Street v Queensland Bar Association & Ors; In the matter of an application by Robertson

[1988] HCATrans 335

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B32 of 1988

B e t w e e n -

ALEXANDER WHISTLER STREET

Applicant

and

QUEENSLAND BAR ASSOCIATION

AND ORS

Respondent

Directions hearing with

respect to case stated

Office of the Registry

Sydney	No S58 of 1987
In the matter of -

The Rules relating to the

admission of Barristers of the

Supreme Court of Queensland

And in the matter of -

Street

TIMOTHY FRANK ROBERTSON

Directions hearing with

respect to case stated

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 DECEMBER 1988, AT 11.43 AM

Copyright in the High Court of Australia

SlT6/l/RB 1 16/12/88

MR D. M. J. BENNETT , QC :  In the matter of Street, Your Honour, I appear for

the plaintiff, with my learned friend, MS M. WALKER.

(instructed by instructed by M.G. Lyons & Co)

MASON CJ: Yes. You are complaining about inability to get

admission as well, are you, Mr Bennett.

MR BENNETT:	Yes, Your Honour, definitely.
MR G.L. DAVIES, QC:	I appear with my learned friend,

MR J. McGILL, for all of the defendants. (instructed by

W.R. Tutt & Co)

MR G. GRIFFITH, QC, Soli~itor-General for the. Commonwealth:

Your Honour, I appear with MR D. ROSE for the - _: - _

Attorney-General of the Connnonwealth intervening,

Your Honour.	(instructed by the Australian Government
Solicitor.

MASON CJ: Yes, Mr Solicitor.

MR GRIFFITH:  Our intervention is limited to an interest to see

appropriate questions stated, Your Honour.

MR BENNETT:  May I just take Your Honour first to the statement

of claim to show Your Honour how the problem has arisen?

MASON CJ: Yes.

MR BENNETT:  Now, Your Honour, the statement of claim has

seven paragraphs; 1 to 4 are admitted by all defendants;

1 sets jurisdiction, 2 recites the plaintiff's residence and domicile that he is practising as a barrister in -he

is currently prapt±~ing as a barrister of the Supreme

Court ot New South Wales; he has been refused permission
as a barrister to the Supreme Court of Queensland.

Defendants intervened and opposed it: and by Order in Council

the rules were amended which now imposed requirements upon

an application for admission relating to practice principally
in Queensland, and that was one day before the special leave

application in the appeal from that decision.

Those matters were all admitted. Paragraph 5 is

not admitted. That states:

The plaintiff carries on practice as a barrister

principally in the State of New South Wales; he

is admitted to practice in ACT, Victoria and South

Australia and is desirous of admission to practice

as a barrister in Queensland whilst remaining

resident and intending	to practice principally in
New South Wales.

Although that is not admitted, we cannot believe that it

is seriously in issue in any real sense. If it were

considered to be a problem, it could be dealt with by an

affidavit but they are, of course, matters within the

plaintiff's knowledge.

SlT6/ 2/PLC	2	16/12/88
Street

HIS HONOUR: Is there any serious issue about that, Mr Davies?

MR DAVIES:	No, Your Honour.
HIS HONOUR:	Are you prepared to admit that?

MR DAVIES: If my learned friend say it is correct,

then yes, we would.

HIS HONOUR:  All right. We can proceed on the footing that that

is admitted - it will be admitted, Mr Bennett.

MR BENNETT:  Yes, if Your Honour pleases. Your Honour,

paragraphs 6 and 7 are then allegations of law which

strictly, under the High Court Rules, ought not to have

been put in a statement of claim for that reason. On one

view there may be mixed law and fact but really we put

them as allegations of law, and they are put simply as

consequential from 1 to 5. Paragraph 6 says that the

said amendments are in breach of section 92; 7 says

that the amendments are in breach of section 117. While
they use verbs and nouns to achieve that result, that

is, we would submit, all they say.

The defendants denied those two paragraphs and did

not demur. We demurred to the traverse.

HIS HONOUR: Technically, you are in difficulty, are you not?

MR BENNETT:  Yes, Your Honour, and I fully concede that

difficulty.	The purpose of this application is to solve
that problem.

Now, we suggest that it be solved - there are a

number of ways of solving it. One way is for Your Honour,

under Order 35 rule 2 to state a case.	We have prepared
a draft stated case.	I apologize Your Honour has not had

this before today. The stated ~ase simply - and with only

consequential gramratical alterations- - states, 1 to 5

as the facts and 6 to 7 as the questions.

HIS HONOUR:  Have you shown this to Mr Davies?

MR BENNETT:	About five minutes ago, Your Honour.
HIS HONOUR:	Was he able to express some response to it?
MR BENNETT:	He did not, Your Honour.  I did not ask him for

one.

HIS HONOUR:	Yes.
MR BENNETT:	Your Honour, that is one way of achieving the result.

A second way of achieving the result is for Your Honour - a slightly more cumbersome way - to use the provisions

of section 77J of the JUDICIARY ACT.

HIS HONOUR:  What does that section say?

SlT6/3/PLC	3	16/12/88
Street

MR BENNETT:  It enables Your Honour to cure defects and errors

and Your Honour could then set the demurrer down

for hearing on the basis that any defect arising

out of the fact that the demurrer is to a traverse

rather than to the allegation would be cured and

the Court would make an order that it be heard as

if it were a demurrer to paragraphs 6 and 7. It is

a slightly more cumbersome way of achieving the

result.

We have put it in the sununons under section 77J and under section 77K in the alternative but the

simple way, we would submit, is for Your Honour to

state that case. There is no longer any issue of

fact and it is a straight simple question of law.

If Your Honour pleases.

HIS HONOUR: Yes, it seems all so simple. Yes, Mr Davies? I

am sure it is not quite so simple.

MR DAVIES:  We submit it is not, Your Honour. Our concern is

really as to the absence of relevant facts upon

which we submit any relevant question of law could

be determined but the two questions of law seem to

be section 117 and section 92. With respect to

section 117, as we understand it, our learned friends

would have to show that the rules discriminated against

the plaintiff as a resident in a State other than

Queensland in a way which was not equally applicable

to a resident in Queensland. Now, it does not appear

from either the statement of claim or the draft stated

case how it is said that the rules do that.

Now, it may be that Mr Street, as Mr Robertson

certainly does - it appears from Mr Robertson's

affidavit - seeks to do this by asserting that he

cannot have his principal place of practice in

Queensland which is the requirement of the rule

whilst he resides in Sydney. Now, if that is what

he is saying, our first complaint is that has not

been said, and our second concern is that that

really is a question of fact which we would dispute

and we would submit with respect -

HIS HONOUR:	Now, what is the question of fact you would dispute?
MR DAVIES:	Whether, in fact, he can have his principal place of
practice in Queensland whilst residing in Sydney.
We say that a barrister - just as, for example, a
member of this Court can reside in Perth and sit in
Canberra - could have his principal place of practice,
if he chose, in Queensland whilst residing in Sydney. So, our complaints are, with respect to 117 too,_really.
The first is that it has not been - if that is what
is raised - - -

HIS HONOUR: It really seems a nonsense, does it not, that somebody

who is resident in Sydney is going to have his principal

place of practice in Queensland?

SlT6/4/PLC	4	16/12/88
Street
MR DAVIES:	Not necessarily.	I mean, one could, for example,

quite easily practice before, for example, the

Full Court of Queensland and the Federal Court of

Queensland whilst residing in Sydney. That would

not, in our respectful submission, pose difficulty

or come up for each sittings - - -

HIS HONOUR: Flying back to Sydney every night.

MR DAVIES:  No, not at all. One can do it whilst one has one's

main residence in Sydney in the same way as many

of the Justices of this Court do
with respect to Canberra and Perth, or Melbourne,

or Sydney.

HIS HONOUR:  Anyhow that is the issue of fact that you say needs

to be tried?

MR DAVIES:	That is the issue of fact and the first point really
is it first of all has to be raised if that is it.
I am not saying that that is it. It certainly seems
to be Mr Robertson's point because he has stated that
in his affidavit but I cannot say it is Mr Street's
point because it has never been stated.

With respect to section 92, it would seem that

the plaintiff would need to identify some interstate

transaction or activity against which it is said
the rules discriminate. Now, no such interstate

transaction or activity has been identified in either

the statement of claim or the case stated and we have

some difficulty in seeing what that interstate activity

or transaction could be. There is nothing interstate,

we would say in the end - and this is, no doubt, an

argument for the Court when the facts have emerged

but there is nothing interstate about actual appearance

before the Supreme Court or any other court in Queensland

and the other things that might arguably be interstate

which are giving opinions across State borders or
conferring across borders or even drawing pleadings

across State borders and sending them across State

borders can be done now, whether you are admitted in

Queensland or not. So, that is the first question

under section 92 which does not seem to have been

stated - identified. The second is it is not shown

how any such rule would operate to discriminate against

that activity. So neither of those statements or

allegations have been made in the case stated or the

statement of claim, as the case may be.

In the absence of those facts, Your Honour,

in our respectful submission neither of those

questions can really be asked.	They are our
submissions.

HIS HONOUR:  Yes, Mr Solicitor, do you wish to say anything about

this issue?

MR GRIFFITH:  Your Honour, really, we just submit that the matter

should be resolved one way or the other today so as

the case may go to the Full Court.

SlT6/5/PLC	5	16/12/88
Street

HIS HONOUR: Yes. Yes, Mr Bennett?

MR BENNETT:  In relation to the first matter, we would submit

that the issue of fact is really a colourable issue

of fact. There is nothing in relation to that so-called
issue which could not be dealt with in argument before

the Full Court as a matter of cormnon sense and judicial

notice.

The statement now admitted is that the plaintiff

carries on practice as a barrister principally in

New South Wales and that he is desirous of admission

to practice as a barrister in Queensland whilst
remaining resident in and intending to principally

practice in New South Wales. In my respectfully,

while obviously, as my learned friend says, it would

be theoretically possible to reside in Sydney or,
for that matter, in Tweed Heads and have one's

principal place of practice in Brisbane, the obvious

inconveniences in relation to that can be stated

just as clearly to a Full Court as to a single Justice

through a witness and the inferences in relation to

the application of section 117, we would submit,

can be argued quite satisfactorily without any issue

being determined. We do not seek to raise any

issue of fact other than those in the stated case and

those which follow as inferences and matters of

judicial notice from it.

So far as section 92 is concerned, my friend

really seems to want the outline of submissions prior

to the stating of the case. The interstate activity

is stated quite clearly in the documents, it is

carrying on practice as a barrister and if there is

one matter of fact with which the Court, we would

submit, is familiar, it is the nature of the practice

of a barrister.

HIS HONOUR:  Yes, but I must confess to some difficulty of the

kind experienced by Mr Davies in divining

how carrying on business or practice as a barrister

involves interstate trade.

MR BENNETT:  That will be the secondary submission. The primary

submission will be that it inhibits intercourse

and we will be putting some lengthy submissions

based on the intercourse cases. We would say that

if a person is prevented from carrying on his activity

when he crosses a State boundary to carry it on, that

is an inhibition on his right of intercourse and we

will be putting that on the basis of - - -

HIS HONOUR: That is your primary submission on section 92?

MR BENNETT:	Yes, Your Honour.
HIS HONOUR:	That is the interference that - -

MR BENNETT: Yes, in differential intercourse; the intercourse

being the crossing of the State line which a

SlT6/6/PLC	6	16/12/88
Street

person carrying on the practice as a member of what

we like to call the Australian Bar would incur if

he is resident, has his principal place of practice

in Sydney, but wishes to go to Queensland to

conduct a case. We submit it is no answer to an

inhibition of intercourse that he is permitted to

cross the border but not permitted to do something

which is the purpose of him crossing it and we

will be giving examples such as a

Queensland law which prohibited New South Wales'

residents from attending theatres in Queensland,

matters of that sort. We would submit they would

go to interstate intercourse.

The second aspect of the submission, the

alternative aspect, will be that the nature of the

practice of a barrister is such that it involves

interstate trade and commerce in one of two ways;

either by reference to the transaction even though

strictly non-contractual by which he is briefed to appear and part of what he is paid for is crossing the border because, of course, that is the essential

nature of a loading in this case and secondlyt

that in the sense in which the banks were involved

in interstate trade in the BANKING case, the nature

of interstate commercial litigation and Australia-wide

commercial litigation is such that we will be

submitting that the business activities which are

involved in litigation as a whole, like banking -
we say litigation is an essential part under our

system of the conduct of - - -

HIS HONOUR:	It is a very long bow, is it not?
:MR BENNETT:	It is a long bow, Your Honour, but that is the

other way in which the argument can be put. There

will also, of course, be arguments about the

relationship between section 117 and section 92 and

the extent to which one fills in gaps in the other

and that is a matter which will have to be dealt

with. This, I think, will be the first time in which

the Court has considered the two side by side, a

case where elements of both arise.

But, Your Honour, we would submit that - I

would not like what I have said today to be taken

as a considered final expression of exactly what

the submissions are but -

HIS HONOUR: There is a problem about that, is there not,

Mr Bennett? In order to determine how the case is

to proceed henceforth, I need to know with some

precision what your submissions are going to be.

:MR BENNETT:  Yes. Your Honour, certainly, the basic submissions

are those which I have just put to Your Honour. There

is, of course, the compendious expression of - - -

SlT6/7/PLC	7	16/12/88
Street
HIS HONOUR:	We have had	unfortunate experience in the last

three years, particularly, of stating cases for a

Full Court in an endeavour to procure a decision that

will be dispositive of the controversy between the

parties and on a number of occasions we have

ascertained that it has not been possible to achieve

that because the facts agreed upon between the parties

or the facts stated have been inadequate. Now, as

a result of that the Court is particularly astute to

ensure as far as possible that any stated case

contains all the facts that may be necessary to

enable the Court to arrive at a dispositive decision.

So, we need to know precisely what your submissions

are.

MR BENNETT:  Yes. Your Honour, I have given that outline. Apart

from stressing the - there is perhaps a third way of

looking at it: the nature of the compendious

expression, "trade, commerce and intercourse" and
the extent to which that picks up matters that might
not be strictly trade and commerce in their own right.

Subject to that, there - - -

HIS HONOUR:  In combination, the words may have a denotation

that amounts to something more than trade and connnerce, on the one hand, plus intercourse considered separately on the other?

MR BENNETT:  Yes, Your Honour. I think the word used in this

Court on other occasions was hendiadys

which I may be mispronouncing.

HIS HONOUR:  Yes. Well, that seems to be an even longer bow; a bow without any string attached to it.

MR BENNETT:  Yes. Your Honour, that, as presently advised,

would certainly not be the major submission.	The
major submission is section 117 - - -

HIS HONOUR:  Would.it be a submission at all?

MR BENNETT: Yes, well - Your Honour, the major submission is

that the Court should overrule HENRY V BAUME and

section 117 in our favour. That is the major

submission.

HIS HONOUR: That is what I would have thought.

I:  MR BENNETT: Yes. The next major submission is intercourse

under section 92 and the trade aPd commerce submissions

would not take very long and the combined one would

take even less time.

HISIDNOUR:  I must confess I would have thought that the case

really depends on the challenge to BAUME's case.

MR BENNETT: That is certainly the major matter, Your Honour.

The other matter, Your Honour, is I should formally

SlT6/8/PLC	8	16/12/88
Street

"notionally" perhaps is a more accurate word, read

the affidavit which I did not read in-chief in

support of the sUIIllilons.

HIS HONOUR:	What affidavit is that, Mr Bennett?
MR BENNETT:	It is the affidavit of Dennis John Cronin sworn

7 December.

HIS HONOUR:  I think I have read that. The most significant

thing that I noticed in that affidavit was in the

correspondence that was annexed where your

instructing solicitors were addressed as "gentlemen"

by the Crown Solicitor of Queensland.

MR BENNETT:	Yes.
HIS HONOUR:	It goes to show that Queensland is after all a

repository of old world courtesies.

MR BENNETT:  Yes. Maybe, Your Honour, that will be an argument

justifying the discrimination in this case. If

Your Honour pleases.

:6 HIS HONOUR: Mr Davies, in the light of the additional illumination

that Mr Bennett has provided about the way in which he

is proposing to present this case before the Full

Court, do you wish to make any connnent or does it

alter your attitude in any respect?

MR DAVIES:  No, in this sense, Your Honour, that some of what

he would describe as submissions relate to what he

says are the factshe is going to rely on. If they

are facts he is going to rely on and the case is

going to go forward by way of case stated or by

some other means, then the facts should really
appear in the stated case. I mean, such as with respect

to section 92, the activities which are said to have

interstate characteristics and the way in which it is

said the rule affects those activities. And, again,
with respect to section 117, what it is said brings

section 117 into operation; what facts bring it into

operation? Those facts really do not appear to be

anywhere in the statement of claim or the stated

case.

HIS HONOUR:  No. I should say at this stage I propose to state

a case in this matter. I am not satisfied at the

present time that the draft stated case that has been

presented by Mr Bennett is adequate. I think it

should be expanded to include the particulars that

Mr Bennett has given in the submissions that he has

made to me in reply this morning. Perhaps all I need

to do today is to say that I propose to state a case

and to direct Mr Bennett to amend his current draft so

as to include the particulars of his argument that he

has given today and to direct him to serve upon

SlT 7/ 1/PLC	9	16/12/88
Street

the respondents in the next three days an amended

draft of the stated case, and then if you could

respond to that by lodging with the Court your

comments or objections in relation to that draft.

Is it possible that you could do that before the

end of next week, assuming that Mr Bennett gets an

amended draft to you within three days of today's date?

MR DAVIES:  Yes, if the three days include the weekend, that

would certainly be so.

HIS HONOUR:	When could you get it to him, Mr Bennett?
MR BENNETT:	About 5 pm Monday, Your Honour.
HIS HONOUR:	If you could do that and then if you could, say,

by Thursday - and it may even be possible for me

to state the case on Friday.

MR DAVIES: If Your Honour pleases.

MR BENNETT: If Your Honour pleases.

AT 12.09 PM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

SlT7/2/PLC	10	16/12/88
Street

MR T. ROBERTSON: --In tl;;i,e matter of R~rt..son, Your Honour, I

am the applicant in the matter.

MR G.L. DAVIES, QC:  I appear with MR J. McGILL for each of

the respondents in this matter, if Your Honour

pleases. (instructed by W.R. Tutt & Co)

MR ROBERTSON:  Your Honour, I think my matter is before Your Honour

on a direction from the Registrar, not under surrnnons

from us, but it was no doubt thought appropriate

because of the similarity in the issues, except for
section 92 which does not raise its head in my case,
and the additional issue which involves an inconsistency

with the JUDICIARY ACT.

May I say, Your Honour, I will not be arguing

the question of inconsistency at the hearing of the

matter, so it is purely a question as to whether

section 117 applies. Now, that, as I understand it,

limits the question of fact in dispute between the

parties to my case to the one which I was given notice

of on Monday by letter that my assertion that I cannot

practice principally in the State of Queensland without

foregoing my residence in New South Wales~ That assertion, I suppose I could call it, appears at paragraph 4 of my affidavit.

I should say, Your Honour, that section 117

speaks of disabilities and discriminations and, of

course, a forced alteration of residence is not the

only disability that flows from a requirement to

practice principally in another State. There are

disabilities in terms of time and cost and family

matters also intrude. Those are matters, as Mr Bennett

has put, of inference, as one would have thought

is the allegation of fact made in paragraph 4 of my

affidavit, a matter of inference flowing from judicial

notice, and there is, of course, a stream of authority

in all States of Australia on taking judicial notice of distances and as Mr Bennett has also suggested,

the habits of a profession with which the Court is

familiar,which habits are notorious and therefore

fall within the strict doctrine of judicially noticed

facts.

Your Honour, my matter comes to the Court as

the whole of a cause removed from the Supreme Court

of Queensland so there is no technical difficulty such

as might arise in Mr Street's case.

HIS HONOUR:  But still I have tended to regard you perhaps a little

unfairly as a "Johnny come lately" upon the scene.

MR ROBERTSON:  Yes. I think the facts disclose that Mr Street and

I made our applications at much the same time and

surprisingly without knowledge one of the other but - - -

HIS HONOUR:  But certainly he had his case litigated in the

Supreme Court of Queensland.

SlT7/4/PLC	11	16/12/88
Robertson

MR ROBER1SON:  Yes, ~hat is so, Your Honour, and it was by reason

of that litigation that I took the step of asking the

Court to remove it, it being a waste of judicial

resources to litigate it in Queensland.

That single question of fact apparently being

in contention, I gave my friend's instructing

solicitor notice on Monday that I was making myself

available today for cross-examination on my affidavit

if he wished to contest the fact and I am here,

Your Honour, if my friend wants to put me in the box.

It is a single question of fact. He can, of course,

put on some affidavit material contesting it if he

wishes but he has had my affidavit since about

7 November and has taken no steps to do so. This

matter has been before the Court now for, I think at

least a year - 18 months.

HIS HONOUR:  I would be surprised, actually, if Mr Davies

wants to cross-examine you but I suppose I should ask

him. Mr Davies, do you want Mr Robertson to remove

himself from the rostrum and venture into the

witness box?

MR DAVIES:  No, Your Honour. What we were suggesting in that

respect is that if there is a question to be

determined, it is a question of fact on which evidence

might be adduced by people other than Mr Robertson

and therefore it is not appropriate to be determined -

certainly not today and probably not by this Court.

HIS HONOUR:  I was going to ask you, Mr Davies: now, having

regard to the form in which Mr Robertson's case has

come to the Court, what do you submit ought to be done

in his case? After all, in the case in which

Mr Bennett is appearing, I have indicated that I will

state a case.

MR DAVIES:  Your Honour, in that case, one would assume that

Mr Robertson's case would follow and really it

should be left to abide the result of the STREET

case in which you are stating a case. There seems
to be little point in having them both go forward

in the sense that the second would now seem to follow

from the first. Now that there is only one - - -

HIS HONOUR:  That is true but, on the other hand, Mr Robertson has

got himself here, therefore, I would be inclined to

take the view that he is entitled to be heard upon the

point. To say that his case should merely await the

outcome of Mr Street's case is effectively to deny

him the opportunity of presenting his submissions and

for all I know, although perhaps it is quite unlikely,
he may shed a vast illumination upon the legal point

that I will not obtain from you or from Mr Bennett or

from the Solicitor for the Commonwealth. As I say, I

SlT7/5/PLC	12	ROBERTSON	16/12/88
Robertson

think that is quite unlikely but I cannot exclude

the possibility.

MR DAVIES:  Very kind of Your Honour. Your Honour, we certainly

have no objection to that course. It may be that

formally, for the matter to come before this Court,

that there could be a case stated in, so far as

section 117 is concerned, identical terms to that

which is stated in STREET.

HIS HONOUR:  Yes. Well, that is what I had in mind and I

would suggest that Mr Bennett and Mr Robertson

co-operate and that we use Mr Bennett's case, in the
light of any objections you may make to it, as a

model for adoption in Mr Robertson's case.

MR DAVIES:  That seems appropriate, Your Honour.

HIS HONOUR:  Very well. I do not think the same time limits

need apply to Mr Robertson. I can state a case in

January that will reflect, so far as it is necessary,

the case that is stated in Mr Street's case.

MR DAVIES:	Yes.
HIS HONOUR: Very well.	Now, have you any objection to that

course, Mr Robertson?

MR ROBERTSON:  No, Your Honour, except that there is an

outstanding issue of fact and I just wonder how

it will be resolved. That is my principal concern.

HIS HONOUR: What I suggest to you is that you consult with Mr Bennett The same issue of fact arises with

Mr Street as it arises in your case.

MR ROBERTSON:  Yes, but I am on notice that that issue of fact

is contested.

HIS HONOUR:  Mr Bennett, in a sense, is on notice that that

issue of fact is contested as well. There is no

difference between the two cases.

MR ROBERTSON:  I know, Your Honour, but I wonder how the contest

is to be resolved.

HIS HONOUR: You will find that out at the end of next week.

MR ROBERTSON:  If there is still a contest on it by the end of

next week, Your Honour, I would, for myself, wish to
have the contest resolved before the matter goes to

the Full Court.

HIS HONOUR:  If there is an outstanding issue of fact that I cannot

resolve on the materials put to me in the course of
next week, obviously it will have to be resolved before

the matter gets to the Full Court.

SlT7/6/PLC	13	16/12/88
Robertson

MR ROBERTSON:  Yes, very well. The other matter, Your Honour,

is that my argument will depart from Mr Bennett's,

as I understand it, on section 117. It is part of

my argument that section 92 is inapplicable and

that is an argument as to construction.	So, there
will be a difference.

HIS HONOUR:  Well now, what is the difference?

MR ROBERTSON:  I suppose it is this: that it is part of my

argument section 117 has a wider scope than has

been given to it because the notion of intercourse

in section 92 was directed to a different subject-matter

than section 117, put briefly, the passing and

repassing across State borders rather than some more

expansive notion and I would be seeking to persuade

the Court that one can give section 117 an operation

much wider than the operation given to it in HENRY V

BAUME, for that, amongst other reasons.

HIS HONOUR:  But that submission will not reflect in any

particular issue of fact that is different.

MR ROBERTSON:  No.

HIS HONOUR: So that from the point of view of stating a case,

we need not be over much concerned about the

difference in the submissions.

MR ROBERTSON: Correct.

HIS HONOUR:  Unless the case is to be drawn in such a way as to

reflect the submissions that are to be presented

by the parties.

MR ROBERTSON:  Yes. I was just going to suggest that perhaps

it might be a joint stated case, if the matters

could be joined, but that might be - because I am

not a party to the facts in relation to the

92 question, that might have - - -

HIS HONOUR:

Why joint stated cases? What is the advantage of

joint stated cases as against two separate stated

cases?

MR ROBERTSON:	I suppose there is none.
HIS HONOUR:	Particularly if you say there is a difference in the submission that you will be presenting on section 117.
MR ROBERTSON:	That is so, yes.
HIS HONOUR:	I would have thought that that point is in favour of

separate stated cases.

MR ROBERTSON:	Yes.	I have nothing further to add, Your Honour.
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HIS HONOUR:	Very well.	The matter will proceed on the basis

that I have outlined.

Yes, Mr Bennett?

MR BENNETT:  The only other formal matter, Your Honour,

concerns - I do not think there is any need for an

order but Your Honour appreciates there is an appeal

pending in relation to which - - -

HIS HONOUR: In your case?

MR BENNETT:  Yes, independently of the High Court proceedings

and that the two should be heard together.

HIS HONOUR:  Yes. I had proposed to list the appeal along

with whatever arose out of the independent action

that you had instituted. At that stage I think

we had envisaged a demurrer but it looks as if the

demurrer will fall by the wayside and be

replaced by a stated case.

MR BENNETT:  Yes. That is my application, Your Honour.

HIS HONOUR: But certainly the appeal would be listed at the

same time because it would be necessary to dispose

of the appeal even though the action looks as if

it is going to be the vehicle for the principal

determination.

MR BENNETT:	Yes, if Your Honour pleases.
HIS HONOUR:	The Court will now adjourn.

AT 12.18 PM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

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