State of Queensland & Anor v J.L. Holdings Pty Ltd

[1996] HCATrans 373

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B54 of 1996

B e t w e e n -

STATE OF QUEENSLAND and SOUTH BANK CORPORATION

Applicants

and

J.L. HOLDINGS PTY LTD

Respondent

Application for special leave to appeal

DAWSON J
GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 2 DECEMBER 1996, AT 2.02 PM

Copyright in the High Court of Australia

MR R.V. HANSON, QC:   If the Court pleases, I appear with my learned friend, MR R.M. DERRINGTON, for the applicants.  (instructed by B.T. Dunphy, Crown Solicitor for the State of Queensland)

MR T.A. GRAY, QC:   May it please the Court, I appear with my learned friend, MR T. MATTHEWS, for the respondent.  (instructed by Minter Ellison Baker O’Loughlin)

DAWSON J:   Gentlemen, before we begin, you would anticipate, and you would be right in your anticipation, that we propose to hear the application for special leave and the appeal at one and the same time.  That means you will not be subject to the 20-minute rule, but we would not anticipate you would exceed that time by very much, if at all, having regard to the comprehensive written submissions.  Yes, Mr Hanson.

MR HANSON:   Your Honours, then I will start with the special leave points.  We have three of them, and the first two are closely related.  The question is of general application throughout Australia because, in our submission, trial judges are faced with this problem daily.  There are differences of opinion at an appellate level on this point.  Those are the first two points and the third point is the section 35A point that there is a grave injustice been done to the applicants.

Could we begin by attempting to make the first point by asking your Honours to look at the decision in the Court of Appeal in New South Wales in Cohen v McWilliam (1995) 38 NSWLR 476. I take it your Honours have familiarity with the facts?

DAWSON J:   Yes, go ahead.

MR HANSON:   This throws up, in our submission, most starkly the division of opinion as to the role that case management principles have where there is an application to amend or adjourn.  The court divided starkly, in our submission; on the one side Mr Justice Priestley, on the other side Mr Justice Cole, and that division can be traced through in this very case from which this application is brought.  The majority who dismissed our appeal endorsed the remarks of Mr Justice Cole.  Mr Justice Carr, who dissented, endorsed the remarks of Mr Justice Priestley.  At the judgment of Mr Justice Priestley ‑ ‑ ‑

KIRBY J:   Distension has a certain history in the Court of Appeal in New South Wales.

MR HANSON:   I am sorry, your Honour?

KIRBY J:   Distension has a certain history, which is traced in volume 38 of the New South Wales Law Reports.  It brought back many memories.

MR HANSON:   And we comment, of course, if your Honour has been a party to many of the decisions - I do not intend and cannot refer to all of them today, they are mentioned in the outlines.  Your Honour Justice Kirby has been party to many of them.  Perhaps I should hand up this one.  One authority we did not send down, because it is mentioned in Cohen v McWilliam, but your Honours might want to have the authority in its entirety; that is Byron v Southern Star Group Ltd.

DAWSON J:   Why do we have to go through these authorities?  There is clear authority in this Court, is there not?

MR HANSON:   Verwayen and Sali, your Honour is ‑ ‑ ‑

DAWSON J:   Not Verwayen; in the firm of Clough v Frog and referring back to Crocker v Smith.  That is authority in this Court and Crocker is adopted.

KIRBY J:   The suggestion is that, since then, Ketteman alerted us all to the special considerations of case management.  That is said to be a new factor.

MR HANSON:   Ketteman has been variously received, of course.  I think your Honour Justice Kirby and Mr Justice Samuels in one case expressed doubt about the comments of Lord Griffiths in that case.

KIRBY J:   Justice Samuels recanted.

MR HANSON:   Mr Justice Samuels changed his mind, I think, in - said he changed his opinion in GSA.  That again highlights the division of opinion that, in our submission, needs to be resolved in this Court.

DAWSON J:   But that was a very different sort of case, Ketteman.  The emphasis was on personal litigants, not upon a developer on one side and government on the other.

MR HANSON:   All of the cases deal with amendments either at trial, shortly before trial or at the conclusion of the trial.  There is no case on the facts that has any resemblance to this one.  So it is a suitable vehicle for that reason, in our submission.  We were refused leave to amend for two reasons.  One of them, perfectly valid, prejudice to our opponents.  The other stated to be, in effect, case management matters.  You will see that in book 2, at page 404 is the commencement of the judgment, her Honour says - there was an application for leave to amend the defence.  She says:

At about the time that leave was sought, trial dates were allocated for the hearing of this matter for four months at the commencement of the court year in 1997.  The matter has been the subject of substantial case management.

DAWSON J:   That is not true, is it, really?  In fact, the application was made before the date for the trial was fixed.

MR HANSON:   It was.

DAWSON J:   Yes.

MR HANSON:   It had been discussed but not fixed.

DAWSON J:   Yes.

MR HANSON:   It was fixed on the day that we argued the application.  She mentions directions hearings.  At the foot of the page she speaks about:

March and May 1996 it was anticipated.....the pleadings were closed.

She says, going over the page:

What is now sought extends beyond the matters foreshadowed and is explained by new Counsel having considered the pleadings afresh.  Nevertheless the respondents may be reproached for not attending to these matters earlier.  Whether leave to amend is to be granted is not however to be resolved by punishing the respondents.  I have, in the context of this case, where there is only a period of about six months from the time that leave was sought to the commencement of the hearing -

she is a little bit out with her arithmetic -

taken the view that the most relevant consideration is whether the amendments would jeopardise those hearing dates. 

“The most relevant consideration”:

If that were the case, I would be inclined to disallow the amendments.  Such an approach takes account that the loss of the hearing at that time could be said to amount to severe prejudice to the applicant, particularly since the matter, I would think, would be unlikely to be relisted until the following year. 

We accept that, of course, as a valid consideration.  And the second one:

It also takes account of a shift in attitude and that in these times a party’s “right” to present their case or their defence is viewed as subject to some limitation.

No mention there of the prejudice to our clients by being denied the opportunity to run this defence.  She has a little bit more to say about it.  If you pass over the references to other amendments that do not matter, go to page 408 under the heading The Land Act Amendments, the first line she describes it as a “core issue”, the effect of that particular section.  She then describes what has happened, how, on our side it is claimed it was only recently discovered that there was a material discrepancy between the lease approved at the preliminary stage and the one submitted for final endorsement.  She comments on all of that, and over the page ends up saying that:

it seems to me, it has real potential -

I am on the third line -

to require substantial issues of fact to be raised by way of reply.  It places this proposed amendment in a different category.  I do not have the same level of assurance about the effect of the amendments and the pleadings cannot be permitted to remain open in this way so close to trial.  The applicant also points out that it might have joined its then solicitors -

and so it goes on.  Those reasons were thought in the court below not to have been of any weight, but those are the matters.

KIRBY J:   You attack the identification of those reasons or the weight that her Honour gave to them?

MR HANSON:   We attack the absence of any mention, of any weighing process, weighing in the balance the detriment to the defendants, the respondents.

KIRBY J:   And, possibly, I suppose, one might say on one view of it, the saving of public costs if the point you raise is a good one.

MR HANSON:   Absolutely.  If this point is a good one our contention is - I know our friends contend otherwise, but the contention is that it will very much weaken the case against us because it is relied upon in ‑ ‑ ‑

DAWSON J:   You say it is an answer.

MR HANSON:   We say it is an absolute answer. 

KIRBY J:   You also say that the amendment was not strictly necessary, so if it is not strictly necessary why are you troubling us?

MR HANSON:   Your Honour, the case has been left in something of a state of confusion because there is still on the record a denial in the paragraph unamended, of an allegation that the Minister was required to sign.  If you look at our paragraph 25 that we are trying to amend - your Honours will find that in book 2 at page 181 - your Honours will appreciate that the heart of the case against us is the allegation the Minister was required to sign.  Paragraph 25 in its original form is there if you ignore the underlining.

DAWSON J:   You say, in any event, you raised the matter so as to avoid the criticism that you were taking anyone by surprise.

MR HANSON:   That is exactly what we did.  We took the view that the particular rule in the Federal Court required us to spell this out.  We had already made our position clear on a point of law.  It was time now, having discovered the point, to spell out there was another basis for denying that the Minister was required to sign.  So, your Honours, there it is in its unamended form, a denial that the Minister was required to sign, so there is some confusion left in the case, if we are refused leave to spell out this factual objection and, yet, nonetheless, on the face of the pleadings are permitted to put the applicant to proof that the Minister was required to sign, and inherent in proof of his assertion that the Minister was required to sign surely must be proof that the lease submitted for the Minister’s final endorsed approval was in accordance with the draft that had been previously approved.  So, there was this state of confusion left in the case:  if we are denied leave by this amendment to argue this point - - -

KIRBY J:   You contest the suggestion of her Honour that this would have raised factual matters, but would it not have raised some factual matters as to whether there was a differentiation between the leases first submitted and the leases not, and whether or not there were explanations, or whether it was in some way agreed that there should be variations?  That could open up some territory, could it not?

MR HANSON:   The first part of your Honour’s question, the answer is no.  It is a matter of comparing the documents.  The documents will have to be tendered as part of the applicants’ case.  It is a matter of comparing them.  There is the draft approved by the Minister; there is the  ‑ ‑ ‑

KIRBY J:   I do not think you can assume the respondent would just be content with that.  They are going to want to try and explain the differentiation.  They are not just going to roll over and ‑ ‑ ‑

MR HANSON:   They are going to be met with sections 343 and 345 of the Land Act which provides a formula for the alienation of Crown lands, and the decision of the Privy Council in Cudgen Rutile to the effect that where there is a statutory formula for alienation of Crown land it must be followed.  On their own argument, if you have appreciated the point of law between the parties, it is this:  whether the Minister’s absolute discretion, of which section 343 speaks, carries over to the section 345 point or whether the discretion is spent at the section 343 approval, so that at section 345 the Minister is performing a purely clerical function.  That is their argument, and if they are correct, then a fortiori, the lease presented the second time for the Minister’s signature must be, one would think, precisely in accordance with the one approved at the draft stage.  These are the problems that our friends will be met with.

The rest of your Honour’s question suggesting that there might have been some agreement or waiver, or estoppel - these things have been foreshadowed, but nothing has ever been formulated that one could see ‑ ‑ ‑

KIRBY J:   It does not have to be under her Honour’s orders, whereas I assume that what she was concerned about was that this would open up a whole new territory of argumentation and disputation and that that could completely disrupt the timetable which had been set, which is protective of litigants, but also those who stand in the queue.

MR HANSON:   Your Honour, it could hardly abort the trial at a distance of eight months and a trial that would then have four months to run after it began, so this factual issue could surely be prepared within that intervening eight months, and accommodated within the duration of a four months trial.

KIRBY J:   Where is the error of principle?  Because this is a practice decision; it is a discretionary decision, and in a context where the appellate courts throughout this country have been laying emphasis upon case management, what sort of a signal would this Court be sending if it intrudes into this simply because it strikes us a different way so far as justice is concerned?

MR HANSON:   The error that enlivens this Court’s discretion to re‑exercise the discretion.

DAWSON J:   I would have thought you would say the point of principle is that justice should prevail over case management.

MR HANSON:   We have said that.  That is what we have said in our reply, that her Honour has given no consideration to our position at all.  That was the error in principle, when she spoke of two factors and the detriment to us is not among them.  That is the error of principle.  If the Court then comes to re‑exercise the discretion we would be contending for what we have said in our reply, that the old rule is still the dominant rule.  That cases are to be tried on their merits and case management in the Federal Court, in any event, is a gloss on the rules.  There is no rule about case management in the Federal Court.  There is a rule about directions and directions hearings, and pleadings is mentioned among them, but that would have to be read, of course, subject to the express rule dealing with pleadings.

DAWSON J:   It must be that the ultimate aim of case management is to achieve justice, and it if does not, or is not, then it has no place in the courts.

KIRBY J:   The point Justice Cole repeatedly makes is that the justice to which it is directed is justice not only to the particular litigants but the duty of the courts to other litigants waiting in the queue.  Do you accept that principle?

MR HANSON:   Of course.  Case management principles have a number of aspects.  That is one of them, that people who are waiting in the list will be put further back, or court time will be wasted.  That could not possibly be a consideration in this case where the trial was eight months away.  The list could surely be refilled in that intervening time.  So, that aspect of case management has nothing to do with it, surely.  The aspect of keeping the litigants to directions and making them follow the rules so that the case is efficiently brought to trial, that is a consideration.  As against that, on our side, we are facing a claim for $60m, allegations of fraud and abuse of office against the State government, negligence, and we have what is possibly a complete answer, and it is closed out for no valid reason.  I see I have had my 20 minutes.

DAWSON J:   No, we said we were not going to keep you to the 20 minutes, but that is not an open-ended invitation to take as long as you like.

McHUGH J:   I would just like to explore some of the consequences of your being allowed to amend.  Assuming - and perhaps it is a big assumption - that estoppel and waiver can operate against the statute, the present respondents would want to investigate and perhaps plead your conduct between the date of submitting the document and the deed of waiver.  You would probably then want a further reply to that that, if it was an equitable estoppel, then the equity could be met by other forms of relief.  But what do you envisage?  We do not know what sort of conduct they are relying on for the waiver and what it involves.

MR HANSON:   Your Honour, we have asked and asked.  This is an argument we addressed in the courts below.  “Spell out for us the waiver and the estoppel please”.  Waiver of course looks at the conduct on the Minister’s side, without looking at their response.  How can the Minister possibly waive compliance with the statute?  It is a short point of law.

McHUGH J:   I know.  Mr Gray is going to have to answer that question for me because, prima facie, I have to say that it does seem a monstrous injustice that you are not allowed to plead this defence.  On the materials I have read so far, I just really cannot see how the trial would have to be postponed, but then a trial judge has a far better knowledge of this than any member of this Court.  But that is what I am anxious to explore, that a trial judge could have reached the conclusion without there being some foundation.

MR HANSON:   The first thing to say:  she herself does not identify what these facts are.  It is all fairly vague and general, and that has been the submission on the other side.  What can possibly be an issue; that the Minister and his staff were aware of the variation?  That is a factual issue.  They have had full discovery.  There is no more discovery.  The might want to cross‑examine some of our witnesses about the awareness on our side to support a waiver.  It does not sound like much addition to a four‑month trial.  In terms of estoppel, they have never formulated an estoppel, so this is my best attempt, that the Minister with knowledge of the deed of variation did not object, said nothing, and by his silence represented to J.L. Holdings that there was no objection to the varied lease and in response to that representation J.L. Holdings abstained from reverting to its approved lease.  That is the best I can do.

McHUGH J:   Perhaps they would allege that they expended money as a result after that, matters of that nature.

DAWSON J:   But what does all this matter?  The only reason that these defences are suggested - or replies, as they would be - to be of any relevance is that they would take some more time.  But if you are entitled to put a defence, then the fact that the reply to it takes some time is not of any consequence.  We are not in a position to investigate the strength of the reply that might be made.  If you are entitled to put this defence, they are entitled to put the reply.  If it takes some extra time, it takes some extra time.

MR HANSON:   They have said against us that they would need to explore the conduct of the Brisbane City Council and its role.  The council held the land in trust and the lessor was to be the council.

DAWSON J:   What do you mean by - I should not ask you that of course, but what do you mean by “explore”?

MR HANSON:   That is what is said; that is what they say against us.  They would have to go and explore any dealings between the Brisbane City Council and the Minister in terms of the deed of variation.  They want to look at that.  They say they want further discovery of the Brisbane City Council’s documents.  They have already had it.  They had an order for discovery, third party discovery, and had inspection of the council’s documents back in May.  I am only trying to answer your Honour as to what possible ‑ ‑ ‑

McHUGH J:   I know.  Part of the problem is nobody ever follows the rules of evidence in affidavits these days.  You have a generalisation in Mr Burnett’s affidavit that they want to lead some substantial evidence about changes and so on and it is just left in that general way.  I mean, if he was in the witness‑box and tried to say it, there would be a barrage of objections, or there ought to be.  He would have to give some details.

MR HANSON:   We have been challenging them to come up with the detail and all I can do is on my side guess at what they want to say and if my ‑ ‑ ‑

KIRBY J:   At the moment they do not have to because you are out and the theory behind it is big claim, well‑lawyered litigants, government of a State of Australia, able to look after itself, court setting standards, the standards are such that should be kept, the signals are sent to the profession, “We expect higher standards”, the times of waffling and wasting the Court’s time are over and we are going to hold you to it.  Now, that is the theory.  I have heard this said so many times, so I know that this is what is the argument and there is a point.

MR HANSON:   All designed to make sure the trial starts on the due date and nobody else misses out on his trial date, all designed to make sure the trial is not prolonged.  Now, it is a little hard to see any merits applying those purposes to the facts of this case, your Honour.

McHUGH J:   But supposing this matter had been sent out to a private firm of solicitors, why would the Court not be entitled to say to the Queensland Government, “Well, you sue your firm of solicitors”?  Would that not be a factor to take into consideration?

MR HANSON:   Yes, your Honour.  You have got to bear in mind on our side we have been dealing with this statement of claim - I think it is up to 180 or 168 pages.  I call it a novel that passes for a statement of claim.  We have had to deal with that.  There is a mountain of papers.

McHUGH J:   That is why lawyers get paid such huge fees these days, Mr Hanson.  A lot of responsibility, a lot of hard work.

MR HANSON:   The point was not noticed.  We have admitted that.  The point was not noticed, but it was noticed in May or June at a time when no trial date was then pending and on 31 May - you will see at page 388 of the record - our junior counsel, Mr McKenna, informed her Honour at a directions hearing - it is between lines 20 and 30 on page 388, 31 May - Mr McKenna says, talking about foreshadowed amendments - you will see what he says about the lease and fleshing out the denial about the lease, which is exactly what happened.

KIRBY J:   Was it explained how the Government of Queensland with all of the vast resources of that litigant stumbled upon this?

MR HANSON:   Could I explain how?

KIRBY J:   Was it explained to her Honour?

MR HANSON:   Yes, Mr McKenna noticed - this is in the affidavits - it was noticed, brought to our solicitors’ attention by our junior counsel, the discrepancy between the first stage of the lease and the second stage was noticed.

KIRBY J:   Anyway, essentially you say, picking up what Justice Dawson says, it does not matter.  It has been discovered.  It caused no injustice to permit you to raise it.  It may even save time and you ought to have been able to do it and that the overriding rule is justice.

MR HANSON:   Could I say this further in our defence and we have sought to make this point in our outlines:  much of the problem arises because of the way the case has been pleaded.  The applicant has not pleaded that it submitted to the Minister a lease for his endorsed consent which was in accordance with the approved lease.  He has not pleaded in terms of a statute that he says gives him the right to have a lease.  It is skated over.  Now, we have made that point in our outline and, if your Honours want to follow it through, you only need read the pleading at paragraphs 106 of the statement of claim through to 112, I think it is, and until you become familiar with the case you do not realise that the lease referred to there is not the same lease.  It is pleaded as if it is. 

You see, they commence by pleading in paragraph 107, which is at page 96 of the record, that the lease submitted for final signature must be in accordance with the approved draft, so that they are pleading what the law is.  They then go on to plead what they did without expressly pleading that they submitted a draft or submitted a final form for the Minister’s consent which was in accordance with the one that they had been approved.  They do not plead it, but they do plead that they got - and they got a lease approved at the section 343 stage in October or November.  They plead that in February the Brisbane City Council duly presented the lease, duly executed to the Minister for his endorsement under section 345.  Now, one could be excused for thinking it was the same one, but it is not.

KIRBY J:   That is what they plead.  If they do not prove that, is that not fatal to their claim?  That is what you say at one point in your submissions. 

MR HANSON:   Yes.

KIRBY J:   It is not necessary.  You are troubling us unnecessarily.

MR HANSON:   Well, we do not want to go into a four‑month trial with this point left open when so clearly, in our submission, we are entitled to do it in any event.  So in our own defence we point to that.  It is a very poor pleading and people are entitled to assume that exactly the same lease was submitted.  It was not until somebody sat down and started looking through the documents, a mountain of documents, that the point was noticed.  That is how it came about, your Honours.  Your Honours, I do not know that I want to take up much more of your Honours’ time unless you want to hear me on any particular matters.  I could talk for hours about it.

DAWSON J:   I think you have said most of what you want to say, unless ‑ ‑ ‑

GAUDRON J:   Were you to succeed, should there be appropriate orders as to costs or terms?

MR HANSON:   Mr Justice Carr ‑ ‑ ‑

DAWSON J:   You cannot resist that really, any costs consequential upon the amendment.

MR HANSON:   No, certainly not.

KIRBY J:   Do you ask this Court to re‑exercise the discretion which miscarried in the Court of Appeal or is it a matter where it would be appropriate, defensive of the integrity of the processes of the Supreme Court of Queensland, that the matter should be returned there to be exercised?

MR HANSON:   It dates back to the Federal Court; either, your Honour.

KIRBY J:   I am sorry, to the Federal Court.

MR HANSON:   Either.  Perhaps it would be quicker if this Court did it.  Mr Justice Carr has outlined appropriate directions that he thinks will preserve ‑ ‑ ‑

DAWSON J:   Well, it could be sent back with liberty to apply for any consequential directions that were needed.

MR HANSON:   Yes.  We are back before her Honour on Wednesday on a directions hearing.  I am not trying to stampede your Honours, but it does not matter really whether your Honours choose to do it or whether it is to be sent back.  She is well and truly alive to the point.  We have announced that we maintain that the point is still open to us on the pleadings in their unamended form, so it is very much a live point in that court.

DAWSON J:   When is the date fixed for trial?

MR HANSON:   18 February.

KIRBY J:   I understand your point that the statute has not attached because the same lease was not presented and that therefore the statutory facts have not come into play.  But was there a significant differential between the two leases?  Was the differentiation of significance in your submission?

MR HANSON:   Yes, your Honour, it is in the record.  It is to this effect:  the draft lease said to be approved by the Minister provided for the commencement of the lease after the construction of this amusement park at the end of practical completion, certificate of practical completion.  The amendment said that the lease was to commence on 1 April 1990 which is before construction could ever have begun; it was a few weeks after they executed the deed of variation.  So those are the two different situations.

McHUGH J:   And rent was to be paid from the commencement?

MR HANSON:   Rent goes with it.  I might say your Honours will find in the record that the variation was at the request of J.L. Holdings, the applicant.  The reasoning for it is also apparent in the record because he wanted to mortgage the lease to finance the project.  So there is a most material variation.  The Minister may well have consented to the varied lease if he had been aware of it.  He might have been quite happy to receive the rent much earlier.  On the other hand, he may not have.  Your Honours can see that if the project was partly built and did not get off the ground, with the new lease he has a mortgagee to deal with.  He has a white elephant on Crown land and a mortgagee to deal with, whereas with the other one at least it is Crown land with no complicating factor of a mortgagee.  These are “may have beens”.

DAWSON J:   Thank you, Mr Hanson.  Mr Gray.

MR GRAY:   May it please the Court.  My learned friend identifies the point of law in the reply in suggesting that case flow management matters are subservient to a party’s prima facie right to amend.  Put in that way, we say the proposition my learned friend contends for is untenable.  It is not a question of one consideration being subservient to another; it is a question of both considerations being the relevant factors to be considered.  We say when my learned friend poses the point of law as he does, that he has set himself much too high a hurdle.

DAWSON J:   But the right to amend is based in justice.  That was pointed out as long ago as Crocker v Smith which has never been questioned in this Court - in fact it has been adopted - and case management must be subservient to justice in the individual case.

MR GRAY:   A party’s right to apply to amend, to seek the exercise of the court’s discretion is undoubted.

DAWSON J:   That application must be granted unless there is some reason for not granting it, and ordinarily there will not be a reason if the amendment seeks to raise an issue which is fairly open.

MR GRAY:   We would put it a little differently, if the Court pleases.  We would say that there has been a vast change in regard to ‑ ‑ ‑

DAWSON J:   What is the change?

MR GRAY:   The change relates to the pressures of the volume of business upon the courts, and are public interest.

DAWSON J:   So we lower our standards of justice because of the pressures?

MR GRAY:   No, if the Court pleases, it is a question of weighing all relevant factors.  The case management principles may vary.  Case management is but a label.  If one analyses it, what the courts have said is that a relevant factor to be considered is prejudice to the applicant to amend; prejudice to the respondent or the opposition to the applicant, and what is now seen to be, prejudice to the public in the administration of justice.

DAWSON J:   I just simply do not understand that.  You can do injustice in one case to do justice in others.  If that is the proposition you are putting then I do not accept it.

MR GRAY:   Perhaps I put it too highly.  The proposition we put - - -

DAWSON J:   That is what you mean, is it not?

MR GRAY:   If the Court pleases, the proposition we put really adopts the principle mentioned by the House of Lords in Ketteman, and the same principle that has been adopted and applied by the Full Court of the Federal Court in the Bomanite Case.

KIRBY J:   In fairness, one might say that this Court has responded to the tremendous pressure on courts or the Parliament has responded by the special leave procedure and so on, and that in other courts in the land there has been a response, and it has been a response of case management and ensuring that you can juggle cases in order to make sure that justice is done evenly as far as you can.  That means a higher degree of rigidity in procedural matters than was the case at the time the early authorities were stated.

MR GRAY:   Yes, and in particular, one can see the extremes.  One can take Ketteman’s Case which was an application to amend made at the time of closing addresses.  That is obviously ‑ ‑ ‑

DAWSON J:   Yes, and there are extreme cases, and furthermore, Kettemen’s Case was a case in which personal strains were involved which certainly are not involved here.  This is an entirely different situation.  Let me test it.  Do you say the principles which were laid down in Crocker v Smith and adopted in Clough v Frog had been modified by the existence of case management?

MR GRAY:   Yes we do.  We say that other factors exist now that are to be weighed in scales.  We do want to, as it were, come back from a label‑like case management.  Case management as a label suffers from all the problems of a label.  One has to look at the particular issues in the particular case.

DAWSON J:   What do you say in this case, that even if it is just to allow the amendment, because it is made at a late stage and that upsets the management of the case which has hitherto been applied, the amendment should be refused.  That is what you say?

MR GRAY:   Yes, in this particular case, because the consequences, as her Honour found, was that the four months that has been set aside for this case would, in her Honour’s view and we say, reasonably be lost.  Because of the listing problems in the Federal Court in Brisbane, the case would not ‑ ‑ ‑

DAWSON J:   So that the defence which was fairly open, and maybe a correct defence to the respondents, is not available.

MR GRAY:   That, if the Court pleases, overlooks the nature of this defence and the history of the matter.  Her Honour just did not face, as it were, an entirely innocent party coming forward having just discovered a point.  This - and I will take the Court to it, the material shows that the Crown lawyers were well aware of this point back in - - -

DAWSON J:   Maybe they were.  Maybe they were not.  Her Honour accepted the explanation which was given, that they had not appreciated the significance of it.  Do you contest that it is a fairly arguable defence, if defence be....anyway.

MR GRAY:   Yes, we do contest that and we do contest that her Honour found that this point had only just been discovered by the State of Queensland.

DAWSON J:   No, I am asking you do you contest that it is a fairly arguable defence?

MR GRAY:   Yes, we do, and I will take the Court through the ‑ ‑ ‑

DAWSON J:   You say it is not arguable?

MR GRAY:   I will take the Court through the material to demonstrate that.  But, we do also say that her Honour was particularly careful in her reasons.  Her Honour accepted without qualification that the solicitor who swore the affidavit said that the point had first come to her attention on some advice from junior counsel, but there was no explanation offered as to why this issue that had been raised or addressed before, and had, in fact, gone to Mr Keane, the Solicitor‑General, had not been dealt with.  Her Honour was not given any explanation from those persons, and the material was placed before her Honour in the affidavit to Mr Burnett.  I will take the Court to that material.  We say that is quite significant.

DAWSON J:   At the most, that suggests negligence, but as is pointed out and has been pointed out frequently, the Court is not in the business of punishing people for that in a particular case.

MR GRAY:   Yes, but we would join issue with the suggestion that the State of Queensland only learnt of this discrepancy or a point, in 1996.  We do not accept that, and we point to the evidence that shows to the contrary.

GAUDRON J:   What difference would that make anyway?  Either it is a point that is entitled to raise or it is not.

MR GRAY:   It is worth taking a moment to look at the statutory scheme because we would submit that when one looks at the statute and the wording in the statute, and one looks at the documents, and they are both in the application books, one will find that the alterations that have taken place are, what we would describe as minutiae.

Perhaps if I could just start with the section.  I think the Court might have the extract attached to my learned friend’s outline of argument.  It is a fairly short matter to take the Court through.  Section 343 starts out with the proposition that there is no power to lease without ‑ ‑ ‑

KIRBY J:   What are we looking at, I am sorry?

MR GRAY:   Section 343 of the Lands Act.  I understand a copy is - it is page 1 of your Honours’ book.  Perhaps just to very briefly state the background of this.  There was an interest by the government of Queensland in developing an area by the Brisbane River.  The area concerned involved essentially two parcels of land, one which was owned by the council in its own right and one which was owned by the council as trustee, in effect, for public purposes, and the proposed development, which was much more than an amusement park, it involved a development of restaurants and what is described as a much more substantial matter than an amusement park, that it was essential that there be a lease over both parcels of land.

The council could deal with its own parcel in its own right but could only deal with the land held in trust with the approval of the Minister.  It is pleaded, and our cases is, the trustee in the circumstances was acting as agent for the State of Queensland.  Section 343 had to be addressed in regard to the land held in trust, sometimes described as the reserve land, and the scheme is to start with a draft of a proposed lease.  That comes from section 343(3).  Having had that, the next step is to make an application for approval.  The application is made by the trustees for approval and it has to be made to the Minister, and it is to be accompanied by the draft of the proposed lease.

Subsection (2) sets out, as it were, the major matters to be considered, the matters that had to be stated.  They include, for example, the term of the lease, and that was 30 years.  It does not include the commencement date.  The Minister was concerned to know it was a 30-year lease, not the precise date on which it might commence.  The purpose ‑ ‑ ‑

McHUGH J:   It is the term and conditions thereof.

MR GRAY:   Yes.  The purpose, the rent on the property, but ‑ ‑ ‑

McHUGH J:   When you read 345, referring to terms and conditions, it is plainly - I would think you have got enormous difficulty with this argument.  I mean, if you vary the commencing date, therefore, when rent has got to be paid to say that the lease that you then execute is in accordance with the terms and conditions approved the Minister early, seems to me a very difficult proposition to maintain, Mr Gray.

DAWSON J:   If that calls for an answer, Mr Gray, I will add something to it and you can answer that at the same time.  Why we are dealing with this, because, in the court below, apparently it was either not argued, or certainly an argument was not accepted along those lines, by the majority.  They said at page 629 of the appeal book:

That is the issue the amendment seeks to raise - that the deed of variation caused the lease no longer to accord with the terms and conditions approved under s 343.  In view of the potential injustice involved in denying the respondents the opportunity to ventilate that issue, we think there is sufficient doubt -

to justify the granting of special leave.  So they did not entertain any doubt about it.

MR GRAY:   If the Court please.  If this Court is excising the discretion afresh, then we wish to be heard on this point because the ‑ ‑ ‑

DAWSON J:   You had better make it short, if I may say so.

MR GRAY:   If the Court pleases.  The answer to your Honour Justice McHugh is that the terms and conditions being referred to in section 345 is referring to, we say, the final words of section 343:

subject to such conditions, reservations and modifications as he deems fit.

We would suggest it is picking up those words rather than paragraph 343(2)(e).  If the Court pleases, the next stage is once the Minister has approved either with or without conditions - in this case with conditions - there is the stage of re-engrossing the document and then duly executing it and submitting it, and the phrase that is used is “in accordance with” the conditions.  We have provided an authority to the Court of Walker v Wilson 172 CLR 195 that dealt with that phrase in the context of the Workmen’s Compensation legislation, “journey undertaken in accordance with the terms and conditions of his employment.”

Justice Brennan, as he then was, said that those words meant “consistent with” and the other members of the Court took the view those words meant “not inconsistent with”.  So we are not talking, if the Court pleases - and it is never the expectation of 343 - that the absolute minutiae of the lease would be addressed.  It is a question of whether the document does accord within the sense of not being inconsistent with the draft of a proposed lease.

Now, if the Court pleases, we have prepared a schedule of the differences between the two documents to facilitate the handling of the material.  If I can just invite attention to the two relevant documents.  The form of the lease of the reserve land as approved by the Minister and at 343 is in book 1 at page 169‑65.

KIRBY J:   Were these variations submitted to the Crown Solicitor and approved, or were they just slipped in?

MR GRAY:   No, they were prepared to facilitate the argument - I am sorry?

KIRBY J:   The variations shown in the form that you have just given us, were they approved by the Crown Solicitor or just slipped in by you into your version of the lease?

MR GRAY:   My learned friend?

KIRBY J:   Yes.

MR GRAY:   No, this is simply documented argument to take your Honour through the comparison.

KIRBY J:   I see.  It is not uncommon to have variations of this kind but normally it is put up to the other side.  In this case there is the statutory problem as to whether what you tender has to be the one that goes or whether you have got to start again.

MR GRAY:   I misunderstood your Honour entirely.  Our case, your Honour, is that this material was known to the Crown at the time.

KIRBY J:   And by inference, approved?

MR GRAY:   And we say approved.

KIRBY J:   You say that is what opens up the factual exploration that her Honour was fearful of.

MR GRAY:   That is one of the aspects of it and, particularly, bearing in mind that the test is was the document as executed in accordance with the draft proposed lease earlier submitted, and it is going to involve necessarily a factual inquiry.

KIRBY J:   You say those statutory words are used by Parliament to recognise the fact that almost always, or at least often, there will be small variations that were made when the solicitors get their hands on the documents.

MR GRAY:   Yes, indeed, and, also, just the timing alone would necessarily expect one to have a number of minor matters to be attended to otherwise the statute would not have had the words “in accordance with”.  It would be executed a lease as approved or, as one of my friends said, precisely in accordance with.  In his argument, your Honours, he used the word “precisely” in accordance with, and that is the very word that is missing in the statute.  There are other cases that, of course, support the construction in the Wilson Case but, “in accordance with” is language designed to indicate that the precise document is not the one coming forward.  If the Court is to compare that document at 165 to a document in book 2 at page 252, and here the Court is looking at the document as it was executed and put to the Minister for his endorsement under section 345 and the schedule I have provided to the Court picks up the differences.  When the Minister approved the draft lease, if the Court goes page 169‑66, what the Minister approved was something in these terms at the middle of the page ‑ ‑ ‑

McHUGH J:   I am sorry, I have just not got this:  169 - - -?

MR GRAY:   Then there are a series of sub‑numbers.  I am not quite sure why it has been numbered in that way, but you come to 169‑66.

McHUGH J:   Yes.

MR GRAY:   In the middle of the page, this is the form of the draft proposed lease that the Minister approved:

to be held by the lessee as tenant for the term of thirty years commencing from the -

and the date is blank.  So, we would put the submission that when the Minister approved the draft lease the precise date of commencement of the term was not a critical matter at all.  Over the page on page 3 one has a definition of the commencement date.  It means:

that day being the day determined in accordance with Clause 1 of the Agreement for Lease -

here there is an agreement for lease that attached two proposed leases and proposal B was the lease for the Minister approved.

KIRBY J:   I am beginning to ask myself the question Justice Dawson asked a way back.  I mean, there is a point to be argued here, but the point of this case is not the merit of the point.  It is whether or not a party with this argument should be completely kept out of a court.

MR GRAY:   If the Court pleases, the Court is seized of our point that we say that there is a substantial question as to what “in accordance with” means is a mere substantial question of fact because we say that, first of all, the document that was executed was in accordance with and, secondly, we say that all of the changes we describe as minutiae to the document were all known to the Crown directly and by its agent. 

Now, could I take the Court to the evidence that identifies the knowledge.  It is all in book 2.  Firstly, at page 341 and 342.  This is a document that Mr Burnett’s affidavit dates as being June 1990.  The approval was November 1989.  The documents were submitted for endorsement in February 1990 and this is now June 1990, some four months or so later and Mr Bray is of the Land Administration Commission and the attachment to Mr Burnett’s affidavit picks up a report he is doing and what it shows is that at that date, that is, by July 1990, as - the item on page 342, “January 1990”, that the Crown were aware that in January 1990:

JL Holdings requested a variation to the Lease Agreement to effectively bring forward date of commencement date of lease by at least 12 months to 1 April 1990 and payment of premium -

and on 20 February 1990:

Council approval granted to vary the lease -

Now, they have got that knowledge from somewhere.  So far the discovery has not allowed us to explore that communication between the council and the Crown.

KIRBY J:   The fact that the council approved would not prove that the Crown had.

MR GRAY:   If the council were the agent for the Crown, it would, but Mr Bray is an officer of the Government and somehow he has learnt some few months - his agent some few months later to recount this history in the memorandum he is preparing.

McHUGH J:   But do we know the date of this memorandum?

MR GRAY:   This memorandum was dated July 1990.  Mr Burnett’s affidavit deposes to that and one of my client’s complaints is we have not had sufficient discovery and we have had no reason to pursue it thus far to ascertain what happened exactly between the council and the Crown, but we do know that the Crown, in regard to this particular report, had knowledge of these events occurring in January 1990 and February 1990, although the executed documents were not submitted until 27 February 1990.

McHUGH J:   Yes, but you have got to be careful about using the Crown.  You are talking about a particular individual who is not necessarily a minister - - -

MR GRAY:   We take that point and that is why, if the Court pleases, and one of your Honour’s concerns is that this is going to throw up a live inquiry that is not simply answered, one of the reasons why her Honour took the view that the trial date would be put in jeopardy and seriously so. 

The next document is page 344 and 345.  It is perhaps more pointed.  This is now 27 June 1991 and the context is that the Minister is getting advice about exercising a purported discretion to approve or not approve under 345 and it is going from Mr Scrivens, who is a legal officer, and it is going to the Office of Cabinet and in it Mr Scrivens is reciting the history of the matter.  He starts out by.....the approval, which is the 343 approval in paragraph 1(a), some Crown law advice about “no right of action against the State” and 1(c) is a note that apparently the Brisbane City Council takes a different view, that the Government, if it reneges, is liable.  Then 2(a) picks up the critical documents:

An Agreement to Lease was entered into on 12 December -

that attached the proposed council lease and the proposed reserve lease.  “Clause 20.....provides” and then over the page “Appendix ‘B’”.  Now that is the document at 169/66, the proposed lease of the reserve or the trust land:

Appendix “B” is expressed to be -

“lease of reserve (or land granted in trust) in terms of section 343 -

and then (d) draws attention to a particular term of that proposed lease and then (e)(i):

A Deed of Variation to the Agreement to Lease was entered into on the 26th of February 1990 between the Brisbane City Council and J.L. Holdings Pty Ltd.  This Deed is in respect of commencement dates and payments of premium and rental.  It does not affect the provisions noted above -

and item 2(c), that is, the reserve.  So here is a Mr Scrivens, a manager with legal qualifications in the legal and contractual services department of government, providing advice for the consideration of the Office of Cabinet specifically going to the fact of the variation and specifically going to the two matters that are to sought to be added to by this amendment and doing that in ‑ ‑ ‑

McHUGH J:   Yes, but you are putting what seems to be an, apart from the question of estoppel, a straw man.  The real question is whether or not the document that was ultimately submitted to the Minister was in accordance with the terms and conditions approved by him.  If you are right about the ministerial nature of the 345 power, you are home; otherwise, you are out on that particular point.

MR GRAY:   But it goes further in regard to the estoppel plea, because here we have Mr Scrivens directing his mind to the very variations ‑ ‑ ‑

DAWSON J:   Yes, he may have been wrong.

McHUGH J:   He may be wrong, so where does the estoppel arise?  Did you know about this?  I mean, you did not know.  I doubt if you would know that Mr Scrivens had put this document before him.

MR GRAY:   From out point of view, this document was discovered for other purposes and, as a matter of fortuity, happened to touch this point.

McHUGH J:   Yes, but how are you going to plead your estoppel?  What is it relied on?  What is the representation to you?

MR GRAY:   Well, I will come to that, if the Court pleases.

McHUGH J:   Well, that is important.

MR GRAY:   What happened, if the Court pleases, is that the government goes about a process of purporting to exercise a 345 discretion - or the Minister does - and he ultimately does that a few months later.  This advice to Mr Scrivens is preparatory to that process.  The case, as pleaded, sets out the Cabinet considerations.  One of the aims for her Honour went to Cabinet documents, and we have them, and it shows that Cabinet had decided this project would not go ahead.  But after that, the facade of a 343 approval or refusal was gone through and, in that process, the Minister sought advice, and it starts with Mr Scrivens, then it goes through to Mr Keane.  And the Minister calls on my client to put submissions about this 345 approval.  And my client goes to considerable trouble and expense ‑ ‑ ‑

McHUGH J:   Well, you say it is a facade, but if he had not done it you would probably be complaining about a denial of natural justice.

MR GRAY:   No, the documents that are pleaded in the statement of claim show that Cabinet made the decision the project would not go ahead and, against that background, this facade of a purported 345 discretion was gone through.

McHUGH J:   Well, not necessarily.  Cabinet decisions are not set in cement.  The Minister might have gone back.

MR GRAY:   There are surrounding documents that would negate that suggestion.  Our case is that the decision was made by the government to renege, and the facade of going through a 345 approval process was undertaken.  In that process, my client was asked to make submissions, and went to some trouble and expense making them; all useless.

McHUGH J:   Yes.  But, Mr Gray, assuming all this in favour, assuming estoppel can run against the terms of a statute, why would not any equity that you got as a result of the estoppel be discharged by the payment of whatever costs that you went to in relation to that?

MR GRAY:   That would be one head of relief.  See, the Minister here - everything proceeded on the basis that there was a valid lease for the purposes of a consideration of 345 approval.  The whole of the conduct over this course of the best part of, well, more than 12 months, was all predicated, and the Minister’s decision was all predicated on his considering a valid document.

McHUGH J:   Well, Mr Gray, you may be right about this, and you may succeed at a trial, assuming that this appeal was allowed and the amendment allowed; but what you have said seems, to my mind, to indicate that there is a very substantial issue or issues to be tried here.  The real question is, accepting that, whether your client would suffer an injustice.

MR GRAY:   If the Court pleases, having laid that foundation, that is the position that her Honour Justice Kiefel found herself in, and her Honour reasoned in this way:  her Honour reasoned that this is a very late amendment.  It came with a number of others which her Honour allowed.  Her Honour allowed every other amendment, but not this one.  None of the others, her Honour took the view, would in any way jeopardise a trial date.  It involved a limitation defence.  It involved a litigation matter, and some others:  a want of authority plea.

All of those matters were essentially not going to disturb the trial.  But this, her Honour recognised - and your Honours now get the flavour of it; there is quite a factual matrix that lies behind this, and it relates both to the time of negotiation of the deed of variation and the changing of these, what we would say, minutiae, and it relates to, then, what we say is the best part of a five-year course of conduct in regard to simply proceeding on the basis that there was a valid lease for the purposes of section 345.  And it continued right before her Honour, right up to the time of this amendment.  Her Honour is being told there is no issue about these things and, so, for a period of about five years is the conduct in question that needs to be looked at.

Her Honour took the view that that inquiry was going to jeopardise the trial date, and her Honour had faced some very spirited arguments about Cabinet documents, about legal professional privilege.  Her Honour has delivered judgments on these matters and, as a result of those matters, the fraud plea, for example, has been made.

McHUGH J:   Can I just put to you what is on my mind.  At the moment it seems to me that it was plainly unreasonable of the trial judge to take the view that the trial could not go on and that therefore the amendments should be refused.  So I would like you to address those two issues.  It is six months away together with a four‑month trial.  Why should you be cut off?  You still have the further problem:  even if the trial had to be postponed or adjourned part heard at some different stage, as to why the defendants should be cut out from this defence.  They are the matters that - it just seems to me at the moment that her Honour’s decision, with great respect to her, is plainly unreasonable.

MR GRAY:   If the Court pleases, we would respectfully suggest that your Honour is yet to get the full flavour of the case.  For example, the applicant, that is J.L. Holdings, has advised of something like 30 witnesses and the Crown has advised of something like 90 witnesses.  So there has been ‑ ‑ ‑

McHUGH J:   But they are on other issues.  It is this critical issue.  I mean, your case is strong on assertion but very weak on details, as it appears to me.  I know you are in that problem because you do not know, but that is all it is; it is assertion.  It may be that it will turn out that you could not get ready but, just looking at it, one would be - these issues about this particular aspect, if a party could not prepare a case within two or three months, then the Bar is not what it used to be, neither are solicitors.

MR GRAY:   I do not know what the difference there, your Honour.  But what her Honour did have before her was a massive set of documentation that her Honour had been through and through and through ‑ ‑ ‑

McHUGH J:   I know, but they are on other issues and they are going to be litigated anyway.  This is a separate issue and you have to say “Well, we couldn’t get ready” in six months’ time.

MR GRAY:   If the Court pleases, it is obviously in some ways a separate issue; in other ways it is a related issue.  A number of the witnesses who have been spoken of would touch this issue, had to go back, be revisited.

McHUGH J:   Yes, exactly.

MR GRAY:   The issue of discovery, the issue of the pleading of the estoppel.  It is not an easy plea to deal with and has to be particularised.  Your Honours have heard, now I have sort of talked about it, the types of factors to be gone into, but do not wish to be any mistake about this.  My client’s case is that the State of Queensland made a deliberate decision to renege on this particular contractual obligation and then proceeded to hide the fact that it was reneging on it and proceeded to engage in a course of conduct pretending it had not reneged and had an open mind when the contrary was the case.  In those circumstances the Court would understand that our plea about estoppel is a very significant plea.  The Full Federal Court was in no difficulty seeing that.  With respect, we had the opportunity of addressing the Full Federal Court for longer than the time this Court has available and able to explore those facts.

McHUGH J:   I must say at the moment I have some difficulty in seeing how your equity would be such that you could prevent the defendant relying on the statute as opposed to other forms of relief such as payment of your expenses that you have incurred as a result of that.

MR GRAY:   The other point that was addressed ‑ ‑ ‑

McHUGH J:   That itself raises complications.  I mean, you have to prove what your expenses are.

MR GRAY:   Yes.  Then there is the other point that was raised, that my client then said, “Well, if the Crown are right about this on such an obvious point, why did my solicitors advise about it?”.  It is a question then of my client’s right of recovery against the solicitors, and that involves - they want to pursue it to bring them into this case.  Also there is a problem of the time having run because this conduct took place in 1990, so the six years might well have run.  The idea of adding in another party to this litigation would necessarily obviously put the trial date right out of the question.  My client had been pressing for a trial date for some time and my client was then faced with the - of having to say to his Honour, as we say, then that - and her Honour found.....that the trial date was put in jeopardy.  There was this question of adding a new party.  If the solicitors were added, there is no way that they could be expected to be ready for a trial starting on 18 February.

KIRBY J:   Is it the logic of your position that the present applicants would not be able ever to litigate this issue?  They are put out of court forever?

MR GRAY:   That is the oddity, that they pursued this amendment matter to the High Court, so at the same time that it is a point they can raise anyway.  If they are right in that ‑ ‑ ‑

KIRBY J:   They are reserving that.  It is not unusual for a party - I am sure you have done it in your time too - to hold something up your sleeve and not to give anything away.  But on the logic of your position they are put out forever from contesting that the lease as presented is the instrument which activates the statute?

MR GRAY:   That is so.

KIRBY J:   That is a serious consequence, given that you have taken all this time to display that it is an arguable and interesting point.

MR GRAY:   It is very incongruous to be in the High Court on an application about an amendment when the other side said they do not need to amend, when the applicant says he does not need to amend.

DAWSON J:   That is unrealistic, Mr Gray.  What they fear is that it will be said in the trial that “You did try to raise this point and you were not allowed to do so and we won’t allow you to do it now”.

KIRBY J:   Did you plead that you tendered a document in accordance with the Act?

MR GRAY:   We pleaded it was duly tendered, which necessarily carries those words.

KIRBY J:   And you are willing to go to trial on the basis that the words “in accordance with the statute” allow a leeway for variation?

MR GRAY:   Yes, and our alternative case is that in any event the Crown directly, and the State directly, and through its agent, the council, had full knowledge and was fully involved in this whole process.

KIRBY J:   Even assuming there is some leeway, given that a Minister is a guardian, in a sense, of the public purse, it is quite a significant thing to bring forward the period of the lease and thereby burden the consolidated revenue and to say, “Well, it does not really matter what we put in there.  We can put any old thing in there because it is in accordance with the lease”.  There must be some ‑ ‑ ‑

MR GRAY:   The opposite.  It was not a burden.

McHUGH J:   It is the opposite.

MR GRAY:   It brought forward the rent.  It produced hundreds of thousands of dollars for revenue.  It had the opposite effect.  That is where this is all being skewed.

KIRBY J:   I had not understood that.

MR GRAY:   If the Court pleases, under the ‑ ‑ ‑

McHUGH J:   It accelerated it.

MR GRAY:   It accelerated the rent by ‑ ‑ ‑

KIRBY J:   So it was to the advantage of the government of Queensland.

MR GRAY:   Yes.

GAUDRON J:   On one view.

MR GRAY:   It brought forward the rent by some hundreds of thousands of dollars.  The best part of, on that particular memorandum, 12 months earlier.  One cannot be sure it is 12 months.  How it started out was that the agreement for lease that the council and J.L. Holdings signed, the two proposed leases, had a formula about the commencement which was related to the developer doing certain things.  All that was cobbled together in about mid‑1989 when they worked in the documents.  By the time it came to January, the parties were much more specific about a date and fixed a date and it had the effect of bringing forward the date and bringing forward the payment of rent which was the very thing the government wanted.  The government wanted, at that time, this project to be got on with.  Then, what was happening at the same time, is that the Southbank development - that is the other development on the Brisbane River - was seen to be a preferred development for the government.  The government changed ‑ ‑ ‑

KIRBY J:   Was that significant?

MR GRAY:   Yes.  The change of government was significant and the section 343 approval was given by the former government.  Mr Harper of the former government, gave the section 343 approval in November; the government changed in December and the delay started in February and the refusal came in October 1991.  In the meantime - and this is our case on the conspiracy and also the fraud - the government had decided to prefer the Southbank venture and renege on the earlier deal.  This is a government engaging in major commercial enterprise, in effect, as a commercial body.

KIRBY J:   What is the relevance of that to the exercise by her Honour of her discretion.

MR GRAY:   This is not just a question of the State acting as a public body in the matter of general ‑ ‑ ‑

KIRBY J:   But it is a big case.  It has conspiracy; it has contract; it has everything there.  Why stop a party with a long leeway, long time lapse, from litigating this other little issue?

MR GRAY:   Because this other little issue happened to have some major implications to it of fact, and was going to disrupt the trial as her Honour found.

KIRBY J:   What do you say would be the time in fact that would be taken up with witnesses on this issue?

MR GRAY:   We expect, for example, that our application for discovery be contested.  We would be making application for further and better discovery and if past history is correct - we told there are no further documents before our plea has been seen, and we expect the first thing we will encounter is a debate about further and better discovery.

KIRBY J:   Let us assume we are over that haul.  How many days is this going to add to the - what is the marginal increase in the cost to the litigation, in time?  This is a big case.

MR GRAY:   It is hard to estimate but one can see it adding two or three weeks to the case, but more importantly, it is going to delay the case.  That brings up the remarks that, I think, have been evident in a number of judgments - mentioning Ketteman and also New South Wales cases, about litigants are entitled to have, particularly in commercial matters, a relatively speedy trial.  It is all very well to talk about keeping people out of arguing a point but the price of that is delay that is unrealistic, then the courts will not countenance it.  These are the types of matters that the courts around the country are weighing. 

If one goes to Western Australia, for example, and the case there of Sadler.  Sadler is a case where there was an application to amend before a trial date was fixed.  There the Western Australian Supreme Court took the view that the amendment would not be allowed because it involved saying that a document had been considered to be a lease was not, in fact, valid, and it came up to a number of amendments and just came too late and would disrupt the planned management of the case.

In this case her Honour had made it very plain that she was about to fix a date and the delay in fixing it was simply arranging the Federal Court registry as to when four months could be allocated.  When this matter was raised there was no doubt her Honour was about to fix the case.  There is a mass of interlocutory attendances and management attendances about her Honour saying there is going to be a trial early next year.  The precise date had not been fixed, but the court had been having to allocate one judge for four months which is a very major matter for the registry in Queensland.  If that date is lost we are apparently ‑ ‑ ‑

DAWSON J:   I think we have made this point.

MR GRAY:   - - - delayed for a year.  We say that when one comes back to it, where is the error of principle of her Honour?  We say that this is not a question, as my learned friend would say, of one factor being subservient to another.  Case management, that is the prejudices to a party or to the public administration is a relevant factor.  If one goes to the United Motors Case in South Australia, that is a case where the parties - the party applying to amend, the other party did not oppose providing there was an adjournment, and the court said, “No, in the public interest we will not have it”.

DAWSON J:   Yes, but that is quite inconsistent with what is said in the two cases which have been mentioned for authority in this Court.

MR GRAY:   And the Chief Justice expressly said that.  He said that Clough v Frog, in the passage we set out in the outline of argument, Clough v Frog has to be viewed in a different light in the 1990s; different pressures are on the court.

KIRBY J:   You are arguing for the grant of special leave then?  You say there is an entirely new principle that this Court should condone.

MR GRAY:   No.  We say, with respect, that this Court in Sali’s Case has ‑ ‑ ‑

DAWSON J:   But that was an adjournment, that is a different - - -

MR GRAY:   That was an adjournment case, but the Court recognised that in considering interlocutory matter, case management was a fact.  In that case, case management presented a different way.  In Verwayen, Justice Toohey identified matters that -.... case management as a ‑ ‑ ‑

DAWSON J:   But that was a case again where personal strains were involved.

MR GRAY:   Indeed, and that is our point.  Every case is going to be decided on its own particular circumstances, but the matter of principle -if one is looking at what is the legal principle.  The principle in the 1990s is that the public interest, as expressed through case management, is a relevant factor.

DAWSON J:   I do not accept that, that you can do justice in one case by doing an injustice in another.

MR GRAY:   As the Court pleases.  We would put the submission that the matter is more subtle than that and that it is a matter of blending a number of principles.  One would be, for example, the keeping of a litigant out of court for a year, which is what will happen to my client, and if this Court is reviewing the matter today, the Court is doing so in December with a trial to start in early February.  So, plainly, the trial date is going to be lost, at least to some degree.  Whether the Federal Court can accommodate the matter is another issue entirely.

KIRBY J:   The essential complaint, as I understand it, is that her Honour put blinkers on, that she looked at the issue inflexibly.  I do not take you to be arguing for an inflexible rule in case management?

MR GRAY:   No.  We say ‑ ‑ ‑

KIRBY J:   And it is said that she did not sufficiently balance the injustice, or did not balance at all the injustice to the present applicants.

MR GRAY:   In fairness to her Honour, we say that submission is superficial.  Her Honour was faced with a number of amendments and she gave short reasons in regard to each.  The suggestion that her Honour did not have in mind my learned friend’s submission about Clough v Frog was referred to her, but did not understand what was being said.  The significance is just, with respect, wrong.  Her Honour plainly was addressing these amendments with the relevant principles in mind, and her Honour ‑ ‑ ‑

McHUGH J:   But she said that the most relevant consideration was whether the amendments would jeopardise the hearing dates.  That is not easy to accept that that is the most relevant consideration.  It is certainly an important consideration, particularly having regard to what we said in Sali’s Case, but to say it is the most relevant consideration.

GAUDRON J:   Yes, nor is it clear that it would jeopardise the hearing dates to me, I mean, notwithstanding what her Honour said.  I mean, it may have been that it could not have been run to completion but there is no reason to think that the dates could not usefully have been used to some extent.

MR GRAY:   That is very true of the Federal Court Registry and, I guess, the judges of the Federal Court, but that is the exact point that Justice Deane made in Squire v Rogers, the passage approved of by this Court in Sali’s Case when Justice Deane said that this Court, that is the High Court, had to be very careful about the problems that face other courts, because there is a depth of knowledge in regard to those matters that are peculiar to that court.  We again set out that passage in our outline of argument and there in Sali is the remarks of Justice Deane being applied directly, and that is the answer here, that Justice Keifel, who no doubt was very much aware of the problems the Federal Court faced in finding four months for a trial, was able to say, with the knowledge of that court’s administration, that if the trial date was lost, the case would be put back a year.

KIRBY J:   Just explain that.  This is not a jury case.  It is sitting by a judge sitting alone.

MR GRAY:   Yes, judge alone.

KIRBY J:   What is the great difficulty with the judge saying, “Well, we’ve got these dates set aside.  We’ll litigate these other issues and we’ll, if necessary - we’ll try to finish these issues and, if necessary, I’ll stand it over to another date and finish the case then”.  What is wrong with that?

MR GRAY:   Her Honour did not articulate the reasons for it, but one does know, for example, that the Federal Court judges are allocated to appellate work around the country.  That is all done well in advance.  There are three resident judges in Queensland in a big list and her Honour was saying, “That the realities are that if you lose this date of four months, we can’t give you another period until next year”.  The possibility of other alternatives her Honour did not raise.

McHUGH J:   But the hypothesis is that the defendant has a legal right which would dispose of this action.  To say, “Well, notwithstanding the fact that you’ve got a complete answer in law to this claim, nevertheless, you’ve got to pay $60 million because we’re having some trouble with dates”, or, “we might have to postpone the case”, it really strikes me as just inherently wrong.

MR GRAY:   If the Court pleases, one would wonder how on earth it could be, if this point has got any validity at all, how was it ever missed by the government lawyers, by the Crown lawyers, by Mr Keane QC  who was advising ‑ ‑ ‑

DAWSON J:   But that is not to the point, Mr Gray.  We have been over that.

MR GRAY:   We would say that would be weighed in the scales against the suggestion that this, in some way, is fatal to the applicants, J.L. Holdings’ case.

KIRBY J:   Points are overlooked, even Homer nodded.  I mean, things are missed and then when the concentration for the trial is on, points are noticed.  I mean, that is a common experience.

MR GRAY:   If the Court pleases, we say that if one looks at her Honour’s reasons and looks at them critically, as the Full Court Federal Court did, one cannot find an error of principle.

McHUGH J:   It seems that when you look at the result which is striking, the application having been made before the date was formally fixed for hearing and it was six months away and you have got a four‑month’s trial and you are refused such an important amendment and then when the judge says the most relevant consideration is whether the amendments would jeopardise the hearing dates, it seems to me to be more than sufficient.

MR GRAY:   If the Court pleases, one would say of that then that the Full Court in Western Australia must have been wrong and that the Full Court in South Australia in the United Motors must have been wrong because in those cases they said that there was, as it were, a public interest in not allowing these points to be argued and getting on with the case.

McHUGH J:   Well, there is, but this is six months beforehand and we are talking about a claim for $40 to $60 million.

MR GRAY:   In the Western Australian case it was certainly six months beforehand and the trial date had not been fixed or had not been identified.

GAUDRON J:   It may be that it was wrong in that case.

McHUGH J:   Yes, I must say I thought the dissenting judge was right in that case, whoever he was.

MR GRAY:   If the Court pleases, but we say that this is very much a matter of your Honours looking at this and saying, “Well, I would not have perhaps done this.”  It is quite another matter to say that the trial judge was wrong.

McHUGH J:   I think at the moment that is the best point you have got running for you, that it is a discretionary judgment.

MR GRAY:   The other matter is, if the Court pleases, that it is a matter where one only with leave can have a review of matter like that at an intermediate court level and that has happened and two judges of that court said that her Honour was not unreasonable in the view she took and really to have a second review on a matter like that does simply add up to different judges thinking they might have done something differently in the circumstances and that is not a proper ground.

KIRBY J:   Not quite because if the Full Courts of Australia and the Courts of Appeal are adopting an approach which is too affected by case management as against the demands of justice then maybe it is as well that this Court sends the signal that the ultimate objective of all litigation in this land is the attainment of justice.

MR GRAY:   Yes.  If the Court pleases, one would not see a quarrel with that proposition in any of those Full Court judgments.  What they say though is that the attainment of justice is not achieved by a person who has, for example, a perfect right to sue their solicitor for negligence, does not get the right to delay a trial.  Perhaps this is the way of putting it, that if there is something in this point the State of Queensland has its remedy, and if it chooses ‑ ‑ ‑

KIRBY J:   What, to sue the Crown Solicitor?

MR GRAY:   If it chooses to use in‑house counsel then it has become, in effect, a self‑insurer.  If it wanted to be protected it would use outside solicitors or counsel, but if the Court pleases, it is not as though the State of Queensland was left without remedy, and that was the point, of course, in Ketteman.  The point was made there that there is another avenue, but it also follows, with respect, that Ketteman would have to be wrongly decided.

DAWSON J:   No.

MR GRAY:   Well, although it was late, what was wrong with adjourning the submissions?

DAWSON J:   That was an entirely different case.

MR GRAY:   Only in point of time, with respect.

DAWSON J:   That is a very big point, and the nature of the litigants involved.

MR GRAY:   Just because one has a developer it does not follow that one does not have a human face behind the developer and/or the strains of litigation heaped upon the litigant.

DAWSON J:   I am not sure about that.

MR GRAY:   One just cannot jump to that conclusion, with respect.  We would - I do not want to labour the point, if the Court pleases, and perhaps I have, but we do say that when you go through her Honour’s reasons line by line and you look at the relevant law available to her Honour, including Sali’s Case, including these Full Court pronouncements around the country, you cannot say her Honour has erred.  If this Court is now to come in and say, “Well, those courts have got it wrong”, one cannot say her Honour erred at the time because her Honour was acting in conformity with, for example, the remarks of Justice Gummow and Justice French in the Bomanite Case.  It is a very clear case of saying that case management is a relevant factor.  Those passages ‑ ‑ ‑

GAUDRON J:   That argument would suggest that this Court could never pronounce upon the matter, whereas clearly it is a matter of great moment, really, in the administration of justice.

MR GRAY:   The Court might take two views about it.  The Court might take the view that because of the very complicated factual background of this matter - and it is a very complicated matter - that this is not an appropriate vehicle.  Another course the Court could take is to, in dismissing special leave, refusing special leave, make some remarks that clarify the matter but it is quite ‑ ‑ ‑

GAUDRON J:   A matter does not get clarified.  I mean, it is one thing to clarify the matter.  It is also another matter to ensure that justice is done.

MR GRAY:   Well, if the Court pleases, we would say then applying all the usual tests, one cannot identify error on her Honour’s part.  We say that her Honour has plainly had regard to ‑ ‑ ‑

GAUDRON J:   But if it is wrong in principle for case management considerations to result in a person’s defence being shut out, notwithstanding there are six months before trial, if it is wrong in principle, it is wrong in principle.

MR GRAY:   Well, we would put the submission, and set out in page 6 of our outline we quote from Justice Gummow and Justice French in the Bomanite Case, that very plainly regard to case management is a relevant consideration.  It is.....others - nothing subservient or subjugated or anything else.  It is one of the relevant factors in the 1990s to be considered.  Its application in particular cases is a matter of discretion and, in this case, her Honour was justified in what she did.  There was considerable and significant prejudice to the respondent, J.L. Holdings.

GAUDRON J:   I have not heard a word, I must say, that does not say that the prejudice can be covered by costs either.

MR GRAY:   Well, again we would refer to those remarks in Ketteman and Bomanite.

GAUDRON J:   In this case.

KIRBY J:   But as Justice Dawson has pointed out, they were different type of parties in that case, and it was a different sort of issue.  There were the stresses on an individual litigant.  But in this case just two big corporations:  the State and you.

McHUGH J:   Well, I do not know whether it is big or not.  It may be just a small company, or a shelf company, as far as I know.  Does the evidence disclose the size of your client?

MR GRAY:   Yes, there is evidence that my client company is a mum and dad company.  It is a private family company that ‑ ‑ ‑

DAWSON J:   But the litigation is commercial litigation and large sums of money are involved.  It is a different ‑ ‑ ‑

MR GRAY:   There is no question of that.  And when one gets into commercial litigation, there are plenty of remarks at the appellate level and intermediate level of the courts around Australia about it in that context.  That is all the more reason why you do not indulge late amendments, particularly when ‑ ‑ ‑

DAWSON J:   But this is not a late amendment, that is the point - not in the Ketteman context.

MR GRAY:   Not in the Ketteman context.  It certainly is in regard to the Sadler context and, as we say, it is not a question of your Honour saying that your Honour would have, in a particular situation, done something differently.  With respect, it is very difficult for your Honours because your Honours do not have anything like the depth of knowledge that Justice Kiefel had, and it is hard to overemphasise that.  Her Honour has been case managing this matter for several years.  Her Honour has dealt with ‑ ‑ ‑

GAUDRON J:   It may be that her Honour was so close that she missed the wood looking at the trees.

MR GRAY:   Well, we would say, with respect, no.  Her Honour, for example, had witnessed and heard what had been said to her, for example, when a somewhat similar point was being sought to be argued as a special point, and how the facts all of a sudden were - no issues at all on these things.  It was just described as a bit of a tittle and, “This is the point,” and we decided an argument and her Honour gave reasons about - her Honour has been through this many times and ‑ ‑ ‑

KIRBY J:   You say she has her eyes on all the other trees as well.

MR GRAY:   Indeed, and what her Honour does know is that her Honour is dealing with hard‑fought litigation with parties taking positions and her Honour could see that Mr Scrivens in 1991 had looked at this very point.

DAWSON J:   We are going over the same ground, Mr Gray.

MR GRAY:   But it does make the point that her Honour is having regard to all the other trees and in that context, with respect, the point is worth repeating.  We say that one cannot find fault in principle with her Honour judgment and that, accordingly, special leave should be refused and, with respect, the only way in which it could be said that her Honour is wrong is if this Court pronounced in a way that involved a different emphasis than is currently shared by the appellate divisions of all the intermediate courts in Australia and, if that is to be so, then ‑ ‑ ‑

KIRBY J:   That is a special leave point.

MR GRAY:   That is a special leave point.  Then, if the Court pleases, the question is whether this Court feels it is able to exercise the discretion afresh, my having but touched on the factual material and there is a depth to it and we would say a real injustice could be done with your Honours not being, as it were, fully seized of the facts, and that is a very real matter and a further point then would be terms.  Now, obviously if the Federal Court could be persuaded, for example, to delay the case to start in the middle of year or deal with it in a split way then that would be another matter, but her Honour simply said that was not possible and there is no way that a party can go behind that.

KIRBY J:   But there is no practical reason - it is not like a jury trial - so far as you can put to us why her Honour could not reserve her dates, press on with the case, deal with the issues that are involved and, if this Court were minded to interfere with the exercise of discretion, to come back, if necessary, at a later stage to this issue.

MR GRAY:   Yes, that is so undoubtedly.  We would say that it would be most unfortunate for this decision to be - if your Honours go to the major point of public principle involved, it is obviously a very major matter in the interests of administration if this country and it is not a matter that should be rushed, but there is no doubt the trial ‑ ‑ ‑

KIRBY J:   Do you know of any analysis, apart from the analysis council have done, of the decisions of the intermediate appellate courts on this point by the AIJA or other bodies or analysis in other countries?

MR GRAY:   If the Court pleases, some preliminary inquiries were made but time did not permit that to be exhaustive.  We would like the opportunity to submit further materials.  Justice McHugh quite rightly put us on a very tight timetable and we have done what we can in the time available.  We cannot suggest ‑ ‑ ‑

DAWSON J:   It is an interlocutory matter and a decision has to be made, and that is that.

MR GRAY:   Except, if the Court pleases, if one is to identify a ‑ ‑ ‑

DAWSON J:   The trial is due to start in February, is it not?

MR GRAY:   Yes.

GAUDRON J:   And you have been through one appellate court, presumably having argued the matter fully and researched the matter fully at that stage.

MR GRAY:   But, your Honour, a decision in December that this whole point becomes opened up with the trial starting in February is very difficult indeed.  So, from the point of view of a re‑exercise of discretion will undoubtedly set aside the trial date.  Whether the Federal Court can then accommodate the matter in some other way is a matter that is quite outside our knowledge.  My learned friends did not submit to her Honour that this matter could be accommodated in a way of splitting the trial or offering any suggestion at all.  There was not a moment’s softening on their part.  They just said they wanted the amendment and that was that.  They did not suggest that there would be some other way to ‑ ‑ ‑

DAWSON J:   They said it would not take any extra time; of course they did not.

MR GRAY:   They were seeking to amend.  They were acknowledging neglect or certainly fault in not picking up this point.  It behoved them to put forward some very sensible pragmatic course to protect the other party, but they did not do that at all.  Her Honour knows exactly the problem the Federal Court faces.  There is nothing my client could do about it and nothing we can do today.

KIRBY J:   There is no doubt that in the intermediate courts this is a very important issue.  It comes up once every month, cases of this kind, where there are disputes about disturbing case management and different judges seem to have different philosophies.  The question is whether this Court can say anything that will be of help.

MR GRAY:   Yes.  We would say that the general principle is clear, that is there is essentially an unfettered discretion in the matter.  There are relevant factors that include case management and no doubt over time relevant factors might change and emphasis might change according to the dictates and one cannot be ‑ ‑ ‑

GAUDRON J:   That may be true, but there is one absolutely fundamental non‑negotiable principle, and that is that the parties are entitled to put their case.  As a general rule the parties are entitled to put their case.  It would have to be an extraordinary situation where there could be no adequate way of compensating for the prejudice that a party would be shut out from putting his, her or its case.

KIRBY J:   It may even be a constitutional principle.  It may be inherent in the judicial power.

MR GRAY:   Put that highly, it necessarily follows that there needs to be a review at the appellate level of every intermediate court because all those courts have now said that case management is a relevant principle and there is a public ‑ ‑ ‑

DAWSON J:   It was not saying it is not relevant and it does not prevail over the justice of the situation.

MR GRAY:   Take, for example, the United Motors Case in South Australia.  There the plaintiff applied to amend, the defendant not opposing if there is an adjournment, and the court saying “Amendment refused because of the public interest”.

DAWSON J:   Each case will depend on its own facts, but in this particular case a party is shut out potentially from putting a defence which is in answer to the claim.

MR GRAY:   The point in the United Motors Case was that the party was shut out ‑ ‑ ‑

DAWSON J:   But there is little purpose in comparing cases in that way.

MR GRAY:   Except if one tested at a level of principle, that particular decision was applied by Chief Justice Gleeson in the New South Wales cases and at a level of principle it followed that a party being refused leave to amend because of a public interest matter, that is, case management and disruption to the list, is being shut out of that defence.  So at the level of principle it follows that Chief Justice King was wrong.  As a matter of principle, it follows, with respect, that Chief Justice Gleeson in adopting it was wrong.  It follows, with respect, that the House of Lords ‑ ‑ ‑

KIRBY J:   These are State courts and subject to Kable.  They may just be a different situation.  We are talking here about a Federal Court exercising the judicial power of the Commonwealth.

MR GRAY:   But the ultimate principle, that is, is a party to be shut out of an issue of defence because of a public interest in case flow management, if that is the principle, then there are a series of very detailed intermediate appellate court decisions that stand to the contrary proposition and we say that if the principle is that it is a relevant factor to be weighed, then one cannot identify error by Justice Kiefel in this case.  All one can say is that perhaps a different judge would have exercised the discretion differently and, with respect, without taking on board her Honour’s knowledge of the matter ‑ ‑ ‑

DAWSON J:   We are going over the same ground again, Mr Gray.

MR GRAY:   ‑ ‑ ‑ one cannot deal with that issue.  If the Court pleases, both the special leave points and the other arguments we understand are to be covered by outline of argument.  We would, if the Court would permit it, like the opportunity of presenting some further material following further researches and, of course, we need the Court’s leave in that regard, but we cannot suggest that our researches have been exhaustive.

DAWSON J:   I do not understand that.  You have had one appeal already, as Justice Gaudron points out.

MR GRAY:   Yes, but this particular issue, that is ‑ ‑ ‑

KIRBY J:   Speaking for myself, I do know that this is a very important issue in the intermediate courts, a very important issue, and it is important for the running of courts and if we do decide to reserve in the matter then I would be helped by additional material.

MR GRAY:   Yes.  We would respectfully suggest that there will be an appropriate vehicle, one that does not have what we would say is the factual complications of this matter and that having heard the argument the Court would take the view that although it is an important public point ‑ ‑ ‑

DAWSON J:   Perhaps you could renew your application and see what course the Court is going to take.

MR GRAY:   Yes, if the Court pleases, we would wish to be heard on, if the Court was against us.....terms, including costs.  That would probably have to await your Honours’ reasons.

DAWSON J:   Well, what do you want to say about that?

MR GRAY:   We would say that, if the Court pleases, the types of terms that Justice Carr outlined would need to be put into the form of an order and we would say that ‑ ‑ ‑

DAWSON J:   This Court would not make those orders; it would reserve the liberty to apply and it would go back to the judge who is handling the matter.

MR GRAY:   And the other matter we would say is that if the Court takes the view that it wishes to approach this matter on a pronouncement that clarifies the matter at the intermediate court level, one cannot say that her Honour was wrong at the time she dealt with it; one of the terms of the amendment would be the costs of this appellate process, both in the Federal Court and this Court.

DAWSON J:   Yes, what do you say about that; that you should have the costs.

MR GRAY:   Yes, and it is not uncommon - if the view is taken that my client has been - reasonable opposition to the amendment, and we would say that that is made out, that one of the terms would be that we have the costs of the application to amend, including the costs of this argument, and there are obviously a number of practice cases that support that proposition, if the Court takes a view that our opposition has been reasonable.

DAWSON J:   Yes, thank you, Mr Gray.

MR GRAY:   I am reminded by my learned junior that, particularly in circumstances where they are being granted an indulgence for their admitted fault.  May it please the Court.

DAWSON J:   Thank you, Mr Gray.  Mr Hanson, do you have anything to say in reply?.

MR HANSON:   On costs, your Honour?  On everything?  I will only detain your Honours for a few moments.  There was some suggestion that this issue has been raised and addressed before, that the Crown was aware of this at the section 343 stage; there is no evidence of that.  The only evidence in the record is that in some time after the change of government in 1990 the Lands Department and its advisers are shown to be aware of the deed of variation.  That is where the evidence starts and finishes.  So there is no evidence that it was known at the section 343 stage.

KIRBY J:   Well, I wonder about that.  Here you are, a well-lawyered government of the Commonwealth and a State of the Commonwealth, and you say you were not aware.  You had the documents.  I mean, it may be that it is in accordance with the Act, that is a matter to be argued, but you did have the base material.

MR HANSON:   I do not think the evidence just answers that, your Honour, in fact.  In the record here is the covering letter that went to the Lands Department from the Brisbane City Council saying, “Here is the lease for the Minister’s endorsed consent”, together with a fee, certificate of incorporation, et cetera; no mention of the deed of variation going forward with the covering letter and with the lease.  Now, if we are talking about evidence on the record the evidence is silent as to when the department became aware of the variation.  My learned friend was asked by your Honour Justice McHugh to formulate the representation to his clients and the question was not answered.  It was never formulated. 

Now, it was said at a later stage of the submissions that since we were asking for an indulgence in seeking to amend our pleadings it behoved the Crown to put forward something that protected his client.  Well, if they would formulate their plea of waiver and estoppel, we could respond in some meaningful way.  Some talk about might have sued their solicitor, or might have joined their solicitor - can we refer your Honours to Justice Carr’s judgment at page 620 of the record.  He deals with that point at page 620.

As to whether it was to the advantage of the Crown to bring the commencement of the lease forward, it does not matter, in our submission, but, for what it is worth, the rent was not for the Crown, it is for the Brisbane City Council, the lessor.  There is a premium paid to the Crown upon the grant of the lease but the rent is not for the Crown.  Your Honours will see that at pages 255 and 333 of the record. 

My friend suggested that his unformulated plea of waiver, estoppel or whatever might add two to three weeks to the case, well, this is not the place to argue about these matters, but I could not possibly accept that.  A couple of days would be our suggestion.  That would be a generous estimate.  On our side somebody to say when they became aware of the variation and how it was considered within the department and what the Minister knew about the variation - perhaps half a dozen witnesses at the most.

KIRBY J:   What about the opposition to discovery?

MR HANSON:   No, we have answered that.  We have insisted.  They have had absolutely everything.  They have had full discovery, including Cabinet minutes and advices passing between the Crown Solicitor and the Minister.  Because we pleaded - in answer to the allegation of abuse in public office, we pleaded that the Minister acted upon legal advice, so all of the legal advices have been discovered, all of the Cabinet minutes have been discovered, and we have said over and over again there is no further discovery. 

The references to Tony Sadler v Western Australia and United Motors v South Australia, there is a special rule in both of those Courts which expressly embodies case management principles and which puts the efficient running of the court ahead of principle.

KIRBY J:   Is there a special rule in the Federal Court?

MR HANSON:   No.

KIRBY J:   It is purely done under the general power of the judges.

MR HANSON:   No, it is under Order 13.

DAWSON J:   Which is in the ordinary form.

MR HANSON:   The ordinary form, Order 13, rule 2.  The only gloss upon that is one of the orders - I am sorry, I cannot give your Honour the number - for directions hearings.  The Court keeps control of the action.  Order 10 it is.  There is a long list of matters which may be the subject of directions hearings and the pleadings is specified as one of them but that, of course, could not possibly give the Court a free hand to ignore what Order 13, rule 2 says.

In any event, if you do look at Tony Sadler v Western Australia, you will see there was a dissent by Mr Justice Scott at page 340 of the report, where he says, in spite of the statutory rule - giving supposedly priority to case management principles - nonetheless he dissented in that case.  He still thought priority ought to be given to the justice of the case.  Likewise, in United Motors, the South Australian case, not only is there a special rule there giving priority to case management, but the plaintiff was not locked out forever because the plaintiff was non-suited and there was time to sue again, and that is one of the reasons why the judge, at first instance, refused the application to amend or adjourn, whatever it was.  He took that into account.  The plaintiff was not going to be locked out forever.  Non-suit and sue again.

KIRBY J:   This seems to be an area where there are more dissents than there is normally in Australia and that picks up the point that, in effect, each case is different and separate and special and people have different reactions to it.  Is not that a reason for restraint, particular restraint, restraint by this Court?

MR HANSON:   No, your Honour, not when what happens is as far out as this one.  There must be some latitude, but this one was out of the limits, in our submission.

KIRBY J:   Three judges of the Federal Court did not think so.

DAWSON J:   Two.

MR HANSON:   Two did not think so.

KIRBY J:   No, the trial judge and the two in the Appeal Court.

MR HANSON:   I do not think I have yet taken the trouble to identify what we say is the error in the majority in the court below.  At 634, we say we can identify two errors.  It is in book 3.  The last paragraph on 634, their Honours are discussing the final ground of appeal.

They have gone through the draft notice of appeal.  The final ground of appeal.  If you go back to page 632 you will see in the paragraph under Grounds of appeal, the last sentence, “The fourth” - that is the fourth ground of appeal:

The fourth is that the judge gave no or no sufficient weight to the fact that the proposed amendment was fatal -

In dealing with that ground of appeal, their Honours, you will see at the passage at page 634, miss out the fact that the allegation was that no weight had been given.  They pick it up and say that a complaint has been made that inadequate weight was given and say that that just does not justify an interference.  So there is an error, in our submission.  Not just an argument of inadequate weight - no weight.  Their Honours missed it; Mr Justice Carr did not.  The second error on that page follows the sentence commencing:

Moreover, this ground depends on the respondents’ making out their claim that the proposed amendment would be fatal to the bulk of JLH’s claim.

With respect, that is an error.  An applicant does not have to make out that the amendment would be fatal.  All that has to be done is to show that it is not a futile or frivolous proposed amendment.  So, there are two errors we seek to identify in the majority below.

All these differences, your Honours, in our submission, are on matters of principle, not the facts of each case.  I am sorry, I should not say that, that is saying it too widely.  You can discern errors of principle - sorry, real differences of principle in the cases in the courts below.

One last matter:  your Honour Justice Kirby spoke of lawyers making mistakes; missing points; Homer nodding.  Could we refer you to Londish at page 142.  There is a quote from Mr Justice Sheppard in the Federal Court where he suggests “that a mere change of counsel” may be sufficient to justify permitting an amendment to be made so long as other requirements are met.

KIRBY J:   What is the citation?

MR HANSON:   Londish (1993) 45 FCR 128. The passage is at page 142. The judgment of the Full Court refers to remarks by Mr Justice Sheppard in Commissioner of Taxation v Brambles Holdings (1991) 28 FCR 451 at page 455 to 457, a suggestion:

that a mere change of counsel might in some cases justify an amendment.

On costs:  the application to amend was opposed from the beginning and has been opposed to date.  If it is found that we have suffered an injustice, our opponents should not be entitled to their costs, in our submission.  At worst for us, they should be costs in the trial, costs in the cause.

DAWSON J:   Thank you, Mr Hanson.  The Court will take a short adjournment to consider what course it will take.

AT 3.55 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.21 PM:

DAWSON J:   The Court is able to give its judgment now and make the necessary orders and will publish its reasons subsequently.  We would grant special leave to appeal and allow the appeal and order that the applicants have leave to amend.  We would order that the costs of the application to amend and all costs consequential upon the amendment be borne by the applicants but that the costs in this Court and in the Full Court of the Federal Court be costs in the cause.  We further order that all parties have liberty to apply to Justice Kiefel for any further consequential relief.

AT 4.23 PM THE MATTER WAS CONCLUDED