Telstra Corp Ltd v Ausn Telecom Authority & Optus Networks

[1995] HCATrans 280

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S105 of 1995

B e t w e e n -

TELSTRA CORPORATION LIMITED

Plaintiff

and

AUSTRALIAN TELECOMMUNICATIONS AUTHORITY

Defendant

Summons for Directions

Office of the Registry
  Sydney  No S105 of 1995

B e t w e e n -

OPTUS NETWORKS PTY LIMITED

Applicant

and

TELSTRA CORPORATION LIMITED

Respondent/Plaintiff

AUSTRALIAN TELECOMMUNICATIONS AUTHORITY

Respondent/Defendant

Application for joinder of defendant

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 21 SEPTEMBER 1995, AT 9.31 AM

Copyright in the High Court of Australia

_____________________

MR R.B.S. MACFARLAN, QC:   If your Honour pleases, I appear with my learned friend, MR C.C. HODGEKISS, for the plaintiff.  (instructed by Malleson Stephen Jaques)

MR D. SHAVIN, QC:   If your Honour pleases, I appear with my learned friend, MS P.M. TATE, for the defendant.  (instructed by the Australian Government Solicitor)

MR S.J. GAGELER:   If your Honour pleases, I appear with MR M.J. LEEMING for Optus Networks Pty Limited.  (instructed by Gilbert & Tobin)

MR MACFARLAN:   Your Honour, there is a writ of summons issued in the matter on 22 August. Our summons for remittal is dated 31 August. The High Court jurisdiction is attracted by the presence of AUSTEL as the defendant as being a person sued on behalf of the Commonwealth under section 75(iii). As your Honour is probably aware, it is the industry regulator which has the responsibility for implementing government policy and is subject to government direction. The proceedings will involve extensive factual inquiry ‑ ‑ ‑

HIS HONOUR:   Can I ask this:  you seek declaratory relief.  There is no injunction so there is no 75(v) jurisdiction?

MR MACFARLAN:   No.

HIS HONOUR:   So there is no 39B jurisdiction in the Federal Court.

MR MACFARLAN:   No, that is so.

HIS HONOUR:   Is there any Administrative Decisions (Judicial Review) Act application here?

MR MACFARLAN:   No, there is not, your Honour, and there would be a strong view available that there has not been a relevant decision which would enliven such jurisdiction.

HIS HONOUR:   Yes, I see.  I looked at exhibit NET 1.  I see what you say.  I have looked at the relevant provisions in the Act, I think.  All right, so you come here under 75(iii), and then there is a summons for directions, in effect.

MR MACFARLAN:   Yes, your Honour.  We seek remittal to the Federal Court and, in particular, to the Sydney Registry of the Federal Court.

HIS HONOUR:   There is debate about which would be the appropriate place.

MR MACFARLAN:   There is.

HIS HONOUR:   And then there are other applications as well.

MR MACFARLAN:   We have some material in an affidavit of Mr Lee that goes to the question of venue.  The question of venue is raised very starkly in our learned friend’s summons.  It may be more convenient if I read the whole of Mr Lee’s affidavit in response to the defendant’s summons, rather than reading it partly in-chief and a part later.

HIS HONOUR:   I find protracted delays about venue with corporations of this size, the Federal Court being the Federal Court, frankly ridiculous, and the firm of solicitors involved not exactly being backyard operations either, but we will think about that when - what is the debate?  It is between Sydney and Melbourne, is it?

MR MACFARLAN:   Yes, it is, your Honour.  The relevant business operations of Telstra are in Sydney and Brisbane and in respect of Optus, in Sydney.  And the majority of the service providers, who are the other main participants, are in Sydney and only ‑ ‑ ‑

HIS HONOUR:   What about AUSTEL?

MR MACFARLAN:   Its office is in Melbourne but one would not glean from its evidence that it is likely to be calling significant evidence from its own resources but rather calling evidence from other marker participants.  So one really has to look to see where those other market participants are located and substantially they are located outside Melbourne.

HIS HONOUR:   But if there is a real debate, the Federal Court can sit sometimes in Sydney and sometimes in Melbourne.  The profession just cannot seem to get their mind around this basic fact.

MR MACFARLAN:   Indeed, your Honour.  We have the originals of the two affidavits, drafts of which I think were supplied.

HIS HONOUR:   I will come to affidavits in a minute.  Now, is there any real opposition to joining Optus?

MR MACFARLAN:   No, we do not oppose that course, your Honour, although we submit that it should be on the basis that Optus is at its own risk as to costs.

HIS HONOUR:   Yes, that would be so.  Do you oppose the joining of Optus, Mr Shavin?

MR SHAVIN:   No, your Honour

HIS HONOUR:   It might, in fact, help you, because there will be a real contradictor now.

MR SHAVIN:   Yes.  Though that does not resolve all of the issues which we would seek to ventilate this morning.

HIS HONOUR:   I am sure it does not.  But let us deal with them one at a time.  That is no reason for deciding this one.  Let me ask Mr Gageler:  your summons is ‑ ‑ ‑

MR GAGELER:   Is dated 18 September, and in support of the summons there is an affidavit of Andrew Charles Bailey dated 19 September.

HIS HONOUR:   Yes, very well.  You accept that this would be at your risk of costs obviously, I would have thought?

MR GAGELER:   That is the ordinary position of a party, your Honour.

HIS HONOUR:   I do not need to make any special provision about that, I would have thought.

MR GAGELER:   No.

HIS HONOUR:   Was your summons filed on the 18th as well as dated the 18th?

MR GAGELER:   Yes, it was, your Honour.  The affidavit was filed the next day.

HIS HONOUR:   Costs of that summons be dealt with how, costs in the action?

MR GAGELER:   Yes, your Honour.

HIS HONOUR:   I make the following orders:

1.  Upon the summons filed by Optus Networks Pty Limited on 18 September 1995 order that that corporation be added as the second defendant in the action, and

2.  The costs of that summons be costs in the action.

Now, you have a summons too, Mr Shavin, have you not?

MR SHAVIN:   I do.  We have a summons dated 12 September.

HIS HONOUR:   Yes, quite fearsome it looks, too.

MR SHAVIN:   It is not as fearsome as it looks, your Honour, we just want to have the action dismissed.

HIS HONOUR:   Yes.  Why should I do that rather than remit it first?

MR SHAVIN:   Because there are important matters of principle involved, your Honour.

HIS HONOUR:   That is all the more reason for it being dealt with first in the Federal Court.

MR SHAVIN:   Save that if the matter is remitted to be dealt with in the Federal Court, it, by that act, gives it an imprimatur of being a proper matter to be remitted, in our submission.

HIS HONOUR:   No, it does not.  I will say so.

MR SHAVIN:   In our submission, your Honour, if this matter is remitted to be dealt with by the Federal Court this issue is going to have to be dealt with as a preliminary issue in any event, which means it will end up back here.

HIS HONOUR:   It may end up back here.

MR SHAVIN:   Subject to leave.

HIS HONOUR:   Subject to the unsuccessful party being convinced by the decision that is reached.  Courts do not look favourably on that sort of description of litigation actually.

MR SHAVIN:   I appreciate that, your Honour.  The position that we are in here is that the plaintiff has chosen to issue this type of a proceeding and has attracted the original jurisdiction of this Court.  We say that, having attracted the original jurisdiction of this Court in a matter which we say ought not to be entertained at all, it is appropriate for this Court to confront that issue and deal with it.  It is a short point.  And if that is done, the matter comes to an end; if we are wrong, then the matter gets remitted.

HIS HONOUR:   And there would then be an appeal, from what you have said, from anything I decided to a Full Court of this Court which really has other matters to attend to.

MR SHAVIN:   It does have other matters to attend to, though this is a matter involving the Commonwealth and a .....of the Commonwealth in a matter which falls, we say, fairly within principles that have been established by this Court.  Effectively what is being sought ‑ ‑ ‑

HIS HONOUR:   That should make it easy to be dealt with then.  If it is already covered by authority of this Court, that should make the Federal Court’s task quite simple.

MR SHAVIN:   It should, your Honour, though, in our respectful submission, the matter being before the Court today, this matter can be disposed of today.

HIS HONOUR:   Would it not have been within Mr Macfarlan’s capacity, if his client had wished to do so, to institute this proceeding in any Supreme Court?

MR SHAVIN:   Yes.

HIS HONOUR:   Is that not a factor I have to take into account?  It is not a case that falls within section 38 of the Judiciary Act.

MR SHAVIN:   No.  And, indeed, there have been earlier proceedings in relation to another matter that were issued in the Supreme Court of Victoria in relation to mobiles.

HIS HONOUR: Yes. It has only come here because of an accident, that the Parliament delays in giving the Federal Court an adequate jurisdiction under section 75(iii).

MR SHAVIN:   One could take that, or it comes here because it has been issued quite prematurely.

HIS HONOUR:   Yes, you may be right about that.  I have no view about that at all.

MR SHAVIN:   But it has been issued here.

HIS HONOUR:   Yes.  Your argument on the declaration is, what, that it is premature?

MR SHAVIN:   That it is premature, that it is hypothetical, that what is happening is that Telstra is coming to the Court and saying, “Please give us an advisory opinion on our position on a whole range of markets by undertaking a lengthy roving commission of inquiry into the supply of international telecommunication services so that we can take that advisory opinion and, assuming that the facts have not changed, given that the market is in the state of transition, we can then apply it in the conduct of our business”.  Whereas what they could have done is filed a tariff; if the tariff is rejected there are procedures under the Administrative Decisions (Judicial Review) Act for judicial review in the Federal Court where there is an actual matter, an actual tariff, actual markets upon which the court can adjudicate.

What they are seeking to do is, in effect, to appeal the report, and Toowoomba Foundry says they cannot do that where there is no actual right infringed or threatened.  So they are taking a procedure which we say means that there is a hypothetical question.  It may have a commercial significance to them ‑ ‑ ‑

HIS HONOUR:   Yes, I understand that.  You say this is just, at best, a first step to enliven what could be a chain of events that leads to some determinations being made.

MR SHAVIN:   Oh yes, and ‑ ‑ ‑

HIS HONOUR:   If that determination were made, Mr Shavin, can you assist me on that: would the Administrative Appeals Tribunal then be involved?

MR SHAVIN:   It depends under what section, and almost every section that I can ‑ ‑ ‑

HIS HONOUR:   There seem to be a list of sections.

MR SHAVIN:   Yes.  Under section 238A, which is where the determination is most likely to be made, it does not go to the Administrative Appeals Tribunal, it goes under the ADJR.

HIS HONOUR:   That is what I was wondering, yes.

MR SHAVIN:   There is specific provision in section 397, I think it is ‑ ‑ ‑

HIS HONOUR:   There is a list of sections.

MR SHAVIN:   A list of sections, and section 238A does not fall within that list.

HIS HONOUR:   That is what puzzled me.  So it would be the AD(JR) Act, if that is so.

MR SHAVIN:   In which case, if it is said that in our report we have taken into account matters that we should not, or we failed to take into account matters that we ought, or we have applied some wrong principle, those are matters that can all be dealt with under section 5 of that Act and they can be properly ventilated when there are certain facts.  But if your Honour has had a look at the first exhibit to Mr Tuckwell’s affidavit, your Honour will see that there are a number of circumstances in which the review can be reopened and there is absolutely no certainty that between now and any tariff being filed, that one of those events will not have occurred. 

There is no certainty that section 238A will be invoked in relation to any tariff because the mere fact that there is a dominant carrier does not necessarily mean that there is a relevant anti-competitive effect under section 238A(14).  There is an inhibition under section 183 and section 197 as to whether or not Telstra prices off tariff but that is where the advisory opinion comes into account.  Telstra is really saying, “We are not sure about the advice we are getting from our legal advisers, eminent and respected as they are.  What we would like to do is we would like the Court to give as an advisory opinion so that we know how to act because we are scared that because our legal advisers have a different view to AUSTEL that AUSTEL will do something to us.” 

Now, in our respectful submission, that is the very thing this Court ought not to entertain and it ought not to entertain it at the first opportunity it comes before the Court.

HIS HONOUR:   Yes.  What do you say about Hardiman’s Case which is put against you, I think, that is to say, that you are becoming too much an active participant in the arena?

MR SHAVIN:   Hardiman’s Case was going to be authority on which we were principally going to rely because we were joined as the sole respondent and what these proceedings were designed to do was to place us in the position of a protagonist which would be completely destructive of our role as a regulator because, in effect, we would have to have marshalled all the evidence from the industry against Telstra whilst, at the same time, seeking to adjudicate on rival submissions from those industry participants we were marshalling and Telstra in relation to the day-to-day conduct of the industry.

HIS HONOUR:   Yes, I understand that.  That is obviated to some extent by the - - -

MR SHAVIN:   By the application by Optus because although we are the first defendant we would seek, obviously, in the conduct to be heard second and to take a back seat and watch the giants fight.

HIS HONOUR:   All right.  Perhaps I should ask Mr Gageler what his attitude is to your motion for dismissal.

MR SHAVIN:   If your Honour pleases.

MR GAGELER:   Your Honour, I support Mr Shavin’s motion for dismissal and I am prepared to argue it today.  I adopt what he has said in relation to the arguments which would be put.  I have a slightly different slant on the matter and it is this:  in substance, what Telstra is attempting to do by obtaining the declaration which it seeks is to have the Court determine judicially what the Parliament has left to the administrative body, AUSTEL, to determine administratively and there are various ways in which the question of Telstra’s dominance can impact upon the performance of AUSTEL’s functions.  One way is that AUSTEL may disallow a tariff by Telstra because it does not comply with section 183.  That depends, under section 191 of the Act, upon AUSTEL “forming an opinion”.  Those are the words of the Act.

Another way which the issue could arise would be AUSTEL conducting an inquiry and then, under section 343, making a direction where it is “satisfied” - and that is the word used in the Act - that there has been a breach of the Act, and it can arise in various ways.  But, your Honour, all of those matters are matters for judicial review and if there is to be a review of AUSTEL’s determination of dominance upon the part of Telstra, it would be upon judicial review grounds, Wednesbury unreasonableness, not the parties coming along to the Court and having what is, in effect, a trade practices market dominance case which, as has been said, would involve an extensive factual inquiry.  It is just not for the Court, your Honour.

HIS HONOUR:   But, of course, Mr Macfarlan says that, in the meantime, you get the commercial advantage and he gets the commercial detriment, in a broad sense, of bruiting abroad, to use that expression, of Mr Shavin’s client’s preliminary position paper, to call it that.

MR GAGELER:   There is no detriment, your Honour, until such time as AUSTEL chooses to exercise one of its statutory powers.  At that time, the exercise of power - - -

HIS HONOUR:   I know that but that is in the legal sense.  He says one has to be a bit more practical.

MR GAGELER:   But being entirely practical about it, your Honour, the end of the day is the exercise of an administrative discretion or an administrative function which turns upon AUSTEL’s assessment.  It is not something that turns upon the underlying facts as may be declared by a court.  But taking that a little further, your Honour - - -

HIS HONOUR:   Do you say AUSTEL’s determination is not justiciable?

MR GAGELER:   No, I do not say that.  I am saying that it is an administrative determination which is able to be attacked on the ordinary judicial review grounds.

HIS HONOUR:   No, I mean this preliminary determination.  You say that is not justiciable?  In other words, there is nothing to have a declaration about?

MR GAGELER:   It is not a decision under the AD(JR) Act.

HIS HONOUR:   No.

MR GAGELER:   There may be an argument that it is conduct under section 6 of that Act.

HIS HONOUR:   No, I mean justiciable in the general sense that it cannot constitute a matter within the meaning of section 75(iii) and therefore cannot generate a declaratory order.

MR GAGELER:   Yes.

HIS HONOUR:   You have to say that, do you not?

MR GAGELER:   No, I do not because even if there is the jurisdiction in the sense that there is a matter, the making of a declaratory order and, indeed, embarking upon the process that may lead to making a declaratory order is a matter within the discretion of the Court.

HIS HONOUR:   Yes, I understand that.  So, it becomes a discretionary matter.

MR GAGELER:   That is the way in which I wish to put it.

HIS HONOUR:   All right.  Thank you.  Yes, Mr Macfarlan.

MR MACFARLAN:   There is a lot of material there to reply to, your Honour.  If the matter is to be agitated here, we would like to read the evidence, if we could, and then deal with the arguments seriatim.

HIS HONOUR:   I really want to hear what you say about remitter in response to what has been said as to keeping it here.

MR MACFARLAN:   Yes.  Your Honour, we have no particular problem with the motion or the summons being dealt with here.  We are going to have to deal with it at some stage and if your Honour is disposed to deal with it, then we are content to do so.

HIS HONOUR:   I am not.

MR MACFARLAN:   The matter of venue, we would suggest, your Honour, is really one that should be dealt with in the Federal Court and it may be dealt with in the sort of manner that your Honour mentioned, that there may be a bit of this and a bit of that, depending on where the witnesses happen to be.  But so far as the stay application is concerned, we are prepared to deal with it now, if your Honour wishes.

HIS HONOUR:   On this question of the stay application, how would counsel be placed, say, next Friday, if the matter were remitted to the Federal Court with an indication of urgency?  How would counsel be placed 9.30 next Friday?

MR MACFARLAN:   I could not immediately tell your Honour, I think.

HIS HONOUR:   It may be that the Federal Court could not hear it at 9.30 next Friday but at least they would mark out the parameters of what was to happen.

MR MACFARLAN:   On that basis, your Honour, we would be happy with that course because it is an urgent matter as your Honour has no doubt appreciated.

HIS HONOUR:   Yes.  I grasped that.  Now, I realise you want it dealt with immediately, Mr Shavin, but if that were not to be so would there be any difficulty next Friday?

MR SHAVIN:   Yes, I am in a four-week trial in Melbourne in the Federal Court but next Friday is a day upon which the trial judge has indicated he will not be able to sit.

HIS HONOUR:   That will be convenient then.

MR SHAVIN:   So, it would work, yes.

HIS HONOUR:   All right.  What do you say, Mr Macfarlan, on this question of prematurity for declaratory relief; that as a matter of discretion you will not get anywhere in the Federal Court, even if it is not an abuse of process, which is a rather strong term.  If it is not that, at least as a matter of discretion, you should not get any declaratory relief at this stage.

MR MACFARLAN:   Your Honour, we say it is not premature.  The findings have had an immediate and substantial effect on Telstra’s conduct.  It has justifiably chosen to tailor its activities to conform with the finding of AUSTEL.  It has at least done that thus far and that it has done so is consistent with AUSTEL’s apparent understanding because there is evidence that AUSTEL has expected us to comply with the finding made and, for that reason, apparently has not issued any formal direction.  If there had been an issue of a formal direction then the question of prematurity would have disappeared.

Now, there is substantial authority, we would submit, that a party is entitled to seek from the Court a declaration as to whether activities that he desires to engage in in a real and substantial way are lawful ones and Pharmaceutical Society v Dickson is one such case and Sterling Nicholas.  Optus’s affidavit itself indicates that Optus is gaining a very substantial competitive advantage in the market-place at this very minute by reason of restrictions in fact on Telstra’s activities.

HIS HONOUR:   Yes.  There is another matter I should have asked you which I forgot to ask you.  Is this statute being administered on the basis that the Trade Practices Act does not apply or is it being administered in accordance with that Austereo Case 41 FCR 1, which I was a party to in the Federal Court.

MR MACFARLAN:   I might have to ask Mr Shavin to answer that.

MR SHAVIN:   No, we conduct ourselves in accordance with Austereo, your Honour.  The position on dominance is complicated because the question of market definition is related back to the Trade Practices Act as it was before the January 1992 amendments and the position is further complicated because the competition tests that are set out in the Telecommunications Act are consciously different to section 45 of the Trade Practices Act and when you have a market in transition, the concepts of dominance under the old section 50 do not marry perfectly.  So, you have an unhappy marriage.  The Telecommunications Act is not the greatest example of parliamentary drafting skill that the Court will ever encounter, your Honour.

HIS HONOUR:   I think I should amend the second order I made on your summons, Mr Gageler, so that it says:

Costs of that summons be costs in the action but according to the scale applicable to proceedings in this Court.

MR GAGELER:   If your Honour pleases.

HIS HONOUR:   This matter was commenced in this Court as an action in which jurisdiction is attracted for declaratory relief pursuant to section 75(iii) of the Constitution. It is common ground, I think, that the nature of the relief presently sought is such that the jurisdiction of the Federal Court under section 39B of the Judiciary Act and under the Administrative Decisions (Judicial Review) Act 1977 would not yet be engaged. However, it also appears that the matter might have been commenced in any State Supreme Court pursuant to the general investment of jurisdiction in those courts by section 39 of the Judiciary Act.

I have already made orders without opposition to the joinder of Optus Networks Pty Limited as the second defendant.  There is, however, a dispute firstly as to remitter from this Court under section 44 of the Judiciary Act and there is a summons by the first defendant seeking the striking out or dismissal of the proceeding.  The grounds for that course are said to be that there is an abuse of process or a lack of a justiciable issue.

Having heard what counsel for the three parties have said about the matter, I am clearly of the view that this is an appropriate case for an order under section 44 for remitter and that included in that remitter should be the application I have mentioned by the first defendant which I will describe as a strike out application.  In truth, the strike out application does raise some significant threshold questions as to the nature of this proceeding.  It should, if possible, be dealt with as soon as possible in the Federal Court. 

The question then arises as to which registry of the Federal Court would be the appropriate one to receive this litigation.  In approaching that question, it is to be borne in mind that the Federal Court, pursuant to its statute, may sit at any place in the Commonwealth, if need be, and, in particular, remission to Sydney or Melbourne would not exclude the possibility of the Federal Court, in its wisdom and upon application, deciding to sit as to part of the cause in one city and part in the other.  That would entirely be a matter for the Federal Court.  The practical point, though, is that there is not some irrevocable and final decision necessarily involved in the selection of the destination for the remitter.

The plaintiff and the second defendant appear to have their relevant operations significantly based in Sydney, while the first defendant is based in Melbourne.  The joinder of the second defendant has the consequence that if the case is to involve an evidentiary dispute, the witnesses will be marshalled, I suspect, primarily on one side by the plaintiff, and on the other, by the second defendant.  That is a significant matter, I think, in this sort of case.  In all the circumstances, in my opinion the appropriate destination for the remitter would be the New South Wales District Registry of the Federal Court of Australia.

Accordingly, in addition to the two orders that I earlier made, I make the following order: 

Upon the summons by the plaintiff filed 31 August, I make orders in terms of paragraphs (1.) to (5.) thereof and I note that -

(a) the remitter includes the application by the first defendant for the relief in paragraphs (1.), (2.), (4.) and (5.) -

I have left out (3.), Mr Shavin, because I think that is overcome by the - - -

MR SHAVIN:   It is, your Honour.

HIS HONOUR:    

of its summons filed 12 September 1995; and

(b) the action should, if otherwise practicable, be listed in the Federal Court of Australia in Sydney, for directions on 29 September 1995, at 9.30 am.

MR MACFARLAN:   The parties or, at least, the plaintiff and the first defendant are desirous that the motion be heard, if possible, in the Federal Court next Friday.  I know it is not a matter for your Honour but perhaps if that could be noted so that we can make appropriate application.

HIS HONOUR:   Yes.  I will say:

for directions on 29 September 1995 at 9.30 am for an early hearing of then outstanding interlocutory matters.

That is the best I can do for you, Mr Macfarlan.

MR MACFARLAN:   Your Honour, on that day, if possible.

HIS HONOUR:   No, Mr Macfarlan.

MR MACFARLAN:   Your Honour, we have the two sworn affidavits.  It is convenient to - - -

HIS HONOUR:   Yes, they should be filed in Court so they can accompany the file downstairs.

MR MACFARLAN:   Of Mr Lee and Mr Hambleton.

HIS HONOUR:   Yes, I will get Mr McCluskey to speak to Mr Dawson this morning about the matter.  The affidavit of Stuart Alan Newton Lee, affirmed 20 September and of Denis Victor Hambleton, sworn 20 September, may both be filed in Court. 

I will read the orders again:

(1)  Upon the summons filed by Optus Networks Pty Limited on 18 September 1995, order that that corporation be added as second defendant in the action.

(2)  Costs of that summons be costs in the action, but according to the scale appropriate to proceedings in this Court.

(3)  Upon the summons by the plaintiff filed 31 August 1995, orders in terms of paragraphs (1.) to (5.) of that summons and note that:

(a) the remitter includes the application by the first defendant for the relief in paragraphs (1.), (2.), (4.) and (5.) of its summons filed 12 September 1995, and

(b) the action should, if otherwise practicable, be listed in the Federal Court of Australia in Sydney, for directions on 29 September at 9.30 am for an early hearing of outstanding interlocutory matters.

MR MACFARLAN:   If your Honour pleases.

MR SHAVIN:   If your Honour pleases.

AT 10.14 AM THE MATTER WAS CONCLUDED