purchaser.

BELL J:   Now, accepting in the events that occurred that did not happen, turning to the special leave question at application book 171, why is not that an issue ripe for determination on special leave?

MR DE WIJN:   We say it is clearly not because the question involves an identification of the duty, which has clearly got to be the case, and that is fact dependent.  There is no question of principle there.  One starts with not a general principle that everything a director does he has to account to the company for – cases are clear on that.  One has to clearly identify the content of the duty.  The content of the duty is fact dependent, and that was identified by the Full Court as being to use reasonable endeavours to have the company introduced as a purchaser.

CRENNAN J:   But is not the sequence that the whole six were involved from July on the basis that the three Disctronics directors were going to use their best endeavours, and it was that idea on which the joint venture founded.  Is that not part of the narrative of the relevant events?  Accordingly, one can see therefore why Justice Jessup found that when the directors suing in their own names, together with Disctronics which was also a party, received damages for the breaches of Edmonds and Cahill, Justice Jessup takes the view that those moneys are moneys to which they are only beneficially entitled.

MR DE WIJN:   But, with respect, that is the false premise.  That is using the two factual scenarios together.  The breach of duty that was sued for occurred after Mr Howard had used his best endeavours to get Disctronics accepted as a purchaser.  They said no.  That was the end of it.  He had used his best endeavours and they just said we are not going to accept Disctronics as ‑ ‑ ‑

CRENNAN J:   Then it fell apart.  Then Edmonds and Cahill took advantage of what had been partially under discussion.

MR DE WIJN:   With respect, it did not fall apart because there was an argument in the Supreme Court that Mr Howard had repudiated the contract, and that each party had repudiated the contract.  That was rejected, and the equitable damages were awarded because despite the terms of the joint venture agreement which subsisted, Edmonds and Cahill took the project effectively for their own, purchased it, introduced another equity partner and got a lessee and made the profit themselves.  But that is an entirely separate matter to the identification of the duty owed by the director, and a question of whether that duty had been discharged.

KIEFEL J:   Are there not though two separate questions?  One is whether or not the company for which Mr Howard and the other directors were acting was accepted as a joint venturer and the other question of the capacity in which the directors were acting at all times in relation to the joint venture.

MR DE WIJN:   It was never suggested that the four directors entered into the joint venture as trustees for Disctronics.  That was never put.

KIEFEL J:   But once Disctronics was identified as the company that they sought to have introduced into it, is that not where their capacity arises?

MR DE WIJN:   That does not make the joint venturers, the individuals, a trustee for Disctronics.  All that does is, it says “We want to have a joint venture, we want to buy some land, get a lessee, and we want to sell it to a third party”.  That was the deal, and the extent of the duty was simply to try to use best endeavours to get Disctronics in as a purchaser, not as a member of the joint venture, not as a joint venture partner in the acquisition and leasing of the land, but in the purchase of the land with the package, that is, with the lessee in place.

KIEFEL J:   Well, the key question then is what took place between Disctronics and the directors.  What was the ambit of the duty ‑ ‑ ‑

MR DE WIJN:   Exactly, and that is factually dependent.  The Supreme Court case went for three weeks or something.  There was extensive evidence there ‑ ‑ ‑

KIEFEL J:   You do not need to frighten us.  We think we can probably – those findings have been made, luckily.

MR DE WIJN:   Well, Justice Warren found that there was no entitlement of ‑ ‑ ‑

KIEFEL J:   But you are not suggesting that this matter would involve this Court into re‑trying the facts?  The facts are found and there is no dispute about the findings of fact, is there?

MR DE WIJN:   We would not have thought there was any dispute about the findings, but the findings of fact of Justice Warren was that Disctronics had no entitlement to be a purchaser.

KIEFEL J:   Well, it is what you draw from the facts.  That is what this Court would be involved in.

MR DE WIJN:   We accept that, but the Full Court having looked carefully at the facts identified the content of the duty as using best endeavours.  If that is right, then they are right in saying that that duty had been discharged ‑ ‑ ‑

BELL J:   But the point that the applicant seeks to agitate is that in circumstances in which if it had been carried to completion by installing Disctronics as purchaser, the benefit of the ownership and any one‑day profit arising would have accrued to Disctronics.  Now, when completion was frustrated by the acts of Edmonds and his associate, the equitable compensation that was awarded was held for the benefit of Disctronics.  The two of you are at odds about that, but it is not a factual issue.

MR DE WIJN:   We are at odds about it, but my learned friend’s case is simply one that cannot be made out because for my learned friend to be able to say that Disctronics would have got the benefit of any profit from this joint venture, they would have had to have convinced Edmonds and Cahill to accept Disctronics as a purchaser.

KIEFEL J:   No, that is not exactly right, is it?  On the position that, as in an undisclosed principle, it may not have mattered whether or not they were accepted by the joint venturers if Mr Howard and the directors at all times were acting for the company, but that is the critical question.

MR DE WIJN:   That is the critical question, and the finding of fact by the Full Court was that they were not acting for the company – and this is what is critical about this case.  They were not acting for the company in entering into the joint ventures.  What they had a duty to do and what they had agreed to do was to attempt to get the company as a purchaser.  They were not acting as agents for the company in the joint venture ‑ ‑ ‑

KIEFEL J:   Yes, but I think the fact that the other joint venturers did not accept the company does not preclude a finding that the directors of Disctronics were acting in its behalf.  But you deny that premise.  That is the question.

MR DE WIJN:   We accept what your Honour says as a general principle, but one needs to go back and identify what the content of the duty is, and if the content of the duty, as the Full Court found, was to use best endeavours, to have the other two joint venturers accept Disctronics as a purchaser, then we will get to a different result.

KIEFEL J:   But the point is Justice Jessup had a wider view of the duty on the findings he made.

MR DE WIJN:   He had a wider view of the duty, but his view of the duty was that as soon as Disctronics was named, there was a duty there.  What Justice Jessup failed to do, with respect, was identify clearly what the content of the duty was.  He just said they were directors, they had mentioned the company.  They contemplated that it might be involved ‑ ‑ ‑

CRENNAN J:   They did not just mention the company.  They contended, did they not, that the company and they were beneficially entitled to the golf course.  Is that not how the litigation was run in the Supreme Court?

MR DE WIJN:   No, they did not contend that.  They contended initially the company was a party.  They then brought proceedings for equitable damages and did not distinguish between Disctronics and their own interests ‑ ‑ ‑

CRENNAN J:   So did not disclose, perhaps, that they were acting on behalf of Disctronics?

MR DE WIJN:   They did not, and as my learned friend said, they probably need not have done that.  So they had to establish it, and in the Supreme Court proceedings whether they were fiduciaries or not was not relevant.  But it became relevant in the tax case and the error of Justice Jessup, with respect, was to fail to identify precisely the content of the duty.  His Honour did not do that clearly.

CRENNAN J:   You seem to be contending the duty has to finish at some point and that damages obtained subsequently, they cannot be held as a constructive trustee ‑ ‑ ‑

MR DE WIJN:   No, we are not saying that at all.  What we are saying is that the duty may be discharged, and it may be over, it may continue – it will all depend upon the facts.  That requires, as the Full Court did, an identification of the content of the duty, and Justice Jessup – and there were a whole lot of arguments before Justice Jessup.  The case was fairly refined by the time it got to the Full Court, so one can understand Justice Jessup perhaps missing that point, but what Justice Jessup failed to do, with respect, is clearly identify the content of the duty.

Once one identifies the content of the duty, the next question is does the duty continue, and it may continue, or has the duty been discharged?  Have the directors satisfied their duty to the company?  The finding of fact by the Full Court was yes, it had.  If the identification of a duty based on the facts in this case is correct, then the decision of the Full Court is clearly correct. 

In those circumstances, the case really turns on the identification of the content of the duty and whether that duty was discharged.  We do not say that the duty necessarily finishes at a particular point in time, but it does finish once the director has done everything necessary to discharge that duty.  Then you are left with the director being an ordinary participant in the joint venture.  If your Honours please.

CRENNAN J:   Yes, Mr Slater.

MR SLATER:   Your Honours, my friend’s submissions referred to conflation of the facts, but really the confusion tends to lie in my friend’s submissions rather than in the reasons of the court or, indeed, in our submissions.  Much of my friend’s submissions involve conflating the breach by the delinquent joint venturers with the duties of the directors, for example, his reference to “best endeavours” in the context of the Supreme Court proceedings.  “Best endeavours” was not in issue in the Supreme Court proceedings.  It only became an issue in the contest between Mr Howard and the Commissioner.

Our friends say that Mr Howard did all that he could, and all that was asked of him.  They say by reason of that, he was discharged of his duties.  Our submission is that breach by a third party does not discharge the fiduciary from his duties.

KIEFEL J:   But is the essential question whether or not Mr Howard and the other directors continued to act as trustees for the company after the other joint venturers had declined to allow Disctronics to join the joint venture?

MR SLATER:   After the other joint venturers had misappropriated the venture and gone elsewhere ‑ ‑ ‑

KIEFEL J:   Perhaps you could just answer my question.

MR SLATER:   We would say no, they were not discharged wholly of their duties.  Any gain that came to them arising out of the venture remained a gain subject to those fiduciary duties.

KIEFEL J:   You mean they did not revert to their personal capacity as joint venturers?  They continued to act on behalf of the company?

MR SLATER:   They continued to act in the interests of the company, yes, as constructive trustee for it.  The trial judge came to that conclusion on page 120 of the application book.  In adopting what had been said by Justice Jessup below, at about line 35 of page 120, paragraph 77 of the primary judge’s reasons:

I would find that there is no doubt about the reality of the intention of [the directors] to make the opportunity to purchase the golf course available to Disctronics.  They made their decision so to proceed in what were plainly the interests of Disctronics rather than of themselves, they identified the source of funds . . . Indeed, it was the reality of their insistence . . . that ultimately led to the disintegration of the joint venture of 20 July 1999 –

The disintegration was the act of the co‑venturers, what I have called “the delinquents”, in going off and finding somebody else and misappropriating the business opportunity.  At that point, the directors remained in a fiduciary position in relation to the company.  When in due course they recovered from the delinquents the benefit of the property or venture in respect of which the fiduciary duty had subsisted, in our submission, that recovery was obtained subject to the same fiduciary duties. 

It is not critical, but it is the case, as I think Justice Bell pointed out, that what was recovered was what would have accrued to Disctronics as operator of the golf course.  That appears – I will not take your Honours to it, but it is at page 44 of the application book.  It was not simply that the venture collapsed with no recovery or proceeds at all, in which case there would be nothing to account for.  Here, the fiduciary was able to, and did recover the value of what was subject to the fiduciary duties.  In our submission, what was recovered was as much subject to the fiduciary obligations and constructive trust as what was lost by the breach of the co‑venturers.

It is not an essential part of the entitlement of a fiduciary to recover or to have the benefit of a gain – I am sorry, I have tangled my tongue there, I apologise.  When a fiduciary makes a gain it is not an essential part of the beneficiary’s entitlement that the fiduciary be in breach.  The beneficiary’s entitlement of fiduciary is not in breach but the Full Court here, having accepted that the directors acted for the benefit of the company, nonetheless found against Mr Howard solely on the basis that he was not in any established breach of his fiduciary duties.

Your Honours, there is no authority directly in point.  We say that is because none has previously been needed, but now there is a Full Court decision which in our submission is plainly wrong.  It is a decision on facts which are clear and not controversial.  The Full Court was able to state them in three pages in half a dozen short paragraphs and, in our submission, this is a suitable case in which to explore that point.

KIEFEL J:   If the question does turn upon the extent and continuation of the directors as trustees it may be that the Court would need to have a look at the evidence of the directors about what they were doing and who for.  There might be a need to go behind Justice Jessup’s, to flesh out findings.  It is a possibility.

MR SLATER:   There was never any issue about the directors acting for the benefit of Disctronics, your Honour.  They confirmed it in writing.

KIEFEL J:   Well, your case would rest entirely upon Justice Jessup’s findings.  They are either sufficient or they are not is really what I am putting to you.

MR SLATER:   We would say they are sufficient, but also that they are supported by the material at which his Honour looked.

KIEFEL J:   You are reserving your position to have a go back into it, are you?

MR SLATER:   I am reserving my position in case I am challenged, your Honour, but if leave were to be granted ‑ ‑ ‑

KIEFEL J:   But your case would be that you do not require further evidence?

MR SLATER:   Yes.  If your Honours please.

CRENNAN J:   The Court will adjourn briefly.

AT 10.27 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.30 AM:

CRENNAN J:   There will be a grant of special leave in this matter.  It should take no more than a day, I would have thought?

MR SLATER:   The two matters in the Full Court took less than a day, as I recall.

CRENNAN J:   Yes, thank you.  The parties are reminded about the timetable for the filing of submissions.

AT 10.31 AM THE MATTER WAS CONCLUDED