Uelese v Minister for Immigration and Citizenship and Anor

[2014] HCATrans 239

[2014] HCATrans 239

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S160 of 2013

B e t w e e n -

PETER UELESE

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 OCTOBER 2014, AT 1.21 PM

Copyright in the High Court of Australia

MR N.J. OWENS:   If the Court pleases, I appear with my friend, MR D.P. HUME, for the applicant.  (instructed by the applicant)

MR G.T. JOHNSON, SC:   May it please your Honours, I appear for the first respondent.  Could I also say to your Honours that the name of the first respondent has changed since the commencement of litigation, and I would ask that that be amended to the Minister for Immigration and Border Protection.  (instructed by Australian Government Solicitor)

GAGELER J:   That will be done.  Yes, Mr Owens.

MR OWENS: If the Court pleases. The proper construction of section 500(6H) of the Migration Act is a question that has generated, subsequently to the filing of written submissions in this application, if not quite conflict, then at the very least considerable tension at the level of the Full Federal Court.  Your Honours will find the text of the section at the top of page 59 of the application book, and also behind tab 1 of the folder of authorities.  There are two controversies regarding its construction, and a grant of special leave in this case would enable this Court to resolve both of them.  The first is ‑ ‑ ‑

KEANE J:   But is what you have just said to us an indication that there are other potential vehicles out there for the agitation of the question of construction?

MR OWENS:   There are other cases that have raised the same question of construction, although in relation to a different factual situation, and the question of construction has been resolved in a way that did not need to engage with the result in this case.  The case is behind tab 4 of the bundle of authorities.  I am talking about the case of Jagroop v Minister for Immigration.

GAGELER J:   Is it the same issue, or is it a different issue?

MR OWENS: The question there was whether the prohibition in section 500(6H) applies to evidence in what might be described as strictly in reply to a case raised by the Minister. It did not engage precisely with the question which is, in this case, namely does the prohibition apply to evidence elicited in cross‑examination by the Minister?

GAGELER J:   What was the answer?

MR OWENS:   The answer in Jagroop; the court said that the prohibition did not apply to evidence in reply.  The Full Court there – perhaps I will take your Honours to it.  I should say actually, in relation to the second point of construction, the precise point here did arise, namely when is the two‑day notice period calculated by reference to, is it the first day of the hearing or is it any day of the hearing?  That point was considered, if your Honours turn to paragraph 79, the last sentence in that paragraph.  Your Honours will see that they observe, similar to Justice Perry in a case called Paerau, which was also handed down after the submissions in this case were finalised, that they:

have some doubt about the correctness of this aspect of the decision in Goldie –

that is the decision in Goldie saying that the entitlement to rely on information crystallises on the first day of the hearing.  In both Paerau and in Jagroop, the court either did not need to or held that it could not consider the correctness of Goldie because no application had been made and no Bench of five had been convened and so on, but there are now four judges - all of the judges in Jagroop, in addition to Justice Perry, who have said that they have real doubts about the correctness of Goldie in that respect.

KEANE J:   Mr Owens, I note that at paragraph 87 of the decision in Jagroop, the decision of the Full Court in this case is put to one side.

MR OWENS:   That is right, put to one side.  The way that 87 comes into it, your Honours will see the first question the Full Court here asked itself was “Can we even consider this submission, or is it foreclosed to us by reason of binding authority of other Full Courts?”  In paragraph 84 on the previous page, your Honours will see that the Full Court held there that:

In our view, subject to one possible exception –

and that possible exception was this case, they said existing authority did not strictly foreclose them considering this submission.  Then in 86, they say the possible exception mentioned is the decision in this case, and in the last sentence of that paragraph, your Honours will see:

On one view therefore, Uelese is a case concerning the use of information raised for the first time during the cross‑examination of an applicant’s witness –

and we say of course it is.  That is expressly what it deals with.  In paragraph 87 then, there are identified three matters – they are not said to distinguish Uelese.  They are matters that may be noted about it.  My submission is that none of those three matters are in fact matters that are relevant to the construction of the statute, that is, none of those matters could be said to identify issues which identify a point of difference between this case and Jagroop which is actually relevant to some way that one can construe the statute.

GAGELER J:   Are you saying there is a conflict between the authorities, even though the later authority does not acknowledge that conflict?

MR OWENS:   My submission is the later authority - it refers to Uelese as a possible exception.  In my submission, it acknowledges the decision in this case as involving a tension with the conclusion in this case, but ultimately it says we can decide Jagroop on a narrower ground.  As I say, the narrower ground is to exclude from the prohibition evidence that is strictly in reply to the Minister’s case. 

However, their Honours in Jagroop were at least conscious of the issue in this case.  If your Honours turn back to paragraph 80, there and the following paragraphs of the Full Court recorded the Minister’s submission in Jagroop and the effect of it and your Honours will see in paragraph 80 it says the subsection:

should be regarded as applying to every item of information presented and to every document submitted . . . irrespective of the circumstances –

That is certainly, at least, how we would read the Full Court decision in this case.  Paragraph 81 –

Counsel [for the Minister] did not shrink from the logical consequences of acceptance of this submission.   . . . an applicant could not present information or a document in answer –

Paragraph 82 really does engage quite squarely with the circumstances here –

Counsel also accepted that acceptance of his submission may mean that the AAT could have no, or little, regard to the answers of an applicant, or an applicant’s witnesses, in cross‑examination unless the requisite prior notice of those answers had been given.  If this be correct, the position for which the Minister contended has the potential to render redundant, or at least substantially reduce the utility of, oral evidence on behalf of the applicant in a hearing in the AAT.

We say that is right, because if the decision then of the Full Court in this case is right, cross‑examination by the Minister on a topic outside the matters notified by the applicant really becomes a risk‑free forensic endeavour.  Answers that are of assistance to an applicant must be ignored; answers that are helpful to the Minister are taken into account.  As I say, the facts in Jagroop did not require the Full Court there to engage precisely with the question “what happens when the evidence is probably not able to be characterised as a case in reply?” and I do not suggest that here, the existence of the two other children could sensibly be regarded as a case in reply to the Minister ‑ ‑ ‑

KEANE J:   That is the problem, is it not?  When you look at paragraph 87, the first point that is made there, whether that is a sound ground of distinction as a matter of the law of stare decisis for the purposes of the Full Court, it is certainly a matter that has to be of concern to us, I think, in terms of appropriateness of the vehicle.  Given that your client’s case was – and I take it advisedly – presented as a case that he had three children, and presumably put on that footing because there was a stable relationship with their mother and the fact that the existence of the other children came out as that case kind of unravelled, but nevertheless, that was the case that was being presented, does that not make this an inappropriate vehicle for the agitation of this point when there are other vehicles that are plainly around?

MR OWENS:   The first point to note is I am not aware – my friend could no doubt tell us whether there is to be a – the Minister lost Jagroop, so my friend may be able to tell us whether there is an application for leave from that decision, but even if that is right, the construction question as it applies to – my submission would be if there are other vehicles that are coming up soon, it would be appropriate to take this case as providing a different set of facts against which the relevant construction needs to be tested because, as I say, the conclusion of the Full Court ‑ ‑ ‑

KEANE J:   But in terms of notions of procedural justice, the way in which this point rises out of the unravelling of the case that was being deliberately propounded makes it less than an attractive vehicle.

MR OWENS:   I can tell your Honour from the Bar table, my instructions would suggest that the level of deliberate forensic thought that went into this may not be as high as your Honour has suggested, but I do not rely on that.

GAGELER J:   There was legal representation before the Tribunal?

MR OWENS:   There was legal representation at the Tribunal - again, forgive me for telling the Court this – I am told that the first occasion upon which my client met the lawyer was the day of the hearing, but he was represented at the hearing, that is right.  The other matter, though, that needs to be taken into account in answer to your Honour Justice Keane’s point to me is that this question needs to be considered in the context of the mandatory requirement that the Tribunal take into account the best interests of the children.  Whatever procedural consequences would ordinarily be visited upon an applicant who chooses to present their case in a particular way ‑ ‑ ‑

KEANE J:   But a Tribunal can only take into account the best interests of the children of whom it is informed.

MR OWENS:   Quite.

KEANE J:   It lies rather ill in the mouth of an applicant who does not indicate the existence of children to say that the Tribunal must take into account the interests of children whose existence has been suppressed.

MR OWENS:   That is right, except that if one is talking about forensic decisions, it was the forensic decision of the Minister to ask the question that brought this issue to light.  Of course, if that question had not been asked, the applicant would have absolutely no basis for saying the best interests of these children should be considered.  But what happened was, the applicant having put forward his positive case, he and his witnesses were cross‑examined and it was by reason of the Minister’s deliberate forensic decision to ask particular questions which elicited the evidence as to the existence of these children.

The first question is, does section 500(6H) prohibit the Tribunal from having regard to that information when it was not the applicant who put the information there; the Minister put the information there, the Tribunal is required to take into account the best interests of those children, and then there is the question what ought the Tribunal have done, knowing now that these children existed?

In those circumstances, your Honour, it is my submission that however less attractive the applicant’s, if I can put it this way, merits or justice might be perceived by reason of the initial framing of his case, it does not provide an answer to the question that arises in this case, namely the construction of the statute, and it does not provide any reason why this case is not a suitable vehicle.

GAGELER J:   Except that the applicant sought in the appeal to the Federal Court, and would seek in an appeal to this Court, to rely upon a factual basis that was different from the factual basis he sought to rely on before the Tribunal; indeed, inconsistent with it.

MR OWENS:   He would not be relying in any relevant sense.  He would be relying on information that was put before the Tribunal by the Minister.  In that sense, he says the fact that that information was put there meant that the Tribunal fell into jurisdictional error by deciding the case the way that it did.  I do not accept that it is an embarrassing forensic stance for the applicant to take, to say “I made choices; the Minister made other choices.  The consequence of the Minister’s choices is that this material was before the Tribunal; what ought it to have done?”

The existence of Jagroop, I call in aid of this application.  I say that it demonstrates that far from, as may have been the case when the written submissions were filed, there being a uniform and consistent body of authority, there is now recognised to be, certainly with regard to the adjournment question, real doubts about the correctness of Goldie and the cases applying it. 

Then also in relation to the new construction, if I could put it that way, that Jagroop has offered, which goes so far as to deal with reply evidence but does not address the other question which is the Minister reducing evidence and whether there is, as I say, the forensic “free kick” that the Minister gets by knowing that whatever cross‑examination is engaged in on his behalf can be used against the applicant, but not in support of the applicant.

GAGELER J:   That deals with your construction points, or at least raises the construction points?  Is there anything in the procedural fairness or unreasonableness points?

MR OWENS:   No.  I actually do not need those other points if it is accepted, as I think it is, that if there were an error of law in construing the section, that is a jurisdictional error.  The other errors really flow from that and they arise because the Tribunal erred in its construction of the statute.  I do not propose to say anything more about those in addition to what is in the written submissions.

GAGELER J:   Yes.

MR OWENS:   The only other point, can I just quickly make, about Jagroop is that the construction that the court in Jagroop adopted – and this is in paragraph 96 – was ultimately to say that to avoid the prohibition, one had to jump through two hoops, as it were.  The first is to say the evidence is evidence in reply; the second is to say the applicant could not have reasonably anticipated the need for that reply, presumably.  Again, I say that whatever the justice or the good sense of that qualification, it is one that we say finds no anchor in the statutory language.

Ultimately, my positive submission to your Honours is that when one focuses on the words “presented in support of the person’s case”, Jagroop focused on the words “in support of the person’s case” to say it does not include reply evidence.  The word “presented” is also important, and in my

submission, that means it applies only to evidence presented in the sense of “adduced by” a person.  It does not apply to evidence that is elicited by the Minister in cross‑examination.  I think if I was to say anything else, I would be repeating myself.

GAGELER J:   Thank you, Mr Owens.  Yes, Mr Johnson, obviously just on the construction point ‑ ‑ ‑

MR JOHNSON:   Yes, of course, thank you, your Honour.

GAGELER J:   ‑ ‑ ‑ and the appropriateness of this as a vehicle.

MR JOHNSON:   Yes, thank you, your Honour.  Your Honours, firstly, with respect to Jagroop, it did in fact deal with the question of whether or not section 500(6H) would also apply in relation to cross‑examination or answers in cross‑examination. If I could ask your Honours to go to paragraphs 96 and 97 – my friend has already referred to 96, but I think we need it to see 97 in context - it is on page 25 of the print that I have. At paragraph 96, their Honours say:

We conclude that the words “in support of the person’s case” in each of subss (6H) and (6J) are words of qualification.  They indicate that the prohibition relates only to information and documents presented as part of an applicant’s case‑in‑chief to support his or her own case, and not to information or documents which an applicant may wish to present in answer to the case presented by the Minister and which, at the least, the applicant could not reasonably have anticipated.

Those last words might be important as well.  Paragraph 97 –

On this understanding, subs (6H) would not preclude the AAT having regard to an applicant’s answers in cross‑examination unless prior notice of the content of those answers had been given.  Nor would subs (6H) preclude the AAT having regard to the answers of an applicant in re‑examination.  The subsections would have no application to information or documents presented by an applicant in answer to the Minister’s case, at least when the applicant could not reasonably have anticipated the evidence or issue raised by the Minister.

So on the law in the Federal Court as it now stands, section 500(6H) would not restrict use of information which falls in cross‑examination, and also ‑ ‑ ‑

GAGELER J:   I am sorry to be slow about this, but that is inconsistent with the holding in the present case?

MR JOHNSON:   In my submission, no, for a reason which I will come to, but more particularly, this particular court appears to have accommodated Uelese.  I might deal with the accommodation point first, and then come back to what we say the Full Court should be seen as having done, and what indeed this Court should see as having been done in the present case.

If your Honours go back to paragraph 87, which Justice Keane in particular has already referred to, their Honours there made three observations about Uelese which, in my respectful submission, were very pertinent, and indicate that their Honours did not see Uelese as being inconsistent with the result that they reached, including at paragraphs 96 and 97.  In paragraph 87, their Honours say:

However, three matters about the decision in Uelese may be noted.  First, the appellant had presented his case to the AAT on the basis that he had three children whose interests should be considered, and had not relied on his fatherhood of the two additional children at all.  Not only this, but the very nature of the case was such that it was reasonable to expect the applicant to have raised his fatherhood of two further children in his own case if it was to be relied upon as part of that case.  Secondly, the reasons of the Full Court do not suggest that, as a general principle, the AAT may not have regard to the answers of a witness in cross-examination, unless advance notice of the content of those answers had been given.  Thirdly, Uelese was a not a case of the Minister presenting evidence, or the AAT itself identifying material, of which the applicant had had no prior notice.  Accordingly, we do not regard Uelese as precluding consideration by this Court of the issue raised by the appellant on the present appeal.

Your Honours, what happened in this case was that questions were asked in effect seeking to clarify certain records from which it emerged during the hearing that the applicant had two additional children, that is, two children in addition to those upon whom he had relied in the documentation that had been submitted to date.  But the information in relation to those two children was extremely limited.

The Tribunal did take into account that information, but that information was not enough to develop into anything.  The Tribunal found that the information, such as it was, was not such that enabled it to say whether a decision to cancel was in the interests of the two children or not.  There are two paragraphs of the Tribunal’s reasons which are important for the purposes of understanding what the Tribunal did with this information.  Most important is paragraph 64, but if I could start with paragraph 4 – this is on application book page 3 – the Tribunal there records:

Mr Uelese has three children aged eleven, eight and six with Ms P Fatai whom he says he plans to marry in early 2013 if he is permitted to stay in Australia. Mr Uelese also has two other children aged approximately five and four. The information about the other two children came to light during cross-examination of Ms Fatai. The effect of s 500(6H) of the Migration Act 1958, which was acknowledged by Mr Uelese’s representative, was that the Applicant was prevented from eliciting oral evidence that may have supported his case in relation to these children as there was no reference to them in any written statements provided to the Minister at least two business days before the hearing.

Then in paragraph 64, the senior member says – I will start from the second sentence:

No evidence was able to be led regarding a further two children of another woman, aged approximately five and four whose names appeared as visitors in a Department of Corrective Services Inmate Profile Document because there was no information relating to them contained in a written statement provided to the Minister at least two business days before the hearing as required by section 500(6H) of the Act. I cannot take any consideration of their situation into account in coming to a decision in this matter, although I note that Ms Fatai said that she knew their mother, and that the children come to the Uelese home. Without any information about these children, other than a small amount of information that was provided by Ms Fatai under cross-examination, I am unable to determine whether or not visa cancellation would be in the best interests of these children.

So the Tribunal has taken into account the information which has emerged in cross‑examination. What it has done has been to see section 500(6H) as being a bar to the applicant then further developing that case by the introduction of still other evidence which had not been telegraphed at least two days prior to the hearing ‑ ‑ ‑

KEANE J:   In effect, to not allow him to make a different case.

MR JOHNSON:   That is right, exactly.  That is why the Full Court in those points in paragraph 87 did not see Uelese as being inconsistent with the result that it reached – when I am talking about the Full Court I am talking about the Full Court in Jagroop.

KEANE J:   In the application before the Tribunal, did his side make an application for an adjournment to allow these problems to be cured?

MR JOHNSON:   No.  There was no application ‑ ‑ ‑

KEANE J:   Was there an attempt to present a different case based on the fatherhood of the two extra children?

MR JOHNSON:   It would appear not, because the representative seemed to accept that section 500(6H) would so prevent. I take that, your Honour, from paragraph 4 of the Tribunal’s reasons, which we have already read.

KEANE J:   Okay.

MR JOHNSON:   There was no application for an adjournment.  There was no application for the Tribunal to go off and make its own further inquiries.  The representative conducted the hearing upon the basis that it could go no further, and the case was simply not one where the Tribunal failed to take into account information which it obtained under cross‑examination.  Rather, it was a case where the Tribunal, in effect, confined the applicant to the case already put.

KEANE J:   Well, and there being no application to put a different case?

MR JOHNSON:   That is right.

GAGELER J:   Then the Full Court’s judgment, of course, is what we are concerned with ultimately.

MR JOHNSON:   Yes.  The Full Court plainly accepted the correctness of Goldie, but the Full Court was also aware that this was a case where the Tribunal had used the information which was actually given as it had.  That is a part of the preface according to which the whole judgment has to be read.  In paragraph 13 on page 59, the Full Court set out paragraphs 4 and 64 of the AAT’s reasoning. 

I might also note that in the judgment of Justice Buchanan, which the Full Court summarised, but if your Honours go back to the judgment of Justice Buchanan for a moment, particularly at page 38 of the book, Justice Buchanan there in paragraphs 10, 11 and 12 sets out parts of three statements that had been provided to the AAT in which reference had been made to only three children.  At paragraph 13, his Honour referred to the remarks of:

Judge Ashford of the New South Wales District Court –

being told in a pre-sentence report –

that Mr Uelese had three children.

Paragraph 14 –

Despite these factual representations to the effect that Mr Uelese had three children whose interests required consideration, it emerged in the proceedings before the AAT that he also has two other children.

That is explained.  His Honour goes on –

This circumstance formed no part of Mr Uelese’s intended case before the AAT.  Information about the additional children emerged in the course of the cross‑examination of Mr Uelese and Ms Fatai –

Then his Honour refers to paragraph 4, and so on.  Even if one assumes – and for today’s purposes, I am happy to do this – that the later Full Court judgment is entirely correct, the later Full Court judgment does not mean that this judgment is wrong.  As to the suitability of the case as a vehicle, one is left with the difficulty that not only was there no application for any adjournment, not only did the Tribunal in fact take into account the material before it which was elicited in cross‑examination, but also the nature of what is under discussion, the fact that the applicant had another two children, was plainly something which he knew all along.  He had a reasonable opportunity to make such case about that as he wanted ‑ ‑ ‑

GAGELER J:   That would go to the procedural fairness and reasonableness aspects rather than the construction point?

MR JOHNSON:   That is right.  But all of that also goes to whether it is a suitable vehicle.  That is the only reason I mention it now.  Your Honours, that is all we have to say.

GAGELER J:   Mr Owens.

MR OWENS:   It is, of course, the case that no application for an adjournment was made and no application was made to put a case involving the other two children.  That is, with respect, entirely understandable in light of the prevailing authority.  Even at the Full Federal Court level, Goldie would have made any such application hopeless, and it is ‑ ‑ ‑

KEANE J:   It would not have made an application for an adjournment hopeless.

MR OWENS:   It exactly would have, your Honour, because the entire reason why – I can take your Honours to the Full Court in this regard, page 66 of the application book, paragraph 33(b):

it was not open to the AAT to adjourn the hearing to enable the appellant –

and so on –

for the reasons given in Goldie –

That is the point in Goldie, that there are now all members of the Full Court in Jagroop saying they have real doubts about it, and Justice Perry.

KEANE J:   In any event, the appellant did not contest the submission. The appellant’s legal representative did not apply for the adjournment.

MR OWENS:   No.  Why would he, when the law as stated by the Full Court in Goldie says you cannot get it.  What is often done – the formal “I am preserving my position by formally submitting that this authority will need to be reconsidered by the Full Court of the Federal Court”, the fact that that was not done in the Tribunal should not be a reason telling against the suitability of this case for special leave.

The suggestion that the Tribunal in fact did take into account the existence of these children and the limited information before it is also, with respect, unable to be supported.  If your Honours have page 20 of the application book in paragraph 64, your Honours will see at about the middle of the paragraph:

I cannot take any consideration of their situation into account –

so one cannot read the last sentence of that paragraph divorced from the one that immediately preceded it, and in any event, for example, there are many – let me take your Honours to one, a few pages over at paragraph 80, your Honours will see the references to children are specifically to Ms Fatai’s children, not the other children.

None of this is surprising, of course.  The Full Court held that it would have been impermissible for the Tribunal to take into account even the existence of these children.  Your Honours see that in paragraph 33(a).  The effect of the Minister’s submission in this case and in Jagroop is that the Tribunal would have erred, had it taken that into account.  Even assuming that against me, assuming the Tribunal did take their existence into account, the only effect is that the Tribunal committed a different error, because there was no evidence before it of the existence of children and Direction 55 required it to make a determination as to their best interests.

The Paerau decision, which I am afraid your Honours do not have, says that, at least in the dissenting decision of Justice Barker – the other two

judges decided the case on slightly different bases – Justice Barker says that is enough.  When you know of the existence of a child, you must do the best you can with what you have.  You know the child exists.  In the absence of any other information, the Tribunal is entitled to rely on ordinary matters within its knowledge and common sense, and that would include that ordinarily, young children benefit from a relationship with their parents.  The failure of the Tribunal, assuming it did take the existence into account, which we say it did not, would just lead to a different error.

We also deal in the context of arguments that, in effect, the conduct of the hearing before the Tribunal disentitles us to put the arguments we now put.  We make the point in our reply, but of course these were public duties that the Tribunal had, including ‑ ‑ ‑

KEANE J:   Sure, but as Chief Justice Gleeson said in S395 v The Minister, these are public duties, the procedures are not adversarial; nevertheless, parties are held to the case they make.

MR OWENS:   Quite, and a very important factor here is, of course, there is more than just the parties involved here.  The direction makes clear, for very good and obvious reason, that the impact of these cancellation decisions has an effect on people other than the applicant and the Minister.  It affects in an obvious and direct way the minor children of the applicant, and that consideration if nothing else, in my submission, goes some way towards answering the sort of point that your Honour has just put to me.

GAGELER J:   Your point, as I understand it, is that what might practically have been done was to ask for an adjournment to present further evidence, but that would have been denied in the application of existing Full Court authority?

MR OWENS:   Must have been denied in application of Goldie; still would be denied because even though there is now real doubt about that decision expressed in Jagroop and by Justice Perry in Paerau, no Full Court has yet overturned it, so it still remains the law until a Bench of five, presumably, considers the question and decides it one way or another.

GAGELER J:   Yes, thank you, Mr Owens.

MR OWENS:   Thank you, your Honour.

GAGELER J:   We will adjourn for a moment to consider the course we will take in this matter.

AT 1.59 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.01 PM:

GAGELER J:   There will be a grant of special leave to appeal in this matter limited to the points of construction.  Mr Owens, if you look at the notice of appeal at pages 72 and 73, I think it is grounds 2, 4 and 7.

MR OWENS:   Yes.  I was going to say only 2 and 4, but I will take 7.

GAGELER J:   Well, let us go for 2 and 4.  There will be a grant of special leave to appeal limited to grounds 2 and 4.  Gentlemen, would this be a half‑day case?

MR OWENS:   At the most, yes.

MR JOHNSON:   Yes, your Honour.

GAGELER J:   Very well.  The parties should pick up from the Registrar the appropriate documentation related to the timetabling for an appeal.

MR OWENS:   If the Court pleases.

GAGELER J:   The Court will now adjourn to 10.15 am on Tuesday, 4 November in Canberra.

AT 2.03 PM THE MATTER WAS CONCLUDED