Masters & Anor v Garcia & Anor
[2006] HCATrans 470
[2006] HCATrans 470
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S73 of 2006
B e t w e e n -
RAYMOND HENRY MASTERS
First Applicant
GWENETH HAZEL MASTERS
Second Applicant
and
PAUL JOSEPH GARCIA
First Respondent
DARREN McASEY
Second Respondent
Application for special leave to appeal
GLEESON CJ
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 1 SEPTEMBER 2006, AT 9.29 AM
Copyright in the High Court of Australia
MR M.L.D. EINFELD, QC: May it please the Court, I appear with my learned friend, MR A.C. HARDING, for the applicant. (instructed by Verekers)
MR J.J.J. GARNSEY, QC: May it please the Court, I appear with my learned friend, MR A. HATZIS, for the respondent. (Deutsch Partners Lawyers)
GLEESON CJ: Yes, Mr Einfeld.
MR EINFELD: May it please the Court, this is a case where a grant of special leave is warranted because the judgment of the Court of Appeal, in our submission, is inherently unsustainable and ought not be permitted to stand as a decision at appellate level, the court having held that a hotel licensee, once he ceased to hold the licence, could not retain – to use the words of Justice Basten below - any form of ownership in the subject “poker machine entitlements” which had been issued under the Gaming Machines Act, but nevertheless went on to conclude that the same erstwhile licensee could retain and enforce a right to transfer the same entitlements.
The Court of Appeal, having held that the right of ownership no longer existed once the licensee had left, proceeded to hold, indeed, that the right of transfer of the same poker machine entitlements as a part of a component element of the right of ownership could nevertheless do so even though he was no longer the licensee. In other words, your Honours, the court held that the right of transfer that did exist was an incident of a right of ownership that the court had held did not exist.
In our respectful submission, that inconsistency which underlay the whole of the reasoning and subsequent orders of the Court of Appeal is so pre‑eminently untenable that this Court ought consider the judgment and interfere with the invalid reasoning below. The invalidity of the reasoning, your Honours, and its miscarriage becomes stark when one looks at the contractual term itself.
May we just briefly invite the Court to turn to page 72 of the application book, at which the relevant clause appears, this being the agreement between outgoing and incoming hotel licensee. The relevant introductory words in 11.1 on page 72 being:
The Vendor’s right –
that is Mr Garcia, Mr Garnsey’s client –
if any, to ownership, compensation or damages, arising from the Vendor’s efforts . . . resulting in the allocation of the Poker Machine Entitlements . . . is not included in the sale –
So, purportedly, the outgoing licensee selling his business to the incoming licensee was purporting to retain for himself his rights to ownership, whatever that means, of the poker machine entitlements.
GLEESON CJ: The price did not cover them.
MR EINFELD: It was said that the price did not cover them. The price did not cover them, that is correct. Now, their Honours, if there were, over our submission, any certainty in that clause, held that the rights of ownership, equitable or legal proprietary interests in the poker machine entitlements which, following the Court of Appeal’s earlier decision in the Jabetin Case, it was held constituted proprietary rights, came to an end having regard to the legislative scheme once the lessee – the hotel licensee – surrendered the lease and the licence.
GLEESON CJ: What is the point of clause 11.2, Mr Einfeld?
MR EINFELD: Much debated in the Court of Appeal – perhaps the rationale was, your Honour, that a time limit be placed upon the vendor’s right to enforce what was purportedly - or require the incoming licensee to give effect to what was purported to be achieved by 11.1. His Honour Justice Basten thought it did more than that and actually suggested in the first of the two judgments below that it actually created a time limit upon the rights themselves but that view was not shared, it would seem.
The critical paragraph is 11.3 whereby the parties then agreed that the incoming purchaser would:
do all things to enable the Vendor to claim and maintain any such right –
the critical words being “such right”, being the right of ownership referred to in 11.1 –
including signing all documents, and making all applications, at the cost of the Vendor, to assert –
again –
such right.
Therein lay the conundrum. The court held that such right, that is the rights of ownership, ceased to operate or exist in Mr Garcia, the outgoing licensee, once he had left the hotel which he did in October 2002.
Nevertheless, they said that even though that right had met its demise, because under the legislative scheme of the Gaming Machines Act the poker machine entitlements were issued in respect of the licence and always attached and remained with the licence at all times, thus, so Justice Tobias and Justice Basten, with whom the other member of the court agreed, said, no such equitable or legal right could remain in Mr Garcia once he had left because the requirements of the Act were such that the poker machine entitlements had to stay with the hotel licence.
Yet, having said that, their Honours went on to give effect to 11.3 by saying that the vendor could enforce a clause which required the purchaser to give effect to such right and to sign all documents so as to permit the vendor to assert such right - relevantly sign transfer documents.
GLEESON CJ: Can I attempt to understand what is behind this issue? Is it your submission that an outgoing licensee or an outgoing publican in the position of Mr Garnsey’s client cannot effectively get the economic value of the entitlements in circumstances such as this?
MR EINFELD: If prior to his departure from the hotel the publican arranges to procure from the incoming purchaser or to retain for himself the poker machine entitlements and at the time of changeover that arrangement is given effect, then there is no problem created by the legislation. But if he purports to do so for the first time after he has left the hotel, then the Court of Appeal in Jabetin said that his remedies, be they to achieve economic benefit or otherwise, have come to an end and this Court declined to grant special leave from that decision.
GLEESON CJ: I am trying to understand what the question of principle is. If it is simply a question of construction of a particular contract and the argument between the parties is whether or not the contract effectively did what is possible, why would that be a matter that would warrant a grant of special leave?
MR EINFELD: Ordinarily it would not, your Honours. We accept that. We acknowledge it. The difference in this case is that so far as concerns the question of construction – and I will just confine it to that because there is another point of principle I will come to in just a moment – the approach taken by the Court of Appeal below in its published judgment is so incapable of being correct, it is illogical and so impossible to sustain that this is one of those perhaps rare cases in which the Court would intervene because ‑ ‑ ‑
GLEESON CJ: This, I presume, is a unique contract?
MR EINFELD: It is a unique contract but the Court would intervene because it is not possible that the court below having held that the right, whatever it is, has expired, that it can then say that the same person who had the right has a right to enforce – to use the words in 11.3 – “such right”, that is the same right. That, as a piece of legal reasoning, is so untenable that it ought not be permitted to stand.
GLEESON CJ: What should they have provided in their contract in order to achieve the economic result they were setting out to achieve?
MR EINFELD: The application for the transfer of the poker machine entitlements should have been implemented prior to the departure from the hotel of the outgoing publican. Had they agreed to that regime, had that happened, then there would have been no problem such as the present.
CALLINAN J: What section of the Gaming Machines Act permits that?
MR EINFELD: Your Honour, that is not quite so easy to answer because it is a combination of provisions, but section 56 is the section of the Act which provides for the authorisation for poker machines to be installed and operated in hotels. Section 15 is the section which indicates that the allocation of poker machines is made, as appears in section 15(2)(a).
CALLINAN J: In respect of a hotel, in respect of a licence or registered club premises.
MR EINFELD: Correct. So it has to stay always with the licence and that is what Jabetin was held to have said.
CALLINAN J: Section 15 does not really answer my question. You say under section 56, however, a transfer can be made before the licence is transferred?
MR EINFELD: Your Honour, the transfer section is section 19 and it does not identify specifically whether it can happen before or after, but the whole thrust of the Act, as was discussed in the Jabetin litigation and indeed by their Honours below, is that all times – because the poker machines are not allocated to an individual but to the licence, they have to stay with the licence so that any rights that enure to the benefit of the licensee during the term of the lease, including the economic benefit from having the poker machines operated on the hotel premises, once he leaves, those rights which had hitherto enured to him ceased to belong to him but remain attached to the licence itself. Thus, he does not have a right of transfer, your Honour.
CALLINAN J: Obviously, a gaming machine licence is a valuable piece of property.
MR EINFELD: Yes, your Honour.
CALLINAN J: And there is a well established – is that not correct?
MR EINFELD: I want to come to the ‑ ‑ ‑
CALLINAN J: It would have been ‑ ‑ ‑
MR EINFELD: It is a valuable entitlement. We hesitate at the word “property” because our second point of appeal and our main point of principle is the question of whether it is property or not and that is a very important question.
CALLINAN J: Let us assume for present purposes it is, it is a well‑established principle that unless the statute under which the proprietary right or the right is granted expressly precludes it then it will be treated as if it can be dealt with as a normal piece of property, that one will not apply, artificially, restrictions upon its transfer or encumbering it and mortgaging it and the like. That is really why I ask you what permits transfer and now I ask you, what under the Act prevents it?
MR EINFELD: Your Honour, there are actually two answers to what your Honour has put to me. In the court below it was recognised, and Justice Basten does so at paragraph 59 on page 90 that the transfer can only be made by the person who is an extant licensee. The reason – if your Honour looks at page 90 of the application book, line 30 there is a sentence:
Although s 19(1) of the Gaming Machines Act is silent as to the person who is entitled to transfer a poker machine entitlement, it may reasonable be inferred that the transferor must be the holder of the hotelier’s licence in respect of which the entitlements are allocated.
That was the view, so far as whatever rights it was, be they rights of transfer or rights of property. In the existing incumbent publican hotelier, they came to an end in these poker machine entitlements the moment he left because they attach to the licence, not to him. So that even if they were property, and I want to move to that now because time is short ‑ ‑ ‑
CALLINAN J: Just before you do, you assert that the purchaser gets the benefit of them, is that correct?
MR EINFELD: We assert that they stay with the licence for the term of the licence.
CALLINAN J: So that the purchaser gets it. That would be a fraud on the vendor, would it not, having regard to clause 11 of the contract? Why would not equity look on what ought to have been done as being done, that is, a notional transfer by the vendor before the licence actually comes into the hands is registered in the purchaser?
MR EINFELD: The lease between the lessor and the outgoing lessee actually ‑ ‑ ‑
CALLINAN J: There was a new lease, was there not, I think?
MR EINFELD: They did come into existence in the new lease. The old lease provided that ‑ ‑ ‑
CALLINAN J: But nonetheless, the vendor sold whatever he could sell to the purchaser, apart from the gaming machine entitlements. They were reserved, is that correct?
MR EINFELD: They were purportedly.
CALLINAN J: Would it not be a fraud on the vendor for your client to seek to maintain the position that ‑ ‑ ‑
MR EINFELD: Not at all. The lease between the owners of the hotel, who were my clients, and the lessee provided in terms that the licence and any attachments to the licence could ‑ ‑ ‑
CALLINAN J: But the lessor had no proprietary interest of any kind in the gaming machine entitlements. Is that not that right?
MR EINFELD: Your Honour, the lease provided that at the end of the lease term the licence and the way it was defined, any permissions granted in respect of the licence, which includes these, would actually revert to the vendor.
GLEESON CJ: Your argument is that your client got a windfall gain because they messed up the way they went about doing it?
MR EINFELD: That is not our argument but that, on one view, is the consequence of it.
GLEESON CJ: That is the practical effect of it. They could have done it properly, they went about it the wrong way and the result is that your client gets the benefit of these entitlements which are worth several times the value of the hotel business.
MR EINFELD: It is the major component of the value of the business, there is no doubt about that, but the point, your Honour, is that – I want to, if I can, get to the second part of the answer to Justice Callinan’s question because it is a major point. The point is that on the reasoning of the court, having said that there are no rights of ownership which survive once Mr Garcia left, then held that nevertheless he could enforce such right being the same right which they had already held had ceased to exist. That is point one.
The second point we make is that although there had been argument below at first instance and on appeal as to whether or not such rights that the outgoing vendor took with him were vested in trust – were property rights in trust – as the primary judge held and although there was some argument before the Court of Appeal as to whether or not there might be some contractual right independently of trust, the point that ultimately succeeded before their Honours was not raised by the respondent, nor was it the subject of argument, nor was it the subject of any form of warning by the court that it might conclude that notwithstanding the demise of the rights of ownership, so-called, nevertheless as an ingredient of the same right some such right could nevertheless be enforced.
That brings me, though, your Honours to the point of principle that underlies all of this and that is the question as to whether or not there can be any such thing as ownership or property in these poker machine entitlements and it is our submission that that raises a matter of general interest and general importance in ‑ ‑ ‑
CALLINAN J: Is not the hallmark of a proprietary interest transferability?
MR EINFELD: No, your Honour.
CALLINAN J: That has been said several times.
MR EINFELD: This Court held in Jack v Smail 100 years ago that there was no property in a hotel licence, that although it was transferable and although it was transferable for value it was a personal licence which attached to the premises and was not property in the sense that we would ordinarily understand property, despite those factors. That position was maintained by this Court ‑ ‑ ‑
CALLINAN J: Is it not transferable, subject to an approval by a ‑ ‑ ‑
MR EINFELD: Yes, in the same way as a hotel licence, subject for approval by the liquor administration ‑ ‑ ‑
CALLINAN J: You would have to read that earlier case in the light of what this Court said in American Dairy Queen v Blue Rio 147 CLR 677, talking about Crown lands. Again, you need the consent of the Executive before you can transfer them.
MR EINFELD: Your Honour, it is not a question of the requirement of consent, it is the nature of the entity or the nature of the right. This Court has held twice, both in Jack v Smail and 30 or 40 years later in Slatter v Railway Commissioners that although, in one sense, one can describe a hotel licence as being transferable for value, and in that sense property, it is not property in the sense that invests rights other than in the nature of a personal licence in the hotel licensee for the time being.
In Jabetin that point was assumed, without argument, that there could be property. It was said it was in the nature of property, whatever that means. This Court declined to grant special leave in the Jabetin litigation but not on that point which was never argued at first instance and was not the subject of special leave application.
The question of whether there are proprietary rights and therefore whether – such as would give rise to a trust – in poker machine entitlements which are now inherent in every hotel in New South Wales and no doubt in other States similar authorities or similar entitlements to operate poker machines in hotels - the question of whether one can have property rights in such entitlements so as to give rise to rights in trust is an important question and underlies this contract. Although it is a unique contract it speaks about ownership of poker machine entitlements. In doing so it gives rise to the very question of whether there can be such a thing as ownership or property in these entitlements and that gives rise to a question of importance which warrants the consideration of this Court. If the Court please.
GLEESON CJ: Thank you, Mr Einfeld. Yes, Mr Garnsey.
MR GARNSEY: If your Honour pleases. First, as to whether the matter of property was argued in Jabetin’s Case it was thoroughly argued before Justice Gzell at first instance, and in the Court of Appeal’s judgment at paragraph 53 in Jabetin v Benwine the matter was not argued by either party on appeal and the court notes that it was not in dispute, so Justice Gzell’s holding that poker machine entitlements were a species of property by reference to the standard criteria, one of which Justice Callinan mentioned, was accepted by both parties on appeal.
In the application for special leave in Jabetin v Benwine, which was heard by this court on 2 September 2005, there are only two issues which I have to say did not include the right of property – whether poker machine entitlements were property – hardly surprising in view of the matter not being argued on appeal.
As to the other issues, namely, the construction of section 19 of the Gaming Machines Act 2001, in particular whether subsection (5) was exhaustive and as to whether one could have a constructive trust in respect of poker machine entitlements which the President in Jabetin v Benwine held could be in an appropriate case, leave was not granted, Justice McHugh stating the conclusions of the Justices that:
we would conclude, along with all the learned judges who have looked at this issue in the courts below, that the preferable, and therefore the correct, construction of the Act is that which the courts below have given.
Likewise in relation to constructive trust there was no error in the reasoning of the court.
In relation to the question of whether this is an appropriate case for the grant of special leave, we submit that no matter of general importance is raised in this appeal. My friend’s summary of argument constantly misstates, with respect, the conclusion of the Court of Appeal in this case. The Court of Appeal relevantly held, not that Mr Garcia retained any right of ownership in the poker machine entitlements, but that he had, under the specific terms of the contract in clause 11, the right to direct the current licensee to transfer the poker machine entitlements and consequently to receive the moneys payable in respect of them.
That appears quite clearly from the reasons of the Court of Appeal in the judgment of Justice Tobias at paragraphs 10 and 11, application book 64 to 65, in the judgment of Justice Basten at paragraphs 92 and 93, application book 113, lines 10 to 25 and again to 120, lines 50 to 53.
GLEESON CJ: Was there any dispute between the parties to the contract or was the dispute between the parties to the contract, on the one hand, and the owner of the hotel on the other?
MR GARNSEY: No. The dispute was effectively carried out between my clients and Mr Einfeld’s clients, the owners of the freehold. Mr McAsey, which does not appear from the application book, entered into an agreement with my client, the vendor, which contained clause 11. He had also entered into similar obligations under the new lease from my friend’s clients, the owners of the hotel, and he has maintained a submitting appearance in all courts and a silence.
In relation to the entry by my client into the relevant agreement, it appears from the application book at page 12 – this is the first instance judgment – lines 35 to 40 and page 14, lines 10 to 15 - that my client entered into the agreement which contained clause 11 12 days before he ceased to be lessee and his licence terminated. So that at the time he entered into the agreement he had, under the decision of the Court of Appeal in Jabetin v Benwine the right to transfer or the right to the poker machine entitlements, including the right to transfer them in accordance with the Act.
The Court of Appeal held that properly construed to give effect to the commercial intent of the agreement in clause 11 that my client retained the right to direct the transfer of the poker machine entitlements. The decision is a very specific one on the specific meaning of the clause. The clause when drafted was drafted at a time when the precise form of the Act governing poker machine entitlements was not known. There was a complicated legislative history which is set out in some of the judgments preceding the judgment in this case with the legislature intending to create a form of property which could be transferred, reducing gambling because on every transfer one out of three poker machine entitlements would be forfeited.
GLEESON CJ: It was like the old Liquor Licences Reduction Board system.
MR GARNSEY: Yes, but with this difference, that they were intended to be transferable in contrast to the hotelier’s licence or the club liquor licence, the decisions as to which, to which my friend….., is that the licences are terminated on the other person ceasing to be lessee and licensee and there is a grant of a fresh licence and the provisions in sale of business agreements are accordingly fitted to that.
GLEESON CJ: What you say explains the somewhat speculative wording of the clause in question, that expression “if any” I think, for example, in the first line of the clause but as far as what might be called the merits are concerned, the argument against you seems to be that with the benefit of hindsight, having regard to the form of the legislation, there was a way the parties could have achieved what they set out to achieve in this case, they just slipped up.
MR GARNSEY: Indeed, but if that be true, and we say it is not, we would say that is not a matter which would merit the grant of special leave in any event.
GLEESON CJ: If it is right it just indicates that the decision turned substantially upon the construction of a unique contract.
MR GARNSEY: Indeed, and a fact situation which is also unique. Now, Mr Garcia did cease to be a licensee 12 days after he entered into the contract but the Court of Appeal construed the contract as consonant with the Act because all it did was embody personal obligations obliging the current licensee to transfer the poker machine entitlements to another licensee, that being consonant with the object of the Act, that is to enable purchase and sale of these entitlements, but also purchase and sale only to the holder of another licence. It need not be at the same location, it can be anywhere else, so long as it is a licence of the relevant kind. That is the first point, if your Honour pleases.
GLEESON CJ: It is not a licence to put a poker machine in a milk bar.
MR GARNSEY: No, your Honour, I meant they can be transferred to the holder of another hotelier’s licence. There are more complicated provisions saying it is a bit different whether it is in the country or the city and whether there is hardship involved. But that was the decision in this case, the decision of the Court of Appeal. It depended, we say, on the correct construction of clause 11 giving commercial meaning and efficacy to what was intended to be a commercial contract.
The second matter as to, my friend says property was not argued, or, rather, there was an inconsistency in the decision of the Court of Appeal. With respect, there was not because he elides the right to direct a transfer of poker machine entitlements with the right to transfer poker machine entitlements. The Court of Appeal was dealing with the former purely as a matter of contract. But in any event, as to whether this is a suitable case for the matter to be considered by this Court, the Court of Appeal did not grant leave to reopen Jabetin and reconsider the matter of Jabetin. It did not find it necessary for the purpose of disposing of the case to do that for the particular reasons that your Honour the Chief Justice has mentioned.
It also was necessary to grant leave because my friend had not run the point on the first hearing of the appeal. There were two hearings of the appeal, one to – when it came up the first time on what appeared in the notice of appeal, when it came up the second time to resolve certain matters raised rather enthusiastically by Justice Basten. The question of whether poker machine entitlements were property or not was not raised at trial by my learned friends and, as I have indicated to your Honours, was not raised
after Justice Gzell’s decision in the appeal to the Court of Appeal in Jabetin v Benwine.
Your Honours, my friend does have in his summary of argument that he was not heard as to what he says was the rationale of the Court of Appeal. We submit it was not the rationale, but in any event the argument that he puts here was, with respect, repeatedly made in his address to the Court of Appeal and was as late as his address in reply in the supplementary application book which sets out the transcript in the Court of Appeal at pages 104, line 50 through to 106, line 25.
Finally, if your Honour pleases, should your Honours be minded to grant special leave in relation to the specific decision of the Court of Appeal and to allow the property issue to be argued and notwithstanding the Court of Appeal did not do so, and notwithstanding my friend had not raised it until the second hearing in the Court of Appeal, we respectfully submit it should be on terms that the respondent’s costs are paid in any event.
GLEESON CJ: Thank you, Mr Garnsey. Yes, Mr Einfeld.
MR EINFELD: Can I deal with the last matter firstly, your Honour. The question of whether there were property rights in poker machine entitlements was adumbrated at length before the primary judge. In my friend’s supplementary application book your Honours will see that there was argument about it before the Court of Appeal.
At page 39 of my friend’s supplementary application book, your Honours will see at lines 20 or 23 reference by us to the fact that in the primary judge’s judgment this decision in Jack v Smail, wrongly described, and Slatter v Railway Commissioners had been discussed - that is the same point - so that the question of whether there could be property in poker machine entitlements at all was raised both before and addressed by the primary judge in his judgment and addressed by us in the Court of Appeal before the first hearing.
I do, though, wish to just add as to our friend’s suggestion that we raised the present matter before the Court of Appeal, that I am afraid that is just not right. It needs to be understood that what was argued before the Court of Appeal prior to the first hearing was the question of whether or not, assuming, contrary to the primary judge’s findings and contrary to Mr Garnsey’s submissions, that the clause in question in the agreement could not give rise to a right in trust, as the primary judge had held, could it nevertheless give rise to any rights in contract.
That was the matter, the only matter, that is the subject of the passages to which our learned friends will have given reference. Nowhere in any of the materials provided by my friend, including his written outline, is there any indication at all, because it just did not happen, that there was any discussion before the Court of Appeal before it handed down judgment in the first judgment to the effect that even if the Court of Appeal were to hold that any right of ownership had ceased when Mr Garcia left the hotel nevertheless some right of transfer, as part of that same right of ownership, could be enforced.
The first time anyone heard of that was when the Court of Appeal handed down judgment and, frankly, when we sought to raise that very matter with the Court of Appeal when it came time for the second judgment we were prevented by their Honours from doing so because it was said we were canvassing the judgment. That appears at page 123 of the primary application book and again at page 165 where we were stopped from raising that point because their Honours were of the view that we were attempting to canvass the judgment in raising a point which had not hitherto been raised.
Your Honours, the other matter we wish to address is this question of property. Our friend’s submissions overlooked the problem presented by the bare language of the clause in question, namely, that what was left to be enforced by clause 11.3 was “such right” – “such right” was described as the vendor’s ownership. So that however much my friend wants to distinguish between enforcing rights of ownership and the existence of rights of ownership the fact is the clause purported to retain for Mr Garcia the vendor’s ownership which the court said could not exist, correctly, any longer.
Our point was and is that there never was capable of being any ownership in a poker machine entitlement in the first place. If there could be no proprietary interest in a hotel licence, as this Court has held more than once, then there could not be in an entitlement which is granted in relation to or attaches, as it were, as an addendum, to the same hotel licence. That point is a point of wide application. It is fundamental to this case, even though the terms of the contract are unique, but the point of it is that there is no such concept as ownership or property, equitable or legal, in a poker machine entitlement of which there are now many, many throughout the State.
For those reasons, in our respectful submission, the question of whether or not there ever could have been any rights accruing to Mr Garcia after he left the hotel – and that is obviously a very common incidence, of departing licensees, in our submission is a matter of general importance and ought to be considered and if to any extent at all meaning can be given to the clause then the manifest untenability of the Court of Appeal’s own
reasoning ought go by the wayside as well. For those reasons, in our submission, there should be a grant of special leave.
GLEESON CJ: Thank you, Mr Einfeld.
The outcome of this case in the Court of Appeal turned largely upon the meaning given to a particular contract which is not in common form or of general application. For that reason, and because we think there are insufficient prospects of success of an appeal, we would refuse a grant of special leave.
The application is dismissed with costs.
MR EINFELD: If the Court pleases.
AT 10.09 AM THE MATTER WAS CONCLUDED
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