Margarula v Minister for Resources and Energy

[1998] HCATrans 415

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S132 of 1998

B e t w e e n -

YVONNE MARGARULA

Applicant

and

MINISTER FOR RESOURCES AND ENERGY

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

ENERGY RESOURCES OF AUSTRALIA LIMITED

Third Respondent

NORTHERN TERRITORY OF AUSTRALIA

Fourth Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 NOVEMBER 1998, AT 11.15 AM

Copyright in the High Court of Australia

_______________

MR J. BASTEN, QC:  If the Court pleases, I appear with
MR N.J. WILLIAMS and MR S.B. LLOYD, for the applicant.  (instructed by Bruce Donald)

MR B. WALKER, SC:  If it please the Court, I appear with
MR S.J. GAGELER, for first and second respondents.  (instructed by the Australian Government Solicitor)

MR N.J. YOUNG, QC:  May it please the Court, I appear with
MR N. MUKHTAR, for the third respondent.  (instructed by Freehill Hollingdale & Page)

MR A.J. SULLIVAN, SC:  May it please the Court, I appear for the fourth respondent, with my learned friend, MS R.J. WEBB.  (instructed by Freehill Hollingdale & Page)

GAUDRON J:   Yes, Mr Basten.

MR BASTEN:   Your Honours, the validity of the grant of the mineral lease in issue in this case depends on the operation of the constitutional scheme which conferred both legislative and executive power on the new polity of the Northern Territory created in 1976.  The transfer of executive authority from the Commonwealth to the Northern Territory depended upon matters being specified by regulations pursuant to section 35 of the Self‑Government Act, and the scheme was one, therefore, which allowed for the usual Parliamentary scrutiny of that transfer of power and, what is more, the legislative authority of the Northern Territory Government, to the extent that it permitted that government itself to confer executive authority on particular

Ministers, depended upon, as it were, the specification by a Commonwealth regulation of relevant matters.

That flows from the scheme set out in – if I might briefly take your Honours to the book of legislation and other instruments at page 52 where Part IV of the Northern Territory (Self Government) Act makes the necessary provision for the creation of an administration:  in section 31, the creation of an Administrator;  in section 33, the establishment of an Executive Council;  in section 34, the creation of offices of Minister;  section 36, appointment of members of the assembly to ministerial office;  and section 35, the key section for this purpose, provides that:

The regulations may specify the matters in respect of which the Ministers of the Territory are to have executive authority.

GAUDRON J:   How are we to understand “executive authority”?  Is it defined?

MR BASTEN:   It is not defined in so many words, your Honour.  The scheme of the Act is to provide in Part II – I am sorry, at page 44 – for the establishment of the Northern Territory as a body politic.  In Part III, the provision of a Legislative Assembly which, according to section 6:

Subject to this Act…..has power…..to make laws for the peace, order and good government of the Territory.

Then, in Part IV, for ‑ ‑ ‑

GAUDRON J:   Yes, the reason I ask is because of section 31 which says:

The duties, powers, functions…..extend to the execution and maintenance of this Act and the laws of the Territory ‑ ‑ ‑

MR BASTEN:   Yes.  It extends to:

the duties, powers, functions…..of the Administrator –

and so on –

imposed or conferred by or under this Part –

we would place some emphasis there –

extend to the execution and maintenance of this Act and the laws of the Territory and to the exercise of the prerogatives of the Crown so far as they relate to those duties –

in other words, conferred under this ‑ ‑ ‑

GAUDRON J:   I am wondering if 35 does not refer to matters other than those.

MR BASTEN:   What we would say, with respect, your Honour, is that there is a dual scheme established by the Act, both in relation to legislative power and executive power, whereby the Administrator may act in relation to transferred functions on the advice of the Executive Council, and in relation to non-transferred functions on the advice of the Commonwealth Minister responsible.  So that the distinction between transferred powers and those not transferred is clear, and the provision for the transfer of powers is that which is provided in section 35.  It is clear that the Administrator may have other duties and so may other parts of the administration of the Northern Territory but there is a distinction drawn between those powers which are undertaken, as it were, on the advice of the Northern Territory Executive Council under section 33 and those which are subject to the guidance of the Commonwealth Minister.

The proposition in the present case is that when exercising powers with respect to the grant of mineral leases, that constitutes a power which arises by virtue of the regulations which are set out relevantly at page 68, and which specify matters in respect of which the executive authority is transferred in Regulation 4(1).  At the bottom of 69, line 40, mining and minerals is included but there is a matter which is the subject of a section 35 regulation.  However, there is an exclusion in subsection (2), a conditional exclusion, in relation to – at the bottom of page 70, “the mining of uranium or other prescribed substances” and “rights in respect of Aboriginal Land”.  That is subject to subregulation (6) which then permits there to be, as it were, an overriding of the exclusion in subregulation (2) if the matter is one “also included in the matters specified in subregulation (5).

Subregulation (5) on page 71 has, in substance, two relevant provisions:  paragraphs (b) and (f).  It provides that:

The Ministers of the Territory are also to have executive authority under section 35 of the Act in respect of the following matters:

Now, (f), if I might go there first, includes:

agreements and arrangements between the Territory and the Commonwealth or a State or States, including the negotiation and the giving effect to any such agreement or arrangement –

Subparagraph (b) then refers to, and I read the relevant parts:

matters in respect of which duties, powers, functions or authorities are expressly imposed or conferred –

and then down to the next line –

by or under an enactment or an agreement or arrangement referred to in paragraph (f) –

Now, what we say quite simply, your Honours, is that if that permits the transfer of executive authority in respect of a matter which is identified only by reference to an agreement or an arrangement not at that time in existence, then that is ‑ ‑ ‑

GAUDRON J:   No, also an enactment, a subsequent enactment.

MR BASTEN:   Yes, and that enactment is one which – there is a subsidiary issue there, your Honour.  Can I just deal with – I interrupt myself to deal with it – the phrase, as his Honour the primary judge found, an enactment or an agreement or arrangement referred to in paragraph (f) is a single concept.  In other words, it picks up each of those three terms in paragraph (f), the enactment being permitted to give effect to the agreement.  Otherwise, it would be, in effect, a transfer in relation to any matter which the Northern Territory Legislative Assembly sought to enact.  It would be a bootstraps power, as it were, which allowed the Territory to pass a law which conferred administrative power on its own Ministers.  It was accepted, I think, by Justice Sackville that that was not intended, that the reference to enactment was simply to enactment to give effect to an agreement.

GAUDRON J:   But once you have an enactment – let us assume that be correct, but once there be an enactment, what matters that there was an agreement?

MR BASTEN:   Then one looks to see – well, that is part of our argument, your Honour.  If there were no agreement, then one looks to see whether the attempt by the Northern Territory Legislative Assembly to confer executive authority – to grant a lease, in these circumstances – on its own Minister, is consistent with other provisions in the Commonwealth legislation which gives it power and set aside the agreement, we say, that the power granted by section 6, the legislative power, is subject to the Act, and that that includes subjecting the power of the Assembly to the restraints on executive power in Ministers.  So that if the Minister does not, by virtue of the regulations, have power to issue a lease in respect of prescribed substances, expressly excluded by Regulation 4(2), then the Assembly cannot override that absence of power by itself enacting such a law.

GAUDRON J:   No, it may need a regulation to authorise it, but having enacted the law, and then having the regulation which operates by reference to an enactment, so be it.

MR BASTEN:   But that would be still the bootstraps operation unless what the regulation legitimately does, is to provide for any executive authority to be conferred on the Territory Ministers by the Territory Government.  Now, that is what ‑ ‑ ‑

HAYNE J:   Why do you say it is bootstraps?

MR BASTEN:   It is, because it is the Legislative Assembly of the Territory, not the Commonwealth, purporting to confer executive authority in circumstances where the regulations themselves do not specify the matter.  There is no matter specified on that principle until the Assembly enacts a matter, enacts legislation referring to a matter.  So that, in effect, that would be a delegation to the Legislative Assembly of its right to confer executive authority, otherwise than by reference to a specific matter identified in the regulation.

In our submission, section 35 requires the regulations themselves, and by virtue of section 55 the Governor in Council, to undertake the task of specifying relevant matters, and that unless that procedure is followed, you have a specification by reference, either to an instrument which does not exist at the time of the regulation, and as we say in the written submissions, that is a contravention of section 49(a) of the Acts Interpretation Act, to which I will come, or, alternatively, you have a subdelegation by the Governor-General in Council, of a power which is expressly conferred on him by section 35 of the Self-Government Act.  So that, by either of those means, you have a failure to comply with the legislative scheme set out by the Commonwealth in this, effectively, constitutional document.  Your Honours, it is for those reasons that one needs to go to the agreement to see why it is ‑ ‑ ‑

GAUDRON J:   No, why does one have to – in this case the legislation is legislation which clearly ‑ ‑ ‑

MR BASTEN:   On your Honour’s hypothesis ‑ ‑ ‑

GAUDRON J:   Yes, but this is legislation which requires the power to be exercised only in accordance with the directions of the Commonwealth Minister.

MR BASTEN:   Yes.

GAUDRON J:   It is not challenged that it was so exercised.

MR BASTEN:   No.

GAUDRON J:   Why do we need to worry?  The legislation, on its face, is legislation which effects the agreement.

MR BASTEN:   Well, when your Honour refers to the role of the Commonwealth Minister, that is because the legislative scheme of section 60 and 175 require the Commonwealth Minister’s involvement.  That is not challenged.  The question is whether the Legislative Assembly had the power to confer on their own Minister, whether subject to conditions, or otherwise, the power to grant mineral leases in relation to prescribed substances when that executive authority of a Territory Minister had been expressly excluded under the self government subregulation 4(2).  If it is necessary ‑ ‑ ‑

GAUDRON J:   But this is a regulation.  We have the Act and the regulations.

MR BASTEN:   Well, it depends where your Honour comes back to.  If your Honour is coming back to section 6 in relation to legislative power ‑ ‑ ‑

GAUDRON J:   No, I am looking at Regulation ‑ ‑ ‑

MR BASTEN:   I am sorry, 4, 5(e)?

GAUDRON J:   Regulation 5(b) and (f), and I am saying, here is your regulation.  That regulation refers to an enactment.  The enactment is such that it necessitates the existence of an agreement.  Where is the problem in this case?

MR BASTEN:   Because, your Honour, in so far as one depends upon the agreement, then the matter is not specified in the regulation because until the agreement comes into force, there is no transfer of power simply by reference to the regulation.  As at the date of the regulation ‑ ‑ ‑

HAYNE J:   I do not follow that.  I am sorry, you will need to put it again, I just do not follow it.

MR BASTEN:   Let me just go, if I may, your Honours, to the terms of the regulation.  The regulation is passed in December 1978, I think, in this form.  At that stage, there is no relevant matter specified anywhere which would have the effect of overriding the exclusion in subregulation 4(2) of mining, in relation to prescribed substances.  It is not until the agreement in 1982, and the Mining Act which purports to give effect to that agreement, that one can find a specified matter which would have the effect of, as it were, expanding the executive authority to override the express exclusion in subregulation (2).

HAYNE J:   At the moment I do not understand why it is necessary to mention the agreement in that proposition.  If there is an enactment, the fact that it may give effect, or purport to give effect to an agreement, may be interesting but is it essential to your proposition?

MR BASTEN:   It is not essential to mine.  It was the reliance, in the way the case was run, was placed in part on the agreement and, therefore, that is how we have tried to cover all bases.  But for the purpose of the proposition, what your Honour is putting to me, I suppose, is that there might be an enactment without an agreement.  That depends upon ‑ ‑ ‑

HAYNE J:   But there was here an enactment.  Now, what is the proposition you make?

MR BASTEN:   There was an enactment in the sense that there was a mining Act of the Northern Territory.  If that enactment was limited within the terms of paragraph (f) to giving effect to an agreement, then one may need to go to the agreement.  But, I accept for the purpose of what your Honour is saying, that there can simply be an enactment within subparagraph (b), and one then goes either to the enactment or to the agreement – it does not matter for the purpose of the argument – to find a specified matter, something which had not otherwise been specified.  Not specified in the regulations, because until you get to the enactment you cannot find it, and that is then a specification either by a Minister, if it is in an agreement, or by the Legislative Assembly, if it is in, solely, the enactment.

That is not the scheme for the conferral of executive power because there is no suggestion in this Act, and we say the scheme of the Act is quite inconsistent with the proposition, that the Territory legislature can grant executive power to itself by its own legislation.  The difference between an Act and an enactment is clear.  If the Commonwealth, by some Act, imposes a grant of – or provides, confers a grant of executive power, that is one thing.

HAYNE J:   What, then, is the operation that you give in 5(b) to the words “under an enactment”?  Is it referring only to then existing enactments, is it?

MR BASTEN:   It would be possible to read it down ‑ ‑ ‑

HAYNE J:   No, what do you say?

MR BASTEN:   Well, we say, your Honour, that it is necessary either to read it down in that way or else paragraph (b) is invalid in so far as it goes beyond another Commonwealth Act.  In other words, it would not be appropriate under section 49A of the Acts Interpretation Act for this paragraph to pick up any matters which can only be identified by reference to a document which is either not in existence, or is one which may vary from time to time.  I appreciate the time, but might I just briefly go to section 49A which is in the bundle of documents - your Honour may have it in another place – which provides two things.  Firstly, in subsection (1) it permits an Act to authorise the making or requirement of provision by way of regulation, to do so “by applying, adopting or incorporating” a provision from another Act, and so on.  And then, the final part:

but, unless the contrary intention appears, regulations shall not, except as provided by this subsection, make provision for or in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

In other words - and this was the point that we thought that derived from Davey’s Case 47 FCR 157, where the principle is set out and, perhaps, I do not have time to take your Honours to it - it is a general principle that a regulation-making power must be exercised in a way which is within power at the time that it is published. Otherwise, one has either a subdelegation, as occurred in Racecourse Sugar or one has ‑ ‑ ‑

HAYNE J:   Do you say the “unless” clause in 49A(1) applies?

MR BASTEN:   No.

HAYNE J:   What do you say?

MR BASTEN:   We say that the contrary intention does not appear here because subregulation 4(4) makes it clear that other Commonwealth legislation can apply and is not excluded.

HAYNE J:   Sorry, my question was inapt.  Do you say the last five lines of 49A(1) apply here, there being no contrary intention?

MR BASTEN:   Yes, we do.  There is no contrary intention.

HAYNE J:   That is that an enactment, when used in the regulation, is an instrument or other writing?  Is that the contention?

MR BASTEN:   Yes.  An enactment of the Legislative Assembly of the Northern Territory would be such an instrument.  It would be a legislative instrument, but it is an instrument or other writing and in so far as it depends upon an agreement, that, of course, also would be such a document.  Now, your Honours, the alternative proposition, we would say, is to render entirely nugatory the scheme of the Self-Government Act which retains to the Governor-General in Council, not to the Legislative Assembly of the body that is being established, the power to transfer matters, and requires that the Governor-General in Council under section 55 may make regulations which specify the matters.

But it does not allow the Legislative Assembly to override the whole of that scheme at will, by simply imposing on its own Ministers such executive authority as it thinks fit and, with respect, it is not to the point to say that there may otherwise be powers which the Commonwealth could exercise if it did not like the operation of that scheme.  The fact of the matter is that the Parliament has set out a scheme and it should be followed.  Your Honours, I note the time – I had intended to say something about the Lands Acquisition Act point, too – I am in your Honours hands.

GAUDRON J:   Yes, well, if you could briefly refer to the Lands Acquisition Act point.

MR BASTEN:   Your Honours, the argument rests upon a principle that is extracted from Bardolph’s Case and applied in Cudgen Rutile, to which I need not take your Honours. I think it appears in the bundle of documents and the reference in the last of the cases in (1975) AC 533. Our brief submission is that the relevant statutory provision for the grant of authority to grant a mineral lease in relation to land which is vested in the Commonwealth, is to be found in section 51 of the Lands Acquisition Act of ‑ ‑ ‑

GAUDRON J:   Is this land vested in the Commonwealth?

MR BASTEN:   I will come straight to that point, your Honour.  We say, yes, it is ‑ ‑ ‑

GAUDRON J:   The land?

MR BASTEN:   The land is.  The Commonwealth has an interest in the land.  It is an interest which is recorded in a certificate of title at page 96 of the legislation and other instruments book.  It is not simply – and there is a better copy of it in the bundle we handed to the Court yesterday –a certificate of title which gives an interest in the minerals, it is also one which reserves to the Commonwealth “full power and authority” by:

its officers servants and agents and such person or persons as shall from time to time be authorised by it…..to enter upon the land and…..dig and remove –

and so on, the minerals, and that reservation is reflected in the grant to the Land Trust which appears at page 94.  So, there is an express reservation of a proprietary interest, namely, to go on to the land for certain purposes which is reflected in the other grant and which is reflected in a certificate of title issued by the Northern Territory of Australia.  So, there is a proprietary interest, and it is that interest which, we say, is a sufficient interest to attract the provisions ‑ ‑ ‑

GAUDRON J:   Which says “may”.  You have to say that “may” should be read “shall only be”.

MR BASTEN:   Well, that is in accordance with the Bardolph principle, your Honour, we say.  It is, of course, an empowering provision but where there is a provision which requires that a power be exercised in accordance with pre-conditions, then those pre-conditions cannot be ignored.  That principle we refer to in Cudgen Rutile (1975) AC 533, the statement of Justice Rich. So, we accept that it is facultated, but it is an empowering provision, one which has to be complied with. It was not complied with in the present case. It is not a provision which necessarily excludes the operation of the Northern Territory Mining Act, but it requires that the Commonwealth Governor-General grant authority for the issue of a licence and that did not take place.

GAUDRON J:   Has section 35 been construed in that way, in any case?
Section 35 itself.

MR BASTEN:   Of the - - -?

GAUDRON J:   Lands Acquisition Act.

MR BASTEN:   Section 51, your Honour?

GAUDRON J:   Is it section 51?  I am sorry, I have ‑ ‑ ‑

MR BASTEN:   I am not aware of any case in which this question has arisen other than the Mineral Sands Case which I understand is presently reserved before the Court, in which the Commonwealth has argued that its powers under section 51 extend beyond freehold title to leasehold land, and possibly the land subject to defence prohibitions.  I am not aware that the operation of section 51 has been the subject of determination by this Court.  In our submission, what one finds in this case is the conferral on the Commonwealth by the proprietary title it has reserved to itself, of the right to enter and to authorise third parties to enter.  That is precisely the formula adopted by section 51 and the pre-condition, therefore, for the grant of authority, in our submission, is the Governor-General’s authority under that provision.  That provision, of course, is still in force.

GAUDRON J:   That has been amended to include a territory, I take it?

MR BASTEN:   Yes, it has.

GAUDRON J:   And it is “to mine on land” which is vested.  You have to say, “to mine for metals or minerals’ which are reserved to the Commonwealth.

MR BASTEN:   Well, we do not have to say that, although in that case, this is so.  We say “to mine on land” is a phrase which encompasses entry upon extraction and removal of minerals.  The question of land vested in the Commonwealth, we say, is satisfied by something less than a freehold grant of the whole of the land ‑ ‑ ‑

GAUDRON J:   Well, what you have is a reservation of the – well, you have an estate or interest in the minerals and in relation thereto, a right of entry.

MR BASTEN:   Yes.

GAUDRON J:   But the land is vested in you.

HAYNE J:   It seems to have the symmetry of circularity, the argument, Mr Basten.

MR BASTEN:   Well, the question really is, what is the extent of the purposive provision in section 51, namely, to allow the Commonwealth to control the removal of minerals from land in which it has an interest.  “Land” is defined as “an interest in land” in that Act.

GAUDRON J:   It may not be to prevent, it may be to enable it to be done.

MR BASTEN:   That is undoubtedly so, but we would say that in the absence of the Commonwealth’s consent given in accordance with that section, there is a prohibition.

GAUDRON J:   Yes, we understand that now.

MR BASTEN:   If the Court pleases.

GAUDRON J:   Thank you.  We do not need to hear from the other side of the Bar table. 

The Court is of the view that the actual decision in this case is not attended with sufficient doubt to justify the grant of special leave.  Special leave will be refused.

MR WALKER:    If your Honour pleases, we seek costs.

MR YOUNG:   We seek also costs, your Honour.

MR SULLIVAN:   We seek costs also, your Honour.

GAUDRON J:   The first question that arises is, I suppose, do you oppose the costs, except this:  should there really be three sets of costs?

MR BASTEN:   We would submit that the practice is that one sets of costs only is ever allowed on a refusal, your Honour.

HAYNE J:   Can you point to anything that establishes that practice?

MR BASTEN:   I do not have my authority with me, but there is a reference in the CCH service to that effect.

GAUDRON J:   There will be an order for costs but should it extend beyond one set of costs?

MR WALKER:   Yes.  There are different interests represented ‑ ‑ ‑

HAYNE J:   On the issues raised by the leave application, Mr Walker?

MR WALKER:   There are not different positions taken, apart from subtleties of argument that no longer matter and were always only subtleties of argument.

HAYNE J:   It shows the ingenuity of counsel, that is all. 

MR WALKER:   Mr Young is present so, yes.  Down below, in Justice Sackville’s final decision I think there was an order that – 57 of the book, under the heading “Costs”, Mr Sullivan made the point ‑ ‑ ‑

HAYNE J:   Page 62 there is an order for 75 per cent at first instance.

MR WALKER:   Yes.  Now, on appeal it was simply with costs.  I do not think the consequences of that have been further worked out.  In our submission, the passage relied upon from Justice Burchett in the ACF v Forestry Commission Case, which is extracted at the foot of 57, at first instance is, in our submission, appropriate.  Certainly so far as the Commonwealth parties are concerned, we were sued.  We have to be here. 

HAYNE J:   What separate interest do you point to in connection with the special leave point?

MR WALKER:   We have no separate interest at all in resisting special leave. We are 100 per cent the same there, your Honour.

HAYNE J:   Which would suggest one set of costs, Mr Walker.

MR WALKER:   Your Honour, in our submission, that is a principle that can be pushed too far, for this reason:  suggesting one set of costs really ought to presuppose there is a practical matter – I do not mean as a matter of convenience but I mean as a practical matter – using one set of counsel.

HAYNE J:   But should we have heard more than one respondent, one set of argument, opposing leave was a lively issue, in my mind.

MR WALKER:   You should not have heard any repetitive argument, but that applies ‑ ‑ ‑

HAYNE J:   We will not follow that out, Mr Walker.

GAUDRON J:   Had you been called upon you might each have got something less than seven minutes which may indicate ‑ ‑ ‑

MR WALKER:   Your Honour cannot be suggesting that seven on 20 is an appropriate proportion of costs.

GAUDRON J:   I am just saying it is unthinkable that you would have each had 20 minutes.

MR WALKER:   But the issue of our imposition on the Court’s time is, with respect, entirely different, from the not only propriety but the important entitlement of parties with interests at stake, which interests are different although their stance is exactly the same, to turn up to oppose that which directly threatens their interests, and threatens their interests severally.  This is not a joint enterprise.  And it is for those reasons, in our submission, the ordinary event in this case is, as a matter of justice, costs which does not require the diminution of any of the indemnity which would otherwise follow.

GAUDRON J:   Do you have anything to add that is new, Mr Young or Mr Sullivan?

MR YOUNG:   Only this, your Honour:  my client and its resources has its individual private commercial interests to protect.  We accept that no repetitive argument, no overlap of argument, would have been appropriate.  But nonetheless we are entitled to be here to protect our own individual interests, which are quite separate from those of the Commonwealth and ‑ ‑ ‑

GAUDRON J:   Now you are repeating what has been said.  Mr Sullivan.

MR SULLIVAN:   Very briefly, your Honours, the submissions which had to be filed by each of the respondents were at the same time.  There was no opportunity – one could not anticipate, with great respect, all the arguments to be put on behalf of the Northern Territory would also be put on behalf of the other parties.  Given the non-identity of interests, in our respectful submission there should be at least a partial order for costs for each of the respondents.

GAUDRON J:   There will be an order for costs generally, as it were, but subject to this, that we will allow for only one set of counsel’s costs.

MR BASTEN:   Your Honours, I have found the authority to which I was referring.  I do not have copies of the cases.  It says in the CCH practice at page 11,969:

In some cases where there is ore than on respondent the Court will order that, in the event that the parties cannot agree as between them the proportion of costs to be received by Richmond & Ors (High Court, 16 February 1990) and Bailey v Oswald & Anor (High Court, 16 February 1990).  The intent of such an order is that there be only one set of costs payable by the applicant to the respondents.

GAUDRON J:   It is one set of counsel’s costs which perhaps is the relevant ‑ ‑ ‑

MR BASTEN:   I cannot take it any further.

GAUDRON J:   Yes, and if the parties cannot agree that will be a matter for the taxing officer.

AT 11.53 AM THE MATTER WAS CONCLUDED