Re Senator Robert Wood

[1988] HCATrans 31

I N THE HIGH COURT OF AUSTRALIA
SITTING AS THE COURT OF
DISPUT ED	RETURN S

In the matter of -

The Cormnonwealth Electoral Act

1918-1980

Registry	No C3 of 1988
Questions referred pursuant to
Section 377 of the Cormnonwealth
Electoral Act 1918

RE SENATOR ROBERT WOOD

MASON CJ

Wood

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 2 MARCH 1988, AT 2.16 PM

Copyright in the High Court of Australia

C2Tl/l/RB 1 2/3/88

MR K. MASON, Cf, Solicitor-General for New South Wales: If

Your Honour pleases, in this matter I seek, in the first instance, leave for the State of New South Wales

to be made a party pursuant to section 378 of the

COMMONWEALTH ELECTORAL ACT. (instructed by the

Crown Solicitor for New South Wales)

HIS HONOUR:  It is a question under that section as to whether

the Court allows the State of New South Wales to be

heard on the hearing of the reference.

MR MASON:	Yes.
HIS HONOUR:	If the Court allows the State to be heard, then

the section has an automatic operation; the State is

then a party. So you apply for the State to be

allowed to be heard?

MR MASON:	I do, Your Honour, yes.
HIS HONOUR:	Is there any objection at the bar table to that

application? There being no objection, the State

will be allowed to be heard.

MR MASON: If Your Honour pleases.

HIS HONOUR: Yes, Mr Solicitor. By the way, before you

resume your seat, can you indicate to me what

submission you will be presenting to Court.

MR M._,\SON:  Yes, I can, in broad terms, Your Honour. It is that

the question of whether there is a vacancy is a matter for the Court to determine and if the Court determines

that there is a vacancy and exercises its. powers

pursuant to section 379, then as and from that time,

but only as and from that time, there is a vacancy.

The validity of the return or of the election of

Senator Wood cannot, in our submission, be now put in

issue in view of the provisions of section 353(1) and

therefore the powers of this Court under section 376

to hear and determine a question respecting qualifications

or vacancy is a power that is to be exercised in such

a way that it does not lead to any dispute of the

return or of the election.

HIS HONOUR:  I notice that 353(1) is not picked up in that

array of sections that is referred to in section 381.

MR MASON:  No. Because 353 is more a substantive provision.

which, particularly 353(1), in our submission just

does not - it says that that issue is in effect not

before the Court exercising its powers under

division 2, as we would submit. The division between

division 1, disputed election and returns, and division 2,

qualifications and vacancies, reflects a division to

be found in section 47 of the CONSTITUTION where three

different types of questions are mentioned, namely

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questions respecting the "qualification of a senator or
of a member ..... or respecting a vacancy ..... and any
question of a disputed election", and we would

therefore, reading section 47 and divisions 1 and 2
together, say that 376 is to be read down in the way

Tl that I have submitted.

We would be saying broadly that although the

first question that has been put to the Court is framed
in terms of "Is there a vacancy?", the background
material make plain that the real issue is one as
to qualifications and while it is conceded that the

Court's powers - conceded on our part - under 379 are thrown open, even though the question is one

involving qualifications as distinct from vacancy,

there may be something turns upon that in that, as we

say, the Court would be declaring not ab ini tio but

if the Court determined, and that may be a matter of

discretion, but if the Court determined a vacancy it

would occur in futuro.

HIS HONOUR: When you say in future, after the election?

}1R. MASON:  No; after the declaration. And that may have some

bearing upon our third broad submission which is that

in the event of a vacancy being declared by this

Court, sectionlS of the CONSTITUTION would be

applicable.

HIS HONOUR:	Yes.
}1R. MASON:	And it would be filled as a casual vacancy.
HIS HONOUR:	Thank you, Mr Solicitor.

}1R. C.J. STEVENS: If the Court pleases, I seek to apply on

behalf of the Commonwealth Attorney-General for leave

so far as is necessary to appear by counsel.

(instructed by the Australian Government Solicitor)

HIS HONOUR:  Yes, Mr Stevens. Is there any objection to leave

being granted to the Commonwealth Attorney-General to

appear by counsel? You can take it, Mr Stevens, leave

is granted.

}1R. STEVENS:	If Your Honour pleases. Your Honour, following the remarks made to the Solicitor-General for
NewSouth Wales, at this stage the attitude of the
Attorney-General is yet to be determined and I seek
not to give any outline of that argument to Your Honour
at this stage.
HIS HONOUR:	Well, I suppose if the attitude of the Attorney-

General has not been determined, you are not in a

position to present any outline of argument at this

stage.

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:t1R STEVENS: Quite so, Your Honour.

HIS HONOUR. It would be interesting to know what the outline

would be in those circumstances. Very well.

:t1R STEVENS: If Your Honour pleases.

$A.HERBERT: If it please Your Honour, I seek leave on behalf

of the Attorney-General for the State of Queensland to

appear by counsel. (instructed by the Crown Solicitor

for Queensland) I also appear on behalf of the

Attorney-General for the State of Queensland

intervening in these proceedings on behalf of the

State of Queensland pursuant to section 78A of the

JUDICIARY ACT.

HIS HONOUR:	78A, how does that arise?
:t1R HERBERT:	In my submission, the reference itself on its

face raises questions as to the proper interpretation

of at least section 15 of the CONSTITUTION which is

named in the motion which was passed by the House and

forwarded by the President. And, in addition, in my

submission, it is clear that other sections of that

reference raise significant questions in relation to

section 7 of the CONSTITUTION.

HIS HONOUR: Is the proposed appearance limited to presenting

argument as to the interpretation of the relevant

constitutional provisions?

:t1R HERBERT:  Yes, it is, Your Honour, and in that sense, if the

proceedings reach a stage or have a stage where it is

proposed to seek to unscramble the omelette, as it
were, in relation to the electoral proceedings in

New South Wales, it is not proposed to play any part

in those proceedings.

HIS HONOUR:  I see. Any objection to leave being granted to

the Attorney-General for Queensland to appear by

counsel? Leave is granted, Mr Herbert.

T3	:t1R HERBERT: Thank you, Your Honour.
:t1R R. KENZIE, QC:  May it please the Court, I seek leave to

appear on behalf of Robert Wood who seeks leave

pursuant to section 378 of the ELECTORAL ACT to appear

and be represented by counsel.	(instructed by
R.L. Wyburn and Associates).	Mr Wood is, of course,
the person named in question 1.

HIS HONOUR:  I will not ask if there is any objection to your having leave to appear. You have leave to appear,

Mr Kenzie. Are you in a position to indicate to me the

argument that you are going to present?

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MR KENZIE:	If it please the Court, having heard the learned Solicitor-General for the State of New South Wales, I
would indicate to the Court in broad terms the submissions that we would be putting to Court would
follow those submissions. It is not to be thought,
however, that we would necessarily make the same
concession as to the Court's power under section 379
to deal with the question of qualification in the way
I think Mr Mason conceded.
HIS HONOUR:	Yes.

MR KENZIE: Subject to that, I think the Court can proceed on

the basis that our submissions would be similar.

HIS HONOUR: Yes, thank you, Mr Kenzie. Yes, Mr Robertson.

MR A. ROBERTSON: May it please the Court, I seek leave to be

heard on behalf of the Australian Electoral

Commission under section 378 and also seek leave under

section 370. that the Commission be represented by

counsel. ( instructed by the Australian Government Solicitor)

HIS HONOUR:  Yes. Is there any objection to leave being

granted on both scores? Leave is granted, Mr Robertson.

Can you indicate to me what attitude the Electoral

Commission proposes to take at the hearing?

MR ROBERTSON:  I can indicate, Your Honour, a primary position

in any event. One of the matters in which the

Commission is interested is the question of relief and

remedies and what functions and tasks might fall to it

in the event that certain relief was given and another

interest it has is in presenting to the Court material

as to the factual background of the election that was

held in July of last year.

The Commission has prepared an affidavit sworn

today by Brian Richard ~ugent, who is the Australian

Electoral Officer for the State of New South Wales,

and copies of trathave been provided to those who

are represented at the bar table.	I have a copy that
I can make available to Your Honour. Alternatively it

can be filed in the Registry in due course latP.r t0day.

B11t what it d~es is t~ set out in ~hrcnological form what happened from the time that the Governor

commanded the electoral officer to commence the process
up to the return of that writ by the electoral officer
to the Governor. It exhibits to the affidavit a
booklet which is called "Results of the Senate

Election for New South Wales" which sets out the order

of the election and elimination of candidates and that

material , it will be submitted, is or may be of

assistance to the Court in determining the question

of relief, depending on what answers to the three

questions.

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To answer the qustion that Your Honour

asked of me, the preliminary submission that - the

primary submission that the Cormnission would be

putting would be that section 15 of the CONSTITUTION

would be the provision that the Court should apply,

that is that there has been in the circumstances a

casual vacancy.

Should I, Your Honour, hand the affidavit to

Your Honour or - - -

HIS HONOUR:  Yes, you can hand it in to me. You will ensure

that any appropriate fee is paid on it. I am not

in a position to collect a donation from you.

MR ROBERTSON:  I will undertake to do that, Your Honour.

HIS HONOUR:  Yes, thank you. Yes, Mr O'Sullivan. You appear

for Elaine Nile who is the candidate that was next

in line for election.

MR L. O'SULLIVAN:  Yes. This is what is said in the letter

that I asked to be sent to the Registrar, Your Honour.

We would seek leave to be allowed to appear, (a), by

counsel under section 370 and as a person iriterested

under section 378 of the COMMONWEALTH ELECTORAL ACT

1918. (instructed by E.L. Dearn, O'Kane &

Associates)

(Continued on page 7)

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Wood

HIS HONOUR:  Now, is there any objection to that course?

Well, leave is granted on both counts, Mr O'Sullivan.

MR O'SULLIVAN: If Your Honour pleases. Thank you.

HIS HONOUR: Are you in a position to indicate to me the argument

that will be put on behalf of your client?

MR O'SULLIVAN: Yes, Your Honour. In broad scope: it is, firstly,

that the election of Senator Wood was invalid, it was

void, in the first instance and, therefore, the case

being presented on behalf of the person interested,

Mrs Nile, would be that the whole matter really dates back to the date that the poll was declared by deed

a long time ago and the question there is, firstly,

whether he was qualified in the first instance; whether
he should, in fact, be regarded as not having been on

the ballot paper and secondly, of course, as is

foreshadowed, I think, in the letter I asked to be sent

to the Registrar of this honourable Court. Mrs Nile's

counsel, who may not be me, will be seeking to tender an
earlier procee·ding concerning Mrs Nile and Senator Wood

and the point there is, Your Honour, that the question

of the Senator's nationality, his national status, may

not be the only disqualifying factor and it may be that

the Court has to ask whether or not there is some other
reason why the Senator may not be validly appointed

but these are things that - - -

HIS HONOUR:  But that is a problem for us on the reference,

is it not? That is not a question that is raised on

the reference?

MR O'SULLIVAN: Well, now, on one interpretation of the

reference, Your Honour, the question is whether there

is a vacancy, not what is the basis for the vacancy.

And I heard one of my learned friends indicate that
one basis may appear already from the surrounding papers

and that, of course, is the nationality issue, but there is another issue and that was the question as to whether or not, at material times, when he first signed a

statement under the COMMONWEALTH ELECTORAL ACT or at a

later stage before he took up this position in the House,

the Senator may have been subject to sentence in a

certain matter.

The reason for introducing the reference to the

earlier file, Your Honour, is that on that earlier

occasion an attempt was made to get subpoenas for a

variety of things. One of those concerned the nationality

of the Senator. We were refused a subpoena and we were

unable to act within time to take any step in spite of,
shall we say, a suspicion in the matter. Another one of
the features sought was what was the status of an "alleged

conviction" against the Senator which was subject to

sennence at that time. We did not get the subpoenas and

we do not know the answer and therefore I cannot take

the matter further, Your Honour.

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Wood

HIS HONOUR:  Yes, but the problem is that the Court is proceeding

in consequence of a reference under section 377 of the

COMMONWEALTH ELECTORAL ACT. We have to deal with the

reference in terms of the questions that are put to the

Court and on the materials put to the Court.

MR O'SULLIVAN:	Yes, Your Honour.
HIS HONOUR:	The Court has no initiating power of its own to

amend the reference so as to encompass, as it were,

another question or, perhaps, give the questions asked

a different slant by reference to other materials. So,

that is a matter that will confront you in putting part

of the argument that you foreshadow.

MR O'SULLIVAN:  Yes, Your Honour. Thank you, Y~ur Honour.

HIS HONOUR:  Yes, very well. Thank you, Mr O'Sullivan. Yes, now,

are there any other applications for leave to appear?

MR M.H. MACK.ERRAS:  My name is Malcolm Hugh Mackerras and I am

interested in this case. My interest is that I am a

political analyst who often analyses election results.

I am not a lawyer other than an ability to read the

CONSTITUTION and Acts of Parliament but I have studied

these elections very, very closely.

My principal reason for wishing to appear is that

whilst it is quite likely that there is nothing I say

that has not already been thought of by somebody else,

it is possible that some points I make will not have

been previously considered. And my submission is that

there is no vacancy but, in particular, that what needs

to be done in this case is to make clear that none of

the three so-called precedents mentioned in the

T4	parliamentary debate are precedents at all; that is
I wish to submit to you if I may that the case of VARDON V O'LOGHLIN is so different in character to
this one that it should not be regarded as a precedent.
The case of the Tasmanian elections for the division of
Denison in 1980, which was a by-election consequent upon
the invalidity of the 1979 election, is so different
precedent and the case of the election in the electoral from this case that it should not be considered to be a
district of Barkly in the Northern Territory in 1987 is also so different from this case that it should not be regarded as a precedent.
I wish also, if I may, to assist you in any detailed technical matters in relation to the election in New South
Wales in 1987. In particular I, if I may begin by
saying, disagree with the proposition that Elaine Nile
is the candidate next in line after Senator Wood. I would
say that Ian Cohen would actually have a better qualification
to be described as being the candidate next in line after Senator Wood, and that Elaine Nile is actually rather low
down of the possible next-in-line candidates. But I would

C2T5/l/PLC	8	O'SULLIVAN	2/3/88
Wood

be entirely happy to discuss with you all the details of

this election and the alleged equivalent or precedents

that have been mentioned as you may wish to hear.

HIS HONOUR:  Yes. Well, Mr Mackerras, you may be labouring

under a misapprehension. I do not discuss things with

anyone who appears before me. People who appear before

the Court makes submissions to the Court. Their

submissions may or may not elicit some kind of response

from the Court. But what ensues is not really a

discussion, it is a presentation of argument. So, you

need to understand that.

MR MACKERRAS:  Yes. I wish to present argument along the lines

I have just stated.

HIS HONOUR: Yes, but now, Mr Mackerras, there is a question

as to what your real interest in this case is. The people to whome leave has been granted thus far are

all persons who have some discernible interest in the

case. Now, in your case, you are not a resident of

New South Wales?

MR MACKERRAS:	No, I am not.
HIS HONOUR:	You are not a voter in New South Wales?
MR MACKERRAS:	No, I am not, no.

HIS HONOUR: Therefore, your sole interest might be described

as the interest that any ordinary citizen might have?

MR MACKERRAS: Quite so.

HIS HONOUR:  Now, the question is whether I should grant leave

to appear to any citizen who wants to come forward and

take an interest in this case.

MR MACKERRAS: Quite so.

HIS HONOUR:  You say, "quite so" but there are obvious difficulties

about it. In this case you, so far, are the only person

who has manifested such an interest, but there are obvious

limitations on the capacity of the Court to hear submissions

from a myriad of people who are in a position similar to

your own.

MR MACKERRAS: Quite so. There is another witness as I understand

it. It is, if I may say so, Your Honour, up to you to

decide whether the question I have raised and whether or
not you think any of th~ information that I might be

willing to make would be of any use to you.

HIS HONOUR:  I do not think that is the critical question. The

critical question is whether or not, having regard to

your interest as an ordinary citizen, I should grant you

C2T5/2/PLC	9	2/3/88
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leave to appear because you have no other interest

that you can urge in support of being granted leave

to appear.

MR MACKERRAS: Quite so.

HIS HONOUR:  Now, is there any objection to Mr Mackerras

appearing?

MR MACKERRAS:  Can I make a general observation? I have attended

cases of this character before and listened to them and

this case is different from all the others in that in

the others there was an aggrieved party, a particular

person claiming that he or she should have had a seat

which was actually won by somebody else. This one
seems to me to be quite different in character and

therefore it seems to me, in this case, somebody who

does not have the kind of interest in the sense that

you are discussing it would, I think, be appropriate to

be heard.

HIS HONOUR:  Yes. Mr Mackerras, I am disposed to grant you

leave to appear but it is a matter - this is a matter

that I propose to discuss with other parties in the case -

I will require written submissions to be filed in this

case setting out the argument on a comprehensive basis

and, of course, that will apply to you as well as to

others. I am granting you leave to appear but I am

anxious to keep the hearing of the case within, as it

were, reasonable bounds, and I hope you will bear that

in mind.

MR MACKERRAS:	I do.
HIS HONOUR:	It may be possible for you to present your submissions

entirely in written form but, after all, that can be

determined at some later stage.

MR MACKERRAS:	Thank you.
HIS HONOUR:	Very well. Yes, now is there somebody else who

wants to come forward and apply for leave to appear? You

are Mr Haldane-Stevenson, are you?

MR J-.P. HALDANE-STEVENSON:  May it please, Your Honour, I think

I am in the same position as the last applicant in that

I have no interest in the case apart from a study of the

CONSTITUTION at Oxford and since, over many years, I have

made a couple of submissions to the Constitutional

Cormnission. So, I have, in the layman's sense, extreme

interest in the case but in the legal sense, no especial

interest in the case.	May I go on or perhaps you
would like to - - -?

HIS HONOUR: Well, you have almost stated yourself out of leave

to appear but you may go on. You may be able to state

yourself into it if you go further.

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MR HALDANE-STEVENSON:  No. Well, I do not want to fight myself.

May I draw Your Honour's attention to one or two points

in this text that I am submitting?

HIS HONOUR:  Yes.

MR HALDANE-STEVENSON: Well, I do not want to refer to all the

paragraphs.

HIS HONOUR:  No, I have seen this document by the way.

MR HALDANE-STEVENSON: Well, no - pardon me - you have not

because the more important parts were added later.

HIS HONOUR:  I see. Well now, can you direct my attention to

the more important - - -

MR HALDANE-STEVENSON:  Yes. Well, paragraph 1: the Senator

has, in my submission - his position has	been condoned
by his sitting and I did venture to take	the case of an
Army officer who, on being -

HIS HONOUR:  Yes, but you have made that point already.

MR HALDANE-STEVENSON: In the earlier poin~, yes. Well, if you

could turn over to the second page, paragraph 7:	on
the one hand - - -

HIS HONOUR: Well, you made that point in the earlier document

as well.

MR HALDANE-STEVENSON:	Not - I do not - - -
HIS HONOUR:	You did.
MR HALDANE-STEVENSON:	Did I make the point about Prince Ernest

Augustus who was ruled as being - - -?

HIS HONOUR:  Yes, Lord Dunrossil, you mentioned that in the earlier

document.

MR HALDANE-STEVENSON:  Then, paragraph 8: Lord Hugh Cecil

was appointed to be provost of Eton in 1967, in July,

and he went on sitting until the following year until

somebody realized that the provost of Eton was
an office of profit under the Crown and therefore his

his voting and speeches and all that kind of thing - he

acceptance debarred him from the House of Commons.

was very fond of voting and certainly speaking - were

allowed to stand although he had technically been debarred

since his acceptance of Mr Baldwin's nomination the

previous July.

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MR HALDANE-STEVENSON (continuing); That is the one case.

The other is a very complicated one, paragraph 9, that of the Eure peerage which-was made by letters

patent in 1544 but they forgot to enrol the letters

patent and therefore they were inoperative and this

was not discovered until a very expensive case in the

last century which bankrupted the applicant, but

brought to light the fact that because the letters

patent had not been enrolled, he was not a peer at

all but his son, who was called writ and sitting was a different sort of peer altogether so that when he came to succession under Cromwell the way the

succession should have gone would have been to the

female, the direct female heiress, or rather the two

heiresses, but instead it went to a distant male heir

and upset the whole of the follo·ring succession.	So
there are two cases of quite ama .ing disability to

sit, one in the House of Commons and the other in the House of Lords. I simply put those, with other cases that I did submit to Your Honour earlier, as

indicating the phrase I have used here, "the complexity

of the maze that we are treading", a maze in which so

many cases are so peculiar that they have got no

precedence and are unlikely to have anything following.

I would think that the present case comes under

that category of an unusual case without precedence

and unlikely to be followed.

HIS HONOUR:  Yes. Now, the remarks I made to Mr Mackerras

apply equally to you, Mr Haldane-Stevenson. I shall

expect you to put your argument in writing, unless

you are, of course, prepared to rest content on the

document that you have submitted today.

MR HALDANE-STEVE~!SON:  I would be much happier working in my

study than appearing in the High Court, which is a

rather daunting experience for a layman like myself,

so if I could do that - and may I be given a date by

which my submission in writing could be - - -

HIS HONOUR:  Yes, I propose, subject to anything

that may be said to me before I adjourn this afternoon,

to fix 2pm next Thursday as the time on or before

which comprehensive written submission should be filed

and served by each party.

MR HALDANE-STEVENSON: That is Thursday of next week?

HIS HONOUR:	Next week, tomorrow week.
MR HALDANE-STEVENSON:	I thank Your Honour.

HIS HONOUR:  Now, does anyone wish to make any submission

about the time that I have just fixed for the

lodging of written submissions? The reason why I

fix such an early time is that I propose, subject to

C2T6/l/RB	12
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the Court being able to do so, to hear the case

at 10.15 on Friday, 11 March. Now, that will depend,

of course, on how the Court manages to deal with the
case that is fixed for next Tuesday, a case that is

estimated to last about two and a half days.

Yes, Mr Kenzie, do you want to say something?

MR KENZIE:  May it please Your Honour, it would be our

present intention to file some affidavit evidence

relating to the position of Mr Wood.

HIS HONOUR: To what matters will that affidavit evidence go?

MR KENZIE: Your Honour, so far as we can say at the moment,

we have only seen the comprehensive affidavit filed

by the electoral officer today. We saw the complete

affidafit today; that shortens our task, of course.

We had in mind that there would be material relating

to the citizenship position of Robert Wood and material

relating to the election, the physical steps taken in

relation to the election. We would not have thought

there would have been any contest about it or any

difficulty. We wondered whether Your Honour had in mind to place some sort of time limit on the filing

of affidavit evidence, having regard to the shortness

of time before the hearing.

HIS HONOUR:  Does any other party, apart from Senator Wood,

T6 propose to file affidavit evidence?

MR O'SULLIVAN: If Your Honour pleases, I have no specific

instructions on that point but I have raised several

points,which may be the subject of affidavit evidence,

with Sydney by phone calls.	I may be able to find
later in the day	my answer to your question will

be I think it may be that there will be some affidavit

evidence. I would hope that it can be done within

the time limits you have set down.

HIS HONOUR: It will have to be. Indeed, in relation to

affidavit evidence, I am minded to fix an earlier time

because affidavit evidence may require a party to be

given the opportunity to reply to it and at the moment

I see no reason why affidavit evidence should not be filed and served on or before next Tuesday at 2 o'clock.

Now, is there any problem about that, Mr Kenzie, for

you?

MR KENZIE:  No, that is conveni.ent from our point of view,

Your Honour.

HIS HONOUR:  Can I ask you one question: you mentioned the

citizenship issue was one of the matters to which

your affidavit may go.

MR KENZIE:  Yes, Your Honour.

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HIS HONOUR: 

Do I take it from that that the material before

the Court in the reference is not adequate on that
point?

MR KENZIE: 

It probably is adequate, Your Honour. We doubt

that this will take very much time of the Court at

all. We desire to place the Court in complete

possession of the material which will be necessary
for it to comfortably proceed. That is all. We do

not think that there will be another issue intruding.

HIS HONOUR:  You do not think it would be going beyond what

is in the reference in terms of the facts, although

it may provide,as it were, further confirmation of

what is there.

MR KENZIE:  Yes, Your Honour. It is really to that that we

were addressing our attention.

HIS HONOUR:  Of course, there is the question yet to be resolved

as to what we can do about affidavit evidence anyhow

when we are dealing with a reference from the President

of the Senate.

MR KENZIE:  Yes, indeed. We had in mind that the Court had

some material before it which, on the basis of

authority, is not really evidence but clearly is

part of the reference. It is that that we had in mind;

specific evidence in relation to the position of

Robert Wood as a citizen of Australia and the steps

that have led to that which concern the matter before

Your Honour.

HIS HONOUR: Yes. Thank you, Mr Kenzie. Is there any other

matter that counsel wish to raise. Yes, Mr Solicitor.

MR MASON:  I think it is implicit in what Your Honour said -

is it Your Honour's intention that the material will

be served on the respective parties as well as filed

with the Court?

HIS HONOUR:	Yes, it is.
MR MASON:	Ahd to that intent, presumably if we give an address

for service to rhe Registrar - - -

HIS HONOUR:  I think so. I think to assist the process of

service each party should give to the Registrar an

address for service. I am not quite sure whether the

procedure in these cases involves the parties filing

documents that actually contain an address for service.

Whether or not the rule in some way or other - those

provisions in rules that require appearances to be
entered are picked up, I do not know, I have not looked
at that, but certainly I would appreciate it if each of

the parties provided the Registry with an address for

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Wood

service ~o that the process of service can be

facilitated.

MR KENZIE: If Your Honour pleases.

HIS HONOUR:	Yes, Mr O'Sullivan.
MR O'SULLIVAN:	I might say, Your Honour, is this an appropraite

time to raise the question of the power of the Court

to order costs in the matter to be paid by the

Connnonwealth. This was foreshadowed in a letter that

was written to the Registrar and I am putting to

Your Honour that Your Honour order that the costs of

the party,Nile,be paid by the Connnonwealth.

HIS HONOUR:  No, I do not think I could do that at this stage,

Mr O'Sullivan. It is a matter that you could raise

at the hearing before the Full Court.

MR O'SULLIVAN:  I see. Thank you, Your Honour.

HIS HONOUR: Anything else?

Very well. I shall adjourn the matter into the

Full Court on the footing that the matter will be heard by the Full Court subject to part heard cases

on Friday, 11 March at 10.15 am.

The Court will now adjourn.

AT 2.54 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 11 MARCH 1988

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