State of Vic v Sutton & Anor

[1997] HCATrans 257

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
Level 7
451 Little Bourke St
Melbourne VIC 3000
GPO Box 1114J
Melbourne VIC 3001
Phone [phone]
Fax [phone]
  O/N 2741

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No M5 of 1997

THE STATE OF VICTORIA

Appellant

- and -

SUTTON & ANOTHER

Respondents

BRENNAN CJ (In Chambers)

MELBOURNE, THURSDAY, THE 18TH DAY OF SEPTEMBER 1997

AT 9.35 AM

MR S.C. ROTHMAN SC:   I appear with my learned friend,
MR H. BORENSTEIN for the first and second respondent and the applicant on this summons (instructed by R.L. Whyburn & Co).

BRENNAN CJ:   Yes, thank you.

MR I.G. SUTHERLAND:   I appear with DR I. HARDINGHAM, your Honour, on behalf of the appellant, the respondent to the summons before your Honour this morning (instructed by Victorian Government Solicitor).

BRENNAN CJ:   Yes.  Now, I need to understand a little more about what this case is about.  What orders are being sought from the High Court?

MR ROTHMAN SC:   In the case itself?

BRENNAN CJ:   Yes.

MR ROTHMAN SC:   Or in the chamber summons?

BRENNAN CJ:   In the case itself.

MR ROTHMAN SC:   Well, I think ‑ ‑ ‑ 

BRENNAN CJ:   I notice that the ground of appeal says that the appeal be allowed.

MR ROTHMAN SC:   Yes.

BRENNAN CJ:   What happens when the appeal is allowed?

MR ROTHMAN SC:   The matter, it seems, has to be remitted back on any analysis.

BRENNAN CJ:   Was that the order that is being sought?

MR SUTHERLAND QC:   Your Honour, if the - the parties have had an opportunity to have same discussions before Court this morning ‑ ‑ ‑ 

BRENNAN CJ:   Yes?

MR SUTHERLAND QC:   ‑ ‑ ‑ the position - the common position between the parties now is that in the event that the appeal is allowed, and the judgment of the full court of the Industrial Relations Court of Australia is set aside, that there then will be other issues that will required to be determined some in respect of which there has been no intermediate court adjudication on, some of which will require evidence.  So, the parties, I think, agree, your Honour, that it would not be appropriate to ask the High Court in the event that the appeal is successful, to deal with those matters.

BRENNAN CJ:   I can understand that.  The problem, I fear, is that we do not have the documents here which are apt to lead to the conclusions which the parties seek.

MR SUTHERLAND QC:   Well ‑ ‑ ‑ 

BRENNAN CJ:   If the court were to remit the matter with what, directions?  To determine what?  Issues that have not been determined below?

MR SUTHERLAND QC:   Well, some of the issues, your Honour, some of the issues raised by the Notice of Contention that we were served with by the respondents to the appeal ‑ ‑ ‑ 

BRENNAN CJ:   Yes?

MR SUTHERLAND QC:   ‑ ‑ ‑ were the subject of adjudication by the learned trial judge.  Then, when the matter went to the full court of the Industrial Relations Court, some of them were canvassed before the Full Court but not adjudicated upon and some were simply not raised before the Full Court so that ‑ ‑ ‑ 

BRENNAN CJ:   Well, that raises questions then as to whether or not ‑ ‑ ‑ 

MR SUTHERLAND QC:   Yes?

BRENNAN CJ:   ‑ ‑ ‑ the matters which are susceptible of determination by the Full Court that have not been dealt with, ought to be remitted to that court in order to determine.

MR SUTHERLAND QC:   Yes, your Honour.

BRENNAN CJ:   That is no problem provided it is understood that the matter was first before the trial judge.

MR SUTHERLAND QC:   Yes.

BRENNAN CJ:   And so the issues have been alive from that point onwards.

MR SUTHERLAND QC:   Yes.

BRENNAN CJ:   But my concern is that, at the moment, the documents that I have seen thus far on the file, on a brief look at them, is - consists of a notice of appeal from the decision of the Full Court which made an order simply dismissing the appeal from the Chief Justice of the Industrial Relations Court and the order that is sought from this court is that the appeal be allowed with no consequential orders.

MR SUTHERLAND QC:   Yes.

BRENNAN CJ:   Now, that is where the problem lies.

MR SUTHERLAND QC:   Yes. 

BRENNAN CJ:   In other words, if the parties can define the issues, everything will fall into place.

MR SUTHERLAND QC:   Yes.  I think the parties, your Honour, are capable of defining the issues.  The parties understand, as between themselves, what the issues are.

BRENNAN CJ:   Yes.

MR SUTHERLAND QC:   And, I think, we are in agreement, your Honour, that the issues that will need to be determined are those that are articulated in the Notice of Contention that we have been served with by the first and second respondents.  I understand your Honour's difficulty though in terms of not having the benefit of those documents to know what directions to make in respect to that.

BRENNAN CJ:   I can give appropriate directions once we have got the paperwork in order.

MR SUTHERLAND QC:   Yes.

BRENNAN CJ:   There is no difficulty about that.  All we have to do is get the paperwork in order.

MR SUTHERLAND QC:   Yes.  Your Honour can ‑ ‑ ‑ 

BRENNAN CJ:   Now is that beyond capacity to do?

MR SUTHERLAND QC:   Sorry, your Honour?

BRENNAN CJ:   Is it beyond capacity to do that in a short space of time?

MR SUTHERLAND QC:   I think the position might best be left on this basis, your Honour, because the parties are in agreement that, as we understand the position and Mr Rothman can correct me if I am wrong about this, your Honour, because the parties are in agreement that the only matters to be canvassed, on the appeal, are the matters in respect of which leave was granted, and your Honour may not be surprised by that, but that ‑ ‑ ‑ 

BRENNAN CJ:   Is there a limited grant of leave?

MR SUTHERLAND QC:    A limited grant of leave in respect to two issues, your Honour.

BRENNAN CJ:   I see.  I have not seen the order granting the leave. 

MR SUTHERLAND QC:   Your Honour has the notice of appeal.

BRENNAN CJ:   I have the notice of appeal, yes.  Well, the order that I have here does not seem to be in terms limited.

MR SUTHERLAND QC:   Limited to two issues raised by the - that are raised, your Honour, namely, whether or not the purported disposition of funds and property of the BLF pursuant to the amalgamation agreement was void or voidable, essentially, a construction question, and that is really bound up, your Honour, in ground 2 as well and the third question is, or the third ground of appeal turns upon as separate matter, namely, whether if it is voidable, whether or not there is anything in the pleadings, or any other conduct on the part of the appellant capable of constituting exercise of an election in respect to that disposition.

So, when I said "limited", your Honour, I meant limited in that sense that only those two issues were the subject of the leave granted.

BRENNAN CJ:   Well, I am puzzled because the formal order that I have here, which is the sealed order, is that leave be granted to the applicant to appeal to this court from the whole of the judgment and order of the Industrial Relations Court given and made on such and such a date.  That is all.  I do not see any limitation in it.

MR SUTHERLAND QC:   Yes.  Well, I am equally puzzled by that, your Honour, because I did not appear on the application ‑ ‑ ‑ 

BRENNAN CJ:   Yes.

MR SUTHERLAND QC:   ‑ ‑ ‑ although I understood the position to be that we were granted limited leave in the terms defined in the grounds of appeal in the notice that was subsequently filed.

BRENNAN CJ:   Do you have the transcript of the special leave - of leave application there.

MR SUTHERLAND QC:   Yes, my learned friend, Mr Rothman, says that - informs me, your Honour, that it was limited in the sense that they were the only grounds upon which we sought leave to appeal in the draft notice that was - draft notice of appeal that was included in the appeal book.  Although, it would appear that the leave that was ultimately granted was in terms wider than that.

BRENNAN CJ:   Yes, and those sorts of appeals seems to follow the draft notice of appeal that was in the application.

MR SUTHERLAND QC:   Yes, your Honour.

BRENNAN CJ:   Now that raises another point.  It is a question of what are the arguments in relation to the construction of the relevant legislation and Orders and in order to determine that construction, I have questions of constitutional validity involved.  In other words, is there some suggestion that they should be read down in some way?  Or the construction of the Orders should be ‑ ‑ ‑ 

MR SUTHERLAND QC:   The Orders in Council, your Honour?

BRENNAN CJ:   Yes.

MR SUTHERLAND QC:   Yes.  That certainly raises that question, your Honour, but not in a way that, as we understand it, in terms of the grounds of appeal that would give rise to any constitutional questions.

BRENNAN CJ:   I see.

MR SUTHERLAND QC:   I think, as we understand this application brought by our learned friends, their concern is, as we understand it, your Honour, and we are responding to the applications ‑ ‑ ‑ 

BRENNAN CJ:   Yes.

MR SUTHERLAND QC: ‑ ‑ ‑ is that, having served the Notice of Contention which raises questions that arise under the Constitution, namely, the question of inconsistency under section 109 and the section 92 issue ‑ ‑ ‑

BRENNAN CJ:   Yes.

MR SUTHERLAND QC:   ‑ ‑ ‑ they were concerned to ensure that when the matter came on for hearing in the High Court, that there was clear understanding as to the basis upon which it was proceeding because if it did not require the service of fresh section 78B notices, or the convening of the Full Court to determine constitutional questions, that would be now and at the outset.  But if it was only going to be the determination of the grounds of appeal and not the issues raised by the Notices of Contention, then other consequences might flow.

The parties would then be preparing the case, obviously, on a different footing and so would the Court in terms of organising the Court's time to hear the appeal.  So, as we understand my learned friend's purpose in bringing this application, it was really to get clarification in relation to that matter. 

Our position, as conveyed to them and which we convey to the Court, is that we are content, your Honour, for the matter to proceed on the grounds - for the Court to determine the grounds of appeal in the notice of appeal and confine it to that.  If we are successful on those grounds, your Honour, well, then other matters arise which my learned friend has correctly foreshadowed in the Notice of Contention which may or may not require remittal back to the Federal Court and may or may not require additional evidence and may or may not give rise to arguments, on our part, that those issues have been abandoned in the court below or in the Full Court.

But they are all contentious matters as between the parties.  But as we see the matter, your Honour, proceeding on the basis of the grounds set out in the notice of appeal that has been filed, we do not see that as giving raise to any issue of a constitutional kind that would require the service of a notice under section 78B.  We see it as substantially a question of construction of the relevant Orders in Council and their effective meaning and a determination in addition to that of the question of whether or not the Full Court was in error in determining that the disposition being voidable, there was nothing in the pleadings filed that gave rise to a basis upon which it could be said that the election had been exercised by the custodian to avoid the disposition.

BRENNAN CJ:   Is there any live issue between the parties at the moment as to the jurisdiction of the Industrial Relations Court?

MR SUTHERLAND QC:   No, there is not, your Honour.

BRENNAN CJ:   That is accepted?

MR SUTHERLAND QC:   That is accepted.  It was a contentious issue for some time, your Honour.

BRENNAN CJ:   Yes.  Then, looking at the Notice of Contention, there are several questions of law that were raised there.  Do any of the first five turn on questions of fact?

MR SUTHERLAND QC:   Grounds 1 to 3 do not, your Honour, in our submission.  Grounds 1 to 3, your Honour, have only been the subject of adjudication by the learned trial judge.

BRENNAN CJ:   Yes.

MR SUTHERLAND QC:   Chief Justice, not by the Full Court.  Ground 4, your Honour, has never previously been raised, in our submission, we, frankly, do not understand what it raises but we do not believe it gives rise to any question of fact to the extent that we do understand it, your Honour.

BRENNAN CJ:   Yes.

MR SUTHERLAND QC:   Five, your Honour, we understand to be the section 109 inconsistency argument that our learned friends wish to raise.  That may, your Honour, to some very limited degree, raise questions of fact but of a very limited kind.

BRENNAN CJ:   Well, it seems to me that the Notice of Contention falls into two parts.  First, questions 1 to 5 which, assuming that they did not involve any question of fact, would simply be questions of the validity of the Victorian legislation.  Is that right?

MR SUTHERLAND QC:   Yes, your Honour.

BRENNAN CJ:   And then, paragraphs 6 and 7, would involve separate questions and that is whether or not the Victorian legislation, on its face though it would have an operation that might otherwise be accorded to it, is denied that operation by virtue of its extraterritorial operation or by reason of section 92.

MR SUTHERLAND QC:   Yes, yes, your Honour.

[9.50am]

BRENNAN CJ:   Well now, one can understand that the matter can be dealt with if those two paragraphs were hived off.  At the moment I do not feel confident that it can be dealt with by hiving off paragraphs, at least, 1, 2, 3 and 5, because they may intrude into the question of the construction and the operation of the sections.  Now, am I in error in that approach?

MR SUTHERLAND QC:   Your Honour, I think your Honour may be in error in holding the tentative view that they may intrude upon the construction question, your Honour.  Questions 1, 2 and 3 ‑ ‑ ‑ 

BRENNAN CJ:   Well, let me put it another way: they may or may not, but they could.  Is that right?

MR SUTHERLAND QC:   On the question of construction, your Honour?

BRENNAN CJ:   Yes. 

MR SUTHERLAND QC:   No, I do not ‑ ‑ ‑ 

BRENNAN CJ:   What I am thinking of is, if you get half way through an appeal and one of the Justices decides to look at the problems that are raised by 1, 2, 3 and 5, then how does one say that does not arise?

MR SUTHERLAND QC:   But if one of the Justices, your Honour, were to raise 1, 2, 3 and 5 in terms of the validity of the State legislation as distinct from the proper construction of the Orders in Council made under that legislation, then it may intrude, your Honour, to that extent.  And we would accept, your Honour, that 1, 2, 3 and probably 4 - although we do not fully understand what 4 is about, your Honour, it never having been raised before - have that potential. 

BRENNAN CJ:   Yes.  Well, if those are the grounds of contention, and those are the only grounds of contention, would it not be wise to formulate (a), the order which is desired to be made on your part by the High Court in the event of the appeal being allowed?  It may simply be: and the matter be remitted to the Federal Court of Australia.  But if that is so, then all I need to be satisfied about is that there is something there to remit to the Federal Court of Australia.  And then (b), for the parties to agree on whether or not 1, 2, 3, 4 and 5 could conveniently be dealt with in the course of the present stage of the appeal, or whether there is any question of fact which is involved in any one of those grounds.  Now, if the parties could agree on that, I could see the way clear in which we can go forward.

MR SUTHERLAND QC:   I think the parties could agree on that, your Honour.

BRENNAN CJ:   Well then, shall I adjourn for a few minutes to see what you come up with?

MR SUTHERLAND QC:   Well that may be a convenient course, your Honour.

BRENNAN CJ:   All right, we will do that.

SHORT ADJOURNMENT

[10.06am]

BRENNAN CJ:   Yes, Mr Sutherland.

MR SUTHERLAND QC:   Your Honour, thank you for the opportunity to give consideration to the matters your Honour has raised with us.  I hope what we are about to say is helpful.  I am not sure that it is totally helpful, your Honour, but the position of my client, the State of Victoria, your Honour, is that in respect to grounds 1 to 5 in the Notice of Contention, from our perspective, we do not see any of those grounds as giving rise to a need to educe additional evidence. 

But, your Honour, the difficulty we have with what your Honour said about the matters being raised either incidentally or directly in relation to either the construction or validity of the State legislation is this: that it is our contention that none of those grounds, three of which were, subject to adjudication by the trial judge, raised properly before the Full Court by a notice of contention.  We wish to contend that really they ought not be agitated before the High Court; they have effectively been abandoned.  For example, grounds 1 to 3, his Honour Wilcox CJ ruled on each of those grounds in favour of the appellant.

BRENNAN CJ:   I understand that, and that is no doubt a submission that can be renewed at the appropriate time if the Notice of Contention is persisted in.  My concern simply is to identify what issues could be raised, even though they are met by an argument such as the one that you have put.

MR SUTHERLAND QC:   Well, in that event, I think the answer to your Honour's question is grounds of contention 1 to 5, with the caveat, your Honour, that we do not fully understand ground 4, but leaving that aside, we do not apprehend that would give rise to any evidence.  Grounds 6 and 7, your Honour, would require evidence and could not be raised, in our submission.  And in those circumstances, we would submit that the appropriate order in respect to grounds 6 and 7 is that they be remitted back to the Federal Court in the event that the appeal is successful but without prejudice to our client's rights to contend that the grounds have been abandoned, your Honour.

BRENNAN CJ:   Yes.

MR SUTHERLAND QC:   I am not sure that I am assisting your Honour fully, but I am ‑ ‑ ‑ 

BRENNAN CJ:   Yes, you are indeed.  The problem about 6 and 7 is simply that, if 6 and 7 had substance and were successful, then of course there is no relevant legislation to construe.  So that from that logical point of view, the Full Court is presently being asked to consider, on the notice of appeal and grounds 1 to 5 of the Notice of Contention, questions which in the event may turn out to be hypothetical.  I do not see any great difficulty about that, having regard to the way in which the action has proceeded thus far, given that none of those questions will involve any new questions of fact.

I think the best solution in the light of what you say is to give a direction that the matter be listed for hearing on the footing that the grounds of appeal will be limited to those in the notice of appeal and the Notice of Contention will be limited to those grounds 1 to 5 in the first instance.  It would have to be, I think, subject to any contrary direction that might be given by the Full Court in the course of the hearing, and I take it that your notice of appeal could be amended to seek an order consequential upon the allowing of the appeal that there would be a remittal of the matter to the Full Court of the Federal Court to hear and determine some grounds which are still not determined by that Court; is that right?

MR SUTHERLAND QC:   It would need, I think, your Honour, to go to a single judge of the Federal Court, because it would require the eduction of evidence.  My learned friend tells me that that would be a matter proper for the Full Court to determine, your Honour, if that be the appropriate course.  But there would in any event be a need, whatever be the procedure, for further evidence to be educed, and on neither of those grounds, your Honour, has a trial judge ruled in respect of either of those two matters.

BRENNAN CJ:   Were 6 and 7 raised before the trial judge?  Is that so, Mr Rothman?

MR ROTHMAN SC:   Yes, your Honour, in the written submissions.

MR SUTHERLAND QC:   Six was, your Honour; 7, your Honour, was raised in the pleadings.  Leave to amend the pleading - or the statement of claim - was granted and it was omitted from the statement of claim and not raised, although it was sought to be raised at trial.  His Honour did not deem it necessary to rule upon the point, having decided on other grounds.

BRENNAN CJ:   Obviously there were some interlocutory matters which would have to be considered by the Full Court then in relation to 6 and 7.

MR SUTHERLAND QC:   Yes, your Honour.

BRENNAN CJ:   Well, are you prepared to amend your notice of appeal so as to seek an order consequential upon the allowing of the appeal?

MR SUTHERLAND QC:   Yes, your Honour.

BRENNAN CJ:   Perhaps you could formulate that?  Perhaps not while you are on your feet; I will hear what Mr Rothman has to say.

MR SUTHERLAND QC:   Thank you, your Honour.

BRENNAN CJ:   Mr Rothman, what do you say about that course of events?

MR ROTHMAN SC: Your Honour, can I go back one step - and I apologise for doing so. Your Honour raised the issue as to whether there was still extant an issue as to the jurisdiction of the Industrial Relations Court of Australia to hear and determine the matters between the parties. That matter no longer is an issue between the parties. The matter arises through certain provisions of the Industrial Relations Act with accrued jurisdiction points. The matters were argued before his Honour Wilcox CJ - I am not sure if it was as he then was or not - but ‑ ‑ ‑

BRENNAN CJ:   I think he still is.

MR ROTHMAN SC:   That is right.  And before the Federal Court there were a number of points adumbrated - leave aside for the time being whether notices of contention were filed or leave granted or the like - but there were a number of points adumbrated which, quite skilfully and appropriately I might add, the Full Court avoided deciding, and decided only what I will call a simple construction point, and it goes to two very simple issues as to whether or not - and they are the two issues that are raised by my learned friend in his notice of appeal.  Neither of those issues, in my respectful submission, can possibly depend upon any constitutional point or any point of section 109 - relating to section 109.

The constitutional points and a section 109 point are raised by grounds 5, 6 and 7.  Ground 5 is a 109 point relating to the interrelationship between the two Acts, that is the Federal Industrial Relations Act and this BLF Derecognition Act in the State of Victoria.  In my respectful submission - I know this is difficult in a formal sense - whatever happened, whether the notices of contention were argued in full before the High Court or whether there was no Notice of Contention before the High Court, whatever happened to the appeal it would be necessary to remit back to the Full Court issues which remain outstanding. 

The reason I say that is that the orders that have been made so far depend on the finding and declaration that there has been no invalidity or irregularity in the operation of a particular organisation's rules. The result of a finding in favour of the appellant would be that there would have been validity or irregularity, and therefore there are certain consequential orders which may have to be made under section 258 of the Industrial Relations Act as it existed.

BRENNAN CJ:   What would have been the irregularity?

MR ROTHMAN SC:   There would have been admitted as members persons who were not entitled to be members or not with a proper application, and there would have had to have been orders made in relation to their membership.  There would have been the treatment of funds and debts in a whole range of places.  Victoria is one aspect of the section ‑ ‑ ‑ 

BRENNAN CJ:   But this would involve the CFMEU organisation.

MR ROTHMAN SC:   Yes, your Honour.  And so that on any analysis, the matter would have to be remitted back.

BRENNAN CJ:   Yes.

MR ROTHMAN SC:   Our difficulty, your Honour, is this - it is not a difficulty - on that basis, your Honour, on any analysis and whatever happened to the appeal ‑ ‑ ‑ 

BRENNAN CJ:   It has got to go back.

MR ROTHMAN SC:   ‑ ‑ ‑ it has got to go back, your Honour, unless the appeal is totally unsuccessful, in which case the matters have been dealt with to finality.  So that is one aspect that deals with your Honour's question relating to the orders consequential upon the allowing of the appeal.  And indeed, if it went back to the Full Court, they would then have to deal with a number of questions and possibly remit it back to a single judge.  So that is that aspect, your Honour. 

In terms of the aspect as to what should be argued, and what could be argued, your Honour, the way in which the Full Court of the Industrial Relations Court of Australia has dealt with the matter would seem that it would be - I do not say that things are not dealt with oddly sometimes in the High Court - but it would be very odd, your Honour, that the High Court would then embark upon a discussion or look at the questions relating to whether or not there was a section 109 point in relation to the issues of the simple construction point. 

It is a question of whether, put bluntly, the provisions of the Act properly construed provide avoidance of an act ab initio, or whether there has to be an election by the custodian to void, and as a matter of fact is there evidence of such an election.  They are the only two points that arise from my learned friend; I hesitate to put them very simply.  And, your Honour, that is the reason that we agreed prior to coming to Court this morning with my friend's contention, which was I suppose put somewhat more fulsomely than ours in the chamber summons, that all of the notices of contention ought to go back, they not having been dealt with at all by a Full Court.

We were minded in putting forward the chambers summons that the High Court has deprecated the position that it may be put in from time to time, where matters are dealt with by it without an intervening Appeal Court having dealt with the matters.  And all of the notices of contention, your Honour, are in the position where they are matters, leaving aside whether they were matters raised at all, but they were matters certainly not dealt with by an intervening Appeal Court.

[10.20am]

And having that - not wishing to prejudice our position in terms of having abandoned the points, we needed to put in a Notice of Contention.  Mindful of what the High Court may feel about having to deal with matters that were avoided.  I use that in the best sense, but were avoided by the Full Court, felt that it was appropriate for us to put the chambers summons on.

BRENNAN CJ:   Yes.  I can understand that, the difficulty is that one cannot necessarily fragment a case ‑ ‑ ‑ 

MR ROTHMAN SC:   Maybe relying on ‑ ‑ ‑ 

BRENNAN CJ:   ‑ ‑ ‑ into its component parts confident that if the appeal is to proceed on one aspect of it, that that will be self-contained.  It seems to me that what you are saying really leads to consideration of three categories of issues, the first was the notice of appeal issues which are common ground as needing to be determined by a Full Court of the High Court. 

MR ROTHMAN SC:   Yes, your Honour.

BRENNAN CJ:   The second are grounds 1 to 5 in the Notice of Contention which have not been considered by the intermediate court but which do not involve any question of law and which ‑ ‑ ‑ 

MR ROTHMAN SC:   Question of fact, yes, your Honour.

BRENNAN CJ:   Any question of fact and which conceivably could result in the determination of the matter in your favour without any consequential remittal to the Full Court.  The third are paragraphs 6 and 7 of the Notice of Contention which arise only in the event of all other issues being determined against you but constitutional matters raised in 6 and 7 needing consideration in order to decide whether there was any validity in the Victorian Act in the first place.

MR ROTHMAN SC:   Yes, your Honour.  I apologise for interrupting your Honour.  Could I make this suggestion?  It is possible, more than possible, but it is possible that the Court would ask the questions going to grounds 1, 2, 3, 4 or 5 in the course of the argument and we would not like to see the Court in any way restricted in what it may deal with and the Court rarely finds itself so restricted, I might add.  My suggestion, with respect, is this; to the extent that the Court finds it necessary to deal with grounds 1, 2, 3, 4 and 5, the parties be at liberty to deal with those matters as raised by the Court but that otherwise the matters can be dealt with in the same way as 6 and 7 and remitted back.

That would obviate the time of the Court in dealing with them if it is not necessary so to do but obviously put the parties on notice that if the Court raises the issues then the parties will have to deal with them, there and then. 

BRENNAN CJ:   Yes.  Perhaps we can cope with it in this way; if I give directions for the preparation of summaries of argument which will cover, in the first part, the grounds specified in the notice of appeal in the second part, and in the second part the grounds 1 to 5 of the Notice of Contention.  Both summaries of argument to note that paragraphs 6 and 7 of Notice of Contention are by consent of the parties in the event of the appeal being allowed otherwise to be remitted together with any other issues outstanding to the Full Court of the Federal Court in order that that Court might consider the outstanding issues and the issues raised by paragraphs 6 and 7.

MR ROTHMAN SC:   If your Honour pleases.

BRENNAN CJ:   Now that will leave the Court and the parties at liberty to deal with all the issues in the notice of appeal and in the Notice of Contention as to grounds 1 to 5 but it may be that the Court at the commencement or at some stage during the hearing of the matter, may indicate to the parties that it would prefer to deal only with the grounds specified in the notice of appeal standing over or remitting to the Full Federal Court the grounds specified in grounds 1 to 5 of Notice of Contention.  In other words, the parties are to be prepared but the Court has got its discretion as to the way in which it deals with it.

MR ROTHMAN SC:   If your Honour pleases.  Can I say that in terms of - I know your Honour is mindful of the functions of the Court, if the notice of appeal is dealt with, it is a very short matter.  It is less than half a day.  If the second part of the written submissions are dealt with, it is probably slightly longer than that.  Perhaps going over the day, which ‑ ‑ ‑ 

BRENNAN CJ:   Yes, that is what I would have thought.

MR ROTHMAN SC:   Which was one of the reasons we were mindful of in terms of - can I ask this your Honour, and I apologise for asking your Honour's advice from the bench but it would seem on that basis that because of the 109 point it would be necessary to file and serve a section 78B notice.

BRENNAN CJ:   Well it would be certainly a matter of proportion that you should, yes.  Now do you have any difficulties with direction in those terms?

MR SUTHERLAND QC:   No, your Honour.  It does not, I suppose, your Honour, deal with our primary objection to the matters being raised in circumstances where they have not been the subject of contention or adjudication by the Full Court. 

BRENNAN CJ:   I am not going to determine that.  That is a matter which you will raise before the Full Court ‑ ‑ ‑ 

MR SUTHERLAND QC:   No, at that appropriate time.

BRENNAN CJ:   ‑ ‑ ‑ at that appropriate time, yes.

MR SUTHERLAND QC:   In those circumstances we do not have difficulty with what your Honour has proposed, with respect, and could we seek your Honour's leave to amend our notice of appeal to include an additional order which will be order 3 that the matters raised in points 6 and 7 of the respondent's Notice of Contentions dated 1 April 1997 be remitted to the Full Court of the Federal Court of Australia. 

BRENNAN CJ:   Together with any other issues?

MR SUTHERLAND QC:   Well, yes - perhaps together with any other issues outstanding, my learned junior suggests, your Honour.  Perhaps that is an appropriate qualification to be put on it.

BRENNAN CJ:   Are you content with that formulation for the purposes, Mr Rothman?

MR ROTHMAN SC:   Your Honour, I am content with that formulation in terms of order 3.  In my respectful submission there ought also be an order 4 that the matter be remitted back to the Full Court.  But I suppose in that sense because 6 and 7 have not been dealt with, it must be in any event.  If your Honour pleases I am content with that course.

BRENNAN CJ:   You will have leave to amend in those terms, Mr Sutherland.  I will give a direction that the notes of argument should be prepared in two sections, the first dealing with the issues raised by the grounds specified in notice of appeal; the second section dealing with the grounds specified in paragraphs 1 to 5 of Notice of Contention.  That the appellants should be at liberty to raise such objections as it may be advised in relation to the giving by the High Court of consideration to any of the grounds contained in paragraphs 1 to 5 of Notice of Contention.  The notes of argument to be prepared by the dates following, now what dates?

I should indicate to you that it is possible in the light of that direction to set the matter down for hearing on 3 November.  How long would you like to prepare your summary of argument?

MR SUTHERLAND QC:   Your Honour, we will be in a position to deliver our summary within a fortnight of today.

BRENNAN CJ:   Yes.

MR ROTHMAN SC:   Your Honour, if it is of any assistance to my learned friend we can do it in this way, given the shortness of time; we can file our submissions under part 2 at the same time as my learned friend is filing his submissions under part 1.

BRENNAN CJ:   That would obviously be helpful.

MR ROTHMAN SC:   And then likewise.

BRENNAN CJ:   Replies on either side.

MR ROTHMAN SC:   Yes, your Honour.

BRENNAN CJ:   Yes, then I will give directions that the notes of argument in accordance with the rules be filed by the appellant so far as they relate to the grounds specified in notice of appeal within 14 days from today and by the respondent so far as they relate to grounds 1 to 5 of the grounds specified in the Notice of Contention within the same period.  Replies by either party to the submissions made by the other within seven days.

MR SUTHERLAND QC:   Yes, your Honour.

MR ROTHMAN SC:   If your Honour pleases.

BRENNAN CJ:   Within seven days.  And I take it, gentlemen, that you will ensure that there is reference made in those notes of argument to grounds 6 and 7 and what is to happen to those grounds by consent.

MR SUTHERLAND QC:   Yes, your Honour.  There is only one other issue; your Honour has a fairly tight schedule, the appeal book has not been finalised and filed ‑ ‑ ‑ 

MR ROTHMAN SC:   I think I can tell my learned friend that it was finalised yesterday, your Honour. 

BRENNAN CJ:   Yes, I think it has arrived in the registry.

MR SUTHERLAND QC:   I see.

MR ROTHMAN SC:   Yes, it will be served ‑ ‑ ‑ 

MR SUTHERLAND QC:   The problems ...(indistinct)...

BRENNAN CJ:   That will allow us then to put the matter on as quickly as possible.   Thank you for your assistance.  Do you wish any further certificate to be issued?

MR SUTHERLAND QC:   No, your Honour.

AT 10.31 AM THE MATTER WAS ADJOURNED