James Hardie & Co Pty Limited v Wootton

[1991] HCATrans 100

Ab	"".l, AUST~lA,,.r
*~» ... ~----

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl32 of 1990

B e t w e e n -

JAMES HARDIE & CO PTY LIMITED

Applicant

and

VICTOR NEVILLE WOOTTON

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

Hardie 1 19/4/91

AT SYDNEY ON FRIDAY. 19 APRIL 1991. AT 12.11 PM

Copyright in the High Court of Australia

MR C.G. GEE, QC:  May it please the Court, I appear with my

learned friend, MR B.R. FERRARI, for the applicant.

(instructed by A.O. Ellison & Co)

MR B.M. TOOMEY, QC:  May it please Your Honours, I appear

with my learned friend, MR J. JOSEPH, for the

respondent. (instructed by Turner Freeman)

MR GEE:	Your Honours, in our submission a short but important point arises out of the decision of Their Honours in the Court of Appeal in relation to the interpretation of amendments to the New South
Wales Limitation Act. I hand up to Your Honours
the Limitation Act of 1969, the 1990 Amendment Act,
with which the Court is concerned, and some copies
of certain reading speeches in the Houses of Parliament.

Your Honours, the problem arises out of a case

in which the respondent successfully obtained an

order under the Amendment Act, and in particular

section 60G thereof, from His Honour Judge O'Meally

in the Dust Diseases Tribunal, His Honour holding

that for the purposes of determining such

application it was necessary only to ask the

question posed by section 60G of the Amendment Act,

namely, whether it was just and reasonable that in

the circumstances the limitation period be

extended, and he held that, by force of a

transitional period to which I am about to come, it

was not appropriate for the court to look at the

qualifying provisions of section 60I of that Act.

BRENNAN J:	Do you mean that he regarded those factors as immaterial to the exercise of a discretion or do
you mean that - - -

MR GEE: No, Your Honour. That, as a matter of law, in

dealing with a case which fell within the

transitional provision, and that only, as we

understand the reasoning, a court does not look at

section 60! in answering the question posed by

section 60G.

TOOHEY J: That is, if an application is made to extend

within three years of the date 1 September 1990.

MR GEE:	Yes, that in that three year period, it has been
held against us both at Dust Diseases Tribunal
level and in the court below, that as a matter of interpretation of the Amendment Act, in that class
of case, what Your Honour puts is the case, that
one looks only at section 60G and therefore asks
only the question posed by section 60G(2), is it
just and reasonable to grant the extension.
Hardie	19/4/91
BRENNAN J:	The question is whether or not 60I is imported

into clause 4 of schedule 5, is that right?

MR GEE: In a word, yes.

TOOHEY J: Clause 4 or clause 4(4)(b)?

MR GEE:	The latter strictly, Your Honour, but I was
answering a more general question a moment ago.
Your Honours, before I come to the provisions of
the transitional section, may I very briefly sketch
in what we perceive to be helpful background in
relation to the operation of the Amendment Act generally.

I will start at page 3 of the Amendment Act

print, Your Honours, where the first step in a

revised scheme of limitation for New South Wales in

personal injury cases is the introduction of

section 18A which imposes a three year limitation

period running from the date on which the cause of

action first accrued. In New South Wales that

represents a change from a general six year

provision for personal injury cases.

The next step in the background is that, if

the Court would be good enough to look at page 4,

subclause (7), which sets out certain changes to

section 57, sections 57 and 58 were sections which

have come before this Court and were, until 1990,

the only provisions which enabled, in personal

injury cases, an extension of time, that is to say,

a lifting of the bar. The relevance, for

background purposes, is that those provisions are
preserved in the Amendment Act and it is made very

clear that those provisions apply to causes of

actions accruing before 1 September 1990 and that

the old provisions were being retained for that

purpose.

Section 60C, Your Honours, page 5 of the

print, sets up a scheme whereby a court may hear a

party whose three year limitation period, now
introduced by section 18A, may be extended for a period not exceeding five years. Section 60C(2)
provides that a court may, if it is persuaded that

it is just and reasonable to do so, extend the
limitation period for a period not exceeding five

years, that is beyond the original three year

limitation period.

Your Honours will be asked to notice in a moment that, with the exception of the few words in

the last line of that subsection, restricting the

power to five years, the language is identical with

subsection (2) of section 60G with which we are

Hardie 19/4/91

directly concerned. Those are the matters of

background, Your Honours.

Section 60F which, it will be seen, is the

first section appearing in a new subdivision

dealing with discretionary extension for latent

injury, it being clear, Your Honours, that the five
year period that I have just taken the Court to is

applicable to an injury of any kind, section 60F

sets out the purpose of the subdivision and

therefore, we would say, the purpose of, among

other sections, 60G and 60!:

The purpose ..... is to provide a procedure for

a further discretionary extension of

limitation periods where the plaintiff was

unaware of -

certain things.

This procedure is available for causes of

action accruing on or after 1 September 1990, and also (by the operation of Schedule 5) for

causes of action that accrued before that

date.

From which it would be discerned readily, in our

respectful submission, that section 60F was making

it clear that whatever the operation of Schedule 5,

the transitional provisions, might be, it was

confined in its operation, so far as presently
relevant, to latent injury cases.

Then, Your Honours, section 60G, as I say, contained operative language in subparagraph (2),

which is almost identical with section 60C(2)

except that there is no restriction on the period within which an order under the subsection may be

made. Now, leaving aside the transitional

provision for a moment, it will then be seen that

the power of a court to make an order under

section 60G(2) is ordinarily fettered by

section 60!, and the fetter, put in extremely crude

terms, is that a person must have been ignorant of

the matters referred to in section 60! and, if not

so ignorant, then an application will not succeed

under section 60G(2).

Now, if I could then go to the schedule,

Your Honours, and in particular page 12, clause

4(1):

Section 60G also applies to a cause of action,

founded on negligence ..... being a cause of

action that accrued or would have accrued

before 1 September 1990, but does not apply to

Hardie 4 19/4/91

a cause of action arising under the

Compensation to Relatives Act -

which we can leave aside, for present purposes.

The clause goes on then, Your Honours, to set out

some clarifying provisions in subclause (3) so as

to make it quite clear that matters which might

otherwise have been raised in bar to such an

application will not be able to be raised, such as

the existence of a previous judgment or the expiry of a limitation period, and subclause (4) provides

that:

The court may make an order under

section 60G ..... in relation to a cause of

action referred to in this clause, within: (a)
the period of 3 years referred to in

section 601; or (b) the period of 3 years

commencing on 1 September 1990.

Their Honours of the Court of Appeal, agreeing in the judgment of His Honour the Chief Justice, in essence came to the view that the language of

subclause (1) of clause 4 was intractable, that the

reference to 60G meant that, no more and no less,

and that accordingly there was no question, in an

application that fell within these transitional

provisions, of reference to the fetter provided by

section 60!.

TOOHEY J: Is it right to say, Mr Gee, that the Court found

paragraph (1) of clause 4 to be intractable, or

that if you read clause 4 in its entirety, the

consequence is that section 601 is imported where a

plaintiff relies upon - let me start again. In the

case of an application made within three years of

1 September 1990, no resort need be made to section

601, but if it is not made within that period of
time then it must be made within the period of

three years referred to in section 601.

MR GEE: Well, that was the practical outcome of what

Their Honours said, although with respect, they came to that conclusion upon the express language of subparagraph (1) because, as His Honour the

Chief Justice put it, because section 60G is not in terms, within itself, expressed to be subject to section 60!, then as a matter of language, if one

was within the special three year period beginning

on 1 September 1990, the legislature had laid down

an arrangement whereby one would simply proceed

under section 60G without more.

We wish now to turn, Your Honours, to what we

will be submitting is the error in that reasoning,

if we may.

Hardie	19/4/91
DEANE J:	Mr Gee, if you be correct, would (b) have any

operation? Clause 4?

MR GEE: Clause 4(b)? Yes, Your Honour.

DEANE J:	When would it apply?
MR GEE:	It would apply in every case in which one was
still, as a matter of looking at the calender,
within three years of 1 September 1990, but the only difference would be that, in considering the
application under section 60G within that three
year period, the court would look to section 60I,
just as if it would in any other case.

DEANE J:  I see. You do not say that 60I applies, you say

that 60I(l)(a) applies, because if 60I applies,

which is what you say, or what you were saying, (b)

would have no effect whatsoever.

MR GEE: With respect, no, Your Honour. Your Honour is no

doubt concerned with subparagraph (b) of 60I(l)

which says that the application under that section

must be made within three years of becoming aware.

DEANE J: Yes.

MR GEE:	But now, Your Honour, what we put in relation to
that is that when the legislature, in its
transitional provision, introduced
subparagraph (4), and in particular (b), all it was
doing was modifying that temporal provision of
section 60I and doing nothing to cut down its substantive operation, that is to say, fettering
the power to make an order under section 60G.

TOOHEY J:  Why should one read it that way, Mr Gee? Why not

treat this paragraph (b) of subclause (4) as - as I

think it was described in one of the judgments -

some sort of amnesty period?

MR GEE:  May I try and answer that as directly as possible

by going back to section 60F. The answer is not

one sentence. Section 60G, on its face, means that

within the three year period, and applying the law

as determined by the Court of Appeal, it means that

for three years an application may be brought under

section 60G in respect of any cause of action,

whether latent or otherwise, the applicant having

to pass only the test of whether it is just and

reasonable to do so.

TOOHEY J: Well, that is in respect of an action that

accrued before 1 September 1990.

MR GEE:  Before, Your Honour. The effect of the Court of

Appeal's decision is this: section 60G, for three

Hardie 6 19/4/91

years from 1 September 1990, is the controlling

legislation. Subsection (2) provides that if the

applicant passes a just and reasonable test then

the court may order the limitation period to be

extended for any period. So that it follows, we

would respectfully submit, that a person who had a

motor vehicle accident in 1950 and who was

perfectly well aware in 1950 of all of the relevant
circumstances, including the fact of injury, the

connection with the accident, and the occurrence of

damage, would come to court under section 60G(2)

and, providing that that applicant put forward

matters which persuaded the court that it was just

and reasonable to extend the time, there is no

reason why, as the Court of Appeal has presently

given as the law, that application could not

succeed.

TOOHEY J: Well, if it were just and reasonable that it

should succeed.

MR GEE:	But if I could now get back to try to answer
Your Honour Mr Justice Toohey's original question:
but if that is the correct analysis of an obvious
consequence of the law as laid down, section 60F, if I could ask the Court respectfully to go back to
that, makes it absolutely clear, without resort to
any extraneous material, that the purpose of the
subdivision:

is to provide a procedure for a further

discretionary extension of limitation periods

where the plaintiff was unaware -

et cetera. The whole purpose of section 60G

finding its place in subdivision 3 was, of course,

to provide for latent injury cases. Once in the

three year period in which we are now finding

ourselves, you sheer away from section 60G, 60!;

you have shorn away that operation of section 60G

which confines it to latent injury cases.

TOOHEY J: Well, is that right? Section 60G fastens on to

causes of action that accrued after

1 September 1990.

MR GEE:  Yes, Your Honour.

TOOHEY J: True, it is imported into pre-September 1990

causes of action by virtue of the schedule but

leaving that to one side for the moment,

section 60G sets up a regime during which or in

which an application may be made in respect of

causes of action occurring after 1 September 1990

to extend time so long as the applicant can meet

the requirements of section 60!.

Hardie 7 19/4/91

MR GEE:	And, may I parenthetically add to Your Honour's
proposition, it was common ground in this case that the applicant could not.

TOOHEY J: Yes, I appreciate that. But that then explains

section 60F, or rather section 60F explains the

regime that has been set up. Then there is a schedule which is concerned with transitional

provisions, that is, causes of action occurring

before September 1990.

MR GEE:	Yes.
TOOHEY J:	Now, in respect of those causes of action,

subclause (4)(a) as I read it has, as it were, an

open-ended time during which an extension of time can be sought so long as a person can, in effect,

show that there is a latent condition.

MR GEE:  But that is the problem, Your Honour.

TOOHEY J: Well, that is one of the options that

subclause (4) offers. The other option is that for

the period of three years - in other words, there

is a cut-off time of three years from 1 September

1990 - a person with a cause of action occurring

before that date can seek an extension of time

without having to satisfy section 60I. He still

has to satisfy the requirements of just and

reasonable.

MR GEE:	Of course, Your Honour.	That is implicit in what
we put.

TOOHEY J: Whether that is right or wrong, it fits together

as a scheme, does it not?

MR GEE: Well, may I put this, with respect, in answer to

that analysis. The opening line of subclause (4)

of the transitional provision is that the court may

make an order under section 60G which, standing

alone, is not confined to latent injury provisions.

You have to tack on 60I to give it that character.

Then Your Honour would - I put this with respect, of course - suggest that in the three year discovery period, you would tack on section 60I.

TOOHEY J: Because that might be a number of years down the

track.

MR GEE:  Yes, it may well be, Your Honour. But for this

three year period, for some reason that, with

respect, does not emerge, you ignore tacking on

section 60I and sheer from section 60G the one

element that confines its operation to latent

injury cases.

Hardie 19/4/91

TOOHEY J: In effect, what the legislature does on that view

is give to causes of action accruing before

1 September 1990 an additional period of three

years without the need to meet the requirements of

section 60I.

MR GEE: Well, Your Honour, that is, we would say, with

respect, not - I am sorry, let me come at it

another way. First of all, could I answer Your

Honour indirectly by suggesting that if one looks

at the content of subclause (4) of the transitional

provision one sees that what it is doing is to give

a court two alternative temporal limitations for

the same act, that is, making an order under

section 60G.

Now, it goes no further than that, with

respect, and it follows that because it is merely

prescribing alternative temporal possibilities for
the same order, it must be the case that the nature

of the order that may be made, as distinct from the

time when it may be made, cannot alter. Now if, in
the first period referred to, that is a three years

from discovery period, one accepts that section 60I

comes into play, then one must be accepting, with

respect, that one is reading section 60G in that

line as meaning 60G fettered by section 60I.

TOOHEY J: Yes, but that is understandable because even in

respect of a cause of action that accrued before

1 September 1990, it may not be discovered for

another five years, 10 years.

MR GEE:	Yes, Your Honour, and that - - -
TOOHEY J:	In which case you have to bring yourself under paragraph (a).
MR GEE:	Yes, Your Honour, but there is nothing that does
violence to the scheme of the legislature because, whether one is within the special three year period
or one is many years down the track from the
happening of the event as distinct from the moment
of discovery where three years starts to run, in
either of those cases it is appropriate that the
fetter is applied because, as I have - and I am
conscious of labouring this, Your Honour - because,
if one sheers the fetter off section 60G it is an
open-ended provision permitting any kind of
application, an application be brought in respect
of any case, even if everything is known, when
section 60F is the controlling provision that says to us: all we want to give in section 60G (and 60I
understood) is a provision in respect of latent
injury.

Hardie 9 19/4/91

BRENNAN J: Is that not misreading section 60F, though?

Section 60F has two sentences in it.

MR GEE:	Yes, Your Honour.
BRENNAN J:	One deals with the purpose of this subdivision, of which Schedule 5 is no part. And the second
says the procedure is available for Schedule 5
cases.

MR GEE: But, Your Honour, a procedure for what?

BRENNAN J:  The procedure for extending time.

MR GEE: In latent injury cases.

BRENNAN J: But where do you derive that from?

MR GEE: Well, Your Honour, from the words.

BRENNAN J:	Which words?
MR GEE:	From the words in the first sentence.

BRENNAN J: But the first sentence is referring to the

purpose of the Subdivision.

MR GEE: Yes, Your Honour. With respect, I agree.

BRENNAN J:	And Schedule 5 is not in the subdivision.
MR GEE:	Except by importation in the words in brackets in the second sentence.

BRENNAN J: In the second sentence. In other words, there

are two sentences arid two provisions.

MR GEE: 

Yes, Your Honour.

BRENNAN J: 

If your argument be right, how does one read

together a case in which 60I(b) would provide a bar
to the making of an order, but it is a case where

clause 4(4)(b) arises? 

MR GEE: Because, Your Honour, the legislature wanted to

give - - -

BRENNAN J:  I am just asking, whatever the intention may be,

how do you operate that? How do you operate - what

is the effect of a case where the tribunal is not

satisfied of the matters in 60I(l)(b) but the

application is made within the period stipulated in

clause 4(4)(b)? Does the plaintiff succeed?

MR GEE:	No problem, with great respect, arises. The
plaintiffs - if the only bar has been - I am sorry,
may I start again. Provided that we are not yet at

Hardie 10 19/4/91

1 September 1993, and provided that the only bar,

to take up Your Honour the presiding Judge's
hypothesis, is that the application was greater
than three years after the plaintiff became aware,
then that applicant will succeed because he gets

the benefit of being in the special calendar period

1 September 1990 to 1 September 1993.

BRENNAN J: But the operation of 60I, for which you contend,

is an operation which says the court may not make

an order unless.

MR GEE:	Yes, Your Honour, but - - -
BRENNAN J:	So that in a case where the court may make an

order under clause 4(4)(b), the court is making an order, though it is not satisfied of the condition

which governs it under 60I.

MR GEE:	But with great respect, Your Honour, if I could
reverse the charges, that is exactly what subparagraph (b) of the transitional provision was
intended to do.  May I respectfully suggest to
Your Honour that, just as section 60F contained two
elements, section 60I also contains two elements
different in kind.  The first is the set of
elements subsumed under subparagraph (a), all of
which are directing themselves to a state of mind,
in particular a state of ignorance, of an
applicant. Subclause (b) is dealing with a state
of affairs having no relationship to a state of
mind or ignorance but simply relating to the state
of the calendar.

To take up Your Honour's hypothesis, let it be

supposed for a moment that in the special three
year period in which we are now standing, the
applicant passes the just and reasonable test and

he passes the test of satisfying the court that he

was ignorant of the relevant matters. Then let it

be assumed that he had to acknowledge, as this

applicant did, that he became aware of those
matters more than the three year period.	It is at

that point, we respectfully submit, that the
temporal character of subparagraph (b) may be seen
to have its counterpart in the essentially temporal

character of subclause (4) of the transitional

provisions and, whereas that applicant would

normally be out of court, having jumped over two

hurdles successfully, he remains in court by virtue
of the fact that the court is making an order

before 1 September 1990.

MR TOOMEY:  1993.

MR GEE:	1993.	I am obliged to my friend.
Hardie	11	19/4/91

BRENNAN J: But that really gets subsection (l)(a) working

on its own, when it was only intended to work with

(b). I mean, say for example he was knocked

unconscious for an hour, which means that

60I(l)(a)(i),(ii) and (iii) are all satisfied.

MR GEE:	Yes.
BRENNAN J:	On your argument, the fact that he was knocked

unconscious for an hour means that he can bring an

action any time within the three years, but if he

had not been knocked unconscious for an hour he

could not.

MR GEE: Well, Your Honour has, with respect, omitted an

element from the hypothesis, namely, when he in
fact became aware that he had been hit on the head

and the connections were made.

BRENNAN J: Well, say he became aware an hour after but he

is within the three year period. He satisfies

60I(l)(a), he does not satisfy 60I(l)(b), but you

say that 4(4)(b) steps in because, even though he

knew for more than the period, 4(4)(b) allows him

to bring his action.

MR GEE:	Because the legislature has elected to put in a
special three year provision, which is admittedly
anomalous, to allow that to happen. But may I just
go on, Your Honour. That is not the same as saying
what, with respect to Their Honours in the Court of
Appeal, they said, which is that when you come to consider the application under section 60G you do
not ask yourself any questions about the operation of section 60I because, as a matter of
interpretation of the transitional provision and its intractable reference to section 60G, you
confine your attention to that, with the
consequence that I have belaboured Your Honours
with, that applications in respect of a case of any
kind can be brought in the three year period, even
though everything was known a moment after the
accident which, it hardly needs elaboration, Your
Honour, to indicate that that is not the intention
of the legislature.

TOOHEY J: Well, I am not sure why not, Mr Gee. The just

and reasonable provisions are there, and they could

be used to refuse leave in the case of someone who

has known for many years that he or she had a

condition thought to result from an injury.

MR GEE: Well, yes, Your Honour, but the difficulty with

that argument, with the greatest respect, is that

the legislature has already dealt with those cases

in section 60C and decided, rightly or wrongly,

that it should be a further period of five years in

Hardie 12 19/4/91

respect of those cases. So that if the

interpretation which has so far prevailed is to

continue, it means that the legislature having said

in respect of non-latent accidents you get a

special five year extension in respect of actions

accruing after 1 September and, Your Honour, we are

expressly preserving the limitation extension

provisions in section 57 of the old Act, then that

must cut across, fundamentally, those steps which I

took the Court to earlier, in giving what we might

call an amnesty, for want of a better word.

Your Honours, could I just point out a couple

of things in the judgment below. At page 23, proposition, at line 15, that our:

opening words of s 60G of the principal Act

had been "Subject to s 601". In other words,

if the language of s 60G had imported a

qualification by reference to s 601, then the
drafting scheme ..... may well have produced the

result for which the appellant contends.

However, as I have said, that is not the scheme of the legislation.

That makes it clear, with respect, that His Honour

the Chief Justice was looking at the matter purely

as a matter of the language of section 60G and,

with the utmost respect, he overlooked the
directive force of section 60F which says that the
whole purpose of the subdivision is to provide a

procedure for a discretionary extension of

limitation where the plaintiff was unaware of

certain things, in other words, the latent injury

case.

Secondly, Your Honours, may I point out that at page 24, line 4 and following:

The legislature significantly altered those

provisions as from 1 September 1990. In doing

so, at least in relation to matters of the

kind with which we are presently concerned, it

provided that during a period of three years

commencing on 1 September 1990, in the case of

a latent injury, the result for which the

respondent contended ..... applies.

Now, Your Honours, since the effect of the decision in the Court of Appeal was to sheer away all the fetter of section 601, Their Honours may not have perceived that the effect of their decision was contrary to what the Chief Justice is expressing here, namely that they thought they were doing it

only in respect of latent injuries. I put that

Hardie 13 19/4/91

badly. What might have been a better way to put it

was that Their Honours conceived themselves to have

been dealing with latent injury only, without

seeing that the amnesty outcome was inevitable on

the interpretation that was put.

Your Honours, I will close with one

submission. It is in answer to His Honour the

presiding Judge, who indicated that there were the

two sentences, the two elements in section 60F. Of

course, with the utmost respect, that is true, and

His Honour took me to the words in the second

sentence, "this procedure is available", et cetera.

Now, I allowed myself a discourteous riposte,

Your Honour, when I said, "procedure for what?",

but what I had intended to put in I hope more

courteous language, was an inquiry into what the

expression "this procedure" would relate back to,

and what it relates back to, in our submission, is

the same language, that is "a procedure", in the

first sentence. Then one asks what procedure is

contemplated, and the answer is, further

discretionary extension, that is beyond the five

years that section 60C has provided, of limitation periods where the plaintiff was unaware, et cetera.

So that, although it is true, with respect, there are the two sentences and the two notions, it

remains true that section 60F as a whole is

directory of what the subdivision is attempting to

achieve and the relief that it is seeking to grant,

including the limitations on that relief. And the

limitation finds itself in section 60I and therein

only, so that once one ignores section 60I, as is
the present outcome, one is, as I put a moment ago,

ignoring the very directory provisions of

section 60F. Your Honours, I notice the time.	In
any event, I had concluded my submissions.

BRENNAN J: Thank you, Mr Gee.

MR GEE:	May I have the temerity to interrupt for a moment,
Your Honours?

BRENNAN J: Yes.

MR GEE:  I said a moment ago that I had finished. I will

take 30 seconds to add one element that I had

overlooked, Your Honours, if I may have leave to do

so. In the papers handed up which represent the reading speeches, and in particular the reading

speech of the Attorney-General on 14 November 1989

which Your Honours will find at the third page of

the photostated material, the second-last paragraph

states the legislative intention:

Beyond this secondary limitation period -

Hardie 14 19/4/91

that is the five years

the court will be empowered to grant leave to
bring proceedings in relation to latent injury

only.

Now, the effect of the present decision, with

respect, Your Honours, is entirely to negate that.

I am obliged to Your Honours.

BRENNAN J: Yes. We need not trouble you, Mr Toomey.

MR TOOMEY: If Your Honours please.

BRENNAN J:  On any approach there is an element of anomaly

in the enactment of clause 4(4)(b) of Schedule 5 of
the Limitation Act 1969 to 1990, New South Wales.

Notwithstanding what was said in the second reading

speech and in the submissions of Mr Gee of Queen's

Counsel, we are not persuaded that there is

sufficient doubt attending the conclusion of the

Court of Appeal that a case falling within clause 4(4)(b) is not governed by section 60I, to warrant the grant of special leave. Accordingly, special leave will be refused.

MR TOOMEY: We ask for an order for costs, if Your Honour

pleases?

BRENNAN J: It will be refused with costs.

AT 12.54 PM THE MATTER WAS AD~OURNED SINE DIE

Hardie 15 19/4/91