Solomons v District Court of New South Wales and Ors S150/2001

[2001] HCATrans 642

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S150 of 2001

B e t w e e n -

CECIL GREGORY SOLOMONS

Appellant

and

DISTRICT COURT OF NEW SOUTH WALES

First Respondent

STATE OF NEW SOUTH WALES

Second Respondent

THE QUEEN

Third Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 DECEMBER 2001, AT 10.17 AM

Copyright in the High Court of Australia

__________________

MR J. BASTEN, QC:   If the Court pleases, I appear with MS M.N. ALLARS for the appellant in this matter.  (instructed by John Bettens & Co.)

MR M.G. SEXTON, SC:   If the Court pleases, I appear with my learned friends, MR M.J. LEEMING and MS B.K. BAKER, for the second respondent.  (instructed by I.V. Knight, Crown Solicitor for the State of New South Wales)

MR D.M.J. BENNETT, QC:   If the Court pleases, I appear with my learned friend, MR S.J. GAGELER, SC, for the third respondent.  (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ:   There is a certificate from the Deputy Registrar to the effect that she has been informed by the solicitor for the first respondent that the first respondent does not wish to be represented at the hearing of this matter and will submit to the orders of the Court save as to costs.  Yes, Mr Basten.

MR BASTEN:   If the Court pleases.  Your Honours, we seek to make good four propositions.  The first is that the scheme of the Judiciary Act, which is to vest federal jurisdiction in State courts, should not be undermined by giving it a narrow or constrained operation in picking up State laws.

The second proposition is that the jurisdiction of the State court exercising State jurisdiction naturally includes laws and powers relating to the allocation of responsibility for the costs incurred in the proceedings.  Thirdly, the history and terms of the Costs in Criminal Cases Act place it squarely within that element of State jurisdiction.  Fourthly, the Costs Act is not a statute which cannot operate as part of the jurisdiction of a State court exercising federal jurisdiction.

KIRBY J:   Could I just ask a question, because I saw in your written submissions a suggestion that the operation of the law resulting in a State Act in effect burdening the consolidated revenue of the Commonwealth, rather ‑ ‑ ‑

MR BASTEN:   The State. 

KIRBY J:    ‑ ‑ ‑ other way round – would not do any offence to constitutional principle, and that that seems to be common ground.  It does not seem to be disputed but is not the consequence of your argument that something done and initiated by the Commonwealth for Commonwealth purposes ends up in burdening the consolidated revenue of the State, and that that offends a fundamental constitutional principle?  I know nobody seems to have taken this, but it is a matter that worries me.  If you deal with it at some point of time, I would be grateful. 

MR BASTEN:   Yes. 

GUMMOW J:   To continue what Justice Kirby said to you, it also offends section 45 of the New South Wales Constitution Act, which says, the Consolidated Fund of the State shall be appropriated “as may be prescribed” by an Act of the New South Wales Parliament on that behalf. 

MR BASTEN:   Yes.  The point is not taken against us, but our short answer to the point is really this:  that the Costs Act does not, in its terms, discriminate amongst prosecutors.  For the purposes of this proceeding, the Commonwealth Director is in the category of non-State prosecutors, but persons who are private individuals may equally be prosecutors under the criminal laws of the State, and the State accepts responsibility for the payment of costs which are incurred in the circumstances that a certificate may issue ‑ ‑ ‑

GUMMOW J:   You have to support your alleged operation of section 68 and 79 by force of something in the federal Constitution.

MR BASTEN:   Yes.

GUMMOW J:   What is the relevant head of power?  Then you ask yourself, “Has this relevant head of power been exercised?”, then perhaps, you say that the garnishee cases were an extreme example but they were based on 105A, the financial agreements.  Then perhaps you say that you would not rush to make a conclusion as a matter of construction that this is how the power is being exercised even if it were open for the Parliament to do so.

MR BASTEN:   Yes.

GUMMOW J:   You would be looking for something specific whereby the Commonwealth was burdening the State Consolidated Revenue Fund, and it is not there.  If I can add to that, sections 56 and 58 of the Judiciary Act make specific provision for meeting orders in federal jurisdiction where the State is a party, and it is out of - the expression is - “available moneys of the State”.  That respects section 45 of their Constitution Act.  “Available” means available under the appropriations.

MR BASTEN:   Yes.

GUMMOW J:   That is within the Judiciary Act itself.  You have to overcome all of those construction questions as well as the power questions, I think, before you win.

MR BASTEN:   I understand there is ‑ ‑ ‑

GUMMOW J:   I understand that all of them were articulated below, but it seems to me they are up front.

MR BASTEN:   Yes.

KIRBY J:   Adding to all that, this is what worried me, that all parties seem to be ad idem that no question arises under the Constitution. No notices have been given under section 78B.

MR BASTEN:   That is so.

KIRBY J:   I must say that these are matters that concerned me when I looked at the case.

MR BASTEN:   Yes.  It was obviously a matter which we would not have sought to raise, to suggest that the constitutional ‑ ‑ ‑

KIRBY J:   Of course not, but the Court cannot just ignore these things, because the end result of what you are seeking is a burden on the consolidated revenue of the State which seems to run into both State constitutional problems and federal constitutional problems as well as statutory problems.  You have just confined yourself to looking at the issue at the level of statute, which is two tiers down.  I am sorry to raise this at the outset, but it is a fundamental question that worries me, and no notices have been given and we do not have the bevy of talent that we had at the table yesterday ‑ ‑ ‑

MR BASTEN:   Yes.  Well, there is no doubt they can be required to return, if appropriate.  I am prepared to say something about it but obviously it is a large question, expressed in those terms, which it may be necessary for us to seek an opportunity to deal with separately.  In part, the way that we approached this matter was simply this.  The constitutional power, ultimately, must come back to 77(iii), possibly with some assistance from 51(xxxix), but I leave that to one side for the moment.  The investiture of federal jurisdiction in State courts ‑ ‑ ‑

McHUGH J: I would not leave out section 78 of the Constitution. It may not have much relevance but it does say that:

The Parliament may make laws conferring rights to proceed against . . . a State in respect of matters within the limits of the judicial power.

MR BASTEN:   Yes, indeed.  I am indebted to your Honour and I should not ‑ I suppose your Honour’s comment illustrates the point that I made before, namely that this really is a large question which it is difficult to deal with on the run when it has not been raised in the proceedings below or in the submissions in this case.

McHUGH J:   A certificate does no more than give you the right to call for the exercise of the discretion, and the Treasurer can refuse it.

MR BASTEN:   That is so, yes.

GAUDRON J:   I would have thought that was fatal to your case because whatever else, whatever section 68(2) of the Judiciary Act, or any other provision vesting jurisdiction in a State court, might do, it cannot vest non‑judicial power and it seems to me granting a certificate that the Treasurer may or may not decide to act upon is a long way short of judicial power.

MR BASTEN:   That, your Honour, also raises a constitutional question which has not been ‑ ‑ ‑

GAUDRON J:   Exactly, but it seems to me, as presently advised, to be absolutely fatal to your application whether or not it has been raised and I do not think you can come to this Court saying, “Well, it has not been raised against us”.  One is dealing with large questions and they have to be dealt with, in my view.

MR BASTEN:   That raises two questions, your Honour. If the Court is of the view that all of these issues need to be dealt with, as to whether this is the appropriate time to deal with them, both in terms of the way in which the case has been prepared for presentation today but also in terms of section 78B of the Constitution ‑ ‑ ‑

GAUDRON J:   The parties should have thought about it.  It seems to me that includes you.

KIRBY J:   That is why the Court has the procedural requirement that counsel have to certify that they have thought about it.

MR BASTEN:   Yes.

KIRBY J:   When I saw that I really wondered why has no one thought about this issue. To say it does not arise under the Constitution, it just seems to me to be plainly wrong.

GAUDRON J:   One remedy, I should have thought, if you have not thought about these issues, is to have your special leave revoked.

MR BASTEN:   It is a matter which could be dealt with by supplementary submissions, too, if that were – it may still raise an issue of some importance.  Your Honour, if I could come back to the way in which ‑ ‑ ‑

GUMMOW J:   I think we are at the starting point, though, you see.

MR BASTEN:   Yes.

GUMMOW J:   It would not really be a supplement, if you see what I mean.

MR BASTEN:   No.  I did not mean ‑ ‑ ‑

GUMMOW J:   I know that.

MR BASTEN:   Yes.  What your Honour is saying is that it is an issue which has to be addressed and it may be the issue ‑ ‑ ‑

GLEESON CJ:   I am not sure that that matter raised by Justice Gaudron is not a point that has been taken, looking at page 6 of the submissions of the third respondent in the middle of the page.  That is what I thought those submissions were directed to.  It says these “cannot arise in the context of a ‘matter’”.

MR BASTEN:   My understanding of the point which is raised there, your Honour, is that it is a question of the operation of the Costs Act in its own terms.  It seems to be – at least further down the page – a construction point, but the matter ‑ ‑ ‑

GLEESON CJ:   The argument was that section 2 cannot be picked up and applied as a surrogate Commonwealth law because of its relationship with the other provisions of the Costs Act.

MR BASTEN:   Your Honour’s comment was directed to the separate issue that Justice Gaudron raised, but that must itself involve a constitutional argument if it is put in the way that her Honour puts it.  I confess that we had assumed from the way that the answer to the question about 78B was put in these submissions that that was not so intended but there is an issue about the role of the certificate in relation to the subsequent provisions.  We would accept, in the way that the Commonwealth puts the matter, that the subsequent provisions do not arise in this context and that any issue as to the enforcement of the certificate or proceedings relating to the steps taken in relation to the certificate might well not be in federal jurisdiction and might be a separate and distinct matter, but that is not ‑ ‑ ‑

GAUDRON J:   In which event it is not picked up.

MR BASTEN:   That is so.

KIRBY J:   That is against your argument because you are trying to keep it within the matter within the ‑ ‑ ‑

MR BASTEN:   No, your Honour.  If I understand the argument correctly, the point which is being raised there is that the effect of the certificate does not of itself provide an entitlement to payment and there might need to be subsequent steps taken in order for the payment to be enforced and those steps would not arise in federal jurisdiction.  We merely say that the grant of the certificate arises as a part of the federal jurisdiction of the Court in relation to the criminal charge, not that the subsequent provisions necessarily are picked up in the same way.

GUMMOW J:   That all comes back to a construction you place upon section 68 and, perhaps, section 79 and the question is whether, if so construed, those provisions would be valid, and have them read down.

MR BASTEN:   Yes.  I do not deny that the ‑ ‑ ‑

GUMMOW J:   So I cannot see how we can escape 78B notices.

MR BASTEN:   Yes.  Your Honour, I am not suggesting that if the Court thinks, as it clearly does, that it is appropriate that those matters be dealt with and that they are the initial questions then, of course, they should be dealt with.

GUMMOW J:   They are the initial questions, because they are the federal law you are relying on.

MR BASTEN:   Yes.

KIRBY J:   And you would construe the Judiciary Act in order to be conformable with the Constitution. That is just orthodoxy.

MR BASTEN:   Yes.

KIRBY J:   I mean, I must confess I am very sympathetic to your client.  After all, on the arguments of the respondents, they have brought proceedings, he has succeeded and he falls between two stools and they offer no solution.  It is just bad luck.  It would seem very unfair to him, but we have to deal with the matter as a legal question.  What is your solution?  The Court has raised these questions.  Strictly speaking, counsel should have considered it.  The notice should have been given and we should be dealing with it in the ordinary way, but we are not.  So, how do we solve the problem?

MR BASTEN:   Well, I am mindful, your Honour, of the difficulty of dealing with it.

KIRBY J:   Does not 78B tell us that if this problem arises, federal Parliament has said we must stop and make sure the notices are given?

MR BASTEN:   Yes, your Honour, it does.

GUMMOW J:   I must say, Mr Basten, you are the person on your feet.  A lot of what I have been saying at any rate is directed to the relevant Solicitors‑General.

KIRBY J:   Me too.  They should certainly have noticed this and raised it and, indeed, before the Court of Appeal.

MR BASTEN:   Yes.  Your Honours, perhaps I do not have a way around the injunction in 78B.  That may be the initial problem.  I could say some things about the way in which we see section 77(iii) and 78 and 51(xxxix) operating and those arguments go to the whole scheme of the investiture of jurisdiction on State courts which, in effect, burdens the revenue of the State.

KIRBY J:   Maybe the just solution to this would be to adjourn the matter and burden the Solicitors‑General or the Crown, in its manifestations, with the cost because, though you should have noticed it they, above all, should have noticed it and raised the matter.

MR BASTEN:   Your Honours, I am not able to assist further in relation to the circumstances of this case.  If it is a matter which needs to be argued on the basis of the preliminary constitutional questions first, then I can only say that it appears to us that it is not appropriate for the Court to ‑ ‑ ‑

GLEESON CJ:   Well, perhaps we should hear what your opponents have to say about the matter of section 78B. Mr Solicitor for New South Wales.

MR SEXTON:   If the Court pleases.  Your Honours, we did not take that point in relation to the question of ‑ ‑ ‑

HAYNE J:   This sort of litigation is not point-scoring, Mr Solicitor. 

MR SEXTON:   No, I appreciate that, your Honour. 

HAYNE J:   Really. 

MR SEXTON:   No, your Honour.  It seemed to us that that question did not arise, and had not arisen in the proceedings below, and we did make an assessment of it.  Now, if the Court takes a different view of that and wants to consider those questions, then they will have to be considered at another time. 

GAUDRON J:   Well, what do you mean “wants to”?  How can we decide this matter without deciding the meaning and effect of sections 68(2) and 79 of the Judiciary Act and, having decided those, then, in terms, whether they conform to the constitutional requirements?  How can we? 

MR SEXTON:   That is so, your Honour.  But ‑ ‑ ‑

GAUDRON J:   The fact that you do not take the point surely does not matter. How can we decide it? We are bound by the Constitution.

MR SEXTON:   Of course, your Honour.  That is, if there is a real question as to power in this case. 

KIRBY J:   I am surprised you do not see it, because the theory which is behind Mr Basten’s argument involves a burdening of the consolidated revenue of your client and, at least arguably, contrary to the State Constitution.  One would have expected, if points are being taken, that you would be concerned with such an issue, in what is essentially a federal prosecution.  The theory is that the Act can be applied to burden the consolidated revenue of your client. 

MR SEXTON:   Well, there is a discretion under the legislation.

KIRBY J:   Well, that is another problem. 

GAUDRON J:   If there is a discretion, how is it judicial power? 

MR SEXTON:   Your Honour, the question of whether ‑ ‑ ‑

GAUDRON J:   Federal judicial power does not sit around satisfying preconditions to an administrative decision.  It just does not do it.  Does it?  I mean, I have never heard of it being done. 

MR SEXTON:   It is really related to the question – as your Honour knows we make the argument that it is a separate proceeding in any event, as a matter of construction. 

KIRBY J:   The best argument of proceeding with the matter is that the Court has said sometimes that if a matter can be knocked out as a matter of statutory construction, it will do so and proceed with the matter at that level. But the problem is that to do the construing, you do it with the light of the Constitution, and you are, as it were, switching off that light. I just do not see how we could properly do our job without that light shining on the Judiciary Act and the Costs Act. 

MR SEXTON:   Your Honour, we made that assessment.  If the Court takes a different view, your Honour is right that it would probably need to proceed in a different way. 

KIRBY J:   Could I ask, on the question I last raised with Mr Basten:  in those circumstances, if the Court took that view, why would not the public authorities, which have the primary obligation to bring these matters to notice, have to bear the costs of the adjournment?  I mean, after all, the appellant is an ordinary citizen and you are the public officers, you and Mr Bennett. 

MR SEXTON:   Your Honour, all I can say is that all the parties have, in a sense, made the same assessment here.  It may be right or it may be wrong.

GUMMOW J:   What is the assessment, by the way?

MR SEXTON:   That it did not involve a constitutional issue.

GUMMOW J:   What did not, Mr Basten’s construction?

MR SEXTON:   The proceedings as a whole, your Honour.

GLEESON CJ:   Yes, thank you, Mr Solicitor.  Mr Solicitor for the Commonwealth.

MR BENNETT:   Your Honours, we took the view which is referred to in Justice Kirby’s last question, that where the Court can decide a matter without getting to the constitutional issue, it will do so.

GAUDRON J:   Yes, but it might decide it against you.

MR BENNETT:   Then, your Honour, there would be a problem.  We took the view that the matter was argued in the Supreme Court of New South Wales, and indeed in the District Court, entirely on non‑constitutional issues on which we succeeded and we took the view those issues were very clear and that this Court could and would decide the matter on the same issues.  If the Court took a different view of those ‑ ‑ ‑

GAUDRON J:   Notwithstanding that there had been a grant of special leave and the Bench did not say the decision is clearly right.  You must have realised that it was arguable on the construction point.

MR BENNETT:   It may well be that at that stage, if my learned friend had succeeded on the construction point, which was not, I should ‑ ‑ ‑

GAUDRON J:   That would be too late, would it not?  It would be too late.  There would be a decision of this Court.

MR BENNETT:   A decision, your Honour, in which the other issues had not been raised and had, therefore, gone by default against the respondents, and that was the risk we were prepared to take.

GAUDRON J:   For my part, I do not see how any Solicitor‑General can say, “That is the risk we are prepared to take”, because the risk is that there will be a decision of this Court which involves constitutional issues that have gone by default, and important constitutional issues. This Court, really, particularly when it comes to the Constitution, just does not let things be decided on the basis of points taken or not taken. It cannot – consistent with its duty, it cannot.

MR BENNETT:   It did in Metwally [No 2], your Honour.  In Metwally [No 2] the Court took the view that a constitutional point not having been taken at the appropriate time, as to the validity of Commonwealth legislation ‑ ‑ ‑

GAUDRON J:   Exactly, that is the risk you take.

MR BENNETT:   ‑ ‑ ‑ it could not be taken.  This Court took the view that, as a result, that point could not be taken in that case.

GAUDRON J:   That was when the parties sought to raise it after a judgment had been given on the other issues.

MR BENNETT:   Yes, your Honour.  Nevertheless, the judgment on the other issues ‑ ‑ ‑

GUMMOW J:   It is not a happy round of litigation, the Metwally litigation.

MR BENNETT:   No.

GAUDRON J:   Mr Basten will probably recollect it very clearly.

CALLINAN J:   But, Mr Solicitor, there is the problem about the other States, though, who might well take an entirely different view of this from the view of the Solicitor for New South Wales, and why should they not be heard on the question?

MR BENNETT:   Because, your Honour, if the Court decided the case on the same basis as the majority in the Court of Appeal, on the construction issues, and we have added construction issues to the ones they found on, then the constitutional issues would never arise and never be considered and we would have a bevy of Solicitors-General here, like yesterday, coming to Canberra and then being sent home with nothing to do.  We took the view that the matter was or would be likely to be ‑ ‑ ‑

GAUDRON J:   It might be a question about the role of the Solicitors‑General yesterday too.

MR BENNETT:   Your Honour, the answer, if a notice had been given, the people would have come and an issue ‑ ‑ ‑

GAUDRON J:   Might have come.

MR BENNETT:   Might have come and the issue ‑ ‑ ‑

GAUDRON J:   Might have taken the view that, “Well, that is a New South Wales problem”.

MR BENNETT:   Yes. But, your Honour, at the end of the day, if the Court upholds the arguments which we are putting, then it would in all probability never get to the constitutional issues. We would, with respect, dispute Justice Kirby’s last comment to my learned friend that the Constitution is of importance in the construction issues which are raised and relied on by the respondents. But, your Honours, that is the reason.

KIRBY J:   We could not enter in that on that point until we had it argued and I agree with Justice Callinan that it may be that the Solicitor for New South Wales does not want to raise the point, but the whole point of section 78B is to give the other law officers the opportunity of considering –they may say, “This is a fundamental issue. Why should the State consolidated revenue be burdened for what is basically a federal prosecution? It is fundamental. We don’t want it. It’s contrary to own constitutional instruments. We want to argue that point. It fails absolutely the threshold.” In any case, if you get to the construction points, you understand the Costs Acts by the light of the federal Constitution.

MR BENNETT:   I understand that, your Honour.  I understand the view.  Your Honours, on costs I would simply say this, that the appellant had the carriage of the matter.  It was the appellant’s primary duty to raise the matter.  The costs should be dealt with at the final hearing because if the Court ultimately decides that the issues can and should be decided on the non‑constitutional issues and it turns out that the constitutional background has nothing to do with the construction issues at the end of the day, then we should not have had to pay the costs of today.

GAUDRON J:   For my part, I would have thought that constitutional issues, or at least the question of judicial power, determines once and for all the meaning and operation of section 68(2) and section 79 of the Judiciary Act.  I would have thought that was the beginning and end of it.

MR BENNETT:   Your Honour, that cannot mean that every case involving the construction of those sections involves ‑ ‑ ‑

GAUDRON J:   No, but in this case.  I mean, what one has to look at in any case – and this is fundamental – where it is said that this Act picks up and thereby confers a new jurisdiction, the question is:  is the jurisdiction jurisdiction with respect to a matter and is it a jurisdiction which involves the exercise of the judicial power of the Commonwealth?  I mean, that is fundamental.

MR BENNETT:   Yes.

McHUGH J:   Mr Solicitor, I have to tell you my problem is, having read the written arguments, I incline, subject to hearing oral arguments, to the construction that the appellants contend for.  I do not have the problem about binding the State that Justice Gummow and Justice Kirby have, but I do have a real problem as to whether or not, on the construction which at the moment I provisionally favour, there is a matter within federal jurisdiction.  So I do not see how you can resist looking at the constitutional problem.

MR BENNETT:   Yes.  Your Honour, I would resist the matter being adjourned for those purposes.  I have made the submission about costs.

GUMMOW J:   There is also involved in all of this a more fundamental problem which turns on 77(iii) which requires the States to allow an intrusion into their judicial system of requirements of federal jurisdiction, and their burden, in that respect – their structures have to put up with that and their judicial structure is an essential part of their overall governmental structure.  So, 77(iii), if you like, is a constitutional qualification to what otherwise might come from the Melbourne Corporation doctrine.

When you get into this case, though, you are going a bit further and you are trying to support – Mr Basten, it seems to me, is trying to support 68(2) and 79, going a bit further, getting into the State funding, not only to funding to provide their courts but funding to provide recompense for particular litigants in the federal jurisdiction.  That seems to me to be a significant step.

MR BENNETT:   Yes.

GUMMOW J:   So the State revenues are then being burdened in that additional way which, on the face of it, may be beyond 77(iii) and therefore beyond a proper construction of 68(2) and 79 and, if it is not beyond that it may be straight into the Melbourne Corporation doctrine.

GUMMOW J:   Yes.

MR BENNETT:   Yes.

KIRBY J:   You now have four constitutional points which the Court has raised and none of the Solicitors‑General who are present even thought of.

MR BENNETT:   When your Honour says “did not think of ‑ ‑ ‑

KIRBY J:   You certified that there was no question arising under the Constitution. That is the whole point of the Court’s procedure.

MR BENNETT:   Your Honour, on the basis that the case could be decided without any of those four points being considered.  Now, that is something which ‑ ‑ ‑

HAYNE J:   It is an unusual way to conduct litigation on the assumption that “we will necessarily win”, Mr Solicitor.  Leave was granted in this case on the basis that the questions were contestable.  To order affairs on the assumption that you will necessarily win is, if I may say so, unusual.

MR BENNETT:   Your Honour, that rather illustrates that it is the appellant’s problem because it is the appellant who needs to surmount those matters to win.  But, your Honours, I have made the submission.

KIRBY J:   No, but the points under the Constitution are all, in a sense, on your side. Here you are at this end of the table and all of those four points are points to combat the appellant’s suggestions and to your point that we should simply leave the question of costs to the end, the difficulties with that are two: first, that one tends to forget the circumstances that we are now faced with and, secondly, we have to address the consequences of an adjournment and that is singular, particular and separate and, at least as I presently think, those costs should burden you because these are points on your side that you should have raised.

MR BENNETT:   If your Honour pleases.

McHUGH J:   And if the matter is going off, as it appears to, I would certainly be assisted by some argument concerning the validity of the Federal Proceedings (Costs) Act.  It may be arguable that the certificate under that Act must be given in that that there is no real discretion in the Attorney‑General, but if there is, it may raise the problem as to whether or not requiring federal courts to give a certificate constitutes an exercise in judicial power.

MR BENNETT:   Well, your Honour, that was considered in the Builders’ Labourers’ Case and the Court held that there was no discretion and, therefore, the problem did not arise.

McHUGH J:   I had forgotten that.

MR BENNETT:   It is one of the Builders Labourers’ Federation Cases.

GUMMOW J:   Yes, I think that is right, yes.

MR BENNETT:   Yes.  I appeared as amicus curiae to argue invalidity and I failed.

GLEESON CJ:   Yes, thank you, Mr Solicitor.

MR BENNETT:   If the Court pleases.

GLEESON CJ:   Is there anything you want to add, Mr Basten?

MR BASTEN:   No, except that we would seek an order of costs in relation to the abandoned proceedings of today acknowledging ‑ ‑ ‑

GLEESON CJ:   We will adjourn for a short time.

AT 10.50 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.54 AM:

GLEESON CJ:   The Court has formed the view that the case requires notices under section 78B of the Judiciary Act and, for the purpose of enabling the parties to give appropriate notices under that section, the matter will be stood out of today’s list and stood over to a date to be fixed.  The respondents must pay the appellant’s costs thrown away by the adjournment in any event.

Consistently with the need to give section 78B notices, all parties will have the opportunity to file additional written submissions before the resumed hearing and the Court expects that all parties will take advantage of that opportunity.

We will adjourn until 10.15 am tomorrow morning.

AT 10.56 AM THE MATTER WAS ADJOURNED