Ousley v The Queen

[1996] HCATrans 404

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M45 of 1996

B e t w e e n -

DAVID PATRICK OUSLEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 DECEMBER 1996, AT 9.32 AM

Copyright in the High Court of Australia

MR O.P. HOLDENSON, QC:   If the Court pleases, I appear for the applicant.  (instructed by McLennans)

MR G.B. FLATMAN, QC:   If the Court pleases, I appear with my learned friend, MR J.D. McARDLE, for the respondent.  (instructed by the Director of Public Prosecutions (Victoria))

BRENNAN CJ:   Mr Holdenson.

MR HOLDENSON:   In this matter, the question arose as to whether or not the warrants which had been issued under the Victorian Listening Devices Act authorised the police to engage in conduct which otherwise would have been both tortious and criminal were valid.

GAUDRON J:   How did the question arise, Mr Holdenson?

MR HOLDENSON:   The question arose at trial in this way; it was detected that the warrants failed to comply with the provisions as perceived by council with the provision specified in section 4A(1) of the Listening Devices Act, and an application was made at trial for that attack to be made ‑ ‑ ‑

GUMMOW J:   When you say it was “detected” - by what actual procedural steps?

MR HOLDENSON:   Copies of the warrants were provided at the trial to trial counsel, and trial counsel detected that there was an inconsistency between the provisions of the Act and the form of the warrants; that is, on the face of the warrants there was no reference to the matters which had to be the subject of the satisfaction as prescribed by paragraph (b) of section 4A(1).  The argument was eventually characterised - notwithstanding the statement to the contrary in the judgment below, it was eventually characterised in this way - and, in fact, perhaps it is appropriate, given that the document is not in the application book, if I hand up, if I might, through my learned friend’s instructor to the Court crier, passages from page 37 onward of the - if I could take the Court to page 37, the photocopy commences at page 36 - keeping in mind that the relevant ruling is set out in the application book is from page 41 of the transcript, if I could take the Court to page 37, fourth line from the head of the page, and I quote:

So what you are saying -

and this is the discussion between the learned trial judge and defence counsel -

is the absence from any mention in the wording of the warrant that the court was satisfied that the relevant police officer suspected or believed that for the purpose of an investigation into the offence, and then all those matters, or any of the matters in (b), because of the omission to refer to that, that that was not a matter that Marks J or Coldrey J turned his mind to.  Is that what you are saying?

And effectively the answer is yes.  And scattered throughout the discussion was reference to the Bunning v Cross discretion, it, of course, being ‑ ‑ ‑

BRENNAN CJ:   Was this on a voir dire?

MR HOLDENSON:   Preliminary argument.  There was no voir dire because there was no evidence called by reason of the content and effect of the ruling of the learned trial judge, that ruling being set out, of course, in the application book at page 12 where his Honour regarded himself - and perhaps if I take the Court to that passage, page 12, line 18:

I don’t regard myself as having the power to embark upon such an exercise -

And then, at the foot of the page:

And on the basis of that, I rule that I have no jurisdiction to entertain this application.

GAUDRON J:   What was the application?

MR HOLDENSON:   The application was to exclude the evidence obtained by way of the use of these warrants and the use of the listening device - to be excluded as unlawfully obtained, the Bunning v Cross discretion being invoked.  But, of course, the effect of the ruling was that counsel was thereby shut out, or precluded from adducing any evidentiary material and exploring the issue.  Now, of course, it might be said that the better case upon which to rely, as distinct from Bunning v Cross, would have been the case of either Ireland, which refers specifically in the judgment, of course, of Chief Justice Barwick - evidence obtained in breach of a statute, or, of course, the subsequent decision of Pollard v The Queen, where Chief Justice Mason, as he then was, of course, spoke in some detail about recklessness.

In this case, it was contended not only that the warrants were invalid, but the discretion may well have been exercised in favour of the accused at the trial, because it must have been the case that someone had detected that there was an inconsistency between the form of the warrants as required by the Act, so it is submitted, and the form of the warrants which were at least being used in this case and, presumably, all other cases.

GAUDRON J:   But is that not one of your difficulties; namely, prima facie at least, the warrant conforming to the form in the rules of court, it is an unlikely prospect that the discretion would have been exercised in favour of the accused?

MR HOLDENSON:   That, of course, in my submission, depends upon whatever evidence there was adduced as to people having knowledge of this.  Now, it may be that the discretion would, at the end of the day, have been exercised in a manner adverse to this applicant, and that was clearly stated by myself in the court below.  On the other hand, however, upon exploring - if that be the right expression - the background to the use of these warrants over some years, it may well have been the case that something else emerged.  And, of course, this applicant was shut out from pursuing any of that by reason of the ruling which, in my submission, is clearly in error, because any judge, in any court, has the power to entertain a collateral attack in respect of a warrant.

BRENNAN CJ:   What do you say is the defect?  It is a defect in form of the warrant, is that right?

MR HOLDENSON:   There are really two submissions:  one, all warrants being issued by subordinate authorities - whether they be magistrates, justices, Justices of the Peace, or people who just happen to be Supreme Court of Federal Court justices.

BRENNAN CJ:   What do you mean by “subordinate authorities”?

MR HOLDENSON:   Subordinate authorities, that being the expression used by Mr Justice Fox in what might be said to be the leading case Reg v Tillett; ex parte Newton.

BRENNAN CJ:   Do you say the Supreme Court is a subordinate authority?

MR HOLDENSON:   I say by way of submission that in so far as the issue of a warrant is concerned, where the warrant is issued in the exercise of an administrative function, the warrant is issued by what ought be called, keeping in mind conventional administrative law principles, a subordinate authority.

BRENNAN CJ:   I do not understand that.

MR HOLDENSON:   Well, I use the expression “subordinate authority” in the same manner as used by Mr Justice Fox in Tillett’s Case, as set out in the passage ‑ ‑ ‑

BRENNAN CJ:   I understand that in Tillett’s Case, but how do you make the Supreme Court into a subordinate authority?

MR HOLDENSON:   In the same way that the judge, in exercising an administrative function, is amenable to judicial review; that is, conventional administrative law principles are applicable to the exercise of such a power, as was clearly entertained ‑ ‑ ‑

BRENNAN CJ:   Can you give me an example in which the Supreme Court has been subject to judicial review?

MR HOLDENSON:   The case in the bundle of materials provided to the Court - the unreported decision of Mr Justice James of the Supreme Court of New South Wales on 9 February this year, Haynes v Attorney‑General (New South Wales), it is the unreported decision in the bundle provided to the Court, where Mr Justice James entertained an application by way of judicial review in respect of four warrants issued under the New South Wales Listening Devices Act, or under section 16 of that Act, which is identical to section 4A of the Victorian Act, where four brothers and/or sisters of his Honour Mr Justice James issued warrants under that Act and, in so doing, failed to comply with what his Honour held was a mandatory condition; namely, to identify the police officers who were authorised to use the listening devices, that being the equivalent to section 4A(4)(d) of the Victorian Act which provides:

A warrant granted by the Supreme Court under this section must specify the following matters:
           .....
           (d)  The name of any person who may use a listening device -

Mr Justice James - if I could take the Court to page 21, at the last page, held, and I quote:

In my opinion all four warrants should be declared null and void and should be quashed and I make declarations and orders accordingly.

Then there was an order as to costs.  His Honour, in that case, having followed cases in the nature of decisions of this Court - Love v Attorney General and, of course, Coco, albeit that was a case involving collateral attack of a warrant issued by a justice of the Supreme Court of Queensland -

BRENNAN CJ:   That was a case in which in the event of non‑compliance with the Act the evidence was, by statute, inadmissible.

MR HOLDENSON:   That is correct.  But nevertheless, in my submission, Coco is authority for the proposition that there may be collateral attack entertained in a criminal trial - albeit, as I understand it, that criminal trial took place in the Supreme Court of Queensland, as distinct from what might be called an inferior court, namely, the District Court of Queensland - but his Honour entertained the application and the High Court said what it did in respect of the exercise of jurisdiction by the judge in that case.

If I could assist the Court with a number of passages in the judgment of Mr Justice James, there are some passages which perhaps clarify that which I have been putting by way of submission.  At page 13, at about point 4, it is said, and I quote:

It is also submitted on behalf of the defendants that the act of a judge in issuing a warrant pursuant to the Act could not be reviewed, because a decision of a judge of a superior court is not open to administrative review.  I do not consider that this submission should be accepted.

And your Honours will then see reference to Coco’s Case and, on page 15 of his Honour’s judgment, a reference to the case of Love.  Then, at page 17 - if I might take the Court to page 17 of his Honour’s judgment, at about point 7, and I quote:

In my opinion, the requirement in s16(4)(d) -

which is the precise equivalent of section 4A(4)(d) in the instant case -

can be regarded as being, or at least as being analogous to, a statutory requirement that a person empowered by a statute to do an act should do it in a particular way -

BRENNAN CJ:   Now, Mr Holdenson, the New South Wales Act is in exactly the same terms - the jurisdiction is vested in the Supreme Court?

MR HOLDENSON:   Yes, sir.

BRENNAN CJ:   Well, now I understand your submission.  But now, taking it as a matter of principle here, if you have an order of the Supreme Court - forget the term “warrant” - an order of the Supreme Court, then does the argument that you now advance have any substance?

MR HOLDENSON:   Yes, it does, and it does for this reason; any order of a superior court is presumed to be regular.  That presumption is, of course, rebuttable.  Authorities which indicate that in no uncertain terms are also set out on the outline of submissions.  In paragraph 12, part 2 the ‑ ‑ ‑

BRENNAN CJ:   Before you go on with that, how would you seek to rebut the validity of this order?

MR HOLDENSON:   I would seek to rebut it in this way:  there is a reference on the face of the warrant to one only of the two matters which must be the subject of the prescribed satisfaction.  In circumstances where the other is not referred to, and in circumstances where the authority conferred by the warrant as a matter of construction is dependent upon that which precedes it on the warrant, then it can be inferred - presumption rebutted - that the issuing judge did not have regard to the other matter, or did not reach the requisite satisfaction.

BRENNAN CJ:   In other words, if they are on appeal to the Court of Appeal, the Court of Appeal, looking at the order made, would treat it as a speaking order and quash it.

MR HOLDENSON:   Yes.

BRENNAN CJ:   And that, despite the fact that it is in accordance with the form prescribed by the rules of the Supreme Court.

MR HOLDENSON:   That is correct, because it may have been a different story if the form of the warrant had been prescribed by the Listening Devices Act or some statutory rules under that Act.  In this case, the form of the warrant was prescribed by rules under a different Act; namely, the Supreme Court Act.

GAUDRON J:   Does the Listening Devices Act permit that to be done?

MR HOLDENSON:   No, the Listening Devices Act ‑ ‑ ‑

GUMMOW J:   It starts this way, does it not; section 4(1) imposes a prohibition with the sanction of the criminal law?

MR HOLDENSON:   Yes.

GUMMOW J:   Section 4(3) lifts the prohibition on subsection (1), provided what was done was done in accordance with the warrant issued under section 4A?  Then we get to section 4A, and 4A(1) seems to - at least by implication - invest the Supreme Court with the power.

MR HOLDENSON:   Yes.  Now, your Honour uses the expression “power”.  The expression “power” has been the subject of determination by the High Court in the case of Love, and determined that the Supreme Court, in identical legislation in New South Wales, is exercising an administrative function.

GUMMOW J: Then rules are made under the - well, they are called the Criminal Appeals and Procedures Rules 1988. Is the relevant empowering provision section 25 of the Supreme Court Act 1986?

MR HOLDENSON:   It presumably is, and I say ‑ ‑ ‑

GUMMOW J:   There does not seem to be anything in the Listening Devices Act.

MR HOLDENSON:   There is a regulation - power in the Listening Devices Act.  Section 9 provides that:

The Governor in Council may make regulations for or with respect to any matter or thing required or permitted ‑ ‑ ‑

GUMMOW J:   Yes.  Well, this was the Supreme Court.

MR HOLDENSON:   The Supreme Court made rules, presumably under section 25 - and I say “presumably” because when the Supreme Court closed what might be called the “gap” created by any doubt there was in respect of this case, they amended the rules to close the gap and the amending rules - and I provided the Court with a copy of them - provide that the rules which amend the form are made under section 25 of the Act, and I quote from section 2 of the statutory rules, “and all other enabling powers”. But nevertheless, section 25 does appear to be ‑ ‑ ‑

GUMMOW J:   What other enabling powers would there be, apart from some inherent authority by virtue of the nature of the Supreme Court?

MR HOLDENSON:   In my submission, there are not any.  But there might be something in circumstances where quite a number of justices of the court below have signed a document which indicates that the amending rules are made under what I have indicated.

GAUDRON J:   In any event, notwithstanding what has been done, it could only be of effect if it was consistent with the Listening Devices Act itself.

MR HOLDENSON:   Correct.  And the Listening Devices Act provides, in no uncertain terms - as the court below held - that before the judge can issue or grant the warrant, he must be satisfied that there are reasonable grounds for two things, and only one of them appears on the face of the warrant. 

GUMMOW J:   This word “warrant” in a way is - it carries a certain amount of baggage, the word “warrant”.  In fact, it is really an authority to lift the prohibition under the Listening Devices Act.  It is called a “warrant”.

MR HOLDENSON:   Yes.

GAUDRON J:   And called it in the legislation itself.

MR HOLDENSON:   Yes, the legislation so provides.  Baggage the word might have, but it has been a word which has been used, naturally, by the High Court in Love’s Case.  Perhaps if I could indicate to the Court a case which highlights the problem in respect of this warrant.  If I could take the Court to the South Australian decision of Tran Nominees v Scheffler (1986) 42 SASR 361. If I could take the Court to a passage in the judgment of the primary judge, his Honour Mr Justice Jacobs, a passage which, of course, was endorsed on appeal by the Full Court of the Supreme Court of South Australia. At 371 point 8, and I quote - it is about 14 lines from the foot of the page:

In short, the recitals on the face of the warrant show a state of satisfaction which is not sufficient in terms of the statute.  It does not refer, either generally or specifically, to a suspected offence.  It recites a state of satisfaction which, if it has any meaning at all, is not a state of satisfaction required by the statute, and therefore the warrant is bad on its face, whatever the true state of satisfaction may have been.

Subsequently, at 373, at about point 8 on the page again, about 10 lines from the foot of the page he says, and I quote:

and I can see no reason why, consistently with the general principles enunciated earlier, the Court should be astute to sustain the warrant by attributing to the issuing officer a state of satisfaction which, on the face of the warrant, he does not claim to have had.

And then at the head of the next page, 374 - and this is a passage upon which particular reliance is placed in this application - at the head of 374:

I am not convinced that such a recital is necessary, but that does not mean that one must, or can, ignore a recital which denies the statutory authority for the issue of the warrant.

That was, of course, taken up by each of the three members of the Full Court of the Supreme Court of South Australia and, with respect, perhaps used even stronger language.

BRENNAN CJ:   But these are all cases - and this is what, I think, my brother Gummow was referring to as “baggage” in relation to the term “warrant” - when a warrant is produced in answer to some claim or charge, for example, on the return of a habeas corpus, then the instrument that is produced must show the justification for the action taken.  Now, in this case there is not going to be any habeas corpus, there is not going to be any prohibition; it is simply an order which lifts the prohibition on the conduct that is referred to in section 4. 

If, for example, the Supreme Court was invested with the power to order the Community Services Director to take possession of a child who is at risk, would you say that in such a case an order, purporting to be nothing but an order, had to show all the statutory conditions precedent to the exercise of the power?

MR HOLDENSON:   I would, and I would be on fairly strong ground because there is an authority in point which I have in my bag here - a decision of his Honour Mr Justice Young in the Supreme Court of New South Wales, L v Director‑General of Community Services, in about (1988) 13 NSWLR, which is authority for the proposition that each of the matters required to be the subject of satisfaction must appear on the face of the warrant, or the order which ‑ ‑ ‑

BRENNAN CJ:   Issued by the Supreme Court?

MR HOLDENSON:   No, issued by another party.  But, in my submission, this perhaps is one of the points requiring clarification of the Court by way of a grant of special leave.  One of the issues in the case is whether or not - I might indicate the red light is showing, if I might just ‑ ‑ ‑

BRENNAN CJ:   Yes, I understand that, but finish your sentence, Mr Holdenson, if you can remember where you were.

GAUDRON J:   I think the Chief Justice had asked if it was an order by the Supreme Court.

MR HOLDENSON:   The answer is, no, it was not an order of a judge of the Supreme Court, but in circumstances where the nature of the order is one which is amenable to judicial review - as evidenced by, for example, the judgment of Mr Justice James - in my submission, it is also an order which is amenable to collateral attack in a criminal trial where two circumstances are relevant - liberty of a subject and, of course, section 4A, as identified by your Honour Justice Gummow is the means by which the prohibition imposed by section 4 of the Act is averted. 

There is, perhaps, one further matter, by way of my duty to the Court.  Your Honours will, of course, have seen - I have made mention to it - that the statutory rules have been amended in this jurisdiction, and I have provided copies of the statutory rule to the Court.  The gap has, of course, been closed.

GUMMOW J:   What gap?

MR HOLDENSON:   If there be one, depending upon whether or not the Court accedes to the submissions on behalf of the applicant.  But the precise gap, if it be a gap, is still within the New South Wales statutory regime.  If the Court pleases.

BRENNAN CJ:   Thank you, Mr Holdenson.  Mr Flatman.

MR FLATMAN:   May it please the Court.  It is our submission that the reasoning of the Court of Appeal was plainly correct; that the question raised by the applicant in the Court of Appeal depended upon an interpretation of the section in the Listening Devices Act, that it was a matter of statutory construction, and that the Act set out those matters that were required to be stated on the face of the warrant and that, to that extent, the Act operated as was set out in Karina Fisheries as a statutory code.

The argument that Tillett ex parte Newton and the cases following it provided authority for the proposition that, notwithstanding the failure to require it to be placed on the warrant by the statute, is not an argument that has any relevance to the facts situation here.  Tillett’s Case, as has been pointed out, followed a line of law referring to inferior jurisdictions in circumstances where it was desirable that the jurisdiction be disclosed on the face of the warrant. 

In Tillett’s Case, the section of the Commonwealth Crimes Act was silent as to what was required to be put on the face of the warrant, and the Court of Appeal, in our submission, correctly held that that, and the authorities following it, did not stand for any general proposition that all warrants must show jurisdiction on their face.  Indeed, very similar arguments were followed from Karina Fisheries and a line of cases, including Flanagan v Commissioner of Australian Federal Police.

GAUDRON J:   Does that suggest that there is a conflict between decisions of superior courts?

MR FLATMAN:   No, your Honour.

GAUDRON J:   Well, what about Mr Justice James in the Supreme Court of New South Wales?

MR FLATMAN:   It is not a conflict, because in the case of Haynes, that related to a specific failure to comply with a statutory requirement, which was a real issue.  But here, they are talking about going behind the requirements of the statute, and that clearly ‑ ‑ ‑

GAUDRON J:   Going behind the express requirements.

MR FLATMAN:   Express requirements of the statute.

GAUDRON J:   It remains a question whether as a matter of necessary implication.

MR FLATMAN:   But there is no conflict between those cases.  They can live, in my submission, happily together because there is a clear distinction in the issues.  In fact, it fits in with the authority in Karina Fisheries, because that did turn on the fact that one of the matters that was required to be stated was not stated on the face of the warrant in that case. 

BRENNAN CJ:   Mr Flatman, in this case the primary judge decided that once he is faced with an instrument purporting to be issued under the authority of this Act by the Supreme Court, he, as a judge of the county court, had no jurisdiction to investigate its validity.  That is correct?

MR FLATMAN:   That was the position taken by the primary judge.

BRENNAN CJ:   Now, if he had investigated its validity, and if, for some reason - for example, that which was found by Justice James in New South Wales - the warrant had proved to be invalid, he would then have had to exercise a Bunning v Cross discretion, is that right?

MR FLATMAN:   That is so.

BRENNAN CJ:   But he never got to that stage.

MR FLATMAN:   No.

BRENNAN CJ:   Does that indicate that there was an area of investigation that ought to have been pursued?

MR FLATMAN:   Well, your Honour, the difficulty is that the only issue that could have arisen is this issue on the face of the warrant, the complaint that is made, that the law requires both grounds of satisfaction to be disclosed on the face of the warrant.  The argument could, at best, be only put in the way that it was put in the Court of Appeal; that because one ground was stated, it must follow, as a matter of fact, that the issuing judge did not have regard to the other ground.  In my submission, the approach taken by the Court of Appeal is a proper approach in relation to that in saying that that can be readily explained by the circumstances of the Supreme Court Rules, and it could not have given rise to the kind of invalidity that my friend suggests.  Indeed, that is what the Court of Appeal impliedly held.

BRENNAN CJ:   In other words, you could not draw the inference of non‑consideration of the paragraph (b) matters.

MR FLATMAN:   No.  In my submission, the way the Court of Appeal approached it was an overwhelming inference to be drawn that clearly the judges would have been following the rules of the Supreme Court and that no judge, in those circumstances, would not have been having regard to his duty in what is a fairly short statutory provision, and quite clearly sets out those matters that a judge has to be satisfied of.  In my submission, it would not have got to that stage.  But even if it had, the next issue is it really could not give rise to a Bunning v Cross discretion in the circumstances where a police officer, having applied for a warrant and received it in the form

expressed under the Supreme Court Rules, could not - it could not be argued that he would be acting otherwise than in good faith.

The circumstances giving rise to any arguable Bunning v Cross discretion, in my submission, are really unimaginable.  The circumstances clearly point to the bona fide situation of the police officer in those circumstances, and the execution of the warrant in those circumstances.  So, we would say it fails at both levels and that, really, the question becomes hypothetical at this stage, before this Court.

The other matters were really not - the question of regularity was considered by Mr Justice O’Loughlin in the first Karina Fisheries Case, and specifically not considered by the Court of Appeal here.  Our position is simply the Court of Appeal was plainly right.  The matters raised in this particular appeal do not raise matters of general application.  There is a hypothetical element to the application in any event, having regard to the Bunning v Cross discretion and the reality of the facts surrounding that.  The fact that the Supreme Court Rules in the interim have been amended so that it recites the part (b) satisfaction, as well as the part (a) satisfaction, reduces even further the argument that this is properly a matter involving general questions of law appropriate for this Court.  That really is the respondent’s submissions.  Thank you.

BRENNAN CJ:   Yes, thank you, Mr Flatman.  Mr Holdenson.

MR HOLDENSON:   In the ruling set out at page 12 of the application book, his Honour effectively ruled that he could not entertain any attack in the nature of a collateral attack of a warrant issued by the Supreme Court.  It is submitted that his Honour thereby erred.  If authority be required for that proposition, one need go no farther than the recent decision of the Full Court of the Federal Court in Flanagan, in which the Full Federal Court held, in respect of a warrant issued by a judge of the Federal Court under the Telecommunications (Interception) Act that the Bunning v Cross discretion could be exercised by the trial judge in the County Court trial.  Now, the effect of the ruling is precise ‑ ‑ ‑

BRENNAN CJ:   That is where you have got a power vested in a judge as a personae designatae, is it not?

MR HOLDENSON:   Yes.  In my submission, that is the same case here, by reason of a - when one has regard to the nature of the function being exercised.  Grollo v Palmer, in this Court last year held, in respect of a TI warrant, that Love’s Case was applicable; Love being in respect of listening device warrants issued by judges of the Supreme Court of New South Wales, that the function being exercised was administrative in nature.  Now, of course, the effect of the ruling was to shut out, as I have indicated by way of submission, the accused at trial from pursuing a successful outcome.  Instead - and the State Government Insurance Commission (1986) 161 CLR 141 - it was said by this Court at page 147 that all that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome.

Of course, in so far as the order made by the judges in the instant case, if I might finally take the Court to a passage in the judgment of his Honour Mr Justice Dawson in the case of Reg v Gray; ex parte Marsh (1985) 157 CLR 351 where, at page 393 his Honour said, and I quote, at 393 point4:

A superior court is a court of general jurisdiction, which does not necessarily mean that it has unlimited jurisdiction but that it will be presumed to have acted within jurisdiction:  see Peacock v. Bell and Kendal.  It is because a superior court is presumed to have acted within jurisdiction that it is said that, in general, prohibition does not lie to a superior court, even though its jurisdiction is limited.  Nevertheless, prohibition does lie to a superior court of limited jurisdiction if the want of jurisdiction is apparent.

It is submitted that, in this case, the order of the superior court, whatever be its nature, was of limited jurisdiction in circumstances where the Act provides that certain matters must be found prior to the issue or grant or making of the order, and the want of jurisdiction is apparent from the face of the record.  Unless your Honours have any queries or concerns, that concludes the submissions on behalf of the applicant.

BRENNAN CJ:   Thank you, Mr Holdenson.  The Court will adjourn briefly in order to consider what course it will take in this matter.

AT 10.09 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.18 AM:

BRENNAN CJ:   The Court has decided that there will be a grant of special leave in this case but, in the course of the preparation of the matter for argument, a variety of questions that could arise should bear consideration by counsel.  Among those questions is the question of the power to prescribe rules of court in aid of or incidental to the exercise of powers vested in the Court which are administrative in nature, so that questions of validity of such rules and the authority to prescribe them should receive some consideration by counsel.  That is not to be taken to give any indication of any tentative view of the Court but simply in order to illustrate that the issues that could arise in a case of this kind are many and each of them will require consideration.  Under the new practice direction it will, of course, be necessary for counsel to prepare and submit written outlines of their argument.  Those outlines should contain references to appropriate parts of cited authority.  Thank you, gentlemen.

AT 10.20 AM THE MATTER WAS CONCLUDED