Notaras v Waverley Municipal Council & Anor

[2008] HCATrans 232

[2008] HCATrans 232

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S650 of 2007

B e t w e e n -

IRENE NOTARAS

Applicant

and

WAVERLEY MUNICIPAL COUNCIL

First Respondent

ERROL WILFRED LEVITT

Second Respondent

Application for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 JUNE 2008, AT 2.21 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR P. KING for the applicant.  (instructed by NSW Legal Exchange)

MR M.G. CRAIG, QC:   May it please the Court, I appear with my learned friends, MR G.B. NEWPORT and MR M.A. STAUNTON, for the first respondent.  (instructed by Wilshire Webb Staunton Beattie)

MR N.A. HEMMINGS, QC:   May it please the Court, I appear with MR D.T. MILLER for the second respondent.  (instructed by Allens Arthur Robinson)

HEYDON J:   Mr Walker, I have a lot of sympathy for your client but what is wrong with the reasoning of the Court of Appeal?

MR WALKER:   If there is error, it relates to the matter where I have a further burden, namely, was it properly before the Court of Appeal?  I will call it the clause 1.6 matter and this is my answer to Justice Heydon’s question.  Your Honours will have seen at page 28 of the application book quoted in Justice Tobias’ paragraph 36 that the clause 1.6 which, in our submission, was wrongly approached by the reasoning of the Court of Appeal, an essential footing, correctly noted by our opponents in the written submissions, is that so‑called development control plans are statutory creatures promulgated by the consent authority, the Council.  They are there to make more detailed provision for matters within a relevant environmental planning instrument, namely, a local environmental plan.  They may not be inconsistent with such a plan and they are ineffective to the extent that they are merely the same.

Our friends are correct in pointing out that there is a difference between a development control plan and a local environmental plan.  On the other hand, the statute, section 79C, as your Honours have seen, requires in the list of matters that must be taken into account in considering an application for development consent that consideration be taken of a DCP.  That is the route by which we submit error is shown in the following stages of reasoning, if I may call them that, to be found on the following three pages of the application book. 

The first is page 70, where the argument in relation to the factual record – that is going to be important for the Suttor v Gundowda burden placed on us – is noted in paragraph 133 which, as your Honours will recall, clause 1.6 said of cases of so‑called exceedence of controls that in a particular case a particular control if able to be clearly demonstrated to be “unreasonable or unnecessary in the circumstances of the case”, may be the subject of a waiver by the Council.

In paragraph 135 on page 71 Justice Tobias answers what I will call that factual component of the case by noting that in the officer reports which, by fair inference were not only well before the decision‑makers but were taken into account, that is, given consideration by them, the exceedences in question had been described as “acceptable”.  Your Honours will see that quoted word in line 2 of paragraph 135.  His Honour then expresses the opinion, critical on the point in question, we would submit, that the notion of those exceedences being acceptable is tantamount to a finding in terms of clause 1.6 that a particular control, being those that had been exceeded, was unreasonable or unnecessary in the circumstances of the case.

In our submission, that is a matter which displays the Council by its officers and the decision‑makers quite properly taking into account what the officers had advised going beyond the rules which they had laid down themselves.  Here it is where a DCP’s nature and origin, namely, in promulgation by the Council itself, becomes a matter in support rather than against our position.  The Council had said that exceedences of things called controls could nonetheless produce development consent but only by a route which was guarded by the requirement for, first, clear demonstration, second, unreasonableness or lack of necessity and, third, in the circumstances of the case.  Then there may be consideration given to waiting that control.

That is a deliberate process of reasoning about matters for which more detailed provision had been made in the DCP in relation to objectives of the particular planning regime, including the residential amenity in the neighbourhood, which provided a form of safeguard according to a form of delegated legislation, the DCP, which cannot be said compendiously to be satisfied by the expression “acceptable”.  It is true, we accept, that the epithet “acceptable” might be used by way of generalised or descriptive conclusion to an outcome of reasoning and decision‑making which had stepped through and satisfied all those safeguards, that is, “acceptable” explained in the context of a determination that there had been the clear demonstration of the unreasonableness or the lack of necessity of the particular controls which had been exceeded.

HEYDON J:   But was there a duty to give reasons or set out the reasoning process?

MR WALKER:   No, there is not.  I do not have any foundation for an argument about a duty to give reasons.

HEYDON J:   Is your argument that the brevity of the material is such as to permit one to infer that there never was any concentration on whether there had been a clear demonstration that each control was unreasonable or unnecessary?

MR WALKER:   That is correct, your Honour.  It is the deliberateness of the Council’s own rules, clause 1.6, which bespeaks the significance of the best evidence relied upon by Justice Tobias, namely, the officers’ use in their reports of the word “acceptable”, but the significance is that the more deliberate the process, the more stringent the quality of judgment required, and 1.6 is most stringent when it talks about unreasonable or unnecessary and it is emphatically stringent when it talks about clear demonstration.

KIEFEL J:   Do you say that the officers may have directed themselves to the wrong test, in any event, if the word “acceptable” is used?

MR WALKER:   I do say that, but I would like to be able to go further as follows, namely, that by saying merely “acceptable” – they did not say “merely” but they did say “acceptable” and nothing more – that by proving that, we discharge our onus of proof that they had not carried through the process of reasoning which the Council had declared to the world and to the interested persons, including persons in my client’s position, would be carried out.  In our submission, serious error was committed by regarding the formal, solemn and lawfully binding promulgation of that test in 1.6 as capable as a matter of law of being satisfied by the officers’ description of “acceptable”.  We need to make it a matter of law and that is what we argue was made out in that fashion.

HEYDON J:   If this point had been taken in front of Justice Talbot, is there any possibility that further evidence could have met it?  That is what Mr Craig will ‑ ‑ ‑

MR WALKER:   Yes.  He has said it and that is the Suttor v Gundowda point which I anticipate is an obstacle in my way.

HEYDON J:   He said it to you.

MR WALKER:   I am sorry.

HEYDON J:   Mr Craig.

MR WALKER:   I think, between the lines, that is to be found in some of the written submissions against us.  Certainly it was fought and fought in lively fashion in the Court of Appeal.  May I very quickly touch on the way in which the Court of Appeal dealt with the matter that Justice Heydon has just raised with me.  First of all, in the opinion of Justice Hodgson – application book page 18, paragraphs 5 and 6 – it was not an obstacle.  It is to be borne in mind that the Court of Appeal was considering a record at trial of proceedings of a hearing in which my client was not legally represented.  She had the assistance at the hearing of a lay agent.

Justice Hodgson reached the conclusion that I have just noted and he differed, as he pointed out in paragraph 6, from Justice Tobias in that regard.  The course that Justice Tobias took was not, however, so simply to be characterised as Justice Hodgson was perhaps suggesting in paragraph 6.  First of all, at page 21, paragraph 19, Justice Tobias set out what I will call the pleading below, the points of claim at trial.  You see at about line 40 in paragraph 18 that there is reference to the DCP and to the exceedences but not to clause 1.6.

HEYDON J:   Page 21, line 40?

MR WALKER:   About line 40 or so.  That is the pleading at trial.  So it refers to DCP.  It refers to DCP2 and what I will call the exceedences but it does not refer to clause 1.6.  That is my comment.  On page 22, paragraph 21, his Honour notes that DCP2 was referred to and he says it is:

only in the context of the submission that the Council’s decision to grant the Consent was manifestly unreasonable.

Of course, that is the conclusion which we urge should have been reached by observance of the proposition that 1.6 had not been followed through.  We submit that there is nothing more elementary in relation to Wednesbury unreasonableness than an inexplicable failure to follow that which, in the legally binding DCP, had been announced to the world by the decision‑making body itself as the process by which exceedences would be dealt with.  At page 23, paragraph 24 there is the Suttor v Gundowda point taken and taken squarely against us in the Court of Appeal.

At page 24, paragraph 28, his Honour is noting ground 2 of the amended notice of appeal.  I will not take your Honours back to it but it is at page 13 and it raises the clause 1.6 point.  His Honour points out that it is different from the earlier version.  That, with respect, is correct.  At page 25, paragraph 31 just before line 40 there is a reference to the new ground 2 as providing a Suttor v Gundowda objection and your Honours note the last two lines of paragraph 31:

limited submissions were made both orally and in writing by the respondents with respect to that issue.

I certainly do not submit that they ever waived Suttor v Gundowda.  That was not done.  At page 26 in paragraph 32 the conclusion seems to be as follows at about line 9:

I would be inclined, without finally deciding, to accept that submission –

Now, “that submission” is the Suttor v Gundowda submission.  His Honour holds, and this is where the difference with Justice Hodgson is most obvious, that:

cl 1.6 was not relied upon before the primary judge and it is not referred to, even by implication, in the appellant’s Points of Claim –

to which I took your Honours.  The furthest I can travel in that regard by way of further answer is to say that the lay representative’s agreement that, in a nutshell, the case was that DCP2 had been ignored does by implication carry with it the only way in which exceedences could be accommodated, namely, clause 1.6 process having been ignored.  So, in our submission and with great respect, Justice Tobias’s conclusion that there was no reference even by implication to the points of claim is perhaps wrong.  In any event, he did not finally decide the Suttor v Gundowda point.

HEYDON J:   Yes, but there is a victim there then in paragraph 32.  I mean, how do you deal with the proposition “I accept that had that ground been raised at first instance, it may well be that the Council would have wished to call some or all of the councillors”?

MR WALKER:   Your Honour, in our submission, the evidence in question, the evidence the opportunity to give which is said to have been denied by the non‑explicit raising, if any raising, of 1.6 at trial, is that some or all of the councillors, or at least those who voted in favour of the granting of the consent, took the 1.6 provision into consideration and felt that it had been satisfied.  In our submission, bearing in mind the exhaustive documentary record which was in evidence before the Court, it is unrealistic or impractical to contemplate persons wishing, as we would put it, to contradict that record, as perhaps they would wish to put it, to supplement that record, in such a material way.

HEYDON J:   This is a bit hard for me at least to grapple with, you may be able to.  Are you saying that there were, for example, detailed minutes or detailed summaries of debates?

MR WALKER:   No, there is nothing of that kind.

HEYDON J:   What is the voluminous record then which would make it unthinkable or very difficult to imagine councillors coming along and saying something to the contrary?

MR WALKER:   They are officers’ reports of the kind which at their high watermark have the notion of acceptability.

KIEFEL J:   Council acts simply on the officers’ reports, is that what you are saying?

MR WALKER:   No.  They are not cat’s paws, no, your Honour.  There must have been, indeed your Honours ought to proceed on the basis that there was, discussion debate.

HEYDON J:   Maybe the councillors did not accept the officers’ reasoning but nonetheless reached a clause 1.6 conclusion for themselves.

MR WALKER:   I am bound to concede, with respect, that that is theoretically possible, but Suttor v Gundowda does not proceed upon merely theoretical matters.  There is a practicality in the reconstructed possibilities at trial had a point been taken, if I may put it this way, when it should have been.  There is quite a deal of practical reality necessary in order to ensure that a point which might be good at law is not closed off on appeal.  That is all I can say in answer to your Honour’s question.  I should complete, however, at page 60, paragraph 113 I should draw to attention that first sentence.  That is in relation to DCP2.  I frankly am not able to tell your Honours whether or not that is a granting of leave in relation to the clause 1.6 point.

Optimistically, I suggest to your Honours it lends itself to that reading, but one of the reasons I have taken you to, the earlier passages, particularly paragraph 32 which I just left, is that I am not quite sure how that fits.  But we would like to rely upon that as saying, no, in the Court of Appeal there was, and was properly, a full consideration of this matter uninhibited by Suttor v Gundowda problems, that is, his Honour does not appear to have ruled in that fashion.

Finally, page 89 at paragraph 157, the first line, about line 35, is expressed, I need to point out, in terms contrary to the proposition that there was actually a grant of leave.  Putting all of that together, in our submission, bearing in mind the lay representation at trial, bearing in mind that DCP2 being ignored was understood at trial “in a nutshell” as being the case and bearing in mind that clause 1.6 is, after all, the engine room part of the DCP2 in terms of exceedence of controls, all that combines, in our submission, to make it not unjust that the Court of Appeal dealt with that argument on the merits and certainly not now an obstacle to an important matter related to decision‑makers following their own rules being a species of delegated legislation as a ground for the manifest unreasonableness of the decision in this case.

HEYDON J:   That last submission raises this question.  The way Justice Tobias puts it in the first sentence of paragraph 157 on page 89 makes it sound as though there is a ground of manifest unreasonableness and there is a second ground, failure to give proper consideration to relevant provisions.  But you seem to be saying that it is an element of the manifest unreasonableness argument that there was this failure to give proper consideration.

MR WALKER:   Yes, I am, your Honour.

HEYDON J:   I thought manifest unreasonableness just depended on looking at what had happened and saying that is so unreasonable that no reasonable decision‑maker could have reached the decision.

MR WALKER:   Yes.  In this case what might otherwise be levelled at me as an unauthorised conflation was in fact what was before the court as his Honour had noted in relation to the amended notice of appeal at page 13, if I could take you to that now, where, very plainly, with respect, picking it up at about line 20, the allegation that the decision was manifestly unreasonable included the clause 1.6 matters.  Clause 1.6 language is the language at line 30.

HEYDON J:   But would it not be equally unreasonable, in a sense, if they had consciously and thoroughly resolved that they were unreasonable or unnecessary but just did so in some unreasonable way as to produce a Wednesbury result?

MR WALKER:   Your Honour, I am bound by my general instructions to say yes to that, but I am also putting an argument for special leave based upon their failure to satisfy the clause 1.6 requirements.  That is the point I am putting.

HEYDON J:   So you are putting two distinct ‑ ‑ ‑

MR WALKER:   No.  My general instructions are, does my client feel that the decision was manifestly unreasonable?  Yes, in every way imaginable, but many of them being a sense of grievance not capable of being presented as a special leave point.  I cannot ask this Court to entertain simply my client’s grievance on the merits that this was an unreasonable decision.  My legal articulation of the point, we submit, for special leave depends on clause 1.6.  It does not depend on inviting your Honours to say that wall is too high.  But the fact that the wall is too high I can assure your Honours is why my client has the position that the decision was manifestly unreasonable.  That is not something for which I would seek special leave, of course.

HEYDON J:   Thank you, Mr Walker.  Yes, Mr Craig.

MR CRAIG:   Your Honours, as has been foreshadowed, the submissions that we make are really in two parts.  The first is that properly understood the question that is raised expressly by reference to 1.6 is not a question in respect of which leave was granted, that is to say, leave granted in the Court of Appeal.  Although, as would be apparent from the passages to which my learned friend took the Court, the matter was not perhaps as clearly articulated by the members of the court as it could have been, the only proper conclusion to be drawn, in our submission, from the passages, particularly when one looks at the consideration given by Justice Tobias to the real prospect of evidence being available to the Council to be called, had the  1.6 point been articulated below and, secondly, what he says in paragraph 157 of the judgment, then it is, in our respectful submission, probably clear that what was being said in that judgment was that leave was not granted to argue the question of 1.6, albeit that on the material available the Court did consider the matter absent that evidence.

It is also to be remembered that although Justice Hodgson did express a view as to whether or not the point was available, which is the way, we would respectfully submit, his Honour’s judgment should be understood, the learned president, Justice Mason, agreed in the judgment of Justice Tobias; see page 17 of the application book.  So that the two members of the Court, by dint of the concurrence of the president with the judgment of Justice Tobias, were really saying, in our respectful submission, that the question of 1.6 as a separate ground upon which to argue that the Council had failed to consider the matters that were the subject of consideration, or had failed to address itself to the formula of words or collocation of words to be found in 1.6, was not a matter which should properly be open.  But to the extent that it was argued, bearing in mind the circumstance in which the argument came forward, as is enunciated in the judgment of Justice Tobias, the court considered could be partially considered on the documents available to it but, properly understood, it would not result and did not result in leave being granted to argue that point.

It is not, with respect, merely fanciful to suggest, as perhaps was to be inferred from my learned friend’s submission, or at least theoretical, that the Council would or could have called persons, namely, councillors, to have indicated the way in which they considered and resorted to paragraph 1.6.  Not only does, with respect, common sense indicate that to be so, that, with respect, seems to be the basis upon which Justice Tobias directed himself to that matter at page 26 of the application book, when his Honour said at line 12:

Further, I accept that had that ground been raised at first instance, it may well be that the Council would have wished to call some or all of the councillors, or at least those who voted in favour . . . to give evidence ‑

That is not hypothetical or theoretical, for this reason – and this goes to the history of dealing with the matter.  The whole question of development of this particular site was under consideration by various members, employees – I should say staff members and councillors – over a period of 13 months.  As the recitation of fact as set out in detail in the judgment of Justice Tobias reveals, initially there was a report by a council officer which detailed all of the provisions of the development control plan, dealt with the extent to which the development as it then stood did not comply with that plan, made a recommendation as to the manner in which that could be addressed by the applicant and recommended to his superiors that the matter be deferred whilst the applicant for consent be given an opportunity to amend plans to accord with his recommendation.

The delegated body, which was called the development and building unit, comprised of senior officers of the Council, did not accept that recommendation and that resulted in the refusal of the application.  There was then a request in accordance with the statute, section 82A, that the consent be reviewed by the Council and thereafter there ensued a process of further consideration, first by a further council officer, a Mr Adey, who assessed all of the terms of the development control plan that were relevant, that had been raised and were the subject of consideration in the court below, not only identifying the extent of transgression at that stage but also identifying what the object of the particular controls was, what the impact in this particular case was of non‑compliance and ultimately recommending that the development be approved on conditions.

That recommendation was initially rejected by the next level of consideration within the Council, namely, the DBU, or development and building unit, the officers, but because this was a review under section 82A, that body having rejected the application in the first place, it was necessary then to go to a further or higher level committee which in fact was a committee of the councillors comprising the councillors as a whole. all 12 of them.  That committee of senior officers initially recommended that the application be refused, again detailing discussion of the transgressions, as they saw it, against the provisions of the particular development control plan.

The councillors who, as the evidence revealed, inspected the site did not accept the recommendation for refusal but rather suggested that the application be deferred for further consideration and recommending to the applicant that further amendment be made to the plans in order to accommodate or more closely accommodate the requirements of the development control plan, the non‑mandatory document.  As a result of further dealings, without reciting chapter and verse what occurred, that transpired between September and December of 2005, the application was considered at all times thereafter both by members of staff and by this committee of the Council comprising councillors.

I have used that recitation of fact not only to indicate the extent to which the detailed provisions of this development control plan were considered, in particular, those aspects of it that were the subject of attack in these proceedings, but also to demonstrate that the decisions ultimately – and there were effectively three of them – having been made by the councillors, it would have been highly relevant to have called at least those in favour, as Justice Tobias identifies at paragraph 32 on page 26 of the application book, to indicate their awareness of not only the provisions to which their attention had been drawn by officers detailing matters such as height, floor space, set back and car parking, but also to understand the extent of the discretion that was available to them.

It is also to be remembered, with respect, that the development control plan with which they were dealing, as Justice Tobias notices, was a development control plan that was directed generally to residential development within the local government area of Waverley.  It could hardly be suggested, we would submit with respect, that the councillors in a metropolitan suburb of Sydney dealing with the very development control plan that governed residential development, which, as his Honour Justice Tobias notices, had been in operation since 1999, this decision being made in 2005, it beggars belief that the councillors would not have been familiar with the discretion available to them in order to allow development that did not comply strictly with the requirements of the development control plan.

As Justice Tobias notices as well, the development control plan, while its provisions were required to be considered, did not mandate a result, no less the case in the context of clause 1.6.  More importantly, as was adverted to a little earlier, there is nothing either by reference to the common law – see this Court’s decision in Osmond – nor indeed by reference to the particular provisions of the Environmental Planning and Assessment Act or the Local Government Act is there any requirement for a council giving a decision to approve or refuse development to indicate the reasons for so doing.

Absent a requirement to state reasons – and we would respectfully submit that it is a case of a challenger necessarily bearing the onus of establishing the negative, that is to say, the failure to have considered in terms the requirements of the development control plan in particular, as is

relied upon here, the provisions of clause 1.6.  The fact that there had been compliance, in our respectful submission, may properly be drawn not only from the familiarity which one would, we would respectfully submit, assume in the case of councillors regularly administering a general residential policy, but would be also inferred properly, in the absence of any evidence to the contrary, of which there was none, that at the time at which – rather by reason of their involvement in the matter over many months of decisions which required, or rather, to be more precise, deferred the consideration of the development until certain amendments were made designed to bring the development into closer conformity to the development control plan, would give rise properly to an inference, which was in fact drawn in the Court of Appeal’s judgment, that they were well aware of it and indeed applied it.

Nothing in the development control plan, in particular in 1.6, required there to be a demonstrated exercise, or rather an articulated exercise, of the discretion which that clause afforded, rather, it required only that it be acknowledged, that is to say, its existence acknowledged, and it provided the means by which, in the context of the very clause itself, that the councillors formed the opinion, armed with the material with which they had been provided over these many months, that it was unnecessary in the circumstances to require compliance.

Ultimately, as the Court of Appeal’s judgment also demonstrates, the extent of non‑compliance was very small.  In the case of height, as Justice Tobias notices, ultimately there was one point in the dwelling in which the height exceeded the DCP control by 60 millimetres.  In reference to the other matters that were the subject of criticism by reference to the development control plan, it was noticed and recorded in the judgment that there was, to the extent to which there was a floor space ratio exceedence – one of the complaints made by the applicant for leave – that the excess over the requirement was manifest by subterranean development; in other words, not manifest to the eye.

Thirdly, it was acknowledged that the building set backs generally conformed with those in the street and that, so far as car parking was concerned, there was no manifest impact by reason of the number of car spaces that exceeded the control.

HEYDON J:   I think we need not trouble you further, Mr Craig.

MR CRAIG:   If the Court pleases.

HEYDON J:   Have you anything in reply, Mr Walker?  We need not hear from you, Mr Hemmings, at this stage.  Yes, Mr Walker.

MR WALKER:   Your Honours, in relation to the Suttor v Gundowda point, in our submission, the contention which was pleaded at first instance to which I have drawn attention previously at page 21 of the application book, paragraph 18, is one which in itself, evoking as it does DCP2 and making an allegation that what was or what was not considered, would already have excited, if anything was to excite, consideration of whether to call councillors. 

The second point I want to make in reply is at page 29.  My learned friend has characterised the approach of the Court of Appeal, in effect, as producing the same outcome as would be produced by applying the maxim omnia praesumuntur rite essa acta.  Paragraph 38 is rather to the contrary of that and paragraph 38 it is which, in our submission, quite squarely shows the importance as a matter of general public importance in relation to the legal regulation of important local government planning decisions, that the decision‑makers follow the rules they have promulgated as a form of delegated legislation. 

In paragraph 38 his Honour effectively says that because DCPs themselves do not have the status of an environmental planning instrument such as a local environmental plan, that the provision in the DCP provided by way of more detailed provision and self‑announced as guidelines for decision‑making, could also be ignored.  In our submission, that raises a very serious question about the way in which, for the purposes of Wednesbury unreasonableness, the court should approach the spectacle of a decision‑maker saying as solemnly as it could, because this was the height of what it could say about its processes, “We will look for clear demonstration that something is unreasonable or unnecessary and then we will consider waving compliance with a control”.  But, rather, instead of complying with that, the decision‑maker, according to the conclusion in paragraph 38, is entitled simply to say, “Well, on the facts of this case it is acceptable without going through that process”.  In our submission, that does raise a serious question justifying the grant of special leave. 

Thirdly and finally, in our submission, there are no complications in this case of a factual kind contrary to an impression that may have been gained by reference to both the administrative history and the planning details of this case.  All those findings of fact are accepted for the purpose of the clause 1.6 argument for which we would seek special leave.

HEYDON J:   The Court will adjourn for a short time to consider the matter.

AT 3.02 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.03 PM:

HEYDON J:   The point which the applicant wishes to agitate on appeal if special leave to appeal were granted is a point which was not raised at trial.  It is also a point which, in terms of realistic possibilities, it would have been open to the respondents to have met by calling further evidence.  It is therefore not a point which, in accordance with the principle stated in Suttor v Gundowda Pty Ltd is open to be agitated in this Court.  Accordingly, special leave must be refused.

Any application?

MR CRAIG:   We make an application for costs, your Honour.

HEYDON J:   Mr Walker?

MR WALKER:   There is nothing to be said.

HEYDON J:   Application dismissed with costs. 

The Court will adjourn to Monday, 16 June 2008 at 2.15 pm in Brisbane.

AT 3.05 PM THE MATTER WAS CONCLUDED