Vereker & Ors v O'Donovan

[1988] HCATrans 42

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M75 of 1987

B e t w e e n -

JOHN MICHELE VEREKER, IAN DOUGLAS

SWANSSON, JOHN TERENCE BROWN,

LESLIE EDWARD LITHGOW and STEPHEN

GERARD CONNELL

Applicants

and

RICHARD DENIS O'DONOVAN

Respondent

Application for special

leave to appeal

MASON CJ
WILSON J

GAUDRON J

Vereker

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 MARCH 1988, AT 11.03 AM

Copyright in the High Court of Australia

MlT 3/1/SR 1 18/3/88

MR T.E.F. HUGHES, QC:  May it please the Court, in this

matter I appear with my learned friend, MR J.G. JUDD,

for the applicants. (instructed by Phillips Fox)

MR A.G. UREN, QC:  If the Court pleases, I appear with my

learned friend, MR N. MOSHINSKY, for the respondents.

(instructed by J.A. Coldrey, QC, Director of

Public Prosecutions)

MR HUGHES:  Your Honours, may I hand up an outline of what

we prapose to advance in support of the application.

MASON CJ:	What you propose to advance?
MR HUGHES:	Yes.
HASON CJ:	Yes.
MR HUGHES:	Your Honours, the magistrate from whose

decision an application was made for judicial review

under section 5 of the ADMINISTRATIVE DECISIONS

(JUDICIAL REVIEW) ACT had determined ,after a very

long corrrnittal hearing extending over 7 or 8 months,

that there was a prima facie case against the

present applicants on charges of conspiracy to
defraud the Commonwealth in relation to an agreement
to implement a taxation minimization scheme and
also of conspiring to prevent the execution of a

law of the Commonwealth in relation to the same

scheme.

Before I advance the particular reasons why we say this is a proper case for special leave,

Your Honours, may I just ref_er briefly, and it need

only be briefly, to the statutory framework within which the federal court was acting in entertaining

the case on judicial review. Putting it very

shortly, section 5 of the ADMINISTRATIVE DECISIONS

(JUDICIAL REVIEW) ACT, enables a party who is aggrieved

by a decision under an enactment to seek review.

Consistently with the case of LAMB V EVANS, which

was decided by the Full Federal Court, the decision

of a comitting magistrate to call upon defendants consequentially upon his finding of a prima facie case to make such answer as they wish to is such

a decision.	And the primary judge, Mr Justice Jackson,
dealt with the decision on that basis.	The order

made by the primary judge was founded upon his

conclusion that the magistrate had committed a

fundamental error in the course of arriving at his conclusion that there was a prima facie case. The

argument which led to what Mr Justice Jackson held

to be a fundamental error was given the somewhat

curious lable, "the interim rights argument" and

I will have to say something about it in a moment

obviously. Mr Justice Jackson, because of what he

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perceived to be the fundamental error of the
magistrate, made an order remitting the case to
the magistrate with a direction that the magistrate
hear the case, conduct the further hearing of

the case in accordance with His Honour's decisions.

An appeal was brought to the Full Federal Court

against that order and at the hearing of the

appeal the fundamental basis upon which the

magistrate had decided that there was a prima facie

case was no longer supported in argument by those

appearing for the informant. The so-called

"interim rights argument" was abandoned and another

argument, or other arguments, took its place on

the hearing of the appeal.

The Full Federal Court, having heard the appeal

and reserved judgment, varied Mr Justice Jackson's
order by deleting from it so much as directed the

magistrate to hear and determine the matter in

accordance with His Honour's reasons for judgment,

and ordered instead that the magistrate should

hear and determine the matter according to law,

Their Honours stating, or expressing in their

reasons for judgment what,in Their Honour's opinion,

were the relevant legal principles. So that the

effect of the order in the Full Federal Court is

to direct the magistrate, we would suggest, to
hear the case from here on in accordance with

the law, on the fundamental points raised in the

proceedings, as laid down by Their Honours in the

Full Court.

It is to be noted, perhaps, that there was a

division of opinion in the Full Court - the majority

opinion on the fundamental questions argued - the

new questions raised for the first time in the

Full Court, was really that of Mr Justice Northrop

and Mr Justice Fox, because Mr Justice Fox agreed

in substance with Mr Justice Northrop's conclusions

of law. Now under the JUDICIAL REVIEW ACT,

Your Honours, the court, and of course this includes

remit the matter to the original decision maker	the Full Court, has power which it exercised to
with such directions as the court thinks fit, that is section 16(1) of the Act:

On an application for an order of

review in respect of a decision, the

Court may, in its discretion, make all or

any of the following orders.

And (b) says:

an order referring the matter to which the

decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit.

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So in substance what the Full Court did was to give directions as to the further hearing of the matter, stating the law which it ordered the magistrate to apply as being in accordance with Their Honours reasons for judgment. That is the

effect of what was done. Now, dealing again

with Mr Justice Jackson's approach to the matter,

His Honour had to consider the basic submission

that was made to the learned magistrate on behalf
of the prosecution at the end of all the evidence.

And that submission was to the effect that there was evidence that the Commonwealth had been

defrauded of its rights, rights of a particular kind,

the so-called interim rights. And the way in

which the interim rights argument was developed

before the magistrate and the learned magistrate

found it acceptable, was that it took as its

starting point the opportunity available to the

commissioner to disallow the claimed gifts of the

Norfolk Island Art Gallery as deductions from

assessable income. It was put on behalf of the prosecution, in effect, that even an erroneous,

and one would add parenthetically, a capricious

exercise of the commissioner's power to disallow the deductions would give rise to an enforceable

assessment which until set aside on review or appeal

would impose an obligation to pay the tax even

though the commissioner would ultimately have to

refund it.

Thus it was said the commissioner had interim

rights of which he could be defrauded. Now,

Your Honours, that approach was unanimously

rejected by all the judges who heard the matter,

at first instance and on appeal, in the Federal

Court. Your Honours will have read the judgments

in the Full Court. I regret to say, and Your Honours
will have noted, that the reasons for judgment of
the primary judge were referred to in the affidavit
in support of the application, but not included in

the application book.

:MASON CJ:	No, they are not.
MR HUGHES:	~...ay I hand up a sufficient number of copies.
WILSON J:	I take it, Mr Hughes, you are not going to argue

that the Full Court was wrong in rejecting the

interim notice?

MR HUGHES:	No, I am not, I am not - - -
WILSON J:	I am just wondering what relevance has it to your

application?

MR HUGHES:  Only as part of the context, Your Honou~ and may I further respond to Your Honour's observation by

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saying this: that what we would be seeking, if

our application for special leave is successful,

is either that the order of Mr Justice Jackson

be restored so that the magistrate would be

commanded, as it were, to hear and determine the
matter further in accordance with His Honour's

reasons or, alternatively, and this would be our

preferred position, that the magistrate be ordered

with Mr Justice Jackson's reasons but in accordance
with the views which have been expressed in the to hear the matter further in accordance not only of EDWARDS V COLLIE.

The decision in EDWARDS V COLLIE which was

a decision in a conspiracy to defraud the Commonwealth

case, arising in relation to a taxation scheme,

was, unfortunately, given after - but just after -

the Full Federal Court gave its decision in the

present case.

GAUDRON J:  When you say that that would be your preferred

position, Mr Hughes, that rather assumes, does

it not, that the actus reus for the two charged

conspiracies is the same?

MR HUGHES:  Yes, and we would be able to demonstrate, I submit,

that, in essence, it was the same. In this case
the actus reus was the alleged agreement to implement
what was called the NIPAG - Norfolk Island Public

Art Gallery scheme. In EDWARDS V COLLIE, which

is unfortunately not reported as yet but of which

we have prints of the reasons - and I will hand

them up, if I may -the actus reus was an agreement

to implement a scheme designed to eliminate liability

to sales tax.

Your Honours will recall that EDWARDS' case reached this Court on an application for special

leave to appeal, which was refused, but the importance

of EDWARDS' case is that it was a decision of the

Court of Criminal Appeal in Victoria given in

July last year.

GAUDRON J:  Can I take you back to what I asked you, Mr Hughes?

I can well see that the overt acts of each of the
charged conspiracy is the same and that, accordingly,
the charges must be seen as alternative charges
rather than cumulative charges, but I would not
have thought that the fact that the overt acts

were the same went directly to the question of

actus reus. The question is whether the overt
acts amount to a conspiracy of one sort, or of

the other sort or of both. And as to the conspiracy

to prevent the enforcement, that seems to raise

quite different considerations from what was considered

in EDWARDS V COLLIE, I would think, perhaps.

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MR HUGHES:	Perhaps.	Your Honour, responding to what

Your Honour has just put, it seems right to say

that in the context of this particular case the

two charges, one of conspiracy to defraud and the

other of conspiracy to prevent or defeat the operation

of a law of the Commonwealth, were treated as

covering the same ground and as raising no separate

questions from one another on the footing

that if the defendants were shown to have agreed
to defraud the Commonwealth by agreeing to enter

into a tax scheme, they were agreeing to prevent

or defeat the execution of a law of the Commonwealth,

namely, the INCOME TAX ASSESSMENT ACT.

The importance, as we have sought to stress

in our outline, of the decision of the Court of Criminal Appeal in Victoria in EDWARDS V COLLIE

is that that court specifically endorsed two

propositions; one, that the legal efficacy of a particular scheme to avoid a taxation liability

from arising was an issue for determination in

relation to any charge of conspiracy to defraud
the Commonwealth, or prevent or defeat the execution

of - - -

GAUDRON J:	But there was only one charge there.
MR HUGHES:	I appreciate that.  I am saying that in this

case the essential facts applied equally to each

charge. If there was a conspiracy to defraud the

Commonwealth it would be impossible on the facts

here to argue that there was not a conspiracy to

prevent - - -

GAUDRON J: But, what about vice versa?

MR HUGHES:	Vice versa - the same.
GAUDRON J:	Yes.

MR HUGHES:  I suffer from, perhaps, the disadvantage,perhaps

in other ways the advantage,of not having appeared

at the committal proceedings.

MASON CJ:	It is usually an advantage, Mr Hughes.
MR HUGHES:	One tends to think so, Your Honour - in more ways than one when the case goes for eight months.
My learned friend who enjoys the same advantage or suffers the same disadvantage as I do will,
I am sure, correct me if he thinks I am wrong.
My learned friend tells me that they were treated as being the same.

MASON CJ:  Yes. But the critical feature of this case is

that by bringing the matter to this Court at this stage

you are, in effect, seeking an advisory opinion

from the Court.

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MR HUGHES: It all depends what colour, Your Honour, one

gives to the expression "advisory opinion".

MASON CJ:  That is true. But what I had in mind was that

there are no findings of fact at the present stage

in what might be described as the fundamental

controversy between the Crown and your clients and so that the Court is being asked to answer

questions of law that arise on the evidence as it was led before the magistrate but as to the accuracy of which we must remain in doubt.

MR HUGHES:  Your Honour means, if I may suggest, until

after a trial if there is a trial.

MASON CJ:	Yes.
MR HUGHES:	Your Honour, obviously what Your Honour has

said is, with respect, indubitably right and I

cannot say anything against it. But what we do

say is that, first of all, this was a case in which

the learned primary judge carefully considered whether he should enter upon a judicial review of the magistrate's decision mindful of the caution

against doing so, unless in exceptional cases,

which is contained in the judgment of the

Full Federal Court in LAMB V MOSS.

His Honour did so for a reason which was,

seemingly, powerful enough and persuasive enough

not to provoke any argument against it when the

case went up to the Full Court and the Full Court,

in the majority anvwa½ Mr Justice Fox must be

excepted from this, expressed the view that it
was a proper case, notwithstanding that the proceedings

were committal proceedings, for judicial review

to be undertaken.

MASON CJ: Well, one may have doubts about the correctness

of the view that Mr Justice Jackson formed as to

whether it was an appropriate case to exercise

whether or not the court had the iurisdiction it	jurisdiction. And one may even have doubts as to
claimed to have. That may, perhaps, be your best
special leave point - that if the matter gets here there is a possibility that the Court would consider
whether the Federal Court had jurisdiction at all
and you might end up in circumstances where the
magistrate's decision stood without any kind of
emendation at all.

MR HUGHES:  Indeed, that would be a curious endin& from the

applicants' viewpoint, to a long iourney.

MASON CJ: It would, Mr Hughes. I mean it is unquestionably

a possibility - a distinct possibility.

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MR HUGHES:  Yes, indeed, and it is a very striking special

leave point - it would be slightly - - -

MASON CJ:	Which you have managed to conceal up to date.
MR HUGHES:	The concealment was not intentional and I had

hardly thought that this Court would be unmindful

of it but hardly a point which is really an obvious

one which I would want to wear on my sleeve as

an applicant for special leave. But coming back

to Your Honour's questio~ which goes to the heart
of this application, Your Honours will see from

made were orders telling the magistrate to do

what I have read from section 16 of the

something; they were like orders for mandamus but

in more modern form, more effective form because,

in substance,they told the magistrate to entertain

the further hearing pursuant to binding guidelines
as to the law laid down at both levels in the

Federal Court and ultimately, of course,and prevailingly

in the Full Court.

So it is not just an advisory opinion. If

this Court expressed its view on the law and resolved
the very vivid conflict between the difference

between the judgments in the Court of Criminal

Appeal in Victoria in EDWARDS' case and the judgments

here, then the magistrate would have proper directions

under the JUDICIAL REVIEW ACT, section 16,and they

would be directions which would obviously effect

the rights of the parties to the proceedings before

the magistrate. That is why we say this Court

would be giving, if it entertained the appeal,

more than just an advisory opinion.

Now, as to the general importance of the matters raised by the application and in the proceedings

below, may I say this: first of all, the effect

of the majority view in the Full Federal Court

is that in a prosecution for an alleged offence

against these particular sections of the CRIMES ACT,

the legal efficacy of the scheme to eliminate tax

liability is said to be irrelevant and there are

powerful reasons, we would suggest, for concluding,

upon reflection, that that approach or that particular

statement of law must be wrong or is most probably

wrong. Because as Mr Justice Jackson said, and

said rightly, if dishonesty is part of the kernel,

an essential part of these particular offences

under section 86 of the CRIMES ACT, how can it

be dishonest to go into a scheme if that scheme

is legally effective to eliminate what would otherwise

be a liability for tax. And as well as Mr Justice

Jackson's view to that effect one has the unanimous view of the Court of Criminal Appeal in Victoria

in EDWARDS' case.

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In that case the trial judge, on undisputed

facts, held that the particular scheme there in

question was legally ineffectual to eliminate the

tax liability that but for the scheme would certainly

have existed. And the Court of Criminal Appeal

in Victoria endorsed the trial judge's treatment

of the matter, endorsed his charge to the jury

which included a direction that the scheme was

not legally effective. So there is that clear

conflict between the two courts.

The other clear conflict in judicial view

relates to the question of mens rea. The Court of Criminal Appeal in Victoria in EDWARDS' case endorsed the charge of the trial judge to the jury

to the effect - or the direction of the trial judge to the jury to the effect that the Crown must prove

that the accused knew that the scheme was legally

ineffectual to achieve its objectives.

In this case, as Your Honours will see from

page 81 of the appeal papers, Mr Justice Northrop

expressed the view, half-way down the page:

(Continued on page 10)

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MR HUGHES (continuing):

He could find the criminal intent in stripping the GYP companies of all of their assets

notwithstanding that the promoters may have
believed that the "gifts" were properly

deductible and thus there was no taxable income

earned by the GYP companies during the relevant

tax year. Efficacy of the scheme in this

regard is immaterial. An honest belief that

the scheme was effective and even a hope that
the "gifts" were properly deductible from

income does not prevent the finding of a

criminal intent.

And a reading of the judgments in the Full Court,

Your Honours, shows that Their Honours have created

a principle in relation to offences against section 86

of the CRIMES ACT of constructive fraud, the

constructive fraud being described in this argument

that was presented as to the contingency means

fraud. The constructive fraud was said to arise

tn. this way: if, at the end of the day, or many

days, the scheme was found to be ineffectual and that

that possibility was present to the minds of the

promoters or the defendants, the present applicants,

that was sufficient to taint them with the requisite

degree of fraud even though they honestly believed,
or not shown not to have honestly believed, that

the scheme was effectual and that approach, in

our respectful submission, writes mens rea out

of the section.

WILSON J:  Is that a correct appreciation of the judgments,

Mr Hughes? Leave Mr Justice Northrop's judgment

aside and it would seem to me that Mr Justice Fox

and Mr Justice Pincus both put it somewhat differently.

For example, at page 40, Mr Justice Fox said:

There were many aspects, including not least

of all the all~ged "gifts", but it was clear	from the evidence, as he saw it, that the
participants themselves saw a clear risk that
the GYP companies would be assessed, and
correctly so.

His Honour puts it at the perception of a risk

and nevertheless going ahead and ensuring that

the company would not be able to pay the tax if

the risk eventuated and that was found by His Honour

to supply the element of dishonesty.	At page 110
Mr Justice Pincus says:

My view is that in a case of this sort the

degree of risk of failure of the scheme, as
seen by the participants, bears upon proof of

fraud.

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Now those two expressions would seem to coincide

in, at least, a majority view.

MR HUGHES: Well, may I deal with that matter on two levels,

Your Honour?

WILSON J:  Yes.

MR HUGHES: First, one is left, in my respectful submission,

in a state of confusion, perhaps, as to just what

Mr Justice Fox ultimately based his view on because

his judgment contains an express statement that

His Honour agrees, 'in substance, with what

Mr Justice Northrop said on the facts and on the

law. So Mr Justice Fox is there endorsing

Mr Justice Northrop's treatment of mens rea which

I have read from page 81.

WILSON J:  Mr Justice Northrop's judgment covered a fairly

wide field and the substantial adoption cannot

override the express statements that Mr Justice Fox

makes, surely.

MR HUGHES:  Well then, let me deal with the matter on the

second level. I do not wish to retract the submission

that I have just made to Your Honours -

WILSON J:	I would not expect you to, Mr Hughes.
MR HUGHES:	- - - but alternatively, let me put the matter

this way:  Mr Justice Jackson found that the whole

of the approach made by the magistrate to his findings
of fact depended upon his fundamental error, namely,

the adoption of the interim rights argument. And

I should say that Mr Justice Pincus, at pages98 and 99,

dealing with the finding of fact to which, no doubt,

Mr Justice Fox was alluding - the finding of fact

made by the magistrate at page 60 of his reasons

which, unfortunately, are not before this Court

but which I can supply to Your Honours if

Your Honours want them, I do not think it 1s necessary

for Your Honours to see them - His Honour said -

this is page 99:

It should be noted that counsel for the

appellant before us did not really seek to
support that simple view of the scheme's purpose.

It appears clear that it has to be conceded that an important purpose of the scheme, so

far as the vendors of the shares in the companies

participating in the scheme were concerned,

was to achieve a price for their shares not

fully reflecting the company's potential tax

liabilities and another purpose of the scheme

was to attempt to obtain a deduction for the

"donations", eliminating those liabilities.

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So, I cite that passage for the purpose of lending

support, or obtaining corroboration, of

Mr Justice Jackson's view - support for

Mr Justice Jackson's view - that the findings of

the magistrate on the facts were permeated by this

error that all the judges below found to have occurred

and that is the finding of fact, no doubt, to which

Mr Justice Fox was referring in the passage at

page 40 which Your Honour Justice Wilson has referred

me to.

WILSON J:  But the longer you go on Mr Hughes, if I may

say so, with respect, it demonstrates the unsatisfactory

nature of the case if this Court was to take it

on board. The committal proceeding reached a certain

stage in June 1986 when the magistrate was prepared
to call on the applicants. It is now in 1988 and,

surely, if the magistrate's findings of fact are

all now permeated with fundamental error what basis

is there for the High Court to proceed to make

any real - or come to grips with the case. Surely,

the best course is for this matter to go back to the magistrate, the sooner the better. He will

be assisted by argument supported by a variety

of sources now, EDWARDS V COLLIE, the judgments

in the Federal Court, and he will proceed to act

according to law as he may be advised.

MR HUGHES:  Well, Your Honour, let me try to answer those

propositions item by item - - -

WILSON J:  I thought it fair that I should state my present

dilemma.

MR HUGHES:  I am, indeed, genuinely grateful to Your Honour

because if one knows the difficulty, one has had some smell of it for some time, but if one knows

it specifically, one is better able, perhaps, to

deal with it.

Let me take Your Honour's problem up. The

magistrate has been given directions of law which

are legally binding on him and, in the light of

which he must decide the case that he is required

to decide.	At the very least the magistrate will
be faced with a most confusing situation.	He will

have to ask himself which court has correctly stated

the law; the Court of Criminal Appeal in Victoria

or the Full Federal Court, because the views are

quite diverse in those two courts on the fundamental

questions involved in this case. Now, he may even

say to himiself, "Well, perhaps, I should follow

COLLIE V EDWARDS because I am supposed to apply

certain aspects, at least, of State law, section 69

of the JUDICIARY ACT, in hearing and determining

a matter which is within the invested jurisdiction

o f my court. "

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WILSON J: 

No doubt you would encourage him in that approach.

MR HUGHES: 

I doubt if it will be I, Your Honour, if the case is in much more capable hands than mine in

the magistrate's court. It may be legally inappropriate

to submit to the magistrate - I put it no higher
than that - that he should follow COLLIE V EDWARDS
when a court which has taken the particular case

in hand has expressed views that are opposite on

two points to COLLIE V EDWARDS.

MASON CJ: 

It goes to show how undesirable this system is;

that the matter should go to a court of another
jurisdiction in the hierarchy of courts away from

the usual hierarchy that obtains in relation to

criminal matters.

MR HUGHES: 

Yes.

MASON CJ:  And then that that should be used as a reason

for corning to this Court.

MR HUGHES: Well, we have to take the system as we find it,

Your Honour.

MASON CJ:	I realize that, Mr Hughes.
MR HUGHES:	I did not mean to be disrespectful.
MASON CJ:	No. I appreciate what you are saying. You are, as

it were, the victim of circumstances but I am pointing

out that it is most undesirable, or this case is

an exemplification of it, that a case should move,
as it were, from one hierarchy - the ordinary hierarchy

of courts - to another out of that hierarchy with

the result that a conflict in decisions arises

in this way. And then the case goes back to the

ordinary hierarchy - - -

MR HUGHES:  And the magistrate who, with respect to him,

is at the bottom of the hierarchical scale has

to work out which view of the law is binding on

him.

MASON CJ:  I do not think you need to elaborate. That is

one point you have managed to get across clearly

and firmly. It has lodged and stayed in our minds,

Mr Hughes.

MR HUGHES:  I am treating myself as a blind horse, Your Honour,

a wink is as good as a nod. But that is the fundamental

problem in this case and the impact of that problem

on the parties affected by these proceedings - - -

MASON CJ:	I appreciate that entirely but, still, there is the counterveiling consideration as to whether this Court
should become involved at this stage and that is what
Mr Justice Wilson has put to you.

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MR HUGHES:  I see that and I have endeavoured to answer it

but I would add to the attempted answer this

further consideration: that the judgments in the

Full Federal Court and of the primary judge raise

distinct legal issues which are self-contained

and which do not depend for their resolutio~ for

the purposes of this case, upon evidentiary facts.

The evidentiary facts are for the magistrate; what

the magistrate has been told to do is what law

binds him. What he has been told is what law binds

him and what law he is to apply.

Now, this Court can, by entertaining the appeal, dispel the confusion and I do not pause to dilate

upon the consequences to the parties of a trial

in a case where the committal took seven months.

It is an awesome prospect that these applicants

face, in a very real sense,and one does not need

to elaborate. So there are clear issues of law.

There is a clear conflict and we would submit that

the only way in which the conflict can be usefully

resolved so that, if we are right in our submissions,
further public time may not be taken up in a long

trial is for this Court to take the matter into

consideration.	I doubt if there is anything more
I can say in support of the application.	I do

not want to go through the tedium of reading what

we have said in writing. No doubt Your Honours

will have had an opportunity of considering it.

MASON CJ:	Yes.
MR HUGHES:	For those reasons we submit that the application

should be granted.

MASON CJ:  Thank you, Mr Hughes. We need not trouble you,

Mr Uren.

It would require a most exceptional case for

this Court to grant special leave to appeal from

a decision of the Federal Court reviewing a decision

of a magistrate to continue committal proceedings.

The undesirability of fragmenting the criminal

process is so powerful a consideration that it

requires no elaboration by us. Despite the arguments

advanced by Mr Hughes of Queen's Counsel, we do

not consider that the features of the present case

are such that the advantages of intervention by

this Court, at this early stage of the proceedings,

outweigh the desirability of the matter proceeding

in the ordinary way.

We would add that we are by no means convinced

that the Federal Court has the jurisdiction which

it claimed to exercise in the present case and

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we would emphasize what the learned judges of the·

Federal Court have already pointed out; that if

that court has the jurisdiction, it is a jurisdiction

to be exercised very sparingly and in most exceptional

cases only.

The application is, therefore, refused.

MR UREN:	Would the Court make an order for costs?
MR HUGHES:	We cannot oppose that, Your Honour.
MASON CJ:	The application is refused with costs.

AT 11.50 AM THE MATTER WAS ADJOURNED SINE DIE

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