State of WA - A-G of NT v Ward & Ors

[2001] HCATrans 64

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M141 of 2000

B e t w e e n -

MOBIL OIL AUSTRALIA PTY LTD

Plaintiff

and

THE STATE OF VICTORIA

First Defendant

TASFAST AIR FREIGHT PTY LTD

Second Defendant

Office of the Registry
  Melbourne  No M68 of 2000

B e t w e e n -

MOBIL OIL AUSTRALIA PTY LTD

Applicant

and

SCHUTT FLYING ACADEMY (AUSTRALIA PTY LTD

First Respondent

ATTORNEY-GENERAL FOR THE STATE OF VICTORIA

Second Respondent

Summonses for Directions

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 28 FEBRUARY 2001 AT 9.33 AM

Copyright in the High Court of Australia

__________________

MR J.L. SHER, QC:   May it please your Honour, I appear with MR T.J. NORTH for Mobil Oil in both matters.  (instructed by Blake Dawson Waldron)

MR D. GRAHAM, QC, Solicitor‑General for the State of Victoria:   May it please your Honour, I appear with my learned friend, MS C.M. KENNY, for the State of Victoria in both matters.  (instructed by the Victorian Government Solicitor)

MR J.B.R. BEACH, QC:   Your Honour, I appear with MR B.F. QUINN for Schutt Flying Academy and also Tasfast Air Freight.  (instructed by Slater & Gordon)

HIS HONOUR:   Yes.  Now, Mr Sher.

MR SHER:   We have had sent to your Honour very recently some draft orders.  They are not agreed in all respects, your Honour, and I can identify the area ‑ ‑ ‑

HIS HONOUR:   First let me catch the draft before we decide where they are not agreed.  Yes.

MR SHER:   Can I take your Honour to the draft order in – they are headed Minutes of Consent Order, which means that the draftsman was an optimist.  They are not consent, your Honour.  Can I refer to 141 of 2000 first.  That is the writ which has been demurred to by both defendants and, as we read the rules, your Honour – and I do not think there is any disagreement about this at the Bar table – once there is a demurrer and a request, under the rules, referred to the Full Court, it is, as it were, as of course that it goes there.

HIS HONOUR:   Yes.

MR SHER:   Now, what is not agreed is that the dates that have been suggested, your Honour will appreciate when you look at them – and I would ask your Honour to renumber the document where the second “2” appears with a “3” and where “3” appears with a “4”.

HIS HONOUR:   Yes.

MR SHER:   I do not think it is a matter of vigorous opposition, but we took the view and have suggested by the date of the submissions that as we are challenging the validity of the legislation, even though there are demurrers, it is probably appropriate that we go first, so that our proposed series of dates makes that assumption and ‑ ‑ ‑

HIS HONOUR:   But all this is on a number of assumptions that might need to be just examined a moment.

MR SHER:   Yes, your Honour, but even if the order that we seek, that the special leave application be referred to the Full Court and heard at the same time, is not made, the originating proceedings and the demurrers would, as we read it, your Honour, automatically go to a Full Court on whatever date ‑ ‑ ‑

HIS HONOUR:   There is talk also, is there not, of a section 18 stated case?  If there is, I am not going to doing anything in the demurrer unless I have worked out what is happening in the stated case because it would be absurd for the two to go on separately.

MR SHER:   No.  Well, the demurrers have overtaken our proposal, your Honour.  That is effectively what has happened and we have taken the view that the demurrers will raise all the issues we would want to raise, so we do not press the Court to make an order for a stated case.

HIS HONOUR:   All right.

MR SHER:   The demurrers seem to have got the procedural advantages and none of the disadvantages, so we are happy to go along that.

HIS HONOUR:   If you go forward on the pleaded facts and none other and if you are content to do that, that is a matter for the parties and not for me.

MR SHER:   Well, that is our position, your Honour.  We are content to do that.  Now, as I have said, the suggested dates for submissions and replies and replies to the reply assume we go first.  I will not say anything about that for the moment to see whether there is any resistance to that suggestion.  It just seemed a logical step to us that ‑ ‑ ‑

HIS HONOUR:   As for the dates, they may be making rather over‑optimistic views about when this matter might get into a Full Court list.

MR SHER:   We are aware of that, your Honour, and for that reason and for another reason we have not put a date for a directions hearing.  I will mention why in a moment.  But it is our suggestion that there is no reason why the parties should not go ahead and do their submissions, as it were, at a time when they think can comfortably do them and we have just got to see where the Court can fit us in and rather than waiting for a date and then working it back, we thought it was sensible, as it were, to work forward.

HIS HONOUR:   Fixtures have been made until June.  I know that there is a deal of work waiting in the wings and that that is not assisted by the fact, for example, that the whole of the March sittings about to commence will be devoted to one case.

MR SHER:   Yes, I know the case, your Honour.  I have a small role in that.

HIS HONOUR:   By the size of your submissions, Mr Sher ‑ ‑ ‑

MR SHER:   I think I have 18 minutes for oral argument, your Honour, so you will not have to put up with me for long.

HIS HONOUR:   I would not make even that assumption, Mr Sher, yet.  That is a matter for next Monday afternoon, is it not?

MR SHER:   Justice Dawson took up the whole of my time the last time I was for an intervener by starting up asking a fellow Victorian some questions and I never really got to my argument and I am hoping your Honour will not do that again.

HIS HONOUR:   Plus ça change, Mr Sher, plus ça change.

MR SHER:   Your Honour, our position is that we are in the hands of the Court as to a date.  My learned friend, Mr Beach’s clients wants expedition for fairly obvious reasons.  We do not have a view about that.  We are content for the Court to deal with that on its merits and make whatever order is appropriate.

The other matter I should mention, your Honour, is this, that we have served section 78B notices and we have had two responses thus far.  The Northern Territory have indicated they do not intend to intervene.  The Commonwealth are considering their position.  We do not know what other States and the ACT will do.  It would not be a surprise if there was intervention because with the challenge to the federal legislation in Femcare, that would leave, if this legislation survives, as Victoria with the only State with group proceedings available and it may be other States have a view about the desirability of that state of affairs and they may want to be heard, or they may have other like legislation in the pipeline.

So we thought that a summons for directions would be useful and the date for that ought to be fixed having in mind the possibility there may be intervention, but at a date convenient to the Court to just consider the position early in May.

HIS HONOUR:   But with a view to doing what at that further initial stage?

MR SHER:   Well, if there are no interveners, there would not be anything to do.  If there are interveners, it might be necessary to make some directions in relation to submissions and the like.  It is really just to leave the option open, your Honour.

HIS HONOUR:   Yes.

MR SHER:   Now, if I can take your Honour to, again, the optimistic consent orders in the other matter ‑ ‑ ‑

HIS HONOUR:   Well, what is left alive in M68?

MR SHER:   Well, M68, your Honour, what is left alive depends, I suppose, on the outcome of the writ.  If the challenge ‑ ‑ ‑

HIS HONOUR:   Are the rules still on the books of the Court?

MR SHER:   They are.

HIS HONOUR:   Is it intended that they should remain so?

MR SHER:   Well, we understand from my learned friend, the Solicitor‑General, that he has a letter from the Chief Justice predicting what might happen at the Judges meeting.  I do not know if that is the same as predicting what might happen in a judgment, but it has not happened yet.  Even if it were to happen, your Honour, the position that we would contend for is that we have wrongly lost in the Court of Appeal and we should have that matter put right and ‑ ‑ ‑

HIS HONOUR:   What, have a fight about your costs, Mr Sher?  Come, come.

MR SHER:   Might I tell your Honour that the fight would not be a lengthy one for this reason:  there are three points ‑ ‑ ‑

HIS HONOUR:   Mr Sher, you would be pushing against a door that is, if not closed, so very hard to open.  With the press of business we have, we are not interested in fights that are largely academic.  We just cannot afford to be now.  If the parties want to press it, by all means, they will have their day in Court.

MR SHER:   Can I just mention, your Honour, why this matter will not take up much time at all, if your Honour were to accede to our application?  There are three points in the writ.  The two substantive points as to the question of the extraterritorial operation of the Victorian Act and whether there has been, as it were, an investment of the court with non‑judicial power are two of the precise points raised in the special leave application.  There are two other points in the special leave application, one of which is a very short one and does not really matter much, but the other point is a point which comes up in the extraterritorial jurisdiction argument, which is whether laws in relation to damages are substantive.

Now, since the argument in the Court of Appeal the High Court’s decision in Fyffe has come down and, in our view, it is almost beyond argument that damages is a substantive issue.  So there will be an overlap in relation to the third point, which is the most substantive point in the special leave application, with the demurrers.

HIS HONOUR:   But what utility would there be in the Court saying anything about the validity of rules which have been overtaken by statute?  Either the statute is good or the statute is bad.  If the statute is good, what are we doing?  If the statute is bad and if this proposal to repeal the rules happens, again, where have we got to?  What have we achieved?  We have enough essay writing to do without writing essays that are of no immediate practical utility.

MR SHER:   There are very helpful submissions from the parties, your Honour, which can be adopted by the Judges.

HIS HONOUR:   Everybody is here to help us, Mr Sher.

MR SHER:   Yes, that is so, your Honour.  Well, I understand your Honour’s point.  It does not surprise me.  We only learnt, I think, yesterday that there is a letter from the Chief Justice, but it has not yet happened and we submit it is premature to assume that it will.

HIS HONOUR:   Let us leave the special leave in the list and by the time it comes to the list in the ordinary fashion we will perhaps know better whether it has happened or is likely to happen.

MR SHER:   Yes.  I think Mr Beach might want to say something about what has fallen from your Honour, but there is nothing further, I think, that I can say.

HIS HONOUR:   Yes.

MR SHER:   So that really leaves to be resolved, as we would understand it, your Honour, the question of whether the directions ought to reflect us going first or not and whether the dates are appropriate.

HIS HONOUR:   The reason I smile is that in the 70s, when demurrers were much common, it always seemed to me that there was a certain frisson of excitement around the Bar table according to Chief Justice Barwick’s almost inevitable opening comment that, “In accordance with the well‑established practice of the Court”, one or other of the parties would be nominated as going first.  But there was always just a little uncertainty in the Bar, at least, what the well‑established practice of the Court that was about to be announced would mean, so ‑ ‑ ‑

MR SHER:   Well, we do not rely on well‑established practice.  We rely on logic and commonsense that ‑ ‑ ‑

HIS HONOUR:   Very dangerous.

MR SHER:   ‑ ‑ ‑ those challenging the legislation ought to say what is wrong with it, and we are happy to do so but it is really a matter for your Honour as to what is the most convenient course.  That is all I wish to say, your Honour.

HIS HONOUR:   Yes.  Mr Solicitor.

MR GRAHAM:   If your Honour pleases, the perhaps most notable occasion for the frisson in the Court was the Seas and Submerged Lands Case when the Commonwealth was called on to defend the legislation to the great surprise, I think, of all concerned.  I looked at that case ‑ ‑ ‑

HIS HONOUR:   No doubt in accordance with the well‑established practice of the Court.

MR GRAHAM:   It was, in fact, only a case stated, your Honour, but Mr Byers, as he then was, was called on in accordance with the ordinary practice of the Court in a case of demurrers, but I think I can say with some confidence, your Honour, that the modern practice does appear to be that the party challenging goes first.  That was done in Levy v The State of Victoria only about four years ago.

HIS HONOUR:   Which in this case would lead, therefore, to Mobil going first.

MR GRAHAM:   Yes.  Yes, we are content with.  We would have argued in favour of that course.  Your Honour, could I say something about the minutes of orders in M141?  For reasons which will become apparent in a moment, we do not agree with paragraph 1, although we would agree that both demurrers should be heard together.  We agree that there should be a timetable for the exchange of submissions and have not any particular views concerning what is proposed except, perhaps, there should be some direction given even today about submissions by interveners, but that perhaps can be left to one side.

HIS HONOUR:   Could you suggest a form of what might be said about interveners, Mr Solicitor?  It is simply that sometimes decisions about intervention being left until close to the event for reasons that are not to be challenged - - -

MR GRAHAM:   Yes.  Your Honour, Practice Direction No 1 of last year gave interveners 15 days before the date of the hearing to file their submissions, as I recollect.  I am sorry, it is five days before the hearing of the ‑ ‑ ‑

HIS HONOUR:   I think 15 for notice of intention or something.

MR GRAHAM:   It is 15 days for the notice of intention, five for the submissions.

HIS HONOUR:   Yes.

MR GRAHAM:   Perhaps, your Honour, the simplest way would be that paragraph 10 of Practice Direction No 1 of 2000 should apply in the case of any intervener.

HIS HONOUR:   Yes.  I would be minded at the moment, subject to what other counsel have to say, Mr Solicitor, to make no special direction about interveners.  I think that, by and large, the interveners are trying as best they may, given the state of their instructions, which is, I understand, sometimes where such difficulties are to be found, to give notice of their intention and to put on their submissions early so that there is a useful joinder of issue.

MR GRAHAM:   Yes.  My learned friend is suggesting that we might be lucky and get an early hearing date, but I am conscious of the fact that Femcare, which raises some similar issues, is likely to be listed in August and I ‑ ‑ ‑

HIS HONOUR:   As to that, is there any utility in trying to slot this in immediately next after Femcare?

MR GRAHAM:   I think there would be, your Honour.  I know the issue is largely different, but they are certainly looking at very similar provisions in both cases, so that the Court would at least be familiar with the territory, if not with the arguments.

HIS HONOUR:   I know nothing of Femcare except for its existence.  I assume it is a Chapter III set of issues and presumably there is some run-on between that set of issues and the Kable‑type issues which are seen as arising in connection with this legislation.

MR GRAHAM:   My learned friend, Mr Sher, knows a bit more about Femcare than perhaps I do and perhaps as your Honour does, but perhaps he can deal with that.

HIS HONOUR:   I will take it up with him presently, yes.

MR GRAHAM:   But the Chapter III issue in M141 is a little different from the one that I understand arises in Femcare.  M141 raises a sort of Kable issue in paragraph 16 of the statement of claim.  Your Honour, could I say something about M68 of 2000.  We would consent to the order in paragraph 1 for the substitution of Tasfast.  We would oppose the application being referred by your Honour sitting as a single Justice to a Full Bench in any event and, your Honour, we would submit it is simply contrary to the practice of this Court for that to be done.  It is usually a two or three member Bench that does that and in special circumstances, which we would say are not present here.

HIS HONOUR:   For the moment, Mr Solicitor, I would be minded to make no order in 68 beyond amending parties and reserving costs.

MR GRAHAM:   Yes, your Honour.  We would have nothing to say about the first part of that.  Depending on how matters develop a little later on this morning, we may have something to say about costs.

HIS HONOUR:   Yes.

MR GRAHAM:   Your Honour, there is, as my learned friend indicated, an intention which has been disclosed on the part of the judges of the Supreme Court to amend Order 18A of the Supreme Court Rules so as to remove all of it except those parts which deal with the giving of directions in group proceedings, so that one will still have an automatic directions hearing procedure under what is now Part 4A of the Supreme Court Act.

There was a letter to that effect sent by the Chief Justice of the Supreme Court to the Chairman of the Bar and the President of the Law Institute for the information of the profession.  That letter is exhibited to an affidavit which should be on the file, an affidavit of Lisa Michelle Nichols sworn 27 February.  The letter from the Chief Justice to the Chairman is part of exhibit LMN3.

HIS HONOUR:   Sorry.  I have LMN3 to 27 February.

MR GRAHAM:   I beg your Honour’s pardon.  It is LMN4, which comprises two letters.

HIS HONOUR:   Yes, I have it.

MR GRAHAM:   A letter from Mr Ruddle to Lisa Nichols of Slater & Gordon which enclosed a copy of the letter from the Chief Justice to the Chairman.

HIS HONOUR:   Yes, I have it.  I have read that.

MR GRAHAM: All I need to say in amplification of that, your Honour, is that section 33ZK of the Supreme Court Act is a transitional provision which provides in substance that if a proceeding has been commenced under Order 18A it is deemed to have been commenced under the new Part 4A of the Supreme Court Act and taken to have been commenced on the day when it was commenced under the rules, so that, naturally enough, in the face of that transitional provision, Order 18A was a spent force as it then stood.  That is all we would desire to put to the Court at this stage, your Honour.

HIS HONOUR:   Yes, thank you, Mr Solicitor.  Yes, Mr Beach.

MR BEACH:   Your Honour, just on the special leave application, we have a concern with it being just put on the backburner so to speak.

HIS HONOUR:   That is, no, simply that it would take its ordinary course through the process and come on for hearing in the ordinary way, if the parties are determined upon pursuing it.

MR BEACH:   Well, if this Court rules the legislation to be invalid, then there will be a utility in dealing with the special leave application under Order 18A subject to the Supreme Court not having revoked it in the meantime.  Now, we were just recently made aware of the Chief Justice’s letter proposing to revoke Order 18A and we might have something to say about that because if the Supreme Court judges revoke Order 18A, this Court rules that the legislation is invalid, our proceeding is effectively in limbo.  So we have some right, we would have thought, to say something about whether the judges should revoke Order 18A at this stage or should await the outcome of the High Court’s decision in relation to the challenge to the legislation.

We are concerned to avoid having two hearings, a hearing on the legislation and a hearing in relation to the validity of Order 18A, if this Court rules the legislation to be invalid.  So we were in agreement with Mobil that the special leave application, because it involves also similar issues, should be referred over to the Full Court that deals with the challenge to the legislation to deal with it as an alternative argument in the event that the Court was minded to declare the legislation invalid.  So that is why we thought, rather than have two potential hearings, it would be more sensible to refer all matters to the Full Court that is hearing the challenge to the legislation.

Now, that is all that we want to say about that.  So we, contrary to the learned Solicitor’s position, agree with Mobil in relation to referring the special leave application to the Full Court.

HIS HONOUR:   It is not a course I will take, Mr Beach.  I will simply leave the special leave application to take its ordinary course, to be determined in the ordinary way according to the circumstances that then obtain.

MR BEACH:   Yes.

HIS HONOUR:   If the Full Court that hears the leave considers there is utility in referring it into a Full Court, so be it.

MR BEACH:   Yes.  Now, in relation to the listing of the demurrers for hearing, we submit that it should be dealt with at the same time as Femcare v Bright.

HIS HONOUR:   At the same time as or next after?

MR BEACH:   Well, immediately after but by the same Full Court hearing the Femcare v Bright issues.

HIS HONOUR:   Yes.

MR BEACH:   The demurrers raise one of the issues raised in Femcare v Bright.  Femcare v Bright involves the extent of the federal judicial power and whether the opt‑out procedure under the federal legislation is compatible with the exercise of federal judicial power.  That is one of the arguments raised in the demurrers, either directly, because claims under the Trade Practices Act might be brought in the Supreme Court, or indirectly in relation to some Kable argument.

Now, there are some additional arguments involving the extraterritorial operation of the State legislation that do not arise in Femcare v Bright but we would have thought that there is utility in dealing with both matters by the same Full Court, one after the other.

HIS HONOUR:   Yes.  How long do you think the argument of the demurrers is likely to take?

MR BEACH:   Just between the parties here, one day.

HIS HONOUR:   And if there were interventions, assuming for the purposes of argument the interventions were supporting validity, it would seem to me unlikely that interventions would greatly extend that, but it is crystal ball gazing, I know.

MR BEACH:   I not only agree with that, but the argument might take less than a day because if the Full Court hearing the Femcare v Bright issues is seized of the arguments in relation to the opt‑out provisions, 33J, or the arguments about 33ZF, then they will not want to hear as much from the present parties, so we may be much less than a day if we are immediately after the Femcare v Bright argument.

HIS HONOUR:   Yes, thank you, Mr Beach.  Mr Sher, I think the only aspect of the matter I have not heard you on is whether there is utility in putting it in or trying to put it into the list immediately after Femcare.

MR SHER:   With respect, it would be a very sensible course, your Honour, because one of the substantial arguments in Femcare about the exercise of judicial power is one needs to rely on Kable and a bit of other authority to get the State legislation looked at as well under the same rubric, but it is the same argument, maybe put slightly differently and with different emphasis, but it is the same point, your Honour.

HIS HONOUR:   Yes.

MR SHER:   We would support the suggestion that – in fact, there is an argument in favour of us going before Femcare.  I will say no more.  That is all I want to say.

HIS HONOUR:   Yes, thank you, Mr Sher.  Well, apart from questions of costs, which I understand the parties may wish to make some submissions, the orders I would be minded to make are, in M68, that Tasfast Air Freight Pty Ltd be substituted as the first respondent to the application for special leave to appeal.  Are there, as there are in the Supreme Court, visions of the rules that then require subsequent orders or directions to be made about service on added parties or the like?

MR SHER:   There has been a substitution in the Supreme Court proceedings and this is really just directed to the High Court proceeding where it was thought – we did not want to make the assumption, your Honour, that because Tasfast had been substituted in the Supreme Court proceeding it necessarily followed they are substituted in the High Court.

HIS HONOUR:   Yes.

MR SHER:   The question of service and what else should happen has already been considered by Justice Hedigan when he made the order concerning the substitution.

HIS HONOUR:   So are the parties content if I simply make the order for substitution?  Do the parties point to anything that I need to do then in consequence of that, Mr Beach?

MR BEACH:   Your Honour, the High Court Rules deal with the matter in Order 16 rules 14 and 15, but that is talking about the substitution of a defendant, which then triggers the questions of service that your Honour raised given that an application ‑ ‑ ‑

HIS HONOUR:   And this case respondent to an application.

MR BEACH:   The two are a little bit different.  Yes.  We do not require anything other than orders for substitution.

HIS HONOUR:   Yes.  Then in M68 there would be an order that Tasfast Air Freight Pty Ltd be substituted as the first respondent to the application for special leave to appeal.  The question of costs would then arise and I would be minded, of course, to certify.  It would, I think, be unnecessary to give the ACN number, whether in the heading of the proceedings or in the order.

In 141 I would be content to make orders that, (1), the defendants’ demurrers be heard together.  Then to give directions giving the dates specified in paragraphs 2, 3 and 4.  I think rather than nominate a date for return of a summons for directions, I would simply reserve liberty to the parties to apply on three days’ notice.  If the parties thought there would be utility in having a summons for directions, then by all means approach the Deputy Registrar for fixing of a time and we will do so, but I suspect that we may get by without.

That then leaves questions of costs.  Mr Solicitor, you said you wanted to be heard on those questions.

MR GRAHAM:   Yes, if your Honour pleases.  I wonder if your Honour would be good enough to go to the two summonses that are before the Court today.

HIS HONOUR:   Yes, I have the one in 141.

MR GRAHAM:   And another one in M68.

HIS HONOUR:   Is the summons of ‑ ‑ ‑

MR GRAHAM:   21 February in both cases.  Perhaps they should be amended, your Honour, to make them returnable today rather than four weeks hence.

HIS HONOUR:   Yes, I think they have been.  Already they were 28 February.  The amendment obviously did not carry forward to what was given to you.  But, yes, I have both summonses.

MR GRAHAM:   Your Honour will see that both summonses were issued on 21 February 2001.  We delivered our defence and demurrer and the notice setting it down for hearing before the Full Court on 12 February.  Now, if one looks at the relief that was sought in the summons in M141, what has happened today is that, first of all, paragraph 1 was never necessary as of 21 February because the demurrer had been delivered and

set down for hearing before the Full Court and it was likely to be the case and has proved to be the case that no question is going to be reserved.  So paragraph 1 has not succeeded and was not necessary when the summons was issued.  Paragraph 2, the relief sought has been refused by your Honour.

If one goes to the summons in M68, paragraphs 1 and 2 would, of course, never have been a matter of contention and the orders could have been dealt with by the filing of a signed memorandum by the solicitors to achieve that substitution.  Paragraph 3 your Honour has refused and paragraph 4 your Honour has refused.  So, in our submission, all of this could have been achieved, so far as we have achieved a useful procedural directions, without the parties being brought to the Court and being brought to Court with their counsel.

HIS HONOUR:   What, therefore, do you say I should do?

MR GRAHAM:   Your Honour should direct that the costs of both summonses be borne by Mobil Oil Australia Pty Ltd.

HIS HONOUR:   Yes.

MR GRAHAM:   And we would seek a certificate for counsel nonetheless.

HIS HONOUR:   Yes.  Well, Mr Sher?

MR SHER:   Well, my learned friend’s argument, as powerful as it is, overlooks two salient facts.  The first one is that at the time that the State of Victoria demurred we had another defendant to contend with that had not demurred and we had to decide how we were going to get the point of law resolved satisfactorily and we did not get the demurrer, in fact, from Slater & Gordon until after we had issued our summonses, I understand.  I think we got it yesterday.  So, your Honour, if it had been just the State of Victoria, there might have been some merit in my learned friend’s point, but the fact is we have to deal with two parties that we had sued and at the stage of the issue of the summons we had only one demurrer.

The second point is that yesterday we learnt for the first time – and I am not sure whether we got it through the State of Victoria or Slater & Gordon or both – of the letter from the Chief Justice, which has made a significance difference because without that letter, for the reasons Mr Beach advanced, we had a special leave application which encompasses much of the same points as the originating proceeding and the convenient course, obviously, would have been, your Honour, but for the fact that the rules are now under threat, to have dealt with them together because the argument substantially overlaps.

Now, yesterday we learn that there – the day before yesterday, was it?  Well, the summons had long been issued and we were already destined to be here today.  So, your Honour, it is not as if we have acted unreasonably and it is hard to imagine the State of Victoria is really going to suffer greatly and, in our submission, the appropriate order is to make an order that costs be costs in the cause.

HIS HONOUR:   Yes.  Anything you want to add, Mr Solicitor?

MR GRAHAM:   No, your Honour.

HIS HONOUR:   Thank you.  In all the circumstances I think that the appropriate order to make as to the costs is that they be reserved.  In proceeding M141 of 2000 there will be orders:

(1)   Defendants’ demurrers to be heard together.

(2)   Plaintiff file and serve its submissions on or before 30 March 2001.

(3)   Each defendant file and serve its submissions in answer and in support of its respective demurrer on or before 20 April 2001.

(4)   Plaintiff file and serve submissions in reply on or before 30 April 2001.

(5)   Liberty to apply on not less than three days’ notice in writing to other parties.

(6)   Reserve costs.

(7)   Certify for counsel

In M68 of 2000 there will be orders:

(1)   Tasfast Air Freight Pty Ltd be substituted as first respondent to the application of special leave to appeal and the proceedings be amended accordingly.

(2)   Reserve costs.

(3)   Certify for counsel.

AT 10.10 AM THE MATTER WAS CONCLUDED