Monarch Airlines Ltd; Polaris Holding Company; Canadian Airlines International Ltd v The Civil Aviation Authority

[1993] HCATrans 96

IN THE HIGH COURT OF AUSTRALIA

Registry No CB of 1992

B e t w e e n -

MONARCH AIRLINES LTD

Plaintiff

and

THE CIVIL AVIATION AUTHORITY

Defendant

Registry No C9 of 1992

B e t w e e n -

POLARIS HOLDING COMPANY

Plaintiff

and

THE CIVIL AVIATION AUTHORITY

Defendant

Registry No Cl0 of 1992

Monarch(2) 1 28/4/93

B e t w e e n -

CANADIAN AIRLINES INTERNATIONAL

LIMITED

Plaintiff

and

THE CIVIL AVIATION AUTHORITY

Defendant

Directions Hearing

DEANE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 28 APRIL 1993, AT 9.33 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, OC: If Your Honour pleases, I appear with

my learned friend, MR A. ROBERTSON, for the

applicant plaintiffs.	(instructed by Allen Allen &
Hemsley)

MR D.J.S. JACKSON, OC: If Your Honour pleases, I appear for

the respondent defendant in each action.

(instructed by Mallesons Stephen Jaques)

MR G. GRIFFITH, OC, Solicitor-General for the Commonwealth:

If the Court pleases, I appear with my learned

friend, MR c.s. STAKER, intervening for the

Attorney-General for the Commonwealth. (instructed
by the Australian Government Solicitor)

Your Honour, our intervention is a passive one and I hope that I will not need to detain

Your Honour with any submissions, but really our

interest is to secure that there is not a premature

or inappropriate statement of questions to the Full

Court, having regard to disputes on the facts.

HIS HONOUR:  Mr Solicitor, are you content to be an

intervener?

MR GRIFFITH: Yes.

HIS HONOUR:  I would have thought since invalidity is

alleged you might want to be there as a party.

MR GRIFFITH:  Your Honour, we are happy to make our

submissions as an intervener.

HIS HONOUR:  I see. I suppose it means you are protected in

relation to costs to some extent anyway.

Monarch(2)	2	28/4/93
MR GRIFFITH:	I guess it will not matter, Your Honour.	Just

to explain why we do intervene, the defendant has

retained private solicitors so that it is necessary

to have separate input on the question of the

constitutional issues and how they get to this

Court.

HIS HONOUR:  Of course, your presence is important in one

respect since the question of remitter is obviously very much in my mind, and if you were in a position

to tell me it would be relevant to know whether, if

an order were to be made for remitter, the Attorney

would then just bring the constitutional questions

back here.

MR GRIFFITH:  He certainly would not, Your Honour. Our

plain view, really, to put it bluntly, is that the

matter should now be remitted and the matter only

come back in here when it is in proper order, if it

ever gets to that. It might go off on the facts

and that is the end of it.

HIS HONOUR:	Thank you, Mr Solicitor. Yes, Mr Jackson.
MR JACKSON:	Your Honour, I propose to deal with the matter

that Your Honour has just raised, of course. May

I, before doing that, indicate what is involved in

the case, what has occurred and why we are here and

why, in the end, we would submit that if

Your Honour were perhaps minded to make an order

for remitter it would not be appropriate to do so

at this point.

Your Honour, we have re-listed the matter

because we do not really seem to be making progress

without the intervention of the Court, to put it

shortly. I do not know if Your Honour has read a

copy of an affidavit by Mr Martignoni in support of

the application. I think the document has - - -

HIS HONOUR:  The answer is, I have not. I can tell you what

I have read.	I have read a draft statement of
agreed facts, a document containing a number of

proposed reserved questions and, apart from that, I

have glanced through the file to revive my memory

of what I had read before.

MR JACKSON:  Your Honour, perhaps I should seek leave to

file in Court and then read an affidavit of Graham

Martignoni sworn 22 April 1993. It is really the documents attached to it that are of any

consequence. What I proposed to do, Your Honour,

was to get to the meat of the matter, as it were,

as quickly as I could, without going through them.

Your Honour, can I just say something about

the case initially before coming to the detail of

Monarch(2) 3 MR D.F. JACKSON, QC 28/4/93

the documents.	I am sorry, Your Honour has not
dealt with that.	I understand there is no

objection to that, Your Honour, but I was going to
take Your Honour to the relevant parts of that if I
might because some other aspects of it are dealt
with.

Your Honour, we are owners of aircraft which were leased to Compass Airlines, the first Compass.

They were used by it in Australia during its

relatively short life. Because of its use of those
aircraft Compass incurred a liability to the
Authority for charges imposed pursuant to Division
2 of Part VI of the Civil Aviation Act. Could I

give Your Honour a copy of that part of the Act

made up with various amendments.

The part Your Honour has contains the relevant

division of the Act. You will see in it that in

section 66(2) the Authority has power by

determination to fix charges and specify the

persons by whom they are payable and there is a
provision for penalty if payment is not made on
time, that is subsection (8) of the same section.

Now the ambit of the Authority's power to fix charges is limited by section 67 and that requires

that the amount of a rate or charge should be

reasonably related to the expenses incurred or to

be incurred in relation to the matters to which the

charge relates and shall not amount to taxation.

Your Honour, that gives rise to one issue and I

will come back to that in a moment. That is the

issue which potentially is one of fact, but I say

only potentially so.

A means given to the Authority, in order to

assist it to obtain payment of charges, is by a

statutory lien. That is provided for by

section 69(1) and Your Honour will see, at the

bottom of the relevant page of that extract, the

reference to the lien at the top of the next page.

The effect of the lien may be seen in a number of

provisions which I could perhaps identify and

summarize briefly. The section 70(2), the lien

operates as a security interest; section 71(1), the

aircraft may be deregistered if the lien is not
satisfied; section 72, there is provision for

seizure of the aircraft; section 73, sale of the aircraft. By section 78(1), removal of parts or

equipment is prohibited the lien is in force, and

then the matter which was of particular
significance, section 78A, while the lien is in
force it cannot be removed from Australia.

Now the effect of the lien, Your Honour, is that the Commonwealth has acquired an interest in

Monarch(2) 4 MR D.F. JACKSON, QC 28/4/93

the property of another and the issue which arises

is whether, in cases where the other is not the

person who incurred the liability for the charges -

in this case Compass, not us - the imposition of
the lien falls within section 5l(xxxi) of the

Constitution.

Your Honour, could I go then to the nature of

the action. May I take Your Honour very briefly to

the statement of claim in the action brought by

Monarch. It commences, relevantly, at paragraph 13

of that document and Your Honour will see the first
cause of action - Your Honour could go through from

paragraphs 13 to paragraphs 20. You will see in

paragraph 20 there is an allegation that the

prerequisites for making a determination had not

been complied with.	We do not pursue that cause of
action, so that is gone, Your Honour.	One sees

then in paragraph 22 the allegation that section 67

had not been complied with and that is that the

amount of the charges was not reasonably related to
the expenses to be incurred in relation to those

matters.

The next issue appears from paragraphs 23, 24,

25 and 26 and it involves, Your Honour, the issue

whether in view of the fact that we were not the

person who received the services, the charges

amounted to taxation of us - the charges by reason

of the imposition of the lien amounted to a form of

taxation of us with the consequences set out in

paragraphs 25 and 26. So, Your Honour, that is a

second, as it were, cause of action.

The next is the acquisition of property issue,

which is that set out in paragraphs 28 and 29.	I
should say that paragraph 30 simply - although

expressed alternatively is really a consequence of

success of one of the earlier matters.

Having said that, Your Honour will see from

the document that we, in fact, paid under protest,

in terms of the deeds entered into with the

Authority pursuant to which we were able to obtain the release of the aircraft and their removal from
Australia, on terms that litigation to resolve the true position would be entered into, and the

parties agreed to have that disposed of as soon as

possible.

Since the matter was before the Court last

year, we sent a draft case stated to the Authority,

but we have not received what we would describe as

a substantive response and, Your Honour, if I could

go to the matters set out in the exhibits to

Mr Martignoni's affidavit which I have filed this

morning, and you will see in relation to that that

Monarch(2) 5 28/4/93

in exhibit AMl, he says in the second paragraph -

that is the letter of 18 March, Your Honour - in

that he encloses a draft statement of facts.	Your
Honour will then see the second and third

paragraphs of the letter, and then Your Honour will

see the comments that he makes on the draft, and

may I refer in particular to what is said about

paragraphs 27 and 28, where they are invited to

suggest wording for the draft. Your Honour will

then see annexed to that letter, enclosed with that

letter, the proposed draft.

Could I, Your Honour, although it is a

document of some length, in fact it divides up into

a number of very short parts. Up to and including

paragraph 11, it simply seems to be most basic

assertions of matters hardly likely to be in

dispute.

Paragraphs 12 through to and including 25

really paraphrase the terms of the determination,

setting out the various charges and, Your Honour, I

should say in relation to them, we would think they

could hardly be controversial, but if there was

some error no doubt we could be told, or some

additional matter. Paragraphs 27 and - - -

HIS HONOUR:  You can lead a horse to an agreed statement of

facts; you cannot do much more though.

MR JACKSON:  No, Your Honour. The documents I am going to

take Your Honour to - if they said, "These are

matters on which there is no possibility of

agreement, we have to have a trial", that would be

one situation. But we really arrive at a situation

now where we invite comments. We invite, for

example, paragraphs 27 and 28 to be filled in and,

Your Honour, our invitations are unrequited; not refused, but not - not enough time and so on.

Your Honour, could I just continue for a moment?	I
really will not be much longer.

Your Honour will see paragraphs 27 and 28: we

really asked them the matters, dealing with the

question of reasonableness, saying, "What do you

want to put in?" Opposing contentions, as we

understand them, are set out in paragraph 29. Then

paragraphs 30 to 49 set out just the various events

which have occurred and paragraph SO, at least to

the extent of paragraphs (a) and (b) seems hardly

controversial.

Now, Your Honour, having said that, having

sent that document, with, as I said, the letter of,

I think, 18 March, the response was the next

document, AM2.	Your Honour will see in the second
paragraph of it is the relevant matter.	They say,

Monarch(2) 6 MR D.F. JACKSON, QC 28/4/93

"What is the purpose of the draft?" They make two

comments. The first is, "What are the questions or

issues for determination?" Well, Your Honour,

perhaps that is a valid point. The second part of

it is, it seems to be an unfinished document.

Your Honour, from there the next document really is

AM4 and you will see in the last paragraph of that

document, they say they are awaiting counsel's

comments, and that on 7 April our response is AMS

and you will see in the penultimate paragraph of

that that we say, in effect, "Please hurry up".

Then AM6 is the next response by them, and

could I refer Your Honour to the last paragraph of

that on the first page and the top of the next

page. And, Your Honour, there are only two more to

go. AM7, you will see, is our letter of 22 April,

and at the bottom of the first page we set out

three proposed questions and Your Honour will see

the remainder of the letter. We then received late

yesterday, Your Honour, a letter in response, and

there was a letter we have sent yesterday. May I
tender that, together with the response that we

sent in relation to it, both late yesterday.

Your Honour, I think it will be necessary to read

the whole of the letter to us.

HIS HONOUR:  I will read it, Mr Jackson. Yes, I have read

that.

MR JACKSON:  Your Honour, what has emerged from that is that

really six weeks has passed and nothing has

happened but essentially they say they need more

time. The first thing we would say in relation to

that, Your Honour, is how long, and then the matter

could be re-listed. Your Honour, we recognize that

the case involves three points; the second and

third, as they have put in the letters to which I

have referred, are ones that are fundamentally

constitutional and one would think involve no

disputed facts at all and, we would submit, would

be appropriate for the Court to entertain. I

recognize the power, of course, to remit them but,

by themselves, they are matters of importance, we

would submit.

Your Honour, as to the first of the questions,

in some cases the question whether the impositions

did or did not comply with section 67 in terms of

their relevant reasonableness might, if one looked

at the question in the abstract, create

difficulties of investigation.

HIS HONOUR:  Mr Jackson, I follow what is involved in the

two constitutional questions. What is the dispute

involved in the reasonably related question?

Monarch(2) 7 MR D.F. JACKSON, QC 28/4/93

MR JACKSON:  Your Honour, we wish, in a sense, we knew. I

do not mean to put that in a pleading fashion.

What I am seeking to say is this, Your Honour, that

one would think, in view of the terms of section 67

- this is before the Authority made its

determination, which is quite a substantial

document - that the bases of calculation must have

been apparent to it.

Your Honour, there seems no reason, we submit,

why the facts setting out what the bases of that

determination are cannot be stated simply.

HIS HONOUR:  I must have put it badly. You say that the

charges are invalid because of a lack of reasonable

relationship. What I was asking is: what is your

point?

MR JACKSON:  Our point is essentially this, Your Honour:

that the charges, if I could select one typically,

are charges which are imposed by reference to the

landing weight of an aircraft. One sees, for

example, that the charges are imposed by reference

to, for example, maximum take-off weight of an

aircraft. What we say is that if on every occasion

when there is a landing and take-off there is a

charge imposed by reference to that, then,

Your Honour, that is something that we would say

cannot bear relationship to the costs of providing the service. The question, as we would see it, is

one where we would seek to say the basis that has

been adopted is a basis that might be financially

the most prudent course to adopt, but it is one

that does not seem, as we would understand the

situation, to bear a relationship to things other

than, for example, frequency of movements as

distinct from the costs of providing the service as

is required by section 67.

HIS HONOUR:  Why should I refer that to the Full Court, even assuming all your facts are settled?

MR JACKSON:  Your Honour, because it is in a sense related

by reason of the way in which section 67 is framed

to the question whether it is a tax. Section 67

says ttit shall not bett - it puts it in a positive

and a negative form - it says it shall not be such

as to impose taxation. If it does impose taxation

then, of course, that would seem to attract the

operation of section 55.

HIS HONOUR:  I follow what you say. Or course, one could

have the reaction in that case:  why should I refer

the tax question to the Full Court?

MR JACKSON:  Your Honour, there is a second aspect to the tax question though, one that is entirely

Monarch(2) 8 MR D.F. JACKSON, QC 28/4/93

independent of the reasonableness of the charges,

and that is the question which arises because of

the imposition of the effect of the lien upon a
person who receives no benefit from the charges

themselves.

HIS HONOUR:  And I suppose the fact question is also

involved with the acquisition question as to

whether there was an acquisition.

MR JACKSON:  Your Honour, it is difficult to see, with

respect, precisely why that would be so. Could I

just say that it is suggested in the defence that

we obtained some benefit - I am sorry, I am putting

it slightly badly. What is suggested is that we

knew that the aircraft would be used for the

purpose for which they are used and, Your Honour,

facts of that nature we are perfectly prepared to

assume.

HIS HONOUR:  But would it not be a bit like saying that the

owner of a motor vehicle who is made liable for a

third party's injuries is subjected to an

acquisition of property, without just terms?

MR JACKSON: Well, it may be, Your Honour.

HIS HONOUR:  I am just trying to understand the precise

thrust of the argument. Or the owner of the

property who is made liable for nuisance by reason

of a tenant's activities.

MR JACKSON:  Yes. Your Honour, could I also say that an

issue which has a general similarity, though the
considerations are probably different, is one that
is presently being considered by the Chief Justice

in an application - - -

HIS HONOUR:	Yes, the Boat case.
MR JACKSON:	Yes, the Boat case. That is a forfeiture

thing, of course, but again the issue relates to

the position of a person who is not the person

whose conduct gave rise to the liability. But,

Your Honour, that is essentially the position.

Could I just say, turning then to the question of

the appropriateness of the Court dealing with it,

so far as the case is concerned, it is a case

where, if we were successful on any of the

constitutional issues, the matter would be at an

end and those issues are ones that are, of course,
of general importance.

Your Honour, it is fine, in a sense, to say "Well, let us not ever deal with a constitutional

issue because a case may be decided on some other

ground" and, in a sense, in some cases that is

Monarch(2) 9 MR D.F. JACKSON, QC 28/4/93

correct. But if the constitutional issues are ones

that can be described sufficiently as discrete then

it is appropriate to deal with those, we would

submit. Your Honour, could I also say that until

one knows precisely whether there is any

significant dispute about the facts concerning the

reasonableness of the charges, it is not a case

where the Court should remit the issue, we would

submit.

Your Honour, could I also say - and I think it

is the last thing I will say in relation to it - if

I may; that it really is very difficult to imagine

that the basis for imposition of the charges is not

easy known and easy to state.

HIS HONOUR:  Thank you, Mr Jackson. Mr Jackson, the first

matter that I am directing my attention to is

whether I should make an order remitting these

matters to the Federal Court here and now.	I would
like to hear what you have to say on that.

MR JACKSON:  I am in the unfortunate position of not being

able to take a positive stance on the question, for

the reason, and I do not want to spend any time

developing it, but we have been brought here in

rather some haste, we say. I know that our learned

friend says we are actually dragging the chain

ourselves.

The difficulty which the case has inherent in

it on each of the three points is that the question

of fact about the reasonableness of the charges in

relation to the expenses incurred in connection

with the subject-matter of the charges exists on

each of the three points identified by our learned

friends.

Your Honour may recall that when he referred to paragraph 22 of the Monarch statement of claim,

which is where the allegation that there is no

reasonable relationship between the charge and the

subject-matter occurs - - -

HIS HONOUR:  It may well be, may it not, that your client's

willingness to concede obvious facts would be

increased if the matter were in the Federal Court,

and the approach was taken the matter be simply set

down and proceed for trial.

MR JACKSON: That is so, Your Honour, that may well be so.

Also, we have the difficulty that the first time in

which the point, as Your Honour called it, was

articulated was by our learned friends just now.

The question which is proposed the directions very broadly put, we have criticized that in the letter

we wrote yesterday. We only wrote that letter

Monarch(2) 10 MR D.J. JACKSON, QC 28/4/93

yesterday because the question was formulated for

the first time to us on Friday, so we are not

accepting any delay in that respect. If the point

is, in relation to maximum take-off weight, that
there cannot be a relationship, there are many

factual questions which will emerge, and which I

can articulate now.

For example, the cost of providing fire-

fighting services, which is one apart and one of

the charges in question is directly related to the
size of the aircraft in question, and there are

different grades, so we can provide evidence of

that relationship. That will take some time, and

Court time, not just preparation time.

Another example is that the cost of providing

the runway - most of these charges are imposed for
landings, not take-offs - is again directly
proportional to the kind of large aircraft carrying

commercial passengers or cargo.

HIS HONOUR:  But while you have been neutral, everything you

are saying seems to be directed supporting an order

for remitter.

MR JACKSON:  We accept that, Your Honour. We have written

to the other side in the letter which has been

tendered to you, yesterday, saying we do not think
that the questions on these issues can ever be
sufficiently refined so that they could be properly

reserved or stated under section 18. Having said

that, I do not have formal instructions to press

the remitter application because of the time.

HIS HONOUR:  I see. Well, I think that just about covers

what you can say on remitter.

MR JACKSON:	Yes, Your Honour.
HIS HONOUR:	Thank you.
MR JACKSON: There was another point I think Your Honour had

in question, though. Do you want me to - - -

HIS HONOUR:  Does it relate to whether I make an order

remitting the matter now?

MR JACKSON:  No, Your Honour.

HIS HONOUR: If it is something I should know, regardless of

whether I am going to make such an order, of

course, you are completely free to tell me.

MR JACKSON:  I am in a slightly difficult position because

it may turn out that the instructions which I have

not been able to receive could alter from that

Monarch(2) 11 MR D.J. JACKSON, QC 28/4/93

which I suspect they will be, as I have tried to

indicate to Your Honour. The commercial

consideration behind it is this: if our learned friend's case succeeds on the acquisition point only, then the impact upon the Authority would be

of a different kind than if our learned friend's case succeeds as well or independently on what I

will call the section 67 or the tax point.

The reason why I suspect in the end it does

not matter, on the remitter question, is that we

plead the reasonableness of the charges in response

to the acquisition point as going to the question

of just terms. So it probably does not create a

separate consideration but I felt I should say

that.

HIS HONOUR:	Thank you, Mr Jackson.
MR JACKSON:	Your Honour, could I just say two things? The

first is that if Your Honour were otherwise minded

to remit the matter to the Federal Court, we would

submit it would be appropriate to wait for a couple

of weeks to see what the result comes in the end

from the other side and we would ask Your Honour

not to do it at this point, but if Your Honour were not agreeable to that, there is then another course

I would wish to take in relation to the matter.

HIS HONOUR:  Very well. I did propose to make an order now

remitting the matters to the Full Court.

MR JACKSON: Before Your Honour does that, could I just say,

in that case, we will not pursue the reasonableness

of the charges issue, which would leave then

the -

HIS HONOUR:  I would not assume that I would not permit the

constitutional matters anyway, Mr Jackson. to me that one needs to look at the question, form

a view as to the extent to which it is related to	facts and also form a view - and I do not want to
go too far along this line - as to whether the
question contains sufficient substance to engage the attention of the Full Court initially.

MR JACKSON:  Yes. Your Honour, the question would only be -

the narrower question would be, of course, in those
circumstances, whether the fact that the lien
operated to create an interest in the property of

another person who had incurred the liability.

That is the pure issue which would arise in

relation to both questions.

HIS HONOUR:  Yes, I follow that but let us get away from

this case and let us assume that parties institute

Monarch(2) 12 MR D.F. JACKSON, QC 28/4/93

proceedings in this Court raising a section 92

question and that a judge, asked to refer the
question, considers on balance that notwithstanding

there is a constitutional issue involved it is the

sort of question that should be dealt with by the

Federal Court rather than go direct to the

Full Court of this Court for the reason that when

it is elucidated in the Federal Court it may well

turn out it can be satisfactorily and conclusively

dealt with there.

MR JACKSON: Well, Your Honour, of course one has to bear in

mind that that is a particular type of case where

there is inevitably a value judgment involved.

Now, if one removes the reasonableness issue from

the present case, one has simply a case that

really - in a sense where one might expect to find,

for example, a demurrer in the Court. I accept the
possibility, of course, that the Court might still

remit that to the Federal Court, but in

circumstances like that the Court - and I do not

mean to be in any way offensive - cannot compel the

parties to have additional facts in either court

and the matter has to - - -

HIS HONOUR:  No, that is true, but the Court can certainly

take the approach that this question does not

possess the qualifications to be dealt with as a

matter of first issue or first hearing by the

Full Court of this Court.

MR JACKSON: Well, Your Honour, that really tends to divide

the constitutional issues into a number of

categories and, whilst one can see that that is

something that can be done in relation to ones that

do particularly turn on questions of the

application of the principle of the constitutional

provision to particular facts, this is a case which

would raise a significant issue of principle.

HIS HONOUR: Let us get away from this case and say, for

example, the judge asked to refer a matter - thinks

that the argument is foredoomed to fail. Now, he

may be right, he may be wrong, but he may, or she

may, take the view that in that context it is best

that it be sorted out in the Federal Court. That

is an extreme case - - -

MR JACKSON: Well, Your Honour, I accept the

possibility - - -

HIS HONOUR:  - rather than exclude other matters from a

hearing before the Full Court of this Court.

MR JACKSON:	Your Honour, I do not exclude the possibility that the power can be exercised in a number of
ways.  What I am simply seeking to say is that this
Monarch(2)	13 MR D.F. JACKSON, QC 28/4/93

is a case that does not fall within the extreme

category but raises a question of some importance,

and that is why - I think I have already said it

before, that bearing in mind the state of the

instructions on the other side, the best course is

really not to decide that question now but to see

what results from their instructions. Your Honour,

I do not know that I can advance it beyond that.

HIS HONOUR:  Mr Jackson, is there anything you want to say

in relation - - -

MR D.J. JACKSON:  Only this, Your Honour, it is difficult to

get away from the reasonableness point, even on the

acquisition question, because we specifically plead

the facts relating to the reasonableness of the

charge as being part of our defence to the

allegation of the acquisition, if there is one, is

otherwise than on just terms.

HIS HONOUR:  Thank you. Mr Solicitor, you may not desire to

say anything. I would be grateful for any views

you would like to express though.

MR GRIFFITH:  Thank you, Your Honour, I am not sure whether

my learned friend, by his statement to the Court,

effectively abandons paragraph 22 of his statement

of claim as an issue in this case, or only that was

an offer as an inducement to keep the case this

Court.

MR D.F. JACKSON:  I was not intending to abandon it.

Your Honour, I was saying if Your Honour were

minded to do that then to remit the matter - were

otherwise minded to remit the matter to the

Federal Court, we would urge against that by

abandoning that issue.	However, if
Your Honour - - -

HIS HONOUR: That is how I understood it.

MR GRIFFITH: Well, Your Honour, in that case it is

self-evident that there must be a dispute on the

facts because whatever my learned friend,

Mr David Jackson of Queensland, is instructed, it

must be self-evident his client is not going to

admit facts that show it is unreasonable and that

must be an issue of fact to be determined.

HIS HONOUR:  I had not thought of "of Queensland" and

"formerly of Queensland" as the convenient way of

distinguishing.

MR GRIFFITH: Well, Your Honour, I had been told it was

father and son but, Your Honour, it is rather

difficult to - - -

Monarch(2) 14 28/4/93

MR D.F. JACKSON:  No comparison is ever flattering to me.

MR GRIFFITH:  I did not say which order, Your Honour. So,

Your Honour, when one goes to that point we would

say that disposes of the matter and all the issues

are involved on that disputed point of fact.

HIS HONOUR:  Notwithstanding what has been said by Mr D.F.

Jackson of senior counsel, I consider that the appropriate course in these matters is to make an order for remitter in each case.

Now, I presume that the Federal Court is seen

by both sides as the appropriate court?

MR D.F. JACKSON:  Yes, Your Honour.

HIS HONOUR: Before I make the order, might I just raise one

matter that has struck me, going through the papers

on a superficial level. That is, is there any

reason why the three matters are proceeding and

everything is being done in triplicate, as it were?

Should not the parties agree that one matter goes

ahead and the other two await the result of that?

MR D.F. JACKSON:  Your Honour, no doubt that is right. I do

not know, in fact, how much duplication there has

been, apart from the initiation of the proceedings.

HIS HONOUR:  I notice we have got three rather thick files,

which seems to indicate - I have not investigated

the other two - - -

MR JACKSON:  Your Honour, I am sure the parties will take

that into account.

HIS HONOUR:  It was something that if it had been going on

in this Court I would have taken up.	I just
mention it for what it is worth.

Now, the ordinary order would be: costs to

date, in this Court, be according to our scale, and

future costs be according to the Federal Court

scale. Is there any problem about that?

MR D.J. JACKSON:	No, Your Honour.
HIS HONOUR:	I presume you would wish me to certify for

senior counsel in relation to today?

MR D.F. JACKSON:	Yes, Your Honour.
MR D.J. JACKSON:	Yes, please, Your Honour.
HIS HONOUR:	It would be the principal Registry of the

Federal Court in Sydney.

Monarch(2) 15 28/4/93

MR JACKSON:  By our contract, our learned friend has

referred to it, the Canberra District Registry

would be the registry to which we should go.

HIS HONOUR:	I see.
MR GRIFFITH:	Why not go to Sydney though?
HIS HONOUR:	What say I simply say, "to the Federal Court",

leaving it to the Federal Court, wherever the

papers are light, to sort out where they should be.

MR JACKSON:  Yes, Your Honour. We will also talk to the

other sides to see what their interests are.

HIS HONOUR:  I am sure if the two of you could raise it with

the Registrar, he will make sure they go to where

they should go.

MR JACKSON:	Thank you, Your Honour.
HIS HONOUR:	In each of these three matters I make the

following orders:

(1) that the further proceedings in this

action be remitted to the Federal Court of

Australia;

(2) that the action proceed in that Court as

if the steps taken in the action in this Court

had been taken in that Court;

(3) that the Registrar of this Court forward

to the proper officer of that Court

photocopies of all documents filed in this

Court;

(4) that the costs of the action to the date

of remission, including the costs of the
present summons and of taking out these

orders, be according to the scale applicable

according to the scale applicable to that to proceedings in this Court, and thereafter

Court and in the discretion of that Court.

I certify that this was a matter proper for

the attendance of senior counsel in chambers.

The Registrar will, no doubt, make some minor

amendments to those orders to cover any discrepancy

between what I have said and the standard form of

order.

MR D.F. JACKSON:  Your Honour, there is only one question

left, really. The costs on the last occasion were

reserved and perhaps the best course today might be

Monarch(2) 16 28/4/93

to reserve them also and then a judge of the

Federal Court could deal with them in due course.

HIS HONOUR:  I order that the costs of today's proceedings

and the costs of other proceedings in this Court be

reserved, pending the outcome of the proceedings in

the Federal Court.

Is there anything else?

MR D.J. JACKSON:	No, Your Honour.
MR D.F. JACKSON:	No, Your Honour.

AT 10.18 AM THE MATTER WAS ADJOURNED SINE DIE

Monarch(2) 17 28/4/93