State of WA v Ward

[1997] HCATrans 256

TRANSCRIPT
OF PROCEEDINGS

AUSCRIPT

Western AustraliaLevel 216 St Georges TcePerth WA 6000Phone [phone]Fax [phone]

HIGH COURT OF AUSTRALIA

TOOHEY J

No P 36 of 1997

STATE OF WESTERN AUSTRALIA

and

WARD AND OTHERS

PERTH

9.32 AM, WEDNESDAY, 17 SEPTEMBER 1997

HIS HONOUR:   Mr Mitchell?

MR R.M. MITCHELL:   I appear for the applicant in this matter.

MS A.M. SHEEHAN:   I appear for the first respondent.

MR G.M.G. McINTYRE:   I appear for the second and third respondents.

HIS HONOUR:   Yes, thank you.  Yes, Mr Mitchell?

MR MITCHELL:   Yes, your Honour, this is the applicant's application to expedite the hearing of an application for special leave to appeal to this Court.  The effect of making the orders sought in a summons would be to allow the matter to be listed in the Perth sittings of the Court beginning on 20 October 1997.  We have been advised by the Registry that that would not otherwise occur.  While we have made a series of directions to ensure that the matter is ready for then, those directions do not substantively affect the program prescribed by the Rules of Court in any event, and certainly they do not put any increased burden on any of the respondents in terms of preparing the matter for hearing.

HIS HONOUR:   Mr Mitchell, there is a minute is there, of the directions that you were seeking?

MR MITCHELL:   Yes, they are contained in the summons and also in a minute of proposed orders which I have prepared and passed to your associate this morning.  The two documents are identical in terms of the orders sought, apart from an order for costs.

HIS HONOUR:   Can I ask a couple of questions?  One is, do you know what the attitude of the respondents is to the application?  Obviously I could ask them, but if ‑ ‑ ‑ 

MR MITCHELL:   Yes.  I understand the second and third respondents at least do not oppose the application, whereas the first respondent does oppose the application.

HIS HONOUR:   All right.  Well, then we will leave that for the time being.  The other question I was going to ask you is, the State is the only applicant, but I take it that it is not the only respondent in the proceedings in the Federal Court, is that right?

MR MITCHELL:   That is correct.  Indeed, I think there are about 13 respondent groups divided into about 100 or so respondents, according to Ms Glancy's affidavit which was filed in support of the applications, so there are a number of other ‑ ‑ ‑ 

HIS HONOUR:   Yes.  I mean, there is no reason why one of the respondents could not choose to make the application for special leave to appeal, but there may be some questions of service and so on, on those who are respondents in the Federal Court.

MR MITCHELL:   Yes.  What we did was to serve all of the respondents to the appeal in the Full Court.

HIS HONOUR:   Yes, but - I am sorry, all the respondents to the appeal in the Full Court.

MR MITCHELL:   Yes, which are the first, second and third respondents.

HIS HONOUR:   Yes, but my question was really directed at those who were respondents in the Federal Court, among whom was your client, but who are not parties to this application for expedition or nor indeed are they, as I take it, they are not applicants for special leave either.

MR MITCHELL:   No, no, the State is the only party below who is applying for special leave.  The other respondents have not been served with the application for special leave.

HIS HONOUR:   Have or have not?

MR MITCHELL:   Have not.

HIS HONOUR:   Right.  Is it proposed that whether an order for expedition is made or not that they would be served?

MR MITCHELL:   We had not contemplated doing that, your Honour, simply because I guess the interest adverse to that of the applicant in these proceedings I think is represented completely by the three respondents, and also because they were the only parties to the proceedings in the Federal Court, which is a judgment being appealed from ‑ ‑ ‑ 

HIS HONOUR:   No, I am perhaps not making myself clear or maybe we are at cross-purposes.  I was really looking at - not the position of the respondents to this application being the respondents to the application for special leave, but those who along with the State of Western Australia were involved as respondents to the application in the proceedings in the Federal Court.

MR MITCHELL:   Yes.  At the trial.  Yes.

HIS HONOUR:   Now, where do they stand in relation to all of this?

MR MITCHELL:   As far as we are aware, they are uninterested, or at least not so interested as to be participating in these proceedings or in the proceedings before the Full Court.

HIS HONOUR:   Did they not appear before the Full Court?

MR MITCHELL:   No.  There were some, I think the Commonwealth Minister and the Northern Territory appeared in the Full Court and both Attorneys-General have been ‑ ‑ ‑ 

MS SHEEHAN:   Your Honour?

HIS HONOUR:   Yes, Ms Sheehan?

MS SHEEHAN:   If I could just assist my friend, in the Full Federal Court appeal there were none of the respondents in the Federal Court action itself appearing.  The Attorney-General for New South Wales intervened, and the other parties - apart from the Attorney-General for Western Australia who intervened - were the State of Western Australia who in the action before Lee J is the first respondent, and the Northern Territory Government which is the second respondent in the action before Lee J.  Apart from those, they were the Commonwealth Attorney-General, the Attorney-General for New South Wales and the Western Australian Attorney-General.

HIS HONOUR:   Were there not persons who claimed to have an interest, directly or indirectly, in the application?

MS SHEEHAN:   Before the Full Federal Court?

HIS HONOUR:   Yes.

MS SHEEHAN:   No, your Honour, just the two Governments, the Western Australian Government, the Northern Territory Government, who are in fact the main players so to speak.

HIS HONOUR:   Yes, I appreciate that.  Yes, thanks, Ms Sheehan.  I am asking these questions only in case anyone who was a respondent in the proceedings in the Federal Court might wish to, for instance, adjoin with your client as an applicant for special leave, or they may be content to let your client take the running in the matter.

MR MITCHELL:   Yes.  I must say it is not really a point that we had considered, and perhaps we should consider filing ‑ ‑ ‑ 

HIS HONOUR:   Well, I suppose it if necessary could be dealt with by an order for service of any order that is made today, and then it is up to those persons or organisations to make the decision as to whether they would seek to come in on the application for special leave to appear, whenever it is heard.  All right.  Well, let us get back perhaps to the basic question as to why the order for expedition should be made, bearing in mind that there is some opposition to it.

MR MITCHELL:   Yes.  What we say is that the matter would be ready for hearing in October, was in track for hearing in October but for the fact that the state of the list means that the Registry has advised us that it will not be listed unless an order for expedition is made, so the only change to the ordinary process prescribed by the rules that we are seeking is a listing in October which would not ordinarily occur, simply because of the state of the list at the present.

HIS HONOUR:   Yes, I understand that.  Now, what are the implications of it being heard or not being heard in October for your client?

MR MITCHELL:   One of the reasons that we say special leave ought be granted, notwithstanding the interlocutory nature ‑ ‑ ‑ 

HIS HONOUR:   What were.

MR MITCHELL:   Yes.  Perhaps I am ‑ ‑ ‑ 

HIS HONOUR:   You are taking me ahead.  I am a single Justice, I am not dealing with an application for special leave, but why the application itself should be expedited.

MR MITCHELL:   Yes.  Why the application itself should be expedited perhaps involves to some extent an understanding of one of the reasons we say that special leave should be granted. 

HIS HONOUR:   Right, go ahead.

MR MITCHELL:   We say that it should be granted, notwithstanding the interlocutory nature of the orders, to enable the error if it exists in the orders that have been made, to be corrected prior to judgment being given in the trial of the Federal Court action at first instance.  We say that ‑ ‑ ‑ 

HIS HONOUR:   Yes, I think I understand that.

MR MITCHELL:   ‑ ‑ ‑ because it is an error that is relatively easy to correct at this stage.  If the judgment of the High Court and the appeal can be given before the judgment of the Federal Court, counsel can be provided with the relevant parts of the transcript, witnesses can be called or recalled as necessary and the matter can then be disposed of without the running the risk that the rather long and expensive trial would be completely set aside, or the result of that trial would be set aside if these orders were subsequently found to be made in error.  So we say that is why the matter should be heard in October, so as to put the Court in a position to adopt that approach if it chooses to grant special leave.

HIS HONOUR:   Because that involves, to some extent, a forecast as to when an appeal might be heard if special leave were granted.

MR MITCHELL:   Yes, perhaps more of a - given that special leave has not yet been granted - a hope rather than a forecast.  The trial ‑ ‑ ‑ 

HIS HONOUR:   No, no, on the assumption that if special leave were granted, there is still a question as to when an appeal might be heard in relation to when the current proceedings in the Federal Court are likely to run their course.

MR MITCHELL:   Yes, and I think we would be anticipating, perhaps, the hearing between December and February to enable time for a judgment to be written before the Federal Court proceedings come to an end.

HIS HONOUR:   Well, the Court does not sit in January, of course.

MR MITCHELL:   Yes.  And it may be that some further special order would be required if special leave were granted to enable that to occur.  Of course, it is a little difficult because the length of the Federal Court proceedings is a little uncertain.  Ms Glancy in her affidavits deposed that she thinks it will run at least till March of next year ‑ ‑ ‑ 

HIS HONOUR:   Yes, I have read that.

MR MITCHELL:   ‑ ‑ ‑ and of course there is then a judgment that his Honour will have to deliver, but it would seem to us to be feasible if the matter were heard - the special leave application were heard - in October, for there at least to be the possibility of the High Court resolving the point appealed from before judgment is delivered in the Federal Court.  If leave - if these orders are not granted, then I am advised by the Registrar that there are video-link days set aside for the Court as a whole, either in the second week - or both in the second week of November, and the second week of December this year.

The Registry does not yet know which of those days will be a Perth video-link application.  The Registrar informs me there is a reasonable possibility but no guarantee that this application could be listed on a video-link in Perth in either November or December, whichever was set aside for the Perth video-links.  The only other alternative, which would require the agreement of the respondents, would be to try and list the matter somewhere outside of Perth.

HIS HONOUR:   Yes.

MR MITCHELL:   But it really puts the program, if we are to attempt to resolve the matter before the Federal Court proceedings are completed, in some difficulty if the special leave application is not able to be heard in October and we are then looking at perhaps December, potentially even next year before the application can be listed.  So for those reasons we say that the proposal orders ought be made to allow the matter to be heard and resolved in October.

HIS HONOUR:   Yes, thank you, Mr Mitchell.  Ms Sheehan?

MS SHEEHAN:   Your Honour, I do appreciate this is not the special leave application itself, but in order to make my submissions, I would like to give you just a little bit of history and to tell you what is happening in the case at the present time, just so that you can understand the position from the first respondent's point of view, the difficulties that we see with an order for expedition in these circumstances.  This trial commenced in February of this year and what then transpired was his Honour Lee J making a proposed protocol in the event that gender-restricted evidence would be given.

The direct evidence of the first respondent in relation to their connection to country commenced in Kununurra on 21 July.  There has been 5½ weeks of evidence that has now been given.  There were 2½ weeks of evidence to go.  In fact, I left Kununurra last night to come down.  We are in the final stretch, if you like, of evidence given at this stage.  There have been a number of orders made that have been annexed to Ms Glancy's affidavit.  In particular I would draw your attention to the order made on 2 September 1997, which is that the applicant in these proceedings - sorry:

The applicant in these proceedings and any respondents in the first proceedings serve notices to admit, essentially, by 10 October and that the first respondents reply by 24 October.

We are entering into the phase, your Honour, where the applicant's case in the Federal Court is close to conclusion with respect to the direct evidence and we are entering into the respondent's case.  And his Honour has been very careful to make orders that this case is heard properly and within a reasonable time frame.  The task that is involved with respect to that is enormous, and just to give you one indication of it, his Honour made orders that the first respondents - I beg your pardon - the first respondents in the Federal Court case, the State of Western Australia, provide tenure documents by December last year.

They are still trying to do that, though it has not been from want of effort on their behalf, and they have regularly been reporting to the judge the difficulties that they have.  But there is an enormous task that has been undertaken in order to allow this case to proceed.  Once the documents are then served upon the first respondents in this appeal, there is an enormous task that then has to be undertaken if that matter is to be looked at.  The timetabling then has the applicant and the other respondents in the Federal Court action leading direct evidence in Kununurra on 17 November.  The weather is starting to close in on us.  The applicant and the other respondents in the Federal Court action have indicated that they want to hear - that they wish to lead some evidence on the ground and that is the reason why that order has been made and how that fits into the timetable.  And then what transpires as soon as the applicant and the other respondent's evidence finishes is the leading of expert evidence which will occur in Perth.

[9.47pm]

HIS HONOUR:   But in a sense, could that not all precede whatever the fate of this application, or indeed, the fate of the application for special leave to appeal?

MS SHEEHAN:   If resources were unlimited, your Honour, I think that would probably be the case, but I am just trying to paint the picture in terms of everything that is happening at the present time.  Mr Barker, who appears for the first respondents in the Federal Court, appeared before the Full Federal Court and is the person who is fully briefed on these matters and is the person who ordinarily would appear at the special leave application, I am his junior in both and was his junior in the Full Federal Court as well, but it is not a position where the respondents - the task itself of briefing somebody else at this stage is not a small task.

HIS HONOUR:   Are you saying that Mr Barker would not be available?

MS SHEEHAN:   I am not saying that, your Honour.  I am just saying it will be extremely difficult.  I am not putting it any higher than being extremely difficult.

HIS HONOUR:   And what is being put against you, I think, is that if the application for special leave to appeal is not disposed of, then there is a possibility that the matter will proceed to a conclusion.  From the present applicant's point of view, it is said: well, if special leave were granted and if there were an appeal and the appeal was successful, then if by that time judgment had been delivered in the Federal Court - I am not sure that it is being put as high as this - but that in any event, the orders made might just have to be set aside and witnesses recalled.

MS SHEEHAN:   Well, your Honour, I was specifically going to raise that point because that is in Ms Glancy's affidavit as well as the submissions that you have heard this morning.  If I could, your Honour, I would like to take you through what has in fact happened in relation to this gender-restricted evidence to date.  On the first occasion gender-restricted evidence was given, it was by consent and that, as I understand it, is not a matter that is of any cause in relation to the matters before you.  It was, if you like, an application to protocol that everyone consented to, so that was not a difficulty.

On the second occasion gender restricted evidence was given, it was not by consent.  Evidence was delivered in voir dire.  His Honour did not slavishly apply the protocol that is being appealed from.  He considered the facts before him, the evidence before him, and I have, your Honour, a copy of the transcript and I can hand it to you to show your Honour his Honour Lee J's reasons on that occasion, which is really quite relevant to the issues that we are talking about.  The same thing happened on the third occasion.  Evidence was given in voir dire.  His Honour delivered reasons why, in those particular circumstances.

In neither instance, your Honour, has the applicant in these proceedings led evidence as to prejudice.  In both proceedings there has been liberty to apply and there has been no application, as the matter has been running on the ground, with respect to the assertion that the outcome of the appeal, if successful, would be that witnesses could be recalled etcetera.  Your Honour, the nature of the evidence is such that that simply is not going to occur.  The evidence that has been given on voir dire is that people would be subject to enormous sanctions.  If this appeal was successful, the result would be the evidence on our application should be simply struck from the record and should not form part of the Court's decision.

There would be no circumstances, in my submission, your Honour, whereby the first respondents would, in circumstances such as that, would allow that evidence to be given.  They would simply run their case without it.

HIS HONOUR:   I think you may be, if I may say so, losing sight of one thing, Ms Sheehan, and that is that the application for expedition is brought because the list is presently fairly well occupied.  If the application for expedition were refused - well, let me go back one step.  If it were not for that, then this matter would presumably just be heard in October in the ordinary course, because Mr Mitchell says  - no reason to think that he is not right in what he says - that the timetable prescribed is one that would apply in any event.  Sorry, the timetable envisaged is one that would apply in any event.  But if the matter were not heard in October by reason of, simply the state of the list, and it were heard in November on the video-link, which is a distinct possibility then, I mean, all these questions in a sense go by the board, do they not?

MS SHEEHAN:   That is right, your Honour.  I suppose my primary submission is that there has not been a case made out for expedition, but I appreciate what your Honour is saying.  It has to come on at some stage and at some stage it has to be dealt with.

HIS HONOUR:   And I think perhaps the real question within the framework of the present application, which is the application for expedition, is whether or not the respondents are likely to be prejudiced by the expedition of the application for special leave, bearing in mind that it might have come on automatically, depending on the state of the special leave list in October, and that if not heard then, well it almost certainly could be heard in the video-link hearing, either in November or December, and may well be in November. 

I am not sure at the moment quite what is proposed for the video-link hearing other than that there will be one, as I understand it, in the beginning of the second week of the November and the beginning of the second week of the December sittings.  So in a sense I think it really comes back to that.  Would an order for expedition cause your clients any undue prejudice?

MS SHEEHAN:   We are between the devil and the deep blue sea.

HIS HONOUR:   Yes.

MS SHEEHAN:   I suppose my main point was to explain to you the history of the matter and where we are at at the present time, because really the other things that I would say would go to the merits of the special leave application itself.

HIS HONOUR:   Yes.  Well, I do not want to trespass too far into those.

MS SHEEHAN:   No.

HIS HONOUR:   I mean, sometimes it is relevant to at least glance at them for the purpose of an expedition application, but it is also being said that if the special leave application could be heard and if special leave were granted, and if they were successful, then such difficulties as that might cause could be cured before the Federal Court delivered judgment so that the matter could then proceed to judgment in the ordinary way.  Whereas if this application for special leave were heard after the Court had delivered judgment and if, again, if the application for special leave were granted and the appeal is successful, then almost inevitably orders could be made setting aside at least some orders made by the Federal Court.

MS SHEEHAN:   Yes, your Honour, but I think the point is that on the timetable, as Mr Mitchell has outlined it and I certainly was not aware of that timetable before, because I have not inquired, I must say, in terms of the likelihood of when it would be on or otherwise.  It does not really make that much difference, with respect to the hearing of the special leave application.  I am sorry, if special leave is granted, to then the hearing of the appeal itself, which is the critical issue in relation to the matter that your Honour has just raised.

HIS HONOUR:   Well, that is something that I cannot, of course, foreshadow, but clearly while the matter remains in its present state, where there is simply an application for special leave to appeal pending, no consideration at all could be given to questions of dates on a hypothetical footing ‑ ‑ ‑ 

MS SHEEHAN:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑ that special leave were heard and special leave granted.

MS SHEEHAN:   Well, your Honour, I do not really think I have anything to add other than to say that my intention was really to inform the Court of what the present state of the proceedings were, and also to inform the Court that it would certainly be, on my instructions, not a case where witnesses would be recalled, if that was to play any part in the Court's judgment, and I can provide your Honour with a copy of the transcript with his Honour Lee J's decision in the voir dire.  It is quite obvious, on the face of it, your Honour, that the first respondent's position would simply be to withdraw the evidence.

HIS HONOUR:   Well, that may or may not be but that would be a very critical statement to be made on behalf of the respondents, I would think.

MS SHEEHAN:   And the evidence that has been led with respect to the sanctions that would apply to them if the evidence was made available to other members as being extremely forthright and very blunt.

HIS HONOUR:   Yes.

MS SHEEHAN:   And that simply, I just wish to inform the Court that they are my instructions with respect to it.  I am no wiser than what is on the voir dire.  I have certainly not been privy to any of this information whatsoever, because it has all been men's restricted evidence, but it is obvious on the face of the voir dire and on the face of Lee J's decisions, and that is one of the difficulties, your Honour, with respect in relation to special leave application.  Each case is being dealt with on its merits when it comes up and the issue of ‑ ‑ ‑ 

HIS HONOUR:   Well, no doubt there are arguments that can be advanced on the special leave application.

MS SHEEHAN:   Yes.

HIS HONOUR:   Yes, all right.  Thank you, Ms Sheehan.  Mr McIntyre?

MR McINTYRE:   Yes, your Honour, just perhaps a few comments.  The position of the second and third respondents is really one of ambivalence in the sense that the Northern Land Council and the Kimberley Land Council, who are my instructing solicitors, are quite keen to have this matter dealt with and put out of the way, because it impacts on a number of other cases that are coming before the courts in a number of jurisdictions.  So if the matter can be dealt with quickly, then there's some merit in that.   Particularly if the special leave was not granted, there would be a great deal of merit in that.

However, we are sympathetic to the position of the first applicants, which is one primarily, it would appear, of logistics, the ability to have the matter properly prepared.  And in that regard we would point out two things.  One is that this is an appeal from a procedural direction.  There has been no appeal from the ultimate orders which the Court made pursuant to those directions so that, as Ms Sheehan suggests, there were subsequently to the appeal going to the Full Court, the evidence has been sought to be called, an order has been made by Lee J granting the restriction.  There is no appeal against that order, so that is a very ‑ ‑ ‑ 

HIS HONOUR:   Well, I am not sure that I follow that.  The appeal is, of course, from the orders made by the Full Federal Court.

MR McINTYRE:   Yes, and they were from orders by Lee J.

HIS HONOUR:   Yes, which essentially upheld his orders other than some variation made by the Full Court.

MR McINTYRE:   Yes, but what he was doing was setting down protocol as to what might happen if the evidence was sought to be called.  We have now got to the stage where the evidence has been called and he has made certain orders restricting the evidence.  There is no appeal against those orders restricting the evidence.  It is really against the hypothetical protocol which was set up as a means or a mechanism for dealing with the matter when it actually came.  I just make that point ‑ ‑ ‑ 

HIS HONOUR:   Yes.

MR McINTYRE:   ‑ ‑ ‑ that it is not a true decision which affects the merits of the proceedings but rather the initial protocol.  And the other point is that the evidence that has been the subject of the restriction order is very discreet and my estimation is that it may well be that it will not determine the final judgment of the Court in any event.  It may be of some degree of weight and significance but it may be that the matter can be finally resolved by his Honour.  For instance, if there was special leave granted at some time in the next year or so, before his Honour delivers his judgment, no doubt there would be submissions made to him that he should take that into account in how he delivers his judgment.

It is my submission that he could probably do that and arrive at a determination without resolving finally whether he was correct or not in making the order for restriction at a merit level.  It may be that it matters little when this matter is determined.

[10.03pm]

HIS HONOUR:   Yes.  Thank you, Mr McIntyre.  Mr Mitchell.

MR MITCHELL:   Yes, your Honour.  In relation to the prejudice to the first respondents we would say, really, that there is none.  The only direction that is put towards them is that they file and serve their summaries of argument by Monday 22 September 1997 which is either the next working day after the rules require submissions to be filed or the working day that they require submissions to be filed depending on when the first respondent has received them. 

So that does not cast any additional burden upon them.  The listing in October could have occurred in any event without any additional prejudice and we would say this is not a point which requires any intimate knowledge of the evidence or the proceedings below in the Federal Court at trial.  There is no reason why Mr Barker has to - or is the only one familiar enough with the case to be able to argue the special leave application and we would say that it would be feasible to brief other counsel.

HIS HONOUR:   Could I put this to you, Mr Mitchell.  If - well, whether or not an application for expedition were made, but I think it is relevant since one has been made - if special leave were granted and at a time when it was not possible to say when the appeal itself would be heard, is there anything about the application that would - or the granting of the application for special leave to appeal that would interfere with the running of the case?

MR MITCHELL:   No, your Honour.  We do not seek it to operate as a stay. The trail would run its own course and the proceedings in the High Court would attempt to keep one step ahead of that.  So we do not contemplate there being any impact on the running of the trial below.  And, of course, the objectionable elements of the protocol, or the elements we take objection to have indeed been applied to two sessions of men's business evidence.

HIS HONOUR:   Have?

MR MITCHELL:   Have been applied.

HIS HONOUR:   Yes.

MR MITCHELL:   That is, of course, that only - no legal representative other than certain named male representatives of either party can be privy to the evidence and that of course no party or witness apart from two named anthropologists can be privy to the evidence.  So that those objectionable parts of the order of the protocol have been applied to this evidence and whether or not in the event that the appeal were eventually successful, one or more of the respondents chose to withdraw that evidence it would still create a difficult situation if his Honour, Lee J had delivered judgment because your Honour would then have to assess the effect which that evidence had or may have had.

I am not - not being one of the people privy to the men's business evidence I am not able to comment on how - what impact it might have on the determination of the ultimate issues at trial but we say that is really not a determination that your Honour can make at this stage given the orders that have been made below.  If the case were certain to be listed in the second week of November it would make less of a difference although I think we would still like that - - -

HIS HONOUR:   When you say "the case" you mean the application for special leave?

MR MITCHELL:   The application for special leave, yes, your Honour.  If that were guaranteed a listing date in the second week of November I think we would still seek these orders because that month could be an important month or a critical month.  But what we say is that it does not seem that that is certainly going to happen.  It may be December, it may be November, it may possibly even be next year according to the advice we have had from the Registry. 

I am also advised by the Registry that it does not - an order for expedition does not necessarily mean knocking another case out of the list that is already in there.  I am not quite sure what mechanics that would involve but that may be a consideration for your Honour.  So, as we say, there is no prejudice additional to the first respondents and it is in the interests of justice that the application for special leave to appeal be determined as soon as possible, which seems to be in the October sittings of the Court.

HIS HONOUR:   Yes, thank you, Mr Mitchell.

MS SHEEHAN:   Your Honour, would it be possible for me to say just one thing in relation to one of the matters raised by Mr Mitchell which is one of our reasons for concern.

HIS HONOUR:   Yes, Ms Sheehan.

MS SHEEHAN:   With regard to Mr Mitchell's statement with respect to the fact that there could be no party present, our concern essentially, your Honour, is that when this has been raised in the field, so to speak, these arguments are not being put.  Yet, we are in a position where - and it is the state's position in relation to counsel reading the evidence has been clear throughout and I am not suggesting that that is in any way a new issue, but I am suggesting, your Honour that this issue that it should be released to other parties is something that has really not come up before.

HIS HONOUR:   Well, that again, seems to me to be moving into the area of whether or not special leave should be granted rather than bearing on the question of expedition.  Yes, thank you, Ms Sheehan.  I have to approach this matter on the footing that the timetable prescribed by the rules would, under ordinary circumstances, see this matter heard when the Court is sitting in October.  The application for expedition is made because of the current state of the special leave list which does not ensure that the application will be heard and perhaps ensures that it will not be heard.

Now, in those circumstances, what I really look to is whether there is any prejudice for the current respondents if the matter does pursue the course which it ordinarily would take and which is affected only by the current state of the special leave list.  No such prejudice has been pointed to.  It seems to me that, having regard to the issues raised by the application for special leave, it is in the interests of all concerned that the special leave application be dealt with as soon as possible.  I therefore propose to accede to the application.

Now, do counsel wish to be heard on any aspect of the minute of proposed orders.  If they do not, then I would simply make an order in terms of the minute.  If you have not had time to look at it please take time.

MS SHEEHAN:   Your Honour, I would seek to be heard.  If the matter is to be heard in the week commencing 20 October in my submission there would be no prejudice to anyone involved if the dates were changed in order 2, to Monday 29 September, and in order 3, Friday 3 October.  I appreciate that we may be given a couple of days extra time in that but in the circumstances that would be the order that I would seek, your Honour.

HIS HONOUR:   So what you are asking for, Ms Sheehan, is in paragraph 2, 29 September.

MS SHEEHAN:   Instead of 22 September.

HIS HONOUR:   Yes.  I appreciate that.  And?

MS SHEEHAN:   Friday, 3 October instead of Friday, 26 September. 

HIS HONOUR:   Now, what would that do to the balance.  Probably not anything, at least from your point of view.  It need not interfere with the remaining paragraphs of the minute.  Yes, thank you.  I take it you do not want to be heard on this, Mc McIntyre?

MR McINTYRE:   No.

HIS HONOUR:   Mr Mitchell.

MR MITCHELL:   The only concern I have, your Honour, is the time to prepare the application book which will, of course, involve having the applicants submissions, which would then be 10 days from the last date for the respondent's response.

HIS HONOUR:   Well, that might be a price you have to pay for your application.

MR MITCHELL:   Yes.  It may be.

HIS HONOUR:   And that seems to me to be reasonable.

MR MITCHELL:   Yes, your Honour.  I have nothing to say about that.

HIS HONOUR:   Well then, I will make an order in terms of paragraph 1 and 2 of the minute of proposed orders, paragraph 3 substituting 29 September - to start again - in terms of paragraph 1 of the minute, in terms of paragraph 2 substituting 29 September for 22 September.  In paragraph 3 substituting 3 October for 26 September and in terms of paragraphs 4, 5 and 6 of the minute.  The Court will now adjourn.

AT 10.14 AM THE MATTER WAS ADJOURNED
INDEFINITELY