Pareroultja, J. v Tickner, R

[1993] FCA 104

i

104 1 ' 4 9 3 '

JUDGMENT NO. .. ...... ........ . -.-h ;

I	IN THE FEDERAL COURT OF AUSTRALIA	)
i	1 t 1.
NEW SOUTH WALES DISTRICT REGISTRY	) NO. G 40 of 1993
1
GENERAL DIVISION	1

BETWEEN:  JANICE PAREROULTJA, DULCIE 1..

JUKKADAI, IVY IMI-, , CLIVE

IMPU . BILLY PAREROULT JA,

I

ELFREIDA UNGWANAKA, HERMAN r

I	MALBUNKA, FREDDY MALBUNKA,
I	TROUGOT MALBUNKA, JOYCE . ,
MALBUNKA, TIMOTHY UNGWANAKA Applicants

AND	ROBERT TICKNER	)
First respondent	!
j ,
KUNMANARA BREADEN AND MAX	, ,
STUART	I '

Second respon

CORAM:	BEAUMONT J.
PLACE	: SYDNEY

m:  8 MARCH 1993 10 MAR 1993

FEDERAL OF !

MINUTES OF ORDER

THE COURT ORDERS:	L
I

Order 36 of the Federal Court Rules.

-.

1.    Direct that on or before 12 March 1993, the applicants

file and serve a draft stated case in accordance with	l :
these reasons.	I
b . ,

2.	Costs of the motion reserved.	I
I .

Note: Settlement and entry of orders is dealt with in

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY )

1

GENERAL DIVISION )

BETWEEN :	JANICE PAREROULTJA, DULCIE JUKKADAI. IVY IMPU, CLIVE IMPU . BILLY PAREROULTJA, ELFREIDA UNGWANAKA, HERMAN MALBUNKA, FREDDY MALBUNKA, TROUGOT MALBUNKA . JOYCE MALBUNKA. TIMOTHY UNGWANAKA
Applicants

AND	ROBERT TICKNER
First respondent
KUNMANARA BREADEN AND MAX STUART
Second respondent

CORAM:	BEAUMONT J.
PLACE :	SYDNEY
DATE :
-	8 MARCH 1993

REASONS FOR JUDGMENT

INTRODUCTION: Before the Court is a notice of motion by the

applicants in the principal proceedings for orders, first, pursuant to 0.29 r.2, that a question arising in the principal proceedings be determined as a preliminary question; and secondly, that the preliminary question be the subject of a case stated for the consideration of a Full Court, pursuant to s.25(6) of the Federal Court of Australia Act 1976. The motion is opposed by the respondents.

The applicants claim to be traditional Aboriginal owners of lands near Lake Amadeus in the Northern Territory. The f; ;t respondent is the Minister of State for Aboriginal and Torres Strait Islander Affairs. The second respondents, who applied to be joined in the principal proceedings after their commencement, also claim to be traditional Aboriginal owners of the Lake Amadeus lands.

It is clear that, in respect of each application, the Court has a discretion; and that the discretion is to be exercised in the interests of justice in the light of the particular circumstances of the case as they presently appear (see v Queensland (1988) 166 CLR 186 per Mason C.J. at 195-6; cf. per Deane J. at 223; see Barton v. WestDac Bankinq Cor~oration (1983) 50 ALR 397 at 415; Northern Land Council v The Commonwealth (No. 2L (1987) 61 ALJR 616; see also the decision of the Full Federal Court in Frizzier0 v

Rice (1992) 36 FCR 449).

In order to understand the context in which the motion arises, it is necessary to refer to the case pleaded by the applicants in their statement of claim.

THE CASE PLEADED BY THE APPLICANTS IN THEIR STATEMENT OF CLAIM

The material allegations in the statement of claim

may be summarised as follows.

In accordance with the reasoning of Brennan J. in Mabo v Queensland (No. 2 1 (1992) 175 CLR 1 at 58-63, the applicants claim to be among the indigenous inhabitants and traditional owners of he unalienated Crown lands, near Uluru in the Territory, comprised in the Lake Amadeus Land Claim ("the lands") dealt with in 1988 by Maurice J., as Aboriginal Land Commissioner, pursuant to the provisions of the Aboriqinal Land Riahts (Northern Territorvl Act 1976 ("the Land Riahts Act"). The first respondent is the Minister charged with the administration of the Land Riahts Act. Maurice J. found the applicants to be traditional Aboriginal owners of the lands in June 1988. The applicants say that they acknowledge traditional law and observe traditional customs in respect of the lands. They claim to have "a human right to own the land and their descendants have the human right to inherit it according to their traditional law and customs".

It is said that, thereby, the applicants "are possessors of the native title to the lands" and, as such, are entitled, as against the whole world, to possession, occupation, use and enjoyment of the lands.

Reference is then made to the provisions of s.9 of the Racial Discrimination Act 1975 as follows:

" 9 . ( 1 ) I t i s unlawful for a person t o do a n y a c t

i n v o l v i n g a d i s t i n c t i o n , e x c l u s i o n ,

r e s t r i c t i o n o r p re f e rence based on r a c e ,

colour, descent or national or ethnic origin which has the purpose or e f f e c t o f

nu l l i f y ing or impairing the recognition,

enjoyment or exercise, on an equal footing, o f any human right or fundamental freedom i n the poli t ical , economic, social, cultural or r:ly other f ie ld o f

public l i f e .

(2 ) The reference i n subsection ( 1 ) t o a human right or fundamental freedom i n the p o l i t i c a l , economic, social, cultural or any other f ield o f public l i f e includes a reference t o any right o f a kind referred t o i n Art icle 5 o f the Convention.

[By Article 5 of the International Convention of the Elimination of all Forms of Racial Discrimination, State parties "undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or

ethnic origin, to equality before the law.. . "

Reference is made to the enjoyment of the following, inter alia, rights:

II _ the right to own property alone as well as in

association with others"

- The right to inherit".]

( 4 ) The succeeding provisions o f t h i s P a r t do not

l i m i t the generality o f subsection (1) . "

Reliance is also placed by the applicants in their statement of claim, upon the provisions of s.10 of the Racial Discrimination Act as follows:

"10. (1 ) I f , b y reason o f , or o f a provision o f , a l a w o f the Commonwealth or o f a State or Territory, persons o f a particular race, colour or national or ethnic origin do not enjoy a r ight that i s enjoyed b y persons o f another race, colour or national or ethnic origin, or enjoy a r ight t o a .are limited extent than persons o f another race, colour or national or ethnic origin, then, notwithstanding anything i n that l a w , persons o f the first-mentioned race, colour or national or ethnic origin shall , by force o f t h i s section, enjoy that right t o the same extent as persons o f that other race, colour or national or ethnic origin.

( 2 ) A reference i n subsection ( l ) t o a right

includes a reference t o a right o f a kind referred t o i n Art icle 5 o f the Convention.

( 3 ) Where a l a w contains a provision that:

( a ) authorizes property owned b y an

Aboriginal or a Torres S t r a i t Islander t o be managed by another person without the consent o f the Aboriginal or Torres S t r a i t Islander; or

(b) prevents or r e s t r i c t s an Aboriginal

or a Torres S t r a i t Islander from terminating the management by another person o f property owned by the Aboriginal or Torres S trai t Islander;

persons generally without regard t o their	not being a provision that applies t o
race, colour or national or ethnic origin, that provision shall be deemed t o be a provision i n relation t o which subsection (1 ) applies and a reference i n that subsection t o a right includes a reference t o a r ight o f a person t o manage property owned b y the person. "

It is then alleged that, in June 1988, Maurice J. recommended that two parcels o f land, being part of the lands,

be granted to an Aboriginal Land Trust to be constituted by

the first respondent under the provisions of the Land Riahts Act. It is next claimed that, under the provisions of the Land Riahts Act, the Land Trust will have, to the exclusion of native title holders, powers as the owner of the lands, together with the power to acquire the estates and interests of other persons in the lands. The applicants also say that, under the provisions of the Land Riahts Act, the Land Trust is prohibited from exercising its functions except in accordance with a direction given to it by a Land Council.

The applicants claim that the grant of the lands under the Land Riahts Act would amount to an extinction of the applicants' native title or, alternatively, a substantial restriction of the applicants' rights as the holders of native title to the lands. It is said that the recommended grant of the lands to a Land Trust would contravene the Racial Discrimination Act for these reasons:

" ( a ) The grant o f the l a n d would be c o n t r a r y t o the

Rac ia l D i sc r im ina t i on A c t because i t

con t ravenes s 9 ( 1 ) i n t h a t it would be the d o i n g

o f	an	a c t	i n v o l v i n g	a	d i s t i n c t i o n	or
r e s t r i c t i o n	based	on	r a c e ,	c o l o u r	and	d e s c e n t

which	h a s	the	purpose	o r e f f ec t of	n u l l i f y i n g
o r	i m p a i r i n g	the	r e c o g n i t i o n ,	enjoyment	or
exercise,	on	an equal	f o o t i n g ,	o f human	r i g h t s

by the pos se s sor s o f n a t i v e t i t l e to the land

namely the r i g h t	t o own	p r o p e r t y and	the r i g h t
t o inherit	and	the r i g h t s i n c i d e n t a l	thereto.

(b) The grant would a r i s e w i t h i n the meaning o f

s l O ( 1 ) o f the A c t by r e a s o n o f a l a w o f the Commonwealth and by reason o f a grant pursuant t o t h a t l a w the a p p l i c a n t s and the other

p o s s e s s o r s o f n a t i v e t i t l e t o the l a n d b e i n g

members o f the Abor ig ina l r a c e would n o t e n j o y

a	r i g h t	t h a t i s en joyed	by per sons	o f	other
r a c e s	o r would	e n j o y r i g h t s	t o a	more	l i m i t e d
extent	t h a n persons	o f	other	r a c e s	namely,

their	r i g h t	o f	f u l l ,	free	and	u n f e t t e r e d
ownership ,	management	and	c o n t r o l	o f	the	l a n d

would be d e s t r o y e d , impaired or r e s t r i c t e d .

( ; The Land R i g h t s Ac t a u t h o r i s e s l a n d owned by

Abor ig ina l p o s s e s s o r s o f the n a t i v e t i t l e t o be

managed by a n o t h e r ent i ty namely a Land T r u s t

w i t h o u t the consen t o f the n a t i v e t i t l e h o l d e r s

w i t h i n	the	meaning	o f	s l O ( 3 ) ( a )	o f	the	A c t .
Such	a	p r o v i s i o n	does	n o t	a p p l y	t o	persons

g e n e r a l l y i n A u s t r a l i a w i t h o u t regard t o their

r a c e and hence i s a p r o v i s i o n t o which s lO(1 )

o f the A c t a p p l i e s so t h a t by reason o f s lO(1)

the a p p l i c a n t s a r e e n t i t l e d , n o t w i t h s t a n d i n g

the p r o v i s i o n s o f the Land R i g h t s Act, t o e n j o y

the r i g h t o f management o f the l a n d t o the same

e x t e n t a s a n y o t h e r owner or t i t l e h o l d e r o f

l a n d i n A u s t r a l i a .

( d ) The Land R i g h t s Act p r e v e n t s or restricts the

n a t i v e t i t l e h o l d e r s o f the l a n d from

t e r m i n a t i n g management o f the l a n d by the Land

T r u s t	w i t h i n	the	meaning	o f	s 1 0 ( 3 ) ( b )	o f	the
A c t .	The	s a i d	p r o v i s i o n	o f	the A c t	i s not	a

p r o v i s i o n which a p p l i e s t o persons g e n e r a l l y

w i t h o u t regard t o their r a c e and hence i s

deemed	t o be	a	p r o v i s i o n	i n r e l a t i o n	t o which
s l O ( 1 )	a p p l i e s .
Thus ,	by reason o f a	p r o v i s i o n	o f a	l a w o f	the
Commonwealth	the	a p p l i c a n t s	a s pe r sons	o f	the
Abor ig ina l	r a c e	a r e	e n t i t l e d	t o e n j o y the	r i g h t

o f t e r m i n a t i o n o f management over their l a n d t o

the same e x t e n t a s a n y o t h e r owner or t i t l e

h o l d e r o f l a n d i n A u s t r a l i a .

( e ) B y r eason o f the m a t t e r s set o u t i n

subparagraphs (b), ( c ) and ( d ) above the grant

o f the l a n d t o a Land T r u s t would u n l a w f u l l y

i n f r i n g e the r i g h t c o n f e r r e d upon the

a p p l i c a n t s and other h o l d e r s o f n a t i v e t i t l e

w i t h i n the meaning o f s10 ( 1 ) o f the A c t .

The applicants claim the following declaratory relief (and other consequential injunctive relief which is not presently material):

"1. A d e c l a r a t i o n t h a t a grant o f the l a n d

p u r p o r t e d l y i n accordance w i t h t h e Land R i g h t s

Act i s o r would be u n l a w f u l .

2. A d e c l a r a t i o n t h a t the a p p l i c a n t s a r e

t r a d i t i o n a l owners o f the l a n d and h o l d n a t i v e

t i t l e t o the l a n d i n accordance w i t h their law,

t r a d i t i o n a,i<:  cus tom.

3. A d e c l a r a t i o n t h a t the A p p l i c a n t s be e n t i t l e d

t o e n j o y their n a t i v e t i t l e and a l l i n c i d e n t s

p e r t a i n i n g thereto i n r e s p e c t o f the l a n d i n

accordance	w i t h	the i r	l a w s ,	t r a d i t i o n	and
cus toms	w i t h o u t	i n t e r f e r e n c e	s a v e	f o r	l a w f u l

s o v e r e i g n a c t . "

THE APPLICANTS' DRAFT STATED CASE

For present purposes, only the first declaration sought b y the applicants is relevant. What the applicants now seek is that there be determined, as a preliminary question (either b y the trial or b y a Full Court on a case stated) whether the applicants are entitled to the declaratory relief sought in para.1 of the relief claimed in the statement of claim.

The applicants have submitted a draft stated case in

these terms: 

" 1 . The A p p l i c a n t s c l a i m t o be p o s s e s s o r s o f the

n a t i v e t i t l e t o c e r t a i n l a n d i n the Northern

Territory o f A u s t r a l i a more p a r t i c u l a r l y

de sc r ibed i n Paragraph 10 o f the Appl ican t s '

S t a t emen t o f Claim f i l e d and s e r v e d i n these

proceed ings ('the Land ' ) .

2. O n o r about 8 May 1981 the Northern T e r r i t o r y

purpor ted t o grant t o Ian B a r r y Conway and

T imothy Lander a Crown Lease o f l a n d i n c l u d i n g

the l a n d . Tha t l e a s e i s and h a s been h e l d by

this Court t o be v o i d and o f no e f fec t because

the Northern T e r r i t o r y d i d n o t a s a t 8 May 1981

have the power t o grant such a l e a s e (Attorney

General fNT1 v Hand (1989) 25 FCR 345) .

3. The Respondent h a s i n i t i a t e d s t e p s p r e p a r a t o r y

t o recommending a grant o f the l a n d pursuant t o

the p r o v i s i o n s o f the Abor ig ina l Land R i g h t s

(Northern	T e r r i t o r y ) Act	1976	( ' the Land	R i g h t s
A c t ' ) .

4 . The A p p l i c a n t s f e a r t h a t ths aespondent i n t e n d s

t o recommend the l a n d for grant t o a Land T r u s t

pursuant	t o	the	p r o v i s i o n s	o f	the	Land	R i g h t s
Act.

5. The A p p l i c a n t s a s s e r t t h a t such a grant

pursuant t o the Land R i g h t s A c t would be an

un lawfu l e x t i n c t i o n , impairment , interference

w i t h	r e s t r i c t i o n	o f	their	n a t i v e	t i t l e	to	the
l a n d .

6 . The A p p l i c a n t s d o not consent to a gran t of the

l a n d b e i n g made i n accordance w i t h the

p r o v i s i o n s o f the Land R i g h t s A c t .

STATED CASE

1. Whether a grant o f the l a n d pursuant t o the

p r o v i s i o n s o f the Land R i g h t s Act i s or would

be un law fu l w i t h o u t the consen t o f the h o l d e r s

o f the n a t i v e t i t l e thereto."

As has been said, the respondents oppose the present motion. Their opposition is based upon discretionary grounds to be mentioned later. However, on behalf of the first respondent, an alternative submission is put to the effect	that if the Court were disposed, in principle, to proceed	first to a preliminary question, the following questions
should be considered:

" 1 . F o r the purpose o f s u b s e c t i o n 9 ( 1 ) o f the

Racial D i sc r im ina t i on Act 1975, would a grant

o f l a n d under paragraph 12(1) ( a ) o f the

Abor ig ina l	Land	R i g h t s	(Northern	T e r r i t o r y ) Act
1976 t o a Land	T r u s t ,	the A b o r i g i n a l s	for	whose

benefit such l a n d would be h e l d by such T r u s t

b e i n g i m m e d i a t e l y before such grant e n t i t l e d t o

r i g h t s and p r i v i l e g e s i n r e l a t i o n t o the l a n d

under n a t i v e t i t l e and some o f them not

c o n s e n t i n g t o such g ran t , amount t o the d o i n g

o f an r e s t r i c t i o n a c t i n v o l v i n g a d i s t i n c t i o n , exc lus ion ,

or pre ference based on race ,

co lour , descent or nat ional or e t h n i c o r i g i n

which had the purpose or e f f e c t o f n u l l i f y i n g

or impair ing the recogn i t ion , enjoyment or

exercise, on an equal foo t ing ,	o f any human
r i g h t or fundamental	freedom i n the p o l i t i ~ ~ l ,

economic,	s o c i a l ,	c u l t u r a l	or	any	other	f i e l d
o f p u b l i c	l i f e ?

2. F o r the purpose o f subsec t ion l O ( 1 ) o f the

Racial Discriminat ion Ac t 1975, i s the

Aboriginal Land R igh t s (Northern T e r r i t o r y ) Act

p a r t i c u l a r r a c e , co lour o r na t iona l or e t h n i c	1976 a l a w by reason o f which persons o f a
o r i g i n do n o t e n j o y a r i g h t t h a t i s enjoyed by
persons o f another race , co lour or na t iona l or
e t h n i c o r i g i n o r a l a w by reason o f which
persons o f a p a r t i c u l a r race , co lour or
nat ional or e t h n i c o r i g i n e n j o y a r i g h t t o a
more l i m i t e d e x t e n t than persons o f another
race , co lour o r na t iona l or e t h n i c o r i g i n ?

3 .       I f the answer t o either o f the preceding two

ques t ions i s i n the a f f i r m a t i v e , f o r the purpose o f subsec t ion 8 ( 1 ) o f the Racial Discriminat ion Act 1975, i s the Aboriginal Land R igh t s (Northern Territory) Ac t 1976 a spec ia l

measure t o which paragraph 4 o f Article 1 o f the In te rna t iona l Convention on the El iminat ion
o f A l l Forms o f Racial Discriminat ion app l i e s?
4 .	I f the answer t o the preceding ques t ion i s i n
the a f f i r m a t i v e , f o r the purpose o f subsec t ion
8 ( 1 ) o f the Racial Discriminat ion Ac t 1975, i s
the Aboriginal Land R igh t s (Northern Territory)
Ac t 1976 a measure i n r e l a t i o n t o which
subsec t ion l O ( 1 ) o f the Racial Discriminat ion
Act 1975 a p p l i e s by v i r t u e o f subsec t ion 1 0 ( 3 )

o f the Racial Discriminat ion Ac t 19757"

(By s.8(1) of the Racial Discrimination Act it is provided that Part I1 (in which ss.9 and 10 appear) does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which subsection lO(1) applies by virtue of subsection lO(3).

By paragraph 4 of Article 1, it is provided as

follows :

" 4 . S p e c i a l measures t a k e n f o r the s o l e purpose o f

s e c u r i n g adequate advancement o f c e r t a i n r a c i a l o r

ethnic groups or i n d i v i d u a l s r e q u i r i n g such

p r o t e c t i o n a s may be n e c e s s a r y i n o r d e r t o e n s u r e

such groups or i n d i v i d u a l s equal enjoyment or

exercise o f human r i g h t s and fundamental freedoms

s h a l l not be deemed r a c i a l d i s c r i m i n a t i o n , prov ided ,

however, t h a t such measures d o not, a s a

consequence ,	l e a d	t o	the	maintenance	o f	s e p a r a t e
r i g h t s	for	d i f f e r e n t r a c i a l	groups	and	t h a t	they

s h a l l n o t be con t i nued a f t e r the o b j e c t i v e s for

which they were t a k e n have been ach i eved . " )

CONCLUSIONS ON THE MOTION

The respondents concede that the applicants have the requisite standing to claim such a declaration and, in any view, the concession is properly made (see Toowoomba Foundry Ptv. Ltd. v The Commonwealth (1945) 71 CLR 545; Onus v Alcoa of Australia Limited (1981) 149 CLR 27; and as to the suitability of declaratory relief - see Ainsworth v Criminal Justice Commission (1992) 106 ALR 11 at 22, 33). Specifically, in the present context, reliance is placed by the applicants

upon the following observations made by Brennan J. in

(No. 2L (at 61-2:

" .	.	.where	an	i nd igenous peop l e	( i n c l u d i n g a	c l a n	or
group) ,	a s	a	community,	a r e	i n p o s s e s s i o n	or	a r e
e n t i t l e d	t o	p o s s e s s i o n	o f	l a n d	under	a	p r o p r i e t a r y
n a t i v e	t i t l e ,	their	p o s s e s s i o n	may	be	p r o t e c t e d	or

their	e n t i t l e m e n t	t o p o s s e s s i o n	maybe	e n f o r c e d	by	a
r e p r e s e n t a t i v e	a c t i o n	b rough t	on	b e h a l f	o f	the
peop l e	or by a	sub-group	o r i n d i v i d u a l	who	s u e s	t o
p r o t e c t	or	enforce r i g h t s	or	interests	which	a r e
dependent	on	the	communal	n a t i v e	t i t l e .	Those

r i g h t s and interests a r e , so t o speak , carved o u t o f

the communal n a t i v e t i t l e . A sub-group o r

i n d i v i d u a l a s s e r t i n g a n a t i v e t i t l e dependent on a

communal native title has a sufficient interest to sue to enforce or protect the communal title... A communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and

interests in the community's lands. "

On behalf of the respondents, it is submitted that, in the proper exercise of the Court's discretion, the present motion should be refused. In particular, it is said that no useful purpose can be served by embarking upon the limited enquiry presently proposed by the applicants (i.e. declaration 1) unless and until declarations 2 and 3 are granted. In short, it is said, for the respondents, that the preliminary question now sought to be raised may be hypothetical because, in order to succeed in any ultimate sense, the applicants must first establish that they are, in fact and in law, members of a group with native title and represent that group.

Whilst there is force in this submission, I cannot

accede to it. In my view, for reasons which I give shortly, Moreover, the importance and legal novelty and complexity of

the preliminary question will not necessarily be hypothetical.

the issues raised by the preliminry question justify, I think,
its reference to a Full Court in the first instance.

It is true that, at the trial of the principal

proceedings, the applicants may fail to establish that
are entitled to possession of the lands under a proprietary
native title; so that the applicants may be refused that
second and third declarations they seek in their statement of
claim. But it would not necessarily follow that the question
whether the first declaration they seek (that is the
preliminary question) jrould be hypothetical. As has been
said, the standing of the applicants to bring the principal
proceedings is common ground. Specifically, it is conceded
that it is sufficient, for the purposes of the first
declaration sought, if the applicants assert their native
title in order that the Court may properly entertain their
claim which is with respect to the operation of the provisions
of the Racial Discriminal Act upon the statutory procedures
contemplated by-the Land Ricrhts Act. That question, which is
one of statutory interpretation, may properly be considered
and determined without the need to make findings as to the
native title, if any, possessed by the applicants. Of course,
in order to agitate this question of statutory interpretation,
the applicants must demonstrate their standing to sue for a
declaration with respect to the effect and operation of the

material statutory provisions. This standing has been properly acknowledged and clearly, a declaration made with

respect to the operation, if any, of the provisions of the Racial Discrimination Act upon the material procedures laid down by the Land Riahts Act could not be a merely hypothetical exercise.

For these reasons, I propose to order that a case be stated for a Full Court. The case should be in the form propounded by the applicants save that, in addition to the question set out in the applicants' draft stated case, there should be included questions 1, 2, 3 and 4 suggested by the first respondent. Although there i, some overlap between these questions and the question framed by the applicant, these questions focus on specific matters which now appear to arise for determination.

ORDERS PROPOSED

I propose to make the following orders:

1.    Direct that on or before 12 March 1993, the applicants file and serve a draft stated case in accordance with these reasons.

2.   Costs of the motion reserved.

I certify that this and the preceding

re a true copy of the

Reasons for	his Honour
Associate