Miller v Uniting Church in Australia Property Trust (NSW) & Anor

[2016] HCATrans 53

[2016] HCATrans 053

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S235 of 2015

B e t w e e n -

EMILIE MILLER

Applicant

and

UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW)

First Respondent

LITHGOW CITY COUNCIL

Second Respondent

Application for special leave to appeal

FRENCH CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MARCH 2016, AT 10.47 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR E.G. ROMANIUK, SC and MS M.A. KUMAR, for the applicant.  (instructed by McIntosh McPhillamy & Co)

MR J.K. KIRK, SC:   May it please the Court, I appear with my learned friend, MR C.J.S. PURDY, for the first respondent.  (instructed by Moray & Agnew Solicitors)

FRENCH CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I come to the heart of the matter.  As the Court is aware, the Court of Appeal set aside the primary judge’s findings of negligence and in doing so it submitted that the Court of Appeal misapprehended its function in the respects we referred to in our written submissions at page 137, paragraphs 27 to 29 and, if it be necessary to do so, we rely on section 35AB or visitation point set out in paragraph 31 of those submissions. 

Your Honours, may I seek to demonstrate those matters and to do so by reference to the principal finding of the primary judge, which is in paragraph 183 at page 57.  Your Honours will see - I will not read out the paragraph but I would invite your Honours to read the whole of the paragraph and it was to the effect that the school had been negligent by a swimming coach in requiring the applicant, a talented swimmer but a 12‑year‑old child, to train during the school holidays by using track‑start dives at the shallow end of the Lithgow Municipal Pool.

Now, several elements are involved in that and may I deal with them very briefly.  Firstly, “track‑start dive” is described in the appellant’s unchallenged evidence, which is quoted at page 133 in our written submissions in paragraph 5.  Your Honours will see it set out there.  Secondly, the way in which the injury occurred appeared in her evidence, again unchallenged, which we have quoted at paragraph 7 at pages 133 and 134.  Thirdly, in using the track‑start dive there is a need for sufficient coping or projection to enable the front foot and the fingers to grip and push.  That was elaborated upon in the passage of the applicant’s evidence, which has been extracted at page 144, line 22 to 145, line 15, and it was accepted by the primary judge at page 5, paragraph 11 of his reasons.

FRENCH CJ:   Was the finding at paragraph 188, page 59 in contention - that is, the act of encouragement?

MR JACKSON:   I am sorry, your Honour.  Is your Honour referring to the part in the first sentence of it?

FRENCH CJ:   No, the second sentence:

it actively encouraged the Plaintiff to do what she was doing at the time of her injury.

MR JACKSON:   I do not think it is in contention, your Honour.

FRENCH CJ:   No.

MR JACKSON:   It was part of her – she was, as I said, a talented and very young swimmer and she was training for various titles during the school holidays.  There was expert evidence accepted by the judge to the same effect and your Honours will see that at page 57, paragraph 182.  That is the first thing.  Also, Mr Sweetenham’s evidence is referred to by the primary judge at page 40, paragraphs 142 and 143, and Professor Blitvich’s evidence at paragraph 115 of the primary judge’s reasons, page 32. Your Honours will see particularly the quotation of paragraph 5.24.

FRENCH CJ:   She was involved in the development of the relevant standards, was she not?

MR JACKSON:   Indeed, she was, as was Mr Sweetenham.  They were two leading Australians in this area and you will see at paragraph 5.33, page 33, her experience in the matter.  Could I invite your Honours to note also on page 34, paragraphs 117 through to 139, which relate to the role of the coping.  Your Honours, also there was evidence, again accepted by the primary judge, from very experienced experts – the persons I have referred to - that the track‑start dive into shallow water carried with it an inherent risk.  You will see that referred to at page 58, paragraphs 184 and 185.  Your Honours, could I refer also to the fact that the first sentence of paragraph 185 appears to come from what is said at paragraph 182 and also from paragraphs 103 to 104 at page 29. 

Your Honours, I am sorry I am taking a moment to get to this but I will get to the essential matters in just a moment.  One sees also the matters referred to, if I could go back to page 33 for a moment, Professor Blitvich’s report.  I took your Honours to paragraph 5.24.  Could I refer also to 5.38 and to 5.40.  Might I refer also to Mr Sweetenham’s evidence at page 40, paragraph 142, and to the material referred to in our reply paragraph 1 at page 154.

May I come then to the Court of Appeal.  In the Court of Appeal’s reasons ones sees extensive reference being made to the terms of the Civil Liability Act 2002.  The relevant provisions are extracted at page 139.  The references in the Court of Appeal’s reasons to the Civil Liability Act are in paragraphs 100 to 122 and they commence at page 104. 

There appear to be several criticisms made of the primary judge’s approach in this regard.  The first is at paragraph 101, page 104, which has to be read with paragraph 105 on page 105.  It refers to section 5B and it says that each of the elements of section 5B has to be dealt with.  Your Honours, as we have sought to say in our written submissions at page 134, paragraph 14 going over to page 135, whilst it may be that the primary judge did not refer, eo nomine, as it were, to each of the subsections it is apparent that he did deal with each of those questions. 

A second matter referred to by the Court of Appeal was identification of the risk of harm, the existence of which the Court of Appeal said is presupposed by section 5B.  This is referred to, your Honours, by the Court of Appeal in paragraph 106 at page 105.  The issue is discussed, if I may say so, with respect, somewhat fully at paragraphs 106 to 122 of the Court of Appeal’s reasons, but when the Court of Appeal’s reasons get back to the particular case, as distinct from rather more general observations, it is apparent that there had been a clear identification by the primary judge of the relevant risk.

GORDON J:   Is that paragraph 123 we are dealing with now?

MR JACKSON:   Yes, your Honour, page 110.  Your Honours will see what the Court of Appeal said and could I refer, in paragraph 123, to the second half of it commencing about line 42, which is the part with which I am dealing now:

The former is related –

et cetera, “the former” being:

separate breaches by the School’s failure –

et cetera, being in the first two lines of the paragraph.  Your Honours, could we just say this?  Surely what appears in the primary judge’s reasons at paragraphs 182 and 183 at page 57 is a sufficient identification of the risk.  The third matter relates to section 5D, and section 5D your Honours will see set out at page 140 and the discussion of it is in paragraph 153 at page 118.  Your Honours will see that in that paragraph what is said at the top of page 119 was:

It was necessary, in order for s 5D to be satisfied, to find that the size or grip of the coping tile was such that it was a necessary condition of the occurrence of Ms Miller’s collision with the bottom of the pool.

Could I just say this - if one goes back – if your Honours would not mind holding that page for a moment – to page 140, your Honours will see that section 5D requires that there is to be factual causation and section 5D(3)(a) says that in the circumstances:

the matter is to be determined subjectively –

Your Honours, that appears, with respect, to be exactly the task on which the primary judge was engaged, if one goes back to paragraph 183 at page 57.

GORDON J:   Is not the problem approached or identified by the Court of Appeal in relation to these coping or gripping facilities that which is addressed in 152 and that is that they assessed that there was nothing in the literature which supported the finding, that is, supported the contention before you even got to the causation question?

MR JACKSON:   Can I say in relation to that, your Honour, that one sees in relation to that aspect we have referred to this at paragraph 18 of our written submissions at paragraph 135.  Could we just say this?  The judge accepted the applicant’s evidence about the edge and he did that at paragraphs 16 to 21 at page 6.  He held there was only a small overhang and the expert evidence concerning the need for there to be an overhang was, your Honours, something that one could see at paragraph 155 of his Honour’s reasons.

GORDON J:   Of the primary judge now?

MR JACKSON:   Yes, your Honour, I am sorry – at paragraph 155, page 43.  Your Honours will see that – sorry, I have given your Honours the wrong reference there.  If one goes to paragraphs 117 to 119 at page 34, you will see the reference to the plaintiff’s evidence in 117.  You will see in paragraph 118 Professor Blitvich’s evidence about it and then paragraph 119, and your Honours will have seen, if one goes back to what was said at page 33 by Professor Blitvich in paragraph 5.38:

concern had grown . . . in relation to the risks of diving into shallow water.

You will see a reference in paragraph 5.24 to the “track‑start”.  Your Honours, there was, in our submission, evidence on which the judge was entitled to rely.  Could we just say that the Court of Appeal said in the passage to which I referred at paragraph 153, at the top of page 119:

It was necessary . . . to find that the size or grip of the coping tile was such -

et cetera.  That is, with respect, erroneous, we would submit, in two respects ‑ ‑ ‑

FRENCH CJ:   Well, the question is the negligence – it is the negligence that ‑ ‑ ‑

MR JACKSON:   It is the first part – it is the negligence that has to be the necessary condition, not each factual aspect of it.  In any event, your Honours, we would submit that the findings at paragraph 183 at page 57 satisfy that requirement.  Could I just go back for a moment to what was said by the Court of Appeal.  If I could go back to the passage in particular to which I think your Honour Justice Gordon was referring inferentially about the existence of the literature, could we just say that for the Court of Appeal to compare – I think it is paragraph 152 at page 118.

GORDON J:   That is the one I was referring to.

MR JACKSON:   Yes, thank you, your Honour.  What your Honours will see was that the Court of Appeal said:

there was nothing in the literature to suggest that anything turned upon the condition of the coping tiles.  To the extent that the literature was directed to the surface . . . it focussed on diving blocks –

and so on.  Then there is a reference to:

Only by taking the expert evidence of [these two people] at its highest –

Well, could we just say, your Honours, there was evidence that in the first place to say one only looks at the literature would be erroneous of course.  What one had was evidence from Professor Blitvich and Mr Sweetenham that there had been, since the early 1990s, a growing knowledge for the last 10 years of possible dangers and there was evidence from the two of them, who were worldwide experts in a way ‑ ‑ ‑

FRENCH CJ:   The literature came in what, through their evidence?  They referred to particular ‑ ‑ ‑

MR JACKSON:   Yes.  I think it came in from a number of sources but certainly some of their evidence, yes, because the discussion of the literature in the judgment is in the case against the pool owner.

FRENCH CJ:   Yes.

MR JACKSON:   So it was dealing with the question of the pool owner’s liability and so on.  When one came to the position of the swimming coaches, if I could just say this, your Honours - if one goes to the position of Mr Critoph, he, too, was a swimming coach who was engaged to train people in the position of the appellant to the highest levels.  You will see that from the primary judge’s reasons at paragraph 59 at page 17.  You will see how the “school prided itself on its sport” – I will not read it out, but your Honours will see at about line 20:

the entry into the January 2008 state championships of the Plaintiff, Tom Brodie . . . had been made by the school’s swimming club –

and so on.  Then at paragraph 60:

Mr Critoph, who was the school’s only swimming coach, was one of the coaches who provided such programs.

Then if one goes to paragraph 63, you will see that:

Mr Critoph’s employment included, ensuring . . . He was expected to involve himself in the development of elite swimmers to county, state and national levels -

and so on.  So that if you had a circumstance where leading people – Mr Sweetenham, Professor Blitvich – said that the circumstances were such that it was not appropriate to do the track‑start diving in the particular circumstances, including the lack of grip, and that Mr Critoph was a swimming coach training people at that level, your Honours we would say why should the test be that to which the Court of Appeal referred in paragraph 149 at page 117? 

Paragraph 145 – why would one adopt considerable care in placing reliance upon leading experts in the field whose opinions departed from mainstream views, some of which they had assisted to prepare?  They were giving evidence before the judge.  Why could the judge not accept their evidence?  I am sorry, your Honours, I see the time but what I was going to say was there were two other bases relied on by the primary judge.  We rely in our written submissions in relation to those.

FRENCH CJ:   Thank you, Mr Jackson.  Yes, Mr Kirk.

MR KIRK:   Your Honours, my learned friends, in effect, seek to raise two special leave points.  One relates to risk of harm and section 5B in particular of the Civil Liability Act, and the second, in effect, is a claim for visitation relating to the facts.  I seek to deal with those in turn.  In relation to the civil liability ‑ ‑ ‑

FRENCH CJ:   I think with a focus in particular on the way in which expert evidence was treated by reference to literature or the judge’s own analysis of the literature.

MR KIRK:   That is right and just to add one brief thing in relation to that.  My learned friend has not sought to advocate in that regard some evolution of Fox v Percy nor clearly articulated any departure from Fox v Percy.  It really comes down to analysis of the facts but I will seek to deal with it.  But first if I can clear the deck of the Civil Liability Act point, if your Honours turn to page 111 of the application book in Justice Leeming’s judgment, your Honours will see at paragraph 125, the last sentence:

Neither the pleadings nor the parties’ submissions assisted the primary judge in relation to these essential statutory requirements –

that being identification of the particular risk.  Then 126, on appeal, “in contradistinction”, it was addressed with some particularity and then there is a quote to that effect.  That illustrates why this is not a suitable vehicle to seek to deal with these issues, but there is a more fundamental point.  If your Honours turn over the page to 112, paragraph 128, fourth line, Justice Leeming says:

On the view which I take, it is not necessary to express a concluded view as to the level of generality or abstraction of the risk of harm . . . applicable to this case.

Then if you jump to paragraph 129:

However, it is sufficient for the purposes of resolving this appeal to consider each of the three ways in which the School was said to have been held liable –

and that is by the primary judge.  So, with respect to learned discussion of the issue of section 5B and the risks of harm, his Honour came back and said, “Look, in the end, I will deal with this in the way it was dealt with by the primary judge”, and that is what his Honour then did.  So there is no point of principle there. 

In relation to the, in effect, visitation point, my learned friend has focused on the track‑start dive point and the other side of that coin is the coping tile point and I will seek to deal with that together, and I will seek to build up to the point which, if anything, is at the heart of the application, the point your Honour the Chief asked me about the use of literature.  But can I put that in context first.

First, it is relevant to take account – I am not saying it is definitive but it is plainly relevant to take account of the relevant guidelines and standards that were in place back on 7 January 2008 and the lead up to it.  The lead guideline was one issued by the Royal Lifesaving Society of Australia, SU22, which had been issued in November 2005, about two years before the accident, and that indicated that this sort of dive at this depth was perfectly acceptable.  There was no reason against it. 

That guidance was republished with a further memorandum by the Royal Lifesaving Society in December 2007.  It was republished by the New South Wales Department of Education, which produced a booklet which picked up SU22.  The guidance of the Royal Lifesaving Society was consistent with guidance from the Australian Swimming Coaches and Teachers’ Association.  It was consistent with guidance from Swimming New South Wales, Swimming Queensland, Swimming Australia and FINA, being the international body.  All of the relevant standards and guidelines were consistent with this being perfectly acceptable practice. 

That then leads to what the practice was, again accepting that is not going to be definitive by any means but it is relevant.  Diving in at the shallow ends of swimming pools for purposes of training and racing was something routinely done by children in pools throughout New South Wales and Australia, including for example in 50‑metre relay races where you dive in at both ends.  Without taking your Honours to it, at paragraph 110, the trial judge accepted that it was:

a common feature of swimming carnivals that seem to be reasonably common and at with which it can be inferred, trained coaches are involved.

The trial judge noted that diving in this manner was something the applicant had done hundreds if not thousands of times before.  Indeed, in the week preceding the terrible accident, her counsel conceded she had done it at least 50 to 60 times.  The trial judge found that diving in at the shallow end of this particular pool was common – that is paragraphs 52 to 55 of the trial judge’s judgment - and the Court of Appeal noted the evidence from Professor Blitvich, the plaintiff’s evidence, about the increasing popularity from the 1990s of the track‑start dive – it had become very common.  So standards all against it; practice entirely consistent with what occurred here.

Then one comes to the academic literature. My learned friends have accurately, with respect, summarised that.  If I can take your Honours to page 136 of the application book, in my learned friend’s written submissions, paragraph 23, they fairly and correctly note:

As at 2008 the published literature had not specifically considered the safety implications of the “track start dive” -

The literature had focused more critically on a different type of dive, the “scoop” or “pike” dive and your Honours will note, about eight lines in:

There was no published literature that compared the risks associated with the “track start dive” performed at the time of the incident to other similar techniques to analyse whether that type of “track start dive” had safety implications.

No published literature.  That has to be put in a context too, where his Honour the trial judge’s finding was not that the risk was diving in at the shallow end; it was the shallow end with the track‑start dive and that emerges clearly at paragraph 173 of the trial judge’s judgment at page 54 of the application book.  Your Honours will see:

Given the extent of diving into shallow ends of pools generally and the standards prescribed . . . I am not persuaded that there was anything necessarily unreasonable in Mr Critoph incorporating . . . in a training program for the Plaintiff diving at the shallow end -

including in relation to diving, but that is subject to what his Honour says concerning track‑start dives.  So, in effect, what his Honour found is that there was an elevated risk for track‑start dives, particularly perhaps with some issues about coping, but that was not supported by any literature, any standard or any practice.  The only evidence on which the plaintiff could rely was that of the two experts called by the plaintiff, namely Professor Blitvich and Mr Sweetenham. 

Now, one has to understand something about each of those experts.  Professor Blitvich, as your Honour the Chief Justice noted, had been consulted in relation to both Standard SU22 of the Royal Lifesaving Society and the Department of Education’s booklet which had picked up that standard.  There was no dissent in those documents.  There was no public indication whatsoever that her personal view, if indeed it was her view at the time, was contrary to the standards with which she was associated.  How was anyone to know, Mr Critoph or anyone else, that her personal view had moved on?  As to quite when it might have moved on, that was not clear either.

As for Mr Sweetenham, he was an elite international level swimming coach.  Indeed, if your Honours note what the primary judge said about him at page 35, paragraph 123, he was:

extremely well qualified to express views on the safety aspects of the activity . . . It was not challenged that he had been at the pinnacle of Australian swimming since 1981 or before and among the top 3 or 4 world experts in track and field starts.

So he had, and the judge accepted, a particular expertise in relation to this area.  With great respect to my client’s swimming coach, Mr Critoph, there is no reason to think he was anywhere in the same league.  His Honour the primary judge’s judgment is then inconsistent in effect attributing the level of Mr Sweetenham’s knowledge – again, no indication that had ever been publicised, by the way – to an ordinary swimming coach. 

If your Honours go to page 31, paragraph 109, the last four and a half lines, much of the expert evidence was about whether my client was negligent because it did not require there be a trained coach supervising the swimming. His Honour rejected that and if your Honours look at the last four and a bit lines:

While I accept that if one of the witnesses who were called was that trained coach, the plaintiff would not or might not have been permitted to dive as and where she did, the evidence clearly does not persuade me that all or indeed most coaches or careful coaches would have made any difference.

If that is so, if for most coaches or careful coaches would not have stopped the diving taking place, the track‑start diving taking place, Mr Sweetenham might have but why should my client, through Mr Critoph, be fixed with the level of knowledge of Mr Sweetenham and the change of mind of Professor Blitvich.  And as for Mr Sweetenham’s views, if your Honours look down the page at paragraph 111:

A further and extreme example of evidence I reject is provided by Mr Sweetenham’s view that, “all swimming should be under the guidance of a qualified coach”, that he would “never allow a parent to supervise” swimming and “there is an obligation on every parent to pay for a professional swimming coach to supervise a child ‑ ‑ ‑

FRENCH CJ:   The focus here is on racing dives in the shallow end by a 12‑year‑old, is it not?

MR KIRK:   Yes, your Honour, but all the plaintiff’s case in the end foundered on was the expert evidence of Professor Blitvich, never previously expressed or at least no evidence of that, and the expert evidence of Mr Sweetenham.  Mr Sweetenham held a range of extreme views and it was not just me who says so.  Your Honour will find a number of criticisms of Mr Sweetenham’s ‑ ‑ ‑

FRENCH CJ:   He speaks of his councils of perfection, I think.

MR KIRK:   Yes, that is right, councils of perfection, and at paragraph 132 his Honour the trial judge said:

a number of his views were extreme -

The core problem that the Court of Appeal identified with the case as found by the trial judge is that yes, there was expert evidence but what was the link to show that those views should have been brought to the attention of my client, that my client should have understood that this was a risky activity and there was nothing. 

It was in that context that the literature played a particular significance because the literature was put in through Professor Blitvich and it was used to justify various of her opinions.  The literature did not support her opinion.  All the Court of Appeal did was analyse the evidence put in to support the Blitvich opinion to show it did not support it. 

What the case in the end comes down to is simply saying two experts, at least one of whom has extreme views, who have never publicly articulated these views, said there were risks.  They did nothing to explain how those risks should have been apparent to a school swimming coach and that was the core issue in the Court of Appeal’s finding.

The coping is really just the other side of the coin in relation to track‑start dive because it is the interaction between the two which seems to have influenced his Honour the primary judge.  There is also, with respect, some oddity in relation to the coping in that in the end the council which ran the swimming pool was held not to be liable even though it was its pool, its coping, the applicant had been there for a week beforehand doing these track‑start dives and no issue was ever raised there by the pool, and yet the pool was not held liable.  My client, a school over 100 kilometres away, with no actual member of staff present, is held liable in relation to that coping but the Council was not.

FRENCH CJ:   Your client knew that the applicant was going to be training there.  In fact, I think the coach had been present at that pool on a previous occasion, had he not?

MR KIRK:   Yes, I think that is right, at the previous Easter in 2007.  But again, one comes down with the coping to why should Mr Critoph have understood there was some problem with coping in association with track‑start dives where there was no reference in the standards, no reference in the literature?  What Mr Critoph was doing was standard practice consistent with all the guidelines and the literature.  It is just that two experts with extreme views thought it should not be done.

In relation to the second basis incidentally, the bellyflop basis, that was also not supported by the evidence and indeed, with great respect to the primary judge, seems to have been thought up in closing submissions.  There is no issue of principle which arises.  It is a fact case.  As with all these big tort claims, it is a tragic fact case, but what the Court of Appeal did was entirely consistent with established principles and they actually did what Fox v Percy requires them - they reconsidered the whole matter, took account of the facts very carefully and found that that key gap was just not reached.  May it please the Court.

FRENCH CJ:   Thank you, Mr Kirk.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I say that our learned friend’s submissions do seem to encounter some difficulty.  When one looks at what was said by the primary judge at page 58 in paragraph 184 and particularly going on to paragraph 185, because your Honours will see in paragraph 184 in the second sentence:

Nor do I ignore the various standards that permit diving into water at least 1 metre deep.  However, as Mr Sweetenham said, those standards seem not to have caught up (though the increase in depth now advocated . . . may now indicate the contrary) anmd as I have pointed out, they are concerned with only a limited field, not all aspects of competitive diving.  The evidence in this case indicated that a track‑start dive was attendant with more risks than a grab‑start . . . and it seems to me that a professional swimming coach was under an obligation to take account of those additional risks and not simply follow (limited) standards, particularly given the magnitude of the potential consequences.  A fortiori this is so, given that the Second Defendant was a school and the Plaintiff its pupil.

Then his Honour went on to say:

I take the view that, if engaged in teaching the track‑start dive, Mr Critoph should have been aware of the risks highlighted in what Professor Blitvich said without challenge was the “industry standard qualification” for swim teaching and published 5 or 6 years before the Plaintiff’s accident.  I would expect him to have had some

awareness also of the sorts of matters referred to in paragraphs 5.24 and 5.38 -

Your Honours will see then in the last sentence:

I would infer that as a professional coach, Mr Critoph knew or should have known of –

the function of the coping tiles and consequently:

the disadvantages of a pool without them.

Your Honours, it is not correct, with respect, just to describe what was said by Professor Blitvich and Mr Sweetenham as purely personal views.  They are in one sense, of course, but that is what you would expect expert evidence to be dealing with.  Nor is it right to say one can see a change of mind of Professor Blitvich.  Your Honours, if one looks at the bottom of paragraph 185 - we did not have the advantage of Mr Critoph giving evidence in the case and he would have been able to explain his state of mind.  Could I refer also your Honours to our reply at page 154 and in particular paragraph 2 of the reply. 

Finally, your Honours, our learned friend said well, this is a sad case, big cases always are and that is true.  It is true because they are not just commercial cases or cases involving money as such but rather, as in a case like this, money for life.  Your Honours, those are our submissions.

FRENCH CJ:   Thank you, Mr Jackson.  The Court will adjourn briefly to consider what course it should take.

AT 11.26 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

FRENCH CJ:   The Court is of the view that the prospects of success of an appeal are not sufficient to warrant the grant of special leave.  The application will be dismissed.  Do you seek costs, Mr Kirk?

MR KIRK:   Yes, your Honour.

FRENCH CJ:   The application will be dismissed with costs. 

The Court will now adjourn to reconstitute.

AT 11.29 AM THE MATTER WAS CONCLUDED