Simos v Yates

[2000] HCATrans 87

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S29 of 1999

B e t w e e n -

THEODORE SIMOS

Applicant

and

IAN FRANCIS YATES

Respondent

Application by respondent to vacate hearing date

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 15 MARCH 2000, AT 9.00 AM

Copyright in the High Court of Australia

MR J.L.B. ALLSOP, SC:   May it please, your Honour, I appear with my learned friend, MR P.R. WHITFORD, for the respondent to the motion and the appellant in the appeal.  (instructed by Corrs Chambers Westgarth)

MR D.K.L. RAPHAEL:   May it please the Court, I appear with my learned friend, MR A. DIETHELM, who is unfortunately unable to be present this morning.  We appear for the respondent to the appeal and the applicant under the motion.  (instructed by Bruce & Stewart)

HER HONOUR:   Yes, thank you.  Well, it is your application.

MR RAPHAEL:   It is my application:  “fire away”, as it were.  Your Honour, this is a motion to vacate the hearing date which has been fixed for next month.

HER HONOUR:   It is a long time since we have seen one of those in this Court, Mr Raphael.

MR RAPHAEL:   I am ever brave.  There is a very sound reason, however, your Honour.  In a sense, the necessary consequence of our application would be rescission of the special leave which was granted.  That is not before your Honour this morning.  I am merely saying, in one sense, that might be argued to be the consequence.

The thrust of our application is, I believe, simple and short.  The Court in Boland & Ors v Yates directed that the question of the order for costs against Yates personally and, inferentially, of course, the question of whether the order for indemnity costs against him was proper – there is, of course, a dichotomy between the two – the Court ordered that that question in the matters of Boland and Webster be remitted to the Full Federal Court. 

Your Honour, if I might direct you to the actual terms of the Court order. I am reading from the Australian Law Reports, 167 ALR 575 at 671, order 3:

Remit to the Full Court for further consideration the appeal of Ian Francis Yates against the orders as to costs made against him by Branson J on 14 August 1997.

If I may take your Honour also to the order suggested by the Chief Justice in which, respectfully, may I say your Honour, at paragraph [99] of the reasons, agreed, which was effectively the trust of his Honour the Chief Justice’s statement, paragraph [98], is that:

Mr Yates’ appeal to the Full Court of the Federal Court challenged that order –

that is the order for personal costs –

but it was unnecessary for the Full Court to deal with the matter.  Mr Yates has never had that issue determined on its merits, and in that respect only, the matter should be remitted to the Full Court of the Federal Court to consider that aspect of his appeal.

Now, it is a necessary consequence of the general order of the Court and the statement by his Honour the Chief Justice, in which your Honour concurred, that this matter, the question to be agitated in the Simos appeal, is effectively identical.

HER HONOUR:   But it is not, is it?

MR RAPHAEL:   I think the thrust of it is, that - - -

HER HONOUR:   Is there not an order for costs against the company?

MR RAPHAEL:   Yes, that is not the subject - - -

HER HONOUR:   That has been set aside by the Full Court, has it not?  Is that not what this appeal is about?

MR RAPHAEL:   No, your Honour, no.

HER HONOUR:   No?

MR RAPHAEL:   No, no.  Your Honour, there can be no appeal - there was no appeal against the order for costs against the company made in favour of Mr Simos.

HER HONOUR:   No, but what is this appeal about?

MR RAPHAEL:   This appeal is about an order for costs made against Mr Ian Yates, the managing director of the corporation.  It is an order, in effect, made along the lines of Knight v FP Special Assets where - - -

HER HONOUR:   In favour of Mr Simos.

MR RAPHAEL:   Yes, and the other parties too, your Honour.

HER HONOUR:   And that was not the subject of appeal to the Full Court?

MR RAPHAEL:   The appeal against the order against Mr Yates personally was the subject of appeal by Mr Yates to the Full Federal Court and by their judgment he was successful.  It is accepted, of course, the Full Court gave no reasons.  It was a necessary corollary because of their unanimous judgment, or so it seemed to most, that the order for personal costs against Mr Yates was taken from Mr Simos.  That, of course, was never the subject of reasons.

HER HONOUR:   Or argument?

MR RAPHAEL:   No, there was argument, yes.

MR ALLSOP:   There was full argument.

MR RAPHAEL:   It was fully argued in the Full Federal Court by my friend and me, but no judgment.  Short oral argument was also directed to the Full Federal Court by counsel for Boland and counsel for Webster but I think it is a fair description of matters to say that they simply followed the thrust of the extensive argument advanced by my friend, Mr Allsop.  Whatever be the case – and the important thing is no reasons were given by the Full Court of the Federal Court for the taking away of the order for costs against Mr Yates which had been made at first instance by Justice Branson.  Now, it is that question which has been referred by the High Court to the Full Federal Court.  We say that it is apposite that the question of the propriety of the stripping of Mr Simos’ order from him ought to be decided, as in the case of the other two parties, by the Full Federal Court in order that if the matter is then to be further agitated before the High Court, that question of the personal costs order, that the High Court have the benefit of the reasons to be given and which have been ordered to be given by the Full Federal Court.

In summary, the matter which is listed for the 11 April, I believe, next, if it proceeds, will make otiose the order remitting - - -

HER HONOUR:   I do not see how that is.  I just do not see how it is otiose.  Mr Simos has had an order in his favour set aside.

MR RAPHAEL:   Without reasons.

HER HONOUR:   What do you mean, “with others”?

MR RAPHAEL:   No reasons were given for - - -

HER HONOUR:   No, but he had an order and it was set aside.

MR RAPHAEL:   Yes, your Honour, that is common ground.

HER HONOUR:   And in a matter in which the appeal lapsed, did it not?

MR RAPHAEL:   The appeal lapsed, other than on the question of the personal costs order.  That was maintained into the Full Federal Court and, as both I and my friend have just indicated to your Honour, was the subject of extensive argument.

HER HONOUR:   Not in Mr Simos’ case?

MR RAPHAEL:   Yes, in Mr Simos’ case.

HER HONOUR:   That is not my recollection of what was said in the special leave application.

MR RAPHAEL:   Would it be more apposite that your Honour - - -

MR ALLSOP:   Could I clarify it, your Honour?  I have the special leave book here, your Honour.  When the special leave papers were first filed, special leave was sought in relation to the taking away of Mr Simos’ judgment in favour of him against the company and against Mr Yates personally.  Before the special leave application was heard, an application was made to the Full Federal Court under the slip rule pointing out to the Full Federal Court that, in relation to the taking away of the judgments in respect of a company, there had been no papers or appeal before them and it was something that was simply never before them and never argued.

The Full Court in November recognised that and corrected those orders.  That was made - - -

HER HONOUR:   November?

MR ALLSOP:   November 1998.

MR RAPHAEL:   Yes, that is so, your Honour.

MR ALLSOP:   This was set out in the applicant’s summary of argument, and that is at paragraph 13 in the special leave at page 195 of the special leave book.  Your Honour sees paragraph 13? 

HER HONOUR:   Well, I see the orders but I do not know who the first of the respondents are at this stage.

MR ALLSOP:   The respondents at this stage were – the first and third respondents are Boland and Webster.

HER HONOUR:   And which was your appeal?

MR ALLSOP:   717, your Honour.  What remained un-set aside was the appeal by Mr Yates in 717 against the personal costs under, which the Full Court – the order in favour of Mr Simos was set aside by the Full Court and that remained, and that was the subject of the special leave application.

HER HONOUR:   I am lost, I am sorry.  I cannot figure out who the - - -

MR ALLSOP:   If your Honour pleases.

HER HONOUR:   You have taken me to what was the correction order at page 195.  Is that the order that they made correcting it?

MR ALLSOP:   Yes, your Honour.  If your Honour would go back to paragraph 12 on the previous page, that sets out the orders that had been made and the orders that had been made included order 2, that “The orders made by Branson J on 5 June 1997 be set aside”.

HER HONOUR:   They were the final orders?

MR ALLSOP:   Yes, and they included Mr Simos’ judgment and it was thought that order No 2 included Mr Simos’ liability judgment.  Further, your Honour, order No 3, “The orders made by Branson J on 14 August 1997 be set aside.”  That included Mr Simos’ orders for costs against the company.  Those matters were corrected under the slip rule application in November.  What remained was the fact that the Full Court had taken away the then second respondent’s – Mr Simos’ – order for costs against Mr Yates personally in matter No NG717. 

That is what our special leave application concerned and that is what we argued on 12 February last year.  The argument ranged in relation to that was this:  we said we had been denied reasons.  Mr Quick appeared and, your Honour will recall, said they really did probably get reasons in the balance of the judgment because the Court thought Mr Simos should not have his costs.  That raised then a question of natural justice.  That was debated, and a third question was debated because Mr Quick put the submission that it has not been taken away finally because he can go back and participate in the remitter in the Full Federal Court and your Honours indicated that - - -

HER HONOUR:   Well, there was no remitter at that stage.

MR ALLSOP:   Quite.

HER HONOUR:   No.

MR ALLSOP:   Concerning him.  Special leave was granted on the condition that the notice of appeal be widened.  Your Honour, there is an affidavit of Ms Carr to which we have annexed the special leave transcript.  If your Honour would go to page 14 of her affidavit which was the last page of the application.  Your Honour said, about the second paragraph down:

Thank you.  Mr Allsop, have you given consideration to alternative grounds of appeal?

MR ALLSOP:   Yes, your Honour…..

GAUDRON J:   I said alternative grounds.

MR ALLSOP:   Yes, your Honour.

CALLINAN J:   We are really suggesting to you that you might want to give consideration to including grounds that raise the question of procedural fairness.

MR ALLSOP:   Yes, your Honour.

GAUDRON J:   And perhaps also the power of the court to make an order remitting - - -

MR ALLSOP:   If that is what has been done.

GAUDRON J:   If that is what has been done.

And, your Honour, the application was about the taking away by the Full Court of Mr Simos’ judgment against Mr Yates personally.  The appeal in that is based on the fact we either got no reasons or, if there were reasons, they took his judgment away because they thought he was involved in the negligence that the Full Court found.  Well, we were not heard on that.  And there is a third ground of the question of whether they made a final determination about it.  That is what was before the Court on the special leave application and special leave was granted on the condition that the notice of appeal was widened, which it has been.

The matter was set down separately from the main matter, if I may use that expression.  It was adjourned at the motion of the Court until after the main matter and has now been fixed for hearing for 11 April.  Mr Simos and Mr Yates have had this matter decided on the merits.  The appeal is in contest.  It was in contest at the special leave application.  It was said at the special leave application that Mr Simos should not be given special leave and one of the reasons put forward for that contention was that he should go back to the Full Federal Court for reasons underpinning the extant order.

GAUDRON J:   Well, you would ask for that in any event, would you not?

MR ALLSOP:   We had gone back to the Full Court in a slip rule application and Mr Yates had asked for it in written submissions and that was before the Full Court.  We took the view that it was not part of the slip rule application; that if they had not given reasons, they had not given reasons and, in one sense, we were not going back to have the blanks filled in, the order having been taken away, we say, improperly.  But, nevertheless, Mr Yates asked for reasons when the matter went back to the Full Court in the slip rule.  I took your Honours to that in the special leave application and I can take your Honour to that now if needs be.

So, the matters have been treated separately.  It is correct that on the Friday afternoon in the Full Court when Mr Simos’ matters were argued that the other cost matters were argued, in effect, at the same time.

What happened last year at the hearing in the Full Court in Canberra about the costs application – the other costs application – I do not know, we were not there, but our appeal, which is in contest and which is opposed, has been listed for hearing, your Honour, and the matters my learned friend raises now were, in one sense, directly the subject of debate in the special leave application, that is that we should go back to the Full Federal Court for reasons supporting an order taking away Mr Simos’ judgment which has been made either without reasons or in denial of natural justice.

We do not know why the order was taken away.  It may have been taken away, as Mr Quick said on the last occasion, because they thought Mr Simos had been negligent.  They do not say that.  They do not say anything as to why, other that a reference to Ritter v Godfrey, in the last line, which may have been a reference to why they were taking his orders against the company away.  But that has been fixed under the slip rule.  The Court recognised, in November 1998, that it did not have any appeal before it when it made those – if it made those orders. 

HER HONOUR:   It cannot really go back anyway, without order of this Court, because there is nothing before the Full Court.  There would have to be final orders by this Court before anything can now happen.

MR ALLSOP:   That is right.

HER HONOUR:   And even if ultimately it does go back to the Federal Court ‑ ‑ ‑

MR ALLSOP:   It may.  I mean, we will – I do not want there to be any misunderstanding ‑ ‑ ‑

HER HONOUR:   That is right, though, is it not, Mr Raphael?

MR RAPHAEL:   Yes.

HER HONOUR:   The only way it can go back to the Federal Court is by orders made in this appeal.

MR RAPHAEL:   Yes, that is so, your Honour.  But I would like to add to that.  With respect, your Honour, it is not quite that sort of a fait accompli.  The situation is that the High Court, by letter to my instructing solicitor of 23 August last, said, “I confirm that the Court considers there might be advantage in deferring the hearing of this appeal until after the delivery of the judgment in Boland v Yates.”  Sub silentio, one might respectfully suggest what the High Court was saying, let us wait and see what is the result of that appeal before we determine to actually proceed with the appeal in the matter of Simos. 

Now, again, whilst I accept that the matter is presently before this Court, it is our respectful submission – and I accept that it cannot be remitted without an order of this Court ‑ ‑ ‑

HER HONOUR:   You want it to be adjourned.  Your application is for an adjournment.

MR RAPHAEL:   Pending the decision – if that be the case, what I would respectfully suggest ought to be the subject of the motion is that this Court remit the question relating to the stripping of Mr Simos’ costs and, indeed, indemnity costs, against Mr Yates to the Full Court of the Federal Court as it has done in the other two matters.

HER HONOUR:   But you could only seek that on the appeal.  I cannot do that.  For there to be any remitter, the appeal has to be allowed, setting aside the orders made by the Full Court, and remitting Mr Yates’ appeal to that court back for further hearing and determination.  That is the only way it can be remitted to the Federal Court, by an order in the appeal.  There is nothing before the Federal Court.

MR RAPHAEL:   That is true, your Honour, yes.  If that be the case ‑ ‑ ‑

HER HONOUR:   Then why does the matter not simply proceed.  If the parties wish to have orders to that effect by consent, that is one thing. 

MR RAPHAEL:   I am afraid it is not a matter of consent.  My friend, as I understand it, wishes to have the case, in effect, decided by the High Court, which will have the effect, come what may, of making the remitter of the other matters to the Full Federal Court a nullity, totally otiose.

HER HONOUR:   It depends.  I mean, on one view, one is going to have to find out if they have actually heard and determined the appeal in this matter by Mr Yates with respect to the costs orders. 

MR RAPHAEL:   Yes.  But if the High Court shall decide – let it be for a moment assumed that the High Court decides that the order for costs made against Mr Yates personally was a proper one.  Alternatively, let it be assumed that the Court finds that ‑ ‑ ‑

HER HONOUR:   Are we being asked to do that in the appeal?  I have not got the notice of appeal.

MR ALLSOP:   The notice of appeal is, if I can hand your Honour a copy ‑ ‑ ‑

HER HONOUR:   I do not even know if that is being asked.  I do not think that was in issue ‑ ‑ ‑

MR RAPHAEL:   Yes, it is an issue.  I can hand your Honour a copy ‑ ‑ ‑

MR ALLSOP:   If I can hand your Honour a copy of.….  The grounds are 2, 3 and 4, your Honour, and the orders sought are the reinstatement of her Honour’s judgment.

MR RAPHAEL:   So that that would be the effect, your Honour, that the High Court will make the present orders in Yates v Boland and Yates v Webster ‑ ‑ ‑

HER HONOUR:   You are arguing about the orders, yes.

MR RAPHAEL:   So that would be – it would make the remitter to the Full Federal Court ‑ ‑ ‑

HER HONOUR:   It depends.  You have your opportunity to put that argument.  That is an argument you will put in the appeal.  It is not an argument for an adjournment, is it not?  Clearly, most of the argument in the appeal is going to be about the appropriate relief, I should take it, rather than – the whole argument will be about relief, will it not?

MR RAPHAEL:   Yes.  The reality will be, your Honour, that the entire matter, and the propriety or otherwise of an order in terms of – one tends to speak in shorthand as the Knight v FP Special Assets point – whether it was proper.  That will, of necessity, have to be ventilated in full before the High Court.

HER HONOUR:   It does not, of necessity, have to be ventilated in full.  One is going to have to find out what precisely occurred, as best one can, in the Full Court.  If it turns out that the better view is that the appeal was not determined, then that might lead to one result, it might lead to another.  But you can ask, on appeal, for that relief.  You cannot ask me for – all you can ask me for is adjournment.  It does not solve anything.  It does not advance the matter any way. 

MR RAPHAEL:   It was my respectful view that it did advance the matter, simply by virtue of permitting the Full Federal Court to give its views on that matter which would assist the High Court when it entertained the appeal of Mr Simos.  That was the thrust of what was my submission and, again with respect, your Honour, I thought it was not an unreasonable way that the High Court would be, one would hope, enriched and assisted.

HER HONOUR:   We were greatly enriched by the first judgment.

MR RAPHAEL:   We were for a short time, whilst the costs – we were wonderfully enriched.  However, the procession from Mr Bond as a multi‑millionaire to a convict was similar, so far as we were concerned.  However, I have to confess, your Honour, that the judgment of the Full Federal Court was not a shining example in so far as it did not give reasons on this point dealing with the stripping of the order for costs personally, despite it having been argued for most of the Friday at considerable length by me and my friend, Mr Allsop, and with written submissions.  But for whatever reason, that did not happen, and that was the thrust of my submission today, that the High Court is more assisted by obtaining the Full Court’s reasons than proceeding to, in effect, decide the point, which would make that very likely - not definitely, but very likely otiose.

Your Honour, I cannot add to that, save to say that if your Honour is against me – and I have the vaguest suspicion you may be – I would seek leave to file a notice of contention.

HER HONOUR:   On what?

MR RAPHAEL:   We would wish to file a notice of contention in relation to the question to come before the High Court.  We have notified my friend’s solicitors of this several days ago.  However, I simply mention that at this point because there would ‑ ‑ ‑

HER HONOUR:   What is the notice of contention you seek leave to file?

MR RAPHAEL:   Might I hand it to your Honour for perusal.

HER HONOUR:   Was this agitated in the Federal Court?

MR RAPHAEL:   No, because – this was effectively agitated in the Federal Court because there were lengthy submissions from my friend and me on that point, that the circumstances in each of the three appeals were not such as to warrant an order personally being made.

HER HONOUR:   Does it mean that, at the end of the day, the only point between you is whether this Court should hear the Knight v FP Special Assets’ point or it should be remitted to the Full Federal Court?  Is that the only point that is between the parties?

MR ALLSOP:   We do not understand that to be the case.  We understand that the appeal is in contest, and that is whether or not the Full Court’s orders should be set aside is in contest.  If the position is that, by consent, the appeal be allowed and the orders of the Full Court be set aside…, as it were, then that might be one position.  But we do not apprehend that to be the position.  That is why we wrote in February to clarify it.  What we were told was, in effect, you either agree to the rescission of special leave or we fight on all fronts.  And we understand, your Honour, that whether or not the orders should be set aside is in issue.

MR RAPHAEL:   No, certainly not.

HER HONOUR:   It is not in issue.

MR RAPHAEL:   What is in issue is precisely that which fell from your Honour a few moments ago.

HER HONOUR:   The only issue is whether this Court should decide the Knight v FP Special Assets’ point or it should be decided by the Full Federal Court.

MR RAPHAEL:   That is the thrust, yes, your Honour.  That is the nub.

MR ALLSOP:   Does that mean - my learned friend then, as I understand, is consenting to the appeal being allowed and the orders of the Full Court being set aside.

HER HONOUR:   As I understand it, yes.

MR RAPHAEL:   I will just take final instructions, but I am quite sure that is it, yes.  On the basis that it is remitted, yes, your Honour.

MR ALLSOP:   Ah, on the basis that it is remitted.  There are two questions involved.

HER HONOUR:   Yes.  As I understand, he would consent to orders allowing the appeal, setting aside the orders of the Full Federal Court, allowing the appeal to that court and consequential orders and, as I apprehend it, an order remitting Mr Yates’ appeal to the Full Federal Court back to it for hearing and determination on the Knight v FP Special Assets’ point.

MR RAPHAEL:   That is so, your Honour.  That is precisely the point that I thought I had commenced with, albeit obviously I did not put it properly, and I should be caned for that. 

HER HONOUR:   Does that alter things, Mr Allsop?

MR ALLSOP:   No, your Honour, because our notice of appeal – our position is we want it set aside and we want it dealt with, if the Court will.

HER HONOUR:   By this Court?

MR ALLSOP:   Yes.  Whether this Court will deal with it ‑ ‑ ‑

MR ALLSOP:   Whether your Honours will or not is another thing.  We will have to seek to persuade you to do so because we say it is not ‑ ‑ ‑

HER HONOUR:   You will have to seek to persuade us at the hearing of the appeal.

MR ALLSOP:   Yes.

HER HONOUR:   And you will have to seek to persuade us, I would imagine, that it was dealt with on the merits in the Full Court.  Because if the appeal was not dealt with at all, as clearly was the case in the other matter, then the appropriate order would be for that to be dealt with.

MR ALLSOP:   It was not necessary for the Full Court to deal with it for the others.

HER HONOUR:   No.

MR ALLSOP:   It was absolutely necessary for them to deal with it ‑ ‑ ‑

HER HONOUR:   But one cannot work out what they did.

MR ALLSOP:   One can work out one thing very clearly:  they took away the order.

HER HONOUR:   Yes.

MR RAPHAEL:   I would also say it comes up very clearly that they formed a very strong view which was totally reversed by the High Court.

MR ALLSOP:   What was not done was giving any reasons as to ‑ ‑ ‑

HER HONOUR:   Yes, I understand that. 

I will not grant the adjournment.  Do you need my leave to raise this notice of contention?  It is out of time.

MR RAPHAEL:   It is out of time, your Honour, yes.

HER HONOUR:   On the basis that the matter is in contest, the notice of contention can certainly be received.  But, on the other hand ‑ ‑ ‑

MR RAPHAEL:   I should have it signed by my instructing solicitor, thought, your Honour.

HER HONOUR:   Yes.  That does not indicate, I should tell you, that the precise issue you want determined will be determined by this Court.  It very frequently is not the case that this Court determines matters that do not seem to have been the subject of proper consideration.  Very frequently it is the case that they are remitted.

MR ALLSOP:   Your Honour, could I just raise one matter.

HER HONOUR:   Yes.

MR ALLSOP:   Just to tell your Honour one matter.  It does not require any leave, I do not think.  On the basis that the appeal is in issue, there is a question that we raise on the notice of appeal consequent upon the debate before your Honour and Justice Callinan in the special leave application as to whether there was a question of power of the judges to do what they did.  It appears now that the appeal is live in the sense that it is in contest as to whether the orders of a Full Court should be set aside.

HER HONOUR:   Well, one presumes so.

MR ALLSOP:   One presumes so.

HER HONOUR:   Mr Raphael is prepared to agree to the appeal being allowed ‑ ‑ ‑

MR ALLSOP:   Conditionally allow.

HER HONOUR:    ‑ ‑ ‑providing it is disposed of in a certain way.

MR ALLSOP:   Your Honour, can I just say ‑ ‑ ‑

HER HONOUR:   In a way which ‑ ‑ ‑

MR RAPHAEL:   Which follows what has been ordered in the other matters.

HER HONOUR:   Yes, and is a way which is not in the least bit unconventional.

MR ALLSOP:   Yes, I understand that.  Your Honour, we wish to file – we think it necessary to file, and I do not do so now, but to file in the Registry a 78B notice, simply on this basis, that if we are discussing the power of these judges to do what they did, by necessity it might be said one is discussing judicial power of the Commonwealth.  There is no particular constitutional ‑ ‑ ‑

HER HONOUR:   I do not see any constitutional point.

MR ALLSOP:   Your Honour, we did not want the thing to go off on a basis that if one is discussing whether the Federal Court had power to do something, one might be seen to be discussing the judicial power of the Commonwealth.  That is all.  So we will file that, your Honour, and circulate it.

HER HONOUR:   What is the constitutional point?

MR ALLSOP:   The constitutional point is this, your Honour, that if one is discussing whether the Federal Court judges had power to do (a), (b) or (c), it might be said that is a discussion of the judicial power of the Commonwealth.

HER HONOUR:   It might be said, may, somebody might think of a question, but I am asking you what is the question you thought of.  Did this not only arise in this way:  Mr Quick said maybe they were reserving it to themselves to determine because they had not reached a concluded view on it.  Is that not the only point where power comes in, whether you can allow an appeal without reaching ‑ ‑ ‑

MR ALLSOP:   No, your Honour, power may come in if natural justice has not been given.  As your Honour said in Wilson v Minister for Aboriginal Affairs, so critical is the judicial process to the exercise of judicial power that it forms part of the definition of that power.  So if one has not given natural justice ‑ ‑ ‑

HER HONOUR:   I do not see how it raises a constitutional question.

MR ALLSOP:   If your Honour pleases.

MR RAPHAEL:   I have nothing to say on that, your Honour.  I think my friend is simply, with respect to him, being cautious, and that is all.

HER HONOUR:   I think you really ought to be prepared, as a preliminary issue, to expect the Court to ask you to deal with the question why, if your arguments are successful, the appeal should not be allowed and the matter remitted.

MR ALLSOP:   If your Honour pleases.

HER HONOUR:   That is a very frequent procedure in these matters.

           The application for an adjournment is dismissed. 

MR RAPHAEL:   With respect, your Honour, it seems apposite that there should be costs in the cause.

HER HONOUR:   I was just about to say as to that I will make it costs in the appeal.

MR ALLSOP:   We would ask for costs for today, your Honour.  There is a motion for an adjournment.  It has been refused.

HER HONOUR:   It seems to have been largely born of failure to communicate properly between solicitors.

MR ALLSOP:   Your Honour, we – I do not want ‑ ‑ ‑

HER HONOUR:   No, I will make it costs in the appeal.  I will certify for the attendance of counsel.

MR ALLSOP:   If your Honour pleases.

MR RAPHAEL:   If the Court pleases.

HER HONOUR:   Court will now adjourn briefly for the next matter.

AT 9.43 AM THE MATTER WAS CONCLUDED