State of New South Wales v S

[2009] HCATrans 264

[2009] HCATrans 264

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S190 of 2009

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

S

Respondent

Summons for expedition

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 8 OCTOBER 2009, AT 9.48 AM

Copyright in the High Court of Australia

MR P MENZIES, QC:   If your Honour pleases, I appear for the State, the applicant on the summons and the applicant for special leave.  (instructed by Crown Solicitor – NSW)

MR D.M. SHOEBRIDGE:   If the Court please, I appear for the respondent.  (instructed by Edwards Michael Lawyers)

MR P.F. SINGLETON:   If it please, your Honour, I appear for the Commissioner of Police who has filed a summons yesterday seeking other relief and on which I would seek to move after the primary summons has been considered.  (instructed by New South Wales Commissioner of Police)

HER HONOUR:   Yes, Mr Menzies.

MR MENZIES:   If your Honour pleases.  This is a summons for expedition of an application for special leave.  The reason for expedition is primarily that it was made a condition by the Court of Appeal.

HER HONOUR:   Yes.

MR MENZIES:   The appeal in the Court of Appeal was expedited because of the fragile psychological state of the then appellant.  I understand that the application for orders and directions is by the consent of my learned friends and we move on the affidavit of Margaret Anne Bateman, sworn 1 October which explains that which I have just stated, your Honour.

HER HONOUR:   Thank you, Mr Menzies.  I have had an opportunity to read Ms Bateman’s affidavit.  Mr Shoebridge, do I understand you have filed an affidavit by Ms Powell?

MR SHOEBRIDGE:   It is, your Honour.  Ms Powell of 7 October. 

HER HONOUR:   Yes.

MR SHOEBRIDGE:   There were some short submissions filed yesterday in this matter.

HER HONOUR:   Thank you, Mr Shoebridge.  I have had the opportunity to read those.  Do I understand you read the affidavit of Ms Powell?

MR SHOEBRIDGE:   Yes, your Honour, and the respondent’s position is put in those rather short submissions, your Honour.

HER HONOUR:   Yes, thank you.

This is a summons claiming an order that the hearing of the application for special leave to appeal be expedited.  The respondent was a police officer with the New South Wales Police Service.  She brought proceedings in negligence against the applicant, the State of New South Wales, for damages for psychiatric injury arising out of her employment as a police undercover officer.  Her claim failed at first instance.  She was successful in the Court of Appeal which set aside the judgment below substituting judgment for the respondent in an amount in excess of $1.5 million.

On 25 September 2009, Justice Macfarlan stayed the orders made by the Court of Appeal on 5 August 2009 upon the respondent’s undertaking to proceed expeditiously with its application for special leave to appeal to this Court and with any appeal which may follow that application.  The respondent in this Court supports the application for expedition.  The respondent’s solicitor, Ms Powell, has sworn an affidavit to which is annexed a report authored by Dr Selwyn Smith, a consultant psychiatrist who states that the present litigation is preventing the respondent from adjusting to the psychological trauma to which she has been subject and that the resolution of the matter as soon as possible will assist in the amelioration of her psychological stress.

It is an appropriate matter in which to direct expedition.  The consent orders filed by the parties that are annexed to the affidavit of Ms Bateman, and which are dated 29 September 2009, insofar as still relevant should be made and I propose to do so.  Before making formal orders, it might be convenient to deal, Mr Singleton, with the summons that your client has filed.

MR SINGLETON:   May it please, your Honour.  The summons was filed yesterday and I seek to move on it, subject to one amendment in prayer 3.  Your Honour may see there in the second line a reference to “exhibit B”.  It should read “exhibit A to the affidavit of Margaret Anne Bateman”.  I seek leave to make that amendment and then to move on the summons.

HER HONOUR:   Yes.

MR SINGLETON:   In support of the summons I read the affidavit of Cheryl Elizabeth Drummy affirmed on 7 October but filed on 8 October.  I also tender the exhibits that are mentioned therein in this way.  Exhibit A and exhibit B are tendered in the ordinary way.  Exhibit C is tendered as a confidential exhibit not for publication generally, although both of my learned friends and their clients have access to that material.  Exhibit D is something that Mr Shoebridge and his team have not seen and I only will come to tender it if it is necessary to do so.  We do not think it is necessary, but if we are wrong about that we would need to rely on it.  If I could just outline what we are seeking to do, in short, it is to ‑ ‑ ‑

HER HONOUR:   Perhaps before you outline that, Mr Singleton, I might just inquire of Mr Menzies and Mr Shoebridge their attitude to the relief that your client claims in his summons.  Mr Menzies.

MR MENZIES:   We are indifferent about it, your Honour.

HER HONOUR:   Mr Shoebridge?

MR SHOEBRIDGE:   Equally, your Honour.  The respondent is somewhat used to these applications in these proceedings, but we consent to orders 1 to 7 and indifferent to the balance.

HER HONOUR:   Very well.  Yes, Mr Singleton.

MR SINGLETON:   It is convenient to note, I think it is correct to say, that Mr Shoebridge’s consent is on the understanding, which is correct, but which I now confirm, that the applicant for special leave, the State, has put its position in the proceedings as it will pay the costs of the proceedings of both parties regardless of the result, and it is the Commissioner’s understanding, and the Commissioner’s solicitor is the same as the State’s solicitor, that that covers all costs arising out of my client’s involvement in the proceedings, that is, an application for public interest immunity will perhaps cause some costs but they are costs in the proceedings and the State is going to cover them.  It is on that basis and understanding Mr Shoebridge told me he would be consenting.

What the summons seeks to do is to continue the confidentiality regime which was adopted, first by the primary judge and then by the Court of Appeal.  It seeks to protect from public dissemination certain details of police methodology.  The need for that has arisen because the respondent, who was the plaintiff originally, was a former undercover police officer.  The nature of the proceedings, or her case in the proceedings made reference to her work as such and it is in the nature of such work that it involves confidential police methods of operation.

Rather than the Commissioner intervening to take public interest immunity objections to prevent the plaintiff from adducing the evidence she might need for her case when she herself knew it, the more unusual course was taken of setting up a confidentiality regime, including other evidence adduced in court.  The rules of public interest immunity are substantive rules of law, not mere rules of evidence and although they usually operate to prevent evidence being adduced, that usual situation is one in which the, say, criminal accused does not know the secret and is, in the public interest, not to know the secret information. 

But in this case, when both parties knew the confidential methods, it did not seem to be in the interests of justice to deprive the plaintiff of her chance of prosecuting her case when an alternative remedy was available.  The courts below agreed to that approach and we are seeking to perpetuate it here.

The areas of confidentiality compared with the bulk of the paperwork are very limited indeed, but nevertheless there are some significant matters and Ms Drummy’s affidavit produces the affidavits from below of the senior police officer, Mr Loy, which goes into detail about them.  There is, I apprehend, no great controversy, between the parties at least, as to the need for that confidentiality in the public interest.

Could I turn to the details of how the summons proposes the regime to work.  We, in the first few prayers, that is, prayers 1, 2 and 3, have sought non‑disclosure orders in respect of three documents that have already been filed in the proceedings and we identify the particular words which should not further be published by way of reference to the schedule to the orders, Parts 1, 2 and so on.  Prayers 4, 5 and 7 anticipate that certain documents will, in due course, be filed.  They are the amended notice of appeal to the Court of Appeal, the unedited reasons of the primary judge and the unedited reasons of the Court of Appeal.  It would be most surprising if those documents are not filed.

HER HONOUR:   Yes.

MR SINGLETON:   This Court will need them.  But, as they have not yet been filed, we respectfully apprehend that it is not within the provenance of the Court to start making orders about it.  Hence, the somewhat unusual order starting with the word “Of” – “Of any copy that is filed, there shall be no disclosure”.  The approach we have taken is predicated on this basis.  The Court of Appeal and the primary judge had jurisdiction to control what was before them.  It, however, could not bind this Court in its control of its papers.  On the other hand, this Court does not have a general jurisdiction to prevent disclosure to the world at large of documents.  It can only control the documents filed in its proceedings and, accordingly, although they are to a large extent the same documents as covered below, we apprehend a need for this Court to make orders in respect of the copies filed in these proceedings and that is what this summons seeks to do.

HER HONOUR:   There is presently in existence an order made by Justice Macfarlan prohibiting publication of documents identified in a schedule, being those documents referred to in paragraphs 1, 2, 3, 5 and 7 of the Commissioner’s summons.

MR SINGLETON:   Yes.  We seek to go no further, except to say the regime will apply to copies filed in this Court.  We, whilst there might be some argument about it, are prepared to assume that the Court of Appeal could not prevent this Court from disclosing the copies filed here, but we would ask this Court to make a commensurate order.

HER HONOUR:   Yes.

MR SINGLETON:   I should, for completeness, mention the other prayers.  Prayer 6 simply allows a pseudonym to be used.  All of the material in Part 1 of the schedule is a name of some kind and a pseudonym has been used in the proceedings below.  The pseudonym is “CE-1”.  Order 6 would allow that pseudonym to be used.  Prayer 8 seeks to give the Commissioner leave to make further applications as may be needed and to facilitate that, in a practical sense, seeks to have the Commissioner have access to documents filed in the proceedings.  Prayer 9 seeks to establish an ongoing regime, pursuant to which any further documents to be filed in the proceedings would be served on the Commissioner would not be publishable for seven days and if, within the seven days, the Commissioner brought an application for non‑disclosure, then there would be no disclosure until that application was determined.

We respectfully hope that that is a convenient way to get us involved and enable us to draw attention to any issues that need further non‑disclosure orders.  It may well be that the process of filing summons and consent documents will enable most of this to be dealt with in chambers given that the evidence on which we are likely to rely is that which Ms Drummy produces in her affidavit read today.

HER HONOUR:   Absorb proposed order 9 – the parties have no objection to the requirement that copies of any document served be served on the Commissioner and the proposal that there be no disclosure of the content of those documents other than for the purpose of properly conducting the proceedings for the period of seven days thereafter.

MR SHOEBRIDGE:   No, your Honour, other than the inclusion of the word “properly” seems otiose and I thought we had an agreement as to that, and given the position as to costs, there is no objection.

MR SINGLETON:   We did have an agreement to drop the word “properly”.  It is gone from everywhere ‑ ‑ ‑

HER HONOUR:   Going to save argument, Mr Singleton, yes.

MR SINGLETON:   And that is the reason we agreed.  Could your Honour strike the word “properly”.  We, of course, assume that there will be propriety anyway.

HER HONOUR:   Indeed.  In paragraph 4 “properly conducting the proceedings” is the formulation used.  I take it ‑ ‑ ‑

MR SINGLETON:   Wherever it may appear.  It may be that this was filed before the negotiated narrowing was achieved. 

HER HONOUR:   Wherever appearing.

MR SINGLETON:   I do not press that part of it.

HER HONOUR:   All right.  In light of the contents of Assistant Commissioner Loy’s affidavit that was before the Court of Appeal made on 20 May 2009, together with the second of three affidavits sworn by the Assistant Commissioner on that day, exhibit C to the affidavit of Ms Drummy, being a confidential affidavit, I am disposed to making orders broadly consistent with those sought.  It seems to me appropriate to make them pending the matter coming for hearing for the grant of special leave.  Whether or not the Justices dealing with that application consider it appropriate to continue the orders or vary them in some way would be a matter possibly for consideration on that occasion.  So I think any order that I make today should be expressed to be subject to further order.

MR SINGLETON:   With respect, we do not cavil with that whatsoever.

HER HONOUR:   Very well.

MR SINGLETON:   If your Honour is thinking of moving to the formal pronouncing of orders, could I raise two other matters?

HER HONOUR:   Yes.

MR SINGLETON:   One is, following on from what your Honour has just said, I anticipate that the Commissioner will appear at the special leave application.  We do not expect to apply for a closed court.  It is too extreme a relief in the circumstances and the parties are familiar with the sensitive material.  The procedure that was adopted in the Court of Appeal was for there to be an order of non‑publication of the transcript for a short time to enable the Commissioner to make any necessary application if something happened to be said that was sensitive.  I mention it now just in case your Honour wished to direct anything about preparing or foreshadowing it in a more formal way.

HER HONOUR:   Mr Singleton, from such small acquaintance I have with the issues that are going to be ventilated on the special leave application I would find it surprising that such an occasion would arise, but if it did arise, you have indicated the Commissioner would have a representative present and, presumably, an application could be made to the Justices then dealing with the matter.

MR SINGLETON:   To be more precise about it, we would listen carefully and, at the end of the hearing if we thought there was a problem, we would make an application but we do not seek to close the court at the beginning.  The other thing I wanted to indicate was that since the filing of the summons the next document has already come in.  It is the respondent’s summary of argument.  It would be covered, if your Honour made an order in the terms of prayer 9, by the seven day regime and we could deal with it in that way.

HER HONOUR:   Yes.

MR SINGLETON:   But we have, in case it is convenient, already identified the sensitive material in that document and have drafted a proposed minute of order which identifies the dozen or so words which would be for non‑publication and we would provide that to your Honour for an order now, if it is convenient, or deal with under the seven day regime by way of another summons.  I am in your Honour’s hands.

HER HONOUR:   It would be convenient to deal with it now if – Mr Menzies, have you had a chance to have a look at this?

MR MENZIES:   No, I have not, your Honour, but I do not anticipate that it will cause me any difficulty.

HER HONOUR:   Mr Shoebridge.

MR SHOEBRIDGE:   There are no difficulties from our part, your Honour.

MR SINGLETON:   May I respectfully hand up a proposed minute of order to which is stapled photocopies of three pages of Mr Shoebridge’s argument, highlighted in yellow to indicate what the order in practice seeks to have subject of non‑disclosure?  The annexure is just, in effect, an aide‑mémoire to explain the practical operation of the proposed order.

HER HONOUR:   Yes.  The matters that have been highlighted I see are matters that are addressed by Assistant Commissioner Loy.  Mr Singleton, I had taken the opportunity of reading the material filed in support of your summons before coming on the Bench.  The material that, as I see it, would justify the making of a non‑publication order, bearing in mind the need for there to be an evidentiary basis for such an order, would seem to me to be contained in the second of the confidential affidavits sworn by Assistant Commissioner Loy on 20 May 2009.

MR SINGLETON:   On that basis then I tender that affidavit.

HER HONOUR:   You told me that Mr Shoebridge had not had access to that document.

MR SINGLETON:   Yes, that is my understanding.  The basis for that is that it contains information which is not within his client’s knowledge.  She is not a current undercover police officer and the basis upon which it is withheld from her is the same basis on which it is withheld from everybody else, namely, that it is contrary to the public interest to disclose such matters to anyone who does not need to know.

HER HONOUR:   It may be that you can direct me to somewhere else in the evidence where there is the material.  The alternative may be that you limit the tender to paragraphs 11 to 16 of the affidavit that is exhibit D to the affidavit of Ms Drummy and show that material to Mr Shoebridge.

MR SINGLETON:   Exhibit B, your Honour.

HER HONOUR:   Exhibit D, I thought.

MR SINGLETON:   I am sorry, I may have misheard your Honour.

HER HONOUR:   I am sorry, exhibit D.  No, exhibit D.  Mr Singleton, I am very loath ‑ ‑ ‑

MR SINGLETON:   I understand what your Honour says and I understand the loathness of any court to act.  I do not have instructions at this stage.  I might be able to get them very quickly, but I do not have instructions.  Could I indicate there is considerable authority for the proposition that courts will deal with public interest immunity issues on the basis of evidence known only to the court and not to any of the parties.

HER HONOUR:   I appreciate that, Mr Singleton, but that is a principle based on necessity.  On the material that is available to me the necessity for withholding from a party to the proceeding the basis for the making of the order in relation to the material disclosed in those paragraphs of Assistant Commissioner Loy’s affidavit is unclear.  It may be you could persuade me, but I am not at this stage persuaded.

MR SINGLETON:   Could I very briefly attempt to persuade your Honour?

HER HONOUR:   Yes.

MR SINGLETON:   By taking your Honour to the second word of paragraph 12.

HER HONOUR:   Yes, I see that.  Mr Singleton, do you tell me that this would be – I mean, I am not interested in playing ducks and drakes, Mr Singleton.  Is there some significance to that second word or would it be reasonable to infer that it would be within the respondent’s knowledge?  In other words, has there been a relevant change touching on that circumstance?

MR SINGLETON:   There has not been a relevant change, but the applicant does not know ‑ ‑ ‑

HER HONOUR:   That there has not been.

MR SINGLETON:   ‑ ‑ ‑ that there has not been.  She probably now could start to infer what we are talking about.  In the light of the litigation and surrounding publicity, the question of whether or not there has been a relevant change is a very live one and a very significant one for the wrong people and it is one thing to give an historical overview from which inferences can be drawn, another thing to confirm it to a person who does not know it.  I appreciate there is a fine line here.

HER HONOUR:   Can I point out a matter that might be considered to bear on the resolution of these questions, Mr Singleton, and it is the efficient conduct of the litigation.  Presumably, the legal practitioners appearing for each of the parties will make every reasonable endeavour in any documents that they file by way of outline of argument or otherwise to avoid causing difficulty by, where possible, not disclosing material that would be the subject of a non‑publication order.  To that end, it would help to understand the issues that are likely to give rise to the need for the making of such an order.  Sometimes they are very apparent and sometimes perhaps less so.

I have the gravest difficulty understanding, having regard to the background of the respondent and her experience and knowledge of the operations of the New South Wales Police Service, that there could be any difficulty in her legal representatives being informed of the contents of the material in paragraphs 11 to 16.  Sometimes, Mr Singleton, the Police Service can be overly tender.  I have had a claim advanced before me based on the need to maintain secrecy of methodology arising out of the need for the police to transcribe the contents of material obtained by way of listening devices.  You understand what I am putting to you, Mr Singleton?

MR SINGLETON:   I do, your Honour.

HER HONOUR:   Your objection to the second word in paragraph 12 and the reasons that you advance at the moment I find less than persuasive.

MR SINGLETON:   May it please, your Honour.  There are two things I want to do – just check another document and then get the instructions that your Honour is, I think, suggesting.

HER HONOUR:   Yes.

MR SINGLETON:   I have the necessary instructions to disclose to Mr Shoebridge – I think he is led in the proceedings – and his solicitor – under the appropriate confidentiality undertakings which have been provided in the past and I am sure between us we can work out that again – access to 11 to 16 – if it is convenient, I will show him immediately.

HER HONOUR:   Yes, it is convenient.

MR SINGLETON:   I will just show him my copy.

MR SHOEBRIDGE:   Thank you, your Honour, I have read that.

HER HONOUR:   Yes, and it might just be confirmed that it is subject to the undertaking, Mr Shoebridge.

MR SHOEBRIDGE:   Yes, your Honour, it is subject to the undertakings that I entered into both in the Court of Appeal and in the proceedings below.

HER HONOUR:   Thank you, Mr Shoebridge.  Very well, are there other matters, Mr Singleton, that you wish to raise of a housekeeping nature before ‑ ‑ ‑

MR SINGLETON:   No, unless I can help you further – sorry, there is.  Mr Shoebridge has identified that in prayer 9, it should have inserted into it a reference to “conduct of the proceedings”.  Could I ask your Honour when pronouncing orders, if your Honour does, to insert into prayer 9(c) the phrase “except for the purpose of conducting the proceedings” after the word “disclosure” on page 4 of the summons?

HER HONOUR:   Yes.

MR SINGLETON:   Your Honour will understand that.  May it please, your Honour.

HER HONOUR:   Thank you.

Mr Singleton appears on behalf of the Commissioner of Police who filed a summons in the proceedings on 8 October 2009 claiming orders for the non‑publication of certain material on the ground of public interest immunity.  In support of the making of those orders, Mr Singleton read the affidavit of Cheryl Elizabeth Drummy affirmed on 7 October 2009, to which are annexed copies of three affidavits sworn by Assistant Commissioner Jeffrey Loy on 20 May 2009.  Annexed to Ms Drummy’s affidavit are also copies of orders made in the New South Wales Court of Appeal directing the non‑publication of identified parts of the appeal books in that court, submissions filed in that court, the transcript of the hearing of the appeal and the published judgment of the Court of Appeal as set out in the attached schedule. 

Assistant Commissioner Loy states that the Commissioner of Police was represented during the proceedings before the primary judge.  It appears that a number of successful claims for the non‑disclosure of material on the ground of public interest immunity were made in the course of those proceedings.  He states those claims were based upon the disclosure of confidential police methodology and the need to preserve the confidentiality of the identity of informers.

The Supreme Court made orders from time to time in the course of the trial directing non‑disclosure of evidence.  On 14 April 2008, earlier orders were vacated and, in substitution therefor, orders were made directing non‑publication of identified parts of the transcript of the proceedings of exhibits and of certain names identified in column 1 of schedule 3 of the three schedules that are attached to the orders of 14 April 2008.  Thereafter, the primary judge made a further order directing non‑publication of parts of his reasons for judgment and directing the publication of certain names under a pseudonym order. 

Assistant Commissioner Loy deposes to the existence of a risk to the safety of the lives of officers working as undercover operatives in the event that evidence of confidential police methodology used in the course of undercover operations is disclosed in open court.  He further states that ongoing and future police operations are at risk of being frustrated by the release of information of this character.

The principles governing the circumstances in which a non‑publication order may be made were collected by Justice McHugh in John Fairfax & Sons v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476, 477. It is not necessary to recite them. I am satisfied, having regard to the content of Mr Loy’s affidavit, that it is necessary, in order to secure the proper administration of justice in the proceedings, that an order for non‑publication consistent with the orders sought by the Commissioner in relation to documents filed in this Court be made.

For these reasons I make the following orders: 

Subject to further order:

1.There shall be no disclosure except for the purpose of conducting these proceedings, including any proceedings upon a grant of special leave to appeal (“these proceedings”), of words 11 to 21 inclusive in appeal ground 11 at page 3 of the notice of appeal to the Court of Appeal or any information derived therefrom.

2.There shall be no disclosure, except for the purpose of conducting these proceedings, of those parts of the applicant’s summary of argument filed in these proceedings, identified in Part 4 of the schedule to these orders, being the schedule annexed to the summons filed by the Commissioner on 8 October 2009, or any information derived therefrom.

3.There shall be no disclosure, except for the purpose of conducting these proceedings, of those parts of exhibit A to the affidavit of Margaret Anne Bateman sworn and filed in these proceedings on 1 October 2009, identified in Part 5 of the schedule, or any information derived therefrom.

4.Of any copy of the amended notice of appeal to the Court of Appeal that is filed in these proceedings there shall be no disclosure, except for the purpose of conducting these proceedings, of words 11 to 21 inclusive in appeal ground 5.9, or any information derived therefrom.

5.Of any copy of the unedited reasons for judgment of the primary judge that is filed in these proceedings there shall be no disclosure, except for the purpose of conducting these proceedings, of the material identified in Parts 1 and 2 of the schedule, or of any information derived therefrom.

6.Order 5 shall not prevent publication of otherwise permissible reports that use the pseudonym “CE-1” in lieu of the words “identified in Part 1 of the schedule”.

7.Of any copy of the unedited reasons for judgment of the Court of Appeal that is filed in these proceedings there shall be no disclosure, except for the purpose of conducting these proceedings, of the material identified in Part 3 of the schedule, or of any information derived therefrom.

8.The Commissioner of Police for New South Wales, through his legal representative, shall be granted leave to make applications in these proceedings on the basis of public interest immunity and access to all documents filed in these proceedings.

9.In relation to each document hereafter filed in the proceedings:

(a)on or before the date of filing a copy shall be served by the filing party on the representatives of the Commissioner of Police for New South Wales;

(b)subject to order 9(c), there shall be no disclosure of that document or any information derived therefrom for seven days after the date of filing, except for the purpose of conducting the proceedings; and

(c)if, within seven days of a document being filed in the proceedings, the Commissioner of Police applies for a non‑disclosure order in relation to the whole or part of the document then there shall be no disclosure, except for the purpose of the conduct of the proceedings, of the document or part, as the case may be, or of any information derived therefrom until the application has been determined.

10.There shall be no disclosure, except for the purpose of conducting these proceedings, including any proceedings upon a grant of special leave to appeal, of the following words in the respondent’s summary of argument:  words 33 to 36 inclusive, and 88 to 91 inclusive of paragraph 6(ii), words 81 to 112 inclusive of paragraph 9, words 21 to 38 inclusive of paragraph 19.1 and words 31 to 41 inclusive of paragraph 19.2, and the information derived therefrom.

Returning to the application for expedition, I direct:

1.The applicant is to file and serve any reply by 19 October 2009.

2.The applicant is to file and serve the application book by 23 October 2009.

3.The application for special leave is to be listed for hearing in this Court on 3 November 2009.

Are there any further orders to be made?

MR MENZIES:   Not for my part, your Honour.

MR SHOEBRIDGE:   No, your Honour.

MR SINGLETON:   No, your Honour.

HER HONOUR:   Very well.  Thank you, gentlemen.  I will adjourn.

AT 10.37 AM THE MATTER WAS ADJOURNED