R.W. Miller & Co Pty Limited v The Shortland County Council

[1988] HCATrans 85

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney Nos S23 and S24 of 1988

B e t w e e n -

R.W. MILLER & CO PTY LIMITED

Appellant

and

THE SHORTLAND COUNTY COUNCIL

Respondent

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

Miller(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 MAY 1988, AT 10.19 AM

Copyright in the High Court of Australia

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MR B.W. RAYMENT, QC:  May it please Your Honours, I appear

with my learned friend, MR R.J.H. DARKE, for

the appellant. (instructed by Ebsworth &

Ebsworth)

MR P.G. RELY, QC: If the Court pleases, I appear with

MR J.D. REYDON, QC and MR C.P. COMANS, for

the respondent. (instructed by Blake Dawson

Waldron)

MASON CJ:	Yes, Mr Rayment? ·
MR RAYMENT:	Your Honours, we hand up three documents:

first of all, a chronology of relevant events,

secondly, an outline of submissions, and thirdly,

a page which was left out of the appeal book

which, Your Honours, should appear as page 87A

of the appeal book. It is the last page of important page that has been left out because it is the provision of the standard conditions
the standard conditions of the respondent

which enables the respondent to change the

tariff charges from time to time and makes the cost of supply of electricity variable over the term of the contract.

Your Honours, I had in mind to seek to

go through the chronology not, I hope, at

too great a length. Your Honours will know

that there are two trial judges in this case

and the Court of Appeal looked at the judgment

only of the first trial judge so it is desirable

to collect all of the relevant facts in a

single document. Therefore, may I go to the

chronology and move from it to relevant documents

from time to time.

MASON CJ:	Yes.
MR RAYMENT:	Your Honours, the problems in this case

arose be~ause there was, in effect, a change

of policy by the Shortland County Council

after 1981.

(Continued on page 3)

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Miller(2)

MR RAYMENT (continuing):  As at 1980 and for a number of

years before then it had been the practice of the

Shortland County Council when charging for electricity

to require new mining users, that is large. users
of an industrial nature - mining in perhaps the

Singleton area and thereabouts, to pay one capital

sum only on the connection of supply being a

sum calculated by reference to the cost of actually

connecting the Council transmission lines to

the property of the miner. It is explored in

the evidence and we have given the reference on

page one of the chronology. The Council would not

require a full indenmity for the cost of
bringing the power to the property or if necessary

to erect a substation the Council would not require

a full indenmity for the cost of a substation. The

substation here refers to one on the property of the miner or irrnnediately adjoining his property.

BRENNAN J:  Was that exacted under contract or pursuant to

statute?

MR RAYMENT:  It was probably done under clause 10 of

ordinance 54 in so far as the Shortland County Council

was subject to that provision. The Shortland County

Council administered a number of areas most of

which were governed by ordinance 54, but one of which
was governed by a special statute. In Newcastle

they were governed by the BOROUGH OF NEWCASTLE

ELECTRIC LIGHTING ACT, wh:i.ch I will hand up later,

Your Honours~ It becomes of some importance in

understanding the general terms and conditions of

this Council But there were some corresponding

provisions whichapplied to the exclusion of ordinance 54

within Newcastle. Indeed at the beginning of

ordinance 54 it says that the ordinance will only

apply where electricity is being delivered pursuant

to the LOCAL GOVERNMENT ACT. So electricity

delivered under the BOROUGH OF NEWCASTLE ELECTRIC

LIGHTING ACT was outside the ordinance.

But looking at the matter in oractical terms

the policy administered by the Council was a simple

one.	They would charge in accordance with different
tariffs new mining users.	They would require one

capital sum only to be paid upon the connection

of the supply and they would recover their cost

changes by putting up the tariff price which they

reserve the right to do at any time without notice

and which they regularly did.

(Continued on page 4)

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Miller(2)

MR RAYMENT (continuing): Both parties knew that that

was the policy of the Council when the electricity was the project manager of R.W. Miller when he was in other employment during 1976 and it was
was switched on for R.W. Miller in this case.

specifically adverted to in - he was specifically
told in connection with this supply of electricity

that the Council would be exacting a capital

contribution, although the amount of it was not

specified until a letter which the Council wrote

of April 1980. We give the references,on page 1

at the foot, to the advance warning that he was

given that a capital contribution would be made

in this case.

Now, the practice adopted by the Council

was to require every consumer, domestic or industrial, big or small, to sign the same form of application for supply, and we give the

reference in the evidence to that proposition and also to the proposition that the schedule

of tariffs were available to the public and

were amended from time to time as to the prices

involved.

Now, Your Honours, so far as the Miller

intentions were concerned the Council was told

prior to October 1979 that the Miller investment

in the mine would exceed $100 million, that mining

would be taking place progressively in two stages. The first stage was anticipated to start in 1980,

the following year, at which time Miller would be

retrieving about one million tonnes of coal from

the mine and the second stage, full production,

was intended to be reached some two or three years

later, at which stage Miller would be taking

four million tonnes of coal per annum from the mine.

(Continued on page 5)

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Miller(2)

MR RAYMENT (continuing):  The Council was also told that the

expenditure for both stages would be committed all at

once by R. W. Miller and the Council told R. W. Miller

that, so far as their stage one requirements of

electricity were concerned - that is, the supply of

electricity to such parts of the equipment as were

necessary to retrieve the lower stage of production -

there would be no difficulty about immediate provision

of that electricity. They were told that the Council

would need to bring on line the substation known as

Maison Dieu. There were two kinds of substation;

one, a small substation on the miner's land; the

other a much larger substation for use in general the discussions between the Council and R. W. Miller in 1979.
reticulation of electricity in the area, and the

The Council officers expected that the

Maison Dieu substation would be complete during 1982, so that it was anticipated that by the time Millers

got to stage two of their production - the four million

tonnes - Maison Dieu would be in use and the Council

would, by use of the total facilities including

Maison Dieu, be able to supply the quantity of power

needed for full production of the mine. Now then,

Your Honours, there was a letter written on

22 October 1979, which is set out at pages 15 and 16

of the appeal book, in which that information was

summarized. Your Honours will see it is addressed

to the Hunter Valley County Council.

Your Honours, what happened was that, on

1 October 1980, the Hunter Valley County Council

ceased to exist; it was dissolved by statute. The

Shortland County Council became the successor of the

Hunter Valley County Council and the staff, who had

been dealing with this matter in the Hunter Valley

County Council, went over to the respondent Council

which then continued to deal with Miller on the basis

of the earlier communication which had taken place.

Your Honours will see the letter at page 15 and

16 sets out the capacities of the various pieces of

electrical equipment intended to be used for the first

stage of operations, years one to three, and then for

the second stage, at year four and following.

(Continued on page 6)

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Miller(2)
MR RAYMENT (continuing):	Your Honours will see that the

letter says it is:

To assist you with planning future electrical

supply -

that the information is given.	The letter concludes
by saying:

It is hoped that mining operations will

corrnnenced in July, 1980, however no firm date

can be set, in view of delays and lack

of finality in the leasing prograrrnne -

there was evidence in the case that R.W. Miller

still had not received its mining lease from the

New South Wales Government. It in due course go·t that

but had not done so at this time.-

and hence -

says the letter -

no firm corrnnitment can be made. However, we

would welcome your views on the possibility of

initiating the supply of power to site

in accordance with our requirements.

Can I just to straight to the next letter of

21 November at page 17. That now gives a firm

undertaking for the supply of power set forth in

the earlier letter because Miller's had by then

decided firmly to go ahead with the project. They

say in the letter:

Our Company has formally approved the project	and we are able to make a firm undertaking
for power supply as outlined in our previous
letter dated 22nd October 1979.

Your Honours, the letter of 22 October 1979 contained

sufficient information for the Council to calculate

the power requirements of R.W. Miller and that, I

think, is corrnnon ground in. this case. There was an

affidavit sworn about the matter on Miller's side

in the first hearing which is set out at pages 44 to. 45.

It is an affidavit of Mr Vaughan and, tor example,

one can see that the information in that affidavit

is adopted by a Council officer in an affidavit

of his at page 294.	The particular tariff
which - - -

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Miller(2)
DEANE J: Mr Rayment, the letter of 21 November, that

"power supply" should be "power consumption"

should it, or am I missing something?

MR RAYMENT:  It should be "power consumption" from Miller's

point of view, certainly.

DEANE J:	Yes.
MR RAYMENT:	It is, I think, "power supply" from the Council's

P.oint of vie~ perhaps, that they have in mind -

'to take power supply from you", perhaps, Your Honour.

Your Honours, the particular kind of tariff which

Millers were to utilize was known as the demand tariff and it depended not on the actual quantity of

electricity consumed, but rather on the peak
electricity consumed over a period, and Millers

were charged a bulk rate for electricity on the

assumption that they always reached their peak

demand. They were necessarily charged at a lower

rate, but the point is that the Council knew how

much power it would need to deliver by reading the

letter of 22 October 1979.

Then, Your Honours, the Council was actually

employed by Millers as a builder to design and instal

certain power reticulation lines within the Miller mine

and one can see at page 18 a letter confirming

discussions about that matter. Paragraph 6 confirms

to the Hunter Valley County Council that:

R.W. Miller agree that the design and

installation of the R.W. Miller 66kV

and llkV lines can be carried out by

the Hunter Valley County Council.

Now, as I mentioned, the Hunter Valley County Council ceased to exist on 31 December, and we give referer.ces in the appeal book to the relevant officers of the council becoming employed by the respondent with

immediate effect from 1 January 1980. (Continued on page 8)

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Miller(2)

MR RAYMENT (continuing):  Then on 18 February 1980,

Longworth and McKenzie write asking the Council

to give a quote for the erection and supply of those

lines, the 66kV lines and llkV lines on the

R.W. Miller mine. Your Honours will see that

there is set out a specification which the

Counc i 1 is asked to quote in respect of. That

is then revised on 28 March 1980 and we give

the reference. Then, if Your Honours would

go to page 20 of the appeal book. This letter

serves two purpo&es: in the first place it

notifies R.W. Miller what the capital contribution

which had been envisaged to be applicable

will be and, secondly, it gives the Council's quotation for the doing of the work of design

and installation of the 66kV and llkV power

lines. They say, in paragraph 2:

A capital contribution of $17,600

will be payable towards costs for construction

of 66kV transmission line and installation

of 66kV isolator and metering equipment

to provide supply to the Company's substation.

It had been made clear to the Council that

the company's substation on Miller's property

would not be built by the Council but would
be built by a consulting engineer. That actually

was mentioned in the Longworth and McKenzie

correspondence at 56 to 62; that the Council

needed still to'bring supply to that substation

and, as was mentioned earlier in accordance
with their policy, they told Millers that

they would charge that fee.

(Continued on page 9)

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Miller(2)

DEANE J:  A substation is somewhere where electricity is

stored pending supply, is it or_- - -?

MR RAYMENT: Either that or at any rate it performs some

function of breaking down a larger quantity of

electricity delivered to the site so that it can

be reticulated in the quantities actually required

at each part of the mining operation. The drag-line,

for example, needed much more power when it was

on stream than, for example, lighting in the washing

plant and the like. ,

DEANE J:  But it does not itself generate any electricity?

MR RAYMENT:  No, it receives and redistributes. No, Miller

was never a generator of its own power and indeed,

the finding of Mr Justice Bryson was that the

Council had a de facto monopoly in the supply of

electricity in the relevant area. We will come to

that though, Your Honours.

BRENNAN J:  The installation of the lines, the 66kV and the

llkV lines was done by contract between the

company and the Shortland County Council? The

Council being - - -

MR RAYMENT:  Yes, Your Honours are now looking at the

quotation of the Council for the doing of that work.

BRENNAN J: Yes, the Council being the contractor?

MR RAYMENT:  Yes. So, they say in effect, as supplier in

paragraph (2) that the capital contribution that

they will require to be paid by Miller is that.

Then they say as builder in paragraph (3) that

they quote $79,000 to build 5.1 kilometres of

66kV overhead mains, that is within the Miller

property. And they say as builder on the next
page at paragraph (4) that they would charge

$21,900 to do the llkV mains on the Miller property.

(Continued on page 10)

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Miller(2)

MR RAYMENT (continuing):  Now, Your Honours, that work, that

is the 66kV work and the llkV work, was necessary

not just for stage 1 of the operations - lesser

work would have been necessary for that - but
necessary for full production. In other words,

the Council as builder, participated in construction

of works which would be unnecessary if the mine

did not go to full production. We give the reference

to the evidence about that matter at the foot of

page 3.

Now, then, on 8 May,Miller accept, first of

all - they accept each of the two offers made by

the Council as builder and they say they will be

placing a formal order within the next five weeks.

They also send a cheque for the $17,600 for the

supply of the 66kV power to the company's substation.

Then at page 50 of the appeal book one sees their

formal order for the erection of the high voltage

overhead mains in accordance with their quotation,

being the letter of April.

Now, then, work commences on the site. It is

finally complete, that is, the Council Ls work is

finally complete by 20 October 1980 and power is

brought to the site with effect from that day. In

the meantime the Council has asked Miller to sign

an application form, which is at page 83 of the

appeal book, being the application form that they

required every user, domestic or industrial, within

their area, to sign. Your Honours, there is a part

of that form that is hard to read where R.W. Miller's

stamp appears on the document, towards the foot of
it, and it is agreed between us that the words

which Your Honours will have trouble reading are

these - it starts off in a form:

We hereby make application for and -

and it goes on -

agree to accept supply of electricity to

the premises recorded hereon.

Now, Your Honours, will see that the form does not

say how much electricity is required or for how long.

It gives an address where tThe electricity is required,

at the Mount Thorley mine,and it is signed by the

electrical engineer of R.W. Miller. There is an

apparent incorporation by reference of the standard
conditions of supply in this contract of adhesion.

It is a promise to accept supply of electricity to

the premises:

and to pay for it upon and subject to the

Shortland County Council's Conditions of

Supply as fixed from time to time, which

Conditions of Supply shall be deemed to be

~ncorporated herein.

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Miller(2)

MASON CJ:  That is the conditions of supply as they existed

at that time?

MR RAYMENT:  Yes, we would submit so. There never has been

any suggestion of a change in them. And then at 85

one finds those conditions of supply commencing.

Could I come back to them when we come to the more

detailed part of these submissions dealing with

the - - -

MASON CJ:  Is there, in those conditions, any expressed

reservation of a right to exact a capital contribution?

(Continued on page 12)

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Miller(2)

MR RAYMENT:  What there is is clause 14 - perhaps I will

go there straight away - on page 87 and

Your Honours will need to see and, I think, construe

clause 10 of ordinance 54 and the relevant

provisions of the Newcastle legislation.

MASON CJ:	Yes.
MR RAYMENT:	But it provides - it is almost notice of what

is in these documents rather than the conditions

that will themselves have contractual force.

The document says:

Where a Council supplies electricity

in any locality, any person in such locality

shall on application, if it is within the

power of the Council to supply the additional

quantity required be entitled to a supply

on the same terms as the terms on which any

other person in that locality is, under

similar circumstances, receiving a

corresponding supply.

Providing that where abnormal expenditure

is involved in giving supply or increasing

existing supply, each individual case is

treated on its merits. A special charge is

applied where necessary and usually takes

the form of a minimum charge or guaranteed

consumption with possibly a rental charge

for the line or transformer where these are

not purchased outright by the consumer.

It is kind of general information about other

contiracts rather than particularly relevant to

the contract in question, and we would want to

say that whatever is referred to here had already

happened at the date of the form in the conn:nunication

of April. And certainly before supply commenced in

October 1980 no conn:nunication was received from the

Council suggesting that some other form of
contribution or payment was required.	So, if it

is an offer, we would submit, it was accepted

unconditionally by the supply of electricity.

Then, Your Honours, we do not know when

discussions may have started between the Shortland

know that in December they were concluded for the transfer by the electricity commission to Shortland	Council and the electricity commission, but we used by the electricity conn:nission to generate
bulk power and supply it to the Shortland County Council and some correspondence is in the appeal
book. Starting at 88 there is a letter of proposal

C2Tl0/l/JM	12	5/5/88
Miller(2)

from the electricity commission to the Shortland

County Council which Your Honours will see proposes

that there be sold or hired to Shortland County

Council certain capital assets.	They say in
paragraph 2:

Reference is made to discussions

unidentified as to time -

between officers of your Council and

this Commission in regard to proposed

changes in responsibilities for the

supply of electricity in the

Muswellbrook - Singleton area.

These proposed changes provide for the

Shortland County Council to assume full

responsibility for the 132 kV system

in the Muswellbrook - Singleton area and

its future augmentation from 1st January 1981

except for those works currently in hand by

the Commission -

which includes some improvements to the substation

known as Maison Dieu and they say that_set out in

the appendices are proposed terms of payment and

hire, and they tell the Council that they are

prepared to deal with the assets in that way.

And then by immediate response of 12 December 1980

the Council accepts that proposal, and that is

at 91.

(Continued on page 14)

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Miller(2)

MR RAYMENT (continuing):  Now, the effect of that, Your Honours,

on EheCouncil was that they had to buy some

$40 million worth of assets from the electricity

c corrnnission and, of those assets, apparently about

20 - it is set out at page 297 of the appeal book

in Mr Knott's affidavit - about $23 million worth

would be utilized for the mining companies in

Singleton. Now, faced with that situation, that the

Council had now agreed to pay $23 million for the capital assets used by the miners and, taking

their decisions as,to what they should do about the
matter to recover the cost of that, they simply

decided to make the mining companies buy for them

the relevant assets as a capital item.

One sees in paragraph 21 of Mr Knott's affidavit

the way in which the Council reacted to the matter.

He says, at the top of 297:

The total mining load expected to be supplied

from this system was calculated on the basis

of advice from the mining companies and the

County Council's analysis of that advice.	The
total cost -

that is, the $23 million -

divided by the total mining load indicated an

estimated cost per KVA of demand of $135.

This standard cost was adopted by the County

Council for the purposes of the 1981

Capital Contribution policy.

So they, in effect, had regard to the demand of each

mining company and simply divided it up proportionately

to the demand; existing users and new users all lumped

in together. It must follow that they made no change

to their tariffs as a result of this - their annual

charge for electricity - they simply proposed to

recover it all in one lump sum as a capital contribution.

Then they adopted - if Your Honours would go back

to the first volume, page 23 of the appeal book,

Your Honours will see that they wrote to Millers

telling them that they had now put in place a new

capital contribution policy and asked them to provide

information so that they could assess their contribution

accordingly and, by January 1982 the demand which they

made upon R. W. Miller for a capital contribution was

asserted, and it is at page 39 of the appeal book - - -

BRENNAN J:  Just before you go past page 23, there is reference

there to:

Council has revised its capital contribution policy -

was there an antecedent capital contribution policy?

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Miller(2)

MR RAYMENT:  Yes, that was the one referred to right at the

beginning, Your Honours.

BRENNAN J: 

But that is in relation to the cost of connection.

MR RAYMENT: 

Yes.

BRENNAN J: 

But there was no previous capital contribution

policy with respect to the productive capacity of
the system?

MR RAYMENT: 

No, because, of course,the electricity commission

owned it. - - -

BRENNAN J:  The electricity commission owned it, yes.

MR RAYMENT: - - - and simply supplied the Council with bulk

electricity. Now that things were changed, the

Council sought to just recover a capital contribution

in this way. But the earlier capital contribution

was referred to in the evidence. It was simply the

policy of requiring a sum	.....	reference to
the cost of	connection at any substation.	Now,

at 39, the Council demanded $1.9 million from

R. W. Miller as payable pursuant to the this capital contribution policy. It would represent, if the

investment in the mine was to be of the order of

$100 million, 2 per cent of their investment.

(Continued on page 16)

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Miller(2)

:MASON CJ:	Why do you say the figures should be $2,202,000?
MR RAYMENT:	Because Mr Knott, the Council officer who gave

evidence at the second trial,recalculated the

figures and said so at the page that we give there

in the appeal book, Your Honour. And then they

revised their policy again before the matter reaches

Your Honours in 1983. The new policy is set out at pages 108 to 125 and at page 106 it appears

that if that policy were applicable to R"W. Miller

he would have to pa~ $2.8 million in round terms

to the Council. Now, Your Honours, as at April 1980

the main statutory provision affecting this

Council was section 419 of the LOCAL GOVERNMENT ACT

which is set out in Mr Justice Bryson's judgment
for convenience in the 1980 form at page 429.

It has since been amended in that in 1987 section 419(2) and (3) were repealed as part of

an overall change to the system of charging for

electricity in New South Wales. But as at 1980

there were the three provisions of section 419. Section 419(1), Your Honours will see, provided

and it was generally with respect to Council's

conducting trading undertakings pursuant to the Act,

required the Council to:

endeavour so to conduct each trading

undertaking that without any loss being

incurred the service, product or

commodity of the undertaking may be

supplied to the consumer as cheaply as

possible.

Your Honours will notice that there is only a

reference to "endeavour" in that section and it may

be difficult to spell out of that section any

duty upon the Council to supply or any right

in particular consumers to claim supply. Then

section 419(2) prohibited preference. It provided

that:

Except with the approval in writing of the Minister, the council shall not

supply electricity to any person in any

part of its area upon terms or at rates

different from those upon which it

supplies electricity in similar circumstances
to other persons within that part of its

area.

Your Honours, in the LOCAL GOVERNMENT ACT, the

county councils supplying electricity have a specific

Part - I will just inform Your Honours in a moment

of the Part's number, but unless there is a particular
statutory provision, as there is in the case of

Newcastle, the LOCAL GOVERNMENT ACT is the Act

C2Tl2/l/SR	16	5/5/88
Miller(2)

pursuant to which county councils were supplying

electricity and there were various provisions in

one of the later Parts of the Act for delegation
by municipal councils and others to county councils

of that function.

BRENNNAN J:  And the Part in which section 419 appears is

applicable to county councils?

MR RAYMENT:  Yes, it is, Your Honour. The county councils

were governed by Part: XX.IX of the statute starting

at page 560.

(Continued on page 18)

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Miller(2)

BRENNAN J:	Do not let me delay you, Mr Rayment.
MR RAYMENT:	There is a specific section, I think in the

Part in question, which makes that plain, Your Honour.

i will just ask my learned junior to turn it up.

BRENNAN J:	Yes.
MR RAYMENT:	So, Your Honours, subsection (2), we submit, had

the effect that if X were receiving supply on

advantageous terms, and Y were receiving supply on

1 e s s advantageous . t e rm s , Y c o u 1 d po int to X and c 1 a i m

the benefit of X's terms, assuming the two were

receiving a corresponding supply in similar

circumstances and that would apply, in our submission,
not only on initial supply being given, but

continuously; in the same way as this Court held

in BENNETT V FISHER that a corresponding provision

of the Adelaide statute applied continuously.

MASON CJ:  This would have rather disastrous financial results

for a council, would not it? Assume, for example,

that a council made an improvident contract for supply

with consumer A, and let us assume that the contract

was to endure for a lengthy period of time, then

every consumer would have that right.

MR RAYMENT:  Yes. He would need to show similar circumstances,

of course.

MASON CJ:  Yes.

MR RAYMENT:  If you had a person who was connected up to the supply in 1900 at small expense which he then paid,

I suppose in 1988 it might be hard for somebody to

say that he should be connected up at the same

paltry sum paid in 1900 terms. In other words, he may well not be in similar circumstances. Indeed, Your Honour, there has been a great deal of

authority~ about what similar circumstances are for

the purposes of this kind of statute, and they are

both in England and- in this country, indeed, in

this Court.

MASON CJ:  Yes. Well, you avoid the catastrophic

consequences by pointing to the fact that the

circumstances are infinitely various, therefore

the guarantee of supply on the favoured terms

becomes almost meaningless.

MR RAYMENT:  I do not really put it as almost meaningless,

Your Honour.

MASON CJ:	It seems to me that that is how it may work out.
MR RAYMENT:	If one looks at it in domestic terms, it must

be the case that throughout a county council's

area there are thousands of people in relevantly

C2T13/1/HS	18	5/5/88
Miller(2)

identical circumstances, taking a corresponding
supply as each other, and indistinguishable as
to purpose, and if one of those persons is receiving

a favoured rate, then, in our submission, under this

section, all of them are entitled to it, and that

is the evident - - -

BRENNAN J:	That is putting it the other way around, is it not? This is referring to supply to an individual by
reference to the terms of supply to the generality.
Your proposition is that the generality are
entitled, according to the terms of supply to an
individual.
MR RAYMENT:	If the word "persons" be read as only the

generality that would be so, with respect, Your

Honour, but if the plural includes the singular, we

submit that~ it was really discussed by

Mr Justice Kitto in BENNETT V FISHER, (1961)

106 CLR 492, in connection with section 16 of

the South Australian statute of 1897.

(Continued on page 19)

C2Tl3/2/HS	19	5/5/88
Miller(2)

MR RAYMENT (continuing): Section 16 is actually set

out in the headnote at page 492. As I look

at it I notice that it is slightly different

in the respect in which Your Honour Mr Justice Brennan

just referred to.

MASON CJ:  Yes, precisely.

MR RAYMENT: It says:

Where a suppty of electricity is provided

in any part of an area (or part of a town)

for private purposes, every company or

person within that part of an area (part

of a town) shall, on application, be entitled

to a supply of electricity on the same
terms on which any other company or person

in such part of an area (part of a town)

is entitled under similar circumstances

to a corresponding supply.

That refers to any individual person.

DEANE J: It is the same contrast as that between section 419

and ordinance 54 clause 10.

MR RAYMENT:  Yes. Ordinance 54 clause 10, in our submission,

is more limited because it does apply only

on application when one reads it.

DEANE J:  But ordinance 54 clause 10 has the effect that

you say section 419(2) has.

MR RAYMENT:  I see. I am going to come to that in just

a moment, yes, thank you, Your Honour. It

is a point,I must say. I had not realized

until Your Honour just referred to it.

If one looks at section 419(2), those words

"persons" do not - after all, one is looking

at persons receiving a corresponding supply

in similar circumstances. If there be one,

and not many,in our submission, 419(2) would
still apply.	But the legislative intent of
subsection (2), in our	submission, is really

conformable to the thrift notion, or the cheapness

notion, referred to in subsection (1). The

overriding objective is that the product should

be supplied to the consumer as cheaply as

possible and then subsection (2) goes on to

say that one person would be entitled to terms -

if he is in similar circumstances and receiving

corresponding supply to others, on those terms.

It is not, in other words, something for the

benefit of the Council enabling it to put

the price up; it is something for the benefit

of the consumer enabling him to claim the

benefit of advantages given to others - or

rather, not to be disadvantaged by comparison

with them.

C2Tl4/l/SDL	20	5/5/88
Miller(2)

Then, subsection (3) makes it plain, in our

submission, that subsection (2) is for the benefit of the consumers because it gives the Council a way out by providing that:

Subsection (2) does not prevent the council

from charging different rates for electricity

supplied to persons in different parts

of its area where it does so solely by

reason of a variation of the scale of

rates charged·for electricity and the

scale, as varied, is to be applied uniformly

throughout its area.

Then His Honour goes on to set out clause 10

as it was in 1980. So far as this particular

land was concerned, ordinance 54 was the relevant

. I . h d d II f It

ordinance. t 1s ea e , No Pre erence .

The first paragraph, Your Honours, speaks

of, we submit, a new supply, because it refers

to a condition:

(Continued on page 22)

C2Tl4/2/SDL	21	5/5/88
Miller(2)
:MR RAYMENT (continuing):

if it is within the power of the Council to

supply the additional quantity required.

Mr Justice Bryson went wrong, in our respectful

submission, in holding that this particular provision

applies continuously rather than on initial

application. Not that it really matters very much

because 419(2) does, in our submission, apply

continuously and one gets a similar notion from

it.

BRENNAN J:  If there be a conflict between 419(2) and

ordinance 54 clause 10, which prevails?

:MR RAYMENT:  Well, the statute would, yes, Your Honours.

It is not our submission that there is such a

conflict.

BRENNAN J: No.

:MR RAYMENT:  What we would submit the effect of ordinance 54

clause 10 is, to give many people - if not all people

but certainly many people - a right of obtaining

supply from the Council. In other words, it is the

other side of the coin mentioned in 419(2) - and it

has been so construed, we would submit, in corresponding

similar legislation. It gives the consumer, who

can point to others in similar circumstances receiving a

corresponding supply, a right both to supply and to

supply on the same terms. We submit that a legislative

intent appears in clause 10 which would follow from

the position of the County Council as a monopolist

that will guarantee to most potential consumers that

they will be able to obtain supply because the

first paragraph gives those,who can point to others

in a similar position, a right of - well, any other

person,I should say, in a similar position a right

of obtaining supply.

The second paragraph deals with what is to

occur if in order to make the supply available the

Council has to extend its mains. The Council then

still has to supply but has a power to impose

additional conditions upon which the supply will

be made available. If there be a gap as to the

entitlement of persons to demand a supply it will

be where the Council can supply power, but there

is no other person in the locality receiving supply

under similar circumstances - receiving corresponding

supply under similar circumstances. But otherwise

all persons subject to clause 10 can insist upon
supply by the Council and the Council has a correlative
duty to supply those persons, leave aside the terms.

That, in our respectful submission, is a fact of

great importance in this case. I may tell

Your Honour Mr Justice Brennan this; we are not,

C2Tl5/l/MB	22	5/5/88
Miller(2)

I do not think, going to have a great problem in

this case about similar circumstances and the like

because in order to dispose of the case it would

not, in our submission, be necessary to decide
whether R.W. Miller had, or did not have, persons

in similar circumstances to whom it could point

at the relevant time.

DEANE J:  Mr Justice Kitto said, in effect, that where you

have got a clause like that "any other person''

means any other person nominated by the customer.

MR RAYMENT:  Yes. And, indeed, the whole Court approached

the matter that way. Sir Owen Dixon approached the

matter that way in his judgment in the case, we

would submit.

DEANE J:	And that it is no answer for the supplier to
say, "Well, you've pointed to person A but we'll supply on the terms of person B."

MR RAYMENT:  No, that is right, Your Honour. And that,

in our submission, is the relevant legislative

intent. Perhaps I should take the Court shortly

to BENNETT AND FISHER if I may, if Your Honours

have it. But the way in which the disupte arose

there was that there was a complaint by a building

proprietor in Adelaide about the proposal of the

electricity trust to install some large machinery

within its building for the purposes of supplying

electricity to the building.

(Continued on page 24)

C2Tl5/2/MB	23	5/5/88
Miller(2)

MR RAYMENT (continuing):  One question which arose in this

Court was whether there was a corrnnon law duty

in a monopolist to give supply. Some American

cases were held in this Court not to be of

application in this country.

In the course of discussing the particular

dispute, at the end of his judgment the then

Chief Justice dealt with the matter on page 503.

His Honour said, if I can just read the last couple of sentences - well,perhaps I should go

to the top of the page.	He refers to section 16
and says:

You must begin with "terms on which (some)

other company or person in such part of an

area is entitled under similar circumstances

to a corresponding supply". When you have
found that company or person you may turn to

the company or person seeking a supply and

say to him or it "You are entitled to a

supply on the same terms". The conditions,

however, that have been gazetted have been

offered to all concerned: indeed they have

been -

This is the particular facts of the case. Can I

go to the conclusion of His Honour's judgment:

One simple though additional answer is

that the proofs do not show that there is

any company or person receiving under similar

circumstances a corresponding supply who is

in that situation. Accordingly the plaintiff
company's case fails and the appeal should be

dismissed.

And that was the way the matter was dealt with

by all members of the majority in that case, in

our submission. And the relevant passage in

Mr Justice Kitto's judgment, to which reference

has been made subsequently starts on 512: This brings me to s.16.

His Honour says at the foot of the page:

Although agreements for supply made with the

Trust do contain Condition 2, it is only in a few cases that the Trust has exercised the authority so conferred and has installed transformers in con.stm=rs' buildings. To elaborate this a little, it appears nia:n the evidence that: (1) all consumers' contracts do include Condition 2; (2) in SOOB cases the Trust has exercised the authority conferred on it by Gooditios 2 and required tha-installation of a transrorm:r upon the consumer's premises.

C2Tl6/l/JM	24	5/5/88
Miller(2)

All cases in which this has been done

have occurred since 1957 and a new building

has been erected with a loading in excess

of 250 k.v.a.; and (3) in most cases the

authority given by Condition 2 has not been
exercised -

Could I go back to 507, the fifth last line:

The section operates -

says His Honour -

however, not only in the making of a

contract, but continuously; so that at

any given time anyone who can point to a

consumer entitled, in circumstances similar

to his, to a supply of electricity corresponding
to his but upon terms more favourable than

those which are being insisted upon as against

him, is given a right to have his supply upon

those more favourable terms.

BRENNAN J:  Mr Rayment, am I right in thinking that ordinance 54

clause 10 has to do with the right of a potential

consumer to a supply and 419(2) is a restriction on

the Council's liberty to fix the terms of supply?

MR RAYMENT:  Yes, I think, Your Honour , with respect. I

submit so.

BRENNAN J: Well, then if we come back to ordinance 54

clause 10 there ought not to be any difference
relating to an individual person to whom a

potential consumer might point if the Council has observed the injunction in section 419(2)

might point as somebody out of the ordinary.

MR RAYMENT: Well, it really depends on what .one means by

"other persons" perhaps, Your Honour. They mean

exactly the same thing as one another if the

plural includes the singular. (Continued on page 26)

C2Tl6/2/JM	25	5/5/88
Miller(2)

BRENNAN J: It seems to me that 419(2) performs a very

specific function and that is to prevent the

Council from giving either favoured or unfavoured

treatment to an individual. The chairman of

the Council cannot get his electricity for less

than the rest of the ratepayers.

MR RAYMENT:  It refers to the terms and the rates of supply

of electricity in 419(2). And it requires equality and,as Your Honour says, favourable or unfavourable. What in other words obtains at the relevant time

will be generally available for later cases falling

within the same category which really is, in

our submission, very much the same motion as one

finds in clause 10. Nothing about 419, though,
deals with a right to supply whereas,we submit,

clause 10 does.

BRENNAN J:  No, it does so in clause 10, buc clause 10

refers, as I read it, to the terms on which a person

is receiving a supply, not the terms on which

he entitled to receive the supply. And the only

thing that keeps the terms, at the end of the

first paragraph in clause 10, in conformity with

.the general terms and conditions supplied by

the Authority is, 419(2).

MR RAYMENT:  If it be right, Your Honour, that clause 10

applies to new applicants for electricity, as we

would submit it is because one sees there a

reference to 'additional quantity required" and_in	the second paragraph, 11n order to make such supply
available'' it is not referring to existing users.
If it be right then, really, you start with
419 which requires the Council to treat consumers equally, you then impose upon that situation a
duty for the Council to supply the same persons
on the same terms under clause 10. It does not
really matter if there are one or 50 they
all ought to be on the same terms pursuant to
clause 419. But what you cannot do, in our submission,
is precisely what has been sought to be done to
Millers, for example, in the submissions made before Mr Justice Bryson, that is to find that later
users or later terms and conditions imposed subsequently entitle one to determine the Miller contract in order to make Miller come into line with
those who have been given less advantageous terms
subsequently.
In other words, in 1980 when we made application for this electricity, no one was paying money
under the new capital contribution policy and we
were not when we were connected to the power supply
system. It has been suggested that because we have,
apparently that advantageous position, the Council

C2Tl7/l/SR	26	5/5/88
Miller(2)

must in some way be given a power to determine us

and make us apply under the new system for reconnected
supply and pay the new policy. That,on any view of

the matter, we would submit, is precisely the wrong

way to read these provisions, either clause 10 or

section 419. It is the very reverse of the statutory

intention made evident by those two provisions.

TOOHEY J:  Do you say that even if section 419 be aimed at

supply,and ordinance 54 clause 10 be aimed at

the right to a supply of electricity?

MR RAYMENT:	Yes, Your Honour.
TOOHEY J:	And do you say, Mr Rayment, that each of those

provisions stands in the way of the Council imposing

different conditions to those under which it first

provided the supply of electricity to your client?

MR RAYMENT:  We say it in various WflYS; b_ut yes we do wish

to say tha½ Your Honour. I wish to put it in a

particular way which is outlined in the written

submissions. We do not say it, as it were, except

in the context of the particular submission that

are made. In other words, there are some qualifications

on the answer to Your Honour's question which I

would be proposing to outline in the argument.

TOOHEY J:  Could you just clarify one other matter for me,

Mr Rayment, because I have understood what you have

been saying about the history of the matter. It

was the cost incurred by the Council in taking over

the electricity facilities from the commission

which it sought to pass on in some form or other

to consumers?

(Continued on page 28)

C2Tl7/2/SR	27	5/5/88
Miller(2)

TOOHEY J:  The letter on page 39, the letter of 12 January 1982,

written by the Shortland County Council to

R. W. Miller does not speak, as I read it, in those

terms. It says, for instance, three lines fran the top:

Council confirms that unless payments are

made by companies requiring supply immediately,

it is not prepared to let contracts for the
construction of facilities which would provide

the supply indicated.

MR RAYMENT:	Yes, Your Honour.
TOOHEY J:	Is that in any way inconsistent with the description

you gave us?

MR RAYMENT:  Well, the language which Your Honour draws

attention to certainly is the language of, as it

were, persuasion rather than demand. The stance

that has been taken in the litigation is that
the Council was entitled one way or another to impose

the capital contribution. The way in which it had been

put in the early stages of the litigation was that

there was some implied term in the contract and the like.

TOOHEY J:  No,I was not thinking so much in terms of stance, but the reference to being: · -

prepared to let contracts for the construction

of facilities -

as if the Council is saying, "Well, we are not

going to embark upon this task of providing facilities,
involving, as it will, the building of various

facilities, unless we are compensated."

MR RAYMENT:  Yes, they did say that. They approached the matter

that way by seeking to persuade and, in fact,
threatening, that the supply would not be available at

all unless the capital contribution was made.

TOOHEY J:  No, I may have missed something, but I rather

thought - oversimplied, perhaps - that the Council

was saying, "You must compensate us for the expense

to which we have been put in taking over these

facilities from the commission." But here it seems

to be saying, "We are not going to embark upon the

construction of facilities unless you make the
contribution."

MR RAYMENT:  That is right, Your Honour. We did not take this

up; we did not agree, as it were, to pay any capital

contribution. The 1981 capital contribution policy

is itself set out at 92 to 97, and it just expressed

in terms of - one sees	at the introduction
they say that:

Because of the long lead times inherent in the provision of the power system capacity, it is

C2Tl8/l/VH	28	5/5/88
Miller(2)

essential that customers give adequate

notice of future load increases to the Council.

Since Council must then make definite

commitments in terms of capital equipment

to supply such loads, contributions are necessary

from customers in proportion to their power

requirements. The capital contribution is

calculated as an amount per kVA so it is

necessary for the customers to nominate their

own maximum demand limit and this shall be

adequate to cover at least five years operations.

Then they say in in paragraph 3 to whom the policy

will apply. It is all of those persons who:

Will exceed 2,000 kVA -

they -

will be subject to a non-refundable capital

contribution based on -

et cetera. In other words, although the language

which Your Honour draws attention to in the letter

suggests that it will be necessary for the users

to agree upon the matter, nevertheless the Council

purported to impose this policy upon all relevant,

all affected consumers, and that is how the case has

been approached in all of the courts, Your Honour.

BRENNAN J:  Contract aside, the question is whether that

policy is within the statute, is that right?

MR RAYMENT:	I think not, Your Honour.
BRENNAN J:	Why not?
MR RAYMENT:	If Your Honour means treating the policy as being

applicable to existing users as well as future users,

which I suppose it must do on its face - - -

BRENNAN J:	The question is whether or not that can be adopted as a means of setting the terms and conditions of
supply.
MR RAYMENT:	Yes, I really should answer -in the light of that

but to that extent only - I should answer Your Honour's

question in the affirmative, I think. What has been contested in the case is whether R. W. Miller is, in

any way, to be subjected to this policy and it is, we

have said, we had a contractual right to the supply

of electricity which stemmed from the acceptance of

our application form in the circumstances of the case,

and we have said that there is no implied term either

permitting determination generally or permitting

determination to make us enter into a new contract or

enabling the Council to amend the contract unilaterally.

C2Tl8/2/VH 29 5/5/88

Miller(2) (Continued on page 29A)

BRENNAN J:  Well, that depends on two propositions: one is

that you have got a contract.

MR RAYMENT:	Yes.
BRENNAN J:	And the second that the contract is one which,

if this is within the powers conferred upon the

Council by the statute, are in some way excluded

from execution by the Council by reason of the

contract they ente~ed into.

(Continued on page 30)

C2Tl8/3/VH	29A	5/5/88
Miller(2)

MR RAYMENT:	Yes.
BRENNAN J:	Because if the contract is subject to the

exercise of these powers, and the exercise of these

powers is valid cadit quaestio.

MR RAYMENT:	Yes, Your Honour.
BRENNAN J:	Do you say that the Council could have fixed a

rate per unit of electricity to cover the capital

cost?

MR RAYMENT:  What the Council had power to do, in our submission,

was one thing only here. They could have amortized
the cost of acquiring these capital assets over years,

or otherwise financed the purchase and charged

interest and added that into the totality of the

costs sought to be recovered by them under their

tariff schedule, and if industrial users had to be,

in effect, asked to pay more than other users because the Council's capital requirements affected them more

particularly, then so be it. They had a complete

power to do what was, in our submission, a reasonable

thing, being faced in the situation in which they

were at the end of 1980. They had no power to go to

R.W. Miller and insist upon, in effect, having
R.W. Miller participate in the purchase by the Council

of these capital sums.

They had received the Miller application pursuant to their then policy of exacting capital

contributions and on the basis that they would

be entitled to change their prices from time to

time in accordance with their schedule, and we

submit that was the limit of their power to amend.

DEANE J:	Mr Rayment, I am sorry, I do not follow what use
you make of section 419(2). · I can follow your

argument that the section does not stand against

you - - -

MR RAYMENT:	Yes.
DEANE J:	- - - but I do not follow your positive use of it.
MR RAYMENT:	Your Honour, the positive use we seek to make - I

think, probably, if I went to my outline of submissions

it may become plainer. Your Honours, we start

with the view of the second learned trial judge,

Mr Justice Bryson, that this contract should be

construed in such a way as would permit the

respondent council to terminate it for the purpose

of obliging the appellant to enter into a new

contract.

DEANE J:  That is that section 419(2), as Mr Justice Brennan

suggested, operates to exclude preferential treatment,

C2Tl9/l/HS	30	5/5/88
Miller(2)

rather than being directed to allowing anyone

else to nominate the preferred consumer and get

on the same terms.

MR RAYMENT:  It may be that it is better put on clause 10,

than on section 419.

DEANE J:	I was not intending to argue about it.
MR RAYMENT:	I follow what Your Honour means.
DEANE J:	I was just identifying where we were.
MR RAYMENT:	Yes. If one observes a distinction between

section 419 and clause 10 from the point of the

question of persons, or another person in the locality,

then it may be necessary to, as it were, consider

them separately, but any notion that would enable,
if there be differences in the community as to

rates of charges being levied upon persons in similar

circumstances, any view that would permit that
situation to be remedied by simply terminating those
in the less advantageous position and putting them
onto the terms of the others would, in our submission,

be directly contrary to the notion in section 419.

DEANE J:  Yes. As I said to you, I follow the way you try and

escape section 419(2).	I do not follow your positive
use of it.

MR RAYMENT:  It does not - it is, in a sense, both things at

once. The basis upon which we lost this case

before Mr Justice Bryson was that His Honour thought

that section 419 demanded a construction of the contract

that would permit those in a favourable position,

as against the Council, to be terminated so that

unfavourable terms applying to others could be

applied to them as well.

(Continued on page 32)

C2Tl9/2/HS	31	5/5/88
Miller (2)

DEANE J: 1 follow that but is that all you refer to at~,

to exclude it as something against you?

MR RAYMENT:  Yes, Your Honour.

DEANE J: Paragraph 3 of your submission, 1 thought,

indicated that you called in positive aid.

Was 1 wrong there?

MR RAYMENT:  I think perhaps the opening lines of 3 are

not well expresse& in that respect.

MASON CJ:  You now rely on clause 10 to achieve this

result?

MR RAYMENT:  We do but we seek to make that point, when

we come to the second question in the case. In

other words, the heading for the first four

paragraphs of these submissions might be,"Particular

Power of Determination" with a view to obliging

R.W. Miller to apply again so that the new

terms could be applied to it. The heading
of paragraphs 5 and following, could be, "General
power of termination". That is, it is addressed
to the question whether, independently of that

question, there ought to be implied into the

contract a power of termination absolutely,

not with a view to anything but just with a

view to cutting off supply.	And then we
refer to clause 10.

DEANE J:  What if in a contract where the Council was

supplying everybody at, say, $100 per whatever

the unit is, and it entered into a contract
to supply your client at $1 per unit - one

hundredth. Am I right that your argument is

that 419(2) would not invalidate that contract,

that to the extent it gave your client preference

but that what it would do would be entitle

everybody else to come along and say, "We'll

have supply at $1 per unit".	I have taken
an extreme example, of course.

MR RAYMENT: Certainly. If you read "persons" in the

plural, in 419(2) to mean the same, or to include
the same as "another person" in the ordinance;
in other words, if Your Honour's question were

being asked about section 16 of the Adelaide Act

that was looked at in BENNETT V FISHER, the

answer to your question is "Yes". Once the

Council does give one person the supply at $1,

those in a disadvantaged position are entitled

to point to him and require the Council to

assimilate their position to his.

DEANE J:  Whereas Mr Justice Brvson's view is that

if there was such a contr~ct it does not bind

the Council to the extent that it requires

it to give preference to your client rather than

entitles everybody else to be reduced.

C2T20/l/SDL	32	5/5/88
Miller(2)

MR RAYMENT:  That is right. His Honour's view seemed to

be something like this: that if Xis in an

advantageous position and Y is in a disadvantageous
position, you would read the contract of the

person in the advantageous position as if

it were liable to be determined so that he

could be brought into line with the person

in a less advantageous position, and because of 419 and clause 10. In our submission it

is the very reverse of the legislative intention.

One could take it further. If you have

X terminated so as to be brought into line

with Y, then if the Council gives less advantageous

terms, still, to Z, X and Y can be terminated

and so on, so as to bring them in line with Z,

on that view.

BRENNAN J:  Mr Rayment, these propositions assume that

there is a termination of something and that,

of course, means that it is assumed that there

issue such as whether the respondent Council

had by virtue of its position as a trading

undertaking incorporated by reference into the

contract a power to exact contributions.

One can see the way in which the matter arose.

First of all,in the Court of Appeal, if I may go first to the notice of appeal which I have already taken Your Honours to briefly, it is at

page 165~ Your Honours see that the way in

which it was there put by the respondent, as

appellant,was that His Honour Mr Justice Helsham

. .

erred in law in finding that:-

there was no implied term of the~ contract ..... that would permit the

Appellant to levy and recover charges

by way of· capital contribution.

That is put __ forward as an implied term:

Condition 14 of the Conditions of

Supply ..... only entitled the Appellant

to levy a special charge for supply

of electricity upon and at the time of

application for supply; and

Clause 10 of Ordinance 54 ..... does not

entitle the Appellant to impose

conditions upon which the supply of

electricity will be available after an

applicant has become a customer.

Your Honours see how the various sources of the

entitlement to levy the charge are put.

(Continued on page 97)

C2T68/l/SR	96	5/5/88
Miller(2)

MR RAYMENT (continuing):  Now, Mr Justice Mahoney described

the arguments - the passage Your Honour Mr Justice Deane

referred to - at line 20 on page 176.	His Honour
said:

the Council's case, in so far as it was based

upon the contractual arrangements between

the parties, was that there was nothing

in such contractual arrangements to prevent

the Council re~uiring a capital contribution.

And that leads to the second and third

submissions.

The second submission ..... to the

effect that, though there was no obligation

on the company to pay the capital contribution,

the Council was entitled to discontinue supply

unless it was paid. The submission was that

there was no restriction on the Council's

power to terminate such contractual

arrangements as it had with the company or

that, at least, there was no restriction on

its terminating such arrangements for this

reason. The effect of such termination

might well be that, to achieve a resumption

of supply, the company would pay the
contribution.

Your Honours, that was the view of the case which found favour with Mr Justice Mahoney. His Honour

took the view that it iWas open to the respondent

to raise in the Court of Appeal this question of

terminability and send it back to, in the first instance,

have, in effect, the reasonable notice question

determined; would the notice be reasonable or not?

His Honour said that - - -

MASON CJ:	Mr Rayment, does it really matter that the point was not taken, assuming it not to have been
taken below?
MR RAYMENT:	Yes, Your Honour, we would submit - - -
MASON CJ:	The respondent has been successful up-to-date,

why cannot the respondent justify the decision in its

favour by reference of this point.

MR RAYMENT:	Well, Your Honours ,if we ar.e looking at a case whether there were an independent power to impose
these restrictions, one would need to look at the
ELECTRICITY DEVELOPMENT ACT,in my submission,because
it has been amended, in material respects, since 1980
and in such a way as would be relevant to a question
of power in the respondent counsel to exact capital contributions.

C2T69/1/MB	97	5/5/88
Miller(2)

MR RAYMENT (continuing):  Your Honours, this is a matter

which was not debated below and, indeed, we would

submit was not relevant below but is in the category,

in our submission, of material that would or could be

altered by the presence of evidence.

MASON CJ :  I s e e i t i s a qua rt er pa s t 4 . I th ink we sh o u 1 d

adjourn until 10.15 tomorrow.

AT 4.15 PM THE MATTER WAS ADJOURNED.

UNTIL FRIDAY, 6 MAY 1988

C2T70/l/HS	98	5/5/88
Miller(2)