Kvaerner Process Systems Pty Ltd v Australian Gasfield Limited P52/2001

[2001] HCATrans 544

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P52 of 2001

B e t w e e n -

KVAERNER PROCESS SYSTEMS PTY LTD

Applicant

and

AUSTRALIAN GASFIELDS LIMITED

Respondent

Application for a stay and expedition

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2001, AT 4.36 PM

Copyright in the High Court of Australia

MR W.S. MARTIN, QC:   If it please your Honour, I appear with my learned friend, MR P.G. CLIFFORD, on behalf of the applicant.  (instructed by Gadens Lawyers)

MR G.R. DONALDSON:   If it please your Honour, I appear for the respondent. (instructed by Freehills)

HIS HONOUR:   Mr Martin, before you begin – I do not want to interrupt you – if I were minded to grant of stay - and nobody suggests that I do not have inherent power to grant it, I take it?  You do not contend that I cannot grant a stay, Mr Donaldson?

MR DONALDSON:   We do not contend that your Honour lacks power, no.

HIS HONOUR:   You say I should not or that I cannot. 

MR DONALDSON:   Yes.

CALLINAN J:   Mr Martin, I could probably make an arrangement for this matter to be heard in Sydney on 23 November.  I understand that that might not be convenient to the parties and might be more expensive for the parties and I have some reservations about doing it.  Mr Martin, I have just been checking with the Registrar and if it were too expensive or inconvenient for the parties to come over, I think I could organise a video link to Sydney on 23 November.

MR MARTIN:   Your Honour, Sydney would be convenient for my client because I will be in Sydney myself on 23 November, so that would not be inconvenient.

HIS HONOUR:   Mr Donaldson, what is your position?

MR DONALDSON:   Might I inquire of your Honour, is the inquiry in respect of the stay application on 23 November?

HIS HONOUR:   No.

MR DONALDSON:   The special leave application.

HIS HONOUR:   Special leave.

MR DONALDSON:   Well, your Honour, I simply have no instructions on whether 23 November is a convenient time or not.  However, your Honour, I would imagine ‑ ‑ ‑

HIS HONOUR:   I suppose parties can hardly complain about quick disposition of manners.  It does not seem to me that the 23rd is so soon that you would not have an opportunity of preparing.  I would have thought there would be sufficient time to prepare a special leave application.  It seems to me to be a fairly short point, I might say, the ultimate point involved, whether the contract stipulates - whether the contract makes provision for commercial risk to be taken by one party or another and perhaps the extent to its balance of convenience, if at all, arises. 

Have both of you put on all of the evidence that you would want to put on in relation to the continuation of a stay if I were to grant one and if the Court were to grant you special leave?  If you got a grant of special leave you would obviously, Mr Martin, want the stay continued and the Court that hears the special leave application may or may not want to do that or may be prepared to do it on conditions.  But have you both put on all of the evidence that you would want to put on generally in relation to a stay, whether it is going to be for a few weeks or whether it should happen at all or whether it should happen beyond an application for special leave, if special leave be granted?

MR DONALDSON:   Yes, in respect of that matter, your Honour, may I say this, that the instructions I have is that notification of this application was received this morning.

HIS HONOUR:   Yes.

MR DONALDSON:   And the affidavit in support of this application for a stay was received by my instructing solicitor about 10.30.

HIS HONOUR:   So it may be that you would want to put on something; you just do not want to commit yourself.

MR DONALDSON:   Well, it may be your Honour.  The instructions I have is that instructions in respect of the matter have been extremely difficult to get, as one might expect.

HIS HONOUR:   All right.  Well, let me ask you this, Mr Donaldson.  If I were to grant a stay until the 23rd upon a condition that I could impose various conditions to ensure that you had ample time to prepare yourself for an application for special leave on the 23rd and to put on any further material if you wanted to, can you point to any special prejudice that might occur by reason of, say, another 30 days postponement of the receipt of the guaranteed money?  Apart from the obvious prejudice of not getting your money now, is there any additional or special prejudice because you will not get it for a further 30 days?

MR DONALDSON:   Can I say, your Honour, the prejudice which your Honour has identified is a real prejudice.  That is, we do not have the cash to which the Full Court has held that we were entitled, but could I say, with the greatest respect, your Honour, that the question which your Honour puts to me in respect of that matter is not the question which is properly before your Honour in respect of the stay application.  That is, it is for the applicant to establish for your Honour that there are extraordinary circumstances in respect of this matter.

HIS HONOUR:   Well I do not know about extraordinary circumstances.  I do not know whether the circumstances need to be extraordinary, do they?

MR DONALDSON:   Well, could I perhaps then take the opportunity, your Honour, of referring ‑ ‑ ‑

HIS HONOUR:   Yes, please do, yes.

MR DONALDSON:    ‑ ‑ ‑your Honour to one or two authorities in respect of that matter.  I do have a bundle.

HIS HONOUR:   Mr Martin, I will give you every opportunity, but it is just convenient to deal with it this way.

MR MARTIN:   Certainly.  This is a convenient course, your Honour.

MR DONALDSON:   Your Honour, the first of the authorities that I would intend to take your Honour to - and can I say your Honour there, it seems, with respect, as though there is necessity really only for reference to one authority; a large number of the other authorities which I provided, in our submission, repeat the same thing.  If your Honour might turn to the case of Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681.

HIS HONOUR:   Yes.

MR DONALDSON:   I might refer your Honour to page 684 in the judgment of his Honour Justice Brennan.  Your Honour sees the first full paragraph on that page:

A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted.

Of course, your Honour, in this case special leave has not been granted.

If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave to appeal.  That was the situation to which this Court adverted in Marconi’s Wireless Telegraph Co Ltd v The Commonwealth Case.

If I could take your Honour then to the bottom of that page:

When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the court below and it is to that court – the court in which the matter is pending and which is familiar with the matter – that an application to stay should first be made.

Let us just pause there, your Honour, to observe on the instructions I have, no application has been made to the Full Court for a stay.

In this case the Court of Appeal, not wishing to pre-empt the view that may be expressed in this Court, tailored its order accordingly.  In future, there should be no inhibition on the court in which the matter is pending framing a stay order, if a stay be appropriate, to avoid the necessity for application to this Court.

Then, your Honour, over on to page 685:

In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court’s discretion.  In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider:  first, whether there is a substantial prospect that special leave to appeal will be granted -

and I will come back to that, your Honour, to deal with it -

secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending.

Can I say, your Honour, in respect of that matter, again, so far as we are aware, no application has been made and there is no explanation as to why.

MR MARTIN:   Well, that is just wrong.  My learned junior made the application orally in time - - -

HIS HONOUR:   Well, perhaps we should get this fact straight.  Can I just ask Mr Martin.

MR MARTIN:   My learned friend, Mr Clifford attended upon the delivery of decisions yesterday before the Full Court.

HIS HONOUR:   And made an application orally instanter and it is rejected.

MR MARTIN:   Made an oral application instanter which was refused.

HIS HONOUR:   And there are no reasons given for that?

MR MARTIN:   No.

HIS HONOUR:   Well, you would not – I am sure Mr Martin would be correct about that.

MR DONALDSON:   Well, can I say this, your Honour, I was not there, but the instructions that I have, and I sought specific instructions in relation to it, do not accord with what my friend has said.

HIS HONOUR:   Surely something like this, there cannot be any doubt about it at all; it either happened or it did not and frankly I do not think I should be engaged upon – I will not embark upon a determination about this.  If need be I will stand the matter down for five minutes and people can find out immediately whether that happened or not.  Surely you have got instructing solicitors here.

MR DONALDSON:   Yes, I do.

HIS HONOUR:   Well, instructing solicitors should be in court when decisions are given; they must surely know, and somebody must surely be in a position to affirm or otherwise what Mr Martin has said.  Cannot that be done?  Cannot the instructing solicitors go outside and confer and come back and give you – it is not your fault Mr Donaldson.  I am not suggesting any fault on your part, but it is to me almost incredible that there should be a dispute about this.

MR DONALDSON:   Yes.  Well, your Honour, it might be that the appropriate course is to adjourn for five minutes, because, as I put to your Honour, I ‑ ‑ ‑

HIS HONOUR:   Let the solicitors go outside and discuss the matter and come back and instruct you and we can proceed.

MR DONALDSON:   Yes, thank you, your Honour.  Well, on that basis, I might come back to that point, if I might.

HIS HONOUR:   Yes do.

MR DONALDSON:   Your Honour, however, looking further down that first paragraph on page 685, the third consideration to which his Honour Justice Brennan adverted:

thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

Can I say, your Honour, in respect of that matter or in respect of the matters adverted to in his Honour’s judgment as to whether there is a substantial prospect of a grant of special leave, that is the hurdle over which the applicant in this case needs to overcome.

HIS HONOUR:   Well, I cannot determine that, sitting alone.  That is why we do not sit one Judge to determine that and you would know yourself that this Court often divides on important matters.

MR DONALDSON:   Yes.

HIS HONOUR:   I might say that I was impressed, with respect, by Justice Calloway’s judgment, which was referred to and relied on.  It seemed to me, with respect, that it was a good judgment, but I have not studied it, it has not been analysed and scrutinised.

MR DONALDSON:   This is Justice Templeman’s judgment, your Honour.

HIS HONOUR:   Yes, but I think he referred – did he not apply Justice Calloway and - I thought he applied almost completely what Justice Calloway had said.

MR DONALDSON:   Yes, his Honour did, and that is…..construction.

HIS HONOUR:   And I thought it was, with respect, an impressive judgment.  In the end it may or may not turn out to be one that this Court would adopt.  It certainly is an impressive judgment and you have the benefit of it and Justice Templeman’s adoption of it.

MR DONALDSON:   Yes.  Can I say however, your Honour, in relation to that, although it is not for your Honour to decide whether special leave will or not be granted in this case, the authorities established that it is necessary for an applicant for a stay prior to the grant of special leave, to establish to your Honour’s satisfaction - - -

HIS HONOUR:   Well, as one Justice of this Court - and I think Justice McHugh says something similar, does he not?  But there is no reasoned judgment of five or seven Judges of this Court to that effect, is there?

MR DONALDSON:   No, there is not, your Honour.  The judgments in respect of the hurdle to be overcome, if I might put it that way, your Honour, appear from my inquiry or researches, to be single instance judgments.

HIS HONOUR:   It seems to me that the real key is this, and I put to you what is going through my mind:  if, in fact, an applicant had what was plainly a hopeless application for special leave, there would be no problem, but I do not know for myself whether I would regard it as necessary for the applicant to do more than show that he has an arguable application for special leave under this head.  Assume for present purposes that an applicant does have an arguable case for special leave.  Far and away the most important consideration I would have thought then is whether one side or the other will suffer irreparable harm or loss.  That, it seems to me to be – to me I would put that in the forefront of all the reasons.  I am just a little concerned from your point of view whether you have had an opportunity to deal with that question in a way in which you would like to deal with it anyway.

MR DONALDSON:   Can I say this, your Honour, on the basis of what has been put before your Honour in the affidavit material today, even if that was accepted - and can I say this, your Honour, in respect of that, certain of the statements in that affidavit are clearly third‑hand hearsay.

HIS HONOUR:   I know that and time is a problem and everything.

MR DONALDSON:   Yes.

HIS HONOUR:   There seems to be a prima facie case for arguing, and I say this only on a very preliminary basis, that your client may be impecunious and that if the money goes into your client’s hands and you ultimately lose, then the money will be lost for all time.

MR DONALDSON:   Well, can I say, your Honour, with the greatest respect, placing the most charitable view on the material which has been put before your Honour, the only prima facie conclusion that, with respect, your Honour might draw in respect of that, is that there may be a question as to the pecuniosity or otherwise of the parent company of AGL.  That, your Honour, is as far as it goes, as far as it can go. 

HIS HONOUR:   Is AGL the parent company?

MR DONALDSON:   No, AGL is the respondent.

HIS HONOUR:   That is Australian Gas and Light, is it?

MR DONALDSON:   It is actually Australian Gasfields Limited, your Honour, which is a subsidiary of Energy Equity Corporation Limited.

HIS HONOUR:   I see.

MR DONALDSON:   And the information which has been put before your Honour is in respect of the company, Energy Equity Corporation Limited.  There is nothing before your Honour in respect of Australian Gasfields Limited.

HIS HONOUR:   Are your instructions that your client is not impecunious, or have you not been able to get instructions?

MR DONALDSON:   For the purpose of this afternoon we have not been able to respond to what is in the material that has been put.

HIS HONOUR:   Mr Donaldson, it strikes me as not being fair to you.  If you think you want more time to put on more material I do not see why you should have to present your case under any disadvantage at all in that regard.

MR DONALDSON:   Yes.

HIS HONOUR:   If you asked for it, I would be disposed to give you an adjournment.  I would probably grant a stay during the course of the adjournment, but it would not be a long adjournment.  I would give you whatever time you might reasonably require to deal properly with the material that you wish to.

MR DONALDSON:   Yes.  We were, your Honour, prepared to deal with it on the basis of the evidence that was before your Honour.

HIS HONOUR:   Well, you make your election on that by all means but, bearing in mind I would give you more time if you want it.

MR DONALDSON:   Yes.  Your Honour, might I have the opportunity of speaking briefly with my instructors in relation to it.

HIS HONOUR:   Yes, of course, and if you want to go outside to do it I will not leave the courtroom but you go outside to do that if you want to.

MR DONALDSON:   I am grateful to your Honour.  Your Honour, having had an opportunity to confer briefly with my instructing solicitors, it may be in the circumstances that we propose to put some evidence before your Honour in relation to the issue which, can I say, seems to be troubling your Honour.

HIS HONOUR:   Well, I cannot say that it would not be an important issue in my decision.  I do not know that it would or would not be, but the fact that it might be dictates, I think, that I give you an opportunity to deal with it, just as, if there is to be more time, Mr Martin will have an opportunity to put his material, perhaps, in better form than he has been able to do, given the time constraints under which he is.  I mean, that is a matter for him.  I am not suggesting that he do that or not, but you tell me some of it is third‑hand hearsay and it may be and I have not given any consideration to that, but it may be that even though, perhaps, I can receive hearsay evidence on an interlocutory application and, perhaps, I cannot.  Perhaps I should not, but he might want to take his chances on that or he might want to improve his own evidentiary position.

MR DONALDSON:   Yes.

HIS HONOUR:   So, I take it you would like an adjournment and bearing in mind that you do not want a stay, and I would grant a stay for a brief period, you tell me how long you want bearing in mind that there will almost certainly be a stay for that period.

MR DONALDSON:   Yes.  Seven days, your Honour.

HIS HONOUR:   Thank you, Mr Donaldson.  Mr Martin, can you give an indication - - -

MR MARTIN:   Yes, indeed, your Honour.  Can I just say, just in terms of the practicalities of all of this, we do not dispute, of course, the proposition that our learned friend is entitled to an adjournment but when we come to the question of how long we need to be practical about this and if we are talking about an adjournment of seven days, we would ask, rhetorically, what is the difference between, from the perspective of the parties, an adjournment of seven days on the one hand and an adjournment of a month on the other?

HIS HONOUR:   Let me ask you a question.  What does it matter to you if you have a stay during that period?

MR MARTIN:   Nothing, your Honour, except that when we come back in a week and have it – I am just thinking about the costs and resources of the Court.

HIS HONOUR:   I understand that but, Mr Martin, it may not be a waste anyway because I suspect that you would both need to put on material in the event that the special leave application be granted.  In other words, you will not know or none of us will know whether a special leave application is going to succeed or not, but if it does succeed, then surely you will want to renew your application and I would have thought, in respect of that, also, both of you would need to put your best foot forward.

MR MARTIN:   Yes.

HIS HONOUR:   And you will be doing that by putting on more evidence which I would imagine would go to, not only the situation now, but the situation in a month or, indeed, in six months or whatever period it might be that an appeal would come on for hearing if special leave be granted.

MR MARTIN:   Your Honour, could I just say our practical difficulty in that regard, and the reason why the evidence takes the form it does is that in respect of the parent, the parent is listed as a public company, so we have access to information in respect of the parent.  In relation to subsidiary we had a very limited amount of information provided to us.

HIS HONOUR:   Are they consolidated accounts, do you know?

MR MARTIN:   No.  I am not sure, because the fact that the auditors to the parent express reservations about the ability of the parent to continue as a going concern must cast some doubt upon the situation of the subsidiary and, of course, the other significance of that is that your Honour may have noticed the direction from the subsidiary to the bank is to pay the parent, not to pay the subsidiary but to pay the parent in respect of which the auditors have expressed no doubts as to ‑ ‑ ‑

HIS HONOUR:   If there is a question of solvency, you would understand why it is being done that way.

MR MARTIN:   Yes, indeed, but, of course, then that raises a question of the ability of the subsidiary to repay.  Presumably that means would give rise to a loan account as between the parent and the subsidiary but if the parent is ‑ ‑ ‑

HIS HONOUR:   All evidence is to be evaluated according to the reasonable capacity of either side to adduce it and the extent to which the party adduces it having that capacity.

MR MARTIN:   Yes, certainly, your Honour.

HIS HONOUR:   So, it might be, and I am not suggesting that this is so, but it might be that an evidentiary onus may pass to Mr – he may have done sufficient to have passed an evidentiary onus.

MR MARTIN:   I should alert my learned friend to that, that we will be making that submission, that where matters are peculiarly within the knowledge of his client no disclosure is made.  We will be inviting inferences to be calling from less than full and candid disclosure.

HIS HONOUR:   Mr Martin, I do not want to cut you off, but my present disposition is to grant an adjournment for seven days, to grant a stay for seven days upon conditions that the parties prepare themselves and that all necessary abridgments of time be made for a hearing of a special leave application on 23 November by video link.

MR MARTIN:   Your Honour, plainly if we are protected by an interim stay order over that seven days, I cannot assert any prejudice arising from that course.

HIS HONOUR:   The next question is who is going to hear the stay application in seven days time.

MR MARTIN:   Yes.

HIS HONOUR:   Would you just wait a moment?

MR MARTIN:   Yes, certainly.

HIS HONOUR:   Mr Martin and Mr Donaldson, having read the papers and having some acquaintance with it, it is probably better that I hear the matter.

MR MARTIN:   Certainly, your Honour.

HIS HONOUR:   Which means there will be a video link to Brisbane.

MR MARTIN:   Certainly.

HIS HONOUR:   That does not preclude parties attending if they want to, but it will be by video link.

MR MARTIN:   Would it be possible for a video link to patch into Sydney as well, which is where I will be next week?

HIS HONOUR:   I do not know whether we can do that.  We can do Sydney/Melbourne but I am not fitted up yet. 

MR MARTIN:   Your Honour, I always look for any opportunity to visit Brisbane so I ‑ ‑ ‑

HIS HONOUR:   Well, I am sorry to do it to you, Mr Martin, but I suppose it is your application.

MR MARTIN:   Yes, certainly.  We would have no ‑ ‑ ‑

HIS HONOUR:   And, of course, what you could do, somebody else could do it from here.  I know you would prefer to stay in it if you can, but if necessary ‑ ‑ ‑

MR MARTIN:   Yes, certainly, your Honour.  I think Brisbane would be most convenient.

HIS HONOUR:   Mr Donaldson?

MR DONALDSON:   It will not be me, your Honour.

HIS HONOUR:   It will not be you?

MR DONALDSON:   In seven days time.

HIS HONOUR:   Well, Mr Donaldson, I do not want to see you inconvenienced.  Personally, is there some other day that would suit you, personally better if you want that?

MR DONALDSON:   I am, your Honour, in a trial commencing Saturday for ‑ ‑ ‑

HIS HONOUR:   Saturday?

MR DONALDSON:   Starting Saturday, yes.

HIS HONOUR:   Who is the volunteer who is doing it on Saturday?

MR DONALDSON:   It is Justice Sundberg, as it transpires, your Honour.

HIS HONOUR:   What, here?

MR DONALDSON:   It is a native title trial, your Honour, in the north west.

HIS HONOUR:   I see.

MR DONALDSON:   It will not be me, your Honour.

HIS HONOUR:   But you cannot get to video – you cannot get video access where you are going?

MR DONALDSON:   If we cannot patch in Sydney, I am not sure we would get Derby, your Honour, but somebody else can do it.

HIS HONOUR:   I do not think I can do anything for you on those circumstances, Mr Donaldson.

MR DONALDSON:   No, not at all, your Honour.

HIS HONOUR:   I would be happy to do it if I could, but obviously your trial is going to last quite a long time.

MR DONALDSON:   Yes.  Certainly, your Honour, somebody else will be able to turn up and deal with the issues.

HIS HONOUR:   All right.  Look, what I will do is grant a stay in accordance with the application.  There are no conditions or anything, are there?  It is merely a stay of judgment.

MR DONALDSON:   If your Honour has the summons ‑ ‑ ‑

HIS HONOUR:   I take it – just before I do that, has there been some agreement upon what happened yesterday in the Full Court?

MR DONALDSON:   It seems not, your Honour, but it will have to be resolved, your Honour.

HIS HONOUR:   Well, it will, and I will not resolve it today.

MR DONALDSON:   No.

HIS HONOUR:   I really hope that nobody is going to tender this as an issue to me.  One way or another there should be agreement on it.  It should not be tendered as an issue to me next week.  I will be very disappointed if it is.

MR DONALDSON:   Can I say, your Honour, it is of some surprise, I am sure, to all of us that there is some controversy about the issue, but it will have to be resolved.

HIS HONOUR:   You were not there.

MR DONALDSON:   No.

HIS HONOUR:   All right.  Both of you have heard what I have said about that and I am sure you understand why I say it.  All right.  I will grant a stay until six o’clock Eastern Standard Time on Friday.  Do you want the adjournment till Wednesday or Friday?  You cannot be there, Mr Donaldson.  What suits you better, Mr Martin?

MR MARTIN:   Friday would, I think, be more convenient.

HIS HONOUR:   I think it would.  All right.  We make it Friday, 2 November, which is a little more than seven days.  A stay in accordance with the application, is that satisfactory?  And I think I should order that the applicant file such further material as the applicant might wish to rely upon by Friday, four o’clock Perth time – next Friday, that is.  Is that the 26th, is it?

MR DONALDSON:   Yes.

HIS HONOUR:   And that your client, Mr Donaldson, the respondent file such material as it wishes to rely upon by Wednesday, 31st.  Is that satisfactory?

MR DONALDSON:   That is convenient, your Honour, thank you.

HIS HONOUR:   And that affidavits, if any in reply, be filed by – they would really need to be filed by say, three o’clock Perth time on Thursday in order for them to reach me in Brisbane in time for me to read them before the application.

MR DONALDSON:   Yes.

HIS HONOUR:   And you both heard what I said about the desirability of filing affidavits which go to the possibility, and I am only saying the possibility, of your grant of special leave. 

I will also order that the parties file all documents required under the rules to be filed and served in relation to an application for special leave to appeal to be filed and served within 14 days from today.

MR MARTIN:   Your Honour, I do not wish to quibble about the times, but in practical terms I doubt that we are going to be able to put on much further material until we see what is disclosed by the respondent.

HIS HONOUR:   I understand that.

MR MARTIN:   The difficulties under this timetable, we effectively get something less than a day to respond, and I am just wondering - there would be two possibilities.  One would be to bring the respondent ‑ ‑ ‑

HIS HONOUR:   You are really saying you do not think, in the first instance, you are going to file much further material.

MR MARTIN:   We will try and fix the third‑hand hearsay problem by getting closer to the source but that is probably all we will be able to do.

HIS HONOUR:   Well, why do I not say that you file any further material by tomorrow, four o’clock Perth time and then Mr Donaldson would have the weekend, would have until Tuesday, four o’clock Perth time and then you have until Thursday, three o’clock Eastern Standard Time.

MR MARTIN:   Certainly, your Honour.

HIS HONOUR:   That is not much longer but it gives you ‑ ‑ ‑

MR MARTIN:   That is quite sufficient, thank you, your Honour.

HIS HONOUR:   All right.  Well, I will order in those terms.  Now, you understand that I also make an order that you both prepare any outlines and file and serve them on any other material that you do have to, under the rules, prepare and file and serve in relation to an application for special leave within 14 days from today, which will give the Court an opportunity to look at the material and the matter will be heard – the special leave application will be heard on 23 November by video link to Sydney.  I do not think there are any other orders.

MR MARTIN:   Just reserve costs.

HIS HONOUR:   Yes, I should reserve costs.  I have to certify for counsel, too, I think, do I not?  I certify for counsel and reserve costs.

MR MARTIN:   Thank you, your Honour.

HIS HONOUR:   Is there anything further then?

MR MARTIN:   No, your Honour.

HIS HONOUR:   The Court will resume at 9.30 in the morning.

AT 5.10 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 2 NOVEMBER 2001