Raybos Australia Pty Limited & Anor v Tectran Corporation Pty Limited

[1988] HCATrans 72

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl26 of 1987

B e t w e e n -

RAYBOS AUSTRALIA PTY LIMITED and

LESZEK RAJSKI

Applicants

and

TECTRAN CORPORATION PTY LIMITED

First Respondent

G.B. RICHARDSON

Second Respondent

M. YERUSHALMY

Third Respondent

M.F. BRINSDEN

Fourth Respondent

C.J. COLE

Fifth Respondent

D.B. COWPER

Ray5os(3)

Sixth Respondent

ARUNTA PROPERTIES (NSW) PTY LIMITED

Seventh Respondent

ARUNTA INVESTMENTS PTY LIMITED

Eighth Respondent

B.P. JONES

Ninth.Respondent

P.F. J!SLER

Tenth Respondent

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W.R.D. STEVENSON AND ORS

Eleventh Respondents

N.R. CARSON

Twelfth Respondent

R.A. STEPHENS AND ORS

Thirteenth Respondents

Application for special leave to

appeal

BRENNAN J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 APRIL 1988, AT 3.33 PM

Copyright in the High Court of Australia

MR R.J. BURN:  I appear for the applicant, Your Honour.

(instructed by Messrs Johnson & Co)

MR S.D. ROBB:  May it please the Court, I appear for all of the

Ellison and Murphy Moloney) respondents. (instructed by Dawson Waldron, Minter

MR BURN:  Your Honour, this is an appeal against two matters

heard by Justice Toohey on a matter of taxation

which was brought by the applicants

BRENNAN J: Whatever else it might be, I would have thought

it is not an appeal.

MR BURN:  Thank you, Your Honour. I am doing well so far.

The brief chronology of it, if I might put this in

because I think it might help, is that the applicants

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made an application for a stay in 1986. There were

three groups of respondents The application was by

way of a summons to attend a Justice in chambers. The application was heard by Mr Justice Wilson on

3 October 1986. The application was refused.	Costs
were ordered against the applicants.	The bills -

or two of them were taxed and then there was an
appeal against the taxation.

This application today is effectively in two areas:

we are submitting that there was an error of law in the decision

in that the proceedings berore Mr Justice Wilson were in

open court and were not in chambers.

BRENNAN J:  Mr Burn, I do not want to interrupt you but could

we identify what we are about in this application.

In form, it is an application for special leave, is

it not?

MR BURN:	Yes.
BRENNAN J:	Do you need special leave·?
MR BURN:	If we do not, we are wasting our time today, I fear.

Our understanding is that we do need special leave.

I know it W3.Smentioned by Mr Justice Toohey that there

may be an appeal as of right.

BRENNAN J: Well is there or is there not?

MR BURN:  I have not got any instructions on that and my

understanding is that it may not be an appeal as of

right. But if there is, then of course Your Honour

can tell me to go away now.

GAUDRON J:  You may not be satisfied with that, because you may

find that if you are told to go away now you would be

out of time for lodging a notice of appeal, if there

is one as of right.

MR BURN: That is so.

BRENNAN J: Could we trace the statutory provisions for it,

Mr Burn?

MR BURN: I am not in a position to, Your Honour.

BRENNAN J: That is a shame.

MR BURN:  Yes. I am sure my friend -

BRENNAN J: Let us see if we can help you trace them through,

shall we?

MR BURN:  Thank you, Your Honour.

BRENNAN J: We start with the JUDICIARY ACT, I think, section 34.

Do you have a copy of that?

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MR BURN:	No.
MR ROBB:	I can give my friend a copy, Your Honour.

BRENNAN J: There is no sense in our delaying you if we are

not talking about the same subject-matter, Mr Burn.

MR BURN: True, Your Honour. It has been an informative day,

Your Honour. I cannot dispute that it says that-

The High Court shall ..... have jurisdiction to hear and determine appeals from all judgments

whatsoever of any Justice or Justices,

exercising the original jurisdiction of the

High Court whether in Court or Chambers.

So if the matter of ti.ma did not preclude us , yes, we could.

BRENNAN J:  Then we go to Order 70 of the Rules of the High

Court which deal with appeals and I think you will

find there that as there has not been a notice of

appeal which has been filed, you are out of time.

MR BURN:  It certainly was not within the time, Your Honour.

BRENNAN J: Well then do you wish to make any application about

extension of time?

MR BURN:  Indeed, Your Honour, we would like to make an

application for an extension of time.	The matter, as
you gather - you may have deduced came	to us
relatively late.

BRENNAN J: Is that the application that you are making?

MR BURN:  No, that is just by way of explaining why we have not

done as much homework as we should. The applicant is,

as you know, principally a litigant in person and

there has been a considerable amount of pressure upon

him and he just did not do it in time. Now, if

Your Honours were inclined to grant the additional

time that would be - obviously that would get him out

of his present situation. But the only reasons that

we could put forward are, one, the fact that the

applicant seems to be in three courts on any one day

and he has been under a lot of stress and has had

difficulty getting legal representation because of

impecuniosity. But he is not, at the moment, able to

get legal aid.

BRENNAN J: I see. That is the situation?

MR BURN: That is as much as we can - - -

BRENNAN J: All right, Mr Burn. We will hear what Mr Robb

has to say.

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MR ROBB:  Your Honours, it seems clear that the present

applicants do not need special leave to appeal.	They
need leave to appeal because they are out of time.

BRENNAN J:  They need leave to appeal because they·are out of

time or they need an extension of time?

MR ROBB:  Yes, I think probably an extension of time. We

submit also that they need leave to appeal in the

present case because of the operation of section 27 of

the JUDICIARY ACT. It is a section which, I must

confess, I do not find entirely free from doubt.

Section 27 comes within division 5 of Part III dealing

with Jurisdiction and Powers of the High Court Generally.

Section 26 is the section which entitles the Court to order costs. Section 27 has the somewhat misleading

headnote, "No appeal as to costs", and then provides:

An appeal shall not lie to the High Court

from a decision of a Justice of the Court,

or from a decision of the Supreme Court of

a State exercising federal jurisdiction,

with respect to costs which are in the
discretion of the Court, except by leave of

the Justice or Court.

GAUDRON J: But if the words"which are in the discretion of

the Court" qualifies "costs", as I would read those

words, -

MR ROBB:  That is clearly the issue.

GAUDRON J: - - -that in this case there is some suggestion

that the question as it affects costs is noc a question

of costs which are in the discretion of the Court.

MR ROBB:  Your Honour, the issue is, we respectfully suggest,

as you have put it but the question is what those

words mean, whether they are interpreted widely or

narrowly. We submit that when the words "with

respect to", which are very general words, "costs

which are in the discretion of the Court" appear in

that section that is not limited to the bare quantum,

let alone that there is a decision by the Court that

it will award costs or it will not, that in fact the

expression "with respect to costs which are in the
discretion of the Court" encompasses all of those
matters that the Court would address in respect of

costs which are in its discretion. Now, when one

goes to Order 71, I believe it is, one finds that

there is a plethora of limitations and requirements

as to how the Court should go about assessing costs.

Initially a Justice makes the order that there

be costs or not and the matter, unless the Justice

orders, is then referred to a registrar who is called

a taxing officer. That is found in rule 19, and rule

19(3) says:

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j.

A taxing officer may, of his own motion,

refer any question arising in a taxation

to a Justice for a direction.

Rule 22:

Every taxation of costs and every decision

of a taxing officer shall be subject to

review by a Justice.

There are then many other provisions dealing with

and then there is a fairly lengthy series of matters. the procedure, of how it all should be gone about, cases".

When the sum in dispute in an Admiralty action

does not exceed Two hundred dollars, or the

value of the res does not exceed Four hundred

dollars, one half only of the ordinary costs

shall be allowed.

That is a provision in the Rules which involves

factual questions that would delimit the cost that can

be awarded and one goes through and finds that there is

a large number of such provisions and then one comes

to rule 62:

Where counsel attends at Justice's Chambers

or before a Registrar, costs of the attendance for counsel to attend.
shall not be allowed unless the Justice or

Now, while I accept that the contrary argument is the

argument which Your Honour Justice Gaudron did put in

this question of construction, we submit - and I will

not belabour it by going on about it at length, that

properly understood section 27 has the result that when

this Court makes an order - when a Justice of this Court

makes an order as to costs then the order and the

process that is gone through thereafter leading to

certification of the amount and perhaps ultimately the
review are still matters with respect to the costs
which are in the discretion of the Court, and that the
fact that the Judge who, on review, is deciding the

question might have to make along the way a decision

as to some fact, whether a rule comes into effect or

not, does not take that issue out of the general rubric

of a decision with respect to costs which are in the

discretion of the Court.

BRENNAN J:  I understand that argument, Mr Robb, which of course

gives full play to the words "with respect to". But

let it be assumed that your argument is quite accurate

in relation to the construction of section 27, we

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would then come to the question of whether leave

should be given, is that right?

MR ROBB:  Yes.

BRENNAN J: And it is not a question of special leave under

27, it is a question of leave.

MR ROBB:  Yes.

BRENNAN J: And in order to establish a claim for leave, an

applicant should show, I understand, in the ordinary

case of an application by leave of any other sort,

a substantially arguable case.

MR ROBB:	Yes.
BRENNAN J:	Does he have to show any more than that?
MR ROBB:	In my respectful s.ubni.ssion, questions of cost are

questions of procedure and the Court is normally

reluctant to intervene in a decision of a Judge at

first instance on matters of procedure, particularly

if the case does not involve a general question of

importance. I really do not know what the position

is in States other than Victoria and New South Wales,

but questions of chamber applications and applications

in open court are almost beyond my immediate

understanding as a New South Wales' practitioner, that

is to say in relation to the issue of whether this
decision of His Honour Mr Justice Wilson's was in

chambers or not, that is not a question of any public

importance. I am not saying as if it were a special

leave application, but as I understand it, when leave

is sought from a procedural decision, it is not

simply a question of whether there is a reasonably

arguable case, there must be a strongly arguable case

and because the Court is normally loath to interfere

with procedural matters, normally the Court would

require to be satisfied to some degree that there was

a question there that warranted the Court's time.

Now, as I understand it, that is the attitude that

the New South Wales' Court of Appeal applies because

it, of course, is only concerned with leave to appeal.

BRENNAN J:  Have you got any authorities which would help

illuminate the meaning of section 27 in its operation?

MR ROBB: Frankly, no.

BRENNAN J:  I propose to ask the Registrar whether he is aware

of any authorities that bear upon the construction of

section 27 of the JUDICIARY ACT.

MR ROBB:  My instructing solicitor has given it considerable

attention, and I have within the available time, and

I am not able to assist the Court on this.

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'.

BRENNAN J:	Yes.
MR ROBB:	I should say a number of specific things: there is

a particular issue in the case of the ninth to

eleventh respondents. It comes up in His Honour's judgment where His Honour notes that in respect of

those respondents the - I forget the formal

description of it - formal written objection required
to be lodged was lodged out of time and for that
reason the Registrar refused to deal with those
objections in addition to the considerations he brought

to bear in regard to the other respondents and that

was a separate reason why His Honour Mr Justice Toohey

refused to review the applicants' position in relation

to those respondents. It is a particular point, but I

must not lose sight of it. Those respondents are in a

different position.

GAUDRON J: Their position is not challenged by the draft notice

of appeal, is it? Their position in relation to that

question.

MR ROBB:  No, it is not, Your Honour.

GAUDRON J: Perhaps I can ask Mr Burn this: are you in a

position to say whether that would remain the case?

MR BURN:  My instructions are that it would not remain the

case.

GAUDRON J: That it would not.

MR BURN:  No, it would not remain the case.

BRENNAN J: That is if you can do anything about it it will not

remain the case.

MR BURN:	Yes, if we can do anything at all about it, we will.
MR ROBB:	Your Honours, as Mr Burn said, there are two issues

in the broad raised by the draft notice of appeal.
If I may deal with them in reverse order.	The first

which I will deal with is this question of whether it
was available for the Registrar and then His Honour

on review to allow costs of senior counsel and one

Tl2 junior. Now, we respectfully submit that must very

clearly be a matter completely apt for the discretion

of the taxing officer and that it is extraordinary to

think that the High Court of Australia would sit on

appeal from a decision of that nature.

It may be that because matters are not so often heard in the High Court sitting at first instance

that one cannot put up an argument of floodgates, but

I need not belabour the matter further than to say,

Your Honours, that it really is not a matter which

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one would expect this Court to give leave to an

applicant to run before the Full Court. It is

purely a matter of discretion and, with respect, many

a judge would say, I think, without difficulty, that
normally a taxing officer would have a better basis

for making that ruling than a court.

The second matter, which is the first raised

in order in the draft notice of appeal, is of more

substance. It is the question of whether

Mr Justice Wilson dealt with the matter in chambers.

Now, there are two parts of that, Your Honours.

His Honour, in his judgment at page 6 which, on my hand-numbered application book is page 30, concluded

at about line 19:

It follows ·that the summons heard by

Wilson J. was not an application which by

the Act or Rules was made subject to the

direction of a Justice sitting in chambers. The submission I wish to make is this, Your Honour:

if Your Honours look at the relevant statutory

provisions and rules and are persuaded here and now

that the applicants have very little chance of

establishing that it was competent to bring this

matter on in chambers, then Your Honours should not

grant leave, we respectfully submit.

Before I take Your Honours briefly to only the

two or three provisions that I need to take Your Honours

to in that respect, I put the second point in regard to

that and that is this:  Mr Justice Toohey, on the review

of the taxing master's decision, looked at the evidence

available to him and concluded as a fact that the

proceedings were in fact held in open court, however

be the form of the summons which commenced them.

Now, I will not belabour the point. It is

clearly available to this Court to say, having looked at the evidence available to Mr Justice Toohey, there

is a reasonable case to be argued that he got the facts
wrong and that leave should be granted.	We submit,

however, to the contrary of that that the Court should

not in these circumstances grant leave because it was

well open to His Honour to come to the conclusion he

did on the facts that were before him.

The last thing I need to do, Your Honours, is to take Your Honours to the relevant provisions. If I

could ask Your Honours to go to section 15 of the

JUDICIARY ACT Your Honours will see that it said,

The jurisdiction of the High Court may,	subject to the provisions of this Act, be
exercised by any one or more Justices sitting in open Court.

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The next provisions is section 16: The jurisdiction of the High Court may be

exercised by a Justice sitting in Chambers

in the cases following -

and the only one that is relevant, as His Honour

notes in his judgment, is (c):

Applications for orders or directions as to

any matter which by this Act or by Rules of Court is made subject to the direction of a

Justice sitting in Chambers.

They, as I apprehend it, are the only two provisions

of the Act that are relevant and in broad terms they have the form that the High Court's jurisdiction may be exercised by Justices sitting in open eourt unless

the Act or the rules say to the contrary. The

relevant rule is Order 52 rule 1 and I can take

Your Honours to that briefly and l only need to take

Your Honours to Order 52 rule l(a). Your Honours may

of course look at the balance but rule l(a) is a
rule of general application and as I read it the

other subrules, fairly patently on their face, do not

apply. But rule l(a) says:

A Justice in Chambers may hear and determine -

(a) an application which, by an Act or by these

Rules, is authorized to be made to a Justice,

and is not specifically required to be made to

a Justice in Court;

Mr Justice Toohey mentioned two cases. I do not

propose to take Your Honours to them because I

understand it is unarguable they say what he said they

said. Page 6 of his judgment His Honour dealt with

the JENNINGS CONSTRUCTION case, (1986) 61 ALJR 102,

and NARAIN V DPP, (1987) 61 ALJR 317. They are

cases which, in terms, say that the jurisdiction which

the Court has at the stage of a special leave

application to grant a stay of proceedings at first
instance or otherwise take steps to secure the subject-
matter of· the procee.dings is in the inherent

jurisdiction of the Court. Now, I could put my

submission shortly, Your Honour. It is my submission

that where the jurisdiction which the Court is exercising

is the inherent jurisdiction to grant a stay in such

like cases before special leave is granted that is not

something that is authorized to be made to a Justice

by an Act or by these rules.

If I may summarize by way of conclusion, it is

our submission that because the application which

Mr Justice Wilson dealt with was in the inherent

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jurisdiction of the Court, it follows as a matter of

statutory inte~pretation that that application was not

authorized to be made to a Justice by any relevant

statute or rule and that Mr Justice Toohey was quite

right in saying that whatever the initiating proceedings

might have said about "to see a judge in chambers",

it was not competent for the matter to be heard in

chambers and that in those circumstances the fact that

all parties have allowed the matter to proceed, where

it in fact is heard in open court, where it is in fact

transcribed and where in fact His Honour and counsel

are robed, that Your Honours should be persuaded that

there is so little prospect of success of this
application that Your Honours should not grant leave.

May it please the Court, they are our submissions.

BRENNAN J: Yes, thank you, M:'Robb. Now, Mr Burn, you have a

few problems to face.

MR BURN:  Yes, Your Honour, but on the matter of the substantive

case, my friend has done a_very good job and put our
case very well. Could I refer you to, however, for

instance, the JENNINGS' case which he mentioned. I

have copies here.

BRENNAN J: What do you say, though, first of all, about

section 27 of the JUDICIARY ACT? In other words,

34 takes you to the point where you do not need
special leave, but section 27 takes away the benefit
of that in the case of decisions of a Justice with

respect to "costs which are in the discretion of the

Court".

MR BURN:  It takes us back to asking for leave really, does it

not, Your Honour, because certainly certifying that

the case was suitable for counsel in chambers is a

matter for the discretion of the Court. So it takes

us back to asking for leave. But certainly costs are

at the discretion of the Court.

GAUDRON J:  I wonder if that is so, Mr Burn. I wonder if what

they are here concerned with is not something quite

different from an appeal from a decision with respect

to costs which are in the discretion of the Court. I

wonder if we are not here concerned with an appeal from

a review of the taxing officer's decision as to costs,

and if the words in section 27 are not simply limited

to orders for costs as such. That is, when you look

at them in terms of the opening words that:

An appeal shall not lie to the High Court from

a decision of a Justice of the Court, or from a

decision of the Supreme Court of a State
exercising federal jurisdiction, with respect to

costs -

if you are not just looking at the position where an

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appeal is made in relation to an order for costs or

a refusal of an order for costs.

MR BURN: We would submit that the words "with respect to costs"

are broad and that the whole issue was about costs and

that the issue is one on whether or not certain costs

should have been given and certainly the costs that we

are talking about were ones which were clearly going

to be within the discretion of the Court.

GAUDRON J: Thank you. In that case, let me not detain you from

explaining why you should be given leave.

MR BURN:  Could I take Your Honours to the JENNINGS' case which

was mentioned by my friend. It was, of course, mentioned

the application book, as you will note, Mr Robb pointed	in the judgment of Mr Justice Toohey. At page 30 in
out that subrule (c) was described and His Honour went
on to talk about -

the power of the Court to grant a stay of

proceedings pending the hearing of an

application for special leave -

and this being an -

exercise of inherent jurisdiction.

It seems to imply that an exercise of inherent - that this was not something which could be done by a Justice

in chambers. In fact, JENNINGS' case, on the first

page at about 33 says:

This was an application for a stay pending the

determination of applications for special leave

to appeal to the High Court.

The next page, 266 at 20, 25 and 35, His Honour talks

about inherent jurisdiction and in fact further through.

But then could I take you to the very last page. It

says, in this matter which was an application for a

stay pending a determination and was talking all about

inherent jurisdiction, he says at the very end:

Certify that this was a matter proper for the

attendance of counsel in chambers.

We would submit that that is a fairly powerful argument

that this sort of thing can be done in chambers. It

certainly does not debar - it is not an indication

that this authority which was quoted by Mr Justice Toohey

debars the matter of having been heard in chambers. The NARAIN case, my instructions are, there

were no costs ordered, it was a criminal case, NARAIN

V THE DPP. Then there were inferential things drawn

like whether they were wearing robes and things like

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that, whether transcripts were available. Well, I

have here a number of judgments given in chambers
and I have the transcripts of them. That does not
seem to be a valid point. Certainly not now. I agree

that in the cases that were mentioned on the next page

of the application book in Mr Justice Toohey's

judgment there were a number of old cases mentioned and

these were to the effect that - well, it was a 1936

case, McPHERSON, that was mentioned here, McPHERSON V

McPHERSON, (1936) AC 177, and that said that the public
was excluded was the characteristic of being in chambers.

The VERNAZZA V BARBURRIZA & CO LTD case, (1937) All ER 364,

that said things that happened in chambers were private

and therefore even though notes were taken, a transcript

was not going to be made available.	They are not
terribly relevant for today.

BRENNAN J:  You do not need to run through the arguments on

appeal, it is a question of section 27, leave to appeal

or extension of time.

MR BURN:  Thank you, Your Honour. I am making out the point

here that we do have a substantial case, that there is nothing to indicate really that it could not have been

in chambers and that the record which shows that it was

in chambers is not correct, because there is no dispute

that the orders of Mr Justice Wilson were in chambers.

BRENNAN J:  Mr Robb, we will put this proposition to you first,

I think, then I will ask Mr Burn for his response to it.

It seems to us, as at present advised, that if section 27

applies to these proceedings in accordance with your
argument, then the decision we have to make is whether

we should grant leave to appeal under section 27, and

for reasons which have been thus far outlined, leave to

us appears to be appropriate in respect of the question
of chambers or no chambers. Subject to anything that

Mr Burn may say with respect to the two counsel however, we would think that that is not appropriate

for the grant of leave. But it may be that there is

a good argument that section 27, properly construed,

does not apply to these proceedings at all and that it

would be appropriate therefore to grant an extension
of time in case that should be the appropriate remedy

to be given, leaving it to you, if the appeal should

extend beyond the subject to which we grant leave, to

raise an objection to competency if the grounds of

appeal should go beyond that, thereby leaving it open

to you to argue the application of section 27 before

the Full Bench if that should be necessary.

Now, does that course present any obstacles to

you which you would wish to address any submissions on?

We shall then hear from Mr Burn in reply.

MR ROBB:  Yes. I should just seek instructions on that if I

may, Your Honour.

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BRENNAN J: Perhaps you might do so likewise, Mr Burn.

MR ROBB:	If that is the course Your Honours are minded to take, I would have nothing to say upon the course
that Your Honour suggested.  I should perhaps just
say, albeit I notice the time, there is a moral in this
in not looking at both versions of reported cases. In
the JENNINGS'matter in the Australian Law Journal, Your Honour is reported to have said at the bottom,
"I certify for counsel", which I thought was very
intriguing, but it was a revelation to me when my
friend read the other version of it. Had I known that
I perhaps would have addressed something to it when I
was addressing.  May it please the Court.
MR BURN:	The course that you indicate would be suitable to

us and we would not then press the remainder of our

application in relation to the counsel and the two

juniors.

BRENNAN J:  So then all you would require is leave to appeal

if such should be necessary in respect of the chambers

or no chambers point.

MR BURN: That is so.

BRENNAN J: Limiting the appeal altogether to that.

MR BURN: That is so. If we got up on that, of course we are

up anyway.

BRENNAN J: In those circumstances, you would not want an

extension of time, is that the situation?

MR BURN:  We would want an extension of time in that we would

want, say, three or four days.	We would want at least
till, say, Tuesday.

BRENNAN J:  You would have 21 days, perhaps.

MR BURN:  Twenty-one days would be ample. There is another

point, though, if I could bring it up, Your Honour,

and that is that currently there is in operation - or
about to expire - an order for a stay in relation to the certificate of taxation. This is a matter which

was before Mr Justice Wilson on 10 February 1988 in

which, incidentally, Mr Meagher asked for certification

for counsel, in which he granted a stay of execution of the certification of taxation pending the hearing of the application for special leave to appeal from the

judgment and the order of Mr Justice Toohey and that

the stay should operate with respect to all the bills -
that is all three lots of bills - of costs arising out

of my order of 3 October 1986.

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It would be our application that this stay of

execution of the certification continue until the
hearing of the appeal.

BRENNAN J: Though it extends beyond the question of the

costs for counsel?

MR BURN:  My instructions are, yes, Your Honour, although it

extends beyond the costs for counsel.

BRENNAN J: That seems to be too far, does it not?

MR BURN:  Your Honour, I could not dispute that.

BRENNAN J: Perhaps you might formulate an application while

we hear from Mr Robb - he obviously wishes to say

something - you can formulate your application for the

stay in terms that you think appropriate.

MR ROBB:  I confess that I am not sure where the ninth to

eleventh respondents stand. They were the ones as

to which the notice of dispute was filed out of time;

nothing else has been done about that; that was the

way the position was lP-ft before the Registrar and

before Mr Justice Toohey and here. If nothing else happens - - -

BRENNAN J:  So far as their position is concerned, nothing

has been resolved, has it, in the sense that their

objection - or the objection as against them was out

of time and Justice Toohey did not make any order that

was adverse to their interests?

MR ROBB:	No, and they should be out of it, as I understand it.
BRENNAN J:	We will see perhaps - - -
MR ROBB:	But I just do not want to go away not understanding

what is going to happen.

BRENNAN J: Are they parties to the stay order?

MR ROBB:  Yes, they were ordered - the stay was ordered against

them and I was going to say that it should not go against

them at all. I can see how, in relation to the

challenged costs, the Court would be minded to continue

the stay until - - -

BRENNAN J: Keep the status quo.

MR BURN:  The stay applied for would apply to the certificate -

or is asked to apply to the certificate and the one

that is currently in force and about to expire applies
to the certificate. That is our application, that the

total certificate be stayed. But if Your Honours were

of a different mind, then we would have to submit to

a more limited amount.

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MR ROBB:  Could I say, Your Honours, that while my friend

indicated he was going to make some such application

this morning, I have not seen any form of it. I am

a little bit worried that - I am instructed that there

are problems in form - apparently a certificate is just

about to elapse. There are problems in whether a

Registrar can issue a certificate for part of a bill

of costs and other things - it is all beyond me, quite

frankly. I am not sure that I am in a position to say

much of sense about what form an order should take

Tl3 without it being - - -

BRENNAN J:  One way of resolving it, of course, would be

upon an undertaking by your client not to enforce the

certificate so far as it relatea to the costs of

counsel awarded in respect of the chamber or court

application.

MR BURN: Apparently there are other matters in the certificate

like costs of copies to counsel and miscellaneous

things which do not go - if counsel are not there,

then - - -

BRENNAN J: Yes, but certification of counsel is all that is

in issue, I think.

MR BURN:	Yes, Your Honour.
BRENNAN J:	Mr Burn, the question of the ninth to eleventh respondents, no leave to institute an appeal is against
them.  Do you have anything to say about that subject?
MR BURN:	Your Honour, the reason they are not in was that, once

again, a delay on the part of the applicant. The objection was lodged too late, but we would if we

could include them in it because, after all, the

essence is the same thing.

BRENNAN J:  I appreciate that, but it was just too late, was

it not?

MR BURN:  It was too late. The problem came that the applicant

was dealing with it himself, had a couple of days to

put it in. He was beforethe court on a two-day matter

which turned out to run for 20 days.

BRENNAN J:  I understand the argument but - - -

MR BURN:  And he was late because of that. He was in court -

BRENNAN J: There is one matter still to resolve and that is

the question of a stay.	Do you have anything further
to say on that, Mr Robb?

MR ROBB:  I hope I am going to get this right, Your Honour.

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I understand that the Court can direct the Registrar

to issue another certificate omitting the counsel's fees with leave to the Registrar to issue a further certificate in respect of counsel's fees if the outcome

of the appeal so allows it. The difficulty with giving

an undertaking to the Court is that I do not know

precisely what it would cover and what it would not.	I
do not know how much - there is counsel's fees and, as my friend says, there are documents to and from counsel
that may have been allowed in the taxation.

BRENNAN J: This relates only to counsel's fees and the

certification for counsel's fees.

MR ROBB:  Right, well if it is that - I am told that you execute

on the certificate which is for a certain sum and that

is the way you have to do it and that if we undertake

not to execute in regard to counsel's fees, then there

is, I gather, some mechanical provision - the formality

of it is that that stops us from executing on the

certificate. It is an all or nothing thing.

BRENNAN J:  When does this stay expire at the moment, Mr Burn?

MR BURN: Pending the hearing of the application for special

leave to appeal.

BRENNAN J: What we think would be an appropriate thing to do

is to make the orders we propose to make now with

regard to the grant of leave. We will not now make a

stay order but that can be the subject of an

application to a Judge in chambers next week.

MR BURN:  Thank you, Your Honour.

BRENNAN J: In the meantime, the order will be extended.

MR ROBB:  I would like to assist the Court. I am instructed

to consent to the stay continuing. It is more cost

effective, given the amounts of money involved, just

to consent rather than going to the greater expense of

coming back to Court.

BRENNAN J: Very well. Then in those circumstances the order

will be that as against the first to the eighth

respondents, leave is given to the applicant to appeal

on the grounds set out in paragraphs 1 to 4 of the

proposed grounds of appeal and that the stay with

respect to the enforcement of the certificate is
extended for the further period of 21 days and if

within that time a notice of appeal is filed, then

thereafter until further order or until the matter is

disposed of on appeal, whichever should be the earlier. the eighth respondents only.

MR BURN: If the Court pleases.

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MR BURN:	I am just advised about something, items 12 and 13- - -
MR ROBB:	Could I shorten this, Your Honour.  The only ones

Your Honours would have excluded was the ninth to the

eleventh. There are two more and I think all that

needs to happen, with respect, is that, consistent

with what Your Honours have said, that they be

included.

BRENNAN J: The same order then extends to the twelfth and

thirteenth respondents as was made in respect of the

first to the eighth respondents.

MR BURN:  Thank you, Your Honour.

BRENNAN J: Court will adjourn to a date to be fixed.

AT 4.27 PM THE MATTER WAS ADJOURNED SINE DIE

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