University of Newcastle v Chopra & Anor; State Authorities Superannuation Board v Chopra

[1988] HCATrans 239

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S70 of 1988

B e t w e e n -

UNIVERSITY OF NEWCASTLE

Applicant

and

AUDREY LILLIAN CHOPRA

First Respondent

STATE AUTHORITIES SUPERANNUATION

BOARD

Second Respondent

Office of the Registry

Sydney No S72 of 1988

B e t w e e n -

STATE AUTHORITIES SUPERANNUATION

BOARD

Applicant

and

Chopra

WILSON J

DAWSON J

TOOHEY J

AUDREY LILLIAN CHOPRA

First Respondent

UNIVERSITY OF NEWCASTLE

Second Respondent

Applications for special

leave to appeal

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TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 OCTOBER 1988, AT 9.31 AM

Copyright in the High Court of Australia

MR K.R. HANDLEY, QC:  In the first of these motions, if the

Court pleases, I appear for the applicant, the

University of Newcastle, with my learned friend,

MR B.W. WALKER. (instructed by Minter Ellison)

MR D.M.J. BENNETT, QC:  And in the second motion, if

Your Honours please, I appear for the applicant

with my learned friend, MR I.L. JOHNSTON.

(instructed by S.W. Spencer)

SIR MAURICE BYERS, QC:  In each, if Your Honours please, I

appear with my learned friend, MR F.L. WRIGHT, for

the respondent. (instructed by Taylor & Scott)

WILSON J:  Is there any reason why the two should not be

heard together?

SIR MAURICE:	No, Your Honour.
WILSON J: Yes, Mr Handley?
MR HANDLEY:	Your Honours, this application raises two

questions of statutory interpretation~ The first

arises under the SUPERANNUATION ACT 1916 which is

the general statute in.New South Wales which governed

public service superannuation and superannuation in

related public sector institutions until the scheme

was closed by legislation in 1985. Of course, the scheme continues with respect to all employees who

1985. The second question of statutory interpretation	joined prior to the closure of the scheme in July
arises under the amending legislation of 1985 which closed the scheme to new entrants subject to gorne
transitional provisions.

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The facts of this case need not trouble the Court

for more than a moment or two but the fact is that

Mrs Chopra was aware of some aspects, at least, of her

obligation and entitlement to contribute. She declined

to contribute; she did not wish to contribute. The

University asked her to apply to regularize the position,

to seek an exemption; she declined to do so. They

raised the matter twice and then after that the

University allowed the situation to drift. At the end of her service a few months before retirement she

sought to get the benefits under this SUPERANNUATION

ACT that she would have got had she been contributing

for the previous 15 or so years.

In our submission, both questions are of public

importance because of the large number of employers

involved, that is, the State and various statutory

corporations and institutions of which the four

universities mentioned in our evidence are but some;

because of the large sums of money actually or potentially
at stake and, so far as the universities are concerned,
the four universities mentioned in our evidence,
the sums are substantial in themselves. The most
recent affidavit filed on behalf of the Superannuation

Board indicates a potential liability of over half a billion. And also because a large number of employees

or former employees have rights actually or potentially

at stake on these questions.

The first point is a short one and can be seen

from page 39 of the application book. There are two

definitions of "contributor" - mercifully short -

at the top of the page. Nothing turns on the

distinction. But the second and more relevant definition

commencing from 1969,. at line 7, is:

"Contributor" means employee who is contributing

under this Act -

and at the very bottom of the page the Court of Appeal's

conclusion reversing the primary judge is stated in the

last paragraph. The second line of the paragraph:

The words "who is contributing under this

Act" refer, not to what in fact is being done by way of contribution, but to the status of the employee under the Act.

Our submission, of course, is that the statute means what it says, no more and no less, and except on the

principle in ALICE IN WONDERLAND's case, there is no

justification for the construction adopted by the

Court of Appeal. They seem to have adopted a principle

of statutory construction borrowed from equitable jurisprudence but, in our submission, there is no

support for it in history or in authority. There is no

general principle that the court should treat or an

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Act treats that as done which ought to be done and where one has a simple straightforward definition

in the terms at page 39 where they are set out

there is no warrant, in our submission, for a

court to gloss the statute by substituting for the words "who is contributing" the words "who

_9µght to contribute".

In our submission, the suggestion which emerges

from the Court of Appeal judgment - it is perhaps

more than a suggestion: on one view, the ratio of the

Court of Appeal's judgment - is that there is a

principle of statutory interpretation potentially

of general application that treats as done that

which ought to be done pursuant to a statute and that,

in our submission, in itself, is a matter which would

warrant special leave.

Your Honours, I will not take Your Honours to

the provisions of the statute which create the duty,
both on the employee and on the employer. The duty

on the employee is at page 40, line 7:

11(1). Every employee shall ..... contribute -

and the duty on the employer is at page 41, line 15:

16(1). Every employer shall contribute - and the Court of Appeal - - -

WILSON J: There is a further provision, is there not,

somewhere: "Every employer shall deduct"?

MR HANDLEY:  Yes. I was simplifying without - there is no doubt

there was a statutory duty to deduct, Your Honour, and

there was a statutory duty to make a contribution in

that manner on the employee, as well, as I have

pointed out.

The Court of Appeal seem to have been impressed

· by the fact that unless they adopted a construction

that they did adopt, an employer who broke its

statutory duty without the request and consent of an

employee could deprive the employee of the benefits

that Parliament intended that he or she should enjoy

and the employee would have no remedy. That appears

on page 43, line 10

An employee would, on this construction,

lose her superannuation benefits if her

employer, through no fault of the employee,

failed to perform its statutory duty.

In our submission, that concern overlooked the fact

that on established principle an action for damages

for breach of statutory duty would lie on the part of

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any such employee who had not procured or consented

to or requested the employer's breach. In an analogous

area, we have some authority here which would support our proposition that an action for damages for breach

of statutory duty would lie at the suit of an employee

in the circumstances that I have mentioned but such an

action, in our submission, would not lie at the suit

-or would not have lain at the suit of Mrs Chopra.

If the Court is troubled about it I would hand up a
headnote of an English decision which encapsulates

the case law to date which is analogous in this area.

WILSON J:	I do not think you need trouble us with that.
MR HANDLEY:	Thank you, Your Honour.
The conclusion of the Court of Appeal, Your Honours,

is at page 45, in the middle paragraph, where

Mr Justice Mahoney says:

But, in my opinion, "contributing"

His Honour omits the word "is" -

in its ordinary meaning, may extend further.

It is wide enought to include a person .....

who is by the Act liable to make such payments.

And we have already made out submission that there is

no justification for glossing the statute in that way,

and in view of the public importance of the case in

terms of the amounts of money involved and the number

of persons and institutions involved, there is the

first special leave point, in our respectful submission.

We would just perhaps, before parting with the

point, say this: that if "contributor" had not been

defined, one might well have construed it in the same

way as one might construe the word "taxpayer" in the

statute or "ratepayer" in a statute or "voter" as

referring to entitlement or liaibility or status but

where the Parliament defines "contributor" as an

employee who is contributing, we submit, there just

is not any scope for that view.

DAWSON J: There was an amending Act when the scheme was

closed which dealt with "contributors" was there?

MR HANDLEY:  Yes, Your Honour, that is the second special leave

point which I am coming to in a moment.

DAWSON J:  I see.

MR HANDLEY: Perhaps I just should say that at the top of

page 50 Mr Justice Mahoney, in the first three lines

on the page, indicated that in the view of the Court
of Appeal no assistance was to be obtained on the

question of construction by an exhaustive resort to

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history or a detailed examination of the scheme and

wording of the Act. So, what is presented, in our

submission, is a very short point of construction
an~with it or associated with it, a very short point

of general principle.

Now, the second question, Your Honours, which we

--submit is a special leave point and is a point of

general public importance arises on the scheme closing

provisions which are set out at pages 25 to 27 in the

application book in the judgment of Mr Justice Yeldham.

But just before I go to that: the Court of Appeal did

not deal with this point at all and at page 50,

Mr Justice Mahoney said, at line 18:

There was a suggestion in argument, I

think, that if the plaintiff became a

contributor when she became an employee of

the University, she ceased - - -

WILSON J:  Mr Handley, if you do not get up on the point you

have already developed, this one will not make

sufficient ground, would it?

MR HANDLEY: In my submission, it would, Your Honour. Might

I just remind the Court, for example, that on the

transitional provisions in the New South Wales WORKERS

COMPENSATION ACT 1984 which abolished the old commission and created the Compensation Court, this Court granted

special leave on the question of construction of the

transitional provisions and allowed the appeal.

DAWSON J: But they are tied up together, are they not?

MR HANDLEY:  They are tied up together, yes.

DAWSON J: So that if you got special leave on the first

point this would go with it.

MR HANDLEY:  Yes. Can I just, for purposes of glancing

at the headnote, hand up the judgment in ROBBINS V SAKIC?

It is just an illustration, I do not really want to

speak to it. ROBBINS' case was concerned, as I say,

purely with transitional provisions and the effect of

a new Act on an old Act and cases which have not been

finally worked out under the old Act and how the new

Act impacted on them and so one was only concerned,

as it were, with the old cases. Nevertheless, this the statute and the large number of cases potentially involved - - -

WILSON J: Well, Mr Handley, let me put it this way:

Justice Dawson has indicated if you were to get special

leave on the first point, this aspect would undoubtedly

be comprehended within the ground of argument that

was then dealt with.

MR HANDLEY:  Yes, Your Honour.

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WILSON J: Would it be proper, for the moment, for us to confine

the argument to the first point and, if necessary, we will

come back to this? In other words, if we prove to be

against you on the first point, then you will have the

opportunity to argue the second point.

MR HANDL~Y:  Yes. Well, I am content with that, Your Honours.

WILSON J:	Thank you.	Mr Bennett?
MR BENNETT:	If Your Honour pleases.	I hand to Your Honours

an outline of submissions together with a series of

extracts from submissions below which, in view of what Your Honour has just said, Your Honour may not need to

refer to. The purpose of handing those up is to
dispute the statement of Mr Justice Mahoney which my

learned friend just read to Your Honours where he said

he did not think that the suggestion was pursued.	In
fact, my submissions on that point to the Court of
Appeal, which are annexed, begin by saying:

The major issue we need to address is -

and, in fact, it was - the second point which the Court of

Appeal did not deal with was regarded by us, certainly,

as the major point in the appeal and is regarded by us

as the major special leave point, but Your Honours ask

me to confine myself, for the moment, to the other

point and I will do so.

Your Honours, we adopt all that has been said by

my learned friend, Mr Handley. In addition, we point

out that the definition itself of the word "contributor"

which appears at page 39, using the word -

"Contributor" means employee who is

contributing -

itself gives the lie to the suggestion that one can

construe the word "contributor" as meaning any employee

whether or not contributing.	In other words, the words,
"who is contributing" simply cannot mean "who is bound to

contribute". If they mean that the definition is

tautologous because all employees are bound to contribute

unless exempted.

So, we would submit that the decision of the Court

of Appe~l flies in the face of the definition itself.

It also - and I will be careful in saying this not to
trespass on the second point - flies in the face of the
view which the legislature apparently took in 1985 of
the meaning of the definitions because in the closing
provisions there were specific references to persons

in the position of Mrs Chopra, and the Court of Appeal

simply assumed that such people were not caught by it.

DAWSON J:  How can you use the amending Act to interpret

the principal Act? I am not suggesting you cannot but

how do you do it?

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MR BENNETT:  There are cases which say that certainly in

construing an Act over a period after an amendment,

one may have some regard to the way the legislature

has treated it as some evidence of the parliamentary

intention. I appreciate the logical problem with it

but there are cases - I think even some dicta in this

--Court - suggesting that on occasions one may do that

but I appreciate the difficulties with that.

Your Honours, the affidavit evidence shows that

very large sums of money are involved. There is some

other litigation which is referred to in the affidavits

and which, at present, the Court of Appeal has reserved

the effect of which is that very large numbers of persons

associated with particular statutory bodies who have been

contributing to other superannuation schemes may, in

fact, be able to claim that they should have been

contributing to this scheme and thereby bring themselves

within it. And if the closing provisions of the 1985

Act are ineffective in relation to those people and

if that appeal is not allowed, the amounts which could

be involved are very, very large, indeed. We would

submit the point is one of great importance and it is

certainly sufficiently arguable to justify a grant of

special leave. And, as I say, I reserve my major

submissions for the second point if Your Honours need

to hear me on it.

WILSON J: Thank you, Mr Bennett. Yes, Sir Maurice?

SIR MAURICE: Well, Your Honours, we submit that the decision

below is not attended by any real doubt and certainly

there are matters of fact which, naturally, my friends

were not inclined to advert to but which are significant.

Might I just remind Your Honours of them? That on the

first page of the Court of Appeal's judgment of

Mr Justice Mahoney, about line 17 - - -

WILSON J: That was page - - -?

SIR MAURICE: That is page 33, Your Honour.

WILSON J: Yes, I have it.

SIR MAURICE: His Honour says:

On 24 October 1969 the University wrote to the

plaintiff offering her an appointment as

Lecturer at a nominated salary 'conditional

upon your satisfactorily passing a medical

examination which would be arranged for you in determine your eligibility to become a

contributor to the New South Wales State

Superannuation Scheme'. This offer the

plaintiff accepted, and she was later

medically examined. On 28 April 1970 the

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Bursar informed her that a medical certificate

had been received from the Department of Public

Health -

if I may interpolate - that being the body authorized

to examine her, or the Chief Medical Officer -

to the effect that she 'be accepted for

permanent appointment and for limited
benefits under the SUPERANNUATION ACT'.

The letter continued:

'As it is understood that you do not wish to

contribute to the Superannuation Scheme, it

will be necessary for you to apply for

exemption.

Which she never did, of course.

It is pointed out that such exemption debars

you from consequently acquiring any rights in

the Fund ..... it is suggested that you

contact -

and so forth. At page 34:

To this letter the plaintiff did not reply

..... Her husband, who is also employed by the

University, was a member of the Fund, and there

would appear to be little doubt that had she

requested that she be exempted, such request

would have been granted.·

And there is reference to some sections of the Act.

She claimed in evidence that she was informed

by an officer of the University that her

contribution rate in relation to superannuation

would be of the order of fifty per cent to

sixty per cent of her net salary having regard

to her age ..... and she was never advised that she

was entitled to take up the minimum or a

lesser number of superannuation units than the

maximum. In oral evidence given before me

she said that had she been informed of her

right to take up a smaller number of units

than the rnax.im.mJ. 'I would most certainly have

joined. It was a financial problem that

prevented me from taking it up'.

And they say:

No contributions -

in the sense of payments

thereafter were made by the plaintiff or by
the University in relation to superannuation

for the former.

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So, Your Honours, what has happened therefore is

she is employed. She is employed within the definition.

She is examined. The person acting on behalf of the

State says that she is suitable for limited benefits

under the fund; that she be accepted for limited benefits

under the fund and thereafter, of course, the Board

would be bound to accept her.

Now, for reasons that do not appear to be very

clear, the Board never did that. And, indeed, the

University did not tell her that she had the right to

contribute for a smaller amount as she had under

section 11 of the Act. So,.Your Honours, thereafter,

the University did not deduct as it was obliged under

the statute to do, nor did the Board sue as it had
the right under the statute to do. And rather than

taking Your Honours to the provisions of the Act,

could I just take Your Honours to page 41 - perhaps

before that, could I take Your Honours to page 40.

Your Honours will remember that, I think, my learned

friend, Mr Handley, said that "Every employee shall

contribute to the Fund" so it is a compulsory fund.

There is no choice - statutory obligation. And there

is a proviso: .i

that where the wife of an employee is also an
employee the Board may on her application .....

reduce the number of units -

which was never put to her. And then it says "or" may

"exempt her" and then subsection (2) talks about:

shall ~ease to be paid -

I do not think I need worry Your Honours with that.

And then. llA(l) says:

Notwithstanding anything contained in this

or any other Act every employee shall

either before or as soon as practical after

the commencement of his employment submit

himself to medical examination by the Chief

Medical Officer of the Government -

which she did.

(2) Where the report of the Chief Medical

Officer indicates such employee is suffering

from any physical or mental defect which
is likely to affect his health or longevity
or his capacity to continue in his employment

the Board may:

(a) refuse to accept .....

(b) accept such employee as a contributor

for limited benefits; or

(c) postpone

and then says:

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Any employee accepted as a contributor

... .. shall make contributions.

So, what happened was those acting for the Government

say "limited contributions".

__ Now, Your Honours, thereupon section 16, one would

nave thought, would operate so that every employer

is to contribute regular payments of prescribed periods

in respect of each employee. And then section 19 says:

In respect of any contributor who is on leave

of absence, .... without pay -

and so on. And then subsection (2) is the important

one, Your Honours:  ·

Any contribution unpaid on the due date

shall bear interest.

So, the statute contemplates the case of a contributor who has not paid - who does not pay. And then

subsection (3) says:

The Board may recover the amount of any

contribution due and unpaid together with

interest thereon in any court of competent

jurisdiction.

WILSON J: But, Sir Maurice, was Mrs Chopra ever accepted as

a contributor by the Board?

SIR MAURICE:  The Board did not do so. The only evidence

appears

WILSON J: Was it ever invited to do so·; asked to do so?

SIR MAURICE:  No. _Well, apparently -

there was this medical certificate. Possibly, if

I could hand Your Honours - - -

WILSON J: The obligation to make contributions rests upon an

employee accepted as a contributor .

SIR MAURICE:  Yes, Your Honour. What happened seems to be

that she was examined medically and there was a

certificate and she was informed of that certificate

by the University authorities. Could I just hand

Your Honours up some chronologies that were handed up

in the court below only for the purpose of just

indicating what the facts were.

WILSON J: Yes, the facts seem to be very plain but the

chronology will help.

SIR MAURICE:  Yes. The only point, Your Honour, I think, is

that Your Honours will see from that that the

Chief Medical Officer at any rate sent to the University

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his certificate that she be accepted for limited

benefits, and nothing was done.

WILSON J: And that was conveyed to her.

SIR MAURICE:	That was conveyed to her and also conveyed to her was the fact that she would have to pay 50 or
-50-per cent of her salary which was, in fact, not so.

TOOHEY J: But, in any event, Sir·Maurice, the decision of the

Court of Appeal seems to have turned upon the question

of statutory construction - - -

SIR MAURICE:	Yes.
TOOHEY J:	- - - rather than upon the facts, upon the status

of the respondent as an employee who, it was said,

was liable to contribute under the Act.

SIR MAURICE: That is so, Your Honour. The only point

I am making, Your Honour, is that when one comes to

the words "who is contributing" in this statute, one

has to read it against a provision where there is a

statutory obligation to contribute, in other words, a

statutory liability, a statutory liability to deduct

and a statutory liability in case to sue. And what

happens in this case is that half-way along the way

it would appear that the Government has said, "Yes,

we will accept you" by the medium of its

Chief Medical Officer and thereafter the Board which,

I assume, would be analogous to a trustee, either does

not know or did not do anything;	one just does not
know what the situation is.

Then when one looks to the definition and says,

"Well, what does the word 'who is contributing' mean? Does it mean 'who has paid'"- which is what my learned

friends say which, in our respectful submission,

clearly it does not mean because if it meant that

then section 19, coupled with a right to interest and

the right to sue, would be otiose or meaningless.

So, therefore, in our submission, it is a fair construction

of the word to say a person who is subject to the

obligations who is contributing in that sense,

who is subject to the obligations to contribute and it does not mean "pay" and the statute, in our respectful

submission, indicates it does not mean "pay".

Now, that is the first point we wish to make to

Your Honours, and we say if you look to what the

Court of Appeal did, they had regard, as Your Honour

Justice Toohey pointed out to me, to the statutory

context and they said, "Well, the word 'contributing'

is wide enough to include the liability" as Your Honours

will remember from reading the judgment and they refer

to authorities supporting that proposition at page 46

where Lord Campbell says:

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.. .

I think the word 'contributing' does not mean only those who have contributed or

already are assessed to a rate already
made, but includes all who are liable

to be assessed -

and they say, "Well, that is an analogous sort of

-eecision". So that is the first point. We say,

Your Honours, far from this being a case where the

word "contribute" should be read as meaning "having

Tl paid", it does not mean that.

The only other thing I want to say on that

here on this application is that if one imagines a

case where the Board had accepted, for example, under
11(2)(a) and suppose - that is set out at the bottom of

page 40 and the top of page 41. So, a person is

recommended for limited benefit. Assume the Board

accepted, then would it then be said that person was

not a contributor? My friends would have to say, "Yes,

was not a contributor." "Why?---Because she has not

paid" and that payment is the essential thing, either

herself or, presumably, by a deduction from her salary.

I do not know whether either of my learned friends

put that but I assume that is what they mean.

So, Your Honours, we submit, with respect, that

in a compulsory scheme it is sensible to read the word

"contributing" as embracing all those within the ambit

of the scheme.

Now, the next special leave point we wish to make

is this, Your Honours, that in 1976 this definition was taken

out of the Act, that is by Act No 101 of 1976,

section 2(3) and schedule 3. They just took out the

word "contributor" and substituted - if I can read it to

Your Honours - I will actually hand to Your Honours a copy

if Your Honours wish copies?

WILSON J:  Is it not in Mr Justice Yeldham's judgment?

SIR MAURICE: Yes, it is, Your Honour.

WILSON J: It is on page 16, I think.
SIR MAURICE:	That is so, Your Honour. So that so far as the

problem facing the Court of Appeal is concerned, the

statute has been gone - that statutory provision was

taken out almost 12 years ago. This came into force

on 13 January 1977. So, therefore, we submit, that

is another reason against the granting of special leave.

Secondly, we submit, Your Honours, that although

my friends put on affidavits about large sums of money,

firstly, what - might I just remind Your Honours

the quality of what is said is this, for example, and

He says, on page 2:  I read just paragraph 3 of the affidavit of Mr Spencer.

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The broad categories of persons whom it is

known may not have contributed to the State

Superannuation Fund (the Fund) prior to assumed closure of the Fund ..... in terms of -

so and so -

who may have been eligible to do so prior

..... include persons intended to be

excluded from Fund membership by their

employers' personnel practices -

so, he is saying, "Well, the employers

deliberately and wrongfully exclude them." But,

Your Honours, obviously that is speculative at the

least. The figures that are based on that fanciful

speculation, Your Honours, in our respectful submission

of course, are equally speculative. But, in any event,

the Government came along in 1987 and opened the fund

again by an Act which is set out in Mr Staff's affidavit.

It is annexed to Mr Staff's affidavit, of - - -

WILSON J:  How does that affect the - - -

SIR MAURICE: Well, it affects special leave - see, Your Honour,

my learned friend says his main argument is the closure.

The closure is important, he says, because of the economic

consequences. Now, what I would wish to say, first of all:

the economic consequences are speculative in the extreme

and secondly, the Government, in 1987, opened the fund

again. So, the closure of the fund cannot be the crucial

question. It cannot be~ in our respectful submission, a

special leave point.

WILSON J:  I thought that the primary point was the first

point developed by Mr Handley, the question of

economic - - -

SIR MAURICE: Yes, Your Honour.

WILSON J: But can I just take you back to the definition to

which you drew our attention of "contributor" on page 16?

SIR MAURICE:	Yes, Your Honour.
WILSON J:	Am I reading that wrongly or does it exclude, without any doubt, Mrs Chopra as a contributor, she
being an employee who has not been accepted as a
contributor under the Act?
SIR MAURICE:	Well, we say, no, Your Honour. We say one must

read that against the language of the earlier Act,

because she had not been.

WILSON J:  But she had never been accepted as a contributor

and the 1976 amendment seems to say plainly that

"contributor" does not include an employee who has not

been accepted.

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DAWSON J: And Justice Yeldham, at the bottom of page 20,

seems to find that she was not accepted.

SIR MAURICE:  I know he does, Your Honour, but I do not

want to go into it. Can I just make two points

about that, Your Honour, and these, perhaps, are really

arguments which are not apt to be put to Your Honours

-Fut since Your Honour has put them to me I will just

say something about it. We say that "contributor"

means an employee. She was an employee, undoubtedly.

And we say that is really what a contributor means

throughout. Now, rightly or wrongly, that is the first

point, person is liable.

WILSON J: Indeed, it does seem to be an important point,

Sir Maurice, does it not, to have that short question

determined?

SIR MAURICE: Well, Your Honour, I can take a hint but,

Your Honour, can I just raise this question? If
Your Honours were minded to grant special leave,

would get her costs in any event

contrary to what we have said, we would submit respondent

because she was, undoubtedly, accepted and what has

happened is really no fault of her's but a failure in

connnunication in the Government from the Chief Medical

Officer to, presumably, the Superannuation Boar4 or some

sort of lack in the Superannuation Board. So, we

would submit that would be an appropriate order to

make particularly if my friends' versions are correct

that so much money is at stake.

Your Honours, that is all I want to say to

Your Honours.

WILSON J: Yes. Thank you, Sir Maurice.

MR HANDLEY:  We would accept such a condition, if the Court

pleases, or submit to any appropriate undertaking to

give effect to the matter that Sir Maurice just

referred to.

MR BENNETT:  And we would, too, Your Honours.

WILSON J: Sir Maurice, would you mind just clarifying the

condition that you proposed and that your opponents

so readily accepted? I just want to be clear as to

what it is.

SIR MAURICE:  That the respondent should have her costs of this

application and the appeal in any event.

WILSON J: Yes, thank you. Very well, special leave will be

granted and the Court recognizes the undertaking that

has been given with respect to those costs by both the

applicants.

SIR MAURICE:  If Your Honour pleases.

AT 10.09 AM THE MATTER WAS ADJOURNED SINE DIE

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