Springfield Land Corporation (No 2) Pty Ltd & Anor v State of Queensland & Anor

[2010] HCATrans 164

[2010] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B1 of 2010

B e t w e e n -

SPRINGFIELD LAND CORPORATION (NO 2) PTY LTD

First Applicant

SPRINGFIELD LAND CORPORATION PTY LTD

Second Applicant

and

STATE OF QUEENSLAND

First Respondent

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF MAIN ROADS

Second Applicant

Applications for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 JUNE 2010, AT 11.40 AM

Copyright in the High Court of Australia

__________________

MR M.D. HINSON, SC:   If your Honours please, I appear with my learned friend, MR M.S. TRIM.  (instructed by Russell and Company Solicitors)

MR D.R. GORE, QC:   If your Honours please, I appear for the two respondents, with MR J.M. HORTON.  (instructed by Clayton Utz Lawyers)

FRENCH CJ:   Yes, Mr Hinson.

MR HINSON:   Your Honours, the three special leave questions are identified at page 110 of the appeal book.  They all concern the proper construction and application of section 20(3) of the Acquisition of Land Act.

FRENCH CJ:   Well, it is all with identifying the purpose which relates to the enhancement, is it not?

MR HINSON:   Yes, the purpose, the identity of the resuming authority so that one can correctly identify the purpose, and the enhancement which flows from the carrying out of the purpose.  One needs to know the purpose to know what the carrying out of it involves.

FRENCH CJ:   Explorations of the characterisation of relevant purpose often turn into rather arid intellectual exercises; they are really matters of characterisation in a factual context, are they not?

MR HINSON:   Within a factual context, and the Court of Appeal’s error, we submit, in this case was to say that the proper construction of section 20(3) really precluded or foreclosed the factual conclusion about characterisation that the arbitrator came to.  Their Honours paid lip service to the notion that it may be that in some cases the purpose might be expressed more narrowly than their Honours thought it should be.  I am now looking at page 98 of the application book, paragraph [49] of the Court of Appeal’s reasons, where having acknowledged that:

there may be cases where the purpose of an acquisition of a small parcel is solely for realigning -

their Honours went on to say, in particular in paragraph [51], that in effect that was not a factual conclusion that was open on the facts of this case.

BELL J:   In that respect their Honours echo the primary judge at application book 69, paragraph [25] when his Honour recognised that the question of purpose may involve fine distinctions, but his Honour’s point was:

on no reasonable view could the relevant works or purpose be confined –

in the way that the arbitrator had done in this instance.

MR HINSON:   Had so found, yes.

BELL J:   What is wrong with that proposition?

MR HINSON:    May we, to answer that, take your Honours back to what the arbitrator found, page 20 of the application book, commencing at about line 25, the arbitrator had said:

DMR had assumed control of the Transport Corridor in the vicinity of Trust Lot 7 in 2005 and gave to it the name SWTC and as a result of the SKM investigation –

one that was commissioned by the Department of Main Roads in 2002 and took part in four stages –

a partially realigned route in the vicinity of Trust Lot 7 was provided for and this in turn was the reason for the –

notices of intention to resume.  The arbitrator then refers to two particular paragraphs of the respondent’s pleading which – his summary of it accurately represents what was pleaded.  In other words, the pleading of the respondents was that what inspired, or what gave rise to the reason for the acquisition and the notices of intention to resume was the partial realignment of the corridor.  At pages 49 and 50 of the application book, still in the award, the arbitrator at page 49 said in the last paragraph on that page that:

The NIRs have to be read in their proper context.

Your Honours might recall that the notices were expressed in quite general terms.  One can find those terms, for example, at page 59 of the application book in paragraph [1] of the reasons for judgment of the primary judge.  The purpose was said to be:

“for future transport purposes including the facilitation of transport infrastructure (namely road and busway, rail or light rail) for the South‑West Transport Corridor”.

In the abstract, and divorced from some contexts, those words have no meaning.  They need to be construed within a context, and that is what the arbitrator did at pages 49 to 50.  He referred firstly to the context provided by the time at which they were issued, and events that had occurred before that time.

FRENCH CJ:   Well, he says he can look through the NIRs and ‑ ‑ ‑

MR HINSON:   And discern a purpose which is a more relevant purpose to be applied for the application of section 20(3) of the Act, and the very broadly stated purpose that appears in the notices themselves.  It has been recognised in other courts that the purpose, of course, may be slated at various levels of generality.  The real question is what for the purposes of the facts of a particular case in applying the statutory command in section 20(3) about enhancement is the appropriate one to choose – bearing in mind that this is a context which involves compensation for compulsory acquisition of land.  In other words, the overall object is to compensate the landowner for something that has been lost, bearing in mind that the statutory mandate about how to measure compensation requires consideration to be given to offsetting enhancement of adjoining land.

So we submit that on the construction taken to section 20(3) by the Court of Appeal that was too narrow a construction.  It really had the result that the arbitrator was said to have erred in law because he adopted a view about purpose that was said not to be reasonably open.

FRENCH CJ:   Now, where did they encapsulate their approach to construction?

MR HINSON:   Your Honours will find that at page 98, paragraphs [49] to [51].

FRENCH CJ:   Now, they are saying that the arbitrator has a narrowly focused understanding of the scope of section 20(3).

MR HINSON:   Yes.

FRENCH CJ:   That is because he picked a narrow purpose.

MR HINSON:   That seems to be the rationale of it, yes.

FRENCH CJ:   Do you say they say anything further about the construction other than by reflecting upon his choice of purpose?

MR HINSON:   The other error upon which we rely is that in adopting the wider purpose that the primary judge in the Supreme Court adopted, that is, it is the road as a whole, nonetheless the Court of Appeal misconstrued that part of section 20(3) which talks about enhancement caused by the carrying out of the works or purpose.  The point we make about enhancement is that on the respondent’s case, the resuming authority’s case, they had the onus of proving enhancement, they relied upon enhancement occurring over a period from 1999 when the land was first dedicated by Springfield for road purposes, until a date shortly prior to the notices of intention to resume when the Premier announced the final stage of funding for carrying out the works.

That all preceded the taking and must therefore have preceded the carrying out of the purpose for which the land was taken.  All of the enhancement attributable to those events should have been excluded.  The language of section 20(3) requires a causal connection between the enhancement in value and the carrying out of the purpose.  Zoeller’s Case, which is in the bundle, a decision of the Queensland Land Appeal Court, relying upon a decision of this Court in the Adelaide Fruit Case, points out that as at the date of hearing in the date of assessment of compensation enhancement may in fact be in prospect rather than realised.

Zoeller’s Case is behind tab 13 in the Land Appeal Court, and it is page 204 of the report, the first paragraph commencing at about the middle of that page.  Reference is made to this Court’s decision in The Adelaide Fruit and Produce Exchange Company Case.  Then towards the foot of that page:

In our judgment, it is only good sense that such enhancement should be assessed according to the best evidence available to the Court at the date of hearing and we consider that subsection (3) of section 20 also allows the Member –

that is, the member of the Land Court –

if it does not require him, to take some prospective view of the matter, to the best of his ability, to the time when the purpose or works for which the resumed land is taken are completed, if this stage has not been reached at the date of hearing.

So there is a clear temporal connection, we would submit, required by the language of section 20(3) that excludes a consideration of any enhancement arising from events that occurred not only prior to the carrying out of the purpose, but prior to the taking of the land which is required to carry out the purpose and ‑ ‑ ‑

FRENCH CJ:   Well, you say 20(3) should be read as though the word “purpose” means, in this context, immediate purpose?

MR HINSON:   That is the narrow purpose argument, or one that was open?

FRENCH CJ:   Yes.

MR HINSON:   We say even if the wide view of purpose is taken, the purpose is the road in its entirety, the whole road between Springfield going west to Yamanto, even if that wider view is taken ‑ ‑ ‑

FRENCH CJ:   The only relevant enhancement is that particularly affected by the work for which the land is taken?

MR HINSON:   Yes.  Even if one takes the wider view of purpose one needs to identify enhancement caused by carrying out the purpose, not merely its existence, and that is the other error the Court of Appeal fell into.  They took into account the respondent’s case on enhancement, which was it occurred over a period between 1999 and 2005, prior to the date of taking and prior to the carrying out of a purpose.

FRENCH CJ:   Well, you accept that the Court of Appeal took a different view of the law to the arbitrator?

MR HINSON:   Yes, as did the primary judge in the Supreme Court as to the meaning and scope ‑ ‑ ‑

FRENCH CJ:   Yes.  So how does that view challenge the jurisdiction of the primary judge on the basis that these were matters of fact?

MR HINSON:   We would submit, if it was relevant, that his Honour should have concluded that the arbitrator’s conclusion was a factual finding and was not reviewable as a question of law.

FRENCH CJ:   You do really seem to be focusing on differences in the approach to construction of section 20(3).

MR HINSON:   Yes, and to the extent that the primary judge in the Court of Appeal held that it was not open to the arbitrator to reach the factual findings that he did about purpose, we would submit that the primary judge in the Court of Appeal erred in construing section 20(3) in such a way as to foreclose that factual finding to the arbitrator.

The other short point, your Honours, concerns, as you may have gathered, the identity of the resuming authority.  In that respect, what we complain about is what the Court of Appeal said at pages 96 and 97 of the application book.  Paragraph [44] commencing at the foot of page 96 refers to the present applicant’s submission that:

the scheme . . . was that of the Council and not of the DMR.

This is simply the short Walker Corporation point, this Court having decided ‑ ‑ ‑

BELL J:   The circumstances and the point that was being made in Walker might be thought very different when one looks at the history in that case of the difference between the council and the position of the State.

MR HINSON:   Yes, the history here was that the land was given to the council pursuant to an agreement between the council and Springfield.  The council’s planning scheme identified this land, this relevant land, as being in the regional transport designation.  It is correct that at a point in time the Department took over the council’s role in carrying forward the project for this connecting road, but as the arbitrator found, and as was the respondent’s pleaded case, going back to page 20 of the application book, the Department only took over control of the project, if it can be put that way, in 2005, shortly before the notices of intention to resume were issued.  I have probably succeeded, your Honours, in staying under the required time limit, which I am sure your Honours will be pleased to hear.

FRENCH CJ:   Thank you, Mr Hinson.  Mr Gore.

MR GORE:   Your Honours, in our submission, the decision of this Court in Marshall v Department of Transport which, of course, related to section 20 of the Queensland Act, is significant to the present application in at least four respects.  First, as the Court is aware, this Court held in Marshall’s Case that “compensation for injurious affection” is not restricted to the work done on the actual land taken or to the precise use to which that land is put, and the Court thereby took a wide view of the operation of section 20(1)(b).

As the primary judge in this case concluded in paragraph [25] of his reasons for judgment at page 69 of the application book, that decision is a strong indicator that the purpose of section 20(3), the enhancement provision, would not be served by limiting its operation to the effect of works carried out just on the land taken.

Can we give your Honours two examples which are close to both Marshall’s Case and the present case to illustrate the point?  In Marshall’s Case the Court is aware that it was an injurious affection case, of course, and Mr Marshall was complaining that the duplication of the Bruce Highway made his land more susceptible to flooding.

His injurious affection claim was denied by the Land Court on the basis that, adopting the approach of the Court of Appeal in Edwards’ Case, it could not be demonstrated that there was any part of the road, any part of the duplication, in fact constructed on the land taken which could have had some effect on the flooding.  It was that aspect of the decision of the Land Court which was reversed by this Court as a matter of principle, the Court saying that you should look at the whole of the road works, the duplication, to see whether or not there had been injurious affection.

Accordingly, if in Mr Marshall’s case, with the same road widening, what was involved was enhancement, for example, if the road works had made the land less susceptible to flooding, if it had improved the development potential of Mr Marshall’s retained land, then on the proper operation of section 20(3) that enhancement should be taken into account – just as this Court said the injurious affection should be taken into account with reference to the wider purpose.

Equally, in the present case, whilst it is an enhancement case it would not be surprising in other circumstances for it to be an injurious affection case.  For example, obviously, major roads give rise to significant noise and if, with the so‑called minor realignment that occurred here as part of the road corridor, the owner of the retained land claimed that that land had lower development potential because high volumes of traffic using the south‑west transport corridor would make the land less attractive for residential purposes, that would be a proper claim for injurious affection in the light of this Court’s decision in Marshall’s Case.  It is illogical for the applicants to contend that some different view should be taken because it is an enhancement case.

Secondly, this Court in Marshall’s Case, in arriving at the particular conclusion that it did, pointed out at page 616 of the judgment that the particular “language of s 20(1)(b)” did not refer to the exercise of power only on the land taken.  The language was quite generally expressed.  That is supportive of the reasoning of Justice of Appeal Keane, as he then was, in this case who pointed out in the reasons for judgment in paragraph [38] at page 95 of the application book that section 20(3) did not refer to enhancement from the carrying out of works.  He said it did not speak of:

“the enhancement of the value of the interest of the claimant . . . derived from the carrying out of the works on or immediately adjoining the land taken.

It is those concluding words “on or immediately adjoining the land taken” which his Honour has interpolated into the provision.  The applicant’s contention really requires that those words be added for its contention to be sound.

The third respect in which Marshall’s Case is of significance to the present case was the emphasis that the majority of this Court placed in Marshall’s Case on the identification of road purposes as being the purpose of the resumption in Marshall’s Case.  Indeed, their Honours used the word “extraordinary” in describing the conduct of the resuming authority in that case.  They said that it was “extraordinary” that the resuming authority, which was responsible for the notice of intention to resume, should be contending that despite the stated road purpose the land taken from Marshall’s property was not in fact to be used for road purposes and that one should take a narrow view of the purpose.

That view of this Court also supports the reasoning of the Court of Appeal in the present case at page 95 of the application book in paragraph [37] where his Honour Justice Keane described it as:

a telling point against the appellants that, neither the notices of intention to resume, nor any other instrument which could be said to be concerned with identifying the purpose of the taking of the land, suggests that the purpose of the taking was other than the construction of the transport corridor.

Both of those approaches, your Honours, are consistent with the approach taken by Lord Nicholls of Birkenhead in Waters v Welsh Development Agency, which is case No 11 in the bundle, where your Honours have probably noted from the outline of argument that in paragraph 63 – and your Honours may care to go to case No 11 – although his Lordship was dealing with principles relating to Pointe Gourde and the so‑called “no scheme” cases, nevertheless what his Lordship said at page 1320 is helpful.  In his fifth guideline at the top of that page his Lordship said:

Normally the scope of the intended works and their purpose will appear from the formal resolutions or documents of the acquiring authority.

He did, of course, add:

But this formulation should not be regarded as conclusive.

The general rule that he referred to is consistent with the judgment below in this case.  The fourth respect in which Marshall is relevant to today’s application is that the analysis of not just the majority, but also Justice McHugh, of an earlier decision of this Court in The Commonwealth v Morison - your Honours will recall that Morison’s Case was also an injurious affection case which involved an extension of an airport in Victoria where the application of the English decision in Edwards’ Case arose, and there had been some debate, one might say, over the years since Morison’s Case was decided as to whether Edwards Case had been either adopted or rejected.

The view taken by this Court in Marshall’s Case was that the majority view in Morison’s Case supported a wide view of purpose, at least in circumstances where it was not possible to isolate works done on the resumed land from works done on other land, and if we could go to Marshall’s Case, which is case No 4 in the bundle?

FRENCH CJ:   Well, this is at 619 to 620, I think.

MR GORE:   I think that is right, your Honour, with respect.  That is so.  What their Honours point out is that both Justices Menzies and Gibbs, in effect, considered that Edwards’ Case did not apply to the provision in question and Chief Justice Barwick, with whom Justice McTiernan agreed, accepted that in a case where you could not sever what was done on the resumed land from what was done on other land, you had to look at the wider purpose.

What is interesting, your Honours, is that if one goes to the judgment of Justice Gibbs, which I regret is not in your Honours’ bundle, but in the judgment of Justice Gibbs, as he then was in Morison’s Case, his Honour actually referred to an earlier decision of this Court which was an enhancement case, a decision of Justice Powers who was sitting as an arbitrator in a matter of In re Smith v The Minister for Home and Territories.  I apologise that your Honours do not have this case or Morison’s Case but could I be granted the indulgence of handing them up to your Honours.

FRENCH CJ:   Yes, certainly.

MR GORE:   The point that I am leading up to is that this Court’s decision in Marshall with respect to injurious affection may be seen to have its genesis in an enhancement case which took a wide view of the purpose consistently with our contentions and in Morison’s Case, if your Honours go to page 59 in the judgment of Justice Gibbs ‑ ‑ ‑

FRENCH CJ:   What is the gravamen of all this?  Are you saying that, in effect, the constructional point is settled with reference to these authorities?

MR GORE:   Yes, and we are saying that one of the errors of law which the arbitrator made was a failure to apply that settled principle and it supports the view taken by ‑ ‑ ‑

FRENCH CJ:   Simply because he took too narrow a view of the application of section 20(3).

MR GORE:   That is correct, your Honour.  One that, on authority, simply is not open as the courts below have held.  So just briefly on this, at page 59, Justice Gibbs referred to the provision in question which your Honours will see used similar language.  This is at point one -section 28(1) of the Lands Acquisition Act (1906) which referred to both:

enhancement or depreciation . . . by reason of the carrying out of the public purpose for which the acquired land was acquired –

and then referred to the decision of Justice Powers in In re Smith v Minister for Home and Territories Case which involved, your Honours, quite a construction activity, a railway from Port Augusta to Kalgoorlie, where the resumed land, it appears from the reasons for judgment in Smith’s Case, was only required for water used in the construction activity but as Justice Gibbs set out, at the bottom of page 59, Justice Powers held that he had to take into account the enhancement arising from the entire construction of the railway and at page 60 of Morison’s judgment, that enhancement was sufficient to offset completely the value of the land taken and Justice Gibbs said at point five of that page:

If the effect of s. 28(1)(c) was that enhancement is to be found by considering the effect of carrying out the public purpose, even though it is not carried out on the land acquired, the same must be true of depreciation.

We are submitting, your Honours, that injurious affection and enhancement are opposite sides of the same coin.  This Court has spoken in Marshall on one side of the coin and that really settles the other side as well.  Indeed, in Zoeller’s Case, to which reference has already been made, your Honours will have seen reference to the decision of this Court in Adelaide Fruit and Produce Exchange Company  v The Corporation of the City of Adelaide (1962) 106 CLR 85.

The President of the Land Court in case No 12 - and I do not ask your Honours to go to it - but in case No 12, Zoeller at first instance, the President of the Land Court took the view that the Adelaide Fruit Market Case also involved taking a wide view of purpose by this Court and we would submit that that was a correct view to take and we would submit that in the result there were really four decisions of this Court - Marshall, Morison, Adelaide Fruit and Produce and Smith v Minister for Homes which support the wide view and there are no decisions of this Court that support any narrow view.

Your Honours, further as to the purpose identified by the arbitrator, we submit that the courts below were correct in deciding that it was not open for the arbitrator to fix on that purpose.  There are probably four reasons for that.  The first was it was not a purpose identified in either the Acquisition of Land Act or the Transport Planning and Coordination Act (1994), which was the more relevant Act for present purposes.

Secondly, it was not the purpose identified in the notice of intention to resume or any other official document.  Thirdly, it is not a purpose, because as Justice McMurdo pointed out, it was merely a means to an end and not an end in itself and on the proper interpretation of the Acts Interpretation Act the purposes referred to must be – purposes must be ends in themselves, not means to an end.  That is paragraph [19] of the reasons for judgment of Justice McMurdo.

Fourthly, the reasoning is quite illogical.  If trust lot 7 was dedicated for the purpose of the South‑West Transport Corridor, any change in the boundary of the land to accommodate that corridor, bearing in mind that it still, at that stage, had not been constructed, must necessarily be for the same purpose.  It is for the same corridor.  Merely realigning the boundary cannot change the purpose.

BELL J:   What do you say to the contention about the “resuming authority” point?

MR GORE:   The “resuming authority” point, strictly speaking, does not arise.  The way in which it is expressed in the special leave application really turns on taking a narrow view of “purpose” but the approach taken by both Justice McMurdo and the Court of Appeal, we submit, is correct.  If one goes to the language of section 20(3), it simply speaks of:

enhancement . . . in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.

Now, what the Court of Appeal said was, if you accept that the purpose for which the land was taken was the South‑West Transport Corridor west from Springfield, then that answers the requirement of the section.  It is irrelevant to inquire into the history of the matter and Justice McMurdo took a similar view.  Those paragraphs, your Honours, as far as the Court of Appeal is concerned, in the application book at page 97 in paragraph [44], which commenced on the previous page, in the sentence beginning:

And in any event, if it is correct -

So it is a mere matter of applying the ordinary language of the provision.  Justice McMurdo took a similar view, if your Honours go to page 74 of the application book under the heading “Timing”, and this is relevant to this particular point.  I will just let your Honours peruse the paragraph but the key statement is the last one:

If the relevant works and purpose under s 20(3) are identified as the construction of the road west from the town centre . . . then no issue of “timing” arises.

We would add two other things, though, for completeness, your Honours.  The first is that as we have set out in our outline of argument, the State of Queensland was involved with the development of this road from the beginning.  In fact, it is recorded early in the arbitrator’s reasons that that was one of the reasons why the MUR Group, a precursor to the current applicant, ventured into this large project and at the very least from the Premier’s announcement in early 2004, enhancement which was clearly a State Government step, arose from that point.

The passages of the arbitrator’s award that are relevant to that timing issue involve some cross‑examination of the respondent’s valuer, a Mr Slater, which commences at page 41 of the application book but the key parts are at page 43 where, at about line 28, Mr Hinson had asked Mr Slater:

Back in 1999 when trust lot 7 was transferred to the council on trust for road purposes, did that have any effect –

There is a bit of an exchange and the answer between lines 40 and 50 says:

It may have flagged . . . would be fairly limited -

The Court will see the expression “fairly limited” but then at page 44 at line 20, Mr Hinson asked:

Undoubtedly, the Premier’s announcement in 2004 of 120 million dollars in funding for the extension to Ripley undoubtedly enhanced the value of adjoining lands?‑‑‑Yes.

So the different agency point does not arise on the facts because the State Government has clearly been involved from a sufficiently early time for the amount of the enhancement that Mr Slater relied upon.

Can I remind the Court that both Justice McMurdo and the Court of Appeal, as far as evidentiary aspects about this point might arise, said that the applicant really has to be bound by the conduct of its case below.  In the judgment of Justice McMurdo, if your Honours go to page 74 of the application book, so much emerges from paragraph [38] of his Honour’s concluding reasons and in the Court of Appeal in the application book at page 99, under the heading “The determination of compensation” in paragraphs [57] and [58].

The final point we wanted to make, your Honours, was that Walker’s Case was a case of inaction.  That was a case of inaction by the council which resulted in the industrial zoning at the time the foreshore authority resumed the land and the issue in that case was whether the zoning could be ignored.  This is a case about action.  There has been action by the State Government and by the council prior to the resumption and different considerations clearly apply.  They are our submissions.

FRENCH CJ:   Thank you, Mr Gore.  Yes, Mr Hinson.

MR HINSON:   Your Honours, the identity of the proponent is important because, on the respondent’s case as just articulated by Mr Gore by reference to the cross‑examination of their valuer, enhancement arose not from the carrying out of the road works, which at the date of the arbitration were in the process of being built but not finished, but arose from events between 1999 and 2005 when this land was held on trust by the council, had been given to the council pursuant to an agreement with the council and, as the arbitrator found, the Department did not become involved until 2005.

So, on the respondent’s case, they are really saying, we should be entitled to get credit for enhancement attributable to the existence of the purpose prior to us becoming involved and carrying it out and not only get credit from the existence of purpose, but it being a purpose that was propounded by somebody else rather than us, and we say that involves the reasons we have articulated in this construction of section 20(3). 

So far as Marshall, Morison and the other cases are concerned, we do not make a submission that enhancement is limited to that which flows from works carried out on the resumed land.  It must flow, according to the

statutory language, from the carrying out of the purpose.  We propounded a narrow purpose, the respondents propounded a wide one, but even on the wide one, we come back to this temporal question, the enhancement has to be caused by the carrying out of the purpose and that only occurred post‑2005.

So the respondent’s case that said enhancement arose between 1999 and 2005 did not raise a question which was required to be considered.  The arbitrator rightly rejected it.  The trial judge in the Court of Appeal only took it into account and it completely offset the compensation otherwise payable because of the wrong construction of section 20(3).  May it please the Court.

FRENCH CJ:   Thank you.  There will be a grant of special leave in this case.  Is it likely to take more than a day, Mr Hinson?

MR HINSON:   We think not, your Honour.  We think it could be done in a day.

FRENCH CJ:   Do you think there is a risk we might go over to a second day?  I suppose there is a bit of documentary material we would be taken to in relation to ‑ ‑ ‑

MR HINSON:   There is.  It may be prudent to allow a day and a half.

FRENCH CJ:   Yes.  All right, thank you.

AT 12.18 PM THE MATTER WAS CONCLUDED