QBE Insce Ltd v Switzerland Insce Workers Comp

[1996] HCATrans 20

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S135 of 1995

B e t w e e n -

QBE INSURANCE LIMITED

Applicant

and

SWITZERLAND INSURANCE WORKERS COMPENSATION (NSW) LIMITED

First Respondent

H & D McRAE CARRIERS PTY LIMITED

Second Respondent

WAYNE BRIAN BURLEY

Third Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 5 FEBRUARY 1996, AT 3.07 PM

Copyright in the High Court of Australia

MR M.S. HOLMES, QC:   If it please the Court, I appear with my learned friend, MS J.E. STUCKEY-CLARKE, for the applicant.  (instructed by Bruce & Stewart)

MR D.M.J. BENNETT, QC:   If the Court pleases, I appear with my learned friend, MR J.O. ANDERSON, for the first and second respondents.  (instructed by Hunt & Hunt)

GAUDRON J:   Thank you.  The Registrar certifies that the third respondent in this matter submits to the decision of the Court, save as to costs.

MR HOLMES:   If I could briefly take the Court to page 2 of the outline of the summary of argument.  In paragraph 2.2 there is a chronology.  The significant dates are that the first injury that the worker suffered was on 13 May 1986, before the passing of the 1987 Act.  At that period, QBE Insurance was the insurer.  If I could jump then to paragraph 4.  After sustaining a number of injuries he was in the employ of Linfox, his then employer.  On 30 December 1991 when he suffered his fourth injury the insurer was Switzerland, and for the purposes of the proceedings there is no difference between Switzerland General or Switzerland NSW.

Paragraph 2.3 of my submissions is that the Compensation Court found that the third respondent suffered a single incapacity and that each injury had made an effective contribution to it.  That is disputed by the respondent.  Could I take the Court therefore to the entries upon which that is based, because that matter is challenged.  The applicant says that in essence that is exactly what the Compensation Court found, and if I go through the application book, firstly at page 8, line 20 commences:

The episode of 30 December 1991 produced a marked aggravation of symptoms and was ultimately sufficient to have the applicant off work for seven months, so that it too was something of significance in the applicant’s end state.

In other words, that had made a contribution to the end state.

GAUDRON J:   Were these findings made before the question of contribution between insurers arose?

MR HOLMES:   Yes.

GAUDRON J:   And were you represented at the Workers’ Compensation Court?

MR HOLMES:   Yes.

GAUDRON J:   At this stage?

MR HOLMES:   At this stage, yes, we were represented in the interests of QBE.  Then the next entry in the application book is at page 9, line 5.  The learned trial judge said:

I should say that it seems to me that his incapacity for work is the product of injuries received before the commencement of the Workers Compensation Act 1987 and afterwards.

What the court did not say was that it was separately caused by each injury.  You have one incapacity where there is a cumulative product of those injuries in that incapacity.  If I could then go to page 13, line 10.  When talking about his impairment at the time of the hearing:

The impairment is the product of the various injuries I have described.

If you go to line 45, again he repeats it:

It is the product of all of the injuries.

So, with respect, it is our submission that there was a single incapacity which was the product of all of the injuries, in essence that each had made an effective contribution to it.

GAUDRON J:   But that is not the precise finding that was made, is it?

MR HOLMES:   Well, your Honour, the finding that was made I am coming to next on page 14.  The findings are expressly stated at line 50 and following, but before going to there he talks about the injuries at line 20.  Those injuries suffered include the injury caused:

The first of them has contributed to the need for surgery.  The second of them has diminished the ameliorating effects of the surgery or contributed to that diminution.

So his present incapacity was the result of the contributions of all the injuries, not separately caused in its totality by each injury.

GUMMOW J:   But Mr Bennett does not challenge The Insurers Guarantee Fund line of cases, I think.

MR HOLMES:   He does challenge the rule that is laid down by them; he puts it in 1.a and 1.b in a form which we would disagree with and I come to challenge that.  At the moment I am dealing with Part 2, point 1.  His Honour did not make the finding referred to in paragraph 2.3.

GUMMOW J:   If the situation on fuller examination is that Mr Bennett is not attempting to, even though you say he may have achieved it, disagree with the Insurers Guarantee Fund, it just becomes a question which that issue of importance falls away; it just becomes a question of, as it were, looking into this particular set of findings, unsatisfactory as they appear to be, because they have engendered this disagreement between you as to what they mean.  Why is that a question of public importance?

MR HOLMES:   Public importance stems from what happened in the Court of Appeal.  The appellant went before the Court of Appeal and raised one matter for determination by the Court of Appeal and that was whether or not it was open to the court to make the apportionment under section 22.  The section requires an apportionment of liability.  The line of cases says there can be no apportionment unless each injury produced the same incapacity and was responsible for the same compensation.  Then you have a liability for an amount, or a liability under the Act, which is the same and you can apportion liability.  The line of cases does not use the word “contribution”.  Where a number of injuries have contributed to an end state, then the line of authority says that the last injury in respect of which there was effective contribution, here the injury in December 1991, the insurer on the risk is the only one which is responsible.  Therefore, it is not open to make any apportionment.

GAUDRON J:   Were submissions made at first instance as to the findings that had to be made before there could be apportionment?  You see, it seems to me very strange that the trial judge would have proceeded to make an apportionment on these findings if there had in fact been submissions about the issue.

MR HOLMES:   Well, your Honour, at the time of putting the written submissions as appears on page 4 in 3.3, in the Compensation Court it was submitted that once it was accepted that the last injury made an effective causative contribution to the worker’s resulting condition of total incapacity, the insurer on risk at the time of the last injury is wholly responsible for the compensation payable.  Now, if one then goes back to Mr Bennett’s submissions at page 2  ‑ ‑ ‑

GAUDRON J:   But do you not say, “and in the Compensation Court”?  I know you say that, but it does not appear from the record that those submissions were in fact made in the Compensation Court.

MR HOLMES:   That is correct, your Honour.

GAUDRON J:   And it seems strange that there should have been findings in the terms there were if the submissions had in fact been made.

MR HOLMES:   Your Honours, when Mr Bennett’s submissions were received this morning, we noticed at page 2 paragraph 3.6 there was a dispute for the first time about that.

GUMMOW J:   Well, they are dated 30 January, I see.

MR HOLMES:   I appreciate that.

McHUGH J:   And I read them on Thursday night, I think.

MR HOLMES:   They were faxed by Hunt & Hunt this morning at 8.25.  We have endeavoured to make the inquiries for the transcript.  The transcript is available, but it is in storage out at Kingswood, and in the time available we have not been able to get the transcript to resolve that dispute.  So, your Honours, the position is that it was raised fairly and squarely before the Court of Appeal.  In the supplementary application book, the submissions ‑ ‑ ‑

GAUDRON J:   Which one?

MR HOLMES:   The second one, your Honours.  At page 60 your Honours will see that QBE, the applicant on this application, abandoned every single ground of appeal, except for the ground, namely, the findings amounted to a contribution by each of the injuries and therefore, consistent with the NEM line of authority, it is:

the insurer on risk at that time -

is wholly responsible.

If one then goes on to page 3, there are the authorities which are set out, and at line 40:

The findings of his Honour clearly indicate that the totality -

if your Honours will note the words “the totality of the injuries”-

of the injuries suffered by the worker had a cumulative effect on his capacity for work, so that the last injury made a causative contribution to the incapacity -

Your Honours will note that those submissions were matched by the written submissions of the respondents to this appeal and at page 67 the submissions do not deal with a cross‑appeal because as at that date they had not been served.  In the supplementary application book, the second version, the transcript then starts at page 68, and if I could take the Court to page 76 at line 25, there is reference to the “written submissions”, and at line 30:

HOLMES:   Because of the law relating to the last insurer on risk being responsible for all of the injuries and if you look at the curious chronology you have the same employer, Linfox in 1983 and in 1990 and the cases seem to say there can be no apportionment where you have got a single employer, so if they get rid of the injury to Linfox.....and so QBE can be saddled with all of the responsibility -

PRIESTLEY JA:   Have the case laws changed -

HOLMES:   It has probably become a bit clearer with this most recent case of Moore.

The case of Moore is not referred to in the written submissions; it was referred to in the list of authority given to the Court of Appeal.  Then over at page 78.

GAUDRON J:   What is the significance of Mr Justice Priestley’s question?

I am wondering why wasn’t the Swiss insurer alert to this point at the time?

MR HOLMES:   Your Honour, that is in relation to another matter.  This is the document which was handed to the Court of Appeal.  My friend has not seen this.  If I could hand to your Honours four copies.  It has been reproduced in the summary of the argument.  On the left there are the four injuries, then in the centre there is the employer.  Linfox was not challenged to be the employer on the last occasion, and the insurer did not challenge that Linfox took over the employment.  What was raised on appeal was that Linfox was not the employer.  If Linfox was not the employer there would be no question of apportionment of Linfox’s responsibility, because the only injury would then be the 1986 injury, and QBE is the name against it.

GAUDRON J:   Yes.

MR HOLMES:   So that is what that raised.  That is why we said at line 55:

We are not aware of any cogent reason why they should be allowed to re-argue the matter.

Namely, whether they were the employer or not.  Then if your Honours go to page 78, line 3.  Unfortunately I descended to reading verbatim:

in our submission, “Where the totality of the injuries -

and then it is set out:

Section 22(5) does not seem to have been referred to in any great detail as providing a justification for departing from those authorities which we have outlined in our written submissions, namely that it is the last insurer on risk where you have a single employer being involved and here the single employer is Linfox.

Therefore it is Switzerland that bears the responsibility.  Then Justice Priestley at line 32 says:

Which is the section which makes the last insurer wholly responsible?  My reference to s 22 -

and then it goes on to line 40, and at line 50:

we are not aware of any reason why that line of authority should be departed from in this case and so QBE should not be responsible for either any payments under s 66 or in respect of the weekly payments.

What Mr Bennett has said is that there was an apportionment of the section 67 payments.  Section 67 was the introduction of pain and suffering.  Section 67 was introduced in 1987 after QBE was the insurer.  That the judge got right; he said that there was no apportionment of the section 67 payments, even though he did apportion it between the employers.

So that was then our submissions.  If one goes over the page, bearing in mind this was a cross‑appeal, Mr Hislop responds on the cross‑appeal and he says at line 36:

so far as apportionment is concerned, his Honour’s findings as to apportionment are correct and should stand.

What did the Court of Appeal do?  One needs to go back to the application book at page 36.  Justice Mahoney gave the leading judgment, at line 35 dealt with the grounds of appeal, but where his Honour erred ‑ ‑ ‑

GUMMOW J:   What was the period between the argument and judgment in the Court of Appeal?

MR HOLMES:   The argument was on 16 June 1995 and it was heard on 15 September 1995 - that was the judgment - so it is a period of three months.  But when he came to write the judgment - the appeal starts at that page and goes over to page 38 and then says at line 10:

in my opinion the appeal fails.

But unfortunately, when he was dealing with the cross‑appeal he was dealing with the appeal proper, because if one goes to the application book page 26 we see that Switzerland raised as a ground of an appeal, ground 4:

This His Honour erred in finding that the First Respondent was entitled to an Award for pain and suffering -

That is the $10,000 pain and suffering.

That was raised on the appeal.  His Honour Justice Mahoney at line 10 dismissed the appeal but went on to deal with the cross-appeal, and then going down to line 40 he deals with the appeal, namely:

Mr Hislop, QC submitted that, in relation to the order in question, namely, that concerned with and made under section 67 -

which I have already said is not apportioned -

$10,000, it is to be accepted that the amount is to take account only of pain and suffering from the injuries in so far as they arise from injuries after 30 June 1987.

McHUGH J:$10,000 was the dispute between Mr Evatt and Mr Hislop.

MR HOLMES:   That is right; it had nothing to do with the cross‑appeal.  And then he comes over to page 39 and at line 17 he gets around to the decision :

whether the liability of the Linfox company was properly apportioned -

and rather than address the issue, namely as a matter of construction of section 22 was it open to apportion liability, the issue was raised that there was no power, no jurisdiction.  That issue was not addressed.  The issue which was addressed was, regardless of construction, assuming there is construction and there is jurisdiction, we will address the question of mathematical apportionment and he said it was:

“not susceptible of close mathematical analysis”.

and he said:

I am not satisfied -

That issue was not raised.  The public interest in the appeal is - there can be no apportionment because there was no common liability for those awards of compensation.  That was the point that was raised on appeal in the cases.

GAUDRON J:   Yes.

MR HOLMES:   His Honour did not address that point in the reasons ‑ ‑ ‑

GAUDRON J:   You say:

I am not satisfied that the judge erred -

MR HOLMES:   “in the apportionment that he made”.  Our point was that he could not apportion because there was no common liability.  So he addressed the different issue.  The public interest ‑ ‑ ‑

GUMMOW J:   His Honour seems to have been evaluating percentage divisions rather than no division.

MR HOLMES:   That is correct.  The public interest is:  what is an appellant’s entitlement on an appeal and what is the nature of the judicial function to address the fundamental, in fact only, issue raised on appeal?

McHUGH J:But your point is that you have been denied natural justice; you have not had a hearing.

MR HOLMES:   Yes, our appeal has been rendered nugatory in effect.

GUMMOW J:   What order would we make?

MR HOLMES:   Well, your Honours would send it back to the Court of Appeal for reargument; that is the sad consequence.  Your Honours, we have referred to authorities about the universality of this principle.  Days before it was argued in the Court of Appeal, the Court of Appeal bench of Justices Meagher, Sheller and Powell in Leone v Kirkwood, again followed NEM and the day before this decision in this case, again a decision of Justices Meagher, Sheller and Powell, again referred to NEM.  They are the cases of Leone and the second one is Container Terminals v Finney.  There was no commonality of judges, other than Justice Meagher, who did not write a judgment in this case; Justice Mahoney wrote the judgment and that perhaps explains why it was not addressed.

GUMMOW J:   But it was addressed in those other contemporaneous decisions, you were saying.

MR HOLMES:   Yes, could I hand those up to the Court.

GAUDRON J:   Does that conclude your submissions?

MR HOLMES:   Yes, your Honours.

GAUDRON J:   Yes, Mr Bennett.

MR BENNETT:   If the Court pleases.  Your Honours, this is an argument about form and not about substance.

GAUDRON J:   Well, I am not too sure about that.  If one came to the view that the Court of Appeal simply had not addressed the argument and not given judgment on it, it is about a lot more than form.

GUMMOW J:   It is about the rule of law.

MR BENNETT:   Well, your Honour, the issue is this:  if your Honours are satisfied that the point which is raised simply does not arise, then ‑ ‑ ‑

GAUDRON J:   It simply does not arise or did not arise.

MR BENNETT:   Your Honours, the question is whether the trial judge’s findings, when one takes each of those sentences my friend has taken your Honours to and one or two others which I can take your Honours to, and puts them under a microscope, does that or does that not come within the Insurers Guarantee Fund line of cases?

GAUDRON J:   But that is for the Court of Appeal to decide, surely; that was their job in this case.

MR BENNETT:   And they have decided it by implication by saying that the apportionment is satisfactory.

GAUDRON J:   Mr Holmes’ point is that they were not addressing that question at all; they were dealing with another one.

MR BENNETT:   It may be that they thought it was so clear that there was no need to say it as such.

GAUDRON J:   Well, the one thing that cannot be said about this case is that anything is so clear that it does not need to be explored; there is nothing clear about what was done in it at any point.

MR BENNETT:   No, and certainly my instructions are that the point was not raised at first instance, although it was certainly raised in the Court of Appeal.  But, your Honour, what we submit is, this is a case in which there is a rule which applies in one type of case and does not apply in another and, when one looks at what his Honour has said, none of the statements put the matter within the one category and not the other.  The distinction of substance is a very simple and very clear one.  If one has successive injuries having cumulative effect, but each in the absence of the others would have been compensible because of its contribution towards the ultimate effect, then apportionment is permitted.  If, on the other hand, there is compensible cumulative effect, but none in the absence of the others would have been compensible, it is not.  Now, nothing his Honour said puts the matter into the second category.

GAUDRON J:   Or to the first.

MR BENNETT:   Well, your Honour, it does, we would submit, put it within the first.  May I just show your Honour some of those.  If I can work backwards, starting at page 21, which is when his Honour was specifically looking at the matter, at line 48:

In the light of those facts, it seems to me clear enough that the major harm was done in the first incident.  The second incident has some part to play -

That is his Honour’s description of the relative significance of the injuries, and again, going backwards, on page 19 ‑ ‑ ‑

GAUDRON J:   That still does not answer the end question, does it?

MR BENNETT:   It comes very close to it, your Honour.  It would be hard to say if the major damage is done in the first one, but there was no compensibility flowing from the first one alone and no causation of the ultimate damage by the first one alone, that would be a difficult submission to make, and that would be the whole of what my friend would have to argue; there is nothing else in the case.

If one goes back to page 19 at line 10:

There remains the question of apportionment between the respondents.  As between the first and second respondent it seems to me clear enough that the major damage was done in the episode of May 1986.

If one goes back to the previous one on page 15, one has merely a general statement:

That as a result of the said injuries the applicant was incapacitated -

That is a neutral and general finding.  Then one has the ones my friend took your Honours to, all of which are in very general terms.  At page 14 he said:

The first of them has contributed to the need for surgery.  The second of them has diminished the ameliorating effects of the surgery or contributed to that diminution.

That is neutral; it is dealing with one alone.  At page 13:

That impairment is the product of the various injuries -

and at line 45:

It is a product of all of the injuries.

It is neutral.  That it is equally consistent with the two, and that is before he is addressing this specific problem.  And the same applies to page 9, line 5:

his incapacity for work is the product of injuries received before the commencement.....and afterwards.

And page 8, where he refers to he final injury at line 20, he puts it in terms that it:

produced a marked aggravation of symptoms and was ultimately sufficient -

Your Honours, in my respectful submission, to make an argument on the basis of those, that the first alone, or the first ones alone, the more serious ones, were not compensible when taken in the absence of the last one, is a virtually impossible burden to argue, and while it is true that the Court of Appeal did not specifically in its judgment direct attention to the matter that was argued before it, nevertheless, a reading of those matters might well make one wonder how the point arises, and, your Honours, for that reason we would submit that it is clearly inappropriate.    Quite apart from all that the section has now been amended, so the matter is no longer of importance, except for this case.

GAUDRON J:   But the point of principle is the fact that it was not dealt with.  If one comes to the view that it was not dealt with, that is the point of principle; it is the matter which must be corrected.  The applicant is entitled to a judgment on its appeal.

MR BENNETT:   Your Honour, in my respectful submission, special leave would not be granted on that ground alone.

GAUDRON J:   I think it has been in the past.

McHUGH J:   Why should we not allow the appeal and send it back if we take the view that there has been a denial of natural justice here?

MR BENNETT:   Because if your Honours are satisfied that the appeal cannot succeed, then that would be a futility.

GAUDRON J:   That may well depend on who has the burden of establishing the conditions for apportionment.

MR BENNETT:   Your Honours, in my respectful submission, it depends upon looking at those statements, there is nothing more than those statements, and one adds to the fact that the - certainly so far as my instructions go and it would appear from the way his Honour dealt with the matter - the distinction was not put to his Honour at the trial in terms of the problem arising in the Insurance Guarantee Case.  It was simply put as an apportionment problem and his Honour dealt with it on that basis, and that would make an appeal equally inappropriate.

McHUGH J:I am not quite sure I am following your argument about your propositions 1.a and 1.b.  I thought that in the Manufacturers Mutual Case, the unreported decision in 1994, that Justice Handley said that once it was accepted that the last injury made an effective causative contribution to the worker’s resulting incapacity, then, at least in the Court of Appeal, the insurer at risk at that time was wholly responsible for the compensation.

MR BENNETT:   That is only, I would submit, your Honour, if the previous injuries would not on their own have given rise to that compensibility, and one has to read causation in that context.

McHUGH J:Well, is that not an argument of some significance?  I mean, if I summarise the Manufacturers Mutual Case correctly, then surely there is a foothold in the findings of the trial judge in this case for such a conclusion.

MR BENNETT:   Your Honour, it is ‑ ‑ ‑

McHUGH J:That is to say, that the last injury made an effective causative contribution to the incapacity.

MR BENNETT:   Your Honour, if one took his Honour’s decision to that extent, then the section would be nugatory; there would never be any apportionment, because one would never have a case in which one were able to say that both employers were responsible and there should be apportionment.

McHUGH J:I have some difficulty with my understanding of this line of cases or some of the dicta in it anyway, Mr Bennett, but it seems to be the received doctrine in the courts in New South Wales.

MR BENNETT:   Your Honour, in my respectful submission, the received doctrine is what I have said in 1.a and 1.b, but in any event, your Honour, the section has been amended; it is not going to arise again.

McHUGH J:Yes, I know that.

MR BENNETT:   And the sole issue is whether the words I have read to your Honours, particularly the emphasis on the earlier injuries, can leave a situation where that rule applies, and in my respectful submission it is quite clear that it cannot.

GAUDRON J:   Should we not have the judgment of the Court of Appeal on it?

MR BENNETT:   Well, your Honour, in an ideal world, yes, but sometimes a court takes a view when it looks at a matter that a point is so clear that it does not deal with it.

GAUDRON J:   It does not even say it is dealing with this point.

MR BENNETT:   No, it does not, your Honour.

McHUGH J:In fact the language of Justice Mahoney’s judgment seems to really reflect the argument at first instance where you say this point was never argued, and it is as if his Honour has just ignored the argument in the Court of Appeal and just dealt with it on the same basis as you say it was dealt with at first instance.

MR BENNETT:   Yes.  Your Honour, all I can say is that I have to accept that one cannot read into the Court of Appeal judgment a dealing with this matter, but the submission is that there is only one way it could have been decided had it been raised and, as I have said, the issue is no longer one of any public importance.

GAUDRON J:   The exact effect of the legislation may not be of any public importance, but we come back to what seems to me to be very critical.  It is of fundamental importance that appeals are heard and determined on the arguments presented and not that the arguments are left undetermined.  Certainly the practice has been, at least in criminal appeals, that where that has occurred the appeal is allowed on the spot and remitted to the court for its determination of the matter.

MR BENNETT:   There is a different public policy involved, we would submit; a much stronger public policy ‑ ‑ ‑

GAUDRON J:   Well, appeals are appeals.

MR BENNETT:   If the Court is satisfied that the result must be the same then, in my respectful submission, that would not be sufficient.

GAUDRON J:   Yes, but that involves a consideration by this Court of what should have been considered by the Court of Appeal.  That involves this Court doing the work that should have been done by the Court of Appeal.

GUMMOW J:   Including your debate, Mr Holmes, over your 1.a and 1.b.

MR BENNETT:   Your Honours, the submission is that it is sufficiently clear from the words I have put and there is only one result that can follow.  I cannot put it higher than that, your Honours.

GAUDRON J:   If we were of the opinion that there had been a failure to deal with the argument and if we were of the further opinion that we were not in a position to determine for ourselves whether there could only be one answer, do you have any objection to the appeal being allowed and remitted to the Court of Appeal for its decision on the matter?

MR BENNETT:   If that were done it would be my submission that the appropriate order would be that that take place and that costs follow the event in the Court of Appeal.  If your Honours were against me on that I would seek a certificate under the Suitors Fund Act.

McHUGH J:   A certificate under the Suitors Fund Act?

MR BENNETT:   I have not brought it with me.

GAUDRON J:   I do not think we can give that; we could remit it to the Court of Appeal to determine.

MR BENNETT:   I am content with that being done, your Honour.

McHUGH J:Well, are you eligible for one under the Suitors Fund Act?

MR BENNETT:   The order is always “if eligible”.

McHUGH J:I would not have thought so; it must have changed ‑ ‑ ‑

GUMMOW J:   I think you might be straining to get through the eye of a needle.

McHUGH J:Yes, I think so.

MR BENNETT:   Well, the second respondent may be - I do not know, your Honour, I have not made that inquiry.  But those are my submissions, if the Court pleases.

GAUDRON J:   Thank you, Mr Bennett.  Mr Holmes.

MR HOLMES:   We agree with Mr Bennett that one cannot read into the Court of Appeal’s decision that they actually dealt with the point raised.  In fact we read the opposite, that they did not.  They dealt with the mathematical calculation, not whether or not there was power.  His suggestion that the first injury cannot be said to be not compensible is not in accordance with the NEM line of authority.  The section requires a common liability of two or more insurers for the same compensation.  It is not the question as to whether it is compensatable; it has to be established by Switzerland that there was a liability for the same compensation, and obviously there cannot be a liability for an incapacity which is the result of the combined effect.  So, in our submission, the matter should be remitted.

GAUDRON J:   Mr Holmes, do you have anything to say about Mr Bennett’s suggestion that costs of today be treated as costs of the appeal in the Court of Appeal?

MR HOLMES:   Well, this application was opposed and so costs should follow the event.  If it goes back to the Court of Appeal, this application ‑ ‑ ‑

GAUDRON J:   Yes, but they do seem to be all related to the ultimate ‑ ‑ ‑

MR HOLMES:   Well, I do not wish to say anything further, your Honour.

GAUDRON J:   Yes, thank you.

MR HOLMES:   We ask for costs.

GAUDRON J:   We will adjourn briefly to consider the course that we will take.

AT 3.45 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.52 PM:

GAUDRON J:   We propose to reserve our decision in this matter and we will give our reasons for decision in the week commencing 19 February 1996.

AT 3.53 PM THE MATTER WAS ADJOURNED