Mitsubishi Motors Australia Ltd & Anor v Begovic

[2023] HCATrans 15

[2023] HCATrans 015

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne  No M56 of 2022

B e t w e e n -

MITSUBISHI MOTORS AUSTRALIA LTD (ACN 007 870 395)

First Applicant

NORTHPARK BERWICK INVESTMENTS PTY LTD (ACN 075 238 121)

Second Applicant

and

ZELKO BEGOVIC

Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 17 FEBRUARY 2023, AT 12.30 PM

Copyright in the High Court of Australia

GAGELER J:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR B.W. WALKER, SC appears with MR. B.M. GIBSON for the applicant.  (instructed by Thomson Geer)

MR C.A. MOORE, SC appears with MR. J.T. GOTTSCHALL for the respondent.  (instructed by Shine Lawyers)

GAGELER J:   Mr Walker.

MR WALKER:   May it please your Honours.  At pages 153 and 154 of the application book, your Honours will see the stipulation by the Motor Vehicle Standards Act 1989 (Cth), which turns upon, among other things, the notion of a “nonstandard” road vehicle, which is one “not complying”, as section 5 goes on to say, “with national standards”. National standards are involved in the test as to whether a vehicle, not surprisingly, is nonstandard, which is the expression used in section 14, that you will see on page 154. That creates an offence. It is an offence with respect to supply to the market of a new vehicle. And it is for those reasons, in our submission, that what appears to be a critical part of the reasoning against us in the Court of Appeal is surely wrong, and ought to be corrected by this Court.

Could I take your Honours, please, to page 136 of the book, albeit under the heading “Misleading or deceptive”, their Honours are there continuing to deal with matters of characterisation of the conduct against which the putative breach of section 18 of the Victorian Consumer Law was alleged and found against us.  In paragraph 114, picking up by way of an observation a matter that had been thoroughly argued at all levels below, their Honours concede what they describe as “much force” in the argument that:

the performance of a statutory obligation, without more, cannot meaningfully be said to constitute misleading or deceptive conduct.

That is surely an understatement.  The next sentence is, with respect, perhaps not quite so secure:

At least, the general prohibition on engaging in such conduct would have to be read in the light of the legislative judgment, in the public interest, that the conduct must be engaged in.

Well, yes, to put it mildly.  It would have to be read in that light and the two provisions in question posited by such a comparison would need to be reconciled.  Their Honours found that unnecessary because of the reasoning in paragraph 115.  Now I appreciate this is the last brick in the wall against us – and I have yet to come to the question of the representation conveyed by the label – but it is one that, in our submission, shows an error which needs correction.

Remembering that section 14 of the statute made it an offence not to supply to the market something non-standard – and remembering that compliance with a standard required affixing of the stipulated form of label, following a stipulated form of test – one sees in paragraph 115 that the so‑called wider representation is one which, their Honours say, presents no such conflict, contradiction or anomaly because, and I quote:

A manufacturer and dealer are not under a legal obligation to offer any given vehicle for sale.

So that, notwithstanding that the prohibition in question is one which is obviously involving offering for sale, that is, supplying to the market, their Honours have said that whatever is conveyed by the statutorily compelled conduct in affixing this label is one which does not involve any conflicts because, after all, such manufacturers and sellers can simply withdraw from the market.

EDELMAN J:   Mr Walker, does that characterisation of conduct go back to paragraph 78, which is where the Court of Appeal seems to be saying that although the applicants confined the relevant conduct to the affixing of the label, the conduct seems to be characterised as the fixing of the label and the offering for sale with the label affixed?

MR WALKER:   Yes.  In paragraph 78 the description the Court of Appeal applies is:

affixing of the label to the vehicle and then selling it.

EDELMAN J:   Was it ever argued against your clients that the relevant conduct could be the affixing of the label and selling it with the omission to provide any further information?

MR WALKER:   No, largely because the only further information, as we understand such a construct, would be to contradict elements of the stipulated label.  Now, that is speculative on my part ‑ ‑ ‑

EDELMAN J:   Or to qualify it?

MR WALKER:   Well, yes, but qualification, of course, is in the eye of the beholder as to whether it is innocuous or not, that is, would represent a subversion of the plain legislative intent that there be a label affixed concerning that matter which we would submit could not be qualified in any material way by any individual manufacturer saying, in effect, look, this is a compulsory notice; we lobbied against it; we think it is silly; it is apt to mislead in itself, and this is what we believe.  Now, not surprisingly, that has never been argued against us, or anything like that.

STEWARD J:   Mr Walker, is it your case that the distinction between affixing the label and selling the car has a degree of artificiality about it, given that, by section 14 you are only affixing the label because you are supplying the car to the market?

MR WALKER:   Yes, emphatically.  I note the very passage in paragraph 78 to which my attention has been drawn commits what, in our submission, is a rather bathetic attempt to describe a distinction and utterly failing.  The second sentence says:

The applicants appeared to confine the relevant conduct to the affixing of the label to the vehicle and then selling it.

The next sentence commencing “However” concludes with emphasis on the expression “for sale”.  Now, with respect, there is no difference between fixing the label then selling it and affixing the label being presented for sale.  They are exactly the same conduct, and they are a conduct which is intended to be regulated by section 14.  Now, that is a highly specific provision of what might be called a highly precise and concrete obligation, fixing the label which must accurately convey the test properly conducted ‑ ‑ ‑

STEWARD J:   Mr Walker, do you say that a practical consequence of this decision is that every dealer and/or manufacturer must individually test each car for sale to ensure that it is in conformity with the label?

MR WALKER:   That is one of the possibilities that, were this decision and its reasons remain the law, would no doubt need to be considered anxiously in C‑suites in both overseas countries of manufacture as well as in this country.  It has a massive implication, in particular, arising from a case which did nothing to explore the order of accuracy or margin of error, or what might be called variability, in the observations by engineering science of the performance of a complex entity such as an internal combustion engine.

In other words, you cannot proceed, and the Court of Appeal could not proceed on the basis that, were every one of a designated model – if every example of a designated mode, hundreds of thousands, perhaps – put through the mill of the standardised testing they would – let alone could sensibly be understood to be represented as likely to – produce the same result.  There will be, no doubt, a range, sometimes called a margin of error or an order of accuracy, or, probably more accurately, a scatter graph which will give you the acceptable median, average, or whatever is stipulated by the law.

Now, it means, of course, that the convenience of one example of a model, which is what is stipulated by the standard – the standard does not stipulate that every vehicle has to be tested, far from it – and one can imagine that in the governmental regulation of commerce the addition of that kind of expense and trouble would be a powerful reason of policy to opt for what I am going to call the sampling approach regulated by the very detailed protocol.

Now, their Honours in the Court of Appeal call that in aid for a quite different purpose, but the premise of their approach is correct.  Namely, that there is something the Parliament could sensibly regard as usefully conveyed to consumers considering whether to buy an example of a particular motor vehicle model by having conveyed to them the outcome of a standard test, correctly applied and accurately reported, in this label.  A test which is required to be performed one item, not on everyone.

And so, a design feature of this form of consumer information is entirely superseded, overturned, removed by one of the possible responses in the market to this decision.  Namely, we either take the risk that somebody will perform testing after they have purchased the car and showing a discrepancy between their vehicle and the label, or – in order not to behave contrary to section 18 – we will in fact test every vehicle and only sell those which are acceptably within an acceptable margin of error for the affixed label.

Now, those are very large matters with very large commercial and regulatory implications.  They are, in our submission, only now needing to be considered because of the most uncommercial and, in our submission, implausible reading of what I will call the wider, or extended, representation that the Court of Appeal upheld in order to render my clients liable.

Could I remind your Honours of the way in which that reasoning concluded?  It is on page 135 of the application book.  It starts, with great respect, in paragraph 107, with something of a straw man.  The view is expressed that the relevant consumer:

would not consider the fuel consumption figures . . . to be confined to a test vehicle and irrelevant to the vehicle bearing the label –

“Irrelevant” is absolutely not to the point and the evident policy behind section 14 and the stipulated label and the supportive protocol makes plan there is an intended common sense relevance, no doubt supported by engineering of a kind about which there was no evidence before any of the courts or Tribunal below.

Our submission was not about “irrelevant” but rather that the label says what it says, and expressly – as your Honours will have seen in the version that is reproduced on page 137 – expressly directs that hypothetical consumer’s attention to what might be called the “relation” between the tested vehicle and the vehicle under consideration for purchase by a consumer.  I do not know if your Honours are able to read it in the reproduction and in the font size but it relevantly stipulates that the vehicle was “tested in accordance with” the relevant Australian design rule.  Then, importantly:

Actual fuel consumption and CO2 emissions depend on factors such as –

that is, not confined to:

traffic conditions, vehicle conditions and how you drive.

It is to be remembered that the implicit but utterly unsupported suggestion in parts of the Court of Appeal’s reasoning that the respondent’s vehicle did not comply when it was brand new – that is, did not produce the same test results – comes on the basis of an understanding of material produced by a test that it may be accepted was sufficiently conducted in accordance with a protocol, but of that vehicle after 50,000 kilometres on the road and after two years.

In our submission, at a glance one can see that that is an entirely inadequate basis upon which, again, in a concluding brick in the wall against us, to have ever held that there was misleading and deceptive conduct.  But in our submission, there is a far more direct and appropriate way to deal with the important issues of commercial regulation and statutory interpretation which this case gives rise to and which, in our submission, the Court of Appeal has erroneously addressed and decided.

STEWARD J:   Just before you go there, Mr Walker, was there any evidence of any other representations made by Mitsubishi itself independently about fuel consumption for this car, say, in a glossy brochure?

MR WALKER:   No, and that is no accident.  I can say that about a motor vehicle case.  Obviously, at one’s peril, would one do anything to subvert test results, but we, of course, look at the other side of that same dilemma for a regulated trader.  And that is that being held to the test results for the particular vehicle selected for the test, and the results of which are then required to be declared on the label – being held to that as a warranty is not only an issue alien to this case, but also is plainly inappropriate concerning either the notion of, at the terms of a contract, or most importantly, what we would call the attribution to us of a representation required by a statutory label.

STEWARD J:   Can I ask a related question of fact?  On the label, it says at the bottom: 

More information at there any evidence about what you would find if you went to that website?

MR WALKER:   Yes, there is, your Honour, and I will see whether it can be quickly turned up.  If I may put it in general terms as follows, nothing in that further information gives any weight or colour to the notion that consumers can, or should, read the label as being in the nature of a warranty in relation to the car they are reminded to buy or a representation about what that particular motor vehicle would return by way of a test either there and then, brand new on the showroom floor, or two years later, or 50,000 kilometres later.

STEWARD J:   In any event, I take it that you would say that because it is directing the consumer to a government website that this is really a government representation.

MR WALKER:   Yes.

EDELMAN J:   And you are a Yorke v Lucas intermediary.

MR WALKER:   Yes.  And mercifully, of course, without any concerns about knowledge by us of any falsity.  Now, that is the last point I wanted to mention.  It is important to recall in terms of the merits and, relevantly, the prospects for our argument that, notwithstanding multiple recasting and different ways of putting to case at the various levels below by our opponents, ultimately there is no case whatever, and certainly no finding against us, that there is a syllable or digit in that label which was in any degree false, let alone more generally misleading and deceptive.

So, as to the express representations, your Honours can and should proceed on the basis that we had faithfully complied with the protocol, and we had accurately reported the results and the application of the label was in accordance with our obligations under section 14.  We, having no choice, because the Court would never consider we have a choice to disobey the

law, we only have the nonsensical choice not to trade.  And that, in our submission, when you are talking about the regulation of motor trade is a self-defeating and absurd way for their Honours to have concluded the reasoning about so-called attribution.

Your Honours, given the time, I would simply conclude by pointing out that apart from a pending class action, your Honours can, without much difficulty, have some notion of the financial consequences not just to traders but also to consumers, whose prices may be affected by costs, were this to be, as it, on its face, must be, treated as an exemplar of how motor traders will be held liable with respect to this label.

GAGELER J:   Thank you, Mr Walker.  Mr Moore.

MR MOORE:   Thank you, your Honours.  We say that the representation in the present case involved quite a straightforward case of misleading, deceptive conduct having regard to the evidence that was before the Tribunal that the particular vehicle that was sold did not have features that conformed to the label and in fact, had fuel consumption in the order of 30 per cent higher than the figures provided on the label.

GAGELER J:   Mr Moore, did Mitsubishi have any choice as to the figures that are included in the label, as to the actual numbers?

MR MOORE:   No.  But the whole point of the labelling scheme is so that there is, in effect, a standardised figure provided for a standard class of vehicles manufactured in a standardised way and, indeed – and I want to take the Court to this – the very procedure for obtaining the approval requires providing information that you have manufacturing procedures that will enable, in effect, the replicability of the figures onto other vehicles.

And so, in the same way that is commonplace in many aspects of commerce, when one goes to a supermarket and buys a packet of chips, it has a statement as to the salt content of the packet of chips.  We are used to the concept that manufacturing processes will provide us standardised output such that a statement on a label will be true of that particular product that we are purchasing, even though of course, consumers well understand that the particular packet of chips has not been tested, nevertheless, it would be manufactured in a standardised way that means that that representation is true of that packet of chips; or the energy guides that we get on appliances, or in this case, the fuel consumption labels that we have on vehicles.

EDELMAN J:   So, Mr Moore, that submission would mean that the compulsory label that is affixed to all food items as well would be one by which, if there were something in it that was incorrect, would render all retailers liable for misleading or deceptive conduct?

MR MOORE:   Yes, by design.  I mean the very nature of having - ‑ -

EDELMAN J:   The question seems to be getting larger and larger, then.

MR MOORE:   But simpler and simpler in another way, with respect, your Honour, because the very nature of providing this information to consumers is so that they have information about the products that they are purchasing.  Not some other test product that they are not purchasing, some sample, but the actual product that they are purchasing.

So, yes, there is an obligation on those people who provide those products to consumers to make sure that the statements made are accurate for the products that are being sold.  And so, it is not the case that the only choice for somebody is not to sell the product at all, as suggested by our learned friends.  The choice is to make sure that your product conforms to the description that is contained upon it.

EDELMAN J:   But you never ran a case that said that there was any omission by any conduct that either of the applicants engaged in to provide any further information – or even that they could have lawfully provided further qualifying or contradicting information.

MR MOORE:   No, your Honour, because it is not a case about contradicting information.  The case was that a representation was made about the quality of the product, and if that was incorrect – if that was incorrect, then it was misleading and deceptive conduct to engage in that conduct.

The very nature of the testing is to ensure that there is a representative vehicle that in fact representative of the cars that are going to be sold.  And so, the consumers are given something useful about the fuel economy of the vehicles.  In other words, the fuel economy that would be achieved under a standardised test by the vehicles being sold.

EDELMAN J:   So, what precisely do you say is the voluntary conduct that is engaged in by the – what precisely did the applicants do voluntarily, if it is not just merely the act of sale?

MR MOORE:   Well, it is the act of selling a vehicle that either does or does not comply with the statement on the label.  In other words, making sure that the vehicles that you are selling in fact have the properties that are stated.

STEWARD J:   Mr Moore, sorry – sorry, you finish your sentence.  Sorry, I beg your pardon.

MR MOORE:   I was going to say, if there was, for example, a class of cars – for example, a manufacturing batch that, for some reason, had much higher fuel consumption, then, of course, Mitsubishi could have obtained approval for a different label for those vehicles by submitting test results for the vehicles that had higher fuel consumption.  But certainly, having said this is the vehicle that represents this class of vehicles, this is the fuel consumption that is achieved by this class of vehicles, submitting that label, those figures, to the Commonwealth and, therefore, that being the label that was required to be placed – it is entirely reasonable to say that if you then sell a vehicle that does not comply with those figures, then you are making an incorrect statement about the qualities of the vehicle that you are selling.

STEWARD J:   Mr Moore, can I ask a practical question, going back to your earlier example.

MR MOORE:   Yes.

STEWARD J:   You are the owner of a country supermarket, and you receive your delivery of 20 packets of chips, which have on them a government mandated statement about how much salt and so on is in them, what are you supposed to do as a retailer?  Do you just have to accept that you are exposed to the risk of a differentiation between the actual contents of the packet of chips versus what is said on the government mandated label?  Or do you open each packet and test it, chemically, to see how salty it is – I mean, what are we going to do with retailers in this situation?

MR MOORE:   In a practical way, you would not do any of those things, but it would, in my submission, be a pretty remarkable – because you would have to rely upon the supplier and you no doubt have contractual relationships with the supplier and the like, and they might include for all sorts of provisions relating to the assurances about the nature of the products that are being sold.

For example, retailers also have to trust the products are not full of poisonous substances, or that they do not have botulism in them, or any one of a number of things that could expose the retailer to liability, that is entirely unremarkable.  But it would be, in our submission, a striking submission to say you could sell a drink that had, say, 30 grams of sugar with a label on it saying it had three grams of sugar, and can say, no, sorry, I have not engaged in any conduct that could be misleading and deceptive because this drink was required to have a label on it stating a particular thing.  There is a need to ensure that the products that are being sold under that label with that information comply with the description and that is an entirely unremarkable and normal aspect of modern commercial life.

STEWARD J:   What do you say to Mr Walker’s proposition that when you are fixing a label on a car mandated by government standards and you comply with those standards and it produces an accurate and correct result that really it is the government that is making the representation about the car, not the dealer or, indeed, the manufacturer?  This is a statement the government wants you to know about this car.

MR MOORE:   Yes.

STEWARD J:   It may still be misleading and deceptive but ‑ ‑ ‑

MR MOORE:   We would – I am sorry, your Honour, to cut across you.

STEWARD J:   No, go ahead.

MR MOORE:   We would say that is not an accurate characterisation of what is occurring.  The government has certainly required by legislation that if you are selling vehicles you have to contain – you have to affix to them a label that contains a statement about the fuel economy of those vehicles where that label has been prepared by reference to information that the manufacturer itself has provided about the fuel economy of a representative vehicle.

But it is, nevertheless, part of the regulatory scheme that manufacturers are making statements about the fuel economy of their vehicles.  Your Honour also asked a question before:  was there any evidence of any other material?  There was, in fact, evidence before the Tribunal of statements made in the specifications that are provided with the car that have the same fuel economy figures in them, and that is entirely unsurprising, we are all familiar with the fact that when car companies sell cars they want to include in them statements about various specifications, including, of course, a matter that people are very interested in, which is what is the fuel economy of my vehicle.  So, it was not a case where the only representation made was by the label, in answer to your Honour’s question.

STEWARD J:   Can I ask, was Mitsubishi sued in the Tribunal for those separate representations?

MR MOORE:   No, they were not, your Honour, but it simply highlights the point that the representation that is being made is a representation being made by the car company by affixing a label because, of course, that is material that is required to be provided to consumers about the nature of the vehicle.

But, in any event, the conduct is not simply the  making of a representation.  The conduct is the selling of the vehicle, which has certain characteristics, in the marketplace, and Mitsubishi has a number of choices available to it to ensure that its vehicles comply, to seek a separate approval in respect of a class of vehicles that have a different fuel consumption, or ultimately not to sell the vehicles at all if they are not vehicles that conform with the testing approval that has been obtained for the label.

In that regard, can I just go to the approval scheme.  At page 189 of the application book there are some excerpts from the EC regulation which is imported by paragraph 6 and other paragraphs of the particular standard in question and, as one sees in clause 2.1:

“Approval of a vehicle” means the approval of a vehicle type with regard to the measurement of energy consumption (fuel or electric energy);

“Vehicle type” means a category of power driven vehicles which do not differ in such essential respects as body, power train, transmission, traction battery (if applicable), tyres and unladen mass –

Clause 3.1 provides that:

The application for approval of a vehicle type . . . shall submitted by the vehicle manufacturer –

Over the page at 3.3:

A vehicle, representative of vehicle type approved, shall be submitted to the technical services responsible for conducting approval tests.

Then, in 3.4:

The competent authority shall verify the existence of satisfactory provisions to ensure an effective check of conformity of production before approval of the vehicle type is granted.

Underpinning the conceptual framework, which is you are making vehicles of a standardised mass‑produced type that will have the same properties, You will need to satisfy the regulator that you are doing so such that the statement you are making by putting forward a representative vehicle and testing that representative vehicle will be accurate for the rest of the vehicles.  In this case, of course, the evidence before the Tribunal was that it was most inaccurate for the particular vehicle sold to Mr Begovic.

A point was made by our learned friend that that cannot be so because the testing was conducted some time after the sale of the vehicle.  Can I just say something briefly about that.  That issue was not taken up in the Tribunal.  Both parties adduced evidence of testing that was conducted two years after the event as relevant to the question of whether the label was accurate.  Mitsubishi said that the label was accurate, i.e., at the time of the sale when it was displayed because of, inter alia, a test conducted by Vipac some two years later which is referred to in the Tribunal’s decision at paragraph 19 at page 15 of the application book.

No challenge was made to the evidence of Ms Winkelmann, Mr Begovic’s expert, on the basis that it was testing a vehicle two years later.  That was not put to her.  No such suggestion was made before the Tribunal.  Mitsubishi could have adduced evidence on that topic.  They wanted to support the perhaps surprising proposition that fuel consumption would be 30 per cent worse after two years.  On the contrary, a different approach was taken.  Can I go to two paragraphs of the Tribunal decision:  paragraphs 43 and 44, on page 19 of the application book.  At 43, the Tribunal observes that:

Ms Winklemann’s evidence is that the label information is not true for the vehicle.

And then 44 records that:

Mr Miller –

He was the Mitsubishi representative:

submitted that the difference between Ms Winklemann’s fuel consumption results and the label information was due to the different methodologies used.

i.e., some slight variations in testing methodologies used, and the evidence of Ms Winkelmann was that, even if that was so, would amount at most to a one to per cent difference.  And then it was stated:

This was the only reason put forward for the difference.

So, that was the way the case was run.  Mitsubishi cannot now seek special leave on some footing that two years of time makes, or might make, such a difference as to explain the reasons for the disconformity between the label and the vehicle that was sold to Mr Begovic.

GAGELER J:   Mr Moore, which ground of appeal does this point go to?

MR MOORE:   Well, this appears to go to – perhaps describe special leave question 3, which seems to have some temporal element attached to it.

GAGELER J:   I mean, these are very wordy grounds, is it the totality – is that the only point in 3 or if there to it?  It is probably not a question for you rather than Mr Walker.

MR MOORE:   That is right.  My learned friend Mr Walker says that there is some difficulty in relying on evidence testing a product two years after the event.  We say there is no such difficulty.  In a normal case where some question arises as to, well, what are the characteristics of a product, in a litigation context you go and test the thing.  If somebody wants to say that something arises from the fact that it is now a year down the track, or two years down the track, then somebody would need to raise some issue about that, and no issue was raised about that in the present case.  And we say that is the end of it.  So, that issue does not support a concern that would justify a grant of special leave.

But more generally, we say that the only question that is identified of significance is the question of whether, in fact, Mitsubishi is being required to do something that is compulsory under the motor vehicle legislation, and we say that is not so for the reasons that I have given.

May it please the Court.

GAGELER J:   Mr Walker, are you really pressing some temporal point?

MR WALKER:   By “temporal point”, I understand your Honour to be referring to the two-year delay after sale, of the testing?

GAGELER J:   Yes.

MR WALKER:   Thank you.   May I put it rather this way – it is not a temporal point in such direct terms.  This was a case where there was no evidence that the subject vehicle was such that, had it been selected for the test it would have produced something different from the label.  That followed from that the rather elusive forensic stance taken on the other side concerning challenges to the propriety of the test on the basis of the representativeness of the test vehicle.  You will see how that ended on page 133, in paragraph 97.

So, the notion of building a case that there must be something wrong with the label – what the label conveyed – because of a representativeness problem lacked any foundation and could not be raised in the Court of Appeal, notwithstanding an attempt to do so.  That is similar, with respect, to the hints of a defectiveness – or sale by description case – which were, respectively, and as to various attempts, either unsuccessfully raised or not raised and are not capable of being an issue in this Court.

EDELMAN J:   Mr Walker, can I, on a related point, ask you about the relationship between grounds 1 and 2?  Ground 1 really seems – the only difference between it and ground 2, seems to be potentially raising a constitutional issue.  Is that intended to be so or is there any other respect in which ground 1 is distinct from ground 2?

MR WALKER:   That is the main point of distinction.  It is ground 2 which, in our submission, is the nub of the matter.

EDELMAN J:   So, there is no need to issue section 78B notices – that your submissions are really focussed on ground 2, rather than ground 1.

MR WALKER:   Could I say that that seems an attractive position, but it is something upon which instructions would be necessary.

EDELMAN J:   You would need 78B notices for ground 1, would you not?

MR WALKER:   Yes, yes, yes, and if I did not persist with ground 1, we would not need a 78B notice.

EDELMAN J:   Yes.

MR WALKER:   But, with great respect, I can see the desirability of that.

GAGELER J:   Mr Walker, I am sorry, what about ground 3?  It is actually quite difficult to follow these grounds – they are so, sort of, discursive and argumentative.  Do you need ground 3?

MR WALKER:   Perhaps, boiled down, it needs to be a component of ground 2 – that is, it is the other side of the coin.  I think that means, no, not in the form it appears, to your Honour’s question.

GAGELER J:   Yes.  All right.  Did you want to say something else, Mr Walker?

MR WALKER:   No, your Honours.

GAGELER J:   Thank you.  We will adjourn for a short time to consider the course we will take, thank you.

AT 1.12 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.16 PM:

GAGELER J:   There will be a grant of special leave to appeal in this matter.  Mr Walker, we will leave it to you to give attention to the way in which the three grounds are formulated.

MR WALKER:   May it please the Court.

GAGELER J:   Has there been any expression of interest from Attorneys‑General in the constitutional point?

MR WALKER:   No.

GAGELER J:   Would it be a one-day case, do you think, Mr Walker?

MR WALKER:   Yes.

GAGELER J:   Mr Moore?

MR MOORE:   Yes, provided others are not coming, yes.

GAGELER J:   All right, very well.  Thank you, the Court will now adjourn until 1.30 pm.

AT 1.17 PM THE MATTER WAS CONCLUDED