Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY and Anor

[2014] HCATrans 54

[2014] HCATrans 054

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S190 of 2013

B e t w e e n -

MINISTER FOR IMMIGRATION, MULTICURAL AFFAIRS AND CITIZENSHIP

Applicant

and

SZRNY

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 MARCH 2013, AT 10.42 AM

Copyright in the High Court of Australia

MR N.J. WILLIAMS, SC:   May it please the Court, I appear with MR B.D KAPLAN and MS T.M. DINH for the applicant.  (instructed by Sparke Helmore)

MR M.J. DARKE:   May it please the Court, I appear with MS N.A. ZERIAL and MS Z.C. HEGER for the first respondent.  (instructed by Dobbie and Devine Immigrations Lawyers Pty Ltd)

FRENCH CJ:   Yes, Mr Williams.

MR WILLIAMS:   The application raises one special leave question and that question is whether a primary decision which has been reviewed by the Refugee Review Tribunal in a finalised statement that sets out the decision and the reasons, which has been sent to the Secretary and ineffectually dispatched to the applicant, remains a decision which is subject to review by the Tribunal under Part 7.

FRENCH CJ:   I suppose my focus, Mr Williams – and I think you will address it though I would be grateful if you could just put it in the most succinct way you can – is to what extent are we dealing here with a transitional provision which has to be construed in its own context.  I know you have made reference to other uses, 60 other uses, but of course they may arise in relation to different contexts, and I think you make some reference to possible future transitional provisions using the same language.  Is that the sort of category of consequence that we are talking about here?

MR WILLIAMS:   No, your Honour, it is not about – it is not restricted to transitional provisions at all.

FRENCH CJ:   This particular one though concerns a criterion which was applicable to those whose decisions had not been finally determined by a certain date.  Is that right?

MR WILLIAMS:   That is so, but the ‑ ‑ ‑

FRENCH CJ:   24 March 2012, I think.

MR WILLIAMS:   That is so.  To step back for a moment to look at what the implications are, if I can do so briefly ‑ ‑ ‑

FRENCH CJ:   Yes, please.

MR WILLIAMS:   ‑ ‑ ‑ in answer to your Honour the Chief Justice’s question, the provision in question is at 85 of the application book and it is in 5(9) on page 85:

an application under this Act is finally determined when either:

(a)       a decision –

that is a primary decision –

that has been made in respect of the application –

for a visa –

is not, or is no longer, subject to any form of review under Part 5 or 7 –

Now, “subject to” here means the primary decision is exposed to or liable to or dependent or conditional on.  That definition focuses, as we put it, on whether the primary decision can still be changed.  Turning to the facts here, the Tribunal decision was deemed  – and this is on page 87 of the book – by section 430(2) to have been taken on the date of the written reasons.  Now, here that was 12 March, and turning to the following page, page 88, by 430A(3), the validity of the decision was unaffected by whether the notification obligations had been complied with.

So here the Tribunal in fact made a decision on 12 March and it was deemed by statute to have been made on 12 March.  It was notified to the Secretary on that date.  The Secretary was entitled to act on it.  Its validity was unaffected by the failure to notify the applicant.  It was unaffected by any jurisdictional error on that date of the Bhardwaj kind that might have entitled the Tribunal to recall it.  Yet it was rendered invalid by a failure to consider a provision that came into effect two weeks later.

Now, if that is the principle by which the section is to be construed, it will be equally applicable if a new claim is made two weeks later or two months later to the Tribunal, but before notification was sent in the specified way.  So, if that answers compendiously the question your Honour the Chief Justice put, it is of general application because of the construction. 

Moreover, if the principle which we think underlies the majority view is correct, the principle is that in order to ascertain whether a matter has been finally dealt with for various purposes, whether they be a statutory definition or otherwise, it is necessary to look at whether the critical elements or the core functions of review have all been completed, then ‑ ‑ ‑

CRENNAN J:   Well, one could accept for argument’s sake that notification is an important aspect of the process, but perhaps the real question here is when is the decision final?

MR WILLIAMS:   Yes, that is the matter on which we focus.  We go to section 415, which is back on page 86, to look at what the relevant powers were that were being exercised.  Really there in 415(2) in the familiar form, it is a de novo review provision but they are not that much different to AD(JR) – “affirm”, “vary”, “set . . . aside and substitute”, or (c):

remit the matter for reconsideration in accordance with such directions ‑ ‑ ‑

CRENNAN J:   Do you characterise the service on the Secretary as a publication?  Is that the main point?  I was not sure whether that is what Justice Buchanan had in mind?

MR WILLIAMS:   It certainly is a publication in the ordinary sense.  The primary way in which the Minister puts the point is that by reason of the statutory provisions – and the case does not turn on this – once the reasons have been recorded finally in writing by the member then there is a triggering of the obligation in 430 to return the papers, for example, 430(3), return the papers to the Secretary, and a triggering of the obligation to notify, and at that point the primary submission is that the decision is complete and made.  Now, that is inconsistent with ‑ ‑ ‑

CRENNAN J:   That is pre‑publication.

MR WILLIAMS:   That is pre‑publication, but it does not ‑ ‑ ‑

CRENNAN J:   Whereas on the facts of this case, the dissenting judge was actuated, was he not, by the fact of publication to the Secretary?

MR WILLIAMS:   Yes, and it is that difference to SZQOY to which his Honour was a party in separate reasons ‑ ‑ ‑

CRENNAN J:   Are you wanting to contend before us both those positions, that is to say, there is finality before publication to the Secretary and finality after publication to the Secretary, but not requiring necessarily publication also to the applicant?

MR WILLIAMS:   We do put both views because it is a question of construction and both views should be put before the Court so that the Court can resolve the question of construction, but it does not ultimately depend upon the correctness of our primary position.  The ordinary view is that once a decision is communicated – and this goes back through quite old law – once a decision is manifested, at least outside the office or mind of the decision‑maker, then it is complete.

CRENNAN J:   So once you have got publication to the Secretary if, for argument’s sake, the applicant put in supplementary submissions, the decision‑maker would be functus?

MR WILLIAMS:   Yes, not least because practical consequences begin to flow immediately from publication.  If the decision were adverse, the Secretary might seek review or, putting it the other way around, if the Secretary were not notified but the applicant were ‑ ‑ ‑

CRENNAN J:   Time limits would run from publication, would they?

MR WILLIAMS:   They do run from publication but they are, as the Court knows, extendable in terms of judicial review.

CRENNAN J:   Yes, particularly if an applicant has not received a copy because of an address issue or whatever.

MR WILLIAMS:   There could be no question in such a case, so that is not a matter that bears significantly on construction.  But there are other consequences in terms of the Act that flow.  There are removal obligations.  Our friends of course call them in aid to say, well, there might be a process of removal commenced before the applicant even knows, there are practical reasons why such a process would not get very far.  But there are also obligations – we refer in the written submissions and referred below to the provisions that are set out in the legislation, the provisions of section 336F.  At page 5 of the legislation and cases folder, 336F authorises in subsection (1) disclosure of identifying information for various purposes, a variety of purposes.  But in subsection (5), if:

(a)the person to whom the identifying information relates has requested or agreed to return –

Well, that is not relevant, or –

(b)the person is an applicant for a protection visa, and the application has been refused and finally determined –

Now, that picks up 5(9) and the construction of the majority - then that is, in effect, an authorised disclosure.  That becomes relevant if one goes back to 336E which his set out on page 3 of the book.  There is a permitted disclosure.  Section 336E(2)(c):

is authorised under section 336F and is for the purpose, or one or more of the purposes, for which the disclosure is authorised –

That is a carve‑out from a criminal offence provision so if the Secretary is wrong about whether the notice has been sent by the Tribunal to the right place, then potentially that triggers that provision.  But aside from those direct implications in the Act, there are, we say, potentially wider implications for other statutory schemes where questions arise about when a tribunal is no longer ‑ ‑ ‑

FRENCH CJ:   We might hear from the respondent.  Yes.

MR DARKE:   Your Honours, we submit of course that the application for special leave should be refused and we advance that submission on two grounds:  first, the decision of the majority below is clearly correct; and, secondly, that an appeal to this Court would not give rise to any question of public importance.  Can I start with the first of those grounds?

The precise question which the court below had to resolve was whether as at 24 March 2012, despite the Tribunal’s failure to give the first respondent notice of its decision in accordance with section 430A of the Act, the delegate’s decision on his application for a protection visa was no longer subject to any form of review under Part 7 of the Act. 

Now, the majority below held that that question was to be determined by asking whether notifying a review applicant of its decision on a review was an element of the scope and content of a Part 7 review by the Tribunal.  Your Honours will see that, if I could take your Honours to it, at page 109 of the application book, paragraph 85, where their Honours say:

The phrase “any form of review under Part… 7” . . . invites attention to the question whether the notification of the Tribunal’s decision to the review applicant is an element of the content and scope of a Part 7 review.

Justice Buchanan, who was in the minority, took a similar although somewhat narrower approach involving an identification of the essential functions to be carried out before a Part 7 review could be regarded as complete.  Your Honours will see that at paragraph 35 of the judgment at application book 93.  Your Honours will see that his Honour Justice Buchanan distinguishes between when:

a member of the RRT become functus officio . . . and the finalisation of other essential functions before a review is regarded as complete.

All members of the Full Court rejected the Minister’s contention that a primary decision in respect of a protection visa is no longer subject to any form of review under Part 7 once the Tribunal has made a decision on the review which is not able to be changed or, in other words, once the Tribunal has become functus.

FRENCH CJ:   Do you accept that – and this may be implicit in what you have said – that a decision can have been finally determined – review can have been finally determined notwithstanding that the question of functus officio is not – the question of whether they are functus officio is not adequately answered?

MR DARKE:   We submit that they are two separate questions and all members of the Full Court below proceeded on that footing.  In relation to Justice Buchanan, your Honours will see that made clear at paragraphs 35 and 36 of his judgment, pages 93 to 94 of the application book.  At paragraph 35, as your Honours see, he distinguishes between the RRT becoming functus officio and the question of construction, and he does the same thing in paragraph 36, perhaps more clearly, in saying that:

The doctrine of functus officio does not help in the present case to decide whether the decision of the delegate was, or was not, still subject to any form of review after its decision was published ‑ ‑ ‑

FRENCH CJ:   So you say, in effect, the review process is not complete until actual notification?

MR DARKE:   That is exactly so.  The majority took that approach as well, both by distinguishing the question of construction under section 5(9) and the doctrine of functus officio at paragraph 49 of their reasons for judgment - that is on page 99 of the application book – and again drawing a distinction of that kind at paragraph 88 on page 110, and in the way they framed the relevant question in terms of the scope and content of a Part 7 review at paragraph 85, to which I have already taken your Honours.

CRENNAN J:   Leaving aside functus officio and any correlation, what about the principle of finality and how that is affected by publication of a decision?

MR DARKE:   Well, the question of finality really goes to the issue of whether or not the Tribunal can change a decision it has made.

CRENNAN J:   Is it part of your contention that post publication to the Secretary the decision could be retrieved and altered?

MR DARKE:   It is not necessary for me to go that far to succeed but if pressed, yes, we would submit that.  We submit ultimately the question that the court has to deal with in construing section 5(9) is simply to define the scope and content of review under Part 7 of the Act.  We say once that has been done that a primary decision remains subject to review until that process has been completed.  So, if it is an element of the scope and content of a review under Part 7 of the Act that the review applicant be given notice of the Tribunal’s decision, then the review is not complete, even if the decision of the Tribunal can no longer be changed ‑ ‑ ‑

CRENNAN J:   So you are not contending for actual notice, are you ‑ ‑ ‑

MR DARKE:   No.

CRENNAN J:   ‑ ‑ ‑ because a decision could remain in limbo if that were part of your argument.

MR DARKE:   Yes, that is not part of my argument and it is not something that arises in this case.  The fact of this case was that the first respondent had not had actual notice or notice in accordance with section 441A of the Act as at 24 March 2012 and it is only the position as at that date that matters for the purposes of this case.  So, your Honours, that is our simple contention and if that be right, and all members of the court below accepted that it was, no question of functus officio arises here, and the more interesting questions that the Minister submits this case would raise if it came on appeal to this Court simply do not arise.

Now, we say that the approach that the Full Court below took in distinguishing between the construction of section 5(9) and the doctrine of functus officio was plainly correct.  A review under Part 7 is a review of a primary decision.  That is clear from section 414 of the Act.  So one cannot have a Part 7 review without a primary decision.  While ever a Part 7 review is ongoing, in our submission, the relevant primary decision remains, as a matter of ordinary English, subject to that review.

CRENNAN J:   What about the point about validity - validity is not negatived by the failure to notify which, on your analysis, is part of the process.  You would not talk, would you, about the validity of an incomplete decision, or one that is subject to retrieval and further ‑ ‑ ‑

MR DARKE:   Well, again, that goes to the question of whether the decision is capable of being changed, not the question of whether the review process has come to an end.

CRENNAN J:   I suppose I am asking you does that not bear, in terms of a construction exercise, on the proposition that notification is an essential part of the process and one does not have a final decision until notification, not actual, but an attempt at notification has been done?

MR DARKE:   One does not have a completed review process until notification has occurred.  It is a separate question whether or not one has a final decision prior to notification.

CRENNAN J:   What about a valid decision.

MR DARKE:   It is a separate question whether one has a valid decision prior to notification occurring and that question does not squarely arise in this case.  The provision that your Honour is referring to is section 430A(3).  That provision does not speak in terms to the question of when a review is finalised, when a review is finished or complete.  It speaks only to the question of whether or not a decision is valid despite the fact that notice of it has not been given in accordance with 430A(1) and (2).  So what the section does is that it immunises a decision, of which notice has not been given in accordance with 430A, from challenge to its validity on that ground alone.

But in this case that question does not arise because the Minister accepted that the decision of the Tribunal was affected by jurisdictional error if the review had not been finally – if the delegate’s decision had not been finally determined because the review was not complete as at 24 March 2012.  We do not attack the decision of the Tribunal on the basis that we were not given notice in accordance with 430A.  We attack that decision on the basis that the review was not finally determined as at 24 March 2012.

CRENNAN J:   No decision by the relevant date.

MR DARKE:   Yes, so that, and it is common ground, this Court would not get into it if the case were taken the decision was affected by jurisdictional error.  We are all agreed that ‑ ‑ ‑

CRENNAN J:   I think it has been put as appeal construction issue.

MR DARKE:   It has been put as appeal construction issue.  No question of jurisdictional error arises assuming we are right on the question of – no matter who wins on the question of construction.  We say that 430A(3) really does not loom large in the appeal at all.

CRENNAN J:   Except of course in relation to what this Court has said about the importance of context, not to deny the importance of text, of course.

MR DARKE:   Yes.  We accept the importance of context and to some degree we rely upon it by pointing out that certain provisions of the Act would not operate effectively if a review – or a primary delegate’s decision, I should say, a primary decision, could be finally determined without notice of the outcome of the review process having been given to the applicant on the review.  We submit it is not a surprising conclusion at all that the process of review under Part 7 of the Act does not conclude, is not completed, until the applicant who has commenced the review has been given notice of the Tribunal’s decision on the review, and that really is what the majority held.

FRENCH CJ:   The constructional point really is not as to the meaning of “finally determined”.  It is as to the definitional provision, that is, decision is no longer subject to any form of review.

MR DARKE:   Quite so.

FRENCH CJ:   So the point is at what point is the decision no longer subject to any form of review.

MR DARKE:   Exactly so, and as to that we say a review is a review of a primary decision.  The decision remains subject to review until the review is complete.

FRENCH CJ:   It is not complete until ‑ ‑ ‑

MR DARKE:   Until the notification requirements have been met, and we say that does not raise any of these larger questions that the Minister seeks to agitate.

FRENCH CJ:   So you say review itself does not mean – is not to be equated to decision, but to the process?

MR DARKE:   No, precisely.  We say exactly that.  We say what one has to identify in construing section 5(9) is what constitutes a review under Part 7 of the Act.  One does that by going through and examining the terms of Part 7 to identify what such a review entails, and that is, as the majority put it ‑ ‑ ‑

FRENCH CJ:   Well, there are all kinds of processes involved - hearings and invitations and answers and all the rest of it.

MR DARKE:   That is right.  Yes, that is what constitutes a review under Part 7 of the Act.  The majority reviewed the key provisions of Part 7 at paragraphs 55 to 83 of their judgment.  Your Honours will have seen that at pages 101 to 108 of the application book.  They engaged in that exercise of identifying the content and scope of a Part 7 review particularly at paragraphs 84 to 106 of their judgment at pages 108 to 115.

Their Honours’ reasoning in those parts of their judgment is, in our respectful submission, unimpeachable, and it led them correctly to the unsurprising conclusion that notifying a review applicant under section 430A of the decision on review is an element that is part of the scope and content of a Part 7 review.  Indeed, the correctness of that conclusion, can I say, appears to be common ground.  If your Honours would turn to page 144 of the application book, your Honours will see in paragraph 7 of the Minister’s reply he says – this is about midway down:

It has never been a part of the Minister’s case that the Tribunal’s obligation to notify interested parties of its decision is not a part of the review process under Part 7 of the Act.

He refers then to paragraph 21 of his summary of argument which appears at page 127.

FRENCH CJ:   So he says the process of review may end beyond a point at which the decision of the delegate is no longer subject to review?

MR DARKE:   Yes, but section 5(9) operates by reference to - paragraph (a) operates by reference to when the delegate’s decision is no longer subject to review.  So ultimately, given those correct concessions, what the Minister must submit is that a primary decision ceases to be subject to any form of review under Part 7 even though the review of that decision being conducted by the Tribunal under section 414 is not complete.

FRENCH CJ:   That is what I just put to you.  In other words ‑ ‑ ‑

MR DARKE:   Yes, exactly.

FRENCH CJ:   Yes, they are not coterminous.

MR DARKE:   No, they are not.  The Minister’s contentions, that is, that a primary decision is no longer subject to review under Part 7 even when the Tribunal’s section 430 statement has been recorded, and the alternative of that occurs when the statement is sent outside the Tribunal, both require acceptance of that submission, that is, because neither of those points marks the end of the review process.  That is common ground.  Your Honours, that is what I wanted to say about the issue of whether or not this matter raises – whether the decision below is attended by a sufficient doubt.

The second issue is whether the appeal to this Court raises a question of public importance.  Could I just deal with that briefly?  Once one accepts that the question of when a primary decision is no longer subject to any form of review is different from that of when the Tribunal becomes functus officio, it is apparent that an appeal would not raise any question about the circumstances in which the Tribunal can change a decision that it has made.  All that is left, we submit, is a confined question of construction of one part of section 5(9) raised by the somewhat unusual circumstances of this case, and that is not a question of public importance, in our submission.

We also rely on the introduction of the Migration Amendment Bill 2013 which your Honours will have in the joint bundle of authorities.  Could I just briefly address your Honours on that?  If your Honours go to page 51 of the bundle, your Honours will find the commencement of the Bill.  If I could then ask your Honours to turn through to page 64, the effect of the amendments which the Bill if passed would make relevantly include the following.

In item 25 a written statement under section 430 would now record “the day and time the statement is made”, that is, “unless the decision is given orally”.  If “the decision is given orally”, it would record “the day and time the decision is given orally”.  Section 430(2), which is a deeming provision for when decisions are made or taken to be made, would operate by reference to “the day, and at the time, the written statement is made”.  That is in the case of a non‑oral decision.

Going across to item 29 dealing with section 430D, in the case of an oral decision, that would be “taken to have been made . . . on the day and at the time the decision is given orally”, which by reason of the amendment given effect by item 25 would be the day and time recorded in the written statement as the day and time when the decision was given orally. 

Now, those amendments then feed into an amendment to section 5(9) which your Honours will find on page 59 of the joint bundle.  So the definition of “finally determined” is to be amended.  The definition that currently exists in section 5(9) will remain as it is, but a new subsection (9A) will be added dealing with an application – in respect of which an application has been instituted under Part 7 of the Act.

FRENCH CJ:   What is the status of this Bill?

MR DARKE:   The Bill has passed the House of Representatives and has been introduced to the Senate.  It has not passed the Senate.  We appreciate that one cannot be certain as to whether or not the Bill will pass and that that affects the extent to which the Court can have regard to it, but we do draw to the Court’s attention that if the Bill passes it will entirely eliminate the question of construction raised by this case and that is a significant matter, we submit, in considering whether the case does raise a question of general public importance.  If your Honours please, those are our submissions.

FRENCH CJ:   Thank you, Mr Darke.  Yes, Mr Williams.

MR WILLIAMS:   Your Honours, to deal first with the matter last dealt with, whether or not the Bill becomes law is a matter of speculation for the future and the Minister’s application is based on the law as it is now rather than what it might or might not become.  But if the Court were to go to page 90 of the book the material that the respondent wanted included in the book includes the speech of the Minister and, if anything, that reinforces the question of general or public importance.  On page 90, right‑hand column at about point 5 - first of all from the foot of the left‑hand column there is a dealing with the decisions in question here, but then at about point 5:

These findings cause potential difficulties and risks in the administration of the act.

Reference to section 198:

These amendments are critical, as they will remove any doubt as to when the decision ‑ ‑ ‑

CRENNAN J:   What about, Mr Williams, the point made in relation to your reply at page 144 of the application book, paragraph 7?  This is the distinction between – well, what has been pointed to is the concession that is put that the notification is part of the review process.  How does that stand with the idea that the construction requires an identification of a – when the decision is no longer subject to a form of review?  This feeds into the idea that what one looks at is the review process rather than the decision.

MR WILLIAMS:   It was common ground in the court below, as I read the judgments, that the wider category of review by the Tribunal and the processes of review on any view, both majority and dissentient below, went wider than what is caught by section 5(9), so that much was common ground.  But the critical point is context.  In 5(9) the statute is asking when is a matter finally determined, and for that purpose it says when is this primary decision no longer subject to - we say again, liable to, susceptible to, conditional or dependent upon - review by the Tribunal, and the critical part ‑ ‑ ‑

CRENNAN J:   Something may turn on the distinction between substantively finally determined and procedural aspects or something of that sort; I do not know.  That is to say that notification may be part of - a very important part, very important procedural aspect, as distinct – and there may be a separate idea that the decision is finally determined in a substantive sense at a certain point, as on publication or whatever.

MR WILLIAMS:   We accept that notification is important.  We do not dispute that for a moment, but when one is asking whether the decision has been finally determined, whether it is subject to review, we go back to context and consequence in the way that I did earlier.  In a sense we have a valid decision on 12 March, the validity of which is unaffected by the failure to notify, and somewhere along the way that becomes invalid because it is sent to the wrong address.

CRENNAN J:   Are you saying part of the review process is not complete but, on your construction, that the decision is no longer subject to any form of alteration or review?

MR WILLIAMS:   That is our contention.  The review of the primary decision – a primary decision is no longer subject to review in the critical sense, 415(2), the things the Tribunal can do to it.  It can no longer be changed or varied or set aside or remitted.  So in a critical sense it is now a final decision, even though machinery processes of review remain to be completed.  Bearing in mind the purpose, the statutory purpose of this provision, which is to determine when a decision is sufficiently final that it can be acted on by the parties, triggering review, the date of decision - I think contrary to what I might have said to your Honour Justice Crennan in‑chief, the date of decision is the date when the time period runs.

CRENNAN J:   Yes.

MR WILLIAMS:   But when one has a written record of a decision and reasons notified to one of the parties, then there can be a judicial review application.  It would be intolerable if it could be changed - if the reasons could be changed in a valid decision to meet criticisms in an application that is filed.  There might be decisions taken by the Minister of the kind that I have indicated – sorry, by the Secretary of the kind that I have indicated, having consequences under 336F and E, and there might be other consequences such as the commencement of the removal process. 

For these reasons, finality is critical and that is what this definition focuses upon, not at the wider question of whether in a more general sense the RRT might have some more work to do in notifying the outcome of the now complete process of review, of determining whether the decision can or should be set aside or varied in some way.

FRENCH CJ:   Just turning to your draft notice of appeal, is ground 4 argumentative or does it make some separate point?

MR WILLIAMS:   Your Honour, I apprehend that the grounds in the notice of appeal in a sense all make the same central point of construction for which I have been contending.

FRENCH CJ:   Which is really ground 1?

MR WILLIAMS:   Yes.  Well, 1 to 3 really put it more compendiously, but I doubt that much separate attention would be given to any particular ground.  There is one point of construction at the heart of the case.

FRENCH CJ:   If special leave were to be granted, would the applicant be in a position to undertake to pay the costs of the special leave application and appeal in any event and not to seek to disturb the costs already ordered?  The Minister of course seeks this, as it were, as a test case of some importance.

MR WILLIAMS:   The orders sought in the draft notice of appeal are to that effect, your Honour, at page 122.

FRENCH CJ:   I see, yes.  It did not seem to be reflected in the submissions.

MR WILLIAMS:   No, I noted the same point myself, your Honour, but the answer is there on page 122.

FRENCH CJ:   That can be – we can take that as an undertaking that they are the orders that would be sought?

MR WILLIAMS:   Yes.

FRENCH CJ:   Yes.  There will be a grant of special leave on that condition and I anticipate it would not take more than half a day, would it?

MR WILLIAMS:   No, your Honour.

FRENCH CJ:   Mr Darke?

MR DARKE:   No, I do not think so.

FRENCH CJ:   All right, thank you.  The Court will now adjourn briefly to reconstitute for the next matter.

AT 11.20 AM THE MATTER WAS CONCLUDED