Munnings v Australian Government Solicitor

[1994] HCATrans 257

..

.

,

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H2 of 1994

B e t w e e n -

CLYDE FRANCIS MUNNINGS

Appellant

and

AUSTRALIAN GOVERNMENT SOLICITOR

by its representatives Geoffrey
Alan Flick and Christopher

Anthony Arthur Cunningham,

PIERRE WILLIAM SLICER, JENNINGS

ELLIOTT (a law firm) and MURRAY

DALE DOCKING

Respondents

MASON CJ
BRENNAN J

TOOHEY J

Munnings 23/3/94

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON WEDNESDAY, 23 MARCH 1994, AT 11.51 AM

Copyright in the High Court of Australia

MASON CJ:	You appear in person, Mr Munnings?
MR C.F. MUNNINGS: Yes, Your Honour.	(in person)
MR P.J. HANKS:	Your Honour, I appear for the Australian

Government Solicitor, the first respondent.

(instructed by Australian Government Solicitor)

MR G. PICKARD:  Your Honours, I appear for the second, third

and fourth respondents. (instructed by Gunson

Pickard & Hann) and (Butler, McIntyre & Butler)

MASON CJ: Yes, Mr Munnings.

MR MUNNINGS:  Your Honours, by an order made by

Justice Dawson which appears at page 48 in the

appeal book, this action was permanently stayed.

Justice Dawson ordered that the endorsement to the

writ and the amended statement of claim be struck out. It seems that it is my task to persuade the

Court that I have a legitimate ground for complaint

against the defendants, and I would like the

assistance of the Court as to what is the best way

to proceed. I have tendered to the Court a

10-page document with a handwritten note on the

bottom referring to the appellant.

MASON CJ: Yes, we have that.

MR MUNNINGS:  Would it be helpful to the Court if I go

through those 10 pages and point out the relevant

passages so that the Court will have a better idea

of what it is that I actually complain about?

MASON CJ: Yes, if you can direct our attention to the

points on which you rely that are contained in

these materials.

MR MUNNINGS:  Thank you, Your Honour. In order to comply

with the rules of Court, I did not put any

tendered to the Court, but on the bottom of the	handwritten notes on the documents which I have
pages I have written references. If we look at
page 1 of the 10-page document, I have photocopied
parts of the Telecommunications Act. The relevant
parts are section 2l(l)(b) which says:

The Commission ..... shall have a common seal;

By 21(2):

All courts ..... shall take judicial notice of the common seal of the Commission -

By 33 on that same page:

Munnings 2 23/3/94

The Commission may, by instrument under its

seal, delegate ..... all or any of its powers -

The reason I tender that document is to point to a

false claim by the Australian Government Solicitor

which appears at page 19 of the appeal book,

paragraph 4, and again the same false claim, in my

submission, at page 27 of the appeal book,

paragraph 9. At page 2 of the document - - -

BRENNAN J: Just before you go on, Mr Munnings, those are

affidavits that were filed and, when you say it is a false claim, I see the claim that is made there,

but why do you say "false"?

MR MUNNINGS:  Your Honour, it seems to me that, having

Telecommunications officer of the Commission to Hobart to verify the

regard to the wording of the

delegations which had been allegedly made. So long

as the document was produced bearing the seal of

the Commission, that would be sufficient. The

Government Solicitor claims they issued a notice to

admit for the reason of saving costs, when all that

needed to be produced in the court was a document

under the seal of the Commission, and that would

have been sufficient.

BRENNAN J:  The court was concerned with whether there was a

delegation or not, is that right?

MR MUNNINGS: That is right, Your Honour.

BRENNAN J:  If the party that thought it had to provethe

delegation, thought that it had to bring somebody over, and gave a notice instead to save the costs

that it perhaps wrongly thought it would incur, how

does that affect your interests?

MR MUNNINGS:  Your Honour, the point I am trying to make in

relation to the Telecommunications Act is that in

order to prove a delegation made by the Commission,

it would have been sufficient to-produce a

delegation which had been made under the seal of

the Commission because, by 21(2) of the Act, it

says that:

All courts, judges and persons ..... shall

presume that it was duly affixed.

TOOHEY J: But when you say the affidavit is false,

Mr Munnings, are you saying in relation to

paragraph 4 that there was no such document and

that this reference to a notice to admit is simply,

as it were, a red herring? What are you saying?

Where is the falsity to which you point? If you

are saying no more than that it was not necessary

Munnings 3 23/3/94

for the Telecommunications Commission to produce

the original document and therefore the notice to

admit was unnecessary, then all you are really

saying is that the Commission went to much more

trouble than it needed to go to.

MR MUNNINGS:  Your Honour, they did not go to any trouble

because the Government Solicitor says that one of
its reasons for issuing a notice to admit was to

save the costs of bringing an officer to Hobart,

when it is my submission that there would have been

no need in any event.

TOOHEY J: That may be, but that is what I am suggesting to

you, that you may be saying no more than that this

was an unnecessary step. But that is a long way

from saying that the affidavit is false.

MR MUNNINGS:  I do not challenge the statement of Mr Bowen,

but what I say about paragraph 4 is that it was a

false justification for issuing a notice to admit

facts. If the Australian Government Solicitor had

produced a delegation bearing the seal of the

Commission, that would have been sufficient in

itself to prove the document.

TOOHEY J: That may well be, but that was not the way it was

done - perhaps wrongly or unnecessarily - but where

does that take us?

MR MUNNINGS:	Back to the falsity of the reason for issuing the notice to admit facts.
BRENNAN J:	What you are saying is that in fact they could

have produced a delegation under seal and it was

not necessary to do a notice to admit facts in

order to avoid costs. Is that what you are saying?

MR MUNNINGS: That is right, Your Honour.

BRENNAN J:	And that is all you are saying?
MR MUNNINGS: That is right. If I can leave that point and

move to page 2 of the 10-page document, that is a

photocopy of section 58 of the Telecommunications

Act. By 58(3) and 58(5), it refers to a situation,

"Where an officer authorized by the Commission".

In both cases it refers to an officer authorized by

the Commission.	The relevance of that is seen at
page 5 of the same document.	Page 5 refers to
Telecom delegations.	The first two delegations on

that page refer to section 58(3) and 58(5) of the

Act respectively, but the Commission purported to

delegate officers.

That will become significant later when we get

to the notice to admit. The Commission purported

Munnings 23/3/94

to delegate officers to do those functicns when in

fact the Commission had no power to delegate; it

was only permitted to authorize officers. The

notice to admit upon which I rely had the effect of

covering up the fact that Telecom had delegated

officers where it had no power to delegate.

TOOHEY J:  I am not clear, Mr Munnings, what distinction you

are drawing between "delegating" and "authorizing".

Are you accepting that the Commission authorized an

officer to conduct the hearing?

MR MUNNINGS:  No, Your Honour. I am saying that the

Commission purported to delegate officers where it

had no power to delegate. Not only did it do that

but, if we look at delegation No 1 on page 5, we

see a note there that:

Delegates must consult with the General

Personnel Services Branch -

So not only did the Commission delegate where it

had no power to delegate, but it instructed the

officer how to perform his duties. If I pursue

that any further, we are getting into evidentiary

matters. I only produce page 5 for future

reference when we get to the notice to admit facts.

If I could leave page 5 and go to 6 - - -

MASON CJ: But before you leave page 5, does it not emerge from page 5 that Telecom is using the expressions

"authority" and "delegation" in the same sense, so

that when it refers to "a delegate", it is

referring to a person who is authorized to do

something, for example, under 1, in terms of

section 58(3); under 2, in terms of section 58(5).

MR MUNNINGS:  I do not agree that the Commission was

authorizing officers because these delegations were

made under the seal of the Commission. They

delegated a power where they had no power to

delegate. In any event, when we get to the notice

to admit, we will see that the Government Solicitor

requested an admission that the relevant officers

were properly authorized. They used the words

contained in the Act, so they got over a problem of

the Commission delegating where it had no power by

issuing a notice to admit that their officers were

authorized.

MASON CJ: But if delegating means authorizing, there is not

a problem.

MR MUNNINGS:  It is my submission that there is a difference

between delegating a power and authorizing, because

in fact the Commission had no power in relation to

58(3) and 58(5). They had no power, nor could they

Munnings 23/3/94

tell the authorized officers how to perform their

functions, but they did. I am pointing to the

falsity, in my submission, of the notice to admit.

At page 25 of the appeal book Justice Everett made

a comment. Justice Everett had listened to counsel

for three and a half days and one of his comments

was - he wanted to be assured:

that all relevant authorisations and

delegations - and there is a difference

between the two - were in fact proved.

Some of the authorities relied on by the Commission

were capable of delegations and were correctly

referred to as delegations, but in this instance

they were only empowered to authorize officers.

Should I leave that point now?

MASON CJ: Yes.

MR MUNNINGS:	It has been suggested that I have suffered no damage as a result of the behaviour of the
respondents.  On page 6 of the 10-page document,
one-third of the way up from the bottom where I
speak, in the last sentence I say:

that every step taken by delegates of the

commission prior to my dismissal were either

the result of invalid delegations or

authorisations -

"every step". I made that comment, as noted on the

bottom of the transcript, on 22 July 1987, page 2
of the transcript. If we turn over to page 7, that
is page 168 of the transcript, the following day,
23 July 1987, in the large paragraph towards the

bottom of the page I am referring to the fact that

the Full Court of the Federal Court had a duty to

determine whether the delegations and

authorizations had been properly made.

Mr Justice Northrop below that paragraph said:

You have raised this about half a dozen times,

Mr Munnings, and mere repetition will not

assist your argument.

In the space of a day I had raised, on

Justice Northrop's admission, six occasions where I

submitted that the court had a duty to determine questions of law, and that is the response I got

from the court. Page 8 of the document is one page
from an All England Report, Bahamas International

Trust. Between paragraphs e and f, that judgment

refers to the fact that:

the construction of a written document is a

question of law.

Munnings 6 23/3/94

It is for a judge to determine questions of law,

not for judges to rely on the submissions of counsel by a notice to admit facts, that all

questions of law had been complied with. So I

suffered damage at the trial before Justice Everett
and then again at the appeal before the Full Court

of the Federal Court.

BRENNAN J:  Mr Munnings, what did the Full Court of the

Federal Court say about the point which you had

raised half a dozen times?

MR MUNNINGS:  I am sorry, I do not understand that.

BRENNAN J:  What was the result of your submission? You

failed in the Full Court of the Federal Court, did

you not?

MR MUNNINGS:	That is right. Well, if we look at page 9 of the document at page 274, there were two grounds of
appeal to the Full Court of the Federal Court.

The learned judge erred in failing to hold

that delegations -

which we have just referred to -

are invalid.

And by ground 13 of that notice of appeal which

refers to "number 18 of Sched K" - my ground of

appeal was that that delegation was ultra vires

and, in answer to Your Honour's question, that

next passage is the judgment of Justice Beaumont.

He said:

It appears that these grounds were not raised

below.

Given the concessions at the trial, no

question can arise here as to the validity of

the delegations.

It is my submission that those three judges had a

duty to determine questions of law as opposed to

questions of fact and that by not determining the
questions of law but relying on the fact that there

had been a notice to admit, I suffered damage in

two courts. If I could leave that 10-page document

now, please.

MASON CJ: At the moment you are dealing with

Justice Dawson's finding that you did not suffer

any damage. Now, there is not any allegation that

you suffered damage in your amended statement of

claim, is there?

Munnings 23/3/94

MR MUNNINGS:  But there is.

MASON CJ: Whereabouts? Can you identify that for me?

MR MUNNINGS:  Yes, Your Honour. Well, I can identify the

damage I have suffered and it is clearly set out

that because of a notice to admit facts, neither

Justice Everett nor the Full Court of the Federal

Court determined questions of law. That is the

damage I have suffered.

TOOHEY J: But that is not really what Justice Dawson says,

Mr Munnings. If you look at page 45 which contains

Justice Dawson's judgment, he says at about

line 12:

In the present case, not only do the pleadings

fail to allege any relevant damage to the

plaintiff flowing from the acts complained of,

but, when read with the judgment of the trial

judge in the Federal Court, the pleadings

establish that the plaintiff suffered no

damage, even assuming that the defendants'

actions were unlawful. The service of the

notice to admit and the admission made

concerning Mr Griggs' authority were, in the

end, irrelevant to the trial judge's finding

that Mr Griggs had the relevant authority and

so cannot have had any bearing upon the

dismissal of the plaintiff's claim and cannot

have caused damage to him in any way.

So, what His Honour appears to be saying there is

that in the end the notice to admit really played

no crucial role in the dismissal of your claim

because there was a finding, in any event, that

Mr Griggs had the relevant authority. Now, you may

not accept that but that is the way it is put by

His Honour.

MR MUNNINGS:  Yes, I understand that, Your Honour.

MASON CJ:  And that comes back to pages-43 and 44 in the

appeal book in which Justice Dawson sets out what

he understands to be the process of reasoning of

Mr Justice Everett at line 28 and following.

MR MUNNINGS:  Your Honour, if we look at page 44 - before I

say anything about that, what Justice Everett did

was not to say or decide that Mr Griggs had

authority to issue a direction in reliance upon a

by-law. What Justice Everett said was that Griggs

could have had reason to believe that I was

incapable of performing my duties. Now, those

words do not appear on page 44 but if you look at

the first small paragraph on page 44, the last few

words:

Munnings 23/3/94

provided he complied with any prerequisites

for the direction.

And those preconditions were not complied with. It

is, in my submission, a matter of law that the

Commission had no authority to delegate Mr Griggs

or any other officer to issue that direction.

BRENNAN J: That is a different point, is it not? I mean,

the first point is, assuming the prerequisites were

going to be complied with, was Mr Griggs authorized

to give the direction? The second question is:

did Mr Griggs comply with any prerequisites?

MR MUNNINGS:	Yes, Your Honour, but - - -
BRENNAN J:	A notice to admit refers only to the first of those propositions, not the second one.
MR MUNNINGS:	A notice to admit - Your Honour, before we

leave page 44, the second paragraph quite clearly

sets out what Justice Everett was saying:

It would be manifestly impracticable for

(Telecom] to itself give all the day-to-day

directions -

and nobody would dispute that. I certainly do not

dispute it. But the point in issue was whether

Mr Griggs could have had the authority.

MASON CJ:  What Mr Justice Everett held was that, having

regard to Mr Griggs' position with State-wide

authority in relation to personnel matters, he was

impliedly authorized to give directions of this

kind.

MR MUNNINGS:  You see, the question was never the subject of decision by Justice Everett. I accept,

Your Honour, that that is what Justice Everett

said.

MASON CJ: That being so, the notice to admit and what

happened under the notice to admit had no part in

the reasoning by which His Honour arrived at the

conclusion that Mr Griggs was authorized.

MR MUNNINGS:	We may be getting away from what I am trying to do but, if the particular power that Mr Griggs
tried to exercise was a term and condition of my
employment with Telecom, that term and condition
arose under a by-law made by the Commission. At
page 4 of the documents I have copied
section lll(l)(g). Section lll(l)(g) refers to the
fact that:

The Commission may make By-laws -

Munnings 9 23/3/94

in relation to:

the terms and conditions of employment - Now, it is my submission that having made those

by-laws they are binding between the parties and
binding equally on the Commission as they were
binding upon me and I accepted every word of those

by-laws but, if we could refer to by-law SO and

by-law 51, there was a difference. The by-laws do

not appear, Your Honour, because this is, in my

submission, getting away from - well, it is more

like a trial, but - - -

TOOHEY J:  Did they ever appear, Mr Munnings, at any stage of the proceedings?

MR MUNNINGS:  Yes, they did.

TOOHEY J: At what stage? Was it before the Full Court or

before Mr Justice Everett or Justice Dawson?

MR MUNNINGS:  No, they were certainly not in evidence before

Justice Dawson, but they were in evidence in the

Full Court before Justice Everett and again before

the Full Court. Those by-laws were in evidence.

The difference between by-law 50 and by-law 51, the

relevant part of by-law 51 was, in 50 the

Commission said, "if the Commission or any officer

authorized by the Commission has reason to believe"

and in by-law 51 they said, "if the Commission has

reason to believe". So that having determined for

itself what the terms and conditions of an
employment contract will be, the Commission is

bound by them.

It was that power that Mr Griggs purported to

exercise, by-law 51, where the Commission had said:

In drawing up a contract that if the

Commission has reason to believe -

and, they breached that contract. With every

officer in the Commission they breached it because

they purported to delegate every officer in the

Commission to form that belief, where they kept for

themselves the right to form a belief. I was one

step up from the bottom, a class 2/3 clerk, and

every officer in the Commission who was the higher

grading to me could have formed an opinion that I

was incapable of performing my duties. It is my

submission that not even the State Manager could

form that opinion because the Commission had

reserved for itself the right to form the opinion.

While we are looking at page 4,section 111 of the

Act, we see in lll(l)(h) that:

Munnings 10 23/3/94

penalties by way of a fine not exceeding $200,
or imprisonment not exceeding 6 months, or
both, for a breach of a By-law.

Now, the highest allegation that Telecom could make against me is that I breached a by-law, but they

did not fine me $200. They tried to oppress me,

and courts, certainly Justice Everett. The pages

that the Government Solicitor has referred to

clearly indicate that after three and a half days

Justice Everett came into court and said in the

passage that has been referred to, or will be, on
pages 24 and 25 of the appeal book - this is a

beautiful passage hidden away in a transcript. At

line 8, after three and a half days Justice Everett

came into court and said:

I intended, and I have made a note of it

to raise the matter myself this morning,

because it goes beyond the question of

Mr Griggs; it goes to McCarthy; it goes to anyone who purported to be authorized to do

anything -

they were questions of law. Then, at line 15,

Justice Everett said:

there is a lot of correspondence in which the

author purports to be authorized to do

something -

and, so there is. The State Manager for Telecom

wrote me a letter and said, "You are dismissed,"

but he could not have had the authority, and those

are questions of law that have never been

litigated, and they were not litigated because of a

notice to admit facts. If I could point out, Your

Honour, that -

BRENNAN J: Not because of a notice to admit facts, because

of an admission of facts, is that right? If the

notice had been given and had not been met then it

would have been ineffective, but some admission was

made, is that correct or not?

MR MUNNINGS:  What I say about that, Your Honour, is that

this was a conspiracy, in the classical sense,

where the Government Solicitor set out,

deliberately - not inadvertently, but

deliberately - to pervert the course of justice by

issuing a notice to admit facts so that they could

circumvent any argument as to the relevant law.

That is why the defendants are named in the one

action, is that the notice to admit was part of a

conspiracy.

Munnings 11 23/3/94

Now, most people, when they think of a

conspiracy they would think of some secret deal,

secret collusion where they conspire to injure the

rights of people like me, and it is people like me

who are injured and there would be thousands of

people in Australia, in my submission, who are
injured; unsophisticated people who do not

understand the law, they do not know what lawyers

are doing, and I must admit that when I first saw

that notice to admit I did not understand exactly

what they were doing, and if I do not understand it

now I am sure the Court will tell me so.

But, the reason the Government Solicitor

issued that notice to admit was to overcome the

questions raised by Justice Everett. The

statements made by Justice Everett were made on

17 July just prior to an adjournment, and the

hearing did not resume until one month later and

the defendant Slicer wilfully refused to raise

questions of law, and I am delighted with the

judgment of Justice Dawson, that he did not shirk

from mentioning in his judgment that my claim

against the defendant Slicer is that he wilfully

and deliberately refused to raise those questions

of law.

The second thing I like about Justice Dawson's judgment is that the Government Solicitor was not

able to produce two affidavits, and then not have
one of them read. Justice Dawson read both of

those affidavits, and you see even in the

affidavits the Government Solicitor is dishonest.

The Government Solicitor produced an affidavit on

16 November which appears at pages 19 and 20 in the

appeal book. If we look at paragraph 3 on page 19

of the appeal book, which is line 35, roughly, the

Government Solicitor says:

I caused the Notice to Admit Facts ..... to

be served on the Plaintiff's representatives

on or about 22 July 1986 -

and, the significance of that is that it was not

helpful to their case because the statements before

Justice Everett were made on 17 July.

Justice Everett asked to be assured that every

authority had been complied with, and he asked on

17 July, and the notice to admit facts is dated

22 July.

TOOHEY J: But, the effect of the notice, Mr Munnings, was

that unless there was a counter notice within

14 days disputing any fact in the notice to admit,

then that fact was taken to have been admitted.	We
do not have all the material before us, but it
rather seems that this whole question disappeared

Munnings 12 23/3/94

after ~hat. Perhaps tPe reason was because

Justice Everett found the authority to do whatever

was done independently of the notice to admit and,

indeed, independently of the admission that had

been made on 17 July, and that is what I understand

Justice Dawson to be referring to in his own

judgment when he speaks of it really playing no

part in the dismissal of your action or of your

application.

MR MUNNINGS:  Your Honour, I accept that that is what

Justice Dawson said, and that is why I say the

Judge erred because, it seems to me, to be clear if

we look at page 44 on the appeal book, the passage

we have just looked at, where Justice Everett is

talking about "day-to-day directions" in the second

paragraph which appears at line 7 or 8, that is

what Justice Everett said:

the day-to-day directions to staff necessary

for its efficient operation.

And, as I said before, nobody would dispute that

proposition, and I do not, and the Commission did

not ever point to any instance where I disregarded

a direction given to my day-to-day work. At all
times the Commission maintained that I was

competent and efficient, that Mr Griggs could not

have had the authority to issue the instruction

that he did.

The reason I make that submission is because

of the fact that words used by Telecom in making

by-laws must have the same meaning as contained in

the Act, and if the Commission has reason to

believe then it is bound by those words, and if I

could refer to page 3 of the appellant's documents

to show what Parliament thought of the situation in

section 58(12):

Where an officer recommends, or the

Commission decides -

So that the officer who was making a recommendation

could not decide, the power to decide was reserved

for the Commission. That is an instruction by

Parliament, and at the top of that page section 58(10) of the Telecom Act:

Where an officer makes a recommendation

specified in paragraph (9)(d) -

that is the recommendation that I be dismissed -

he shall furnish to the Commission -

Munnings 13 23/3/94

and they did not do that. Even the officer who

recommended my dismissal did not comply with the

Act. They are required to obey the clearest instructions of Parliament.

TOOHEY J: That is not really your complaint, is it, as I

read your grounds of appeal, Mr Munnings? They

seem to focus on the notice to admit and the

reasons that bought it into existence, and you

claim, as I understand it, that this notice to

admit was part of some conspiracy against you.

But, all that seems to really not come to grips

with some of the matters that have been put to you from the Bench, namely that there was a discussion

on 17 July before Mr Justice Everett; he expressed

some concern about authorities, some admissions

were made at that stage by your counsel.	The
matter, either then or shortly after, was
adjourned.	On 22 July a notice to admit facts was

given. There is nothing to suggest there was any

counter notice, so that that notice to admit would

have achieved its result after 14 days, but the

notice to admit and its consequences does not

seemed to have surfaced again in the proceedings,

at least on the material available to us. As I

suggested to you earlier, it does not seem to have

played any real part in Mr Justice Everett's

decision to dismiss your application. I say that

without having seen Mr Justice Everett's judgment

except those parts that are before us.

MR MUNNINGS:  The parts of Justice Everett that refer to

Justice Everett are transcript pages -

TOOHEY J: Yes, I was not referring to the transcript I was

referring to the judgment which dismissed your

application.

MR MUNNINGS:  The judgment of Justice Dawson?

TOOHEY J:  No, the judgment of Justice Everett. What

Justice Dawson says about that, in effect, is that

the notice to admit really played no part in application, and if that be right then the notice to admit really loses its significance completely.

MR MUNNINGS:  I submit, Your Honour, that it does not lose

its relevance because having issued the notice, and received the admissions, from my solicitors, in the period of the adjournment from 17 July to

22 August, or whenever they resumed, there was a

lot of activity, including letters written, and my

protests about the fact that those matters had been

admitted, and it may be true that Justice Everett

does not refer in his decision to that notice to

Munnings 14 23/3/94

admit facts, but the p~rt it played was that they

did not ever puisue the questions of law.

BRENNAN J:  Was the notice to admit facts ever proved before

Justice Everett when the case resumed?

MR MUNNINGS:  I am not absolutely sure about that,

Your Honour.

BRENNAN J:  Then how would Justice Everett ever have known

about the notice to admit?

MR MUNNINGS:  But, Your Honour, it is my submission that it

does not matter whether Justice Everett knew about

it or not.

BRENNAN J: Well, if he did not know about it he could not

have based his decision on it, could he?

MR MUNNINGS:  I do not claim that Justice Everett ever

referred in his decision to a notice to admit

facts.

BRENNAN J: Is that not what Justice Toohey was just putting

to you? If Justice Everett's decision was in no

way affected by the notice to admit facts, how is
it that the notice to admit facts affected your

interests?

MR MUNNINGS:  Your Honour, it affected me in this way:

Justice Everett, in the exercise of his powers,

wanted to be assured that everything had been done

according to the law. Now, that was his duty.

Justice Everett stopped short of saying to these

people - counsel - here, Slicer and

Geoffrey Flick - Justice Everett could have said,

"Well, these are questions of law to be determined
by me and I will determine them". Now, who knows

what the judge thought. But he may have thought,

considering our adversarial legal system, that

having raised the matter squarely for counsel, he

could then rely on them. These are officers of the

court.

TOOHEY J: But you seem to think, Mr Munnings, that a notice

to admit is some sort of a sinister document. It

is a fairly routine part of litigation when one

party says, in effect, "I can prove this matter but

it is going to take a lot of time and expense to do

it.	I might have to bring witnesses from some
distance and so on.	Now, to save expense, will you

admit these facts?", and if the other side says,

"No, we will not" then they run the risk that they

may have to pay the costs associated with that

matter, whatever the outcome of the litigation.

But that is, broadly speaking, the way in which

notices to admit are used.

Munnings 15 23/3/94

MR MUNNINGS:	Yes, Your Honour, I agree. But in this case the notice to admit was not concerned with facts.
It was .concerned with defeating the questions which
had been raised by Justice Everett.  If we look at
page 21 of the appeal book - that is the notice -
at paragraph 5, they sought an admission that:

Dennis John Robinson was a delegate ..... for the purposes of s 58(11) of the

Telecommunications Act -

when, it is my submission that as a matter of law,

Telecom could not delegate that officer to have

that function. Telecom did not have the power.

The reason I say that gets back to page 3 of the

documents.

MASON CJ: Yes, we follow that, Mr Munnings, but the point

raised against you is that Justice Everett's

decision on the point did not turn on the notice to

admit on any admission that was made in the

proceedings or what happened under the notice to

admit. It turned on his view that Mr Griggs had

implied authority to give the direction stemming

from his position in Telecom with State-wide
authority in respect of personnel matters.

Now, the passages quoted in Justice Dawson's judgment from Justice Everett's judgment plainly

indicate that that was the basis of his decision

and that it had nothing to do with the notice to

admit and nothing to do with any admission made

during the proceedings.	Now, that seems clear
enough.

MR MUNNINGS:  Your Honour, it is one of my submissions that

it was not open for Justice Dawson to form that

conclusion. The way the notice to admit affected

the proceedings was that there was an agreement between the officers of the court - they agreed

that they would not -

MASON CJ:  I know that is your submission but in the end it

seems that it played no part in the reasoning of

Justice Everett, as the members of the Court have pointed out to you.

MR MUNNINGS:	Your Honour, that may be so if we say that Justice Everett did not look at the notice to
admit.  Now, I do not know whether he did or not.
But my claim against the respondents does not
depend upon whether Justice Everett's decision was
correct or not.

BRENNAN J: Perhaps the problem is that your claim has to

depend on that because unless you can show that

Justice Everett did depend upon the notice to

Munnings 16 23/3/94

admit, then you have not been able to s~ow that the

notice to admit adversely affectcld your ,interests.

MR MUNNINGS:  Your Honour, the way it affected my interests

was that the officers of the court combined by a

notice to admit to deceive Justice Everett. There

can be no other word. They deceived the judge and

they wilfully set out to deceive the judge.

BRENNAN J: There are two problems about that proposition.

The first is that there is nothing in the judge's

judgment which suggests it or anything in the

transcript that we have thus far seen. The second

is that a statement of claim which asserts simply

the existence of a conspiracy or a dishonest

intention on the part of those who are conducting

litigation seems to me to fall far short of
anything that a court should allow to stand on the

record because it does not give any basis on which

such an allegation is made.

MR MUNNINGS: With respect, Your Honour, in my amended

statement of claim which starts at page 6 of the

appeal book it seems to me to be quite clear that

what I am saying is that the notice to admit, by

paragraph 11, which appears on page 7 of the appeal

book, at line 23, the:

notice to admit ..... was a wilfully unlawful act which, with the connivance of the other defendants in this action, was intended to -

ensure that the application, which was before

Justice Everett -

would be dismissed.

Now, it really must send a terrible message to

litigants if, as well as all the other hurdles,

they have to accept the fact that counsel on both

sides of the record may combine to ensure that

questions of law are not raised - and that is what
they did.	They did it openly, deceiving a layman.

That is why I say that none of the authorities that

have been referred to are relevant to the question

raised. It has never been litigated from the time

in 1770 in ..... and since then the complaints have

been about words spoken in office. But here I do

not complain about words spoken in office.	I do
complain about them, but the real basis of my

complaint is that counsel on both sides of the

record, and this is a terrible proposition for

litigants, if they can combine to say, "Well, look,

we will not raise these questions of law". Even

though they were challenged by Justice Everett they

still did not.

Munnings 17 23/3/94

BRENNAN ,T: Counsel's dur.y is to ensure that questions of

law which have no substance do not occupy the time

of the court unnecessarily. So that if there is no

substance in the questions of law, they act rightly

in making concessions and act in the interests of

their client in doing so, and in this case it would

seem that without any knowledge of the notice to

admit, so far as the material before us goes,
Justice Everett said there was no substance in any of the problems because Mr Griggs had the requisite

authority.

MR MUNNINGS:  What Justice Everett was referring to was a

power to form an opinion, or whether there was
sufficient material to say that I was incapable of
performing my duties. But in the judgment of

Justice Everett he refers to facts and passes over

them. He refers to the fact that an officer made a

recommendation under 58(9) of the Act, and the

State Manager acted on that recommendation. That

is in Justice Everett's decision. What I say is

that the officer who made the recommendation was

required by the Act to provide the particulars of
his recommendation to the Commission, and he did

not do that. But Justice Everett says the officer

made a recommendation and the State Manager acted

on it, and signed a letter of dismissal. But both

of those officers did not comply with the law.

MASON CJ:  Now, Mr Munnings, we have spent a good deal of

time on this point. Now, have you got any other

points in support of your appeal?

Well, could I just re-emphasize that point,

that in the published decision of Justice Everett

he refers to factual situations which could not be

supported by the law and because the judge said

that the Commission could not be expected to issue

all of the directions itself, all of the day-to-day

directions, that does not get over the question of

the validity of the power which Griggs purported to

authorize under by-law 51 and the officer who made	a recommendation under 58(9)(d)- of the Act, he did
not comply with the Act; that was covered by the
notice to admit. The State Manager who wrote a
letter, Justice Everett referred to that; he
referred in his judgment to the fact of what those
two officers did: one made a recommendation to the
State Manager and the State Manager wrote a letter, and that is the very thing that was raised by Justice Everett.

Justice Everett said sometimes people purport

to have an authority and write letters when they

have not in fact got the authority, and that

appears on page 24 of the appeal book, line 15.

This is the material produced by the Government

Munnings 18 23/3/94

Solicitor to say there is no reasonable action against them, but that passage of Justice Everet~

refers to:

a lot of correspondence in which the author

purports to be authorized -

Now it may be that Justice Everett, even in his

lunch break might have looked at the papers and

wanted to raise these questions to be answered;

questions of law, not questions of fact, and the respondents got over that by issuing a notice to

admit. Your Honours, it is my submission that that

notice to admit cannot be overcome because it may

not be mentioned in the decision of

Justice Everett, because they agreed to be silent,

and that is why I copied the one page out of the

Bahamas International Trust, which appears at

page 8 in the documents. All of the questions
overcome by the notice to admit were questions of

law.

MASON CJ: Yes, but you have told us that on a number of

occasions; there is no point in repeating it

ad infinitum, Mr Munnings.

MR MUNNINGS:  No, Your Honour, but what I want to say is

that questions of law are not to be determined by

counsel. It is not for counsel to decide amongst

themselves that they will not raise questions of

law because they are not relevant; it is for the

judge.

MASON CJ: But you are repeating yourself.

MR MUNNINGS:	Yes, Your Honour, I realize that.
MASON CJ:	Now is that all you want to put in support of the

appeal?

MR MUNNINGS: Well, Your Honour, it is my submission that if

the respondents are able to behave in the way that

they have without challenge, it means that

litigants who come to court, as well as all the

other problems, that they have to take account of

the fact that the lawyers, the officers of the

court, may combine to decide questions of law

without going to the judge. A notice to admit

facts is a proper way of getting an admission of

facts to save cost but, in my submission, it is not

a proper enterprise to overcome questions of law.

MASON CJ: But again, you see, you are just repeating to us

what you have said before.

MR MUNNINGS:  In the decision of this Court in Giannarelli,

81 ALR 417, that was a comparatively recent

Munnings 19 23/3/94

judgment where it was h":!ld by a majority of the

Court th&t counsol shall not be liable for

negligent acts, but that authority and all of the
other similar authorities do not overcome the

questions that I am trying to raise with the Court,

in my submission, and that this not being a trial

of the action, evidence will not be heard, and that

the decision of Justice Dawson to set aside the

action was erroneous because, so long as a question

remains to be determined by a court, then the

matter should be allowed to proceed. The

Government Solicitor claims that it would not be in

the public interest to allow this matter to

continue and it is my submission that it is not in the public interest to stop it, because there is a question that has never been the subject of

litigation, never, in any of the decided cases,
they do not cover that point, and the behaviour of

the respondents is a wilful disregard of the

principles laid down in the Harmer Centre National

Trust, where the judges determined questions of law

and it is my submission that so long as there is a

question to be determined about the issues raised,

then the matter should be allowed to continue.

MASON CJ:	Thank you, Mr Munnings.
MR MUNNINGS:	Thank you.
MASON CJ:	The Court will adjourn now until 2.15 pm.

AT 1.02 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

MASON CJ:  Mr Hanks, we need not trouble you, but

Mr Pickard, we want to hear from you, and we want

to hear from you on the question as to why an order

was made in terms that granted relief against your

clients, because it seems to us at the moment that,

prima facie, the order that was made went beyond

the order that was sought in the amended summons

filed by the first respondent.

MR PICKARD:  Your Honour, I apprehend that the reasons for

His Honour making that order was a jurisdictional

one. The basis for the inclusion of the

first-named respondent in these proceedings was

that it was, of course, the Australian Government

Solicitor. The entitlement in the appellant to

bring these proceedings in this jurisdiction

Munnings 20 23/3/94

therefore arose by section 75(iii) of the

Constitution.

The remaining defendants were all Tasmanian

residents. Once the basis for invoking the

jurisdiction over this Court in so far as a

Commonwealth instrumentality was concerned, the

jurisdictional basis of this Court, I submit,

failed and it was presumably on that basis that

His Honour chose the more complete course rather

than the more restrictive course of simply striking

out the proceeding against the first-named

respondent.

MASON CJ: But there are two comments that ought to be made

about that: one, the reasons for judgment seem

innocent of the reason that you have ascribed for

the making of an order in those terms; secondly,

the reasons for judgment rather indicate that

His Honour was of the view that a claim in respect

of the other defendants could not succeed and yet,

the appellant here, as I understand it, was not

present in the proceedings before His Honour and
there seems to have been no intimation to the
appellant that the proceedings before His Honour

might result in an order in those terms.

MR PICKARD:  Your Honours, I cannot answer for what

intimation was given to the appellant on the part

of my learned friend as to the orders that might be

sought.	I was, of course, served with a copy of
that application.	As I recall, it was amended by

my learned friend on the day to include the

frivolous and vexatious grounds - - -

TOOHEY J: But that left the appication of one brought by

the Australian Government Solicitor seeking an

order striking out the name of that defendant - - -

MR PICKARD: That is so, Your Honour.

TOOHEY J:  - - - on the ground that the writ did not

disclose a reasonable cause of action against that

defendant.

MR PICKARD: Yes. I add to the consideration that I have

just advanced, relating to jurisdiction, the

proposition that the conspiracy sought to be
alleged is said to have been initiated by the
delivery of the notice to admit facts by the

first-named defendant. In so far as there was any

collusion that was sought to be alleged, it would

be my submission that His Honour had in mind the

proposition that, without the first initiating

step, the delivery of the notice by the Australian

Government Solicitor, there could have been no

available overt acts amounting to conspiracy or any

Munnings 21 23/3/94

of the other matters that His Hc~our raised on the

part of the remaining def~ndants.

TOOHEY J: 

It is a bit hard asking you some of these

questions, Mr Pickard, because you were not there,
but one of the orders sought by the first defendant

was that the respondent - that is the present

appellant - be not given leave to renew the writ,
which would suggest, on the face of it, that the

writ had not been served at that stage or, at

least, not served on all defendants.

MR PICKARD: 

I was, in fact, present on the occasion when

argument was advanced before His Honour

Mr Justice Dawson. So far as I can recall, no

argument was addressed to the renewal question;

argument focused exclusively on the striking-out

ground and presumably His Honour, having found that

the striking-out ground was vindicated and
appropriate, His Honour then concluded that if it
was appropriate that it be struck out against those
defendants, it was appropriate that it be struck
out against all other defendants. Perhaps I should

add for the benefit of Your Honours' information,

there were, prior to these matters being ventilated

before His Honour, some service questions which had
been sought to be agitated by my clients. Those

applications were adjourned, have in fact remained

adjourned and are now permanently stayed by

His Honour's order.

TOOHEY J:	Is the writ out of time in terms of the rules for service on any of the defendants?
MR PICKARD:	The writ would now be out of time in so far as

the State jurisdiction were concerned. So far as I

am aware, unless there is a writ which has been

issued but has not been served, there is no

proceeding before the Tasmanian Supreme Court which

would impinge on these matters and, of course,

there is no other jurisdictional base for invoking

the jurisdiction of this Court. If it turns out

that the writ issued in this Court is out of time

and service has not been correctly effected, that

too would be fatal to the appellant's course of

action.

MASON CJ:  Now there is one other question I wanted to ask

you and that is this: what is the basis for

granting a permanent stay? Normally, the relief

that is granted in a case where an action is

brought and there is a holding that the cause of

action is not reasonable cause of action or it is

vexatious or frivolous, is to strike out the

statement of claim and dismiss the action. That

is, of course, if it is not a case in which an

Munnings 22 23/3/94

order giving them liberty to replead is made, but

why a permanent stay?

MR PICKARD: Again, Your Honours, it is rather difficult for

me to answer that question.

MASON CJ: But you are here, and I imagine your appearance

here indicates the willingness, or at least the

desire of your client, that you answer any

questions that affect your client's holding of the

order in its favour.

MR PICKARD: Indeed so, but I am unable to say why

His Honour selected that course rather than the

course that Your Honour has just foreshadowed. I

can only say that that was the course which was

adopted by the Full Court of Victoria in the Little

v The Law Institute matter, but as to why it was

that the course of a permanent stay, rather than an

outright striking out was selected, I am unable to

say.

TOOHEY J: Well there was an outright striking out; it was

not one in lieu of the other, it was both, was it

not?

MR PICKARD: In Little's matter, Your Honour?

TOOHEY J:  No, in this matter. The order made was:

that the endorsement to the writ ..... and the Amended Statement of Claim ..... be struck out

AND IT IS FURTHER ORDERED that this action be

permanently stayed -

page 48.

MR PICKARD: Yes, that is true, that the order was - it

reflected both matters.

MASON CJ: Is the submission this, that if there is a

finding that the action is vexatious, that that

justifies the grant of a permanent stay?

MR PICKARD:  I would be content to adopt that, Your Honour.

MASON CJ: But I am not putting it forward as a proposition;

what I really want to know is, is that a

proposition that is contended for and can it be

supported?

MR PICKARD: In my submission, it can, Your Honour, if it is

vexatious in relation to the only respondent giving

rise to jurisdiction in this Court, one would

submit that it is ipso facto vexatious in relation

to all other respondents.

Munnings 23 23/3/94

BRENNAN J:  When you say the jurisdiction of this Court may

disappear, does it disappear if it is fir~t invoked

appropriately?

MR PICKARD:	I have n0t turne~ my mind to that, Your Honour.
BRENNAN J:	It is a p£oblem to which some mind has to be

turned and it is one which the applicant, I gather,

has not had drawn to his attention.

MASON CJ:  As I understand it, jurisdiction in relation to

what I might call parties beyond the cause of

action that attracts the jurisdiction of the Court,
can only be invoked successfully if in fact the

claim made against those parties is bona fide made.

MR PICKARD: Yes, Your Honour.

MASON CJ: But again that point does not seem to have been

explored at all.

MR PICKARD: No, Your Honour. It is fair to say that I took

no active part in the proceedings before His Honour

Mr Justice Dawson, that being confined to the application of the first-named respondent.

BRENNAN J:  Who asked His Honour to make these orders in

this form?

MR PICKARD:  I have no recollection of my asking His Honour

to make these orders in this form, and so far as I

can recall - my learned friend is shaking his head.

TOOHEY J: That is a somewhat ambiguous statement,

Mr Pickard. Do you mean that you asked His Honour

to make orders in a different form, or that you did

not ask His Honour to make any orders at all?

MR PICKARD:  I have no recollection of asking His Honour to

make any orders. My recollection is that I simply

asked - I endorsed the submissions made by my

learned friend and left the conclusions to

His Honour.

TOOHEY J:	So you did participate in the proceedings to the extent of endorsing what had been said by counsel
for the first defendant.

MR PICKARD: That is so, Your Honour.

BRENNAN J:	And seeking an order in favour of your clients.
MR PICKARD:	I did not add or direct any particular

submissions in that regard.

BRENNAN J: Well, is that because in the way in which the

argument ran, it appeared that His Honour was

Munnings 24 23/3/94

addre~sing the question of the stay or other relief

in favour of all the defendants?

MR PICKARD:  I have no recollection, Your Honour, subject to

anything that my learned friend may be able to say
about that, that there was any discussion about the

form of orders that was to be made.

BRENNAN J:  Did counsel draw His Honour's attention to the

fact that the summons related only to one

defendant?

MR PICKARD:  I have no recollection of that being expressly

drawn to His Honour's attention.

BRENNAN J:  Or impliedly?

MR PICKARD: Well, only in so far as it appears on the face

of the application, Your Honour.

BRENNAN J:	Not at all then by counsel.
MR PICKARD:	So far as I can recall, Your Honour, no there

was no suggestion in that respect.

MASON CJ:	What were you doing there?
MR PICKARD:	I had been served with the application,

Your Honour. It seemed appropriate that I attend.

MASON CJ: It seems you cannot assist us further,

Mr Pickard.

MR PICKARD:	I am not in a position to assist further.
MASON CJ:	We will see if Mr Hanks is in a position to

assist us further.

MR HANKS:  Yes, Your Honour. I have a recollection of the

occasion, as I presented the argument on behalf of

the first respondent, and the orders that were

sought - well, the order that was sought for the

Australian Government Solicitor was that order

which is referred to in the summons, that is an

order striking out the name of the Australian

Government Solicitor as a defendant. That was the

order that I sought.

At the conclusion of submissions before

His Honour Justice Dawson there was a reference to

the significance in terms of the future of the

litigation, if such an order were made.

MASON CJ:	Who made that reference?
MR HANKS:	Your Honour, I drew His Honour's attention to a

decision of this Court relating to the diversity

Murmings 25 23/3/94

jurisdiction of this Court, quite an old decision,

Your Honour, and I suggested to His Honou= that by

removing the party who provided the basis for
jurisdiction under 76(iii) of the Constitution, the

fact that there mighc be a remaining party who was

a resident of another State - and in fact there is

little uncertainty a$ to whether counsel who

appeared for the Australian Government Solicitor

are actually identified as parties to this

proceeding, but if they were then it might be

thought perhaps that the diversity jurisdiction

survived the removal of the Australian Government

Solicitor, and I drew His Honour's attention to the

decision in Watson and Godfrey v Cameron, 40 CLR

446, Your Honour.

It was decided by a Full Court, decided in, I

think, 1928. The judgments occupy - I think it is

seven members of the Court - one page. Each member

of the Court gave a separate judgment, and it was

to the effect that unless there is complete

diversity on both sides of the record then the

diversity jurisdiction, which is conferred by

section 75(iv) of the Constitution, cannot be

invoked.

TOOHEY J:  I am not clear, Mr Hanks, whether in drawing that

matter to His Honour's attention you were

supporting the relief sought in the summons,

although -

MR HANKS:	No, Your Honour, I was not doing that.
TOOHEY J:	You were not, were you?
MR HANKS:	I was doing no more, in my submission, than

indicating to His Honour that the order sought

could have consequences for the other parties. I

was not seeking, or applying to His Honour for him

to make an order other than the order sought in the

summons.

MASON CJ:  Mr Hanks, was any submission addressed to

His Honour in terms of the conclusions reached by

His Honour at the top of page 47 of the appeal

book, where His Honour deals with the separate

allegations against the respondents, Slicer and

Cunningham?

MR HANKS:  No, Your Honour. I recollect no submission,

certainly not by me. I was not concerned to

advance any such matters.

MASON CJ:  No.

Munnings 26 23/3/94

MR HANKS:  The matters that I edvanced are effectively dealt

with by His Hor.~ur in the first five pages of the

reasons for judgment.

MASON CJ:  One can understand that in the light of the

guidance that you offered in terms of the future of

the proceedings, based upon the earlier High Court
decision, that His Honour might have made a finding
in terms of no jurisdiction once the cause of
action against your client disappeared. But

instead of dealing with the matter in those terms,

His Honour's judgment virtually concludes with the

two sentences at the top of page 47 that go to the
basis of the cause of action against the two

respondents, not to jurisdiction.

MR HANKS:  Yes, Your Honour, that is so. I see that. But

my recollection is that counsel did not deal with

those matters in the course of submissions on the

return of our summons.

TOOHEY J: Could I just ask you, Mr Hanks, was the question

of a stay canvassed?

MR HANKS:  The only order that was sought, Your Honour, was

that order which was applied for in the summons.

There was, to my recollection, no debate before

His Honour as to any alternative form of relief.

TOOHEY J: Well, it was cumulative rather than alternative,

because the stay was granted in addition to the

relief sought in paragraph 1 of the summons.

MR HANKS: Relief which -

TOOHEY J:  I am sorry, can I just interrupt you. What about

then also the question of the order that the writ

not be renewed? Did that play any part in the

proceedings?

MR HANKS:  No, Your Honour, no. It played no part. My

recollection is that that was the subject of a

separate application made by the then plaintiff,
present appellant, which was not brought on for

hearing on that day.

TOOHEY J: But it is the subject of the first defendant's

summons also.

MR HANKS:  Yes, Your Honour, but it was not agitated at all.

We chose only to seek the order striking out the

Australian Government Solicitor, the first

respondent to this appeal, as a party. That is the

only matter for which we pressed on the return of

the summons. I suppose one might say we were

taking what we saw to be the short route to the

Munnings 27 23/3/94

result that we wished to achieve which was our

removal from the proceedings.

MASON CJ: Yes, thank you, Mr Hanks. Now, Mr Munnings, do

you wish to say anything in reply on the matters

that the Court has raised with Mr Pickard and

Mr Hanks? Only those matters, because they are the
matters that have been agitated by the Court. In
other words, you are not entitled to reply by way

of repeating or reinforcing the submissions that

you made in support of the appeal as you presented

it.

MR MUNNINGS:  Thank you, Your Honour. I would like to say

that the Court has been deceived by the

construction of the appeal book, and I notice the

questions directed to Mr Pickard. The three other

defendants each issued a summons seeking to set

aside service on the grounds that they had not been

personally served, but each of those three

defendants produced an affidavit to say that they

had received the writ within time. Those three

summonses were set down for hearing on 21 October

and it was Mr Pickard's application at the hearing of those three applications that they be adjourned

on the basis that the Government Solicitor was

considering making an application.

So that even in these matters the respondents

have been deceitful in that the three other

defendants, on the return date for their summons on

21 October, they applied for an adjournment and

those three applications were adjourned to

23 November. I would like to read - if that is the

formal word - my affidavit which appears at pages

34 to 37 of the appeal book. Your Honours will

note that the affidavit was sworn in Burnie at

8.40 am on 23 November 1993 and it is my submission

to the Court that the respondents deliberately

created a forum on 21 October on the application of Mr Pickard so that, with full knowledge of the date, 23 November, they could then compromise me by bringing their summons. So that. effectively I

received some papers on Saturday, 20 November with

the hearing date on 23rd.

Being faced with that situation, the best I

could do was to produce that affidavit, which I

have just read to the Court, pages 34 to 37, and

faxed that to the Registry in Melbourne and I am

assured that it was placed before His Honour

Justice Dawson, and that is one of the reasons why

I did not appear in Melbourne because they are very

skilful operators, where the three other defendants

set up a forum and then, on Mr Pickard's

application, have it adjourned to 23 November. It

is just a continuation of their behaviour.

Munnings 28 23/3/94

. MASON CJ:  Mr Munnings, we are concerned with the form of orders that were made by Justic8 Dawson. Now, you

have heard the discussion about the form of orders.

Do you want to present a submission to the Court

about the form of orders?

MR MUNNINGS: Well, I heard the discussion about there being

no jurisdiction in this Court if the

Government Solicitor is taken out, and my

understanding is that that is correct.	So I would
ask the Court to refer the matter to the

Supreme Court of Tasmania in relation to the other

defendants. Thank you.

MASON CJ:  Thank you. The Court will consider its decision

in this matter.

AT 2.43 PM THE MATTER WAS ADJOURNED SINE DIE

Munnings 29 23/3/94