Metal Manufactures Limited v Lewis

[1988] HCATrans 214

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S64 of 1988

B e t w e e n -

:METAL :t-1ANUFACTURES LIMITED

Applicant

and

JEAN AGNES LEWIS

Respondent

Application for special

leave to appeal

MASON CJ
WILSON J

DEANE J

:Metal

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 SEPTEMBER 1988, AT 12.08 PM

Copyright in the High Court of Australia

S1T9/l/PLC 1 16/9/88

MR B.A. COLES:  If Your Honours please, I appear for the

applicant. (instructed by Kemp Strang & Chippindall)

MR R.G. FORSTER:  May it please the Court, I appear for the

respondent.	(instructed by Abott Tout Creer &
Wilkinson)

MASON CJ: Yes, Mr Coles.

MR COLES: If Your Honours please. If it is convenient,

Your Honours, may I hand up a small bundle of

supplementary primarily statutory material together

with copies of what was intended to be an outline of

the applicant's argument, Your Honour, and perhaps

it has strayed into greater dimensions.

MASON CJ:  Can we look at the outline of your argument?

MR COLES: Certainly, if Your Honours please.

MASON CJ: Except I see it is somewhat something more than

an outline, is it not?

MR COLES: It grew, if Your Honour pleases.

MASON CJ:  It really is the equivalent of an entire oral

argument to be delivered on the hearing of an appeal.

MR COLES:  Yes. I think, if Your Honours please, I am in a

position to abbreviate it somewhat for the purposes

of presenting the application.

MASON CJ: Yes, we will put it, I think, at the bottom of the

bundle.

MR COLES: Yes, Your Honour. Your Honours, the statutory

material which I have handed up to Your Honours

sets out on the first page the relevant provision
of the COMPANIES CODE pursuant to which the proceedings

were brought. Your Honours will see that by

section 556(1) it was provided that:

If -

(a) a comp~ny incurs a debt -

and -

(b) immediately before the time when the

debt is incurred -

(i)   there are reasonable grounds to expect that the company will not be able to

pay all its debts -

or another condition, and -

(c) the company -

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either then or later becomes -

a company to which this section applies,

any person who was a director of the company,

or took part in the management ..... is guilty of

an offence ..... and -

is -

jointly and severally liable for the payment of

the debt.

In the proceedings in the court below there was no

contest that the provisions of subsection (1) were

satisfied.

MASON CJ: Yes. Now, Mr Coles, can we start by telling you

that the interpretation of this particular provision

is obviously a matter of importance.

MR COLES: Indeed, Your Honours.

MASON CJ:  I think you ought to direct your energies to

persuading us that you have an arguable point.

MR COLES:  If, indeed, Your Honours please. The central issue,

of course, Your Honours, was whether the defendant on
whom the onus lay had established that the debt was
incurred without her express or implied authority or

consent.

The proposition contended for by the applicant is

ultimately in the facts as they were found, essentially,

an undemanding one. It was not in dispute that

the respondent had given some general authority to

her husband to conduct the entirety of the company's

business. Indeed, it was found that she accepted

managing director and'acquiesced11 , in the words of the	the role that he assumed as, at least, de facto
trial judge, "in his conduct in the company's affairs".
From those, in my submission, straightforward and,
indeed, one would submit, fairly connnonplace facts,
the conclusion the applicant contends for is that it follows, absent anything else - and there was little else - that the respondent failed to satisfy the
court that the debt was incurred without her
authority or consent.

Mr Justice Kirby found that. His conclusion was

that by providing authority or consent to the - and that

appears, Your Honours, at pages 21 and 22.

DEANE J: Would it be accurate to say that the question is

whether the effect of the relevant provisions is that
the consent does not exist by·reason only of a general
agreement to the person concerned carrying on the business

of the company but that there must be, as it were,

express or implied consent to the particular debt?

Meta S1T9{3/PLC 3 16/9/88

MR.OJI.ES:  Yes. Well, that is the way Mr Justice McHugh put it

and that is, indeed, the ultimate conclusion which the

applicant challenges.

MASON CJ:  Does Mr Justice Mahoney subscribe to that view?

Can you say of his judgment that it necessarily entails that view of the section as well?

MR COLES:  We would submit not necessarily, Your Honour.

Mr Justice Mahoney appears to have taken a somewhat

different approach to the conclusion he reached. It

may be convenient to deal with what the applicant

contends are the errors arguably in the decision of

Mr Justice Mahoney. His judgment, Your Honours, commences at page 26. His Honour looked at the matter on two bases. Primarily, His Honour's conclusion was grounded in what His Honour said at page 29. At the

foot of page 28 His Honour considered the submission

that by allowing her husband to remain and act as

managing director, she had given authority or consent.

His Honour then, at the top of page 29 viewed the matter

on the basis that it was not proved what were the

provisions of the memorandum and articles; how

the husband had become the managing director; whether

there were any restrictions and so forth on his role,

and then His Honour said, with regard to those matters

concerning the articles:

On this ground, I would conclude that the

relevant debt was incurred without her

express or implied authority.

We challenge that on three bases, Your Honour: firstly,

of course, it does not follow from what His Honour has

said that that conclusion does not, in terms, follow;

secondly, and perhaps I would limit it to this, primarily

what His Honour Mr Justice Mahoney has done, in our

submission, is to really reverse the onus of proof. If

there were relevant matters in the memorandum and articles

or relevant matters in the internal arrangement of the

company then, of course, the statute clearly provides

Mrs Lewis as having the obligation of proving those matters.

DEANE J: Can I try and tie you down a little bit more to what

I asked you? Assume that the facts were different in this case and it emerged that Mrs Lewis had said to

Mr Lewis, "You know I do not know anything at all about

company affairs. You do whatever you think is correct

and you have my authority to conduct the affairs of the

company in whatever manner you think is in its best

interests." If that had happened, what would be the

effect of the judgments here?

MR COLES: Well, Mr Justice McHugh's judgment would certainly

be erroneous for this reason - - -

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DEANE J: Well, not erroneous, but his judgment would be

that Mr Lewis did not have her express or implied

authority.

MR COLES:  Yes, that is right.

DEANE J: Because she had never directed her mind to the

particular debt.	She had simply said, "Do whatever
you like."

MR COLES:  And for the other reason Mr Justice McHugh gives,

partly subscribing to Mr Justice Mahoney's view of

the matter, that because Mr Lewis' authority would be

said to derive from some position or office, then he

derived no authority from Mrs Lewis. So that, ultimately,

the result of Mr Justice McHugh's determination or

holding is that even if there was an express general

authority in the terms, indeed, Your Honour Mr Justice Deane

puts, then Mr Justice McHugh would say that necessarily -

and still entitles the defendant to say, "That debt was

incurred without my express or implied authority or

consent" for no other reason than there was a particular

debt and we take issue, Your Honour, with the proposition

that one must so read or constrict the section as to

require, in effect, an express authorization each time a

debt is incurred.

DEANE J: Well, my example would have probably been better

worded if I had used "consent" instead of "authority".

MR COLES:  Indeed, Your Honour; yes, indeed. One criticism that

is made of Mr Justice McHugh's judgment is that his

reasoning focuses primarily on the conception of

"authority" rather than the perhaps more general conception

of "consent" which is a rather, we would submit, elastic

provision.

But, in short, Your Honours, it is contended that

the contention that a general authority will still ground

a defence of - or still entitle the person to use the

general authority is to say that the debt was nevertheless

incurred without any authority or consent is simply

erroneous and is in the teeth of the provisions of the

section.

WILSON J:  Mr Justice Mahoney would have come to the same

conclusion as he did, as well, would he not, on the

basis of the facts as Justice Deane has indicated?

MR COLES: Inevitably, with respect, Your Honour, because -

WILSON J: Yes. He says, "having regard to the state of her

ignorance concerning the matter", so as long as she

remained ignorant of the specific matter.

MR COLES:  Yes, and if I may put this to Your Honours:

ignorance is not either a criterion of liability under

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the first subsection nor is it, in terms, an exculpatory

provision under the defence section. It could have been

easy to say so but ignorance is not one of the events

legislatively contemplated as a defence. One can well
imagine - we accept, Your Honours, that ignorance alone

might well go a little distance towards establishing -

if there are no other factors, ignorance could, one

could speculate, establish or go some distance towards

establishing the defence, but ignorance in the context

of a person who acquiesces or conjoins in giving, in

effect, carte blanche to a co-director, it is submitted,

is simply an irrelevant factor and certainly

if not irrelevant, at least, certainly it cannot be

decisive of whether a person has established that the

debt was incurred without their express or implied

authority.

Your Honours, that, probably, in broad

outline, covers the objections or the matters the

applicant puts with respect to the arguably erroneous
basis of the majority in the Court of Appeal. The

submissions address, Your Honours, also the questions

as to why Your Honours, if Your Honours entertained

some doubt as to the ultimate correctness of the

decision below, why Your Honours might regard leave as

appropriate.

MASON CJ:  Can I just ask you this question: on page 28

Mr Justice Mahoney says,at line 22:

The only basis on which it was argued

that Mrs Lewis had given such authority or

consent was because, when the debt was incurred,

Mr Lewis was managing director of the company.

His Honour seems to have directed his judgment to that

issue.

MR COLES:  Yes. May I say, Your Honours, the issue of the

status or official role of a managing director as such

was the subject of relatively cursory notice in the

course of argument in the Court of Appeal though,

nevertheless, the official nature of the office and the

assumption by Mr Justice Mahoney that questions

internally of due appointment and formal appointment

and so forth were established, was not one that

necessarily followed from the evidence. Indeed, all

Mr Justice Hodgson had held was that the respondent herself whom His Honour basically accepted gave evidence

that her husband acted as managing director and he held,

as a conclusion, that she acquiesced in his so conducting

the affairs of the company as managing director. But

the phenomena or the matters that spring from whether
or not he occupied the office officially were not

really the subject of any substantial debate.

MASON CJ:  I was going to say to you that if that was the

substantial issue debated in the Court of Appeal, and

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certainly Mr Justice Mahoney's judgment suggests that

it was, putting to one side for the moment the
meaning of the question "without", then the

expressions by Mr Justice McHugh of what was required

seemed to go beyond that particular issue. In other

words, you would then be dealing with expressions in

the judgment of Mr Justice McHugh that were obiter

so far as the actual decision in this case was

concerned.

:MR COLES: Yes. Well, Your Honour, I think I am

constrained to put, if Your Honour pleases, that the
matter was argued, so far as the applicant recalls it,

on the wider basis - more wide-ranging basis discussed by Mr Justice McHugh and certainly not on the specific

and, with respect, narrow basis ultimately dealt with

by Mr Justice Mahoney.	A third criticism,
Your Honours - - -

DEANE J:  Mr Coles, while difficulties are being put to you,

is not one of the problems about this case as an

appropriate vehicle that relevant material does not

seem to have been before the court. I mean, I have

trouble seeing how you could really deal with this
without some reference to the memorandum and articles

of the company, for example.

:MR COLES:  Your Honour suggests, with respect no doubt

accurately, that relevant material may not have been

before the court but firstly, Your Honours, of course,
the onus of eliciting the relevant material that
went to the defence which is the only issue in the case
was, of course, on the respondent and, indeed, we take

issue with Mr Justice Mahoney's reversal of the onus.

Secondly, it assumes, of course, Your Honour - and,

indeed, assumes against the applicant - that the material,

in evidence, would be relevant any way because.there is

no universal assumption that articles of a company

contain any specific provisions. I have given

Your Honours a short reference to Professor Pennington's discussion of a topic that Mr Justice Mahoney himself

refers to where, at page 31, Mr Justice Mahoney says

that the managing director's autority derives from

the fact that he has been appointed to the office
but that would appear, it is submitted, contrary to

the indications afforded by such authority as there

is and, indeed, absent any express provision in the

articles of association, then the manager director, even

if appointed validly as such, is only the delegate of

the board and can have his powers withdrawn by the board

at any time.

But to come to what Your Honour puts to me: it

cannot be said necessarily, in my submission, that if

material was before the court it would necessarily have

been relevant and, indeed, it not having been produced

by the party on whom the onus lay it is a reasonable

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inference, in my submission, that it probably was not
relevant or the inference is open that that material
would not have assisted the respondent in any event.

Your Honours, in support of the construction for which the appellant contends, namely, that if

one encounters circumstances such as the present

then the legal conclusion is that there was an

express or implied authority or consent. There are

various statutory circumstances that are submitted
to bear on that indication or to give an indication

to that effect.

MASON CJ:  Mr Coles, I think at this stage we might profit

from hearing what Mr Forster has to say.

MR COLES: If Your Honours please.

MR FORSTER: If the Court pleases. Might I also hand up to

Your Honours an outline of the respondent's written

submissions on the application.

MASON CJ: Thank you.

MR FORSTER:  And daunting as it appears, Your Honours, might I

also hand up the discussion paper of the Law Reform

Connnission and the appendix to it which is referred to

in the first paragraph of that document, and I have

taken the liberty, Your Honours, of putting a yellow

sticker at the relevant page in both those documents.

MASON CJ: What, are these proposals for reform of the - - -

MR FORSTER:  Yes, Your Honour, and they are put before the

Court only 9n this basis, that although, quite clearly,

section 556 ( 2) (a) is an important provision, it may yet

turn out to be quite transitory in nature.

MASON CJ: But we cannot proceed on that footing, can we?

MR FORSTER:  Your Honours, it is a matter which Your Honours may wish to take into account in considering whether or not leave should be granted. That is as high as I can put it and that is as high as I do put it, Your Honour.

MASON CJ: Yes.

WILSON J: When you consider the record of implementation of

reconnnendations of law reform connnissions in this country

it does not amount to a very substantial factor,

Mr Forster.

MR FORSTER:  Your Honours, the only matter I wish to draw to

Your Honours' attention is that under the proposed

clause D8 and D9, particularly D9, the whole structure

of what is presently section 556 is proposed to be

amended in such a way that - the expression that appears

in section 556(2)(a) does not appear in that form and

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it is really a somewhat different structure which, if

enacted, will be on the statute books.

MASON CJ: Well, you might proceed, I think., to paragraph 2.

It seems to me your opposition really stands or falls

on the argument that is advanced in paragraph 2.

MR FORSTER:  Yes. If Your Honours please, it is my

su.1:mi.ssion that, assu:n:ingthe importance of section 556(2) (a),

this is not a suitable vehicle by which the Court ought properly consider it and that is put it two

ways: firstly, that the factsin this particular

case are most unusual in that the respondent's husband

or co-director simply assumed or arrogated the

requisite authority on to himself, her authority or

consent never being regarded as being called for,

and in that sense it is a somewhat unusual fact situation.

Could I take Your Honours to the relevant pages to

which I have made reference, namely page 82 where

His Honour the learned trial judge held, commencing at

line 14:

First, it seems to be established by the evidence

that the First Defendant simply assumed

authority to act as the Company. He did not ask

the Second Defendant for her authority or consent.

He just took this upon himself without asking the

Second Defendant; and upon being questioned by

her about this, he simply told her not to be

concerned about the matter, and told her such

things a.~ that she was a director for signing

purposes only. In those circumstances it seems

to me that the Second Defendant's conduct (or

rather lack of conduct, that is lack of objection)

would not convey to him that she authorised or

consented to his being managing director. Rather

the true position is that neither he nor she ever

regarded her authority or consent as being called

for, and that accordingly her inactivity did not

communicate authority or consent to him: it was

merely acquiescence.

And to similar effect on page 63, commencing at line 25

is the passage. His Honour accepted the second defendant's
evidence substantially and then he continued:

In particular, I accept that the Second Defendant

had no business training or experience, although

she is intelligent and well educated; that she

took no part in the management of the Company or in

conducting the business of the Company, except by

signing documents which she did not read and by

receiving certain communications from creditors of
the Company; that otherwise she had no access to
the books and records of the Company and did not

see the Company's mail; that although she was at

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material times aware that the Company was carrying

on business and accordingly incurring debts, she

had no knowledge of ..... this particular debt -

et cetera. His Honour continues on page 64 at about

line 18 that he was:

assisted by the evidence given by the First

Defendant. My impression was that the First

Defendant was a somewhat overbearing and

somewhat arrogant man, while my impression of

the Second Defendant was that she was of a more

passive nature.

And that this was a case where the second defendant,
rather than consenting or giving authority simply had

that, as it were, assumed against her and the first

defendant, her co-director husband, simply took it upon

himself to act on behalf of the company.

DEANE J: Well, you are not going to get it any better than

what you referred to on page 82, are you?

MR FORSTER:  No.

DEANE J: You will just go backwards on this point if - - -

MR FORSTER:	- - - if I go much further back.
DEANE J:	- - - if you keep going, I would have thought.
MR FORSTER:	Yes. Your Honours, that is the finding upon which I rely. This was not a question of - - -
DEANE J:	On page 82 it seems to be an express finding of

absence of consent for the reason that both parties

approached the matter on the basis that consent was

unnecessary.

MR FORSTER:	Yes. Your Honour.
MASON CJ: And that throws up the issue as Mr Justice Mahoney

enunciated it in the Court of Appeal in his judgment.

MR FORSTER:  That is so, Your Honour, yes. And that is where

the second sul::mi.ssian. canes in as to why this is not a
suitable vehicle because, although it is put - it is

my submission~ the plaintiff failed to establish

the relevant facts, and if I could pause there for a

moment: whoever may have failed to establish the

relevant facts, the facts are not before the Court and

the Court simply does not know what the situation was

in relation to Mr Lewis becoming managing director.

And it would certainly, in my submission, not enable

this Court to pronounce on the general significance of

holding the position as managing director in cases such

as this in the absence of knowing the circumstances in

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which Mr Lewis became managing director; the circumstances

as to whether or not the respondent was involved in his

becoming so appointed; the powers that she may have had

either to in any way control his actions or restrict them

or to remove him. So, in the absence of that evidence

this Court would not be able properly to consider that

aspect of the matter which is discussed principally in the

reasons of Mr Justice Mahoney.

Your Honours, of course, will be aware that the

provisions of section 556(2)(b) were not pursued on the appeal, the respondent being unsuccessful on that point before Mr Justice Hodgson and there being no notice of

contention. So, that subsection does not arise in this

appeal.

For those reasons, in my submission, Your Honours

will decline to grant leave to the applicant.

MASON CJ: Yes, thank you, Mr Forster. Yes, Mr Coles.

MR COLES:	I think three short matters, Your Honours.
MASON CJ:	Can we invite your attention specifically to the

passage on page 82, particularly that part of the

long paragraph on that page that collllilences on line 20 and ends the second line from the bottom of the page?

MR COLES:  Yes. Can I answer that in two possible ways,

Your Honour? The first answer, perhaps, is one would

hesitate before claiming to be able to improve on the

way the matter was dealt with by Mr Justice Kirby
who analysed that and that passage appears at pages 20

and 21 where His Honour says:

The first reason given was that the managing

director simply assumed authority and did not

ask the respondent for her authority or consent.

He just took it upon himself ..... she was a director

"for signing purposes only".

And then over at the top on page 21 he records

Mr Justice Hodgson's finding that that would not have conveyed - and that is the finding at page 82, in

substance. His Honour says, and I adopt this, Your Honours,

to answer Your Honour's question:

The respondent's failure to give express

authority and consent is not decisive because

to make out the defence under the paragraph

there must be shown more than a lack of

connnunication of express authority or consent.

The legislature specifically referred to that

authority or consent which is "implied".

And His Honour says:

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The fact that the managing director

arrogated authority to himself is ..... irrelevant to the question whether the respondent expressly or by implication authorised or consented to the

company's activities -

that is the company's activities, His Honour reminds us -

being conducted through him. Clearly she did.

Equally clearly, she must have known (or must

be taken by the statute to have known) that opting

out of concern in the company's affairs would

mean, in effect, that the company, as a

continuing trading entity, would have to incur

debts -

and so forth. He says:

No other inference is available from the course

which she adopted, being a director with the

responsibilities which the Code imposes upon her,

being sufficiently concerned about the company's

liquidity to ask about it, and being prepared to

be brushed off by the generalities of her

husband.

So, we put, firstly, Your Honour, the holding at page 82

of Mr Justice Hodgson, in effect, gives insufficient

attention to the words of the statute that indicate that to
make out the defence of absence of authority or consent,
firstly, it is, of course, the authority or consent of

the company and secondly, that authority or consent may

be implied as well as express. A second way, if I may put

this, Your Honours, that one may perhaps answer the

matter at page 82 - although this was not dealt with by

any of the members of the Court of Appeal - indeed, not

put to them - is if Your Honours find a situation

where a person, in effect, consents to dispense with
consent, then the question necessarily arises whether,

on proof of those facts, that person can then be heard

to say that she has established that the debt was incurred

without her express or implied authority or consent which

he expressly, in effect, or by tacit - by implication,

any way, dispensed internally with the need for requirement

of consent. And if that is so, Your Honours, then the

judgment below makes ignorance a virtue and indifference

to statutory responsibility.

DEANE J: Except it is a very special position there, is it not?

I mean, what if the lady had said to her husband, "Don't think that you've got my authority or consent to anything

at all because you told me that what I say doesn't matter."?

MR COLES: Well, with respect, fine, if I may say so, Your Honour.

If I may answer it this way:  too much attention, in my

submission, was focused in the majority judgment in

the Court of Appeal on what might have been the steps open

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to Mrs Lewis to, in effect, restrict her husband's

powers as managing director in dealing with third
parties. That, it is submitted, missed the point.

All Mrs Lewis had to do was prove facts, in my

submission, to show that she withdrew or withheld or

did not continue or did not carry on furnishing her consent or authority for the activity. She did not

have to go to the, perhaps - although unproven

difficult steps of removing him or convening meetings

to try to wind the company up, it was sufficient - and,

indeed, I do not shrink from what Your Honour

Mr Justice Deane puts to me - if they were the facts,

if she said, "Well, you're treating me like a nothing,

therefore I don't consent to your activities, and I know

this much, that its dangerous being a director of an

insolvent company so I don't authorize or consent to

you to continue to incur debts on behalf of the company",

and if that evidence was established and accepted, then

she has a defence.

WILSON J:  But does not the finding of Mr Justice Hodgson on

page 82 establish a defence very similar to that, namely,

that she was told to mind her own business and she

certainly never consented or gave authority for what was

to be done?

MR COLES: Yes, but in my submission, Your Honour, the issue

is not whether she was shown or not shown to have
expressly authorized or consented, the issue is whether,
on the other hand, defensively, she has established that

what was done was done without her authority or consent.

The active conception of authorizing something is not,

of course, that to which the statute is directed.

The statute is directed to the potentially more passive

activity of the circumstances which might demonstrate

that something was done without authority or consent.

Now, His Honour certainly did not make the finding of fact

that is inherent in the question that Your Honour puts

to me and. indeed, His Honour, with respect, fell short

of it.	In my submission, it would not have been open
to him on the evidence to find that she expressly or

even by implication withdrew or failed ever to afford

her consent but certainly there was no finding of fact

to that effect.

DEANE J:  I do not want to. take time but following what

Justice Wilson has said to you, if you were to translate

that finding into a conversation, it could well be,

"Now, tell me what's happening so that I can authorize

or consent to it?'' and the answer being, "You mind your

own business, it's nothing to do with you."

MR COLES:  Yes, and the person says, "All right, I will",

that thereby conveying - it is neutral, with respect,

Your Honours, by saying, "Yes, all right, I'll mind my

own business". It does not tip the balance one side of

the scales or the other, whether one is thereby __

conveying to the other person the continuation of the

implied consent or the withdrawal of it.

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WILSON J: Notwithstanding that the wife, on that being said

to her by her husband, acquiesces in the statement by

silent submission or whatever?

MR COLES:  If it is neutral, with respect, Your Honours, we

rely them, of course, on the onus of proof.

WILSON J:	The onus, yes.
MR COLES:	The only other matter, I think, arising from what

my learned friend put was - yes, if Your Honours

were interested in the statutory future of the provision,

the last two pages of the bundle of supplementary

documents furnish a copy of clause 592 of the

Corporations Bill of 1988 in which, subject to some	decriminalizing component, the section, and, indeed,
the section specifically the subject of this
application, is unchanged from its present form in
the Code. If Your Honours please.

MASON CJ: Although the interpetation of section 556 of the

national COMPANIES legislation is a matter of general

importance which would, in an appropriate case, warrant

the attention of this Court, we do not consider that this case is an appropriate vehicle for dealing with the section. The case depends on its own particular

circumstances in which the facts are extremely meagre

and there is a finding of fact by the primary judge

that the respondent did not communicate her authority
or consent to her husband to act as he did in the

affairs of the company. This finding seems not to have

been qualified by the Court of Appeal.

The case being an inappropriate vehicle for dealing with the section, the application is therefore

refused.

Were you going to make an application?

MR FORSTER: Yes, if Your Honours please, I ask for costs.

MASON CJ: You cannot resist that?
MR COLES:	I have no submissions on that, Your Honour.
MASON CJ:	Yes.  The application is .refused with costs.

AT 12.46 PM THE MATTER WAS ADJOURNED SINE DIE

SlT9/14/PLC	14	16/9/88
Metal