Skase v Donnelly; Re Donnelly; Ex parte Skase

[1993] HCATrans 17

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IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Brisbane No Bl of 1993

B e t w e e n -

CHRISTOPHER CHARLES SKASE

Plaintiff

and

MAX DONNELLY

Defendant

Application for an

interlocutory injunction

Office of the Registry

Brisbane	No B2 of 1993
In the matter of -

An application for a writ of prohibition against MAX

DONNELLY as trustee in

bankruptcy of the estate of

CHRISTOPHER CHARLES SKASE (a

bankrupt)

Ex parte -

CHRISTOPHNER CHARLES SKASE

Skase 11/2/93

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 FEBRUARY 1993, AT 10.00 AM

Copyright in the High Court of Australia

MR A.J.H. MORRIS, QC:  May it please Your Honour, I appear

with MR L.J.A.T. HAMPSON for Mr Skase as plaintiff

in the first matter, and the prosecutor in the

second matter. (instructed by Gilshenan & Luton)

MR G. GRIFFITH, OC, Solicitor-General for the Commonwealth:

If Your Honour please, I understand that the

defendant and the respondent does not intend to

appear.

HIS HONOUR:  I should, before I hear from you further,

Mr Solicitor, just say that there is a memorandum

from the Deputy Registrar in respect of both these

matters which reads:

I have been advised by Mr M.C. Donnelly, of

Ferrier Hodgson, accountants, that he is

opposed to the making of any of the orders

sought by Mr Skase but that due to a lack of

funding of the administration does not intend

to appear at the hearing of the abovenamed

applications.

MR GRIFFITH: Thank you, Your Honour. I seek to appear,

Your Honour, with my learned friend,

MR G.M. AITKEN, for the Attorney-General of the
Commonwealth intervening. (instructed by. the

Australian Government Solicitor)

HIS HONOUR:  In both matters?

MR GRIFFITH: Yes, Your Honour. Perhaps I should explain.

We intervene in a matter arising under the

Constitution. It might be of assistance if I

indicate the extent of our interest today.

HIS HONOUR:	Yes.
MR GRIFFITH:	Your Honour, as to the matter of substance

alleging the invalidity of the subsection of the

Bankruptcy Act, our view is that that is a matter

when appropriately pleaded which could be stated to

the Full Court for determination as the issue of

validity, if that is the plaintiff's desire to

proceed in that way.

HIS HONOUR: That is in respect of the substantive action?

MR GRIFFITH: Yes.

HIS HONOUR: It raises a slight problem perhaps, because

there is no defendant in the strict sense.

MR GRIFFITH: Yes, Your Honour. What I suggested to my

learned friend this morning just outside the Court

is that if he has filed a short statement of claim,

Skase 11/2/93

the matter could be brought on even later today for

a question to be gestated by Your Honour.

HIS HONOUR:  With the Commonwealth as a defendant or still

as an intervener?

MR GRIFFITH: Just as an intervener, Your Honour.

HIS HONOUR:  And no defendant?

MR GRIFFITH:  Yes, Your Honour. We think it is likely that

the matter would proceed on that basis in the Full

Court, so that we would be representing the

contrary interest in effect, but as an intervener.

HIS HONOUR:  Thank you, Mr Solicitor.

MR GRIFFITH:  Your Honour, can I indicate the second matter of the extent of our interest. We are concerned on

the general principle that in matters where the

claim is an allegation of constitutional

invalidity, the basic principle that an injunction

should not issue save in the most exceptional

cases, and we would seek to uphold that principle

here - - -

HIS HONOUR: That again is in relation to the substantive

action?

MR GRIFFITH: 

Yes, Your Honour. We would say as to the

prerogative writ, if I could foreshadow, that
firstly, it is otiose, given that the action raises

a point. Secondly, Your Honour, we would say that

clearly Mr Donnelly is not an officer of the

Commonwealth.

HIS HONOUR: 

That is certainly a matter that Mr Morris has

to face up to.

MR GRIFFITH:  Your Honour, we would say thirdly, of course,

that as a matter of discretion, given that the

other proceedings are on foot, it is not

appropriate to proceed to determine the ultimate

truth of the first point, but I suppose it is up to

my learned friend. If he is content just to

proceed on the action and let the application for

the order nisi lie, we do not want to get involved

with these issues if it is not necessary.	I hope
that assists Your Honour.

HIS HONOUR:  Thank you, Mr Solicitor. I might just ask you

while you are on your feet, or check with you what

material you have. There are a couple of

affidavits that have come in this morning, in each

matter an affidavit sworn by John Kenneth Cockburn

dated 9 February with attachments.	Do you have
those?

Skase 11/2/93

MR GRIFFITH: Are they these bundles, Your Honour? No, we

do not. I suppose we should look at them.

HIS HONOUR: Again in each matter, one of the affidavits is

an affidavit of service of notice to the other

Attorneys. The second affidavit annexes some

correspondence which is perhaps more relevant to

the question of interlocutory relief than anything

else.

MR· GRIFFITH: Perhaps, Your Honour, if I indicate I will

read it, but basically our position is that we do
not want to get involved in the small print here.

We are not the respondent. We just want to

vindicate the basic principle.

HIS HONOUR:	Thank you, Mr Solicitor.	Mr Morris?
MR MORRIS:	Thank you, Your Honour.	If I may commence by

responding briefly to a couple of matters mentioned

by our learned friend. Our learned friend refers

to the difficulty in relation to the prerogative

proceedings on the basis that Mr Donnelly is not an

officer of the Commonwealth. Our submission in

relation to that issue will be that the prerogative

proceedings are within the original jurisdiction of

this Court because it is a matter arising under the

Constitution or involving its construction and that

that is a separate head of original jurisdiction of

this Court.

HIS HONOUR:  What, making paragraph (e) of section 38

superfluous?

MR MORRIS:  I am not sure, Your Honour, whether it makes it

superfluous, but we will be relying, for example,

on the decision of this Court in 1942 in R v Bevan, (1942) 66 CLR 452, in which a majority of the Court

held that in that case habeas corpus rather than

prohibition, but none the less prerogative relief,

was available against persons who were clearly

officers of the State of New South Wales, because	the proceedings involved a question arising under
the Constitution or involving its interpretation.

HIS HONOUR:  That may or may not answer the question,

because paragraph (e) is specific as to the form of

prerogative relief that is available to the Court.

MR MORRIS:  I understand what Your Honour is putting to me,

but in my submission that does not detract from the
provisions of sections 30 and 31, the first
conferring on this Court jurisdiction in any matter
arising under the Constitution, and the second

giving the Court power to make a panoply of

remedies.

Skase 4 11/2/93

HIS HONOUR:  Is there any advantage in running the two

matters together?

MR MORRIS: That was the other matter I was going to come

to, Your Honour. There is not perceived to be any

particular advantage. The two forms of action have

been commenced in the Court, I suppose out of an
abundance of caution in the event that
jurisdictional issues were raised either by the

defendant or by an intervener, and if for the

purposes of the present proceedings the

Commonwealth is prepared to accept that the rit

action is properly within the Court's jurisaiction,

then I need not press the prerogative relief

action.

HIS HONOUR:  Does "need not press" mean that you are

prepared to discontinue those proceedings?

MR MORRIS:  My respectful submission is that the appropriate

course would be simply to take no further steps in

those proceedings. I say that in the context that

the defendant in the writ action is not here and we

really do not know whether his interest in the

proceedings will reawaken at some future time and

he may attempt to take some sort of jurisdictional

point in relation to the writ action.

HIS HONOUR:	What are you suggesting, Mr Morris, that the prohibition proceeding simply be adjourned?
MR MORRIS:	Yes, Your Honour.
HIS HONOUR:	Is there any difficulty from the Commonwealth's

point of view in that being done, Mr Solicitor?

MR GRIFFITH:  We have got no problem with that, Your Honour.

We have already indicated that we think a short statement of claim is sufficient to enable the

Court to have a question stated to it.

HIS HONOUR:  Very well. In that case we can dispose of

No B2 of 1993 - that is the application for writ of prohibition - by simply adjourning that matter sine

die.

MR MORRIS:  Thank you, Your Honour. Coming to the writ

action, our learned friend has indicated a way in

which the matter can conveniently be dealt with

towards a final hearing and we are agreeable to

that course. Indeed, the course of stating the

case for the Full Court is one that was suggested

on our side in the first instance.

The difficulty for the time being, however, is

that the trustee, having originally offered a form

of undertaking, has now purported to withdraw that

Skase	11/2/93 undertaking and my client is presently unprotected
on an interlocutory basis.
HIS HONOUR:	There are two aspects of that, I think,

Mr Morris. One is: I see from the correspondence

that is annexed to the affidavit that came in this

morning that there is reference on your client's

part that that undertaking has been withdrawn.

There is reference to a letter which is said to

purport to withdraw the undertaking earlier given.

Is the letter itself part of the correspondence?

MR MORRIS:  Yes, Your Honour. It concerns me that possibly

a different form of the affidavit was filed in

Brisbane from the one that I have, but in my copy

of the material the relevant document is exhibited

as exhibit C to the affidavit, a letter from

Mr Donnelly under the letterhead of his firm,

Ferrier Hodgson, dated 10 February 1993.

HIS HONOUR:	Does that represent the latest state of play?
MR MORRIS:	Yes, Your Honour. There was subsequent correspondence from my instructing solicitors to
the solicitors for Mr Donnelly, as it were,
confirming that that was Mr Donnelly's position,
but no further response either from Mr Donnelly or his solicitors. Those should be, I think,
exhibits E and F to the affidavit.
HIS HONOUR:	Is the registrar bound to accept the

certificate?

MR MORRIS:	The registrar of whichever court in which it is filed, does Your Honour mean?
HIS HONOUR:	Yes.

MR MORRIS: That would seem to be the case, Your Honour. It

would seem on the section that the trustee has, if

the section is valid, an entitlement to file it in

a court and that on his doing so it becomes

immediately effective as a judgment of that court.

HIS HONOUR:  Yes, I appreciate that. I was just wondering

whether there was any power in the registrar to
decline to accept the certificate having regard to

the proceedings that are presently on foot.

MR MORRIS:  Your Honour, I can see practical difficulties in

doing that, if I may express myself that way,

because under the terms of the section it would

seem that it could be filed in any court. One

faces the possibility that Mr Donnelly may go

through the various States and territories looking

for a registrar who is prepared to take the

certificate.

Skase 6 11/2/93

HIS HONOUR:  What would be the immediate and practical

consequences of filing the certificate? All right,

it operates as a judgment of a court.	What
thereafter is likely to happen?

MR MORRIS:  Your Honour, it really is a matter of

speculation as to what could happen, but there are

a number of possibilities which would involve

serious detriment to my client. One is that

Mr Donnelly may attempt to have the judgment

registered in a foreign country. The material

shows that Mr Skase is presently residing in Spain.

He is_as a bankrupt entitled to earn income and an

attempt may be made, for example, to register the

judgment in Spain and attempt to garnishee

Mr Skase's income in Spain.

If that happened, Mr Skase would be put in the

very embarrassing situation of having to challenge

in a Spanish court the constitutional validity

under Australian constitutional law of something

which on its face purports to be a judgment of an

Australian court. That is one possibility.

HIS HONOUR:  The trustee would have to think long and hard

before taking that course if the validity of the

judgment itself was under attack in this Court.

MR MORRIS:  Your Honour, I can only respond to that by

submitting that on the material presently before

the Court, the trustee does not appear to be a

person who thinks long and hard before doing

anything. He is a man who offers an undertaking on

Monday of this week and withdraws it on Wednesday.

In my submission, one could not put Mr Skase's rights at the jeopardy of being dealt with by a man

who is prepared to treat an undertaking as lightly

as that.

Your Honour, there are other possibilities

and, again, I can only say that they are

theoretical ones. Although it does not appear in

were, public record that Mr Skase is required to	the material, it is, I think, a matter of, as it
return to Australia later in the year in relation
to proceedings of another kind. One of the
possibilities that may arise in that context is
that if the judgment is entered or taken out, then
Mr Skase may face proceedings such as a writ of ne
exeat colonia or a writ under Queensland law of capias ad satisfaciendum or something of that sort
which affects his personal liberty. Again, those
are purely matters of hypothetical possibility, but they are the consequences of having a document
stand which on its face purports to be a judgment
of a superior court.

Skase	11/2/93
HIS HONOUR:	I suppose the letter of 10 February is

ambiguous to some extent in so far as it says:

I will not, however, file the section 139ZG

certificate prior to the outcome of this

Thursday's hearing in the High Court in

Canberra.

I suppose you can read that as meaning it may or

will be filed thereafter or that the matter will be

reconsidered in the light of whatever happens in

the Court today.

MR MORRIS: In my submission, the natural construction to

place on that letter is that Mr Donnelly is really saying that if he restrained by the Court, he will

abide by the Court's order, but if not he will

regard himself as being at liberty to proceed. May

I say, Your Honour, that even if Mr Donnelly is, by

a process of construction, taking as implying that,
depending on remarks falling from Your Honour or

depending on what takes places in this courtroom,

he may refrain from issuing the certificate.

A person who has been in the past capable of purporting to withdraw an undertaking given in good

faith and accepted by my client cannot really be

relied upon to abide by what Your Honour may think

is the spirit or the strict legalistic construction

of what is said in his letter of 10 February.

HIS HONOUR:  Can you assist me in this way, Mr Morris?

Looking at it from the trustee's point of view, what disadvantages are there if an interlocutory

injunction were granted?

MR MORRIS:  I will say to Your Honour quite frankly that I

have exercised my mind as to any possible

disadvantage, and the only possible disadvantages

that occur to me are the sort of hypothetical ones

that I have already referred to Your Honour, that

seek to have the judgment enforced in Spain and	is to say that Mr Donnelly would not be able to
would not be able to have it enforced against
Mr Skase.

HIS HONOUR:  Is that hypothetical? I mean, from the

trustee's point of view, that might be something to

be desired.

MR MORRIS:  It is hypothetical in the sense that it is only

a matter of speculation as to whether those steps

could do the trustee any good, anyway.

HIS HONOUR:  That is really the way in which I invite you to

assist me. It is not so much what adverse

implications it might have for Mr Skase, but

Skase 8 11/2/93

whether it would preclude the trustee from taking

some step which might be advantageous to him in the

administration of the estate.

MR MORRIS: If I can proceed on the example, Your Honour, of

registering the judgment in Spain, there is nothing

before Your Honour to indicate whether in fact

Mr Skase has an income in Spain. I do not know

whether Your Honour is inviting me to travel beyond

what is in the material at the moment.

HIS HONOUR:  No, I am not.

MR MORRIS: There is certainly nothing to indicate that such

an income in fact exists. In a sense, it may be

detrimental to the estate and to the creditors of

the estate if Mr Donnelly embarked on what might be

a wild goose chase of attempting to register the

judgment in Spain. But to answer Your Honour's

question frankly, there is a hypothetical detriment
in the sense that the trustee would not be able to

take that course if the interlocutory injunction

were issued. In a similar way, upon Mr Skase's

return to Australia, the trustee would not be able

to take out the sorts of relief that I mentioned

earlier against Mr Skase personally.

HIS HONOUR:  If the trustee proceeded in the absence of an

injunction to file the certificate, there would

then be a judgment in his favour, presumably. I

suppose he could then be restrained from enforcing

the judgment.

MR MORRIS:  Your Honour, that is conceivable, and I suppose

if one could, as it were, second-guess what the

trustee intended to do, one could apply for

injunctions to restrain him from seeking to, for

example, have the judgment registered in Spain or

somewhere overseas. So in that sense, if the

judgment was taken out and if Mr Skase's legal

advisers were able to think one step ahead of

Mr Donnelly, then it would be possible to obtain

interlocutory injunctive relief at that stage.

HIS HONOUR:  I am asking you these questions for obvious

reasons, that in the absence of Mr Donnelly, there
is a natural reluctance to grant the injunction

unless it is necessary.

MR MORRIS:  I understand that, Your Honour. Being aware of

my duty to the Court, I have attempted to think of

those submissions which might be advanced on

Mr Donnelly's behalf, were he represented, as to

why he would be prejudiced by the grant of an

interlocutory injunction.	I am unable to take it
further than I have.

Skase	11/2/93
HIS HONOUR:	Putting that to one side now, Mr Morris, what

are you suggesting should be done?

MR MORRIS:  Your Honour, my application is for an

interlocutory injunction in terms of the summons.

That is to restrain Mr Donnelly from filing the

certificate in any court until the final
determination of these proceedings or earlier

order.

HIS HONOUR:  The order does not include the words "or

earlier order", but no doubt that does not preclude

an application to set aside or vary the injunction.

MR MORRIS:  No, and in my submission that is perhaps

Mr Donnelly's ultimate protection.

HIS HONOUR:  So are you suggesting some change in the

wording of paragraph 1 to make it clear that it is

until final determination or earlier order.

MR MORRIS: Yes, Your Honour. Perhaps I should seek formal

leave to amend paragraph 1 of the summons to insert after the words "pending the final determination of

this proceeding" the words "and until further

order".

HIS HONOUR: 

"or until further order" perhaps.

MR MORRIS: 

Yes.

HIS HONOUR: 

What about the procedure to be followed in

respect to the writ itself and the Solicitor's
suggestion that there be a case stated?

MR MORRIS: 

As I said earlier, Your Honour, we are very

agreeable to that course as an expedient way of

disposing of the matter. What in fact on our side

of the record we had in mind was that the parties

would state a case rather than troubling

Your Honour to do so, but I understand the

Solicitor has some - - -

HIS HONOUR:  I hoped it was implicit in what the

Solicitor-General said, that in inviting me to

state a case, it was a case prepared by the

parties.

MR MORRIS:  What we had suggested in correspondence, I

think, yesterday was that the parties proceed in

accordance with Order 35 rule 1 to state a special

case by consent.

HIS HONOUR:  Is that something that can be done within the

next half hour or so?

Skase 10 11/2/93

MR MORRIS:  I frankly cannot see any reason why not,

Your Honour, but may I say at the same time that of
course I defer to the Solicitor's wealth of
experience in matters of this kind and if the
Solicitor sees some advantage in proceeding with

the statement of claim and then Your Honour stating

questions for the Full Court or referring the

matter to the Full Court, I have no particular

desire to adhere to the course that we have

suggested. It really is a matter of what is most

convenient for the Court.

HIS HONOUR:  I am not sure - and I will ask the

Solicitor-General in a moment - if a statement of

claim were filed, whether a case stated would be

necessary or whether questions of law could simply

be referred in the light of the stated case. The

case stated does have some artificiality about it.

Perhaps, since the defendant is not involved and

the Commonwealth is not seeking to be a party but
to remain as an intervener, it might be preferable
for a statement of claim to be filed and the

questions of law be referred to the Court.

MR MORRIS:  The other possibility which occurs to me, and I

will confess that I am thinking on my feet, is that

the questions of law which my client seek_s to raise

are fairly clearly identified in paragraphs 1 and 2

of the writ of summons, and it may be that that in

itself would be a sufficient basis for Your Honour

to refer those matters to the Full Court.

HIS HONOUR:  I cannot really refer them in the absence of

some factual background, whether by way of

statement of claim or by way of agreed facts.

MR MORRIS:	Yes, I understand.
HIS HONOUR:	So I think that is probably the first step.

What are you asking me to do, Mr Morris, to adjourn for an hour or less time, or more time if necessary

so that these matters can be resolved?

MR MORRIS:	If Your Honour were to adjourn for an hour, in that time we could prepare a statement of claim and
on that basis the course of proceedings that the
Solicitor has suggested could be pursued.
HIS HONOUR:	It might be advisable for you to look fairly

closely at the appropriate procedure in the light

of the filing of the statement of claim, whether it

is case stated or refer questions of law. In the

end it may not make a great deal of difference, but

it is something you might give consideration to.

MR MORRIS:  I understand what Your Honour is saying. Could

I just say something in relation to the matter

Skase 11 11/2/93

raised by the Solicitor-General in relation to this

Court's reluctance to grant interlocutory relief on the basis of a suggestion that a statute is

unconstitutional. There certainly are cases that

indicate that the Court will be reluctant other

than in strong or exceptional circumstances to
grant interlocutory injunctive relief on the basis

of a challenge to the validity of federal

legislation. If that is a matter which troubles

Your Honour, I do have some submissions to make in

that regard.

HIS HONOUR: 

Perhaps you would.

MR MORRIS: 

Your Honour, the most recent statement of the

relevant principles is a decision of the
Chief Justice in Australian Capital Television Pty

Ltd v The Commonwealth, (1991) 66 ALJR 214. I do

have a photocopy if it would be convenient.

HIS HONOUR: 

Thank you, Mr Morris.

MR MORRIS: 

Your Honour, at page 217F in the first column,

the Chief Justice said:

However, accepting that the validity of

Pt IIID is a serious question to be determined

and assuming that the plaintiff licensees and

the State will suffer irreparable injury which

is not compensable if the legislation is

complied with or enforced, I do not consider

that, as things presently stand, I should

grant the interlocutory relief sought in the

two actions to the extent that the case for

that relief is based on constitutional

grounds. In Castlemaine Tooheys Ltd v South

Australia, I discussed the principles

governing the grant of interlocutory relief

pending the determination in an action of the

validity of a statute challenged on

constitutional grounds.	I point out that:
the duty of the Court to respect, indeed, to	"In the absence of compelling grounds, it is
defer to, the enactment of the legislature
until that enactment is adjudged ultra vires."

Then His Honour goes on to apply that principle to

the circumstances of that case.

Your Honour, may we say that we accept that

that is the principle which guides this Court in
applications for interlocutory relief but that

there are two matters which we rely upon as taking

the present case into the category of exceptional

circumstances referred to. The first is that it is

a very strong case for the section to be held to be

Skase 12 11/2/93

ultra vires, a very strong case, based, I might

add, on quite recent decisions of this Court and

most particularly the decision of this Court in

Harris v Caladine.

Secondly, Your Honour, this is not a case of

the kind referred to by the Chief Justice in
Australian Capital Television and in the other

cases decided by His Honour on this point where it

is a matter of balancing public interest against

private interest. It is a case where, if the

legislation is invalid, my client stands to be

seriously prejudiced by having an enforceable

judgment, or something that purports to be an

enforceable judgment, taken out against him.

There is no countervailing public interest

such as occurred, for example, in one of the other cases mentioned by the Chief Justice, Richardson v Forestry Commission. Perhaps it is worth taking

Your Honour very briefly to that case.	It is
reported in 164 CLR 261.	I direct Your Honour's
attention in particular to page 275.	I should

perhaps explain that the report in the CLR covers

both the application for interlocutory relief heard

by the Chief Justice and the subsequent hearing

before a bench of seven Justices. The passage that

I am referring to is out of the Chief Justice's decision sitting alone in relation to the interlocutory injunction application. In the major

paragraph on page 275 the Chief Justice examined

with some care the matter of balance of

convenience. He pointed out that:

In a case such as the present it is

somewhat artificial to say that the plaintiff

must establish irreparable injury. The

plaintiff seeks injunctions to protect the
integrity of the area pending the outcome of
an inquiry concerning the values or qualities

of the area or any part of it as a world

heritage area -

and so on. Then at the foot of page 275,

His Honour, having analysed the balance of

convenience in that way said:

What I have just said conforms to the

general principle that, in the absence of

compelling grounds, it is the duty of the

court to respect, indeed, to deter to the

enactment of the legislature -

In our submission, this is really a very different

kind of case from the kind of case then under

examination. It is not the kind of case in which a

major matter of public interest is concerned. It

Skase 13 11/2/93

really is a question of competing private rights

between two citizens, one of them, admittedly,

exercising powers which, whether or not they be

characterized as constituting an office of the

Commonwealth, none the less are public powers.	But
our submission is that it is still essentially a
private dispute relating to private rights.

Your Honour, on the question of whether or not

it is, as I submit, a very strong case, I do not

want to take Your Honour to the authorities at any

great length, because that will take a considerable

period.of time, but may I make, without going to it

in detail, the submission that if this Court

adheres to the views expressed by the majority in

Harris v Caladine, the legislation would clearly be

held to be invalid.

The minority in that case was of course

comprised by Your Honour and Mr Justice Brennan, and of course Your Honour and Mr Justice Brennan

took an even stronger view as to the limits of the

power of the federal Parliament to delegate the

judicial power of the Commonwealth to people other

than judges. So whether one takes the majority

view or the minority view, it is - - -

HIS HONOUR: There is not much option, is there?

MR MORRIS:  I suppose the option is always available to this

Court in -

HIS HONOUR:  Not by me.

MR MORRIS:  No. But even on the less extreme, if I might

respectfully put it that way, attitude taken by the

majority, there can only be a delegation of

judicial power to a person who is not a judge if

two criteria are satisfied. The first criterion is

that there is a right of appeal with a hearing de

novo to a person who is in fact a judge, and the

second is that the actual administration of the

judicial power of the Commonwealth continues to

repose in people who are judges.

HIS HONOUR:  As to the first of those matters, there is a

right to review, a right of appeal - I think it is

expressed as a right to review - the conduct of a

trustee under section 178.

MR MORRIS:  Yes, Your Honour, that is so.

HIS HONOUR: Like you, I do not want to be taken into an

argument this morning as to how strong the case is,

but does that constitute a sort of barrier to the

legislation being held to be an exercise of

judicial power? Perhaps more in terms of Harris v

Skase 14 11/2/93

Caladine, is there that power to review of which the majority judges spoke which might stand in the way of the delegation being held invalid?

MR MORRIS:  Your Honour, in my submission there are three

answers to what Your Honour has just put to me.

The first is that I think a numerical majority of

the Court in Harris v Caladine took the view that

the right of review must be a rehearing de novo,

that it would not be sufficient if there was an

appeal in the ordinary or strict sense. In my

submission, it is difficult to characterize the

Federal Court's power to review the conduct of a

trustee as involving the Federal Court rehearing de

novo the trustee's decision to file a certificate.

HIS HONOUR:  Yes, section 178 just says:

If the bankrupt ..... is affected by any act,

omission or decision of the trustee, he may

apply to the Court, and the Court may make

such order in the matter as it thinks just and

equitable.

I do not think, unless there is some section

elsewhere or maybe in the rules, that the procedure

is spelt out.

MR MORRIS:  Your Honour, I am not aware of any that takes it

beyond that, but in my submission there is at least

a very serious question as to whether that is

sufficient to meet the test of a rehearing de novo.

But may I say that there are two other answers to

the matter which Your Honour just put to me.

The second answer is that what is involved

here is not a delegation by the judges of any court
of their power to the trustee. It is a delegation
by Parliament of part of the judicial power of the

Commonwealth to the trustee. A number of members

of the Court took it as being very clear that

Parliament could not delegate judicial power away

from judges; it was only judges themselves who

could do so. Indeed, Mr Justice McHugh at page 164

put it as clearly as saying that:

It goes without saying that the Parliament

cannot require the court to delegate any of

its powers.

There are similar passages in the judgments of other Justices. So that is the second answer.

In my submission, the third answer is this,

that the impugned section is not only confined to

the Federal Court or to courts created by the Parliament; it also extends to State courts.

Skase 15 11/2/93

Whether or not there is a power of review of the

trustee's decision by the Federal Court, what is

involved if the trustee elects to file his

certificate in, say, the Supreme Court of

Queensland is that the trustee is exercising the judicial power of that court or exercising the

jurisdiction of that court which infringes the very

basic principle that the Parliament of the

Commonwealth cannot interfere with the constitution

of State courts; a principle which again was

recently upheld in this Court in the Hospital

Contribution Fund case.

HIS HONOUR:  I do not know that I need trouble you further

on that aspect, Mr Morris. The Solicitor has not,

at least not yet, suggested that the question

raised is completely lacking in substance. If he

does, then I might have to come back to you.

MR MORRIS:  Thank you, Your Honour, those are my

submissions.

MR GRIFFITH:  Your Honour, could I say something about the

procedure first? What we were contemplating,

Your Honour, was a reference under section 18 of the Judiciary Act. In the absence.of the

defendant, what we would have in mind, Your Honour,

if the plaintiff could express his case in a

particular way and with the assistance of the

Court, state, perhaps, upon the lines of that are included in the affidavit in support of the order nisi for prohibition what the grounds are, we would

have thought, Your Honour, it would be quite simple

for Your Honour to state a question on validity.

We would expect, Your Honour, however quickly

my friend - if he can do it in an hour - can draft

that, he would need to contact the trustee to get

his acquiescence before Your Honour could state a
question because otherwise one would have the

ordinary operation of the rules and the plaintiff

would be obliged to file a statement of claim and	the defendant to lodge a defence, but just to make
it simple, Your Honour, we would suppose that if
the plaintiff is in the position some time today to
have such a document, one would expect that, by a
fax and telephone, the trustee could indicate that
he concurs in that.

HIS HONOUR:  What happens if the trustee says, "I am not

taking any further interest in the proceedings"?

MR GRIFFITH:  Your Honour, it seems from the letter that

Your Honour read out that he has not got any money

and he will not. But that does not prevent

Your Honour from stating a question at some time,

even on an ex parte basis, but it might prevent

Skase 16 11/2/93

Your Honour, without some intimation of

acquiescence or consent from Mr Donnelly, stating
it today. We would suppose, Your Honour, he would

go along with it if it were in that position today.

HIS HONOUR:	What do you suggest is the obstacle to - - -?
MR GRIFFITH:	The defendant's consent, Your Honour.
HIS HONOUR:	The defendant having indicated that he does not wish to participate any further in the proceedings?

MR GRIFFITH: Well, today, Your Honour. But he is entitled

under.the rules to a time to lodge an appearance

and then he is entitled to a statement of claim.

He is obliged under the rules to lodge a defence

and after expiry of that time the plaintiff may

apply for a question to be stated. Your Honour, we

would suppose that all that could be short

circuited by my friend being ready with a draft

statement of case with the question - with his

short contention as to his ground and Mr Donnelly

indicating, Your Honour, as could be done by fax or
by information to Your Honour, that he concurs in

that ground and, Your Honour, we, of course, would

go along with it as an intervener if it put the

question appropriately before the Court.

HIS HONOUR: If you are suggesting, Mr Solicitor - well, you

are saying without the concurrence of the trustee

today, an order to that effect would be

inappropriate.

MR GRIFFITH: It almost could not be made, Your Honour.

HIS HONOUR:  I am not suggesting you are not right. I am

just wanting to identify exactly what it is that

you are putting to me.

MR GRIFFITH: Yes. But, Your Honour, we do not want to be

drawn into being a party in this action. It is for

the plaintiff to state what the case is, and the

But, we indicate, Your Honour, we are happy to	plaintiff has not done that in a pleading yet.
acquiesce in proceeding in an expeditious way. If
the plaintiff is in a position to do that during
the course of today, we will have a look at what is
drafted and say that that is acceptable to us as an
intervener.

HIS HONOUR:  Yes, thank you.

MR GRIFFITH: So, that is what we would suggest there,

Your Honour.

Your Honour, the question of injunction: we

would not have any submissions to put to the Court

Skase 17 11/2/93

if there was not an issue of constitutional

validity arising. Now, Your Honour, because that

is the plaintiff's only ground of his claim, what

we appear to submit to the Court is that the dictum

of His Honour the Chief Justice in the Castlemaine

case referred to in Australian Capital Television

as cited by my learned friend is decisive and that

is:

In the absence of compelling grounds, it is

the duty of the Court to respect, indeed, to

defer to, the enactment of the legislature

~ntil that enactment is adjudged ultra vires.

Now, Your Honour, save in cases such as where one is dealing with a section 92 issue, there has,

as we understand, been no case where this Court has

granted an injunction merely on the basis of an

allegation that an action is ultra vires, and what

we say, Your Honour, is although that possibility

is admitted, and we would admit it as a possibility

within the test stated by His Honour the

Chief Justice, it is necessary to show that there

is a compelling ground for such an order.

Now, Your Honour, we say in this case - and we

have to refer to the evidence to deal with that

exception - that there is absolutely no evidence

here that the plaintiff would suffer any injury or

any irreparable injury that could or should be

prevented by the grant of an injunction.

Your Honour, it is a matter of conjecture

whether or not, if the Court did proceed, as may be

proposed to order that a question be stated to the

Court, that Mr Donnelly would do anything to

register the order. He may or he may not,

Your Honour. Let it be assumed that he does. We would submit, Your Honour, on the plaintiff's own

material, there can be no possibility of immediate

irreparable injury arising.	The plaintiff's own
material such as it is, Your Honour, indicates that

the plaintiff has no assets in Australia and the

plaintiff is not in Australia.

Now, my learned friend made the suggestion,

both positively and negatively, that Mr Donnelly

might proceed to register the judgment in Spain.

Now, Your Honour, the plaintiff has produced no

material whatsoever as to whether or not there is

any treaty arrangement or legal arrangement which

would enable any registration to be effected in

Spain where the plaintiff's counsel say the

plaintiff now is.

My instructions are, Your Honour, that there

is no treaty between Australia and Spain which

Skase 18 11/2/93

would enable that process to proceed. But,

Your Honour, the Court has no material about that

whatsoever. It is conjecture built on conjecture.

Your Honour, from a common sense point of view, one

would expect that in the circumstances if the

plaintiff does proceed with dispatch, it is

unlikely, if the trustee does proceed to register,

that he would do anything more.

HIS HONOUR: That is, I think, the proposition I had put to

Mr Morris. The trustee would have to give very

careful consideration to incurring any further

expense in the administration of this estate, faced

with the challenge to the validity of the section.

MR GRIFFITH: Yes. Your Honour, with respect, we would say

that His Honour the Chief Justice in Australian

Capital Television was right when he said, "Well,

it is possible and a different situation might

arise where is is perhaps conceivable", he said,

"that interlocutory could be granted'', and that is

in the context, Your Honour, where His Honour

refused it in Australian Capital Television when
there was immediate financial hardship to the
plaintiff, in that the plaintiff was not able,
Your Honour, to accept paid advertising until such

time as the issue of challenge for validity was determined, as it was eventually in his favour;

similarly, in the Castlemaine case, Your Honour,

where the plaintiff was affected by the operation
of deposit legislation until such time as the Court

ruled in the plaintiff's favour in that action.

So, what we say, Your Honour, is that all

these matters of possibility and conjecture which
my learned friend constructed, we say, basically in

the absence of any material which indicated on the

facts that probably no consequence would arise, can

be dealt with, Your Honour, if, as in a matter of

immediate happening, the matter does proceed

further.	So that, Your Honour, if it is the case
that the plaintiff comes to Australia and it is the

case that the trustee in bankruptcy has registered

the judgment and is threatening to apply for a writ

ne exeat colonia, Your Honour, then an application
could be made on that specific situation to the

Court to consider whether or not that is one of the conceivable situations which would overcome what

His Honour the Chief Justice has referred to as

"compelling grounds".

Your Honour, one thing is clear on the

plaintiff's case, that whether or not Mr Donnelly

registers after the hearing today, there is no

consequence to the plaintiff which affects him in

any way which is incapable of having any present

effect or incapable of being remedied. What

Skase 19 11/2/93

His Honour the Chief Justice in Castlemaine Tooheys at page 153 said would indicate, Your Honour, that

if there is a detriment, it is something that can

be remedied by the payment of compensation. But,

Your Honour, that is, really, we would submit,

going far beyond the path of inquiry which is

appropriate for Your Honour today.

Our basic submission, Your Honour, is that

there is nothing whatsoever to show the sort of

compellable ground that one must show to obtain an

injunction in a case where the claim is merely a

claim of constitutional invalidity.

We would point out, Your Honour, on the

balance of convenience, that the injunction is

sought to restrain an enforcement of a critical

part of the legislative scheme designed to protect

the public interest in relation to the conduct of

bankrupts in their bankruptcy. So that,

Your Honour, if Your Honour were to grant an

injunction, in effect it would be seen as a signal

that this mechanism for enforcement is on hold

until such time as this case may be heard and

determined, both in respect of the plaintiff and in respect of the entire general operation of the Act.

We would submit, Your Honour, that far from being

no issue of public interest, this is at the heart
of an issue of public interest, the proper

administration of the scheme of bankruptcy law

according to its terms, unless and until this Court

determines that some part of it is ineffective and

beyond power.

So, for those reasons, Your Honour, what we

submit is that it is not necessary to pursue to the

limit these possibilities, it is enough for

Your Honour to determine today that there is no

compelling ground for issuing the injunction, and

of course, Your Honour, without affecting the plaintiff's capacity from time to time as the

circumstances emerge to make a particular

application if one of these conjectures the

plaintiff assets does give rise to such grounds

which would justify the Court to order an

injunction. But as to that possibility,

Your Honour, one would expect that the likelihood

is once that the process of setting this matter

down before the Full Court is engaged, things will

just run on, prosecuted with diligence and that

issue be determined without the Court being

concerned in any issue of that sort.

We do wish, Your Honour, in intervening for

the Attorney, to vindicate what we say is this
basic principle that it must be an exceptional case

of the sort which has not yet been, we say, brought

Skase 20 11/2/93

before the Court, and that this case does not even,

in effect, we submit, get to first base for putting

a case for the interlocutory relief to be granted.

HIS HONOUR:  Thank you, Mr Solicitor. Just one question before you sit down: on the procedural approach

that you have suggested, if I were to adjourn, say,

for an hour, it would be for the purpose of

allowing the plaintiff an opportunity to formulate

a statement of claim and communicate with the

trustee. But, I take it from what you have said

that, in your submission, it would be inappropriate

today,. and perhaps even beyond power unless there

was some express consent from the defendant, to

state a case or do more.

MR GRIFFITH:  Your Honour, we would not want to stop ..... if

that was possible. If my learned friend can draft

something, we are happy to look at it and say that

seems to be all right for us as an intervener, and

we would be content, Your Honour, for that opinion

to be transmitted to Mr Donnelly in the expectation

that he would then indicate that in the

circumstances he consents to the Court making the

order.

HIS HONOUR:  Yes, but my question really presuppos~d that

there was either a refusal to consent or simply a
non-response. In that case, in the way in which

you put it, the matter could proceed no further

today.

MR GRIFFITH:  Your Honour, I would expect there would be

acquiesence and consent.

HIS HONOUR:  We will wait and see. Yes, thank you,

Mr Solicitor. Mr Morris?

MR MORRIS:  Your Honour, I would expect that a trustee would

abide by his undertaking, but really those

expectations do not help very much.

HIS HONOUR:  The matter is before the Court now in a live

form. It may throw a completely different light on

it so far as the trustee is concerned.

MR MORRIS: Yes. Your Honour, I should say we are indebted

to the Solicitor for raising the, really, I

suppose, fairly fundamental problem of natural

justice, that the trustee is not represented here

and has not been warned that an application to

state a case would be made in these precise terms.

It occurs to me in the circumstances that perhaps

the better course would be this, that if the matter

can be done by consent, then that can be done in

the form of a consent order under the rules and

that can be done over a period of the next couple

Skase 21 11/2/93

of days. If it cannot be done by consent, then my

client will have to apply on summons to Mr Donnelly

the Full Court. Having been reminded by the	for appropriate orders to have the matter sent to trustee, in my submission, the appropriate course
would simply be to adjourn the matter so that if it
can be done by way of a consent order, that will be
done, and costs will be saved and, if not, then we
will have to come back at some later stage.

HIS HONOUR:  On that approach, the only matter then to be

determined this morning would be the injunction

sought by the plaintiff.

MR MORRIS:  Yes, Your Honour. There were a couple of brief

matters I wanted to say in reply to my learned

friend's submissions on that. My learned friend

took Your Honour to the Australian Capital

Television case again and, as I understood him, the

Solicitor submitted that that was a case in which

there was immediate and compelling detriment, or words to that effect, to the plaintiff. Really,

Your Honour, with respect, that was not the case at

all. Indeed, as the Chief Justice observed at the

top of page 217, in the second column:

There is as yet no specific threat by the

defendants to take any action against the

plaintiffs under the legislation.

This is to be contrasted with the situation here

where there is a very specific threat by the

trustee to file the certificate and an even more

specific withdrawal by the trustee of his

undertaking not to do so.

Now, the situation in Australian Capital

Television was that, as our learned friend says, the television station was losing advertising

revenue but only because the television station was

concerned as to its legal rights and wanted some sort of interlocutory protection, but it was not	anything which the Commonwealth or an officer of
the Commonwealth or a person purporting to act
under Commonwealth power was doing or threatening
to do which created that problem. It was simply
the uncertainty as to the state of the law. This
is a very different situation where a person
purporting to exercise power and, in our
submission, judicial power, is threatening to
exercise that power immediately.

HIS HONOUR:  Yes, thank you.

Your Honour, our learned friend also referred to the dictum of the Chief Justice in the

Skase 22 11/2/93

Castlemaine Tooheys Ltd case and, again by way of

reply, we simply point out that that dictum - that

is the dictum containing the words "in the absence

of compelling grounds'' - is preceded on pages 154

and 155 by an analysis of the circumstances in

which the Court has in the past, and one can only

presume will in the future grant interlocutory

relief in constitutional matters. The passage most

directly in point is on page 155, about point 7,

where the Chief Justice said - and I am reading

from the second sentence of the last paragraph on

that page:

The decisions in this Court to which I have already referred demonstrate that there are a variety of situations in which the Court, on a

proper balance of convenience, will restrain

enforcement of a statute in aid of a

plaintiff's constitutional right. In arriving

at a balance of convenience the Court will

take into account the seriousness of the

conduct enjoined by the statute and the damage

to the public interest that may be caused by

restraining its enforcement. And in some

cases the balance of convenience may be
affected by the Court's perception or
evaluation of the strength of the plaintiff's

case for invalidity.

So, really, the dictum that our learned friend

relies on, in our submission, has to be read in the

context of that more general statement.

Your Honour, the third thing that I wish to

say in reply is this: our learned friend, if I

took his words correctly, characterized this

application as an attempt to enjoin enforcement of

an important provision of the bankruptcy law, and I

do not purport to quote my friend precisely, but

that was the effect of his submission.

May I make it perfectly clear that my client

does not seek, in these proceedings, to restrain

enforcement by any means. If Mr Donnelly wishes to

go to a supreme court or a district court or the

Federal Court and commence an action before a judge in a court properly constituted to recover the

judgment that he requires, my client seeks nothing

to prevent him to do that. What is sought to be

prevented is this public trustee, this accountant,

exercising the judicial power of the Commonwealth.

That is all that is sought to be restrained, not

the enforcement by any other lawful means of the
rights conferred on the trustee and the obligations

conferred on the bankrupt under the terms of the

legislation. Those are my submissions.

Skase 23 11/2/93

HIS HONOUR:  Yes, thank you, Mr Morris.

In the light of the discussion that has taken

place this morning, the substantive matter can
proceed no further. So far as the application for an interlocutory injunction is concerned, I am not
persuaded that such an order should be made, at any

rate at this stage.

The only issue before the Court is one of

constitutionality. The authorities to which I have

been referred, culminating in the recent judgment

of the.Chief Justice in Australian Capital

Television Pty Ltd v The Commonwealth, (1991)

66 ALJR 214, reflect the strong reluctance of the

Court to grant interlocutory relief pending the
determination of an action in which the validity of

a statute is challenged on constitutional grounds.

It is true that what the Chief Justice said in

Australian Capital Television at page 217, echoing

what he had said in an earlier authority, namely

that compelling grounds were required before an

injunction would be granted in these circumstances,

must be read in context.	The principle,
nevertheless, is clear.

It might be said against the approach which I

have just indicated that here there has been a

withdrawal of an undertaking given by the defendant

trustee that he would not file the certificate

without notice to the plaintiff. That withdrawal

of undertaking is contained in a letter dated

10 February 1993 which concludes:

I will not, however, file the section 139ZG

certificate prior to the outcome of this

Thursday's hearing in the High Court in

Canberra.

It does not follow from that that the trustee

is indicating an intention to file the certificate

following the outcome of today's hearing. Indeed

it would be surprising if he were to do so in the

light of what has been discussed this morning,

namely that there is a challenge on foot to the
validity of this section of the Bankruptcy Act. If
the trustee were to file the certificate and have

the benefit of a judgment, he clearly would have to

give serious consideration as to whether any

further steps could be taken with propriety, given

the fact that this challenge is before the Court.

These matters seem to me to point to the

undesirability of granting an injunction at this

stage. I am not persuaded that the plaintiff will

suffer any detriment if an injunction is refused,

Skase 24 11/2/93

basically for the reason I have already given and

because it is by no means clear that, armed with a

judgment, the trustee at this time would be able to

do anything adverse to the plaintiff's interests.

If occasion does arise which indicates that

the plaintiff may suffer some detriment by reason
of the filing of the certificate and the existence

of a judgment if those events take place, that will

be an appropriate time to consider whether an

injunction should be granted.

In the light of that, Mr Morris, I suppose all

I am really being invited to do is to adjourn this

matter. In a sense there is no matter other than

the interlocutory injunction which I have refused.

The summons does not seek any other relief, or does

it?

MR MORRIS:  No, it does not, Your Honour; no other, as it

were, substantive relief.

HIS HONOUR:  I am not sure what I am adjourning, but I am

prepared to adjourn whatever it is that is before

the Court at the moment.

MR MORRIS:  Would Your Honour be prepared to entertain an

application of a different kind? That is for I

think what is sometimes referred to as a

Paringa-type injunction pending appeal from

Your Honour's decision just pronounced.	I make
that application on this basis:	Your Honour has

given effect to dicta of the Chief Justice, but

there is, so far as I am aware, no decision of the

Full Court of this Court adopting the principles

expressed by the Chief Justice in those cases.

It is our submission that it is wrong in

principle that the Court should adopt, in

proceedings where a constitutional point is raised,

a different approach from that which the Court

adopts in any other injunctive proceedings; that

is, the approach of determining whether there is a

serious question to be tried and then determining

the balance of convenience. The mere fact that the

issue raised is a constitutional issue, rather than

an issue as to whether a law of a lesser category

has been complied with or an issue of private

contractual or tortious rights, in our submission

should not, as a matter of principle, guide the

Court's approach on applications for interlocutory injunctive relief.

HIS HONOUR:  I rather thought that the reasons I had

expressed went beyond considerations that were

referred to by the Chief Justice in Australian

Capital Television.

Skase 25 11/2/93

MR MORRIS:	I understand that, yes, Your Honour.
HIS HONOUR:	And looked in effect at the balance of

convenience what detriment the defendant might

suffer if an injunction were granted and what

consequences there might be for the plaintiff if an

injunction were refused. I am not sure how much

further we can take the matter.

MR MORRIS:  Your Honour, the central difficulty is that

however clearly Your Honour expresses yourself, as,

with the utmost respect, Your Honour has done in

your reasons so far, the refusal of an

interlocutory injunction may well be viewed by

Mr Donnelly as a success in these proceedings and

there is some sort of vindication of his withdrawal

of his undertaking and as an invitation from the
Court to Mr Donnelly to proceed in the way that he

has threatened to do.

HIS HONOUR:  I think if you fax him a copy of the

transcript, that should rapidly remove any

possibility that he would reach that conclusion,

because among other things, I have I thought

flagged very strongly the consideration the trustee

would have to give to proceeding further and

incurring expense in the light of the challenge to

the validity of the section.

MR MORRIS:  I cannot take my submission any further,

Your Honour. I do apply, as I say, for a

Paringa-type injunction.

HIS HONOUR:  I am not persuaded, Mr Morris, that an

injunction is justified in those circumstances, but

I would suggest, if suggestion is necessary, that

when the transcript is available, a copy be made

available to the trustee without delay.

MR MORRIS:  Thank you, Your Honour.

HIS HONOUR:  What is it that I am adjourning?

MR MORRIS: In a sense, I suppose it is appropriate that the

summons be dismissed, since the relief sought has

not been granted.

HIS HONOUR: That is up to you.

MR MORRIS:  But I wonder whether - there is no other

proceeding before Your Honour to be adjourned, so

it is really a matter of the parties either

reaching consent - and of course the regard - or a fresh summons being taken out at a later stage to apply for appropriate orders.

Skase 26 11/2/93

HIS HONOUR:  That might be the best, and then simply there

is an action on foot initiated by the writ which no

doubt will be followed by a statement of claim and

the action can take the usual course in those

circumstances.	I do not imagine any question of
costs arises.

MR MORRIS:  I would ask Your Honour to reserve the costs of today's proceedings.

HIS HONOUR:  Very well. Mr Solicitor?

MR GRIFFITH: ¥our Honour, as to further proceedings, we

have not had experience of a case where a question

has been reserved by a judge without a summons to

enable the judge to consider whether the question

is in order and that the issue now is that the

plaintiff wishes to rely on are stated in a

succinct way. Your Honour, we also feel that in

the circumstances the plaintiff should file a

statement of claim so that we can see what the

basic claim is. As it seems the plaintiff is at

common ground, the matter should proceed with

dispatch. Perhaps the time under the rules should

be abridged rather than let the rules operate

according to the terms.

HIS HONOUR:  I rather understood from Mr Morris that he

wants to leave himself free, as it were, to take whatever further steps he considers appropriate.

If the summons for interlocutory relief is

dismissed, then there is simply an action on foot
and the plaintiff can take whatever steps are

appropriate.

MR GRIFFITH: Yes, Your Honour, it is entirely up to him.

Perhaps we could indicate to Your Honour that we

would concur in a question being reserved upon a

statement of claim being filed.

HIS HONOUR:  You can get back to the Court at short notice

if necessary.

MR GRIFFITH: If Your Honour pleases.

HIS HONOUR:	In those circumstances, it seems to me that the appropriate course is to dismiss the summons dated
8 February 1993, reserve the question of costs and
make no further order in the matter.
MR GRIFFITH:	I am sorry to rise to my feet yet again,

Your Honour, but on the question of costs, of

course, as an intervener we never apply for costs,

but we would not want to leave today leaving open

the possibility that there might be an application

against us.

Skase 27 11/2/93

HIS HONOUR:  It did not occur to me that the reservation

misunderstood him.

sought by Mr Morris was with a view to saddling the

MR MORRIS:  In my submission, Your Honour, they should be

reserved generally, because the Commonwealth has

appeared here. Whatever my learned friend

announced to be his intentions, he has addressed
arguments specifically in relation to the

injunction question.

MR GRIFFITH:  Your Honour, my friend is inviting me to give

up a long-standing principle and ask for costs.	I
do not intend to do that, but I ask for an order
that lets me escape without any possibility that
any argument for costs will be raised after today.

HIS HONOUR:  I think that can take care of itself, or I hope

it can, but Mr Morris has asked that the costs of

today's application be reserved generally, and that

seems to me to be an appropriate order.

MR GRIFFITH:  I oppose that, Your Honour. I ask for an

order that excludes the Attorney from any

application for costs.

HIS HONOUR:	There will be an order that the costs of today's application be reserved, anyway.
MR MORRIS:	Thank you, Your Honour.
HIS HONOUR:	The Court will adjourn.

AT 11.10 AM THE MATTER WAS ADJOURNED SINE DIE

Skase 28 11/2/93