Shaddick & Ors v Dunsford Investments Pty Limited

[1993] HCATrans 339

~	~
-,	.. ~·'I'

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S79 of 1993

B e t w e e n -

DONALD JOHN SHADDICK, ANN

SHADDICK, JOHN ERIC BAKER,

GAYNER MARIE BAKER and RODNEY

ERNEST PAULL

Applicants

and

DUNSFORD INVESTMENTS PTY

LIMITED

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J

Shaddick 1 28/10/93

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 28 OCTOBER 1993, AT 2.49 PM

Copyright in the High Court of Australia

MR R.W.R. PARKER, QC:  I appear for the applicants, if the

Court pleases, with my learned friend,

MR J.E. ARMFIELD.	(instructed by Shaddick Baker &
Paull)

MR C.W.J. LEGGAT: If it please Your Honours, I appear for

the respondent. (instructed by Tesoriero Kwan)

MASON CJ:	Mr Parker.
MR PARKER:	If the Court pleases, I wish to hand to the

Court an outline of our argument, together with a

short book of materials to which we may refer. I

have given my friend a copy. If I may hand up to

Your Honours the materials which are indexed.

MASON CJ: Thank you.

MR PARKER: 

We have more than the three copies for the Registrar if that is required.

MASON CJ: 

What is in them, Mr Parker?

MR PARKER: 

Your Honour, the relevant contract and the

provision of the contract and, in the case we have
to distinguish, a case called Miller v Barrellan,

together with a time line in our own case. I will

show them to Your Honours in a moment. But I

assure Your Honours that I have not overloaded the
material that we seek to put before you.

Your Honours, if I may state, first of all,

the two main propositions before I go to the book.

Two substantial questions are raised in this application. The first is how the court should

construe condition 21, the contract of sale and

purchase between vendor and purchaser. The second

is whether, taking up Mr Justice Priestley's

approach, that particular condition operated at

all.

If I may show Your Honours briefly through the

index guide to the materials. After the judgment

was given, Mr Justice Priestley sent a corrigendum

to his judgment which is concluded in the first at

point 1. We will not refer to that but the Court

should have the advantage of having a complete

record.

The agreement, which is the subject of the dispute has not been put in the application book.

That is at point 2. Very important significant

matters arise from the first page which

Your Honours will see. The relevant clause is at

21 of the contract. That appears about four pages

Shaddick 28/10/93

down through the contract. We have then abstracted

that, to make it easy for the Court to see, in

document number 3, so the Court can see the

relevant condition at item 3 of the materials.	The
particular paragraph is condition 2l(a)(iii).

Then I come on, Your Honours, to a time line

at page 4. What we have done to make the facts in

this case clear is to set out the facts on what I

call a time line of the relevant date with the

relevant references at the two relevant dates which

are 9 March and 12 March.

Then, Your Honour, both Mr Justice Young, the

primary judge and the majority in the Court of

Appeal thought a case called Miller v Barrellan was

relevant but the condition, in fact, is quite
different and we have set that out in our item 5
and I will explain the differences to the Court

directly.

If Your Honours go to item 6, please, in our

materials. There is no doubt, we would submit,

that the Court will be with the applicant on the

question of importance. This is a question of how

a condition in a contract relating to service,

using the DX mechanism, operates and how it

operates once it has actually been received in a DX
box. That particular condition, which is

condition 21, which I have just shown Your Honours

in passing, is also picked up in our rules of the

Supreme Court in Part 9 rule 4, and that is in

6(a). Your Honours will see that.

If Your Honours then go to 6(b), Your Honours

will see the Conveyancing Act, section 170,

amended in 1991 which, for the first time, after

our contract, used the DX mechanism.

The question then, if I may go through: at

7(a) and 7(b) is reference to certain matters taken

at trial in the transcript which, we submit, the

majority were wrong about because Mr Justice Young

has made a finding in our favour. Now, briefly, if

I may go back, please, to the time line and use

that as a demonstration of the basic facts of this

case before I get to the question of construction.

The applicants are the vendors, and the

respondent to this application is the purchaser.

In the events which happened, the court has held

that the vendor was entitled to give a notice to

complete on 9 March. That document which was given

on 9 March was put in by the vendors to their DX

system, the document exchange system at Windsor on

the Friday before 4.30 in the afternoon.

Shaddick 28/10/93

It was found by the trial judge and confirmed

by Mr Justice Priestley that the notice to complete

was available for collection at Crows Nest Document Exchange on Monday, the 12th. Now, if that was so,

and that was what the primary judge has held, then

14 days were given between 12 March 1990 and

27 March 1990, which was the time required for

completion.

What the trial judge did, Your Honours, was

this: he saw condition 21 as a code or a mechanism

applying a decision called Miller v Barrellan and

in doing that he added two days, pursuant to the

mechanism, which I am going to show you now, to the

12th. So, he said although it was received on

Monday, the 12th, you added two days to the

mechanism.

Let me come back, please, before I go to the

judgments, to ask Your Honours just to look at the

clause itself which is in the materials at 3.	Now,
the clause says this:

may be effected and shall be sufficient

service on a party and that party's solicitor,

if addressed to such solicitor and delivered

to an appropriate place in the facilities of a

document exchange system in which the

recipient solicitor has receiving facilities -

All the judges have held that that means Crows

Nest.	And then the second part of it comes on and
says:

and such notice or document shall be deemed to

have been received by such party and that

party's solicitor on the second business day

following the date on which it was first

delivered to such place.

What Mr Justice Young has held is this - and if I

may take up the blue application book and give

Your Honours the critical passages -

BRENNAN J:	Mr Parker, this case concerns the construction of a subclause being one of the ways in which
service of a notice under contract in use in New
South Wales for the sale of land can be effected?

MR PARKER: That is right, Your Honour, yes.

BRENNAN J:	What is the general public importance in that?
MR PARKER:	Your Honour, I think, amongst other things, the

way the judges have dealt with it and on the basis

that if clause 2l(iii) is operative, no other

method of service is available, and yet

Shaddick 4 28/10/93

Mr Justice Priestley has held in his judgment that

if you do know that it was received on a particular

date - and here all the vendor had to do was to

serve the purchaser at the DX box - then - - -

BRENNAN J:  The clause provides that it can be effected in

the manner set out in paragraph (i),

paragraph (ii). Those are still open. Here is one

way: if everybody has got DX boxes, you can put it

in a DX box.

MR PARKER: That is right. But, Your Honour,

Mr Justice Kirby has held - to satisfy the Court

this is an appropriate vehicle, I have to satisfy

the Court on the fact that Mr Justice Kirby and

Mr Justice Cripps have made a fundamental error of

fact and I can do so. I do so on the learning of

the Babcock & Wilcox decision of irresistible

inference. That is how Mr Justice Priestley held.

There was material before the trial judge that

showed that the document was in the DX box of the

purchaser's solicitor on Monday, the 12th, and

ready for collection, and that satisfied, according

to Mr Justice Priestley - I am going away from my

argument now but I am trying to answer

Justice Brennan - - -

BRENNAN J:  I think that is where we are at cross-purposes.

My problem is if this Court were to grant special

leave in order to consider subclauses about
services in all kinds of contracts in all States of

the Commonwealth, we would never be finished with

it. Why should we pick out subclause 21(a)(iii) of

a New South Wales form of contract for the sale of

land and grant special leave?

MR PARKER:  Amongst other things, it uses the word "deemed"

and what Mr Justice Young at trial held and the

majority in the Court of Appeal have held is that

that creates an irrebuttable presumption and that

is contrary to the famous statement by

Mr Justice Windeyer in Penna Blinds and that what

the court did not do - it purported to follow a

decision of our own Court of Appeal but it said

that it would be bound by Miller v Barrellan, and I have got that condition at 5 for Your Honours. But

Mr Justice Kearney in Barrellan held that the

clause there was an overriding condition which made

the clause operate as an irrebuttable presumption.

BRENNAN J: But here is a clear decision by the New South

Wales Court of Appeal construing a New South Wales

clause dealing with service in a New South Wales

contract.

MR PARKER: That is right.

Shaddick 28/10/93

BRENNAN J: It seems to me that that is the court which

should be determining these matters, not the High

Court of Australia.

MR PARKER:  They made a fundamental error here, Your Honour.

That is why we are here.

BRENNAN J: Maybe they have. If so, then they can change if

it does not work. They can change back the form of

contract to something else.

MR PARKER:	They may, Your Honour, but an injustice here has been created and it is right, in my respectful
opinion, if I can demonstrate that that court, as I know I can - that an injustice has occurred here
because of the way the clause has been construed
and that they have not properly distinguished
Miller v Barrellan, in my respectful submission, it involves service within parts of our rules and
secondly, our own service section, which is
section 170, then I would submit that this is a
very important case, at least for New South Wales,
and it may be that when Your Honours give decision
about it, it will cast light on all the other
States of Australia.

I have made very extensive researches before

coming to this Court to be satisfied that this
deeming aspect has been not looked at recently and

I must say that I have not been able to find an

authoritative decision much after Perma Blinds

where this Court has looked at it. It dealt with

it in an off-hand way in a case called River Sand

and Gravel v Milk Board. But I would respectfully,

Your Honour, wish to convince Your Honour

Justice Brennan, first of all, of the error that

has been made in this court by the Court of Appeal

and demonstrate the importance of it.

Mr Justice Kirby said so in his judgment.

TOOHEY J: Could I just ask you this, Mr Parker: by

focusing on (iii) of clause 2l(a), it seems to me

that you are perhaps missing a broader proposition,

namely, that this contract, like other contracts

and like the rules of court, provides a variety of

ways in which a document may be served. Now, if

you choose a particular method of service in

accordance with the contract or the rules, do you

not take it, as it were, for better or for worse?

MR PARKER:  No, Your Honour. Mr Justice Priestley has

pointed out a case of our court called June Dally-

Watkins, that it does not mean that you cannot use

other means. And the factual error made by the

Court of Appeal in this case is that the

document - - -

Shaddick 6 28/10/93

TOOHEY J:  I am not suggesting that you cannot use other

means. What I am suggesting to you is that if

various means are provided and a party chooses to

use one means, as opposed to another, then the

effectiveness of service is governed by the

particular option that has been selected. Now,

there is no particular injustice in that. In
another situation, the party may prefer to effect
service directly on the other party, or on the

solicitor for the party, and if a party chooses to

use the document exchange system, why should not

service then be regulated by whatever the contract

or rules of court provide shall be the operative

date?

MR PARKER:  Your Honour, I would simply say that the court

here and the Court of Appeal of New South Wales got

it wrong.

TOOHEY J: Yes, but what did they get wrong?

MR PARKER:  They got wrong the fact that that particular

clause creates an irrebuttable presumption. We

submit that facts were actually shown to the trial

judge and demonstrated to Mr Justice Priestley's

satisfaction that the document was available for

collection on Monday, the 12th. Now, that

satisfied two things, in our respectful submission:

it satisfied the DX mechanism and, secondly, it

satisfied the first page of the contract which

said - and I have got that for Your Honours, I

think, document 2 - that that will be sufficient

service.	Have a look, please, at the first -
page 2 of the materials.	Look at the item which

appears there under paragraph E of the particulars.

The address for service - it is said that if you

serve Tesoriero Kwan, who is the purchaser's

solicitor - and it gave the DX number, and that is

just what we did. What Mr Justice Kirby and

Mr Justice Young have said is - they simply say you

have got to add two days under the mechanism. But

we simply say, as Your Honour Justice Toohey has

said, it is only one method of service.

Therefore, what has happened here, with great respect - well, two errors have occurred. The

first is that they have turned clause 2l(a)(iii)

into an irrebuttable presumption because of the

word "deemed" and, secondly, they have said that in

the facts of this case you cannot use any other

method of service. We would respectfully submit -

and I understand what Justice Brennan is saying,

but I am trying to demonstrate the particular

factual point in the case, then to go on and deal

with the construction.

Shaddick 7 28/10/93

TOOHEY J: But if the vendors had chosen to serve the

purchaser's solicitor on the Friday, there would

not have been a problem, would there?

MR PARKER:  No, that is right, Your Honour.

TOOHEY J:  But they did not. They chose a different method

of service.

MR PARKER: That is right, Your Honour. But the service

that they did choose satisfied both the contract

and the DX mechanism because there was proof in the case that the document was available for collection by the solicitors for the purchaser on the Monday.

Mr Justice Priestley's judgment is the judgment, of

course, that I would commend to you but I am

enjoined, of course, to not go through the

judgments and do it in a compressed and concise way

and that is just what I am trying to do.

So, Your Honours, I am wishing to say that for

New South Wales, we would submit, as

Mr Justice Kirby did, who was against us, this is

an important case.

MASON CJ: But why do you say the construction that the

clause gave rise to an irrebuttable presumption is

wrong?

MR PARKER:  I say that, Your Honour, for this reason: that

we know - Mr Justice Priestley pointed out that the

document was available for collection by the

solicitors for the purchaser on the Monday. But

what Mr Justice Young and the majority have done is
to give an extra two days because they add 12 plus

two, is 14. They say service did not take place

until 14 March and yet there it was in the box on

the 12th.

BRENNAN J:  It was in the box on the 12th but it did not get

anywhere else necessarily out of the box.

MR PARKER:  No, but, Your Honour - I am sorry I have to

press this a little bit - the obligation both of

the DX machinery, the code was it was available for

their collection by the purchaser and its solicitor

and the agreement for sale said - if I take you

back, please, to the contract - item 2 of the

materials - is that all we had to do was to serve

Tesoriero Kwan at the DX which we did.

BRENNAN J: It does not say that. It does not say anything

of the sort. It asks for the address and the DX

number, and then if you want to use the DX process,

you go to 2l(a)(iii), and as the Chief Justice has
asked you, why is it that if you go to 2l(a)(iii)

and say by putting it in your DX box you are

Shaddick 8 28/10/93

effecting service; you are not irresistibly bound

by the proposition at the end of that paragraph

that you will have the service effected for the

purposes of this contract at the time therein

specified.

MR PARKER:  As Mr Justice Priestley points out, the

provision never operates because once - if I may go

to the point in the judgment, he says that it

actually never is engaged. At 39 is the passage.

If Your Honours go up to the top of page 39 at 5:

when a party to a deeming provision such as

that in the present case, which empowers but

does not require a party to it to rely upon

it, succeeds in effecting service in fact

before the deeming provision has operated,

then I can see no reason why time does not

start to run immediately upon the receipt in fact of the document by the party to whom it

has been directed.

MASON CJ:  But that is a very strange construction. What

His Honour is doing is treating it as giving rise

to an irrebuttable presumption except in cases

where it is proved independently that the document
was received early. Now, I just do not follow the

logic of doing that because he seems to accept that

at least in relation to its operation in other

circumstances it does have an irrebuttable effect.

MR PARKER:	Yes.
MASON CJ:	Of course, there would be no point in trying to

rebut it in those circumstances.

MR PARKER: Let me answer now: accepting that for the

moment, Your Honour, the way we put our case

actually in our written submissions to

Your Honour - I can summarize.	The way we would
wish to take it is this: if Your Honour looks,

please, at condition 21(a)(iii), you will see the

words:

may be effected and shall be sufficient

service on a party -

and so forth, down to "facilities". Now, the books seem to suggest that when parties use a

phrase such as "shall be sufficient service" they

are, in effect, introducing an irrebuttable

presumption. But we would submit that those words,

"may be effected and shall be sufficient service",

do not govern the words that follow in the second

part of the clause. Let me read them to you:

Shaddick 9 28/10/93

and such notice or document shall be deemed to
have been received by such party and that

party's solicitors on the second business day

following -

We seek to give those words, please, Your Honour,

the meaning Mr Justice Windeyer dealt with in Penna

Blinds, name 1 y, "deeming" means adjudged .	It does
not mean to create some kind of statutory or
contractual fiction.	Now, if that is so, as we say

in our notes, in an ordinary case, one would use

the DX mechanism but if one came to the court and

after a trial it became clear that the document had

been served on the solicitor at the DX box before the deeming mechanism actually operated, then, as

Sir Owen Dixon said in one famous case, "It's much

better to prefer facts to prophecies". In other

words, when the court had before it - this is how

Mr Justice Young held in our favour. He said that

the document was there on Monday, the 12th, and

what he did then was simply to add the two days.

But we would respectfully submit that

"deemed", in the second portion of 2l(a)(iii)

simply means adjudged and it means, prima facie,

adjudged. Look at the clauses, for instance, if I

may take Your Honours to them now, in

pari materia, and they are in my materials, please,
at part 6(a), you will see how the courts have

dealt with it. Could you just look, please, at

6(a), Your Honours, and 6(b). Look at "Ordinary

service: how effected", Part 9 rule 4. There is

the DX mechanism at (d). But what is interesting,
if Your Honours go over the page, please, is to

say, in Part 9, rule 4(iii), at the very end, just

above the notes, Your Honours:

or, where an earlier time is shown to be the

time of receipt, the time of receipt shown.

If Your Honours then look please at the next

section, 170, which came in after our contract, I

am bound to say, and it deals with the post, not

the DX.	So, in a sense, my friend would be right
to draw those attentions to you.	It says this,

"unless the contrary is proved", in

section 170(1A). What we are seeking to do in

making the distinction between our condition in our

case and the condition in Miller v Barrellan is to
point out that the second part of that clause
operates simply, as Sir Victor Windeyer spoke

about, it is adjudged that but it is only prima

facie.

Have a look, please, at the condition in

Miller v Barrellan which is at page 5 of the

materials, and Your Honours will see the

Shaddick 10 28/10/93

difference. Could I just ask Your Honours, please,

to look at that because what Mr Justice Kearney

said at trial in Miller v Barrellan is:

Notwithstanding the provision of any of the terms of the contract ors 170 of the

Conveyancing Act 1919 service ..... shall be -

What Mr Justice Hope held in the Court of Appeal was that this was an irrebuttable presumption.

There, the facts in that case were interesting, and

I have them here - if I may summarize to myself -

they are not in Your Honours' notes but there, the

document went off on 31 October 1980 and according

to that clause which Your Honours have just seen,

it was received the day following. But, in fact,

it did not get to the recipient until 3 November

1980. What did the Court of Appeal say? "You are

bound by the clause." We would submit they were

bound by the clause because of the particular terms

of condition 5.

TOOHEY J: But, Mr Parker, these service provisions, whether

they are in contracts or rules of court or

elsewhere, are all designed to achieve certainty

and, as it were, in some cases, to achieve it

may be at the expense of reality. I mean, it is

common place for a document to be served on a

company by leaving it at the registered office of

the company.	The directors of the company might be
all overseas at the time.	The managing director

might be ill. There may be nobody in authority in

the office. But service is deemed to have been

effected on the particular day when the documents

be very difficult to achieve certainty in

are left at the registered office of the company.

commercial transactions. Well, in this case,

certainty is achieved. It may be at some cost as

to reality but that is a price which is clearly

thought worth paying in terms of the contract.

MR PARKER:  But Your Honour is not making the distinction,

with great respect, that should be made and that is

the prima facie view prior to a trial. Look at the

examples - forgive me - that I set out at page 5 of

our written submissions, at the very end. Suppose

at the trial it was found that delivery from

Windsor to Crows Nest for some reason - not

ascribed to the fault or negligence of the

purchaser or its solicitor - was not collected at

Crows Nest but returned to the vendor's solicitors.

There have been cases of that kind. Similar

considerations would apply when the vendor

retrieved the document after delivery to the

document exchange. There was a breakdown or a

strike. What the cases have said in those cases,

Shaddick 11 28/10/93

Your Honours, is that the clause that Your Honours

are looking at, in the absence of it being

irrebuttable but just adjudged, is a prima facie

view which can be, on an examination of the facts,

the court then comes to a disquisition of what the

true position was. That is exactly what those

particular clauses that I have just shown

Your Honours, that is to say, service generally,

Part 9, and section 170 deal with.

We come back to this fundamental question that

I opened on. Why does the court take the view that

the particular provision in our clause is

irrebuttable? Now, it must do that because of the

language and we would submit that the language, in

our case, is quite different to the language in

Miller v Barrellan which, apparently, is regarded

as the leading case in New South Wales.

So, I am urging Your Honours to accept for the

moment - of course, Your Honours are, I imagine -

the factual submission I am making. Once

Your Honours accept that, and I can demonstrate
that as the irresistible inference, Your Honours
are then faced with a situation where the Court of

Appeal have wrongly applied Miller v Barrellan.

This is not the Chief Justice's point. I see the

significance of Chief Justice Mason's point. That

is why we have framed up our written submissions

more broadly. I am not seeking to cavil with that.

I do see the force of what the Chief Justice has

said.

Your Honours will find, if I may say so, that in the pages that we have written, we seek to

distinguish Miller v Barrellan on a much wider

basis, namely, that one does not just use a rote

approach to saying that the clause is an

irrebuttable presumption.

I have compressed my argument, Your Honours,

because I am trying to answer the questions that

are put to me. But that, really, in a nutshell, is

our case and we would submit that it does raise a

question of importance.

Would Your Honours wish me now - and it is a

question of how you wish me to deal with this -

actually demonstrate to Your Honours the factual

error the Court of Appeal have made?	I can do so
quickly.

MASON CJ:  I do not think so, because you have got to

succeed on your construction of the section before

you get anywhere, have you not?

Shaddick 12 28/10/93

MR PARKER:	Yes, Your Honour, but construction must, of course, involve a number of elements and a
construction could not occur until you know what
the facts are. It is true what Your Honour has
said if we knew nothing more about the clause than
what Justice Toohey has said, I would accept that,
but here we had a trial which proved to the
satisfaction of the trial judge that the document
was at the DX in Crows Nest on that Monday. That
changed things.  It means that you read the word
"deemed" as I have pointed out, not as an
irrebuttable presumption but simply -
Sir Victor Windeyer's statement. It is in the
materials if Your Honour would wish me to go to it
but I am sure you just know it.
MASON CJ:	No, no, you have made that submission before.

MR PARKER:  Yes. Will Your Honours wish me now to establish

that particular fact? I do accept what Your Honour says, it is a matter of construction, but we say it

is a matter of construction of the material proved

at the trial. So, it is a matter really whether

Your Honours wish me - - -

BRENNAN J:  So long as we assume that the document had

arrived at Crows Nest on the Monday, that is all

you want us to assume, is it not?

MR PARKER: That is right, Your Honour. And, as I say,

Mr Justice Priestley held that, so I do have one of

the members of the court in my favour.

Your Honour, we would submit, I think, as a

second question that the DX method of service is

not an exclusive or a singular code. Other methods

of service are available. That is established in

the June Dally-Watkins' case that Mr Justice

Priestley refers to, and that we can succeed in

this case on that basis.

If I may just take Your Honours, please, to

the relevant passages of Mr Justice Priestley's

judgment. If Your Honours would, please, go to the

application book at 37, line 12. He says this:

The next step, which may be correct, is that printed condition 2l(a), read withs 170 of

the Conveyancing Act in the form it took in

1990, only enabled service upon a party's

solicitor to be regarded as service on the

party if effected in a way permitted bys 170,
and that did not happen on the facts of the
present case. I do not need to examine the
correctness of that submission, because ..... it
does not take into account the fact that the

part of the contract in the vendor's

Shaddick 13 28/10/93

possession showed Dunsford's address as

"C/- Tesoriero Kwan". This argument for

Dunsford therefore seems to me to fail on the

simple basis that once the inference is drawn

that the notice to complete was in Tesoriero

Kwan's possession on 12 March ir. had reached

the address Dunsford had given as its address

for purposes of the contract and thus had

reached Dunsford itself.

If Your Honours would then go, please, to

page 39, line 10, he says this - well, I have read

that to Your Honours. He says this, that:

Dally-Watkins; in the present case, in my opinion, time had started to run -

but what he means to say is that the facts make

clear that it was actually available to them before

the date. We seek to use that particular

conclusion to suggest that the Court here in this

case will not be, if you like, bound by an

irrebuttable presumption. We would submit, as

Mr Justice Kirby said, if I can pass Your Honours

back to that judgment to show you - his judgment is

at page 21.	Mr Justice Kirby begins his judgment
by saying:

This appeal raises a number of questions

of importance to conveyancers.

It has attracted a lot of interest, both

academically and practically in the various

journals and the question about whether the

presumption if rebuttable or irrebuttable was dealt

with by Professor Butt - I will not take you to the
academic writings but I want to give assurance to
the Court that this particular judgment of the

Court of Appeal does raise a matter of significance

and we would submit that it can be strongly urged

that on those facts the Court may take the view,

sufficient for special leave, to hold that the word

"deemed" does not create an irrebuttable

presumption.

Your Honours, I wish to say, of course, that

the service on the Monday, of course, puts us in

time. We are only out of time - - -

MASON CJ: Yes. If there was valid service on the Monday

you would be within time.

MR PARKER:  Yes. Those are the submissions, if the Court

pleases.

MASON CJ:  The Court need not trouble you, Mr Leggat.

Shaddick 14 28/10/93

In the view of the Court, the decision of the

Court of Appeal is correct and for that reason

special leave must be refused.

If we were not so satisfied, there would still

be a question whether the construction of

clause 2l(a)(iii) in the contract is a question of

sufficient public importance to warrant the grant

of special leave to appeal.	The application is
therefore refused.

MR LEGGAT: Costs, if Your Honours please.

MASON CJ: Yes. You do not oppose an order for costs,

Mr Parker? The application is refused with costs.

AT 3.27 PM THE MATTER WAS ADJOURNED SINE DIE

Shaddick 15 28/10/93