Torney, Ex parte - Re Justice Ellis

[2000] HCATrans 52

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne  No M9 of 2000

In the matter of –

An application for a Writ of Prohibition against THE HONOURABLE JUSTICE ELLIS of the Family Court of Australia

Respondent

Ex parte –

PRESIDENT TREVOR DONALD TORNEY

Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 FEBRUARY 2000, AT 3.30 PM

Copyright in the High Court of Australia

MR D.A. PERKINS:   If your Honour pleases, I appear for Mr Torney.  (instructed by Messrs Kuek & Associates)

I seek orders in the nature of prohibition in connection with the trial of several counts of contempt by scandalising which are currently being dealt with by his Honour.  I rely on the facts which are set out in an affidavit of Mr Torney sworn today. 

If I may, I wish to explain a difficulty that the prosecutor presently has.  That is this, that an order was made by his Honour Justice Ellis this morning declining to allow an adjournment to Mr Torney who, at the relevant time this morning, was not represented in the hearing before his Honour by counsel or solicitors.  The applicant has the difficulty that there have been applications made before his Honour Justice Ellis over a sitting period of several weeks and, at the present moment, the applicant Torney does not have a transcript of what occurred.  It is understood that the proceedings have been recorded but, despite applications made in that behalf almost on a daily basis, there is no transcript.  I say that not as criticism of the learned Judge but as an explanation of the circumstances in which the prosecutor now is.

The circumstances disclosed in the affidavit, your Honour – may I perhaps take your Honour through the affidavit.  I am not sure whether ‑ ‑ ‑

HIS HONOUR:   I have read a copy of what looks to be the draft of the affidavit of 24 February.  If it was sworn in the same form as the draft, then you may take it that I have read it.  I did not then have available to me one of the exhibits, I think exhibit C, which was the letter of withdrawal.

MR PERKINS:   Yes, your Honour.  Your Honour does have that now, may I inquire?

HIS HONOUR:   Yes.

MR PERKINS:   I am not sure if I said, your Honour, that the affidavit was sworn in the same form that your Honour has seen in draft.

HIS HONOUR:   Yes, thank you.

MR PERKINS:   The position which emerges from the affidavit is, in short compass, that the applicant has a case before the Family Court which depends for the most part on legal argument.  The affidavit sets out some of those matters and some of the relevant questions which, it is contended, arise in the circumstances referred to in the section 78B notice 2PT-B.  It would be on the basis of the questions referred to in paragraph 10 of that notice so moulded as to become statements of complaint as distinct from mere questions that the applicant would seek to base his grounds for the relief now sought.

HIS HONOUR:   Sorry, I do not follow that.  What are you saying, that these would become what, grounds for prohibition?

MR PERKINS:   Yes, your Honour.  It may be appropriate if I address the way that each of those grounds is put.  Perhaps before I address any of those, it is contended that there is a question as to whether the principles in Dietrich apply.  I might indicate that the Marshal for his part in the proceedings before his Honour Justice Ellis has urged the view that the proceedings are not strictly criminal in nature and, if I may say so with respect, has referred to some of the things that your Honour said in your Honour’s judgment in the recent matter of Colina and, with respect, that the present applicant is, of course, bound to approach the matter on the possibility that, with respect, that is indeed a correct analysis.

HIS HONOUR:   Let it be assumed for the purposes of debate that the proceedings which your client faces are criminal in nature.

MR PERKINS:   Yes, your Honour.

HIS HONOUR:   Let it be assumed further for the purposes of debate that they are proceedings of a kind to which Dietrich would apply.

MR PERKINS:   I am sorry, should or should not?

HIS HONOUR:   That they are proceedings of a kind to which Dietrich would apply.

MR PERKINS:   Yes, your Honour.

HIS HONOUR:   What do you say is the principle that is established by Dietrich?

MR PERKINS:   The principle that I say is established by Dietrich is that a fair trial cannot be had or, from the other perspective, given in the absence of counsel and that that unfairness ‑ ‑ ‑

HIS HONOUR:   No.  In the absence of counsel through no fault of the accused.  Not in the absence of counsel generally, but in the absence of counsel through no fault of the accused.  Is that not right?

MR PERKINS:   I would not be arguing that that is not correct, your Honour.

HIS HONOUR:   Yes.  Why is this a case in which Mr Torney will go unrepresented through no fault of his?

MR PERKINS:   Your Honour, for this reason – and I am conscious as I tell your Honour this that the most appropriate way to put this before the Court is by a transcript of what has happened and, as I would ask your Honour to appreciate, this application is brought in circumstances in which it is considered urgent to bring it.

The circumstances are these, your Honour.  The Marshal is represented by two counsel, both of Senior Counsel, and by the Australian Government Solicitor.  The representation for Mr Torney was representation which was through a firm of solicitors and single counsel. Now, it is submitted that that is not sufficient in itself to indicate disadvantage, but other things about what had occurred are sufficient and they are that the funding authority of this State, VLA, Victoria Legal Aid, has declined to allow to the solicitors adequate funding.  The way it would be put is this, that what has been allowed by Victoria Legal Aid constitutes under funding and that that in itself is contrary to what should be implied in Chapter III.  The matter - - -

HIS HONOUR:   But Dietrich is not a Chapter III case, is it?

MR PERKINS:   No, it is not, your Honour, and, hence, it may well be that it is, for one reason or another, not open to us to rely on Dietrich if, for example, the view is taken that, for all relevant purposes, as I think, your Honour, with respect, suggested, the proceeding is not a criminal proceeding, then that in itself would prevent the assumption on which Dietrich applies being applied.  But it is my submission that Chapter III does contain an implied constitutional guarantee of what, for want of a better expression, can be referred to as due process.  That requires that it be recognised that when the court itself is the prosecutor, the necessity for fairness is all the more.

HIS HONOUR:   Again, simply for the purpose of debate, let it be assumed that those submissions were well-founded – and I express no view on them – why, in face of paragraphs 15 and 16 of your client’s affidavit is it arguable that he has been denied what you describe as the implied constitutional guarantee of due process?  He was offered representation.  He said, “I want other representation”.  That was his choice.  That he was offered representation and he chooses not to take it, it is a matter for him, is it not?

MR PERKINS:   Well, with respect, no, it is not, your Honour.  In my submission, due process is not to be treated as something which allows legal services to be performed in a way which is under quality because of under funding.

HIS HONOUR:   Well, you speak of under funding and under quality, could you point to the paragraph or paragraphs of the affidavit that deal with that?

MR PERKINS:   Your Honour, the relevant part of it is paragraph 11.

HIS HONOUR:   “I am unable to put these matters adequately or at all on my own behalf.  I need proper assistance of properly instructed counsel”?

MR PERKINS:   Yes, your Honour.  It is submitted that given the nature of the matters that he discloses he wishes to have put which are, in essence, legal matters, as I have submitted, it could not be thought that he could obtain a fair hearing or due process in the circumstances where he is left to act for himself. 

HIS HONOUR:   But if that is his choice, as I must say to you that I read paragraphs 15 and 16 at the moment as suggesting at least, that on his being offered representation, he chose to decline it, preferring other arrangements which he himself could not make.

MR PERKINS:   Your Honour, in my submission, when there is a question as to whether particular funding arrangement is sufficient, it is necessary that ordinary ethical principles of lawyers be given effect to.  In my submission, there are established ethical rules that require, and do so for good reason, that a lawyer and, in particular, counsel who is involved in a part-heard, and I will use the expression “criminal case”, must be available for that case.  It does not, in my submission, only work one way.  In my submission, it would be impossible for other lawyers to brief counsel in circumstances where there is no transcript and in circumstances where there is no funding allowance for preparation.

HIS HONOUR:   Well, I know nothing of this, Mr Perkins.  You say there is no funding allowance for preparation.  What material have I that would disclose any fact bearing upon what you describe as under funding?

MR PERKINS:   Your Honour, there was an application which, for want of a better expression, could be called a Dietrich application made to the learned trial judge and it would be my desire to have that put before your Honour and I do not consider that in the circumstances I can do justice to the question that your Honour asked me, which I fully accept is an appropriate question central to the power that your Honour might exercise in this case, but, your Honour, without doing what has been foreshadowed, that is, what is referred to in paragraph 6 of the affidavit, I am almost at the point that I am trespassing on things that are outside the province of the affidavit which I readily concede are matters which have to be there for any decision, ultimately, to be made in my client’s favour on this application.

HIS HONOUR:   Let us for a moment leave aside whatever evidentiary difficulties there may be that we have just been discussing.  First, is there not recent authority in New South Wales touching on whether it is right for a judge considering a Dietrich application, if such it can be called, to have regard to the adequacy of the funds that are made available?  Did not the Court of Appeal look at that recently?

MR PERKINS:   Yes, I am aware of a case of Milat, which may be the one that your Honour had in mind, which was the subject of a decision by a judge at first instance and that decision was reversed by a Court of Appeal ‑ ‑ ‑

HIS HONOUR:   Holding what, do you know? What principle did the Court of Appeal adopt?

MR PERKINS:   Your Honour, I am not sure that I can answer that question fully.  As I have indicated, the trial judge’s analysis of what was needed was set aside on appeal.  The Court of Criminal Appeal, I think, said that the judge at first instance had proceeded on a wrong principle.  But I apologise for not being able to spell it out further than that, your Honour.

HIS HONOUR:   Second point - again leaving aside whatever evidentiary difficulties you may have - let it be assumed that there was a sufficient evidentiary base for the contingent of under funding, why is that a matter which leads to prohibition?

MR PERKINS:   The way it is put is this, your Honour, that the result of the application of a case of Gideon v Wainwright, which was a case referred to in Dietrich; it was a decision of the United States Supreme Court and it concededly, therefore, on the constitutional foundation not identical with ours, but the result of the application of the principles in Gideon have, in the United States, led to consideration of circumstances in which there is not sufficient funding for lawyers to carry out what are their proper, ethical duties.

HIS HONOUR:   That has come forward, has it not, in the context of federal habeas?  My question is directed to how or why is section 75(v) jurisdiction engaged against what on any view is an officer of the Commonwealth – a judge of the Family Court – in a case of this kind?  What is the basis for prohibition to go?

MR PERKINS:   The foundation of it is this, your Honour, that the would be prosecutor contends that there is a right of due process which, particularly in circumstances where a court is bringing the prosecution requires that properly and adequately funded defence be provided.

HIS HONOUR:   I understand that proposition is put, but what consequence does the denial of that asserted right have on the proceeding? It is not apparent to me that it leads to any want of jurisdiction, for example.

MR PERKINS:   No, it is not contended.

HIS HONOUR:   Then why does prohibition go?

MR PERKINS:   It goes, your Honour, because there is a failure of due process, or a failure of natural justice.  I am sorry, perhaps I should withdraw the concession that I made, if I may.  A want of natural justice is a circumstance which results, at least notionally, in jurisdiction being removed.  So to that extent I would say that it is a matter which goes to jurisdiction.   But I would say that it is open and it is proper to prohibit a proceeding which is continuing in circumstances where due process has been denied and, because of that, the proceeding is not properly to be regarded as a trial at all.

HIS HONOUR:   The majority in Dietrich said, did they not, that if the application for stay or adjournment was refused, and because of the lack of representation the trial was not fair, the conviction would have to be quashed?

MR PERKINS:   Yes.

HIS HONOUR:   In face of that, and in face also of the proposition that this Court would have a discretion whether to grant prerogative remedies to the Family Court, why should I grant order nisi for prohibition? There is no want of jurisdiction.  You say there is a failure in the way in which the jurisdiction is exercised for want of procedural fairness, due process, natural justice, some such expression, but why should I grant prohibition thus interrupting what by your submission, is a criminal proceeding, when, if the proceeding is unfair, after hearing all of the evidence that touches upon that, the conviction is set aside and quashed?

MR PERKINS:   It is submitted that the grant of prohibition is appropriate where it can be seen at this point of a hearing – putting aside the question whether it may be described as a quasi-criminal or civil proceeding – that the hearing is already one in which due process is not being accorded ‑ ‑ ‑

HIS HONOUR:   On the material presently available to me, Mr Perkins, I must tell you that I would have the most serious doubt about forming even the most prima facie view that that is arguable.  I simply do not know enough to base any such conclusion.

MR PERKINS:   I do not believe that I am in a position to be urging your Honour about that in the circumstances that I have conceded – I think more than conceded; I have told your Honour I consider myself to be in, apropos the transcript.  But there are other ‑ ‑ ‑

HIS HONOUR:   But presumably your client has been attending from day to day, presumably your client could depose to the broad outline of what has been occurring?

MR PERKINS:   Yes, your Honour.

HIS HONOUR:   He has been represented through most of it, has he not?

MR PERKINS:   He has been represented through virtually all of it, except for, I think, three days over the last week.

HIS HONOUR:   How long has the trial lasted?

MR PERKINS:   The trial commenced on 17 January.  There have been a number of preliminary matters considered.  It has not, by any means, gone continuously.  There have been a number of adjournments for a week or so within that time.

HIS HONOUR:   So, approximately, how many days has the trial proceeded?

MR PERKINS:   I thought it was more but I am told it is about five.  But, your Honour, it is certainly no less than five.  I would have thought it was a few days more than that, but I am sorry not to be - - -

HIS HONOUR:   Yes. 

MR PERKINS:   But when I say that, your Honour, can I qualify that because I accept that one of the things that might be said about this application is if it is truly right to say that this is a criminal trial, there are discretionary questions that arise as to the interruption of a criminal trial.  I can say this, your Honour, that at least until this morning there had been no taking of a plea.  I do not recall the name of the case but I recall appearing in a case before his Honour Justice Beach and it is a reported case in which his Honour held that the relevant time to consider for the application of that principle is the time at which the evidence starts.

I would have to concede, if that is the correct time, that the evidence has commenced this morning but it commenced in circumstances, your Honour, where it had been made clear on behalf of Mr Torney that there are a number of matters which he sought to put which were central to the entire trial process.  Some of them are dealt with in paragraph 10 of his affidavit.  Those matters raise the question of what the obligation on a person who – and I will use the word “prosecutes” but that may not be the appropriate word – a contempt matter, whether that person has the obligation of aiming proofs, for example, at the general issue which it is contended by the applicant that the Marshal does have, or whether it is open to the Marshal simply to put forward to the court certain very basic facts, for example, publication of documents, and either as a matter of design or circumstance failing to put forward matters which, it would be contended by Mr Torney, the Marshal also has the burden of putting forward, for example, the question of whether there is a bona fide exercise of political rights.  On the material that has been put forward to Mr Torney, the Marshal’s case simply fails to go into that at all, and it - - -

HIS HONOUR:   But as I understood it, the Marshal has not yet opened the case.  Is that right?

MR PERKINS:   As of today, your Honour, the Marshal has - - -

HIS HONOUR:   The notion of intervening in these proceedings just after the opening and before even close of the case, on the basis that the case may take a particular shape or form, is a rather startling proposition, is it not, Mr Perkins?

MR PERKINS:   With respect, your Honour, it may initially be but, your Honour, the principles that are to be applied and, in particular, I might refer to what appears in paragraph 10C), there are questions there which – sorry, I am putting that badly, your Honour - questions of what is the applicable law arise in the circumstances of a freedom of speech case as to what freedom of speech, putting it that way, implies about the right to speak concerning the judiciary or judges, and it is - - -

HIS HONOUR:   One thing this Court will not give you is an advisory opinion on that at the moment.

MR PERKINS:   I accept that, with respect, your Honour.

HIS HONOUR:   There seemed to be a lot of assertions of legal questions that arise that are utterly divorced from any notion of fact.  Why should this Court get into this at this stage, Mr Perkins?

MR PERKINS:   Because, your Honour, at the present time it is contended that the Family Court is denying Mr Torney due process and, in addition, by reason of some of the other matters which I would seek to take your Honour to in paragraph 10 of the 78B notice, is acting without jurisdiction.  I am not, by saying that, attempting to go back on the discussion that was had a few moments ago and I accept that your Honour has expressed some views about that but, your Honour, if I could pass away from the things set out in 10(a) through to (f), and I will leave those to one side because of the discussion that has just occurred, if I may, your Honour.

HIS HONOUR:   Yes.

MR PERKINS:   May I go to (i), your Honour.  It would be my submission that in the light of the decision in Colina and Torney a number of other questions have arisen and, in my submission, the implied power is not a power which authorises anybody but a Chapter III judge to proceed in respect of an alleged contempt, at least a contempt pursuant to the implied powers in Chapter III. 

It would be a different matter, it is submitted, if the proceeding is, indeed, brought pursuant to sections 35 or 112AP of the Family Law Act.  But that does not appear to be the case and so the enabling provisions of those sections cannot, it is contended, bring about an amendment of what would otherwise be the implied Chapter III powers.

The question in (j) I will not address your Honour on. I do not rely on that as part of what I am putting to your Honour. There are questions, it is contended – and this comes from – I see there are two “l”s. The two “l”s and “m”, that is to say, the last three subparagraphs of paragraph 10, it is contended that the existence of section 121 of the Family Law Act is a circumstance which is incompatible with a Chapter III court. 

Your Honour, there are many both old and not old cases which refer to the principle that justice may be reported and that there is a public interest in the free and unfettered discussion and publication of what happens in the courts. So it is contended that the provisions of section 121, if they are valid or, for that matter, if they are not, have the effect that the Family Court is not a court authorised by Chapter III of the Constitution. If one takes the view that section 121 of the Family Law Act is valid, then questions arise as to what then remains upon which to base an implication, that is to say, if there is an express section in the Family Law Act dealing with limitation or restriction of speech concerning the courts, why does the implied power – why should it be said that an implication arises under the provisions of Chapter III as to a mechanism which itself could be a further or a different fetter upon the ability to ‑ ‑ ‑

HIS HONOUR:   I still do not follow this, Mr Perkins. Section 121 is either valid or not valid.

MR PERKINS:   I accept that.

HIS HONOUR:   You would wish to contend, as I understand it, that 121 is invalid as representing some impermissible interference with speech?

MR PERKINS:   Yes.

HIS HONOUR:   Let it be assumed that it is invalid.  It would be severable, would it not?

MR PERKINS:   Your Honour, it would be severable in ‑ ‑ ‑

HIS HONOUR:   What then follows from the invalidity of 121 about the powers of the Family Court to punish for contempt?

MR PERKINS:   With respect, what I was seeking to do – I accept what your Honour has said, with respect – but the prosecutor’s contention is this, that if section 121 is valid, it affects the question whether any implication should be drawn from Chapter III because ‑ ‑ ‑

HIS HONOUR:   An implication of what?

MR PERKINS:   Any implication as to the power of the judiciary under Chapter III to affect or punish speech concerning the courts.  The proposition would be that where the Parliament has dealt with that matter, and on this hypothesis has dealt with it validly, that is the end of any restriction.  That is, it would be said, in effect, a Code which covers the entire circumstances in which speech concerning Family Court may be fettered or punished. 

HIS HONOUR:   So the proposition is that 121, if valid, when it prohibits publication of parties, witnesses and persons related to parties, represents a Code exhaustively describing the limit on freedom of speech about the court?

MR PERKINS:   That would be the contention, your Honour.  Now, it may perhaps be capable of being put not on such a strong basis, and that is to say ‑ ‑ ‑

HIS HONOUR:   But the premise from which that argument proceeds is that there is an implication in Chapter III or elsewhere of freedom to discuss matters affecting courts?

MR PERKINS:   Yes, that is said to be one matter  ‑ ‑ ‑

HIS HONOUR:   And that is either there or it is not there, is it not?  Either there is that freedom or there is not that freedom.  If there is the freedom, what does 121 have to do with it?

MR PERKINS:   The question is really as to the process of implication.  In some circumstances, courts have held that one does not use – one does not resort to the process of implication unless the thing sought to be implied is necessary and obvious, and there are some other matters.

HIS HONOUR:   But the relevant implication for which you would contend is a constitutional implication, true?

MR PERKINS:   Yes, your Honour.

HIS HONOUR:   What Parliament has later done under 121 can surely neither affect nor limit the breadth of that constitutional implication. Either there is a constitutional implication or there is not. What Parliament later does about it cannot surely take away that constitutional implication if it be found, can it? It sounds suspiciously like Parliament amending the Constitution.

MR PERKINS:   With respect, that is one of the ways in which we would desire to put it, that if one takes - - -

HIS HONOUR:   Well, let that be assumed, 121, at the moment, has nothing whatever to do with anything and is a complete red herring.  There is either a constitutional implication or there is not.

MR PERKINS:   That, if I may say so, with respect, is conceded:  there is or there is not.  But it is not conceded that the circumstances do not impinge on the question whether the implication is to be made.  It is contended that where there is an express legislative provision made within power, if it is, it is contended that that express provision is to be treated as covering the field.

HIS HONOUR:   It sounds to me like a very novel constitutional doctrine that you are advancing, Mr Perkins.

MR PERKINS:   If I may say so, with respect, it is a matter of what is involved in the process of implication.

HIS HONOUR:   Do I capture your submission this way?  The submission is that the express legislative provision made within power covers the field of operation of the constitutional implication about free speech with respect to courts?  Does that capture what you put?

MR PERKINS:   I think it captures it, your Honour, but I would like to put a little bit more in, if I may.  I would say that in circumstances where a court is the creature of a statute that it does not necessarily follow that because there are things implied in Chapter III the statute does not also affect what is to be implied.  It would be otherwise - - -

HIS HONOUR:   Implied in what?

MR PERKINS:   Implied in connection with the powers that arise under Chapter III.

HIS HONOUR:   Implied in what?  The Constitution?

MR PERKINS:   Yes, your Honour.

HIS HONOUR:   Yes, go on.

MR PERKINS:   It is submitted that because of the provisions of section 121 of the Family Law Act there are de facto resulting restrictions on the openness of the Family Court as a court to hear and determine the charge of contempt. It is contended that for a court to exercise the implied constitutional power to deal with matters of contempt, the court must be the court which reflects the requirements of Chapter III, and it is contended that in one particular respect, by virtue of the provisions of section 121, the Family Court is not such a court.

That would be consistent with a case decided by the Privy Council, Marsh v Marsh, in which the proceedings in a Canadian court hearing divorces were held, at lunchtime, in a library, I think it was, closed to members of the public.

HIS HONOUR:   Is it asserted that these proceedings are being conducted in closed court?  Where do I find that, in what material?

MR PERKINS:   It is asserted that until section 121 is determined not to apply, that section and its application and operation brings about a situation in which the court is closed, in which proceedings in the court cannot be fully made the subject of reporting or publicity.

HIS HONOUR:   They are two very separate propositions, Mr Perkins.  What is your proposition?  Are you saying these proceedings are being conducted in closed court or open court?

MR PERKINS:   Your Honour, it is submitted that the effect of section 121 is that the proceedings are being conducted in closed court.

HIS HONOUR:   Because no person may publish in the media the names of the parties to the proceedings or their witnesses or persons associated with them.   Can a member of the public enter the courtroom?

MR PERKINS:   Yes, I think that a member of the public can enter. It is not contended that there is, for example, a “private” sign on the door, as there may be in the case of a judge’s private chambers. But the effect that arises is said to be that the proceedings in such a court are not open to that degree of public scrutiny which is essential to the proper working of a Chapter III court. It is contended that it is not open to the Parliament so to mould a court as to prevent the free flow of information and ideas about what is occurring in that court. It is contended that the practical effect of section 121 is to censor what is printed and published about the affairs of the Family Court.

In my submission, that is a matter which goes to jurisdiction.   More particularly, it goes to jurisdiction, it is contended, in a case which is a quasi‑criminal case.   If I may, with respect, insist on my contention about that; I mean, of course, no disrespect to the views that have been expressed, that contempt is not necessarily a criminal case and may be a civil case.   I accept that those contentions are available.   But it is submitted that it is completely inappropriate and it is something which no court has jurisdiction to do, to try a person for an act which may be penalised in circumstances other than full public scrutiny.  

HIS HONOUR:   May a member of the press report the course of proceedings, the nature of the allegations made and the nature of the defences made so long as names are not given?

MR PERKINS:   Your Honour, I think the answer to that is, yes. But if I may say so, that would be rather overlooking the practical effect of so much of a fetter as is imposed by section 121. The practical effect is, in my submission, that these matters are not reported. Not only these matters, referring to my client’s present case, I mean other family law matters. That really is perhaps beside the point that I seek to make. I say that this is a case in which there are penal consequences for the client’s conduct if he is found guilty of any of this, and it is contended that a Chapter III court has to be a court exposed to full ambit of publicity. Accordingly, the contention is that the Family Court is not a court to be treated as entrusted with the implied powers of Chapter III judges in this respect.

HIS HONOUR:   How long do you expect to require to complete your submissions, Mr Perkins?

MR PERKINS:   Your Honour, I would not expect to take very much longer, but may I make this suggestion, your Honour:  what I would ask your Honour’s leave to do would be to provide your Honour with a draft order nisi with grounds and to provide that before 9.30 tomorrow morning.   If that were to meet your Honour’s convenience, I think if there were any other matters that I wished to put, I would put those in writing and I would put those with the draft, your Honour.   By proposing that, I am not resiling from the proposition that I have accepted, and that is that we do not have a transcript and I do not consider that that is satisfactory.

HIS HONOUR:   You and I have discussed what appear to me to be several important aspects in which the evidence may or may not be adequate.   Those are matters for you.

MR PERKINS:   If I may say so, I will consider that also overnight and if the proposal I put meets your Honour’s convenience, that is what I would seek to do.

HIS HONOUR:   I would propose to stand the matter over until 9.30 tomorrow, Mr Perkins.   Can I say this:  I do not have unlimited time.   I will, of course, give whatever time has to be given to the disposition of this matter, but the amount of time available is not unlimited.   There are other matters which require the attention of members of this Court.   Is there anything else you want to add tonight, Mr Perkins?

MR PERKINS:   No, your Honour.

HIS HONOUR:   I will adjourn the matter until 9.30 tomorrow.

AT 4.19 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 25 FEBRUARY 2000