Snowdon v Dondas

[1996] HCATrans 198

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Sydney  No S95 of 1996

B e t w e e n -

WARREN SNOWDON

Petitioner

and

NICHOLAS MANUEL DONDAS

First Respondent

THE ELECTORAL COMMISSION

Second Respondent

Summons for direction

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 29 JULY 1996, AT 10.17 AM

Copyright in the High Court of Australia

MR J.A. McCARTHY, QC:   Your Honour, I am pleased to say that I have the consent of all the parties, under section 370 of the Act, to appear for the petitioner in this matter, (instructed by McClellands) but to the extent that one would need the leave the Court, I would seek the leave of the Court also.  I think that is the position also with Dr Kenny.

HIS HONOUR:   What is that?  You have got the consent of all parties?

MR McCARTHY:   Under section 370 of the Electoral Act one needs either the consent of all the parties or the leave of the Court to be represented.  Mr Snowdon seeks to be represented by counsel, to wit myself, in relation to this matter.  That is consented to by the other parties and I suppose, your Honour, to the extent that the leave of the Court might have been necessary, I would seek that in relation to an appearance.

HIS HONOUR:   Yes.  I read it as giving you a right to appear by counsel.

MR McCARTHY:   Thank you.  I appear for the petitioner.

HIS HONOUR:    Very well.  Do I take it that Ms Banbury appears for the first respondent.

MS B.A. BANBURY:   I appear for the first respondent, Mr Nicholas Dondas.  (instructed by Allen, Allen & Hemsley)

MS S.C. KENNY:   I appear for the second respondent.  (instructed by the Australian Government Solicitor)

MR McCARTHY:   Your Honour, in this matter there are two issues that are raised in the petition concerning the exclusion of provisional votes in the count for the Division of the Northern Territory at the recent federal election.  In the petition the main point in terms of both its ramifications for the petition and in terms of the directions for this hearing relates to the allegation of the petitioner that approximately 2,000 votes were excluded by the servants and agents of the second respondent, the Electoral Commissioner, on a basis that the petitioner says is contrary to law.

Now, in relation to that allegation, in terms of the facts both as to the happening of the events, the reasons why they happened and the number of votes that are affected, there is really no dispute between the parties.  There is also no dispute between the parties, your Honour, that if that question is decided unfavourably to the petitioner, then the petition should not proceed any further whatsoever and the Court should not be concerned with any other issue that is raised in this petition.

There has been discussions between the parties as to what would be, in those circumstances, the most appropriate way to proceed and by consent I put forward to your Honour a programme which would reflect that understanding of the issues between the parties and a proposal, if it is convenient to the Court, as to how that first issue, if I could put it that way, ought to be resolved.  What the parties have - and I just put it in general terms, your Honour - I have a much amended draft in my hands, but it can be, in the course of the day, properly revised subject to the Court’s approval, but what would be proposed, your Honour, is that by 13 August there would be an agreed statement of facts in respect of the issues referred to in paragraphs 10 and 11 of the petition.  If I could take your Honour to paragraphs 10 and 11 ‑ ‑ ‑

HIS HONOUR:   I have read those paragraphs.

MR McCARTHY:   Thank you.  Of the petition would be filed and served by 13 August.  The petitioner would file and serve written submissions in respect of the issues raised in those paragraphs by 21 August.  The first and second respondent would file and serve submissions in reply on or before 28 August, and thereafter in relation to those issues, your Honour, the matter would be ready for hearing.  It is the parties’ estimate that the matter would not exceed one day and certainly, with written submissions, it would be well and truly completed within one day on that issue.

HIS HONOUR:   What is the issue?

MR McCARTHY:   The issue is simply this that, in the rest of Australia, subdivisions as an electoral administrative and divisional sectionalising of a seat have been abolished except in one respect in a corner of the seat of Kalgoorlie.  The only other seat where these are preserved now is in the Northern Territory.  The Electoral Commission has sought to abolish these in the past but the subdivisions in the Northern Territory provide the boundaries of the seats for the Legislative Assembly of the Northern Territory and the joint roll facilities on a subdivisional basis has provided the rolls for each of these seats in a way in which this can be efficiently maintained for the Northern Territory legislature.  Elsewhere in Australia, except for this area of Kalgoorlie, they have been abolished.  This has had the effect in the rest of Australia that if an elector is on the electoral roll for a certain area in a seat which could broadly be called a subdivision - I am not taking you to the specific sections of the Act at the moment.  Your Honour asked what is the broad point.  The point is this:  in the rest of

Australia, if you move within the same division, even though your name is not on the roll at the place where you are secondarily found on election day, if your previous address was in the electorate and your present address is in the electorate, you will be provided with a vote and you will be given a vote in the federal election.

In the Northern Territory, if you move outside your subdivision and your new address, even though it is in the Northern Territory, is not in the subdivision, in the Northern Territory the electoral officers will reject the application for a provisional vote in those circumstances.

HIS HONOUR:   What is the statutory provision that covers this?

MR McCARTHY:   It is covered by - Schedule 3 is the method by which counting takes place in the ‑ ‑ ‑

HIS HONOUR:   That is counting, but we are not concerned with counting, are we?  We are concerned with the admission of an elector to vote.

MR McCARTHY:   That is covered by a series of provisions, your Honour, within the Act itself which are in Division ‑ ‑ ‑

HIS HONOUR:   What sections are we concerned with here, Mr McCarthy?

MR McCARTHY:   We are concerned with a series.  The claims for enrolment and transfer can be found in section 99 of the Act; for compulsory enrolment and transfer, section 101; the change of the names to the roll is at section 98.

MS KENNY:   Your Honour, might I assist in part.  One may trace through the significance of the subdivisional provisions if one looks to section 99(3) of the Act and your Honour will see that:

Subject to sections 94, 95, 95AA, 96 and 96A and Part XVII, a person is not entitled to have his or her name placed on the Roll:

.....

(b)  for a Subdivision other than the Subdivision in which the person lives;

So that is where the problem commences.  Then it continues.  If one looks to section 114 of the Act your Honour will see that under subsection (2):

The DRO for a Division shall object to the enrolment of a person for a Subdivision of that Division if there are reasonable grounds for believing that the person is not entitled to be enrolled for that Subdivision.

So that from time to time, pursuant to section 114 and related sections, a person who is no longer living in a subdivision may find that their name is removed from the roll.  There are provisions which reflect that in subsection (3) of section 118.  Your Honour will see that:

If it appears to the DRO that the challenged elector is not entitled to be enrolled for the relevant Subdivision, the DRO shall remove the elector’s name from the Roll for that Subdivision.

What happens is that when a person comes to vote and it appears that they have changed or crossed over subdivisions, the provisions of section 235 of the Act come into play.  Under that section a person - and I refer your Honour to section 235(1) - a person whose name cannot be found on the roll is given a provisional vote.  If a person’s name had been removed because they had crossed subdivisions - their name would have been removed pursuant to section 118 or the Act - in that event a person is given a provisional vote and when it comes to the question of scrutiny, the ‑ ‑ ‑

HIS HONOUR:   Before you leave that, in this case, are the facts that are agreed that these names were not on a roll for any subdivision?

MS KENNY:   I would not answer that in the affirmative.  It may be that some electors had their name on the electoral roll in relation to one subdivision but when they came to vote they declared an address which was in fact in another subdivision.  That is one possibility.  The more likely possibility is for most of these electors their names were taken from the roll altogether because they had moved subdivisions.

HIS HONOUR:   That seems to me to raise two very distinct questions.

MS KENNY:   It may, your Honour, yes.

HIS HONOUR:   And therefore there is no issue that is right for determination until those facts are determined.

MS KENNY:   In fact, your Honour, I do not wish to step ahead of my learned friend, Mr McCarthy, but one of my applications was to be a request for particulars of the petition, to elucidate what it is that the petitioner

actually says is the defect in relation to this election.  If the petitioner were to say the defect was occasioned by the removal of people from the roll, then the case would be a lot more straightforward and there would be only one issue to determine.

HIS HONOUR:   I read paragraph 10 as dealing with electors who were on the roll but were not entitled to be on the roll.

MS KENNY:   And similarly, your Honour, that is the way in which the second respondent understands it.

HIS HONOUR:   Perhaps I can ask Mr McCarthy.

MR McCARTHY:   It is the case, your Honour, that there is perhaps that point involved.  I am not sure how many would be precisely affected by that, but might I say that the main point ‑ ‑ ‑

HIS HONOUR:   No, it is not a question of main point; it is a question of facts upon which a point arises.

MR McCARTHY:   Oh yes.  As I am instructed, the facts on which this arises are in relation to provisional votes where the elector has declared an address outside of the subdivision for which there was actual enrolment in the election.  That is that they are found in terms of their address to be within the Division of the Northern Territory but not within the subdivision where their name is recorded as having an address at the time of the closing of the roll.

HIS HONOUR:   Does that raise the question whether 235(1)(a) applies at all?

MR McCARTHY:   It can in part, but - I cannot say that it cannot, your Honour.  I am not that apprised of the facts to that extent.  As I had understood it, that can certainly arise, that persons who ask for provisional votes are found - that the class that we are adverting to can fall within that category and also can fall within the category of having an address registered on a certified list somewhere else for the division.

HIS HONOUR:   Mr McCarthy, I think I should stand this down for you to get instructions because at the moment, as I understand it, there are two possibilities in relation to paragraph 10.  One is that there are names on, say, subdivision A which should be on subdivision B but are nonetheless on the roll for the division, and there are others who are not on either subdivision A or subdivision B and who claim to be entitled to a provisional vote who were refused a vote.

MR McCARTHY:   That is so.

HIS HONOUR:   Then those are two quite distinct questions and until one knows that there are issues to be determined under both of those categories, there seems to be little purpose in proceeding with the directions hearing.

MR McCARTHY:   Your Honour, that would be something that I would not need a great deal of time to clarify.

HIS HONOUR:   No.  I thought perhaps if I stood it over for an hour.

MR McCARTHY:   That is what I had in mind.  We can certainly get to the bottom of all of this in the course of the morning, if that is convenient to the Court. 

HIS HONOUR:   Yes.  Let it stand over now until 11.30 and you can find out.  We will deal with the next matter.

MR McCARTHY:   Thank you.

AT 10.35 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 11.58 AM

MR McCARTHY:   Your Honour, we adjourned on the basis of the parties clarifying between themselves and to be able to explicate to the Court where the petitioner, in relation to paragraphs 10 and 11 of the petition - what was the nature of the allegation concerning those provisional votes in relation to section 235 of the Act.  I have sought instructions in relation to this issue, your Honour, and the position is this, that what is alleged there is an allegation that the elector’s name cannot be found on the certified roll for the division, that is, section 235(1)(a), applications, and that is not in dispute between any of the parties.

HIS HONOUR:   What is not in dispute, Mr McCarthy?

MR McCARTHY:   That the electors are electors that fall within the category of section 235(1)(a) of the Act, being provisional voters where:

the person’s name cannot be found on the certified list of voters for the Division for which the person claims to vote.

What is being agreed, we set out further to the Court, is this, that pursuant to Schedule 3 of the Act and to the administrative arrangements of the AEC in relation to the counting of such votes, the electors referred to in paragraph 10 and 11 of the petition were identified as electors who had moved out of the original subdivision and at the time of the election had an address within the Northern Territory Division but not in the subdivision which included their previous address, and that the application for votes of this group of electors were rejected by the returning officers.

HIS HONOUR:   In other words, applications were made by persons to vote who lived in the Northern Territory who did not have their name on the roll?

MR McCARTHY:   Yes.

HIS HONOUR:   Simple as that.

MR McCARTHY:   Yes.

HIS HONOUR:   Is that right?

MR McCARTHY:   Well, they were not on the certified list of votes for the division in terms of section 235(1)(a).  Now, in relation to the administration of that, there is rolls for the division and the identification of such electors throughout Australia has a series of procedures that are carried out by the AEC through their returning officers and it was in that way that these electors were rejected.

Your Honour, what is said is that in relation to such voters elsewhere in Australia, if the address is within the division, that is the address at the time of the election is within the division, and their previous address as shown by electoral rolls was also within the division, those persons are given a vote for the division.

HIS HONOUR:   Under 235(1)?

MR McCARTHY:   Yes, they are given a vote.  Not so in the Northern Territory where, if you are not within the subdivision, even though you are in the division, your vote is rejected.

HIS HONOUR:   So, in other words, the ground for rejection is that once upon a time you were on the roll for a different subdivision from that for which you now claim to be entitled to vote?

MR McCARTHY:   Yes, that is, that you had an address within the division.

HIS HONOUR:   This is agreed fact, you say

MR McCARTHY:   Yes.

MS KENNY:   No, your Honour, not in that particular form.  The ground for rejection is that a person’s name did not appear upon the roll.  When that occurs, the provisions of section 235 apply and that person will be given a provisional vote.  That would be so for every single voter in Australia and it was so in relation to electors in the Northern Territory.  What then occurs is that by virtue of section 266(3) - and I will not take your Honour to it immediately - Schedule 3 of the Act is picked up and Schedule 3 sets out rules in relation to the preliminary scrutiny for declaration votes.  A vote under section 235 is a declaration vote  Preliminary scrutiny takes place in accordance with Schedule 3.

For most voters in Australia who make a declaration vote, it will be found that providing their address is still within the division, their declaration vote will go into the count.  However, in the Northern Territory what has happened with these voters is that when the declaration is looked and the address is looked at, it appears that the relevant elector crossed subdivisions so that his or her name could not be put back on the roll in a notional way and they lost the vote.  But all that rather tangled and turgid way of putting it stems from the clauses which govern preliminary scrutiny in Schedule 3 attached to the Act.

HIS HONOUR:   At all events, there should not be any difficulty about the agreed facts on it, is that the - - -?

MS KENNY:     No, your Honour.  My disagreement with my learned friend stems from the way in which he put the ground of rejection.  It is not that ‑ ‑ ‑

HIS HONOUR:   Yes, the facts can be agreed.

MS KENNY:     They can, your Honour, yes.

HIS HONOUR:   And the question will then be whether or not, in the Northern Territory, having regard to Schedule 3 or other provisions of the Act, these votes ought to have been included in the scrutiny or ought not?

MS KENNY:     That is it, your Honour.

HIS HONOUR:   That should be fairly easily - - -

MS KENNY:     I think my learned friend and I would estimate half the day ought to solve the argument.

HIS HONOUR:   But it is a question of statutory construction?

MS KENNY:     It is, your Honour.

MR McCARTHY:   Yes.

HIS HONOUR:   And is that the only issue now or do we have to look also - - -

MR McCARTHY:   That is the only issue that should trouble the Court at present.  If the petitioner is successful in that argument, your Honour, there may be other directions that the Court would need to give but it would be inappropriate to trouble your Honour or to trouble any of the electoral officials or others about other aspects of the case in a formal way until this argument is resolved.  If the petitioner is unsuccessful, your Honour, no other part of the petition will be pressed.

HIS HONOUR:   Now, if the petitioner, however, is successful, what then?

MR McCARTHY:   Two things:  firstly, it will have already been a part of the agreed statement that a certain number of votes have been affected which will be a figure, I understand, in the range of about 1500.  There would be arrangements made in those circumstances - we would apply for arrangements for the Court to direct the AEC to supervise a counting of those votes which could take place either in Canberra or in - - -

HIS HONOUR:   The ballot papers have been preserved, I take it?

MR McCARTHY:   Yes, the ballot papers have been preserved and they have been identified and steps have been taken in relation to that.  That would be point one.  Point two:  paragraph 12 of the petition would then come into play and would involve and could involve time and directions by this Court.

Your Honour, if I could put it this way:  what is involved there is a situation, as far as - the petitioner would be taking this matter this way:  imagine a situation where someone who lives in Alice Springs is up in Darwin at the time of the election and fills in an absentee vote but fills it in in such a way that the name is just given - he just gives his own name.  For instance, that he wrote “Joe O’Malley” on the roll whereas it is Joseph Michael Patrick O’Malley who is on the electoral roll, and he just wrote “J. O’Malley” and signed it as “J. O’Malley” and for some reason or other the electoral office took the view that that is not the J. O’Malley who is on the roll for Alice Springs and has rejected it.  We say that there are, by analogy, something in the range of about 400 votes that are in that category, that is, that the petitioner would point out to the Court that these voters had been wrongly misidentified and should be properly identified as having an enrolment, that is, they are people who are on the electoral roll and their vote has been wrongly rejected.

What we would be looking to use is the electoral roll and the enrolment card and the provisional vote.  It would be purely a paper case, your Honour, and it would involve about 400 votes.  We think it could take, with proper directions by the Court - there may be a number of days in which the parties settle how many of these they cannot agree on and there may be a balance that is left that will have to come before the Court.  Your Honour, we would be looking at perhaps three to four days for an identification exercise.   There is no argument between any of the parties as to what the law is that is applicable and we are not looking at a case, your Honour, where we are going to call witnesses to say, “This is my signature” or, “This is my vote” or so on.  It will be purely a matter of having the electoral roll in front of the Court and the enrolment details that back that particular elector. 

In other words, your Honour, if we are successful, there may be a process that would take about four days involving identification of voting and then counting of various votes.  Ultimately - - -

HIS HONOUR:   Mr McCarthy, is there any reason why the following procedure should not be adopted, namely:  the statement of agreed facts, to which, of course, the respondent as well as the Australian Electoral Commission would have to be party - - -

MR McCARTHY:   Yes.

HIS HONOUR:   - - - in relation to the questions arising under paragraphs 10 and 11, followed by a reference of the question of law on those facts to a Full Bench of this Court, followed by an order if the appellant should be successful, remitting the matter for trial to the Supreme Court of the Northern Territory?

MR McCARTHY:   I have to say, your Honour, that all of us were anticipating that your Honour, perhaps, would make an order along those lines and I certainly have no particular point to offer in opposition to that as being an appropriate course of action.  I believe there would always be difficulties in the Court perhaps finding that amount of time for that sort of issue in relation to a Court of Disputed Returns - - -

HIS HONOUR:   The real problem is whether or not one can split the trial into two.

MR McCARTHY:   Your Honour, certainly it has been the case that my learned friend, Dr Kenny, and myself have given some initial thought to that, again on the basis that we thought your Honour might bring this matter up.  There would appear to be nothing, in terms of the statute itself, that would preclude that in express terms and it would seem - well, now, submitting for myself, your Honour, that that would seem an appropriate approach for a court that has plenipotentiary jurisdiction in relation to these matters, that certain issues could be settled at the level of the High Court.  Certain other matters of a factual nature could be determined by other tribunals that are given statutory reference in the Commonwealth Electoral Act but, of course, the final orders will be brought back to the High Court itself for determination.  That is what we assume.  Your Honour would not envisage the Supreme Court of the Northern Territory making the final orders in the matter, I take it?

HIS HONOUR:   It depends what is meant by “tried” in the Act, I think.  In other words, if it is tried and determined, it may be that the matter would be remitted to the Supreme Court of the Northern Territory to be tried and determined in the light of the answer given by the Full Court to the question of law first resolved here.  On the other hand, if the petitioner were unsuccessful, then I presume the matter would then be tried and determined in this Court - - -

MR McCARTHY:   Then and there.

HIS HONOUR:   - - - as soon as the Full Court had given its ruling.

MR McCARTHY:   Yes.  I mean, your Honour, I state to your Honour now that if the petitioner is unsuccessful in relation to the argument concerning paragraph 10 and 11, there will be only consequent orders sought in relation to the dismissal of the petition.  The petitioner has been advised, your Honour, that if that argument is unsuccessful, the rest of the argument, though it may have validity, could not affect the result of the election over that.

HIS HONOUR:   Yes, I see.

MR McCARTHY:   Your Honour, would it be of any assistance in relation to the further argument before the Full Court on paragraph 10 and 11 or in connection with that, that there is any submission made about the appropriateness under section 354 of the reference of the rest of the case to the Northern Territory?  I mean, I can say that this is a matter that both Dr Kenny and I have given some thought to and both of us believe the High Court has the power to make that series of orders but I do not know if that is something that we would need to trouble the High Court in relation to.

HIS HONOUR:   I do not think it is a question that needs to go to the Full Bench.  I think it can be dealt with satisfactorily by a single Judge.  Let us take, first of all, the Full Bench aspect of it which I think should be determined by the Full Bench and that is the question of the operation of the Act on the votes concerning paragraphs 10 and 11 with which paragraphs 10 and 11 are concerned.  How long would it take to get the statement of facts ready for that?

MR McCARTHY:   Your Honour, we believe that we can have the statement of facts ready by 13 August; two weeks time.  The petitioner would file written submissions by 21 August and the first and second respondents would be in a position to file and serve their submissions by 28 August, if that is convenient to the Court, and the matter could then come back for either further directions from your Honour as to a date or your Honour might give us leave to approach the Registry to obtain a date if your Honour has made a direction that the matter be put before the Full Court.

HIS HONOUR:   The date which I thought, if the matter was ready for hearing, the case should proceed on is some date in the sittings of the Full Court appointed to commence on 2 September.  Now, the draft programme for the sittings of 2 September has already been settled but that can be adjusted.  Not “settled” perhaps but discussed.  That can be adjusted to fit this case in but it will be necessary to make sure that the matter is ready to proceed on that date or at that time.

MR McCARTHY:   Your Honour, would a directions hearing towards the end of August be of value to the Court at that stage?

HIS HONOUR:   I think perhaps it might be desirable to see the draft statement of agreed facts. Provided they are in a satisfactory form, the form of the submissions can be left to the parties but if 13 August is the date in which you expect to have the statement of agreed facts prepared, I will be in Sydney on 14, 15 and 16 August and I would be prepared to list the matter for a further directions hearing at that time on the basis that a date would be fixed probably in the first week of the September sittings.

MR McCARTHY:   Thank you, your Honour:  16 August, your Honour.

HIS HONOUR:   Is that agreeable to all parties.

MR McCARTHY:   That is agreeable.

MS KENNY:     It is, your Honour.

HIS HONOUR:   Yes, very well.  Well then, I think all that needs to be done at this stage is to adjourn this directions hearing to Sydney on Friday, 16 August.

MS KENNY:   May I trouble Your Honour with a very straightforward request?

HIS HONOUR:   Yes.

MS KENNY:     I signified earlier that I would make an application for particulars of certain paragraphs of the petitioner’s petition.  In light of what Mr McCarthy has said in relation to paragraph 12, I would press that application.  I do not understand that it is, in fact, opposed.

MR McCARTHY:   No, it is not.

MS KENNY:     I understand that that is, in fact, the case.  Your Honour, might I have leave to serve a request for particulars of paragraphs 10 through to 13 of the petition?  I will do so by 2 August which is Wednesday of this week.  I understand that my learned friend will undertake to respond on or around about 6 August.  So, that ought not to delay the timetable.

HIS HONOUR:   Yes.

MS KENNY:     But it would make it easy from the point of view of an agreed statement.

HIS HONOUR:   Are you in agreement with that?

MR McCARTHY:   I am.  Your Honour, that can be noted or your Honour may take this as being the note on the record itself.

HIS HONOUR:   That is sufficient, I think, as an undertaking to provide those particulars on request.  Ms Banbury, what about your position?

MS BANBURY:   Yes, I am in basic agreement with what has been said.

HIS HONOUR:   You are in agreement with the course to be followed?

MS BANBURY:   Yes, that is correct.

HIS HONOUR:   And you have no other applications to make?

MS BANBURY:   No, your Honour.

HIS HONOUR:   Very well.  Then the further hearing of this matter will be adjourned to Sydney on 16 August.  At what time?

MR McCARTHY:   Would your Honour be sitting on special leaves on that day?

HIS HONOUR:   No.

MR McCARTHY:   In those circumstances - might I just have a word to my learned friend?  What would be a convenient time.

HIS HONOUR:   Yes.  I imagine counsel who comes from Melbourne might have something to say about it.

MS KENNY:     Thank you, your Honour.

MR McCARTHY:   That is what I was just about to say.  Your Honour, apparently, would have been in Sydney for two days at that time.  Your Honour, I would attempt to meet Dr Kenny’s convenience.  Would 2 o’clock or 2.15 on Friday be inconvenient to the Court or a time, perhaps, towards midday?

HIS HONOUR:   I think perhaps towards midday might be a safer thing in case there is some problem that arises over the luncheon adjournment.

MR McCARTHY:   Would midday itself be a - - -

HIS HONOUR:   Yes.  What about Ms Banbury.

MS BANBURY:   That is fine, your Honour.

HIS HONOUR:   Very well, make it 12 noon on Friday, 16 August.

MR McCARTHY:   Could costs be reserved in relation - - -

HIS HONOUR:   Costs will be reserved, yes.  On 16 August, I would be grateful for some assistance from the parties as to the jurisdiction of the Court to hear and determine an aspect on reference to the Full Court followed by an order of remittal for trial to the Supreme Court of the Northern Territory.

AT 12.22 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 16 AUGUST 1996