State of New South Wales; State of Queensland; State of South Australia; State of Western Australia v The Commonwealth of Australia

[1989] HCATrans 220

,s ~ ~ ;;i~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S92 of 1989

B e t w e e n -

NEW SOUTH WALES

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry

Brisbane No B28 of 1989

B e t w e e n -

STATE OF QUEENSLAND

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry

NSW(2\

Adelaide No A32 of 1989

B e t w e e n -

THE STATE OF SOUTH AUSTRALIA

Pl-aintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Cl T2/l/HS 1 3/10/89

Office of the Registry

Perth No P 21+ o f 1 9 8 9

B e t w e e n -

THE STATE OF WESTERN AUSTRALIA

Plaintiff

~d

THE COMMONWEALTH OF AUSTRALIA

Defendant

Questions referred pursuant to

section 18 of the Judiciary Act 1903

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 3 OCTOBER 1989, AT 10.19 AM

Copyright in the High Court of Australia

MR K. MASON, QC, Solicitor-General for New South Wales:

If the Court pleases, in the first matter I appear

with my learned friends, MR K. HANDLEY, QC,

and MR R. SACKVILLE. (instructed by the Crown

Solicitor for New South Wales)

ClT2/2/HS	2	3/10/89
NSW(2)

If the Court has no objection, the proposed order of addresses to cover the issues that are raised on

behalf of all of the plaintiffs is as follows, that

my learned friend, Mr Davies, will address the Court

on the scope of the placitum (xx) with reference to

the power to incorporate. Mr Doyle will address as

to whether, if that power exists, it has been correctly

invoked in the CORPORATIONS ACT. Mr Handley will

address the general question of the validity of

sections 112 and 113 of the Act. I will address

questions of feigned inconsistency arising with

reference to those two sections, and Mr Jackson will

speak at the end.	Your Honours, we anticipate there
will be minimal - - -

MASON CJ:  That does not give us very much of an idea as to what

Mr Jackson is going to put.

MR MASON:  No. Well, I prefer to let him speak for himself when

he rises, but we certainly intend that there will be

minimum overlap, Your Honours.

MASON CJ:	Yes, thank you, Mr Solicitor.	Yes, Mr Davies.
MR G.L. DAVIES, QC:	Your	Honour, in the second of those matters

I appear with my	learned friend, MS R. ATKINSON, for
the plaintiff.	(instructed by the Crown Solicitor
for Queensland)

Could I inform the Court at this stage that an agreement has been reached between that plaintiff and

the Commonwealth, one of the terms of which is that the

plaintiff will discontinue its action against the

Commonwealth. I had in mind, Your Honours, that we would

file a notice of discontinuance today and that, that

being the case, Queensland would take no further part

in this matter.

MASON CJ:  But I gather your services are now being attached to

some other plaintiff.

MR DAVIES:	That is so, Your Honour.
MASON CJ:	Would you mind informing us which plaintiff that is?
MR DAVIES:	South Australia, Your Honour.
MASON CJ:	Thank you.

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, in the matter A32 I appear for the State of South Australia, with my learned friend,

MR G.L. DAVIES, OC, 'Who rises phoenix-1 ike from the ashes,

and with MR M. WALTER, and MS R. ATKINSON.

(instructed by the Crown Solicitor for South Australia)

ClT2/3/HS	3	3/10/89
NSW(2)

MR D.F. JACKSON, QC:  May it please the Court, I appear with my

learned friend, MR M.L. BRABAZON, and MR K. PETTIT,

for the State of Western Australia. (instructed bv the Crown Solicitor for Western Australia) -

The issue, may I say, on which we principally

propose to address submissions is in relation to the

question of reopening part of HUDDART PARKER V

MOOREHEAD.

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

If the Court pleases, I appear with my learned friends,

MR D.J. ROSE, MR A. ROBERTSON, and MR S.J. GAGELER,

for the defendant in each action. (instructed by

the Australian Government Solicitor)

If the Court pleases, we, of course, have no

objection to the course taken in respect of the action

by Queensland.

MASON CJ:  Yes, thank you, Mr Solicitor. Yes, Mr Davies.

(Continued on page 5)

ClT2/4/HS	4	3/10/89
NSW(2)

MR DAVIES:  May it please the Court, before I commence addressing,

can I hand up some books of additional material to which

we propose to refer?

Your Honours, before I address Your Honours on the proposition which we propose to advance, which is that

placitum(xx) does not empower the Commonwealth to

legislate with respect to incorporation, we thought it

might be of assistance to the Court if, in summary

form, I took Your Honours to the relevant statutory

provisions. I do not propose to address any argument

with respect to those provisions, but I intended

just to take Your Honours through them.

The CORPORATIONS ACT, as Your Honours would

already know, of course, is an endeavour by the

Commonwealth to use a number of heads of power

to replace the State COMPANIES CODES and to enact a

general companies law. The main heads of power being

placita<xfil). Banking, (xi..v) Insurance and(xx) Foreign

Trading and Financial Corporations.

"MASON CJ:	Mr Davies, might I interrupt you to ask you whether or
not the outline of argument that has been presented
on behalf of the moribund plaintiff in· the Queensland action now represents the argument that you
wll be putting on behalf of the State of South Australia.
MR DAVIES:	Yes, it does, Your Honour.
"MASON CJ:	Thank you.
MR DAVIES:	Your Honours, of course, the principal head of power

is placitum (xx} and before turning to the specific

provisions, perhaps I could say something about the

broad structure of the Act, and if Your Honours have

the CCH copy of the Act, Your Honours will see

something of the broad structure of the Act if

Your Honours go to page 2011, where Your Honours will

see it is divided into chapters, subdivided into parts,

and in some cases resubdivided into divisions. The

provisions with which the Court will be concerned are

found in Chapter 2, which is headed "CONSTITUTION OF

COMPANIES", but it will be necessary to refer also to Chapter 1, and in particular Part 1.2, the

interpretation provisions.

(Continued on page 6)

ClT3/l/FK	5	3/10/89
NSW(2)

MR DAVIES (continuing): If I can then take Your Honours from

there to the list of specific sections which appears,

relevantly, on page 2017 where, towards the bottom of that page, Your Honours will see chapter 2, Parts 2.1

and 2.2. The starting point, and I will not take

Your Honours to it yet but I will a little later, is

section 113 which contains a prohibition against

participation in the incorporation of a body corporate

in Australia under what is described as the company

law of a State or territory if the body will be a

trading corporation on its incorporation.

I will come a little later to the meaning of

the expressions used in that section but it is intended
to be complementary to a number of the provisions.
Those provisions are contained in Part 2.2 and, in

particular, Divisions 1, 2, 3 and 4. Division 1 and,

in particular, section 114 - I do not want to take

Your Honours to the sections yet - allows the incorporation of companies under Commonwealth law.

Division 2 and, in particular, section 126 requires

the registration under that Division of those companies

formed under State or territory law,which are trading

corporations, if those companies are to carry on

business.

Division 3 and, in particular, sections 133(1),

134 and 135 empowers a foreign corporation to beco1i1e
an Australian corporation. Division 4 and, in

particular, section 142 allows the conversion of a

close corporation into a company. A close corporation there be only 10 members; that they all be natural
is a corporation registered under the CLOSE

persons and that a majority of them be residents of

Australia. They are sections 60 to 62 of the

CLOSE CORPORATIONS ACT.

(Continued on page 7)

ClT4/l/DR	6	3/10/89
NSW(2)

MR DAVIES (continuing): Those provisions to which I have referred

would obviously go beyond power of section 5l(xx)

but there are - just simply stated as I have stated them

- there are however various provisions which have been
included in an endeavour to bring the legislation

within power, in particular the use of what are called

activity statements, and I will come to those when I

deal with the specific provisions.

The provisions, Your Honours, really then - the

urovisions in issue in this case - fall into four
categories. Sections 112 and 113 comprise the first

category.	They constitute Part 2.1 and they impose
restrictions on forming certain entities.	The second

category is in sections 114 to 125 which constitute

Division 1 of Part 2.2 and they provide for

incorporation by registration. The third category is

under Division 1. They ar~ the

sections 153 and 155 which constitute those parts of be incorporated

activity statement provisions. And the fourth category

is sections 156 to 158 which constitute Division 7 of
Part 2.2 and provide generally for com~anies ceasing

to be trading corporations or also banking corporations.

It can be seen from question 1 of the questions

which are reserved for the oninion of the court that

not all parts of some of those sections are in issue.

The prese11t case, of course, is concerned only with the trading companies, not with banking activities.

(Continued on page 8)

ClT5/l/LR	7	3/10/89
NSW(2)

MR DAVIES (continuing): Could I then take Your Honours to

sections 112 and 113, in particular section 113.

I shall come back then to 112 a little later.	They
appear at page 4,012 of the CCH version and as I
said, I will defer consideration of section 112
until the very end.	I will come back to that at

the end if I may. Section 113, as Your Honours

will see, contains a prohibition against a person

incorporating, or participating in the incorporation

of, a body corporate if two circumstances exist

they are that the corporation in question is:

under the company law of a State or Territory_

and the other is that on -

incorporation,

the body -

will be a trading corporation.

And that provision uses some terms which are defined.

The first is "trading corporation" which is defined

in section 9 to mean:

a body corporate that is, for the purposes of
paragraph 51(20) of the CONSTITUTION, a trading
corporation, or a financial corporation, formed

within the limits of the Commonwealth;

The second defined expression is under the company

law of the State. In this regard, part of a

company law is defined by section 9 to mean the

law or a previous law of a State or Territory

relating to companies.

Can I take Your Honours then to section 114 or

in total 114 to 125, the main provision of which is

section 114. It provides, as Your Honours see, that

the number of persons specified in it may form an

incorporated company. The requirements are f0ur, first

that they:subscribe:

their names to a memorandum.

Secondly that they comply:

with the requirements as to registration under_

Division 1.

Thirdly, that their numbers be either 5 or more

or 2 or more if it is a proprietary company and

fourthly, that they be associated for a purpose

which is lawful.

CIT6/l/CM	8	3/10/89
NSW( 2)

MR DAVIES (continuing): It is clear, therefore, that

section 114 contemplates the formation of new

companies. It is not a provision giving

Commonwealth identity to an existing legal

personality. And the provisions of section 114

do not, in terms, require that the body incorporated

when formed be or be intended to be a trading or

financial corporation in terms of section Sl(xx).

The constitutional nexus, if there is one, is to

be found in what is referred to by the opening

words of the section "subject to this Act", and

I will come back to that.

Section 117 then provides for the requirements

of the memorandum, the existence of which is

contemplated by section 114 and subparagraphs (a),

(g) and (h) provide for some formal requirements

of the memoranda in respect of all classes of

companies to be formed under the Act and the

remaining paragraphs deal with requirements

applicable to each of the various classes of

companies contemplated by the Act; for example,

(b), (c), (d), and (e), and, going back,
sections 115 and 116.

The procedure for applying for registration is set out in section 118 which contains, in

subsection (1), a requirement for the lodgment of:

an application in the prescribed form -

and, in remaining subsections, various other formal

requirements.

(Continued on page 10)

9 3/10/89

MR DAVIES (continuing): Then sections 120, 121, 123 and 124

deal with registration and its effects. Section 120,

first of all, obliges the connnission, once it is

satisfied that an application has been made in

accordance with section 118, to register the company

and to alot it a registration number. On registration

a certificate is issued and section 121 provides for

that. It contains a description of the nature of

the company - that is subsections (3) and (4) - and
it also states that because of that registration

the company is incorporated - that is subsection (2).

Section 122 makes the certificate conclusive

evidence of the due registration of the company under

Division 1 and that all requirements of the Act,

other than section 155 - because 155 has to be

complied with later, as Your Honours will see - in

respect of registration of the company under this

Division and matters preceding or incidental to it

have been complied with. The fundamental provision

dealing with the effect of registration is

section 123 which provides, in subsection (1), that

from the date specified in the certificate under

section 121 the subscribers and the other shareholders

from time to time are an incorporated company and,

by subsection (2), that the company has the several

attributes of corporate personality.

Sections 124 and 125 deal with members and

articles of association and I do not want to take

Your Honours to those. Can I then take Your Honours

from there to sections 153 and 155 which, in the CCH,

are at page 4,303 and following. I simply remind

Your Honours that sections 114, 120 and 123 are all

prefaced by the words "subject to this Act" and the

provisions to which that qualification principally

relates is section 153. The terms of 153(l)(a) are

such that:

The Connnission shall not register a company

under Division 1 unless:

(a) a written statement -

to which that section refers -

has been lodged.

The following provisions of section 153(1) perform

two functions: first, paragraphs (b) , ( c) and ( d)

set out some formal matters relating to the statement

contemplated by the provision and, secondly and more

importantly, subsection (l)(e) requires:

the statement ..... states as mentioned in

subsection (3), (4) or (5).

ClT8/l/DR	10	3/10/89
NSW(2)

The effect of section 153(l)(e) is that the

statement must contain a statement to the effect of
subsection (3), (4) or (5) and may also contain a

statement to the effect of subsection (2). The

statements contemplated by the several subsections
of section 153 relate to the intentions of the

subscribers to the proposed company's memorandum.

I will not take Your Honours to subsection (4)

which relates to banking activity. Subsection (3)(a)

provides that:  ·

The statement may state to the effect that the subscribers intend that, within 3 months after:

(a) the day of the proposed company's

incorporation .....

trading activities within the meaning of this

Act will be -

either -

the whole or a substantial part of the company's

activities.

I just mention that the definition of "trading

activities" in section 9 of the Act does no more

than include "financial activities": a term which,

itself, is not defined and it also excludes

banking and insurance.

(continued on page 12)

ClT4/2/DR	11	3/10/89
NSW(2)

MR DAVIES (continuing): There are two points which perhaps

I should make about section 153(3)(a). The first

is that it is contemplated that there may be a gap

in time unto three months between the date of
incorporation and the time when trading activities

will be the whole or a substantial oart of the

company's activities. The second is that the validity

of registration is predicated upon the statements of

the subscribers as to their intentions for the conpany

in the future. And in that respect I should direct

Your Honours' attention to section 153(7) which

provides that:

Where a statement is lodged for the purnoses

of this section, each person who has signed

the statement shall be taken to have stated
in it that that person had, when signing the

statement, the intention described in it.

That really describes the effect of section 153(3)(a).

Before coming to section 153(3)(b) could I take

Your Honours to saction 153(5)(a). Subsection (5) of

section 153 deals with comnanies where it is

contemplated that the original incorporators will be

replaced or their numbers augmented by new members; and

secondly that the new members will have the controlling

interest in the company. And the period within which

those events are to occur as stated in the statement

are either within 21 days after the date of

incorporation or within the period stated in section

153(2).

Can I mention that there is nothing, going back

to section 153(3)(a), which relates to the formation

of such a company to the requirements of placitum (xx)

that the law be with respect to trading or financial

corporations. Going back ~o section 153(l)(e), it can

be seen that whilst the company must contain a statement

to the effect of section 153(3) or (5), it may also

contain a statement of the nature referred to in

section 153(2). And a statement of the nature referred

to in section 153(2) does not have an indenendent
purpose.	What it does is extend the ~eriods referred
to in section 153(3) and (5).	Your Honours can see

that from section 153(3)(b) and section 153(5)(b). Section 153(2) allows the statement to state that:

the subscribers intend the proposed company

to be dormant throughout a substantial period

beginning at its incorporation.

And dormant is defined in section 9 to have the meaning

given to the term in section 62. And can I then take

Your Honours to section 62 which is at page 2,651, and

it might be convenient first to look at section 62(2)

ClT9/l/LR 12 3/10/89

because it describes events which will not mean
that the company is not dormant and they seem to

be events the need for which derives from the mere

existence of the company. And the events which

deprive a company of the attribute of dormancy are

then set out in section 62(1).

Can I go back then to section 155, without

having completed what i wanted to say about section 153.

Section 155 is at page 4,352.

(Continued on page 14)

ClT9/2/LR	~13	3/10/89
NSW(2)

MR DAVIES (continuing):  And that provision contains

provision for further activities statement in the

case of companies where the earlier 153 statement

has been to the effect contemplated by

subsection (5), that is where the statement has
said the identity of the controlling members would

be changed either within 21 days or within the

period of dormancy.

In the case where the statement under

section 153(5) has said that the change in control

would occur within 21 days, section 155(1)(d)

requires a further statement within, in effect,

another 14 days. In the case where the earlier

statement under 153(5) has said that the change

in control would occur during the period of dormancy,

the further statement must be lodged:

within 14 days after the company first ceases

to be dormant -

that is 155(1)(c).

Section 155(1) requires that the statment

comply with that section and that is relevantly
a reference to subsections (3) and (4). The matters

in subsection (3) are formal. The important provision

is 155(4). It requires that the further statement

state whether the company:

intends that, within -

the next -

3 months after the specified day, trading

activities within the meaning of this Act

will be -

either -

the whole or a substantial part of the

activities of the company or body.

So may I complete the discussion of those sections

just by summarizing what seems to be the effect

of 153 and 155. First a statement may be to the

effect that the subscribers intend that trading

activities will be the whole or a substantial part

of the company's activities within three months

after incorporation. That is 153(3)(a). In such

a case no further activities statement is required

pursuant to section 155. Secondly, a statement

may be to the effect that the subscribers intend

that there will be dormancy for a substantial period

following incorporation. But that within three

months after dormancy ceases, trading activities

C lTl 0/1 /ND	14	3/10/89
NSW(2)

will be the whole or a substantial part of the

company's activities. That is 153(2) and (3)(b).

In that case, no further activities statement is required either under section 155. Thirdly,

a statement may be to the effect that the

subscribers intend that the identity of the members

having their controlling interest will change within

21 days after incorporation; that is 153(5)(a).

In that case the company must lodge a further

statement within 35 days after incorporation stating

whether the company intends that within three months

trading activities will be the whole or a substantial

part of its activities; that is section 155(1)(d)

and (4).

And, fourthly, a statement may be to the effect that the subscribers intend that the identity

of the members having the controlling interest

will change during the period of dormancy specified

in the original activity statement; that is

section 153(5)(b). In that case the company must

lodge a further activitity statement within 14

days after it ceases to be dormant, if it ever

does cease to be dormant, stating whether the

company intends that within three months trading

activities will be the whole or a substantial part

of i ts act iv i t i es ; that i s 1 5 5 (1 )( c) and 1 5 5 ( 4) .

(Continued on page 16)

ClTl0/2/ND	15	3/10/89
NSW(2)

M~ DAVIES (continuing): All companies are required under

the Act to file an annual return with the Australian

Securities Commission within six months after the end

of the company's financial year, and that annual

return must include an activity statement. That

appears in Part 3.8, and section 336 deals with the

contents of that statement.	Can I take Your Honours
to that? That appears at page 8,402.	By subsections (4)

and (5) of section 336, if the company is not dormant

the statement must state whether trading activities

are, or will be, substantial, and under subsection (8),

if the company is dormant at the date of the statement,

the statement must say so, and must specify when it

last became dormant.

If that dormancy day was more than three months

from incorporation, the statement has to state whether
trading activities were substantial during the three

months preceding the dormancy day. If the dormancy

day was less than three months before the statement,

the statement has to state whether the trading

activities will be substantial within three months from

the dormancy day.

Both of these statements are directed towards

detecting a company which is no longer a trading

corporation, but it should be noticed that they do not

strike at a company which has been dormant from the

date of incorporation. Can I then go back to the

remaining group of sections which are sections 156,

157 and 158, commencing at page 4J53? These provisions

are set out to deal with a number of ways in which a

company which has ceased to be a trading corporation may cease to be a company under the CORPORATIONS ACT.

The first method, if I can go to 158 first, is

by requiring the company to take action. It provides

in subsection (3)(a) that:

Within 14 days after that day -

and I will come to what "that day"means in a moment -

the company shall lodge a written notice

stating that the company has ceased to be .....

a trading corporation:

And the reference to "that day"goes back to subsection (1)

which contains the means of identification of the

particular day, that is the day on which the "company

ceases to be a trading corporation". Subsection (4)

of that section then provides that within 28 days

after that day the company shall apply to wind itself

up on the ground that it is not a trading corporation

and, section 459(1) provides that ground, and it must

do so unless an application to that effect has already

been made.

ClTll/1/FK	16	3/10/89
NSW(2)

Then sections 156 and 157 deal with the

obverse, by requiring the Commission in the circumstances

to which they refer, to adopt one of two courses.

Those courses are either for the Commission itself

to apply to wind the company up under section 459,

or, to give the company a notice under section 572,

which may lead to dissolution of the company. That is
because it is a 'show cause'notice as to

why the company's registration should not be cancelled.

The Commission's duty to take that course

is not present in two circumstances.

(Continued on page 18)

ClTll/2/FK	17	3/10/89
NSW(2)

MR DAVIES (continuing):  The first is if the company is a

new company and the second is if there is already

a pending application to wind up under section 459(1).

The term "new company" is defined relevantly in

section 81, which appears at 2,802 and pursuant to

that provision, a company will fall within that

description in several circumstances. The first

category consists of cases where the subscribers

had lodged a statement under section 153(3), that

is, a statement that the subscribers intended
trading activities be a whole or substantial part
of the companies activities within three months after
incorporation, or within three months after cessation
of dormancy. In those cases, the company ceases to
be a new company at the end of that relevant period

of three months. That is 8l(l)(a).

The second category consists of those cases where

the pre-incorporation activities statement indicated
that the controlling membership of the company would

change within either 21 days of incorporation or

within the period of dormancy. And paragraphs (b),

(c) and (d) of subsection (1) section 81(1) deal

with the possibilities which follow then. The first

is where the further activity statement, that is,

that required by section 155, does state that the

company intends that trading activities will be the

whole or a substantial part of its activities within

three months after the date of signature. In that

case, the company remains a new company until the

end of that period. That is subsection (l)(b)(i).

And in the case of a dormant company there is no

obligation to lodge a further activity statement

until the period of dormancy is at an end.

The second is where the further activity statement

has been filed, but does not state that the company

intends that trading activities will be the whole or

a substantial part of its activities within that

period. In that case the company ceases to be a

new company on the day on which the statement is filed.

That is subsection (l)(b)(ii). The third category

is where the company has failed to lodge a further
activity statement or has lodged one which does not
comply with section 155. In that case the company
ceases to be a new company on the date on which the
statements should have been filed. That is subsection(l)(c
And then in any other case, if there is one
not covered by the other provisions, the company

ceases to be a new company on the day of incorporation.

That is (l)(d).

Going back then to sections 156, 157 and 158 and

to page 4,353, section 157 sets out certain circumstances

in which the commission is deemed to be satisfied that

the company is not a trading corporation, and those

circumstances fall into several categories.

CIT12/l/CM	18	3/10/89
NSW(2)

The first consists of circumstances relating to

155, and there are two provisions which are

relevant. They are 157(2)(a)(i) and 157(4)(a)(i).

(Continued on page 20)

CIT12/2/CM	19	3/10/89
NSW(2)

MR DAVIES (continuing):  In the former case, 157(2)(a)(i),

where the company has failed to lodge a further

activity statement, the company ceases to be a

new company by the operation of section 81(1)(c).

If it has lodged no annual return the commission is deemed to be satisfied that it is not then

a trading corporation. In the latter case, that

is 157(4)(a)(i), where the company has filed a

further activities statement stating it does not

intend that within three months trading activities

will be the whole or a substantial part of its

activities the commission is again:

deemed to be satisfied that a company is not

a trading corporation -

if, in addition, it has filed no annual return.

The second category is where the company has

not complied with the reporting requirements of

the Act. One instance where the presumption applies

is dealt with in section 157(3). That operates

where the company has not filed its annual return

as it is required to by section 335(1). The

commission may then require the company to file
a return within a specified period; that is in

(3)(b). If that period expired and the company

has not complied, the presumption will apply.

And the nature of the statement that is required is set out in subsections (4), (5) and (8) of

section 336, which is at page 8A02.

But continuing with section 157, Your Honours,

the third category deals with instances where the

statement under section 336, the annual activities

statement, is not sufficiently related to trading

activities. In that regard section 157(4)(b)(i)

deals with the case where the annual activities

statement of a non-dormant company states in answer

to section 336(4):

that trading activities were not -

the whole -

or a substantial part of the company's

activities.

And section 157(4)(b)(ii), although it needs to

be read carefully, appears to apply where the

section 336 statement of a non-dormant company

states that:

the company does not intend -

trading activities to be the whole or a substantial

part of its activities during the following year.

C lT 13 /1 /ND	20	3/10/89
NSW(2)

Then section 157(4)(b)(iii) appears to

relate to section 336(8) (a), that is, if the company

was not dormant at the date of incorporation.	has been dormant for more than three months but to section 336(8)(b), that is to a company which
became dormant more than three months after it
was incorporated. That seems to be the only provision which would require a statement to the
effect of that referred to in (4)(b)(iv).
Then (4)(b)(v) is related to section 336(8)(c); that is to a company which became dormant less
than three months before the date of the annual
return. And again I mention that none of the
provisions of section 157 appear to apply to a
company which has been dormant from the outset.

That completes those sections and can I finally

then go back to section 112, at page 4,012. It

contains a prohibition on the formation of outsize

partnerships and associations. The meaning of

the term "outsize" is defined in subsection (2)

and it includes three elements: the first is the

partnership or association must have for an object

the acquisition of gain by itself or by one or

more of its members - that is subsection (2)(a);

secondly, the partnership must be capable of being

incorporated under section 114 - that is

subsection 2(b); and the third requirement is

that the company consist of more than the number

of persons specified in subsection (2)(c). And

if the partnership or association satisfies these

tests it may not be formed unless it is formed

under the CORPORATIONS ACT or another Act of the

Commonwealth or under letters patent or under a

State or territory law which is not the company law of the State or territory. And I say that because it says "subject to section 113".

(Continued on page 21)

C1Tl3/2/ND	21	3/10/89
NSW(2)

MR DAVIES (continuing): That completes our summary of the

provisions, Your Honours. Can I then go to the

substance of our argument which relates not to those

provisions but to the question of constitutional

power under placitum (xx) of the CONSTITUTION?

Your Honours, I intended to approach that by, first,

looking at the words of placitum (xx) and then to

look at the nature of the power; then to look at those

provisions in the context of some other provisions

and, finally, to look at the convention debates, so

far as they may be relevant, and the question of the

authorities and the precedent which has already been

set.

Can I commence a discussion of the linguistic

considerations in the placitum itself, with the

words, "trading or financial corporations" and	really commence by focusing on the word "corporations 11
because, in our respectful submission, that word is
significant, that is, that that word was chosen
rather than the word "companies"? Company law was,
of course, an established topic of legislation in
1900. As at 1900, companies were of two kinds: they
were unincorporated associations and they were
associations which had already been incorporated which
were called corporations.

Could I take Your Honours to some contemporaneous

authority? We have given Your Honours two references

to Halsbury: the first of them is to the first

edition - this is in the book which we handed up to Your Honours - page 17 has a reference to the first

edition of Halsbury. If Your Honours go to page 18 -

that is the 1910 edition - Your Honours will see in

the first paragraph, it is stated there:

It may not be possible to bring within the terms

of a logical definition either a company or an

association, or that which may in a certain

sense be implied by either or both of these

words; but it has been loosely described as the

result of an arrangement by which parties intend

to form a partnership which is constantly

changing - to-day consisting of certain members
and to-morrow consisting of some only of those
members along with others who have come in -
so that there is a constant shifting of the
partnership, a determination of the old and a

creation of a new partnership, with the intention
that, so far as the partners can by agreement

between themselves bring about such a result,

the new partnership shall succeed to the assets

and liabilities of the old partnership. It

generally consists of a considerable numbers of
persons, and, if it has shares, those shares

are transferable. One of the leading differences

between a company and an ordinary partnership

is that in the former a member can, and in the

ClT14/l/DR	22	3/10/89
NSW(2)

latter he cannot, sell his shares without

Tl4	the consent of all the other members.
A company may be incorporated or
unincorporated. In the former case,
the corporation is a totally different
person, or thing, or entity from its members - the individuals comprising it.
A company which is not incorporated or
privileged by the Crown or from the
legislature is not from a legal point
of view distinguishable from the members
composing it.

We have included also the fourth edition of Halsbury,

Your Honours, which appears at page 21, and the

statement is much the same. The first paragraph 1s

perhaps sufficient - if Your Honours were to read the

first paragraph of Halsbury on page 21.

The other text which we have included, Your Honours,

is Lindley, and that is on page 40 of that book.

It is interesting to note that the title of

Lord Lindley's book is A Treatise on the Law of

Companies Considered as a Branch of the Law of

Partnership. That wasin the 1902 edition and in the

introductory paragraph much the same is said as is

said by Halsbury, in the first sentence, for example:

By a company is meant an association of

many persons who contribute money or
money's worth to a common stock and

employ it for some common purpose.

Then further down he says:

A compnay which is neither incorporated nor privileged by the Crown or the Legislature

is substantially a partnership -

although he goes on to deal with transferability of

shares which does not exist in an ordinary

partnership.	Your Honours, there are two other
authorities to which I should refer you.	One is

SMITH V ANDERSON, (1880) 15 ChD 247, and I want

to take Your Honours to what Lord Justice James said

at page 273, which concerned the construction of the
fourth section of the 1862 English COMPANIES ACT, which

appears in the volume of additional material at page 28.

That is the provision which, at that time, prevented

the formation of a company association or partnership of more than 10 persons after the commencement of the Act for the purpose of business, the acquisition of

gain, except by registration under the Act.

His Lordship said, of that Act:

The Act was intended, as it appears to me,

to prevent the mischief arising from large

ClTlS/1/HS	23	3/10/89
NSW(2)

trading undertakings being carried on

by large fluctuating bodies, so that

persons dealing with them did not know

with whom they were contracting, and

so might be put to great difficulty and

expense, which was a public mischief to

be repressed. The enactment upon which

the question before us turns is as follows -

and he then sets it out. He says:

Now there are three words there,

"company, association or partnership".

I cannot understand what the difference is

between a company and an association. The

word "association", in the sense in which

it is now commonly used, is etymologically
inaccurate, for "association" does not
properly describe the thing formed, but
properly and etymologically describes the
act of associating together, from which

act of association there is formed a

company or partnership. But I believe

that according to the vernacular we use

on these subjects the difference which the

Act intended to draw between a company or

association and an ordinary partnership is

this: An ordinary partnership is a

partnership composed of definite individuals

bound together by contract between themselves

to continue combined for some joint object,
either during pleasure or during a limited
time, and is essentially composed of the

persons originally entering into the

contract with one another.

(Continued on page 25)

ClTlS/2/HS	24	3/10/89
NSW(2)

MR DAVIES (continuing):

A company or association (which I take to
be synonymous terms) is the result of an
arrangement by which parties intend to form
a oartnership which is constantly changing,
a partnership to-day consisting of certain

members and to-morrow consisting of some only

of those members along with others who have come
in, so that there will be a constant shifting

of the partnership, a determination of

the old and a creation of a new partnership, and

with the intention that, so far as the partners

can by agreement between themselves bring about

such a result, the new partnership shall,succeed

to the assets and liabilities of the old
partnership. This object as regards liabilities

could not in point of law be attained by any

arrang~ment between the persons themselves,

unless the persons contracting with them
authorized the change by a novation, or unless
by special provisions in Acts of farliament

sanction was given to such arrangements.

Your Honours, the other case to which J would like
to refer is a case which is not on our list but could

I hand up copies to Your Honours. It is a case

called IN RE STANLEY. TENNANT V STANLEY,(1906) 1 Ch 131.

As Your Honours will see from the headnote it

concerned the construction of a term in a will by which:

A testator empowered the trustees of his will

to invest moneys in (amongst other things) the
"stocks, funds and securities (not payable to

bearer) of any corporation or company -

and Mr Justice Buckley at page 134 said, in the

second full sentence on that page:

But the words are "any corporation or company."

The word "company" has no strictly technical

meaning. It involves, I think, two ideas - namely,

first that the association is of persons so

numerous as not to be aptly described as a firm;

and secondly, that the consent of all the other

members is not required to the transfer of a
member's interest. It may, but in my opinion here

it does not, include an incorporated company.

So our point in referring to those cases is that, in

our respectful submission,it must have been in the minds

of the draftsman of placitum (xx) that there was a

distinction between comnanies and corporations, the

latter being a subcategory of the former and being those

companies which had been incorporated.

ClT16/l/LR	25	3/10/89
NSW(2)

And indeed perhaps J should also mention that

the FEDERAL COUNCIL OF AUSTRALIA ACT - and this

will be put before you by the Cormnonwealth, but can I

simply mention it at this stage, that section 15 of
that Act included amongst the matters capable of
referral to the Federal Council of Australia the status
of corporations and joint stock companies in other

colonies than that in which they have been constituted.

So the fact that "corporations" was a

subcategory of "companies" was a matter, in our

respectful submission, in the minds of the draftsmen

of the legislation.

BRENNAN J: 

Do you mean that exhausts the connotation of

corporations? Does it include, for example,
corporation sole?

MR DAVIES:  No, I do not say that, Your Honour. What I do

say is that what corporations are are bodies which

have been incorporated. It is really not relevant

to our submission to say one way or the other about

that but simply to say that they are not in that wide

category of companies which was known to exist under

the company law of 1900.

McHUGH J:  Does this argument lead to the conclusion that the

Cormnonwealth can only regulate the external activities

of a company?

MR DAVIES: Well, possibly, Your Honour, but it is not necessary

for us to go as far as that. The question really before

this Court is whether in fact - question 1 before this

Court is whether in fact the Commonwealth has oower

to legislate with respect to incorporation. ·

(Continued on page 27)

ClT16/2/LR	26	3/10/89
NSW( 2)

McHUGH J:	But you may not be able to determine one without
determining the other. Could the Commonwealth
pass a law which said that, "No trading corporation
shall be formed within the Commonwealth of Australia
unless it has a paid-up capital of x dollars"?
MR DAVIES:	No, Your Honour, because that deals with formation

and internal regulation of the company, and we would

submit, if it be necessary to make the submission,

that internal regulation is a matter for the law of

the incorporating body.

Your Honours, it also appears, and I do not think

I need take Your Honours back to section 4 of the

1862 United Kingdom COMPANIES ACT, but Your Honours

will recall that what it did, in section 4, was

prohibit unincorporated companies of more than

20 persons. k specifically referred to companies in

the prohibition; it was companies, associations or partnerships which it prohibited the continuation,

and then provided for incorporation and its

consequences, and that provision was mirrored

in the COMPANIES ACTS of the Australian colonies,

and we have given Your Honours two of those in our

book - I will not take Your Honours to them -

the COMPANIES ACT Queensland, and the COMPANIES ACT

New South Wales at that time also, in the equivalant

provisions, did the same thing: prohibited the
continuation of unincorporated companies and provided

for incorporation.

So, what we are really saying is, had placitum (xx)

referred to companies, there might have been more support for the notion that the grant extended to the power to incorporate, but the choice of the

word "corporation" is a fair indication that the
grant of power was intended to extend only to
incorporated companies, thereby assuming the
existence of the entities and dictating against a
conclusion that the power to incorporate was

also conferred.

Now, Your Honour, in our respectful submission

that is a fortiori when one adds the words, "trading"

or "financial corporations". Those phrases describe

corporations which derive their character from

activities which they carry on, or, if the decision

of this Court in FENCOTT V MULLER is correct, and
others will seek leave to re-argue that case, but if

the decision in that case is correct, also from

activities which they intend to carry on. But both,

in our respectful submission, require entities capable

of carrying on those activities, or of forming that

intention, and that presupposes, in our respectful

submission, existing entities.

ClT17/l/FK	27	3/10/89
NSW(2)

In our respectful submission, a law with

respect to trading or financial corporations must,
at least, to adopt the words of Your Honour

Justice Brennan in two cases, must at least be
one which operates to confer a benefit, or impose
a burden upon those persons where its operation
does not confer a like benefit, or impose a like

burden on others, and it cannot do that before there

are persons of that character in existence.

I am, of course, taking Your Honour's statement

from the TASMANIAN DAM case, which adopts what

Your Honour had earlier said in ACTORS AND ANNOUNCERS

EQUITY V FONTANA FILMS. The reference to the passage

of Your Honour's judgment in the TASMANIAN DAM case is

158 CLR 1 at 240, where Your Honour said in the paragraph

connnencing at the middle of that page:

(Continued on page 29)

ClT17/2/FK	28	3/10/89
NSW(2)

MR DAVIES (continuing):

The constitutional issue thus arises: are the

prohibitions contained in s.10 laws with respect
to trading corporation? Laws with respect to

trading corporations are laws with respect to

artificial persons. To be such a law, the law

must discriminate: that is to say, it must be a law which operates to confer a benefit or impose a burden upon those persons when its operation

does not confer a like benefit or impose a like

burden on others:

And Your Honour referred to what you have said in

FONTANA FILMS and I will not take the Court back

to that, but we adopt what Your Honour said there

also. Your Honours, in our respectful submission,

the proposition that placitum (xx) empowers

legislation with respect to incorporation is

inconsistant with the way in which trading and

financial corporations have been defined by this

Court. Because the question of what is a

trading corporatiou must depend upon whether
trading activities form a sufficiently significant

proportion of its overall activities _and I am

taking the statement of Your Honour the Chief Justice -

whether they form a sufficiently significant

proportion of its overall activities as to merit that

description.

It is inevitable that the answer to that question,

in relation to any corporation, may vary from time to

time, depending on the activities in which it

engages. It may be a trading corporation one month;

it may not be the next. Furthermore, if

FENCOTT V MULLER is correct, then the answer to

that question may vary, depending on whether or not

the company has commenced its activities or is still

dormant. Whilst still dormant, the answer· depends

on whether the objects include engaging in trading

activities. But once activities have commenced it

depends on whether those activities form a sufficiently

significant proportion of its overall activities.

Now all of this, in our respectful submission, makes

it unlikely that the legislature intended to confer

a power to incorporate companies,. the continuing

power to regulate, which would be lost so easily and

indeed so unknowingly on the part of both the

companies, and the regulators. Now,the correctness

of FENCOTT V MULLER isnot relevant to that submission

though,as I menti.oned. it is relevant to some that

will be made a little later.

CIT18/l/CM	29	3/10/89
NSW(2)

Your Honours, we also adopt what Your Honours

will recall Mr Justice Barton said about trading

and financial corporations by comparing them with

foreign corporations, that is, His Honour said in

HUDDART PARKER, that the language used -

is carefully framed to place -

trading or financial corporations formed

within the limits of the Cormnonwealth -

on the same footing as foreign corporations
with regard to the stage at which they become

subject to federal legislation.

And the argument then goes on as to foreign

corporations, the creative power could not possibly be

conferred and therefore it was not the legislatures

intention to confer that power with respect to

trading and financial corporations. In other words,

one would assume that the cormnon, overall grant

would authorize the Federal Parliament to begin to

deal with the two classes of corporations at the

same stage, and that is after incorporation by a

foreign State or after incorporation under some
other power than Placitum (xx).

Your Honours, as I intended to say something

about HUDDART PARKER, perhaps I should deal with it
as completely as I intend to, beca,ise it has

certainly been overruled in some a pects, and one

of the points I really wanted torr ke later, and

perhaps I can make it now, is that not only was it

not overruled in this respect; no only is it still

good law in this respect, but the doctrine of

reserved p~wers and in the case of Mr Justice Higgins,

a now dis-redited view of characterization, played

no part in the conclusion which the Court reached

that ~lacitum (xx) did not empower legislation with

respect to incorporation. (Continued on page 32)

CIT18/2/CM	30	3/10/89
NSW(2)

MR DAVIES (continuing):  Can I take Your Honours then to that case:

HUDDARD PARKER, 8 CLR 330. First of all, Your Honours,

all members of the Court reached the conclusion that
placitum (xx) did not empower a law with respect to

incorporation. Can I take Your Honours briefly to

the passages in each of those judgments where that

conclusion is reached? First of all, the Chief Justice

at the bottom of page 348, where he says - in the

second sentence of the last paragraph:

But I am of opinion that the words in question

do not on their face purport to deal with the

creation of corporations.

He goes on to say something and I will come back to it

a little later. Then, Mr Justice Barton, at page 362

connnencing about point 8 on that page over to the

top of page 363; Mr Justice O'Connor at page 371,

connnencing in the first full paragraph on that page

and going down to about point 9 on that page;

Mr Justice Isaacs at pages 393 through to 395.

He says, for example, at the middle of

page 394:

The creation of corporations and their

consequent investiture with powers and

capacities was left entirely to the States. Finally, Mr Justice Higgins, at page 412, about the

middle of that page. The other point I should make

at the outset, Your Honours, is that that was part

of the ratio of the case. It was argued, as appears

at page 339, by Mr Duffy, that - if Your Honours

look at the second sentence in his argument:

Sec. 5l(xx) of the CONSTITUTION gives the
Connnonwealth Parliament authority to create
corporations and to make laws with resµect
to everything which has relation to the powers

and scope of corporations.

That was part of his argument as to the validity of

the legislation in that casP- and it was really, in

rejecting an argument, that the c~urt reached the

conclusion to which I have just taken Your Honours.
Now, the second point I want to make about the case, Your Honours, is that none of these conclusions

were influenced by the doctrine of reserve powers.

Of course, Mr Justice Isaacs rejected the doctrine

and he did that at pages 407 to 408. Mr Justice Higgins

did not espouse the doctrine at all but decided the

question as one of construction. That appears clear

enough when you look at page 411, the paragraph

connnencing about two-thirds the way down that page.

He says, in the last sentence of that paragraph:

C1Tl9/l/DR	31	3/10/89
NSW(2)

My opinion, as will be seen, rests simply on the construction of sub-sec. (xx) as one of the powers conferred by sec. 51 of the

CONSTITUTION, and on examination of -

those sections. Your Honours, although the

Chief Justice did espouse the doctrine of reserved

powers, it did not affect his conclusion in this
respect in the sense that he used the doctrine of

reserved powers for his conclusion in the other respect

but not in this one. Can I take Your Honours to what

seems to be the sequence of his reasoning?

(Continued on page 33)

ClT19/2/DR	32	3/10/89
NSW(2)

MR DAVIES (continuing):  The first part of his reasoning

which is at page 348 - i I can perhaps commence

at the middle of that page where he says:

It is not seriously disputed that the

words of pl XX, if they stood alone, might be capable of such a construction, but the

appellants contends that it is not the true

one.

Now, the construction he is talking about is the

question which he sets out in the fourth line of

that page, that is:

the question is whether the power to make

laws with respect to "foreign corporations,

and trading or financial corporations formed

within the limits of the Commonwealth" extends

'to the governance and control of such

corporations when lawfully engaged in domestic

trade within the State. If it does, no limit

can be assigned to the exercise of the power.

So what he is saying, first of all, is that the

words of placitum (xx), standing alone, might be

capable of the construction that it extends to

the governance and control of trading or financial

corporations formed within the limits of the

Commonwealth when those corporations are engaged

in domestic trade.	So that is a question of
construction.

Then the second question of construction he

reaches is in rejecting the Commonwealth's argument

that the words of placitum (xx) are large enough
to include the creation of trading and financial

corporations.	And he does that from about point 8
on page 348 over to the top of page 349.	He says:

But I am of opinion that the words in question do not on their face purport to deal with

of foreign corporations it is obvious that	the creation of corporations. In the case
the Parliament cannot create them. The
formation and regulation of corporations in
general is one of the matters left to the
States, and in my judgment the words "formed
within the limits of the Commonwealth" mean formed under State laws. They may be large
enough to include corporations formed by the
Commonwealth itself within territory under
its exclusive jurisdiction, and corporations
created by the Commonwealth itself as
instruments of government; but an express power is not necessary for either purpose.

C 1T20/1	/ND	33	3/10/89
NSW(2)

So he then reaches that question of construction.

And then, the third state of his reasoning,

is the application of the reserve powers doctrine

to reject what would otherwise be the construction
which he first reached, that is that the

placitum (xx) extends to the governance of trading

and financial corporations where they are engaged

in domestic trade. And he does this, really,

at pages 352 to 354. He starts off, really, at

the second paragraph on page 352 where he says:

The CONSTITUTION is therefore to be

construed as if it contained an express

declaration -

and then he poses the question in the following

paragraph. Then he deals with some cases, then

at page 354, in the first full paragraph, he

applies the doctrine of reserve powers to reject

what was a prima facie construction argl.Ililent he had

reached earlier.

So it is clear enough, in our respectful

submission, that his view as to reserve powers

had no relevance to his second conclusion, that

is that the words of placitum (xx) are large enough

to include the creation of trading and financial

corporations and that on their face they do not

deal with - his rejection of the Commonwealth argl.Ililent

they are large enough to embrace that and his statement

that the words "on their face" as a matter of

construction do not deal with the creation of

trading and financial corporations, that on their

proper construction and having regard to the

inclusion of foreign corporations and the use of

the words "formed", he took all that into account,

they do not do so.

Similarly, Mr Justice Barton reached the

conclusion in this respect without reliance on

the doctrine of reserve powers. At pages 362 to

363, that is commencing about the middle of

page 362, where he talks about foreign corporations

having their creative power existing elsewhere,

and then, about eight lines from the bottom he

says:

On this construction "formed within the limits

of the Commonwealth" means formed under the

law of a State -

and having done that, having reached that

conclusion, he then goes on to discuss the doctrine

ClT63/l/JH 101 3/10/89

NSW( 2)
MR HANDLEY: Well, Your Honour, in my submission, section 112

presupposes an honest statement about the purposes

of the corporators - - -

DEANE J: That is what I have missed. What would stop a

non-trading or financial association becoming

incorporated?

MR HANDLEY:	Under the federal Act?
DEANE J: Yes.

MR HANDLEY: Well, Your Honour, the first point is: the

scope of placitum (xx) - - -

DEANE J:  No. I was not talking about that, I was looking at

the Act.

MR HANDLEY:  Your Honour, it is the activity statement.

The proposed activity statement, if it was a truthful one, would indicate that this was not going to be a

trading or financial corporation.

DEANE J: And that is section 153.

MR HANDLEY:	This is one of the problems of division of labour. Section 153(3), Your Honour, for example.	Now,
except by making a false -

DEANE J: What, do you read "may" as meaning "must".

MR HANDLEY: Section 153(l)(e) makes it compulsory, Your Honour.

TOOHEY J: It makes it compulsory to opt for either (3), (4)

or (5)?

MR HANDLEY:	Yes, Your Honour.
TOOHEY J:	I see.

McHUGH J: But, Mr Handley, section 153 says, "the Corrnnission

shall not register a company" unless that happens

but how do you work that prohibition into

section 112? That is why I asked about those

words, "is capable".

(Continued on page 103)

ClT64/l/DR	102	3/10/89
NSW(2)

MR HANDLEY:  Your Honour, let us assume for a moment that a

particular sort of corporation could be formed for the purposes of gain which was not going to pursue

gain through trading. Now, if the corporators,

the promoters, made an honest statement of the purposes

for which that corporation was being promoted - - -

DEANE J:  Say they say section 153(5)?

MR HANDLEY:  No, Your Honour. May I respectfully suggest we

iust leave out the complications, that it is going to

be a shelf company and then be sold on in 21 days

and just go to section 153(3). If they cannot make

a section 153(3) statement but they do make a statement

which sets out what they are, in fact, intending to do,

that statement would not make the corporation, when

formed, a trading corporation, and its activities

are going to follow immediately on incorporation.

McHUGH J:  But, Mr Handley, that is what I do not follow. If

you go to section 112, the prohibition:

A person shall not participate in the formation of an outsize partnership

unless -

and then there is a definition of "outsize", but that

has nothing to do with section 153 or section 155

statements. There must be something about that

partnership independently of this Act which is

capable of being recognized as being in contravention

of these sections.

MR HANDLEY:  Yes. Your Honour, the prohibition in

section 112(2)(a) is against the formation of a

partnership for the purpose of gain.

(Continued on page 104)

ClT65/l/HS	103	3/10/89
NSW(2)

MR HANDLEY (continuing):  The hypothesis behind Mr Justice Deane's

question is that gain is a wider class of activity

than trading and financial operations, so that

112(2)(b) says you can only incorporate - hang on, I

see what -- -

MASON CJ:  Do you follow?

MR HANDLEY: There is an accumulative - yes, I think actually

there is no difficulty such as Mr Justice Deane put
to me, because if you hypothesize a partnership

which is formed for the purposes of gain, which is
not going to engage in trading activities or
financial activities, then it cannot be incorporated
under Division 1 of Part 2.2 and therefore it is not

within the prohibition in 112(2), is that not right?

MASON CJ: You may have to wait some months for the answer,

but perhaps that might be a convenient time to

adjourn.

MR HANDLEY:	Back to the drawing board, ye& Your Honour.
MASON CJ:	We will resume at 10.15am tomorrow morning.

AT 4.16 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 4 OCTOBER, 1989

CIT66/l/CM	104	3/10/89
NSW(2)