Morante v SA Superannution Board

[1999] HCATrans 257

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A43 of 1998

B e t w e e n -

CARMINE MORANTE

Applicant

and

SA SUPERANNUATION BOARD

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 13 AUGUST 1999, AT 11.14 AM

Copyright in the High Court of Australia

MR C. MORANTE:   I am the applicant, your Honour.

MR B.M. SELWAY, QC, Solicitor-General for South Australia:   I appear with my learned friend, MR G.P. PARKER, for the respondent.  (instructed by the Crown Solicitor for the State of South Australia)

MR MORANTE:   The findings of the Full Court and the single judge was the employer acted within the statutory power in the absence of any relevant contract to sign the applicant and the bill was dismissed on this basis.  This is the finding of the Full Court.

GUMMOW J:   I realise that but this turns upon the public sector legislation in South Australia, does it not?

MR MORANTE:   Yes, your Honour.  I will refer it to the Act to save time.

GUMMOW J:   Yes, but normally we would not get involved in construing that section.

MR MORANTE:   The relevant situation is that there has been error of fact and an error of law.

GUMMOW J:   But even if there was an error of law in construction of a State statute, it is not ‑ ‑ ‑

MR MORANTE:   Not if the Act is ultra vires, your Honour.  The situation is this, that there was no statutory power exercised which, in effect, if it has nothing to do with the legislation and it is determined and affirmed it is ultra vires, it is out of the hands of the legislation and becomes a common law right and on that ground, your Honour, the applicant has a right to be heard so if the Act in question has been ‑ ‑ ‑

GUMMOW J:   You have a right to be heard.  The question is whether we grant special leave, of course.  You understand that? 

MR MORANTE:   I understand that.

GUMMOW J:   We do not grant special leave in every case involving common law questions either.

MR MORANTE:   I am just putting that with the statement of facts that if there has been an error of fact and an error of law by the Full Court, the decision they would have reached would not have been that decision they concluded in their judgment.  So I would like to go to page 89 of the application book.

GUMMOW J:   Yes.

MR MORANTE:   The Full Court determined – I will wait for you to get to page 89.  Line 15 says:

s44 provides a statutory power compulsorily to assign or deploy staff who become excess to requirements –

and if your Honours go to line 21:

assigned to other duties…..for…..two years.

Again, at line 30, and this is critical:

There is nothing in the letter which points to a contract.  The letter did no more than assign the appellant to a position for two years to perform certain duties.

GUMMOW J:   Where do we find the text of section 44?

MR MORANTE:   Section 44 is on page 28 of the Public Sector Management Act.  You do not have to turn to this page because I do not want to waste time.  Again on page 98 of the application book, line 12, the judges talk about unilaterally assigning him “to the duties of another position”.  Now it seems to me that two of the judges did not know what section 44 was - how they were appointed to a position or duties.  Now, I can assure you if you go to page 28 of the Act ‑ ‑ ‑

GUMMOW J:   I am looking at section 44.

MR MORANTE:   Okay:

Subject to this section, the Chief Executive of an administrative unit may assign an employee from one position in the unit to another position in the unit.

So it is to a position, your Honour.  Two of the judges said it was to the duties of a position but it is to a position.  The main point, your Honour, I really want to get on to is the exercise of statutory power.  All these findings by the Full Court depended on one factor, that the Chief Executive Officer had exercised statutory power, had exercised it.  There was a presumption made that they had.  That is of the case.  This is the critical question here.  There had been no exercise of statutory power.  They had to assign me or appoint me, for that matter, to that position.  I presented to you a full copy of the letter that was given to me on 26 August where I was told to report for duties to this position and it is the “Position for Rabbit Calicivirus Detection”.  You have a copy of that in full.

GUMMOW J:   Yes.  Now this was in evidence in the court below, was it?

MR MORANTE:   That is right.  That was in evidence and it was put before Justice Lander as well.  The respondents, in fact, misled the Full Court judge and single judge to make a fundamental error of law and an error of fact concerning the exercise of statutory power by the CEO to assign the applicant and I am going to refer you to page 123 of the application book.  Now, this is very critical.

GUMMOW J:   Yes, we have it.

MR MORANTE:   Line 07.

GUMMOW J:   Yes, paragraph 2.9 on page 123.

MR MORANTE:   Yes.  That is correct:

On 26 August 1996 Mr Wickes advised the applicant in writing that he had been assigned to work for two years –

note, it says “on 26 August”.  That is the date that the letter was written.  Basically, what actually occurred here, your Honour, is that they have removed the word “propose”.  If you look at the letter you will notice the second last paragraph and I quote:

I propose to assign you to these duties on 16th September – - -

HAYNE J:   Yes, and go on:

and expect you to report…..on that day.

MR MORANTE:   Exactly.

HAYNE J:   Yes.

MR MORANTE:   Now, the time I was given directions was on 4 September.  That can be verified by Mr Wickes’ affidavit.  Therefore, at the time the directive order was given he had not exercised any statutory power that I was assigned to the position.  He was proposing.  I mean, if you propose to do something you have an intent and I have the Oxford Dictionary here which says “propose” means an intention.  It is not an act.  The letter expresses no positive statement that Mr Wickes had exercised statutory power to sign the person on 26 August.  Where does it say that?  It says nothing at all.  It says he proposes to.

GUMMOW J:   So does it really turn on - - -

MR MORANTE:   It turns on the ultra vires ‑ ‑ ‑

GUMMOW J:   Just a minute, on that letter of 26 August and the meaning of section 44.

MR MORANTE:   Section 44 does come into it but if he had not exercised statutory power I was not held to that position so the directive order to me to report to a position, he has not got the power to do that.  The Act does not invest the CEO to direct a person to do the duties of a position until he has been appointed or assigned to that position.  He can direct him to do the duties of the positions he holds under the Act that he is appointed to but not to a position which he has not been statutorily assigned to.

The letter was given to me on 4 September and, in fact, when I did not report to the position on the 16th, there was no communication to me in writing that I had been statutorily assigned so nothing occurred.  Vice versa, if I was not statutorily assigned before and he took no action afterwards to assign me to the position on the 16th, because I had not reported to it, I had never been assigned to that position at all or appointed, let us say, if it was not an assignment or appointment.  The fact is there has been a presumption by the Full Court as single judge that there had been an exercise of statutory power.

HAYNE J:   It has come to this.  They have read the letter one way.  You say they should have read it another way.

MR MORANTE:   Not according to the word “propose”.

HAYNE J:   I understand that but is that the nub of the dispute.  You say the letter should be read as a declaration of future intention, others have read it as an actual ‑ ‑ ‑

MR MORANTE:   No, I am not.  I am saying a fact that they said on 26 August I was assigned.  If you notice on that page 123, now that is what they said.  I am saying you cannot delete the word “propose” - what is in the letter - and you cannot delete the words “16 September” and change it to 26 August.  You cannot remove words from a written document.  I can quote you the case for that.  I think you are learned enough to know that you cannot add words, subtract words, add words to a written instrument and no document has been presented ‑ ‑ ‑

GUMMOW J:   But what is the question?  What is the question of national importance that turns upon the construction of this particular letter to attract a grant of special leave?

MR MORANTE:   That there has been an error of fact and an error of law.  Later on, I will show you they said there was nothing in the letter that points to a contract.  The letter does.  If you turn over to job specification it clearly states there was a contract.  It cannot be anything else, your Honour, and if you go to the job specification under “Type of appointment”, there are only two types of appointment:  “Contract” or “Ongoing” or “Temporary” position which is defined as a position less than 12 months and this was a position on a fixed term two years which is a contract, your Honour.  The respondent says fixed term position.  There is no such thing as fixed term position.  It is either contract, two-year contract, either temporary, and temporary is less than 12 months, or permanent.  It specifies contract.

Your Honour, I was put in the position where I had to report to a contract position and under the new legislation, if I reported, legally I would be accepting that contract.  I had not been statutorily assigned.  No communication was given to me in writing by the CEO that I had been assigned or appointed.  There is no such letter.  The Full Court and the single judge could not make such a finding.  There was no evidence presented to the court.  This letter is no evidence that I had been assigned.  This letter says, “I propose to assign you”.  That is clear cut.  From this letter, “I propose to assign you”.  I did not go.  What they should have done, probably, if I did not…..they should have assigned me to the position legally.  They did not do that.

You have no evidence before you and the Full Court that I had been assigned to that position.  This letter does not say that and that is a fundamental rule that was overlooked.  What they are saying on that page gives the impression or presumes that I had been assigned.  In fact, Mr Parker says in the transcript proceeding, Mr Morante was assigned to the position and thereafter the duties become his position but he does not state when he was assigned.  Then he puts in that he was assigned on 26 August.  They changed the phrase around, removed the words, changed 16 September and put 26 August in there.  That is the date of the letter. 

That letter does nothing but just inform me it is an offer.  In fact, your Honour, it is an offer.  That is all it is and you have the right to refuse an offer.  Mr Wickes, in his affidavit, says it is an offer and I put that specifically in there in the affidavit.  It is an offer, that is all it is - no exercise of statutory power - which means that if the purported act was ultra vires of the Act it was not the act of the Crown.          We are not dealing with the legislation then.  It is out of the hands of the legislation if that is the case.  We are dealing with my rights, the common law rights.

GUMMOW J:   What are your common law rights?

MR MORANTE:   My common law rights – I have the right to be told, knowledge - one of the fundamental things between a good employee/employer relationship is knowledge - intention and consideration.  The Full Court, and I want to stress this point, determine – they inserted words “compulsorily”, “unilaterally”.  They do not even appear in the Act.  They are describing a master/servant relationship.  The High Court really has a duty to defend such a finding.  The employee/employer relationship is a bilateral relationship and the common law is not excluded and I have referred you to a case called Witehira Case where it says:

“some common law rights may go so deep that –

legislations cannot exclude them.  I was exercising my rights.

GUMMOW J:   Where does it say that?

MR MORANTE:   I can make sure you have got a copy of that.  I do not want to waste too much time.  On page 597.

GUMMOW J:   This is a New Zealand decision, is it?

MR MORANTE:   Yes, it was a New Zealand decision.

HAYNE J:   Of the Employment Court.

MR MORANTE:   Yes.

HAYNE J:   Yes.

MR MORANTE:   In:

consideration that if the statutory provisions under review meant anything else, it would be difficult to construe them in that way for that would involve an attack on not only a common law right, but also on a basic human right.  Even if the statute means what it has been argued that it says, it is to be remembered that “some common law rights may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them” – - -

HAYNE J:   The common law notion of the relationship between employer and employee has, I think, from time to time been characterised as one weighted in favour of the employer and against the employee.  I am not sure that resort to the common law has always favoured employees.

MR MORANTE:   The employees under Crown or public - is contractual nature.  I mean, before you are appointed to a position ‑ ‑ ‑

HAYNE J:   At common law a Crown employee was dismissible at will.

GUMMOW J:   It was dealt by the prerogative.  Australia is different in that respect because we gave them statutory rights.  In England they were just employed under the prerogative and they could be dismissed.

MR MORANTE:   But what is your point on that point?

GUMMOW J:   The point is that there is no entrenched common law right in relation to Crown employees at all.  If statute beneficially supervened to redress what various ‑ ‑ ‑

MR MORANTE:   But, your Honour, if the Act ‑ ‑ ‑

GUMMOW J:   Just listen to me for a minute – to redress what various legislatures saw as an imbalance in favour of the Crown.

MR MORANTE:   My question is to you, your Honour, if the Act in question was not the Act of the Crown what then other resorts are the employee’s?  If you are saying there is no common law right, what rights does he have?  Are we talking about a master/servant because if that is the case I might as well go, because if that is the decision, you are saying that the findings of the Full Court determine that the public servant, his conditions of employment are a master/servant relationship and I have come here to you that you have got to defend that and you are saying we do not have any rights to defend that.  I do not know.

GUMMOW J:   No one is saying that, Mr Morante.

MR MORANTE:   Well, you have given me the impression that I do not ‑ ‑ ‑

GUMMOW J:   This is a very technical field of constitutional law.

MR MORANTE:   That is correct, your Honour, but ‑ ‑ ‑

GUMMOW J:   With a long history and it is not easily expressed in a number of slogans.  It is very - - -

MR MORANTE:   We are deviating from my argument here.

GUMMOW J:   Yes, very well.

MR MORANTE:   If the Act is ultra vires, your Honour, it is not an Act of the Crown and, therefore, do I not resort back to my common law rights because the common law rights are not excluded by the Act?  It is not written in the Act that excludes it.  Your argument cannot be right.  I have the common law.

GUMMOW J:   I am not arguing anything, Mr Morante.  I am hearing your submissions.

MR MORANTE:   I got the impression that you were saying that a common law right is not applicable to me.  Your Honour, on those grounds there has been an error of fact and an error of law.  I have been deprived of justice, obviously, because if you are saying I do not have any rights as a master/servant you cannot ‑ ‑ ‑

GUMMOW J:   No one is saying that, Mr Morante, and do not repeat it.

MR MORANTE:   All right, your Honour.  In summary, if you find that my argument is prima facie that I was not communicated in writing by the employer, that I had been statutorily assigned to that position and that letter clearly does not do that,  I was not the holder of the position and I was not in breach of the Act and the action they took against me to suspend me without salary was unconscionable in that I was put in the position whereby I had no alternative but to leave my employment because I had followed a course of conduct whereby I was going to be legally terminated and so, if I did not report to the position I was gone and if I stayed, I was gone, so if I did not hold that position that they had told me to report to, I was not the holder of that position, I was not in breach of the Act.

That is really the point.  I was not the holder of that position and therefore I was not in breach of the Act and I was not in breach of the common law right.  You cannot add words like I said to that letter and change it around and say the CEO exercised statutory power.  It does not say that.  You can bring that letter to anybody you like.  That is where the error has been made.  That is the fundamental question.  I was never assigned to that position and the letter does not state that and, your Honour, therefore

you can see there was a constructive dismissal on the ground that the only job position that was available to me was a contract.  That is the only one they offered.  In fact, Mr Wickes says that is the best offer in his affidavit.

GUMMOW J:   Yes, very well.  Yes, Mr Solicitor.

MR SELWAY:   Thank you, your Honour. Your Honours, in relation to the factual background of this matter, the issue before the Court was as to section 35 of the Superannuation Act.

GUMMOW J:   Yes.

MR SELWAY:   Your Honours, we have given the Court copies of the relevant Acts but section 35 has the effect, if I could summarise it, that a person who is retrenched from the South Australian Public Service and has been in the superannuation scheme for a particular period is entitled to a pension which, in effect, would be the same pension they would get upon retirement.

GUMMOW J:   Yes.

MR SELWAY:   Mr Morante would have been entitled to a pension under section 35 if he had been retrenched so the issue before the court was whether what had happened to Mr Morante involved a retrenchment. Mr Morante argued that what had happened to him involved a constructive dismissal.

GUMMOW J:   Yes, that is right.

MR SELWAY:   Of a similar sort as occurred in the case of Blaikie.  Your Honours, the Full Court and Justice Lander did not have to reconsider Blaikie and accepted it as being correct.  The question then, essentially, is, is there anything in the events that occurred which could be described as constructive dismissal.

As we understand it, the case came down to two propositions.  The first was did the letter, to which your Honours have been referred, constitute a constructive dismissal because it involved moving Mr Morante from a permanent position in the public service to a contract position.  The second proposition has perhaps been put clearer here than elsewhere but is whether the suspension without pay arising from the disciplinary charge arising from Mr Morante not attending to do work at that position, did that constitute a constructive dismissal.

HAYNE J:   Because he had been given no immediate direction, as I understand the argument advanced.

MR SELWAY:   As advanced, yes.

HAYNE J:   Yes.

MR SELWAY:   Now, in respect of the first of those propositions that requires an interpretation of the Act.  We say that what was intended to occur, to put it in a neutral way, was an assignment under section 44 of the Act.  An assignment under section 44 does not involve a loss of permanent status and, in fact, for Mr Morante to succeed in this argument would have the surprising effect that all public servants who had permanent status in the South Australian Public Service could lose that status through this vehicle without any of the protections that are otherwise available in the Act in relation to their removal from office and there are a number of those provisions.

I will not take your Honours through them but if I could just say all of the steps which require a removal of a permanent public servant from position whether by reason of ill health or whatever or discipline require an action of the governor and the argument is, effectively, that section 44 achieves the same result.  We argue it does not.  The Full Court accepted that as did Justice Lander.  We say the answer is clearly given by the provisions of section 31(4)(a) which provides that:

No position may –

(a)  be abolished while the position is occupied by an employee –

The effect of that is whilst the Calicivirus position is referred to as a two‑year position and, certainly, that was the expectation - the funding was a two-year funding program - at the end of that exercise, if no other job was then available for Mr Morante, that position had to continue on because it could not be abolished while he was in it.  In other words, one would have to find at the end of that process another permanent job or whatever for Mr Morante so that was the way the scheme works and the Full Court and Justice Lander have accepted that.

In relation to the question of the effect of the suspension, as I say, I would not want it to be understood that that argument had been clearly put before either Justice Lander or before the Full Court but, in any event, the simple answer to it is that the disciplinary provisions for public servants are specified in Division 8 of the Act, in particular, section 58 and your Honours will see under subsection (5)  ‑ ‑ ‑

GUMMOW J:   Just a minute, Mr Solicitor.

MR SELWAY:   Yes, your Honours, page 34 of the Public Sector Management Act which is in the respondent’s book of materials.  Section 58 which is the procedure for carrying out inquiries in disciplinary action, subsection (5)  ‑ ‑ ‑

GUMMOW J:   Yes.

MR SELWAY:   No, I apologise, your Honour.  If I could take your Honours to section 59.  The effect of section 59 is that a chief executive officer can suspend, including without pay, an employee whilst a disciplinary charge is being heard.  Subsection (6) provides that:

If a suspension imposed under this section is revoked, the employee is, subject to subsection (7), entitled to any remuneration and accrual of leave rights withheld in consequence of the suspension –

and it goes on to say that under subsection (5) that:

if a charge against an employee is dismissed…..the employee will be taken to have been acquitted –

and under subsection (4) the suspension must be revoked where the employee is acquitted.  The effect of which - I am sorry, it takes a while to get to it - is that if the disciplinary proceedings had proceeded through to their finality and Mr Morante had been found not guilty then, if the suspension had been improperly imposed, there was an entitlement to the money back, the effect of which, we say, is that even putting it at its highest a suspension could not consist of a constructive dismissal under this Act.  In fact, we would go further if pushed and say that, to that extent, there cannot be a constructive dismissal under this Act simply because the code that it imposes for dismissal precludes ‑ ‑ ‑

GUMMOW J:   There is a threshold question as to whether we would get entangled in all this legislation.

MR SELWAY:   I understand, your Honour, and that is to give your Honours an understanding of the background.

GUMMOW J:   Yes, I appreciate what you are doing.

MR SELWAY:   In relation to the general issue, we say South Australia’s Act is reasonably unique to the extent that these Acts differ from each other. 

The scheme in South Australia differs to, at least, a degree from that in other places.  The facts of this matter are, we would say, reasonably unique.  It does not raise a matter of general importance and, in any event, we would say there is no prospect of success.  The Full Court decision was plainly right as was that of Justice Lander.  Your Honours, unless there is anything else ‑ ‑ ‑

GUMMOW J:   Thank you.

MR MORANTE:   Your Honour, just going back to the last page on the application book.

GUMMOW J:   Yes.

MR MORANTE:   The three types of appointment under the Act – you will notice there is no such thing as fixed term positions.  They were under the old Act.  There is only “contract” so what they are really saying it is a contract which makes section 44 ultra vires and, in fact, the case of McVicar says that if the purported act – I wanted to quote that, but it would not be the act of the Crown if it was ultra vires of the Act.

Section 44 cannot be applied so he has not pointed that out to you.  It is inconsistent with section 44.  Maybe it is better put that way.  If you are going to be assigned you are going to have to be assigned to either an ongoing or a temporary position.  You have the three types.  You cannot be assigned to a contract.  It is clear.  He is not telling you that.  He is saying you can be assigned.  It is clear it is a two-year contract, two-year fixed term so it cannot be temporary and it cannot be ongoing.  It has to be a contract.  Section 44 does not even come into it.

Secondly, there can be a constructive dismissal and I have already referred to McVicar v The Commissioner of Railways.  “An action taken by the employer against the applicant can be described as an unconscionable act if he is prevented ‑ ‑ ‑“

GUMMOW J:   But is that a case decided on the South Australian legislation?

MR MORANTE:   No, it was a case – I do not know, it was in the Commonwealth Law Reports and it was also approved in Director‑General of Education & Ors v Suttling.  I think the respondent has even referred to that one.

GUMMOW J:   That is from another State, I think.  Yes, anyhow.

MR MORANTE:   “Whereby an officer is wrongfully prevented from performing the duties of his position and thereby earning the specified salary in his condition of employment.  The applicant had a legal common right and a statutory right to be allowed to perform the duties of his appointed position and to earn the salary specified in his condition of employment but his employer suspended him.”

Your Honour, if I was not the holder of the Calicivirus position, the only direction the employee could give me was to continue to do my duties under the position I was appointed to.  If they suspended me from performing the duties of my position and without salary they have constructively dismissed me.  They have prevented me earning the salaries specified under my condition of employment.  So it is wrong for them to say that section 59 – I had to go right to the Disciplinary Tribunal to find out and, by the way, when you inform the employee in writing that it is a contract and they completely ignore it and they completely abuse what you write to them and you have the letters there on the 13th – I said, “I detest that your conduct offering me a new employment position” and I continued to tell the CEO in the next letter on the 24th, “This is not a reassignment, this is an appointment to a contract.  You’re offering me a new employment position.” 

What hope has a person got in the disciplinary inquiry if they are continually ignoring the letters?  I mean, communicating with them.  They had already found me guilty.  In fact, I even appealed to the disciplinary inquiry saying, “Manifestly excessive response to the subject matter.”  They should not have suspended ME without salary.  I mean, you have got paedophiles here been unemployed - being suspected on full salary.  I was suspended without salary.  They had already determined I was going to go just because I did not report to those duties.  And I told them why.  It is not as if I did not reply to them.  I communicated back to them.  I said, “You’re offering me a new employment position.  This is a contract.  It’s written in there.”  What do they do?  They suspend me.  I did not even hold the position at that time.  I must have some rights.  At least they have got to communicate with me.

Any employee/employer relationship is a bilateral relationship.  They should have said, “No, this is not that, it’s not a contract”.  They cannot even use the word assignment because it is a fixed two year.  That automatically excludes it to be an assignment.  You cannot be assigned to a position which is not governed by the provision of the Act.  You have the three Acts here.  Provision of the Act.  There is only two types of provision I can be assigned to:  ongoing or temporary, and a “temporary position” is clearly defined as a position no greater than 12 months.  So, if I am going to be assigned, at least assign me to a position under the Act.  No, they were

going to assign me to a fixed term position, two years, which can only be a – it is a misnomer.  It is really a contract.

So, it was not an assignment.  I had not been communicated by the employer that I was the holder of the position, and I was not in breach of any section 57 and what they are saying.  Yet, they stop me from continuing to do the duties of my position and I was wrongly prevented earning a salary.  Thank you, your Honour.

GUMMOW J:   This application was said to depend upon the construction to be given to a letter dated 26 August 1996, written to the applicant by an officer in the Public Service of South Australia and upon the construction of the provisions respecting job description contained in that letter.  If the construction of the letter urged by the applicant were adopted, further questions would arise as to the construction of the provisions of two statutes of South Australia, the Public Sector Management Act 1995 and the Superannuation Act 1988.

We are not persuaded that the construction sought to be put would have any reasonable prospects of success here, nor are we satisfied that the disposition of the matter by the South Australian courts was wrong.  In any event, no point of general principle arises.  The application is dismissed.

MR SELWAY:   I seek an order for costs.

GUMMOW J:   What do you say about costs.

MR MORANTE:   Yes, concerning costs.  In the application book they submitted they were all the wrong Acts, they were the amended Acts, and the cost incurred in photocopying all the Acts should not be incurred by me.  The only one is Blaikie’s Case, if they want to put the costs for that, but all the rest of the material and the Superannuation Act was irrelevant. There was only two pages of section 35 they should have photocopied. I think the respondents have indicated to me that they have agreed that they are going to make a point of that, that the costs of photocopying all those books should not be incurred by me and I submit that the length of time taken to get to Court here if the costs for this appeal is dismissed.

GUMMOW J:   I will ask the Solicitor.

MR SELWAY:    Yes, your Honour, as I pointed out earlier this morning, the way the High Court Rules work, my understanding is that no costs could be ordered in respect of the appearance here of either my learned friend, Mr Parker, or myself, because we are employed by the Crown.

HAYNE J:   Whether all the photocopying that was done was necessary is a matter that would fall for decision by the taxing officer, would it not?

MR SELWAY:   Yes, your Honour.  I must say, Mr Morante probably has a point.  I would be candid about it.  If Mr Morante was not unrepresented, I suspect we would not have photocopied as much of the Acts as we did here but - - -

GUMMOW J:   I think the best course is probably to make the order for costs and the quantification of the costs will be a question for the taxing officer and Mr Morante can makes his points there and they can be dealt with specifically at that stage.  I think that is the best we can do, Mr Morante.

So, the application will be dismissed with costs.

AT 11.51 AM THE MATTER WAS CONCLUDED