Te, Ex parte- Re Min for Immig and Multicultural Affairs

[1999] HCATrans 75

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M34 of 1999

In the matter of -

An Application for Declarations and Writs of Certiorari and Habeas Corpus against MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

EDWARD VICTOR KILLENSTEYN

Second Respondent

GOVERNOR OF PORT PHILLIP PRISON

Third Respondent

Ex parte -

MENG KOK TE

Prosecutor/Applicant

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 APRIL 1999, AT 10.18 AM

Copyright in the High Court of Australia

MR D.A. PERKINS:  If the Court pleases, my appearance was initially indicated as being with MR P.G. NASH, QC.  Mr Nash is recovering from surgery and I accordingly appear by myself.  (instructed by Kuek & Associates)

MR C. GUNST, QC:  If your Honour pleases, I appear with my learned friend, MR W.S. MOSLEY, on behalf of the first respondent.  (instructed by the Australian Government Solicitor)  May I indicate, as our outline of argument has done, the second respondent has indicated that he will take no part in the proceeding and abide any order save as to costs.

HIS HONOUR:   Yes, thank you.

I hold a certificate from the Deputy Registrar that she has been informed that the Director of the Port Phillip Prison, the third respondent in this matter, does not wish to take an active part in the proceedings and will abide the decision of the Court.

Mr Perkins.

MR PERKINS:   If the Court pleases.  The question that is sought to be raised by these proceedings is whether, as a result of the operation of section 201 of the Migration Act, there is discrimination between residents of different States in respect of which the applicant has a right to make complaint.  The discrimination which is alleged is that ‑ ‑ ‑

HIS HONOUR:   Before you come to that, is the reference to discrimination between residents of different States a reference to section 117 of the Constitution?

MR PERKINS:   Yes. 

HIS HONOUR:   Is it necessary then to identify the applicant as a “subject of the Queen” for that purpose?

MR PERKINS:   Yes.

HIS HONOUR:   And consistent with the authority of this Court, particularly Nolan and Pochi, can that be done?

MR PERKINS:   In my submission, it can.  I am not about to put a proposition on an application such as this that we would inevitably be successful but, in my submission, it is open to do that.  I refer also in that specific regard to what was said in Street v Queensland Bar Association at page 505. 

HIS HONOUR:   Yes, which volume is Street

MR PERKINS:   Street is 168 CLR.  In my submission it is open ‑ ‑ ‑

HIS HONOUR:   What is the passage at 505 on which you ‑ ‑ ‑

MR PERKINS:   The passage at 505 is a passage, the first full paragraph and it is a passage which includes:

The question was not raised in Nolan which established that “subject of the Queen” is the antonym of “alien” –

And then it goes on:

It may be that resident friendly aliens are subjects of the Queen in right of Australia so long as they remain in Australia:

Then a New Zealand case is referred to.  That case is Arnerich v The King and looking at the headnote of that case it appears that it can be said that somebody:

who, for the time being, owes allegiance to the Sovereign and enjoys his protection, is fairly described as a “subject” –

So it is said on behalf of the applicant ‑ ‑ ‑

HIS HONOUR:   Is it not right to say that “subject of the Queen” is the antonym of “alien” in 51(xix)?

MR PERKINS:   No.  In my submission, it is not, but even if it is, assuming for the moment that it is the antonym of “alien”, the applicant is not, it is submitted, an alien and that for the reason that he is a refugee and a refugee is a person who is recognised as having lost any allegiance he may have had to a foreign power.  So ‑ ‑ ‑

HIS HONOUR:   Now, is that a proposition of fact or a proposition about his status recognised by some Act in Australia, that he is a refugee?  Are you saying that as a matter of fact he is a refugee or are you saying that he has been recognised in some way under Australian law as being a refugee?

MR PERKINS:   Yes, I say both.  In connection with the first part of that, that is that he is as a matter of fact a refugee, I would contend that it is open to look at his domicile and at the circumstances which surround his being in, and remaining in, Australia, and one of the relevant circumstances is the fact that he entered as a refugee.  Then I would go further ‑ ‑ ‑

HIS HONOUR:   You say “entered as a refugee”, that is was he given refugee status and whatever piece of paper under the Migration Act is appropriate to be given to those who enter as refugees?

MR PERKINS:   The answer is yes, he was.

HIS HONOUR:   I did not notice that in the papers.

MR PERKINS:   Your Honour, that should be something which would – that is a matter that the propositions put by the applicant may well depend upon and I would seek to have that squarely in the materials.  But it is contended that the act of becoming a refugee, if I can put it like that, involves the putting aside of one’s former allegiances.  One is, in effect, when one is a refugee stateless and such a person is, in my submission, more readily to be treated as a subject of the Queen than somebody in respect of whom the question of alien status more squarely arises.

HIS HONOUR:   As I say, it may be that the factual base for some of these contentions may need to be supplied.  I am not conscious of material that supplies them.  Let it be assumed for the moment, however, that that factual base is established by admissible material.  Can I take you to another apparently disparate, but no less important, factual premise from which this application, or these applications, proceed in part.  As I understand it, Meng Kok Te was dealt with on one occasion and sentenced in the fashion he was and it is that sentence upon which the deportation order is said to depend.

MR PERKINS:   Yes.

HIS HONOUR:   But after that, he was dealt with again and separately and was sentenced, I think, to seven with five or some such sentence.

MR PERKINS:   Yes.

HIS HONOUR:   The material presently proceeds from the premise – or appears to – that because the non-parole period has expired, he is not thereafter detained pursuant to warrant flowing from that second sentence.

MR PERKINS:   Yes.

HIS HONOUR:   Is it apparent on the material whether, firstly, the head sentence has expired and, secondly, whether, as a matter of fact, whatever steps must be taken by parole authorities to effect release under State law have in fact been taken for, if they have not, is not this man then detained under State law as well as under federal law? 

MR PERKINS:   The head sentence, I think it is correct to say, has not expired but steps were taken by State authorities to parole the applicant.

HIS HONOUR:   Again, none of that is on affidavit, at least, so far as I have seen.  In particular, it is not readily apparent to me that the steps that were taken by State authorities carried to the extent of whatever steps may be needed to discharge him from the obligation of continued service of the sentence imposed on that second occasion in prison, as opposed to service at large under parole.

MR PERKINS:   Yes.  Your Honour, one of the things that the Full Federal Court decision, which is the subject of the special leave application, turned on or may be – perhaps I should say involved – was the question whether the Commonwealth having taken steps to in a sense take over the imprisonment pursuant to section 253 or 254 of the Migration Act, it seemed, if I may say so, to be common ground that it was necessary for the Commonwealth to take steps to avoid the release on parole of the applicant.

HIS HONOUR:   And if those steps are, as you contend them to be, invalid steps, unless the State authorities have released this man or taken whatever steps have to be taken – and I do not know now what they are – he is validly detained and habeas ordinarily would not go, nor I think, subject to whatever you may say, would it be appropriate to give any order nisi for habeas in such circumstances, if he is validly detained under another warrant, even if your contention about validity are right.

MR PERKINS:   With respect, that is accepted, yes.

HIS HONOUR:   But again, does it not mean that your factual base may need reconsideration in so far as the habeas aspect of this application is concerned?

MR PERKINS:   Your Honour, I certainly accept that it is necessary for us to have in evidence an appropriate factual basis for the propositions that your Honour has just been discussing and, if your Honour pleases, perhaps the explanation has been that the material which is the factual base of those matters is to be found in the special leave application documents and ‑ ‑ ‑

HIS HONOUR:   Which brings me to the further point of why are these proceedings anything more than duplicitous of matters that can be raised on the special leave?  They may not be.  That is a contention against you, though, and you will need to address at some point why these proceedings, separate from and additional to the special leave proceedings, are necessary.

MR PERKINS:   I can only say, I think, that it is accepted that there are discretionary considerations which most certainly would impinge upon our right to succeed if we show other bases on which to succeed.

If I may say so, with respect, that would be less so in the case of habeas corpus, affecting as it does the liberty of the subject, than it would be in some of the other writs.  But it is accepted that if we have an equally available and open remedy, that would be a reason why we should not, as a matter of discretion, succeed finally in obtaining the one we seek now.  It is accepted that that is a consideration. 

HIS HONOUR:   Do you say that what you seek cannot adequately be obtained under the leave application that is presently pending?

MR PERKINS:   Yes, your Honour.  We say either that it cannot be obtained or that there is a risk that it cannot be obtained from the applicant’s point of view.  These matters were not – and it is a matter of record – ventilated before the Full Court of the Federal Court but they are matters which, it is submitted, are appropriate to be ventilated before this Court.  Globally, your Honour, it is accepted that all of those matters go to the exercise of discretion.

HIS HONOUR:   At the end of the day, one of the questions that troubles me is are we unduly cluttering the record or are we achieving anything if I were either to grant order nisi or to direct that order nisi be made returnable before a Full Court, presumably to come on at the same time as the leave.  What are we achieving by doing that?

MR PERKINS:   What is being achieved, in my submission, is this, that the applicant is then able to put fully submissions which appear to the applicant to be open in relation to the law and the facts and to obtain a remedy in circumstances where there may well be reasons why a special leave application would not be granted.  It is to keep available a remedy which, it is submitted, is property open to the applicant and which may not be granted if the matter remains one of a special leave application to be determined according to the principles which apply on those applications.

HIS HONOUR:   At the end of the day, what course do you say I should take?  Should I either grant order nisi or should I direct return before a Full Court of application for order nisi?

MR PERKINS:   What we have sought and what I submit is appropriate is that there be an order that the matter be returnable before a Full Court.

HIS HONOUR:   With the intention that it should come on with the leave application and be determined at that time?

MR PERKINS:   That would be the applicant’s intention subject, of course, to it being considered by your Honour that that is an appropriate way of proceeding. 

HIS HONOUR:   It would leave it open to the special leave Bench, if so minded, to either dispose of the matter once for all then or suggest reconstitution of the Court to hear it in some other form.  But I must say to you, Mr Perkins, that I am not minded to make any such order before knowing exactly what factual base the application is to proceed on.  Can I just understand or see whether I understand where we may have got to?  One, there may be a question whether further evidence should be put on concerning the contentions you wish to make that Meng Kok Te is a subject of the Queen, including, for example, material concerning his allegiance or lack of it to any other sovereign power, the circumstances of his arrival in this country and what, if any, permissions were granted to him to remain in this country following his arrival.

MR PERKINS:   Yes.

HIS HONOUR:   Further, you may wish to amplify the evidence concerning his current status under the second sentence of imprisonment that was imposed on him in 1995 or 1997?

MR PERKINS:   I think it was 1995.

MR GUNST:   1996.

MR PERKINS:   1996.

HIS HONOUR:   Yes.  So, the sentence imposed in 1996.  You say that you fear not being able to agitate the various constitutional issues that you desire to agitate simply in the special leave vehicle that you have on foot at the moment?

MR PERKINS:   Yes, your Honour. 

HIS HONOUR:   And your preferred course is that I direct return before a Full Court to come on at the same time as the leave, is that right?

MR PERKINS:   Yes, it is, your Honour.

HIS HONOUR:   Do I capture where we have got to?

MR PERKINS:   Yes, your Honour.

HIS HONOUR:   It may be useful, I think, Mr Perkins, if I hear what Mr Gunst has to say about those aspects of the matter.  Firstly, as to the factual aspects, Mr Gunst, is there any reason why we should not give an opportunity to the applicant at least to remedy what may be perceived to be deficiencies in factual base?

MR GUNST:   Only to say this, your Honour:  your Honour used the word “clutter” and I was going to address something along those lines.  Your Honour sees that a special leave application has been filed.  The applicant’s material has been filed and served and it is incumbent on the respondent to file the answering summary of argument, and that has to be done within a week or 10 days of today, as I recall it, but it is within a short space of time.  It is difficult to be running two proceedings in parallel or in tandem.

HIS HONOUR:   It is not beyond the wit of the Commonwealth of Australia, is it, Mr Gunst?

MR GUNST:   It brings me to the second point, your Honour - - -

HIS HONOUR:   At least do not tell me that it is beyond the wit of the Commonwealth of Australia or childhood illusions will begin to crumble.  Yes.

MR GUNST:   Perish the thought.  No, I merely say it is difficult, your Honour, to be drawing arguments in one proceeding and, in fact, having to respond to both factual and legal arguments in another, where – and this brings me to the second point – these constitutional arguments are, in fact, raised in the special leave application.  True it is, as our learned friend says, this argument about section 117 was not raised in the Full Court of the Federal Court but, just putting that to one side - - -

HIS HONOUR:   Does the respondent take any point about the failure to agitate these issues in the Full Court of the Federal Court or earlier?

MR GUNST:   I will need to take instructions about that, your Honour.  I do not have instructions about that.  The answer is it may be.

HIS HONOUR:   Yes.  If that is so, then Mr Perkins says he does not wish to be confronted with that point, and it is a point that in any event would go away were he to institute an action in the original jurisdiction for declaration as to invalidity which, at least at first blush, might seem to be the more appropriate course rather than the prerogative relief, but I do not want to have a fourth or third, or whatever it is, set of proceedings sculling around.

MR GUNST:   And that is a point we make in our outline of argument, your Honour, that in fact proceeding with a statement of claim is the more appropriate way to agitate these in any event rather than an application for prerogative relief with all the discretionary difficulties.  But can we come back to deal with the substance because what we say is your Honour should put an end to this prerogative writ application today.

HIS HONOUR:   But if I do that and these points are to be agitated on the special leave application, what do I achieve other than possible embarrassment of the special leave Bench?

MR GUNST:   Well, it is an embarrassment that the applicant brings upon himself by motioning here and - - -

HIS HONOUR:   Maybe, but with constitutional points, ought I to be quick to create thickets of that kind, Mr Gunst?

MR GUNST:   We say, your Honour, where the point is so utterly unarguable and foreclosed by the clearest authority, we say your Honour would - - -

HIS HONOUR:   That being Nolan and Pochi, I take it?

MR GUNST:   The most succinct piece, your Honour, is in Justice Deane’s judgment in Street 168 CLR at 525. Now, the majority in Nolan make it quite clear that “subject of the Queen” means “subject of the Queen in right of Australia” which it means an Australian citizen, but in the first full paragraph on page 525, Justice Deane makes it crystal clear, in section 117, the expression “subject of the Queen” means an Australian citizen.

HIS HONOUR:   But against that, Mr Perkins says one must put Justice Brennan’s statement that it may be that resident friendly aliens are subjects of the Queen so long as they remain in Australia. 

MR GUNST:   Yes.  With respect to his Honour - - -

HIS HONOUR:   I think on any view that was not necessary for his Honour’s decision in that case and I understand the force of the arguments that may be deployed on both sides, I think.

MR GUNST:   Well, the majority in Nolan expressed the clear view and Justice Deane expresses that clear view that I have just taken your Honour to in Street’s Case.  We say the point is so utterly unarguable that your Honour ought not embarrass the Full Court on the special leave application by encumbering them with a completely unnecessary and, we might even say, frivolous application for a prerogative writ.

HIS HONOUR:   But if it is plainly unarguable, that either will be apparent to or can be made apparent to a Full Court.  If it is, however, by contrast, not plainly unarguable, then the argument ought to proceed, perhaps, before a Full Court rather than a single Justice.

MR GUNST:   Yes.  Your Honour, what we say is it is so plainly foreclosed on the basis of the authorities, Pochi, Nolan and Street, that “subject of the Queen” in section 117 means Australian citizen.  By its very nature, section 201 does not apply to Australian citizens, section 201 of the Migration Act.  It only applies to non-citizens, clearly, in its plain terms.

Can we just deal very briefly with the other two arguments that are set out in the proposed draft order nisi.  They are impermissible delegation to the States and not a valid law.  We have given your Honour a reference in our outline to Capital Duplicators which clearly demonstrates section 201 is not a delegation in any way but, in any event, the Parliament retains the right to amend or repeal the legislation.  That is the end of that argument, we would say.

On the question of validity, the predecessor to this section which is in substantively identical terms, which is section 12 of the 1958 - - -

HIS HONOUR:   It was upheld in Nolan.

MR GUNST:   It was upheld in Nolan.  We have the copies here, your Honour.  The wording is slightly different but substantively the wording is identical in section - - -

HIS HONOUR:   And upheld as a law with respect to aliens rather than with respect to migration, was it not?

MR GUNST:   Yes, aliens and naturalisation, that is so, your Honour.  Section 12 in the 1958 Act became section 55 in 1983 or 1984, from memory, and then section 201 in 1994.  But, substantively, operatively, it is identical, so we say the fourth argument is so completely unarguable that the matter ought to be disposed of today.

HIS HONOUR:   You have referred to the possibility of, in effect, cluttering what is happening on the special leave.  Is there any other difficulty that you point to about returning it at the same time as the special leave?

MR GUNST:   Not from our part, your Honour, but perhaps from the Court’s.  There may be a controversy on the evidence.  There may be a dispute - - -

HIS HONOUR:   Put it this way, Mr Gunst.  At the moment I am not minded to make any order referring anything into a Full Court until we have seen what further evidence is to be put on.  For, if there is to be controversy about questions of fact, then altogether different considerations may intrude. But it seemed to me to be useful to explore the circumstances that would obtain on the assumption that what is put forward is not open to controversy.  The facts ought to be of a kind that are objectively ascertainable.

MR GUNST:   Yes.  Can I just explain what I mean by that, your Honour?  Our learned friend said that the applicant was a refugee.  On our instructions, he has not been granted – there is only one form of visa for refugees.  That is a protection visa under section 36.  He is not the holder and never has been the holder of such a visa.  He was granted some Cambodian humanitarian long-term visa, on our instructions.  So, that is the – I am not giving evidence from the Bar table, your Honour, I am just indicating what the controversy as might arise.

HIS HONOUR:   No, I do not take you to be so at all and all the more important why we see what the evidence is.  It may well be that with some discussion between the parties these matters can be reduced to uncontroversial objective fact but it is, of course, for the applicant to put on the material upon which the applicant will seek to rely.

MR GUNST:   Yes, and then we would have an opportunity to answer if there is something that needs answering.

HIS HONOUR:   Just so.

MR GUNST:   Your Honour, can I leave it by saying this:  we have our outline of argument and I do not want to read from it.  We say that save for what Justice Brennan said in Nolan, all of the authorities point to the proposition that “subject of the Queen” means Australian citizen, which this applicant is not.  But there is a second part to the section 117 argument, that one then has to have discrimination.  There is in fact some doubt in the authorities as to whether section 117 is intended to confer rights on individuals.  There is a fair amount of discussion because it occurs in the chapter about States and so on that your Honour will be aware of.

HIS HONOUR:   You, I take it, would say that the bare fact that there may be differential application according to particular facts does not constitute discrimination?

MR GUNST:   Indeed, your Honour, Leeth’s Case that we have cited in our outline is very clear authority for the proposition that it is perfectly appropriate to, for example, sentence offenders in some district of Australia where a particular offence is prevalent more heavily than you sentence other offenders in an area where it is less prevalent, and there is nothing wrong with that under Commonwealth law at all.

HIS HONOUR:   Again, those are debates that may be open to controversy or may be so plain as not to admit of argument.

MR GUNST:   The next point, of course, is that what we say is that the applicant’s argument is a circular one, that is, it seeks to draw support from its own false premise.  The false premise is that, as your Honour will recall, this man was sentenced to, relevantly, 12 months imprisonment, of which three were suspended.  The applicant’s argument at first instance and in the Full Court where it was rejected on each occasion is that that is not 12 months within the meaning of section 201 of the Migration Act and therefore he is not amenable to deportation, and that is the argument in a nutshell.

It has not found favour with any judge yet and it flies in the face of the provisions of the Victorian Sentencing Act that we have adverted to, section 27 in particular, which says that for all purposes, what I will call the “head sentence”, the 12 months, is the sentence.

HIS HONOUR:   Yes.  I think there might be some resistance to the notion that the Parliament of Victoria can dictate the meaning of the legislation passed by the Commonwealth but they are perhaps matters that can be debated elsewhere.

MR GUNST:   That was raised in the Full Court, your Honour, and we do not contend for that.  What we say is that the Commonwealth Parliament has passed a law that says that if you are sentenced to 12 months, then you are amendable to being deported.

HIS HONOUR:   The argument is sentence, not service.

MR GUNST:   Thank you, your Honour, yes, precisely so.

HIS HONOUR:   I understand the argument.  It may be right; it may be wrong.

MR GUNST:   So that even if the applicant is a subject of the Queen and even if the differential treatment in different States is discrimination, it is not relevant discrimination because section 201 depends only on the sentence.  What happens afterwards, whether in one State it is a suspended sentence or in another State it is a release on licence or in some other State it is a release on parole, matters not.  What is important is the 12 months.

HIS HONOUR:   I had understood the argument, perhaps, to be not that so much as that different States impose different penalties for different offences.  Those differences, of themselves without more, constitute discrimination.  Now, that argument may be right; it may not be, but there we are.  Incidentally, the 12 month sentence was or was it, for a State offence or for a Commonwealth offence?

MR GUNST:   It was a drug dealing offence, your Honour, yes.

HIS HONOUR:   But a State – drugs and - - -

MR GUNST:   Yes.  Well, I stand to be corrected on that but I understand it to be so, yes.  I am confident that that is the position, your Honour.

HIS HONOUR:   That was my impression.

MR GUNST:   My learned friend, Mr Perkins, assists me and asserts it was.  He had a prior involvement.  Yes, it was a 12 month sentence from a magistrate on an appeal to the County Court of Victoria which, as your Honour understands, is a hearing de novo.

HIS HONOUR:   Reimposed again.

MR GUNST:   Reimposed but with three months suspended – yes.

HIS HONOUR:   Reimposed again, dear me, for a second time, perhaps.

MR GUNST:   I apologise for repeating myself unnecessarily; being unnecessarily tautologist.  Your Honour, those are our submissions.  We have set them out at some length in our outline.  We say that this application is impossible of success and, regardless of any evidence that might be put

on such as has been indicated, the matter ought to be disposed of today.  The constitutional argument can be put on the special leave day.  Whether the Full Court determines that because it was not put in the Full Court, they are not going to listen to it, that is a matter for the Full Court and your Honour ought not to embarrass the Full Court into requiring them to hear it in circumstances where it was not, in fact, put to the court below, and this Court, of course, is not assisted by having had a consideration of the issue from a lower court. 

Your Honour, those are our submissions.  We say that the application should be dismissed today.

HIS HONOUR:   Thank you, Mr Gunst. 

Mr Perkins, as I say, I am not minded at the moment to make any order referring the matter into the Full Court until the factual basis is complete.  What directions would you seek that would enable you to complete whatever factual material you would wish to put before the Court?

MR PERKINS:   Your Honour, I would seek that we have 14 days to do that.  I was intending to refer your Honour to some of the material which is a repository of some factual information that, perhaps, has not been adverted to by me in what I have put to your Honour, but I cannot really suggest that it is not appropriate to put the matter in short compass and fully, nevertheless.  So, would 14 days be appropriate, your Honour?

HIS HONOUR:   That would take us to 23 April, would it not?  If there were a direction that the applicant file and serve on or before 4 pm, 23 April 1999, any further material upon which he intends to rely, if I directed further that the respondent file and serve on or before 4 pm – Mr Gunst, do you want a week or 10 days?

MR GUNST:   A week, I think, your Honour.

HIS HONOUR:   Yes, 4 pm, 30 April 1999.  I will just find out what day I could give as a further return day.  The May sittings commence on 4 May and it may be that if I returned it on, say, Monday morning, 3 May, at 9.30, we could then dispose of the matter reasonably promptly.

MR PERKINS:   Your Honour, it is probably plain:  I am refraining from putting other matters that I might put in reply. 

HIS HONOUR:   I understand that, Mr Perkins.

MR PERKINS:   I do not propose, in the circumstances of what your Honour is foreshadowing, to put any other matter.

HIS HONOUR:   Yes.  Although your grounds are, I take it, in the form in which you wish them to go forward?  No suggestion of adding or - - -

MR PERKINS:   They are not grounds that I have drafted, your Honour.  Could I consider that within the same period of 14 days?

HIS HONOUR:   Yes.  The direction for further material should be understood then as a direction to file and serve any amended grounds.

Subject to anything that counsel may say, I would propose orders as follows:

(1)  direct that the applicant file and serve on or before 4 pm, 23 April 1999 any further material upon which he intends to rely and any proposed amendment to the grounds of his application;

(2)  direct the first respondent file and serve on or before 4 pm, 30 April 1999 any further material upon which he intends to rely;

(3)  adjourn the further hearing of this application to Monday, 3 May 1999 in Melbourne at 9.30 am.

If I then reserve the costs and certify?

MR PERKINS:   If your Honour pleases.

MR GUNST:   If your Honour pleases.

HIS HONOUR:   Yes, there will be directions in those terms.  Thank you, gentlemen, I will adjourn.

AT 11.00 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 3 MAY 1999