Miles v Commissioner of Patents

[2014] HCATrans 293

[2014] HCATrans 293

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M90 of 2014

B e t w e e n -

SHANE ROBERT MILES

Applicant

and

COMMISSIONER OF PATENTS

Respondent

Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 2014, AT 12.06 PM

Copyright in the High Court of Australia

MR A.B.S. FRANKLIN, SC:   May it please the Court, I appear for the applicant.  (instructed by blueFOX legal)

MR P.R.D. GRAY, QC:   May it please the Court, I appear with MR P.H. CADMAN for the respondent.  (instructed by Australian Government Solicitor)

CRENNAN J:   Yes, Mr Franklin. 

MR FRANKLIN:   Your Honours, the first issue is the issue of whether the patent application has lapsed before it was purportedly refused.  The issue involves a proper construction of section 142(2)(d) of the Patents Act read with regulation 13.3.  It arose because the continuation fee had not been paid on the five‑year anniversary, that is 22 October 2012.  The patent application was subsequently refused on 1 November 2012 and the continuation and late fees were tendered in March 2013. 

Three possible constructions arise.  Firstly, your Honours, the Commissioner’s construction and the ruling of the primary judge was that the patent application did not lapse until the last day of the six‑month‑grace period, that is, the period prescribed was the period ending six months after the relevant anniversary date. 

The second construction is our construction and that is that there is only one prescribed period ending on the last moment of the relevant anniversary.  The patent application lapsed on the anniversary date such that refusal in November 2012 was invalid, a lapsed application cannot be refused.  With regard to payment of the fees during the grace period, there is a deemed extension of time and a patent application is restored.  I will develop that further.

CRENNAN J:   Well, now do you accept that the scheme requires the applicant for patent protection to pursue the application?

MR FRANKLIN:   Yes.

CRENNAN J:   If you have an applicant who appears to be indifferent to the various reminders which occurred, it is hard to see why you would be wanting to invoke a grace period?

MR FRANKLIN:   Your Honour, with respect, the indifference – that issue arises really in the context of the second ground of appeal and that is the 21‑month period during which examination is conducted.  It is correct, your Honour, that there was no response to the Commissioner’s demand for submissions after the Commissioner had imposed a two‑month time limit, but we say that imposition of a two‑month time limit was unlawful in any event. 

What the applicant then did, having changed patent attorneys, was to, well within the 21‑month examination period, say you have refused my application unlawfully, I am tendering the fees and I want you to set aside that unlawful refusal.  So it is not an applicant who simply ignored the time provisions of the Act.  The 21‑month period, with respect, was still running. 

May I then - going back to 142(2)(d) and 13.1 deal with the construction of the Full Court and that was that the effect of the payment during the grace period was that the patent application did not lapse and was accordingly validly refused.

CRENNAN J:   Where are we in the decision of the Full Court?

MR FRANKLIN:   Sorry?

CRENNAN J:   Are you pointing to a part of the decision of the ‑ ‑ ‑

MR FRANKLIN:   Yes, it is paragraphs 12 through to 15.  We say that what the Full Court held ‑ ‑ ‑

CRENNAN J:   This is 68 of the application book?

MR FRANKLIN:   Yes, their interpretation of 13.3(1A) was that because the grace period is taken to be extended until the fee is paid, where payment is made the prescribed period is not the five‑year anniversary but is “set and determined” – those are the words used in paragraph 12 - on the date of payment.

BELL J:   Do you not have to go back to the previous page and to their Honour’s analysis of the relationship between regulation 13.3(1) and (1A)?  The difference between you is – the court’s view was that your submission artificially bifurcated the regulations and that they were to be read in combination, the word “However” in (1A) being conjunctive.  What is wrong with that analysis?  That then leads to the conclusion that one finds at paragraph 12?

MR FRANKLIN:   With respect, we do not say there is any bifurcation on our approach at all.  What we say is that the prescribed period, for the purposes of the Act, is only one period.  That is 13.3(1).  However, if payment is made during the grace period there is a deemed extension of that.

CRENNAN J:   Notwithstanding an earlier refusal.  You must be contending that the applicant remains an applicant in respect of the application notwithstanding its refusal.

MR FRANKLIN:   Yes, but that is an illogicality ‑ ‑ ‑

CRENNAN J:   That would mean, would it not, that the Commission could never refuse at any time until the six‑month‑grace period was over.

MR FRANKLIN:   With respect, that is a point that demonstrates error by the Full Court because if the application was validly refused in November, it is dead.  Nothing can happen to that application.  It has now been validly refused.  What the Full Court then said is that a subsequent payment in March the following year extended the period prescribed.  But that is completely illogical, with respect, because if the patent was validly refused in November, that is it.  The patent is dead.  We say that is a fundamental contradiction that arises from the Full Court’s approach.

We say that the court misinterpreted the phrase “the period is taken to be extended until the fee is paid” as determining or defining as distinct from extending by a deemed extension the prescribed period.  Although there is a reference in paragraph 15 of the Full Court’s reasons to a deemed extension, it is clear from the reasons that (1A) was interpreted as defining the prescribed period.  In paragraph 12 the words “set and determined” are used and in paragraph 25 it is said that 13.3(1) and (1A) contribute together to the identification of the period prescribed.  We say one can compare section 142(1) which refers to a lapsing of provisional applications at the end of the prescribed period or if extended at the end of the extended period. 

Our submission, your Honours, is that on a proper construction of the section read with the regulation, there is only one prescribed period.  It is the period mentioned in 13.3(1) and the grace period operates such that if payment is made during the six‑month period there is a deemed extension which, in effect, is no different from any other extension of time.  There is only one prescribed period but it can be extended and the consequence, we say, is dealt with directly in section 223(7) of the Act which is at page 10 of our bundle.  That provides:

Where:

(a)a patent application lapses, or a patent ceases, because of a failure to do one or more relevant acts within the time allowed –

and here the relevant act is payment of the continuation fee, and -

(b)the time for doing that act or those acts is extended –

and we say that includes a deemed extension -

the application or patent must be treated as having been restored.

The consequence of that, your Honour, is that when the application was refused in November it had lapsed.  It could not be refused because it had lapsed.  If payment is relevant, after that, payment would restore the application.  It should not have been refused because it was lapsed at the time.

As we understand the Commissioner’s written submissions, she persists with her view that the prescribed period is the anniversary date plus six months.  Again, as we understand the Commissioner’s written submissions, she now seeks to argue that that was what the Full Court found.  We say that is wrong and in the context of special leave the fact that the officer charged with administration of patent applications has misinterpreted the Full Court’s reasons is significant.

Paragraph 5 of our written submissions and I refer you again – we set out the relevant passages 12 through to 15 of the reasons.  We say that those contained the Full Court’s explanation of the finding that the application was still on foot in November.  We say it did so only on the basis that the fees were paid during the grace period and accordingly the period was thus set and determined.  Their Honours held unequivocally that if no continuation fee is paid during the grace period the application lapses, not at the date of the six‑month period but on the five‑year anniversary.

CRENNAN J:   What about the point made against you which is that the sub‑regulation (1A) could never be characterised as providing for the restoration of a lapsed patent.  It merely provides for an extension of up to six months for a payment of a continuation?

MR FRANKLIN:   It provides for an extension and 223(7) provides for the restoration of a lapsed patent which has been extended.  Your Honours, we say that - and this is important in the present context, the Full Court’s interpretation leads to uncertainty during the grace period.  The uncertainty extends beyond the mere status of the application, lapsed or alive.  On the Full Court’s construction, it is uncertain whether a refusal or acceptance of an application during the grace period would be valid.  It will not be valid if the fees are not paid during the six‑month period because then the application lapses on the five‑year anniversary date.  But it will be valid, sometimes retrospectively, if the fees are paid during the grace period.

We say these consequences demonstrate not only why the Full Court was in error, but also, of course, the public importance pertaining to the correct instruction of the provisions.  This is something which I will deal with shortly later but we point out that in the recent decision of Alphapharm v Lundbeck, which dealt with the construction of the extension of time provisions in relation to applications for extension of term of pharmaceutical patents, both the majority and the dissenting judgments stressed the importance of a construction that avoids uncertainty in the register and in relation to the status of applications of extension of term.

BELL J:   The uncertainty which you identified, for practical purposes, is addressed, is it not, by looking to the situation at the conclusion of the grace period?  It is then known whether the fee has been paid or not.

MR FRANKLIN:   But, your Honours, if an application has been refused, it does not - you can pay the fee or it does not – what does an applicant do because if the refusal is valid as at the five‑year anniversary date, you do know then in advance whether the applicant is going to pay the fee or not pay the fee.  That is the situation that pertained in November when the application was refused.  If the fee is not going to be paid then the lapse was at the end of the five‑year anniversary, not at the end of the grace period.  That, with respect, leads to uncertainty, not only in relation to acceptance but also refusal.

CRENNAN J:   Well, how does section 49(2) fit in, having regard to what Justice Bell has just put to you?  What do you say the Commissioner can do under section 49(2)?

MR FRANKLIN:   That relates to the second ground of appeal, your Honour, which I was going to deal with presently.  But the second ground of appeal is whether the Commissioner has the power firstly to unilaterally impose a time limit and we say there is nothing in the Act that permits the Commissioner to unilaterally impose a time limit.  The Act and the regulations at the relevant time gave the applicant 21 months to overcome objections during the examination process.  That is now 12 months but at the time it was 21 months.  The examination process is dealt with in regulation 3.19.  There is nothing in the Act or in the regulations that empowers the Commissioner to impose a two‑month time limit.  That was the first unlawful act by the Commissioner, we say, imposing that two‑month time limit.

BELL J:   You say nothing under the regulations but the Full Court relied on regulation 22.24(1)(a) providing that the practice and procedure be followed in the determination is a matter for the Commissioner.

MR FRANKLIN:   If your Honour looks at that regulation, that regulation in terms deals directly with where the Commissioner is authorised to conduct a hearing or a matter on motion.  If the Commissioner is authorised to conduct a hearing or matter on motion then the Commissioner can set the practice and procedure and we accept that.  The question is, without authority to conduct a hearing can the Commissioner during the examination process simply set a two‑month time limit to overcome objections and we say clearly not. 

What the Commissioner did here was in the first examination report said “Here are my objections.  You have got two months to overcome them.  If you do not overcome them in that two‑month period, I am going to set it down for hearing.”  Two unlawful acts there, your Honour.  Imposing a two‑month time limit during a 21‑month examination period, it is a statutory period which my client was entitled to utilise to its full extent, and secondly, unilaterally, setting it down for hearing if you do not comply with the two‑month period. 

CRENNAN J:   Had that not been included I daresay you would be here complaining?

MR FRANKLIN:   With respect, your Honour, there is no power by the Commissioner to unilaterally conduct the hearing.  Section 49(2) provides for the potential refusal of an application.  To rely upon the – there are bounds of natural justice ‑ ‑ ‑

CRENNAN J:   It gives an opportunity to the applicant to pursue the application.

MR FRANKLIN:   The applicant, your Honour, has 21 months in which to overcome objections.  That is the statutory right which the applicant has. 

CRENNAN J:   I think there is a very great deal in the statutory scheme, if I may say so, Mr Franklin, which does indicate that the Commissioner can impose time limits during the course of a hearing or considering, I should say, an application.  There is the ability to indicate objections.  There is the ability to suggest amendments.  It is a process which – it is not a process which once it commences just dribbles along for 21 months.

MR FRANKLIN:   With respect, it does dribble along for 21 months, your Honour.  The examination process usually and does go through several phases.

CRENNAN J:   One reason why it does not dribble along is because it is very important that people can search the register and see what is happening in relation to applications.  If there is a disinterested applicant who does not pay fees and does not keep an application up to date there is some public interest in that being able to be signified at the earliest possible moment.  There is no requirement in the scheme that there is 21 months always before it is possible to gauge the interest of an applicant in pursuing an application.

MR FRANKLIN:   With respect, your Honour, we say that to characterise my client as a disinterested applicant when after the refusal the applicant took steps to tender the fees to ‑ ‑ ‑

CRENNAN J:   Well, non‑responsive for a certain period might be a better description.

MR FRANKLIN:   Non‑responsive for a certain period but an applicant who knew that that he had a statutory period of 21 months within which to overcome objections.  When his patent attorneys – new patent attorneys were confronted with the situation they wrote to the Commissioner and said you have refused this application, you were not entitled to impose a two‑month time limit.  We now want to deal with the objections during the 21 month examination period which they were entitled, with respect, to do. 

Your Honours, going back to section 142 and 13.1.  One issue I need to deal with – sorry, I do not have time to do that but one issue is the question of payment of the fees.  Your Honour, we say that there are two problematical scenarios that arise in the Full Court’s construction.  It is now common cause that the fees were not accepted or applied.  We say that if the fee was not accepted or applied it was not paid and, therefore, it is not correct that it is taken to be extended to the date of payment.

Secondly, if the refusal was valid, which was what the Full Court held, then in March 2013 there was nothing to continue and even if a successful payment was made the payment could not have any effect because the application ceased in November.  We say that neither of those avoidable problematical scenarios arises if you adopt our construction which we say is the logical construction of 142 read with 13.3(1A). 

Your Honours, in relation to the question of public importance we point out that this applies not only to patent applications but also granted patents because section 143 and regulation 13.6 are in virtually identical terms.  We say that it relates to the certainty in the register.  It is submitted that provisions which can impact upon the grant or refusal of any patent application must obviously be as important as provisions which might affect the extension of term of a pharmaceutical patent, which was the case in the Alphapharm v Lundbeck Case. 

We say equally the question of whether the Commissioner had the power to impose a two‑month time limit to overcome objections during the

21‑month examination period has the potential to affect many patent applications.  Indeed, your Honours, during the operation of a policy, we understand 150 applications were refused compared to a handful, I think, three before the imposition of the policy.  That indicates the public importance.

Insofar as the grace period provisions are concerned we point out that they arise from Australia’s treaty obligations under the Paris Convention and, your Honours, we submit that the issues raised in this application have a wider application and a wider import than those dealt with in Lundbeck.  Your Honours, on the second point in relation to the imposition of time limits and the setting of a hearing, we emphasise section 207.  I see I am out of time.

CRENNAN J:   Thank you, Mr Franklin.  Yes, Mr Gray.

MR GRAY:   Thank you, your Honours.  The application is opposed, both by reason of insufficient doubt regarding the correctness of the Full Court’s conclusions and also by reason of insufficient public importance but, in particular, the former, insufficient doubt as to correctness.  As to the lapsing argument, your Honours, irrespective of any interpretation that might be given to the Full Court’s reasons - and I will come to that in a moment - and irrespective of special leave questions 2 and 3, it is our submission that the applicant’s construction of the regulations, which does involve a bifurcation of (1) and (1A) is demonstrably wrong because of the power argument adverted to by your Honours, that is, it is predicated, that construction, on giving sub‑regulation 13.3(1A) an operation that would be repugnant against a provision of the Patents Act, namely section 142(2)(d).

Now, we have addressed this argument briefly in the Commissioner’s summary at paragraph 9.  The applicant’s reply points are at paragraph 15 and they do not compel any different conclusion.  The applicant - I am now summarising what we understand to be the applicant’s overall case on the lapsing point - the applicant contends that the application for patent lapsed on 22 October 2012 by operation of section 142(2)(d) operating by reference to a period prescribed by sub‑regulation 13.3(1) and (1) alone. 

If this is correct, then the alleged lapsing occurred by operation of a provision of the Act, that is our contention, albeit that it was operating on a prescribed period, the operation in question was an operation of the Act, and that being so, on our submission, it would be beyond the competence of a provision of the regulations, namely (1A) to achieve the revival or restoration of the putatively lapsed application. 

Now, we have heard our friends’ reply submission now amplified in oral submissions to the effect that he places reliance on section 223(7) but that provision fixes on, as a predicate, an extension having been granted.  Those words are used in the context of section 223 to mean an extension provided by administrative act under section 223 by the Commissioner upon the fulfilment of the criteria in sections 223(1), (2) or (2A) and subject to the conditions of that section as a whole. 

It could not mean and does not mean a deemed extension pursuant to regulation 13.3(1A) and that is a submission I make on the basis of the plain meaning of the text of subsection (7) and also by reference to its context.  Now, it is illuminating ‑ ‑ ‑

CRENNAN J:   An extension is not a grace period for paying a fee.

MR GRAY:   No, it is an administrative act by the Commissioner. It is illuminating that our friend at paragraph 15(b) of his reply and now in oral submissions has had to rely on section 223(7) in an attempt to outflank this power point. The power point, in our submission, is the end of the argument about the applicant’s construction of regulation 13.3(1) and (1A). That compels the conclusion - and I also enlist here section 13 of the Legislative Instruments Act – that giving regulation 13.3(1) and (1A) in combination an intra vires construction the conclusion must be that (1A) is part of the period prescribed for the purposes of section 142(2)(d) of the Act.

Your Honours, I said I would address our friend’s contentions concerning the proper interpretation of the Full Court’s reasons.  As your Honours would have seen in the Commissioner’s summary of argument, it is our contention that the ratio of the Full Court is to be found on pages 67 and then over the page to paragraph 12 appearing on page 68 of the application book and there the ratio ends.  That is our contention about the proper interpretation of the Full Court’s reasoning.  Now, true it is that in the very next paragraph their Honours then say it is important to recall, et cetera.  Could I just explain your Honours that ‑ ‑ ‑

CRENNAN J:   You say, as I understand it, that is not critical to the conclusion in 12?

MR GRAY:   We do.  We say that, your Honour.  We say that the passage at 13 is integrally linked with 14 and 15 and 14 makes it clear in the first line that what is being dealt with is a hypothetical, a hypothetical involving as a predicate if the application had not been refused, which, of course, was not this case.  It is true that there is, perhaps, a tension between what her Honour Justice Gordon held and which reflected the Commissioner’s submissions at first instance at paragraphs 112 and 113 on page 44 of the application book and what fell from the Full Court at 13 to 15, but it is no more than a tension.  It is not an inconsistency, in my respectful submission. 

That can be seen if careful reflection is given to the content of paragraph 112, in particular, of Justice Gordon’s judgment, near the top of page 44 of the application book.  What her Honour was doing there was engaging in a point of time analysis.  Her Honour was considering the question what is the status of an application during the grace period while the grace period is running.  As your Honours will have seen from our written submissions, it is only once that grace period has expired and one knows that the payment has not been made, and additionally the surcharge, that one can say “Aha, there is nothing left alive that could be the subject of any further exercise of power”.

That is the perspective we bring to paragraphs 112 and 113 of her Honour’s reasons.  Once that is understood, the Full Court’s – what fell from the Full Court at 13 to15 although it goes further is not necessarily inconsistent with what fell from her Honour.  

Turning then to the second point concerning the lapsing point, that is the point about public importance, in my submission, it follows if we are correct in our reconciliation of the judgment at first instance and the judgment on appeal that there is not a matter of public importance arising in connection with the lapsing point.  Furthermore, just picking up on what our friend said by way of the importance of certainty in the register, it is certainty amongst other interested persons and our friend’s enlistment of Alphapharm on that point, we would say that contrary to the thrust of what our friend was saying on that point, our construction, the Commissioner’s construction, in fact, promotes certainty better than the applicant’s construction does in this case. 

The reason for that is that if the application has, indeed, lapsed at the fifth anniversary then the Commissioner is bound by the regulations to advertise that fact in the official journal.  That will be a fact advertised to interested persons and one is then left in a situation where the grace payment or the surcharge payment might very well be made in the grace period and on our friend’s case the patent application will be restored.  That is more likely to cause uncertainty and less likely to promote certainty than the Commissioner’s construction.

Turning then to the second point in the application, the second major issue in the application which is the contention that for two reasons it was unlawful for the Commissioner to do what she did in relation to the lead up to the exercise of power under section 49(2), we have, of course, addressed this in writing, your Honours, but in short compass we add very little to what the Full Court said including what the Full Court said by reason of incorporation by reference of passages from Justice Gordon’s judgment. 

In short, if the section 49(2) power is to have utility it must be the case that it is exercisable within the 21‑month period, which has been described by our friend as the acceptance period, that is, the period after which an application will lapse following the date of the examination report.  That is a period prescribed for the purposes of section 142(2)(e) of the Act. 

We say that as a matter of plain construction and reconciliation of the various provisions in the Act, section 49(2) must be given work to do and the question really boils down to this:  is anything done by the Commissioner in connection with the potential exercise of 49(2) power beyond her competency by reason of an infringement of the principles that have been most recently explained by the Court in Li’s Case or has there been a breach of procedural fairness? 

These are matters that can relevantly be inquired into and they form the proper subject for inquiry as to delimitation of the Commissioner’s exercise of power.  There is no suggestion in this case that those principles are engaged.  That being the case, our friend’s argument is, in essence, an argument that in any circumstances 49(2) cannot be exercised within that 21‑month period. 

CRENNAN J:   The Full Court essentially, as I understand them, reject that on the basis that that could not have been within the contemplation of the Act nor consonant with the purposes of the Act.

MR GRAY:   Indeed, that is so, your Honour.  We respectfully adopt what the Full Court said in that regard.  There is no tension whatsoever between what her Honour said at first instance and what the Full Court said on this topic.  On the question of the so‑called unilateral listing of the matter for hearing and determination, in our respectful submission, if we are correct in our predicate that 49(2) power must be exercisable, subject to the types of constraints I have mentioned, then it must also be possible – there must be an implication of the conferral of authority on whatever is necessary for the Commissioner to accord procedural fairness prior to exercising that power. 

It follows that there is an implied conferral of power to bring on the hearing and determination of such a matter or its determination on the papers and, furthermore, that regulation 22.24 would be engaged because the foundational power exists.  Those are the submissions on behalf of the Commissioner.

CRENNAN J:   Yes, thank you.  Anything in response, Mr Franklin?

MR FRANKLIN:   Yes, very briefly, your Honour, a few points.  Your Honours, firstly, if I can go to paragraphs 12 and 13 of the Full Court’s reasons at page 68 to understand what the Full Court is saying.  My learned friend is submitting that what the Full Court held was that the patent application was on foot notwithstanding payment and that the payment issue had nothing to do with their finding in relation to the application being on foot.  With respect, that is not what the Full Court held in 12.  Paragraph 12 says:

Regulation 13.3(1A) provides nothing more than a grace period for the applicant to pay the continuation fee.  It is still part of the period prescribed.  Upon payment of the continuation fee, the period is set and determined provided it is paid within the six month period.

The payment of the continuation fee was the central plank in the Full Court’s finding that the period was still on foot.  Then the very next paragraph –

It is important to recall that in this case, payment of the continuation fee was made on 28 March 2013, within the six month grace period.

I made the point, your Honours, that if the refusal was valid then there was nothing to extend and there could not have been a valid payment in any event because in November the patent had ceased to exist.

With regard to the “lack of power” point that my friend raised, which he said is a complete answer to our first ground, we say that the complete answer to that is section 223(7).  Your Honour suggested that an extension is not a grace period, but if one looks at regulation 13.3(1) and regulation 13.3(1A), read in the context of section 142(2)(d), what the provisions provide for is one prescribed period and regulation 13.3(1A) provides for the extension of that period.  It says in terms if there is a payment, there is a deemed extension.  There is no reason for that deemed extension not to engage section 223(7).  It is an extension of a period.  The patent has lapsed; that period has now been extended, and if that is the case, it is then restored. 

My learned friend’s point with regard to certainty and the question of advertising of lapsed applications, that would apply to any case in which there is an extension of time.  It is contemplated clearly by the Act that there can be an extension of time for lapsed applications and a restoration of

lapsed applications, and any application that has lapsed and is extended under section 223(7) is restored.

With regard, your Honours, to the point about 49(2) and the hearing, it is important to recall, your Honours, that in the examination process the Commission is not sitting as a tribunal; the Commissioner is sitting as an administrative officer examining the application.  In those circumstances, the Commissioner cannot utilise 22.24.  The Commissioner is sitting as an administrator, not as the Tribunal.  Only when there is a properly constituted hearing does 22.24 arise, and 207 precludes the Commissioner from unilaterally imposing a hearing.

Your Honours, in the material in the bundle at page 36, we have included, to demonstrate the confusion that arises under this matter, a decision by the Commissioner’s delegate in July of this year, Dr Reddy’s Laboratories.  In that matter, the grace period had expired without payment of the fee.  There were no continuation fees paid, and during the grace period, the Commissioner’s delegate refused the application and, in paragraph 5, to add to the confusion, described the application during that period as being:

in a “state of lapse” –

and suggested that –

an application in a state of lapse can be refused.

CRENNAN J:   Refused; yes, I see that.

MR FRANKLIN:   Your Honours, we say, with respect, that this is a matter that cries out for some clarity.  We say there is uncertainty that arises from the Full Court’s decision.  Those are my submissions, your Honours.

CRENNAN J:   Thank you, Mr Franklin. 

The decision of the Full Court of the Federal Court of Australia is not attended by sufficient doubt to warrant a grant of special leave to appeal.  Accordingly, special leave to appeal is refused with costs.

The Court will adjourn until 1.30 pm.

AT 12.44 PM THE MATTER WAS CONCLUDED