Kruger & Ors v C of A

[1995] HCATrans 271

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M21 of 1995

B e t w e e n -

ALEC KRUGER

First Plaintiff

HILDA MUIR

Second  Plaintiff

CONNIE COLE

Third Plaintiff

PETER HANSEN

Fourth Plaintiff

KIM HILL

Fifth Plaintiff

ROSIE NAPANGARDI McCLARY

Sixth Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
  Darwin  No D5 of 1995

B e t w e e n -

GEORGE ERNEST BRAY

First Plaintiff

JANET ZITA WALLACE

Second Plaintiff

MARJORIE FOSTER

Third Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Directions hearing

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 15 SEPTEMBER 1995, AT 9.32 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC:   If your Honour pleases, I appear for the plaintiffs in each matter.  (instructed by the Katherine Regional Aboriginal Aid Service Inc)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:  Your Honour, I understand we have been recently served in the second matter and have not yet entered an appearance but, subject to that, I appear in each of the matters for the defendant.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes.  It is perhaps is a problem, the second action.  I do not think the writ has actually been signed by the solicitors.  That is something which - - -

MR MERKEL:   Yes.  I think, your Honour, that problem was cleared up.  I think they were signed in Melbourne but maybe they have not caught up to the Registry here yet.

HIS HONOUR:   I see.  So, it is in regular form now?

MR MERKEL:   It is now, your Honour, I am instructed.

HIS HONOUR:   You have no objection to the Solicitor appearing in that matter as well?

MR MERKEL:   No, your Honour.  We invited him here.

MR GRIFFITH:   Might I indicate, your Honour, we heard this writ was coming and we are not at all concerned about the form for this application today.

HIS HONOUR:   Yes, I understand. 

MR MERKEL:   Has your Honour has an opportunity to see our outline of submissions on this occasion?

HIS HONOUR:   I have, yes.

MR MERKEL:   Your Honour, can I just explain the question 1.1 in the revised form unfortunately got overlooked when the summons was issued in an amended form but that picks up the problem your Honour noted on the last occasion, I think, where we referred to “constitutional doctrines” and we have now confined the language, your Honour, more precisely to hopefully the language that is used in the cases.  Although, I think “doctrine” was used in Leeth but in a general way.  So, hopefully, that accords now with the current amended form of the pleading as to the constitutional rights that we seek to have established in the proceedings.

HIS HONOUR:   It describes it in very broad terms, of course, does it not?

MR MERKEL:   It does, your Honour.  We did raise this with your Honour on the last occasion and given the varying language used in the different cases, they have been variously described as “immunities”, “freedoms”, “rights” and we did not want, in effect, the Court to be restricted by the form of the question and given the four or five different bases upon which the application is proceeding, if your Honour states the questions, we thought the Full Court should have the opportunity to frame them in whatever way was appropriate.

HIS HONOUR:   But that is asking the Court to frame your case for you, is it not?

MR MERKEL:   We were not wanting to do that, your Honour.  I think it would probably be more accurate for us to say that we have framed the rights in wide terms to enable the determination to be within the ambit of the question rather than ask the Court to formulate the questions.

HIS HONOUR:   Mr Merkel, could I put two questions to you:  why should I not reserve questions in the following form.  (1) Does the amended statement of claim, excluding paragraph 31(b), plead a good cause of action?  (2) Are the matters pleaded or referred to in paragraph 31(a), (b) and (c) of the defence a good defence to the cause of action pleaded in paragraph 31(b)(i) of the amended statement of claim?  Perhaps you might like to have a look at them?

MR MERKEL:   Yes, thank you, your Honour.

HIS HONOUR:   Looking at the course of argument on the last occasion, I thought it might be of some assistance if I were to draft what seemed to me to be the issues.

MR MERKEL:   Would your Honour excuse me for a moment?

HIS HONOUR:   Yes.

MR MERKEL:   Your Honour, we have no difficulty with those two questions.  Your Honour, as we understand them, they would encapsulate, in effect, in a far more precise way what we were endeavouring to do in questions 1.1, 1.2 and 1.3.  As at present advised, they appear to fall short, your Honour, of the Court determining whether the statutes are invalid but I may be wrong in that.

HIS HONOUR:   It depends the way in which your argument runs, perhaps, Mr Merkel.

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   I would have thought that probably the invalidity of the instruments that your pleading refers to would be part and parcel of your cause of action.

MR MERKEL:   Yes, your Honour.  Then it would raise it and that would only leave, your Honour, the question that has since arisen fleshed out by the pleadings which is really question 1.6 which we would say is appropriate and we have endeavoured, in our written submissions, to set out the reasons why.

HIS HONOUR:   When you say “question 1.6”, is this to be taken from your written submissions?

MR MERKEL:   Yes, your Honour, although 1.6 is in the amended summons.  Does your Honour have that?

HIS HONOUR:   I see, yes.  That is covered by the second of the questions, is it not?

MR MERKEL:   Yes, it would appear to be, your Honour. The only hesitation I have, but I think it would be picked up, your Honour, is that our primary submission would be that the causes of action that we are seeking to establish that no Limitation Act applies to would also be the cause of action in 31(b)(ii). In other words, what we have endeavoured to do in our written submissions under the heading of Question 1.6 - we have endeavoured to indicate different bases upon which - a court at the moment has no clear guidance as to whether any and, if so, which statute of limitations applies and, if so, on what basis in respect of a cause of action arising in a matter in which the High Court has original jurisdiction under 75(iii) of the Constitution or a matter arising under the Constitution under section 76(i) and section 30(a) of the Judiciary Act. 

HIS HONOUR:   Can we just pause there for a moment so I can take you back to 31(b)(ii).  The second question on the piece of paper that you have

is one which focuses, of course, upon the cause of action that is pleaded in 31(b)(i) and it relates to the applicability of the statute of limitation which is raised by the defence.  That is the only statute that is raised by the defence. 

MR MERKEL:   I think your Honour is correct.

HIS HONOUR:   Now, I do not think that 31(b)(ii) raises any further issue apart from an extension of time.

MR MERKEL:   Yes, I think your Honour is correct.  My only concern then, your Honour, but I think it is embraced, is that it is open to us to argue that no statute would apply to the common law cause of action.

HIS HONOUR:   Yes.

MR MERKEL:   I think, your Honour, in the light of what your Honour said, those two questions appear to deal with the matters.

HIS HONOUR:   If you wish to have time to consider it, then I will adjourn for that purpose.

MR MERKEL:   Could we have a short period, your Honour?

HIS HONOUR:   Yes.  Could I just ask Mr Solicitor, first, what his reaction is.

MR GRIFFITH:   Very hostile, your Honour.  May I hand your Honour our submissions which we have given to the Court.

HIS HONOUR:   It is just as well to hear what the lines of communication are on this issue, I think, before we ‑ ‑ ‑

MR GRIFFITH:   Yes, your Honour.  Basically, your Honour, we maintain our strong position that no question should be stated.  The matter should be remitted, in our submission.

HIS HONOUR:   I did not know that was your strong position on the last occasion.

MR GRIFFITH:   It was, your Honour, apart from this alternative issue of whether or not, if there is a claim pleaded solely for damages arising from an alleged breach of the constitutional freedom, whether that issue itself could be set down as a discrete issue.

HIS HONOUR:   Is that not the first question on that piece of paper?

MR GRIFFITH:   On your Honour’s piece of paper?

HIS HONOUR:   Yes.

MR GRIFFITH:   Yes, your Honour, but - well, it is and it is not, your Honour, there is a wider question there, in our submission.  We say the whole question of whether or not there are these freedoms can only be determined after evidence which we desire to call.

HIS HONOUR:   Yes.  Mr Solicitor, I am at a loss to understand what is to happen to your summons?

MR GRIFFITH:   Our summons is still there, your Honour.  It was taken out on the basis that a bare pleading for alleged breach of constitutional freedom, plus a claim - - -

HIS HONOUR:   What is the issue that I would have to determine in order to deal with your summons?

MR GRIFFITH:   Your Honour, there has now been an alternative claim squarely pleaded for false imprisonment.

HIS HONOUR:   I appreciate that.

MR GRIFFITH:   We, in turn, have pleaded a defence of limitations to that, your Honour.  So, we say before that aspect of the statement of claim can proceed at all to the Court, it is necessary to resolve the issue of whether there is an appropriate limitation period and if there is, to go through the processes of inquiring whether or not there will be an extension so that part of the pleading can be maintained and continued.

HIS HONOUR:   Let us leave that part of the pleading aside for the moment.

MR GRIFFITH:   Your Honour, our submission is that seeing it is part of the pleading, it cannot be taken out and put on one side.  We submit it is an integral part - - -

HIS HONOUR:   A question of law can be raised without any difficulty by excising a part of the pleading, Mr Solicitor.

MR GRIFFITH:   Your Honour, if one excises that part and one has then - if one takes all that aspect of false imprisonment, your Honour, one has the original difficulty which we raised on our summons that there is a claim for an alleged breach of the constitutional freedom and a claim for damages and our submission, which we made last time on that, your Honour, is that on present authority based on express freedoms under the Constitution, no claim for damages may rise, we would submit, resulting from an alleged breach of the constitutional freedom.

HIS HONOUR:   Is that not the very question posed in the first ‑ ‑ ‑

MR GRIFFITH:   Your Honour, as we read the question which is drafted there, it adds also the first question as to whether or not this particular freedom exists.  Our submission is, your Honour, that is not a matter which can be inquired into until evidence is taken.

HIS HONOUR:   Evidence of what?

MR GRIFFITH:   Your Honour, evidence of the matters that we raise in paragraph 31(b) and (e).  That is all relevant to the issue of whether or not there is a freedom which has been breached, your Honour.  We say the issue is, your Honour, there is a claim that the laws which were relied upon for these actions were, during their operation, invalid.  Now, your Honour, we personally say as to that one cannot, on the face of things, after repeal of the law, your Honour, approach a court to have an empty declaration, as it were, claiming that laws now repealed in their operation were invalid unless one can show a special reason, for example, a capacity to maintain a claim for damages arising from treatment under those laws resulting from that. 

So, the first issue is whether or not a claim for a declaration may lie in the abstract at all.  If one has already excised for this exercise and inquiry the issue of a claim for false imprisonment and taken out those limitation issues, in that case, your Honour, there is a bald allegation that a repealed law breached constitutional freedoms and as a result of that a claim for damages may lie.  Now, we made clear on the last occasion, your Honour, in our submissions that in the Commonwealth’s view no claim for damages could lie for a breach of an implied constitutional freedom.  But we also say, your Honour, on the issue of whether or not there can be such a constitutional freedom, it is not something to be determined on the abstract or a matter of assumption from the pleadings.  The existence of the constitutional freedom, as alleged, which is pleaded on the basis that that freedom makes invalid laws which otherwise are valid according to their terms and within power, depends, in our submission, as we have pleaded in paragraph 31 of our defence and paragraph 29, on an examination of the particular factual circumstances.  That, your Honour, is a matter of trial.

Our position as to that, your Honour, would be to put down a question in the form of paragraph 1, in effect, would be having the judgment before the trial because the trial of the issue is whether or not the matters which are alleged are, in all the circumstances, including the matters of evidence which we wish to call, your Honour, matters which give rise to a circumstance that there are freedoms recognised by the Court which do result in laws which were otherwise valid according to their terms, being regarded as invalid.

HIS HONOUR:   Mr Solicitor, on the last occasion I can remember asking you whether you would not demur to this pleading and your response was that you would not demur because you had made it a practice not to demur and that questions reserved by a Judge had a better prospect of surviving, as it were, in Full Court considerations.

MR GRIFFITH:   That was a general submission, your Honour.

HIS HONOUR:   And I further understood - perhaps I misunderstood - that from the Commonwealth’s point of view it was a matter of indifference whether or not the matter should proceed on the footing of one single question dealing with the sufficiency of the pleading or whether or not the application succeeded to strike it out.

MR GRIFFITH:   Your Honour, I am sorry that we did not make our position clear then.  Your Honour, our position was that if things remained as they were and on the authority of this Court to this point, the statement of claim should be struck out.  In effect, our application to strike out was to call for an amendment to make it, in our submission, a tenable statement of claim.

HIS HONOUR:   Very well.  Now, let me pause there for a moment.  If that application was to succeed, it was to succeed on the basis of a satisfactory conclusion, I suggest, to the first question that is posed on that piece of paper, at that time, is that right?

MR GRIFFITH:   Your Honour, with respect, the issue was the pure one of whether, if there is such an implied freedom, it could sound in damages.

HIS HONOUR:   That is right.

MR GRIFFITH:   That is an abstract question.

HIS HONOUR:   That is right.

MR GRIFFITH:   Yes.  Now, your Honour, we read this question as being a specific question, not an abstract one.

HIS HONOUR:   What distinction do you find between the two?

MR GRIFFITH:   Your Honour, when it says “plead a good cause of action”, there is then the assumption made in that that there is this - the inquiry of the Court will be whether or not there is an implied freedom in the terms alleged; pleaded, your Honour, and to be put before the Court on that basis without the matters of fact which we would desire the Court to have found and before it.

HIS HONOUR:   Surely it inquires whether there is a freedom, any breach of which would sound in damages.

MR GRIFFITH:   Your Honour, we submit that one cannot proceed to inquire into that issue without having a trial on the relevant issues of fact to determine whether or not there has been a freedom which has been breached which would sound in damages.

HIS HONOUR:   Are you able to identify the issues of fact for determination?

MR GRIFFITH:   Yes, your Honour.  They are identified in paragraph 31(d) and (e) of our defence.  Your Honour, extensive inquiries are being made to produce evidence, which will be partly documentary - it may well be all, your Honour.

HIS HONOUR:   This is in paragraph 31(d) and (e)?

MR GRIFFITH:   Yes, your Honour.  It is picked up by paragraph 29.  So, in paragraph 29, your Honour, we make the points that the legislative power, if it did restrict any constitutional freedoms, it was not contrary to any freedoms because of the matters we plead in paragraphs (d) and (e).  We say, your Honour, before this matter can come to the Full Court of this Court, those are matters of relevant inquiry.

HIS HONOUR:   That seems to be the subject of what is virtually a demurrer in paragraph 3 of the reply, is that correct?

MR GRIFFITH:   Your Honour, I do not know whether I have seen a reply.  Your Honour, that is a pleading that is a matter of law.  In effect, facts would not make any difference as we read it.

HIS HONOUR:   That is right.

MR GRIFFITH:   We, of course, deny that, your Honour.  We say it is these very facts which go to the issue that the plaintiffs claim for their damages.

HIS HONOUR:   You would, as it were, demur to paragraph 3 of the reply?

MR GRIFFITH:   I understood the pleading was closed, your Honour.

HIS HONOUR:   I am not suggesting that you are able to demur at this stage, I am just seeking to discover whether or not you challenge the legal sufficiency of paragraph 3 of the reply?

MR GRIFFITH:   We certainly maintain our pleading, your Honour.

HIS HONOUR:   It seems to me that we have got issues of law ripe for consideration.

MR GRIFFITH:   Your Honour, with respect, our submission is that they are not ripe, that an action should be looked at as a whole.  In our submission, this action should be treated no differently from the Western Mining claim in respect of the offshore permits of Western Australia where there is a clear and identified issue on acquisitions but other issues of fact to be determined, which now have had judgment in the Full Court of the Federal Court. 

We say, your Honour, that there is not an occasion, on the basis of the bare pleading, in our submission, to pluck out, on the assumption that there is a freedom as pleaded by the plaintiffs, matters which can in effect, be set down for trial in this Court so that in reality the trial of that issue will be the entire trial of the action without any determination of the issue of limitations which we say, your Honour, is crucial and essential before the action can be maintained.  It would sidestep that aspect of our defence which we say is a complete defence to the entire matter.  It would also sidestep, your Honour, the opportunity of the defendant leading evidence as to matters which it pleads to say that if there is a freedom as alleged which otherwise would exist, such freedom as relied upon is destroyed by reason of these facts which we desire to prove before the Court.

Your Honour, in essence - I do not want to put it too strongly - our position would be that the effect of citing a question along the lines of your Honour’s questions would be to deny the defendant an opportunity to plead and to argue before the Court and an opportunity to be successful in matters, your Honour, which could have the result that the defence would be wholly successful.  In effect, your Honour, the only issue which would be determined by the Full Court if questions in this form were stated would be to say, “The plaintiffs allege that there are constitutional freedoms which have been breached.  Are they entitled to maintain an action in damages on the assumption, in effect, that they have established that those freedoms both exist and have been breached?”  The reality is, your Honour, that the finding of the Court to a question in those terms would, in effect, be the complete finding for the whole action.  The action would be over.  The plaintiffs would have won.

We would say with the defendant being shut out from what we say is, firstly, a good defence based on the limitation period which, in our submission, is the only cause of action which could be available and, secondly, your Honour, without the defendant being able to bring forward the matters of fact which it says would go to the issue of whether or not the freedoms which otherwise might exist would exist in this case, so that there could be maintained an actionable breach.

HIS HONOUR:   The difficulty I am having, Mr Solicitor, is to understand how the pleading of the plaintiff, so far as it alleges freedoms of various kinds, is capable of giving rise to sufficiently precise issues of fact for litigation because I rather thought that your first line of defence was there are no such freedoms.

MR GRIFFITH:   Yes, your Honour, our first line, but our second line has always been, your Honour, if there is a freedom in the abstract, such impingement is justified by reason of the matters that we plead in paragraph 29(d) and (e).  That has always been the essence of our defence, your Honour, since the writ was served; indeed, before that we have been busy garnering our evidence for that purpose.

HIS HONOUR:   Yes.  If that is so, it seems to me that that also can be dealt with by raising the question on the sufficiency of the reply.  What I am anxious to do, Mr Solicitor, is to ensure that this case does not go off as the Mabo [No 2] went off into a very unconstructed series of time-consuming exercises which did not really result in a sufficiently crisp finding of fact at the end to allow the Court to deal with the matter.

MR GRIFFITH:   Your Honour, I understand that.  In fact, for some 9 years I laboured to ensure that did not happen by, in effect, being the go‑between on those issues, not entirely successful.  So, I do appreciate that, your Honour.  That is the very thing that we seek to avoid, your Honour.  What we say is that there is, in effect, two discrete issues to be determined.  The first is this limitation issue, your Honour.  We say, on the face, we agree the Northern Territory Act applies but, your Honour, the Commonwealth is taking the position and saying at the moment the Court’s authority is such to support it, that there can be no claim in damages for a breach of an alleged constitutional freedom.

Your Honour, we say that the limitation issue is determinative of the plaintiffs’ claims and we say, on the face of things, your Honour, under section 44 of the Northern Territory Act - I will hand your Honour a copy of that Act - the limitation period has expired.  There is a limited capacity, under section 44(2), to apply for an extension in certain circumstances.  Our position is, your Honour, until the plaintiffs overcome that hurdle this action is not going anywhere.  We say it cannot be maintained.  That, we say, logically, your Honour, is the anterior issue to be determined before the Full Court of the High Court should determine any issue here.

We say, your Honour, the plaintiffs are out of court and we rely on section 44 and we say it is necessary for them to pursue their application for an extension under the terms of that Act.  I think we are agreed it is the Northern Territory Act although, for abundance of caution, the second writ has been issued to overcome any argument that it may be, for example, Victoria or some other Act.  Our position is that it is the Northern Territory Act, so we are on common ground.

Now, your Honour, the Commonwealth says that should be the end of the action unless there is an extension made under the limitation period and that, logically, we submit, your Honour, is the first matter of defence which should be inquired in.  If the action is not maintainable, it should end.  We say it should end, your Honour, with the issue that it is out of time.  We have pleaded, your Honour, the issue of limitation in our defence.

Your Honour, the second issue is whether or not there is a claim for damages which may lie for the breach of an alleged constitutional freedom.  Now, your Honour, that is a matter which, I suppose - and we raised this last time - could be determined as an abstract issue or could be determined, your Honour, as a result of being argued in respect to a concrete allegation and concrete facts.  Now, our submission as to that issue:  that is a matter which, in the normal practice of the Court, is to have it determined by reference to concrete issues, concrete facts and brought to the Court, often with the advantage of the views of the courts down below as to all the issues which arise, including that issue of law.

HIS HONOUR:   What would a judge, faced with this pleading, have to determine?

MR GRIFFITH:   Your Honour, faced with this entire pleading?

HIS HONOUR:   Faced with this entire pleading.  Now, leave aside the 31(b) - - -

MR GRIFFITH:   Your Honour, could I put your Honour in the position of a trial judge where it is remitted, say, to the Federal Court or the Northern Territory?

HIS HONOUR:   Yes.

MR GRIFFITH:   We would say, your Honour, the first issue is to determine whether or not the plaintiffs are out of time, as is alleged.  Now, that seems clear enough.  Section 44(1) applies.  So, we say the second issue would be, your Honour - and this would be an interlocutory matter - for the plaintiffs to apply for an extension to bring forward facts and that issue to be argued and an order for extension made or not made.  If an order for extension was made, the matter would proceed.  If there was no order for extension, then the claim for false imprisonment would be struck out and all that would be left, your Honour, is the claim for damages arising from an alleged breach of the constitutional freedom. 

At that time, your Honour, an issue would be, as we raised on our first summons, whether or not one can maintain an action for damages for the allege of a constitutional freedom, whatever it is.  On that, your Honour, we say such authority of the Court as there is would indicate that there cannot be a claim for damages for breach of the constitutional freedom; certainly specific ones, and that would be an issue, your Honour, which would be fatal to the action as well.

Also, your Honour, if that did not end the action, there would be a separate issue as to whether or not there is, in the facts as they are pleaded for the plaintiffs and the defendant, your Honour, whether or not in the circumstances of this case there are these constitutional freedoms which have the effect of making retrospectively, for the purpose of a declaration invalid, laws which were in operation and which have since been repealed and are no longer in force.  As to that issue, your Honour, there is the preliminary issue of whether or not it is appropriate to make a declaration as to the invalidity of laws which have been repealed and we would suppose that issue would be determined by, really, the preliminary logical issue of whether or not one could claim damages resulting from the operation of those laws although they are repealed.

HIS HONOUR:   Mr Solicitor, why is it that that preliminary logical issue cannot be determined now?

MR GRIFFITH:   Your Honour, if it is a pure issue of whether or not, if there is breach of the constitutional freedom, whatever it is, freedom of political communication, your Honour, can you claim damages, in our submission, your Honour, if that is abstracted out of the issue, it is an advisory opinion.  It is not a matter that is tied to the specific matter of pleading which is before the Court.

HIS HONOUR:   Is that not the allegation that is made in the statement of claim?

MR GRIFFITH:   Your Honour, the allegation made in the statement of claim is that there is a constitutional freedom which has the effect of invalidating laws which were in force during the period they were in force and that that freedom has been breached and the breach sounds in damages.  That is the various steps in the claim.  Now, your Honour, each of those steps is denied.  Starting from the bottom, we deny that there is a claim for damages, even if everything else is established.  On the issue of whether or not such freedom can invalidate a law, your Honour, we deny that.

HIS HONOUR:   As a matter of law?

MR GRIFFITH:   Your Honour, we deny it in our pleading by saying ‑ ‑ ‑

HIS HONOUR:   Do you deny it as a matter of law?

MR GRIFFITH:   Not as a matter of law, your Honour.  We deny, in these pleadings, that that consequence can follow here.

HIS HONOUR:   What is the issue of fact?

MR GRIFFITH:   Your Honour, the issue of fact is to say, firstly, there is no such freedom.

HIS HONOUR:   How is that a matter of fact?

MR GRIFFITH:   Your Honour, it is pleaded on the facts by the plaintiffs.  The plaintiffs plead the facts - - -

HIS HONOUR:   How is the question of whether there is a constitutional freedom - - -

MR GRIFFITH:   Your Honour, it is not a freedom in the abstract, it is freedom by reference to pleaded facts.  This is a particular - - -

HIS HONOUR:   I am sorry, I am not just following you, Mr Solicitor.

MR GRIFFITH:   I am sorry, your Honour, I will try and make myself clearer.  Your Honour, what is alleged is, firstly, that laws were in force for a period and were repealed and which did affect the plaintiffs in a certain way during their operation.  Now, let us assume, your Honour, that there is no issue as to that, although, at the moment, we merely have affidavits filed this week by the plaintiffs in outline asserting their version of the facts, your Honour, which they say show the operation of the laws as to them.  As to that situation, the defendant knows no more than what it has read in the affidavits and some inquiries which it has made to see if it can verify from its own records the circumstances of the plaintiffs.  But it is quite possible, your Honour, there could be substantial agreement on that; possibly there will not, we do not know what the position is.  We are looking into it.

Now, your Honour, the plaintiffs plead that they were affected by the laws.  Now, your Honour, that would not give rise to any complaint if the plaintiffs were merely affected by the ordinary operation of the laws during their period of operation.  Now, what the complaint is, your Honour, is the plaintiffs say these laws were, during their operation, invalid.  Now, the inquiry is, “Why do you say that is so?”  Well, the answer is, “Because they breach an implied constitutional freedom”, expressed in the various alternative ways.

Now, in answer to that, your Honour, the defendant says two things.  It firstly says there is no such constitutional freedom and then in paragraph 29(d) and (e) it says that if there was a restriction by such an implied constitutional freedom, this law which is alleged to have been void by reason of the existence of that freedom, is not void in its operation because of the matters which are indicated in outline in paragraphs (d) and (e).  So, your Honour, on this whole issue of the step from the plaintiffs to overcome the operation of a law which they now allege was invalid in its operation during this period of operation, one must step through, firstly, the first question whether or not such a freedom does exist and, secondly, your Honour, whether it does exist in terms by reason of the matters which the defendant relies upon pursuant to its pleading in paragraph 29(d) and (e), to have the effect of invalidating this law which otherwise would justify the action.

Your Honour, the defendant’s position is that is an integral part of the claim made against the defendant and an integral part of the defendant’s defence to it.

HIS HONOUR:   It seems to me that there are two very clear legal issues in the way in which you have just put it.  The first is whether there is a constitutional freedom that is capable of invalidating the relevant laws.  That must be, I would have thought, a sheer question of law.  The second is if there is such a freedom, then do the facts which are desired to be pleaded and proved under 29(d) and (e) establish that, in fact, the laws were not invalidated?  Now, that, too, seems to me to be very clearly a question of law.

Now, if one takes these questions of law and separates them out, one can ask a series of questions but at least it avoids the prospect of a diffuse trial on pleadings as broad as these, unparticularised, casting a Judge upon the task of finding goodness knows what facts.

MR GRIFFITH:   Your Honour, I think we are in agreement as to the analysis but the defendant’s position is that if these issues are put down for determination now, in effect, the Commonwealth would be denied the opportunity of relying on the second step, the facts, because the Court will be determining the matter in the abstract without reference to the particular facts which the defendant says are fatal to the connection which the plaintiffs must make to be successful.

HIS HONOUR:   That is the usual result of a demurrer.  You do not have to deal with the facts.  Whatever facts there may be, in point of law, it is insufficient.

MR GRIFFITH:   Your Honour is aware of our position on demurrers.

HIS HONOUR:   Yes, I do not understand it but I am aware of it.

MR GRIFFITH:   No good has ever come to the Commonwealth with a demurrer whilst I have been in office, your Honour.

HIS HONOUR:   Whatever risks there may be to counsel pleading on a demurrer, I just do not see the same risks in the case of a reservation of a question of law.

MR GRIFFITH:   Your Honour, the difficulty for the defendant is to say that if one pulls out these abstract questions, in our submission, it denies the defendant, firstly, from relying on what we say on the face, is a good limitation defence which ends the whole thing.

HIS HONOUR:   Yes, I can understand that point.  Your first proposition is that limitation is the primary line of defence which should be disposed of before anything else goes on.

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   I can understand that and I could see that that might justifiably lead to a remittal of the matter in order to deal with the limitation point.

MR GRIFFITH:   Yes.  Now, that is one matter, your Honour.  Now, the second matter is that shorn of the imprisonment action, we say as we said on our summons last time, that until the authority in this Court changes, the claim must fail in limine because even if there were a breach of constitutional freedom which invalidated this law during its operation, that breach, in itself, cannot sound in damages.

HIS HONOUR:   That sounds to me very much like a demurrer.

MR GRIFFITH:   Your Honour, that is what we said in our last summons, that that point ‑ ‑ ‑

HIS HONOUR:   Quite.

MR GRIFFITH:   But, your Honour, with respect, what we do not like is then to have a whole line of questions which, on an abstracted issue, seem, on their face, to answer each legal step that the plaintiffs must make to be successful.  So that assuming they get “Yes, yes, yes” down the line, except one says, “After that, we’ll go and have a trial on the facts to see if that breaks the connection”, your Honour, to put the matter very realistically, we say that would put the defendant in the position where it would be unable further to defend itself.  The reality is, your Honour, that you could not then have a trial on that fact.  Mr Merkel knows that and we know that, your Honour.

HIS HONOUR:   I can understand the tactics of that, Mr Solicitor, and I think I understand the argument.  But can I ask you to do this:  I am proposing, so far as practicable, to ensure that the pleading is in a fashion which does one of two things, it either raises questions of law for determination of the Full Court or it identifies issues of fact crisply for determination as valid issues for determination in the resolution of the matters joined.  Now, it seems to me that we have ranged fairly widely over a number of ways in which this pleading could be analysed.  Would you care to identify, step by step, the issues as you see them arising in order to identify whether they are questions of law or questions of fact?

MR GRIFFITH:   Yes, your Honour, in essence, we have done it and I have not been in dispute with your Honour’s analysis.  So that if I could indicate to your Honour - one does not know whether to start at the bottom of the statement of claim or the top, your Honour, but perhaps if I could put the limitation issue on one side because our position on that is clear enough.  We say, in order, your Honour, that is just not an issue of fact, it is an issue of law to be disposed of by the plaintiffs in their favour before they can maintain this action any further.  That is our position on that, your Honour.  They must apply, bring evidence, see whether they come under section 44(2) and obtain an extension of time.  Unless they do that, our position is, your Honour, at law, no action may be maintained.  That is our first point.

We say, in order, your Honour, that should be attended to first unless my learned friend elects to take out the false imprisonment claim and stand or fall, as it seemed that the original statement of claim did on the claim of damages for breach of constitutional freedom.  We are quite happy if he elects to do that, your Honour, to take that issue out.  Last time he elected to put it clearly in.

Now, your Honour, having resolved that, then, in our submission, there is a question of law as to whether there is such an implied constitutional freedom.

HIS HONOUR:   Now, what do you mean by “such” a constitutional - - -

MR GRIFFITH:   As alleged, your Honour, because it is alleged in various ways.

HIS HONOUR:   “Is there a constitutional freedom as alleged?”

MR GRIFFITH:   Yes, which could have the effect of invalidating the relevant laws during the period of their operation.  Your Honour, I should indicate that this analysis proceeds on the assumption that there would be proof or agreement on the matters of fact as to each plaintiff which are alleged as to how they were affected by the laws.  We put that on one - we do not know yet but it may well be, your Honour, that things occurred much as alleged in the statement of claim.

HIS HONOUR:   Let us understand this.  Question:  “Is there a constitutional freedom as alleged which could have invalidated the laws - - -

MR GRIFFITH:   During their period of operation?”

HIS HONOUR:    - - - during their period of operation?”

MR GRIFFITH:   It is a question of law, your Honour.

HIS HONOUR:   That is a question of law. 

MR GRIFFITH:   Yes. 

HIS HONOUR:   No question of fact involved in that?

MR GRIFFITH:   To that step, your Honour.  The next step is, “Do the matters which are raised in paragraph 29(d) and (e) of the defence result in the operation of the relevant law not being invalid by reason of such implied constitutional freedom as alleged?”

HIS HONOUR:   Yes.  Now, is that then a question of fact or a question of law?

MR GRIFFITH:   Your Honour, it is a matter of a fact to be proved, your Honour. 

HIS HONOUR:   The facts in 29(d) and (e) are to be proved?

MR GRIFFITH:   Yes.

HIS HONOUR:   But if proved, the next question is a question of law.

MR GRIFFITH:   Of course, your Honour.

HIS HONOUR:   Is there any reason why that question of law, that is excepting 29(d) and (e) as established, should not be determined - - -?

MR GRIFFITH:   Your Honour, in our submission, that would be an exceptional course against the practice of the Court.

HIS HONOUR:   Yes.  Well, I understand the point.

MR GRIFFITH:   We say, your Honour, it is not the practice of the Court to pick up abstract constitutional issues if they are not supported in a particular circumstance, step by step, as becoming relevant and necessary to decide and our basic submission is unless you come up, your Honour, you do not know whether or not it is essential to determine this.

HIS HONOUR:   I understand the argument, Mr Solicitor.

MR GRIFFITH:   Your Honour, the next matter of fact is whether each of the plaintiffs, in the way they were dealt with under the challenged laws, were dealt with in a way which infringed their said freedoms.

HIS HONOUR:   What has that question to do with the validity of the laws?

MR GRIFFITH:   I am sorry, I thought your Honour was asking me as to what were the issues in this action.

HIS HONOUR:   Yes, I am.  Well, perhaps I will let you go ahead in your way.

MR GRIFFITH:   Yes.  Your Honour, if the answer to that is, “Yes”, does that breach sound in damages, without alleging any other statutory or common law cause of action?

HIS HONOUR:   Now, the question as to how the plaintiffs were dealt with is, of course, a question of fact.

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   A question of whether, if dealt with in a particular way, the breach sounds in damages.  What do you say about that?

MR GRIFFITH:   That is a question of law, your Honour.  We sought to cite authority to say the Court has already decided it.  Your Honour, the next question would be, as a declaration to discretionary remedy, should the Court make a declaration as to laws long repealed?

HIS HONOUR:   That is a declaration of invalidity of the Acts?

MR GRIFFITH:   Any declaration, your Honour.  That might be related also, your Honour, to the defence of laches in paragraph 37(c).  The next question, if the plaintiffs are successful to that point, what is the remedy, if any?  They seem to be the issues that the statement of claim raise, your Honour.

HIS HONOUR:   Now, the question as to the making of a declaration would be a mixed question of fact and law.

MR GRIFFITH:   Discretion, yes, your Honour.

HIS HONOUR:   Yes, and if successful, what remedy, if any, is a question of law?

MR GRIFFITH:   Yes, your Honour.  Well, damages might be a question of fact but that is further down the track, if your Honour pleases.

HIS HONOUR:   Of course, yes.  Now, is there any reason why the questions of law identified in that list of questions should not be put for consideration by the Full Court in order that the questions of fact that might arise as the result of any answers given to those question can be precisely defined?

MR GRIFFITH:   Yes, there is, your Honour.  Our submission, your Honour, is that it is a complete reversal of the usual practice of this Court.  We test that by saying, your Honour, were this matter issued, say, in the Federal Court or in the Northern Territory Supreme Court , as it might have been, none of the matters, we say, that my learned friend has referred to would be sufficient for the Court to remove either by way of demurrer or issues of particular law isolated out of this composite pleading and the issues for preliminary determination by the Court. 

It is, of course, for your Honour - we accept it is a matter for your Honour the Chief Justice to order but our submission is, your Honour, to take it in that order does prejudice the defendant in its defence to this claim and have the effect, in reality - we must face the reality of this - that the determination of those questions would be regarded as determinative of the entire action.  We say, in the circumstances, your Honour, it is appropriate for the Court to adopt the usual practice and the practice it would approach, for example, on a removal application and say, “Wait until the issues are isolated.”  When they are real ones and necessary to decide, then they can come to this Court in the usual way or perhaps removal at that stage and they will be dealt with so far as it is necessary to deal with them to resolve this action between the parties. 

I think your Honour is quite clear as to that choice, as it were.  It is unnecessary for me to take it any further but to indicate, your Honour, what

we say is the necessary prejudice to the defendant if this, what we say, exceptional treatment is taken.  At the same time, your Honour, we do accept entirely that this action should not take the course of Mabo.  Your Honour, being fully aware of Mabo, I can assure your Honour that certainly whilst I am involved in its defence, there is no opportunity of it doing that.  If your Honour pleases.

HIS HONOUR:   Mr Merkel, I do not need to call on you in relation to whether questions should be reserved, being questions of law - I do propose to reserve some questions of law - but subject to the Solicitor’s argument with respect to the limitation point.

MR MERKEL:   Your Honour, can I deal with that.  Your Honour, I have now had time to consider your Honour’s questions.  Can we indicate to your Honour just as to the form of questions, that we are content with your Honour’s proposed form although we would ask your Honour whether paragraph 36 could be included in question (2) because that raises the statute defence, as well as paragraph 31(a), (b) and (c).  So, (2) would read:  Are the matters pleaded or referred to in paragraph 31(a), (b) and (c) and paragraph 36 a good defence? 

We would respectfully request one other question, your Honour, which seems to follow from the defence, and I raise these with your Honour to explain why we answered the limitations point as we do - a third question, your Honour, which we would submit is appropriate is, “Are the matters pleaded or referred to in paragraph 36 of the defence a good defence to the cause of action pleaded in paragraph 31(a) of the amended statement of claim?”  The explanation of that, your Honour, is that paragraph 36 says both the constitutional causes of action and the common law causes of action are statute barred.  We would believe, your Honour, that the questions raised in that way raise questions of law.

Could I now respond to the limitation point.  Firstly, your Honour, my learned friend, with respect, is in error when he said that the Commonwealth are agreed that section 44 of the Northern Territory Act applies.  Quite the contrary:  they have not agreed and on the pleadings a question of whether any and, if so, which Limitation Act applies, is a very live issue.  So that the first answer we give to your Honour is that, particularly in the light of what the majority left open in McKain v Miller, the question of whether a State statute can apply through section 79 of the Judiciary Act to the causes of action in the present case is an open question because this Court exercised - - -

HIS HONOUR:   This is not a State statute though, is it?

MR MERKEL:   Sorry, the Territory statute, your Honour.  The problem in the present case, your Honour, is on the authority of Pedersen as it has been applied, there would be a suggestion that the place of issue of a writ in the High Court may attract the statute of the place of issue.  McKain v Miller, in the majority, raised but said it is not necessary to answer the question under the High Court’s current statutory and administrative regime as to whether it, exercising an Australian-wide jurisdiction, no longer exercises jurisdiction as it did in Pedersen in a State or territory.  If that is so, your Honour, there is simply no Commonwealth statute that would operate to pick up a State statute of limitations or a territory statute of limitations and, therefore, there being no Commonwealth statute, there is no limitation statute applicable to either the constitutional or the non-constitutional causes of action.  So that until that issue is resolved by this Court, it is a matter that is causing difficulty and concern, your Honour.  It is only this Court, with respect, that can resolve that question and ought to resolve it.

The second matter, your Honour, is even if my learned friend did change his defence to say that the Commonwealth contends that section 44 of the Northern Territory Act applies, of course, that cannot bind the Court as to what its jurisdiction and what the cause of action the plaintiffs have is to be.  We would say, with respect, your Honour, that for an alternative reason, not just the inapplicability of Pedersen but for a matter arising under the Constitution or a matter in which the Court’s jurisdiction is attracted under section 75(iii) of the Constitution, State and territory law and, if it be necessary, Commonwealth law cannot limit the jurisdiction of this Court to deal with a cause of action in a matter of that kind.

We have in mind, your Honour, that the Constitution provides for jurisdiction to be conferred on the High Court but when one goes to section 77, which may define or limit the Constitution, that can only operate in respect of any Federal Court other than the High Court. So that we would say that even if we were wrong on section 79 and somehow this Court exercised jurisdiction in a State or territory, we would say section 79 cannot operate to limit or fetter the jurisdiction of this Court. It is a similar analogous question as occurred in Richard Walter and O’Toole v Charles David.  So, we say that a limitation actions statute in that sense does not pick up any State or territory statute unless and until, if it were open, the Commonwealth had a general statute which could not, in any event, limit a constitutional cause of action.

We then go on, your Honour, to say that, in our written submissions - this is paragraph (c) of the third page - if we were wrong on those two points that a limitation statute applied, your Honour will see three difference approaches that have been taken by the courts.  One is that the place of issue is determinative.  That is the Pedersen v Young approach, although several Justices of this Court have expressed very strong views about how fortuitous that would be.  Alternatively, your Honour, it would be where the proceeding is heard and determined but given that the High Court sits in Canberra, but not necessarily so, that appears to be equally fortuitous and it gives rise to the third problem, that if ultimately part of the cause is heard in one and the remainder remitted, one leads to, again, the odd situation of which statute applies.  So that in a case such as the present, your Honour, it is all very well for my learned friend to say the plaintiffs need to resort to the Northern Territory, but on the existing state of the law the question is clearly open as to whether the Territory is the place where the cause of action arose; the Territory in Bray because that is where the writ was issued, not the Territory in Kruger because the writ was issued in Victoria, and neither the Territory or Victoria, because the matter will be heard and determined, if section 79 applies and jurisdiction exercised, in Canberra.  That picks up the Canberra statute.

Now, your Honour, we would say that, really, my learned friend’s proposals, on any view, would delay the determination of this case and we say that it is the determination of the questions of law raised in the three questions we would say are appropriate, your Honour’s two formulated questions plus the third suggested by us, is the only way to overcome what, in fact, did happen in Mabo.

Your Honour, can I just add that not only are there questions of law which must be resolved before any particular limitation statute can be resorted to, that a central question in an application on whether it is just to extend the time must be whether the freedoms exist and are found to exist and the laws are invalid or capable of being invalidated on that ground because there can be no more significant reason, we would with respect submit, as to an extension than statutes or ordinances assumed to be valid being declared by a court to be invalid and thereby giving rights at common law which would not otherwise exist because the presumption of validity, your Honour, would mean that the false imprisonment cause of action was not open unless and until there was a declaration of invalidity.

So, we say that even on the factual question, if we were wrong on all else we had put to your Honour to date, even on the factual question, the determination of these questions of law are questions that must be resolved anterior to a question of any limitation of actions application being made.

HIS HONOUR:   Mr Merkel, your paragraph 31(b)(ii) in fact invites an exercise of jurisdiction under section 44 of the Limitation Act, Northern Territory.

MR MERKEL:   Yes, your Honour, but since the focus on this question was raised in the Bray writ, your Honour, we have formulated it in a slightly different way which is more accurate which says - and can I take your Honour to it in the Bray writ, which is the proper way of raising it, given the issues raised by the Statute of Limitations.  In 28(b)(ii) in Bray, your Honour, at page 13, pleaded it more correctly, which is that in respect of the common law cause “of action.....to the extent necessary”, they “seek an extension of time” and can I indicate, your Honour, the reason why it was pleaded in that way is section 44 requires you to seek the extension if you are going to rely on the section.

At the last hearing when we had dealt with these matters, we were not aware that the statute would be in issue.  My learned friend’s defences raised the statute as a very live issue.  As a result of that we then looked at Pedersen and realised, your Honour, that, indeed, in Kruger, it would appear, that in Victoria, if that place of issue is determinative, there probably is no right under the statute to get the extension of time for false imprisonment.  So that these issues suddenly became very live issues and very real issues that required determination.

We would say the appropriate formulation, your Honour, of the paragraph is in paragraph 28(b)(ii) and we would seek leave to amend, if we might, your Honour, Kruger, to make that identical to Bray.  I apologise for that, your Honour.

HIS HONOUR:   I will have to see what the Solicitor has to say about that.

MR MERKEL:   Yes.  We are content, if I may say, your Honour, to go on either although we would prefer to go on both actions because we say they raise this issue very sharply.

HIS HONOUR:   The difficulty in the Bray action is that there is not presently either a defence or necessarily a reply.

MR MERKEL:   We have spoken to my learned friend about that, your Honour, and we have indicated to him that we are not seeking a duplication because, really, the pleading is otherwise identical.  If your Honour pleases, they are the only matters we would seek to raise, your Honour.

HIS HONOUR:   Yes.  Mr Solicitor, first:  application for leave to amend the Kruger pleading?

MR GRIFFITH:   Your Honour, the actual amendment to that term does not concern us.  But the point, your Honour, my learned friend makes saying this suddenly was realised to be crucial, in our submission, undermines our point, that this is the logically anterior issue to be determined before, in our submission, this case goes anywhere, particularly not to a Full Court.  What we say is, your Honour, my learned friend having submitted it in those terms, if he wishes to have the advantage of it, seeing it is available to him, for the Full Court to consider a question of, on the breach, damages issue, in our submission, he should elect, your Honour, and abandon the false imprisonment so that, in fact, he is standing or falling on something because, otherwise, your Honour, he is standing and still standing, that the determination of these questions favourably to the Commonwealth could still end up resolving nothing, particularly the damages issue on breach of a constitutional freedom, because my learned friend would then say, “I’ve got my limitation points in my pocket”, and to our mind, your Honour, that underlines the inappropriateness of letting the matter go to the Full Court when there is this line which we say, on its face - and up to this point it has been pleaded on the basis that it is by reference to the Northern Territory and one must suppose in the Bray matter - well, it must be by the Northern Territory Act - that these limitation periods are very relevant.  To the Commonwealth they are decisive, your Honour, because we deny the alternative mechanism of pleading damages for the mere breach of the freedom.  So, we submit, your Honour, my learned friend should elect if he is to have this advantage.

HIS HONOUR:   So that there will not be any future difficulties about this aspect of the matter, the Bray writ, I was informed this morning, was signed by the solicitors in Melbourne. 

MR GRIFFITH:   We are not concerned about that, your Honour.

HIS HONOUR:   No question was taken about the sufficiency?

MR GRIFFITH:   No.

HIS HONOUR:   What is said about the place of issue of that writ in case it should be material?

MR GRIFFITH:   The writ is issued in the Northern Territory.

HIS HONOUR:   Writ is issued in the Northern Territory.

MR GRIFFITH:   Yes, that is the whole point of it.  Yes, your Honour.

HIS HONOUR:   So that is common ground?

MR GRIFFITH:   Yes, your Honour.  So, our position would be it would be the Northern Territory Act so if the matter were to go on, your Honour, it would be better to have the Bray one go and avoid the circle through Victoria.  It does not add anything to the inherent issues in the case.  Your Honour, my learned friend points to the pleading, but it has always been our point that the Northern Territory Act was the relevant one and my learned friend, obviously, had the same apprehension.  He pleaded into it.

HIS HONOUR:   Yes.

MR GRIFFITH:   It is a long route to get there, your Honour, but we both seem to get there the same way.

HIS HONOUR:   Do I take it, Mr Merkel, you are agreed also that the Bray writ was issued in the Northern Territory?

MR MERKEL:   Yes, your Honour.  Can I just indicate, your Honour, that I may have expressed it slightly inaccurately.  My understanding now is that when the writ was issued in the Northern Territory it was not signed by the registry there and it was then sent down to Melbourne where it was signed by the registry in Melbourne.

HIS HONOUR:   I think it was not signed by the solicitors either in - - -

MR MERKEL:   I think it was signed by the solicitors on the record in Darwin, your Honour, but, at all events, it is now in order, I am told.

HIS HONOUR:   It is in order and it is common ground that the writ was issued in Darwin.  Is that correct?

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   Does that make Bray then the desirable vehicle for any further consideration?

MR MERKEL:   Your Honour, we issued Bray because - - -

HIS HONOUR:   I know you issued Bray but is there any reason why we should not concentrate on Bray and leave Kruger to one side?

MR MERKEL:   Except, your Honour, if the questions of law in (1), (2) and (3) are to be referred, that is so, but the reason why we would still seek Kruger to be determined, your Honour, is Kruger raises the Pedersen point; Bray does not.  For example, in Kruger, your Honour, there is no statute provision for extension of time and therefore it really, in effect, answers my learned friend’s point.

HIS HONOUR:   Yes.  I will give leave to amend the Kruger statement of claim, paragraph 31(b)(ii) in accordance with the pleading and the Bray statement of claim, paragraph 28(b)(ii).

Now, as to the other matters, I propose to reserve my consideration of the matter and to read the transcript of this morning with some care in order to identify so far as I may the issues of law and the order in which those issues should, in my view, be submitted to the Full Court. 

I shall indicated, Mr Solicitor, that I do propose, as at present advised, to direct some matters to the Full Court for consideration.  Whether they will be in the form of the questions or whether they will be in a form of a different sort, I shall have to consider after I read the transcript.

Now, unless there was some other matter which counsel desired me to relist the matter for, I would simply announce my decision in due course.

MR GRIFFITH:   If your Honour pleases.  I think we have said sufficiently to underline the point that we would desire the questions to be stated if they were now to be in a way that leaves the Commonwealth still standing, as it were, if it gets - - -

HIS HONOUR:   There is no difficulty about that, Mr Solicitor.

MR MERKEL:   Your Honour, we do not wish to say anything further, but can I draw your Honour’s attention - it may not matter, but I would wish to draw to your Honour’s attention:  one of the cases we have referred to, Commonwealth v Mewett, at paragraph (c) at page 3, is a decision of Justice Foster of the Federal Court.  I have just been informed, your Honour, that the Full Court considered those matters in a decision handed down at the end of August, your Honour, and I do not have a reference for it or a precise date.  I think 29 August.  So, the Full Court considered the questions that his Honour considered and I think answered a case stated by his Honour on those questions.

HIS HONOUR:   Thank you.  Adjourn the Court to a date to be fixed.

AT 10.44 AM THE MATTER WAS ADJOURNED