Waters & Ors v Public Transport Corporation; Public Transport Corporation v Waters

[1990] HCATrans 285

A	-!.J, AUSTRALIA,&
-.>),'.>) >'$ ««<.<-'-

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M30 of 1990

B e t w e e n -

P. WATERS AND ORS

Applicants

and

PUBLIC TRANSPORT CORPORATION

Respondent

Office of the Registry

Melbourne No M3 of 1990

B e t w e e n -

PUBLIC TRANSPORT CORPORATION

Applicant

and

P. WATERS & ORS

Respondents

Applications for special leave

to appeal

MASON CJ
GAUDRON J

McHUGH J

Waters 1 16/11/90

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 NOVEMBER 1990, AT 12.35 PM

Copyright in the High Court of Australia

MR A.M. NORTH, QC: If the Court pleases, I appear in the

first matter with my learned friend,

MR H. BORENSTEIN. (instructed by the Victorian

Government Solicitor)

MR F.X. COSTIGAN, QC:  I appear with my learned friend,

MRS A. RICHARDS for the Public Transport

Corporation. (instructed by Slater & Gordon)

MASON CJ:  The appearances are the same in the second

motion?

MR COSTIGAN:  Yes, Your Honour.

MASON CJ: Yes, Mr North.

MR NORTH:  Your Honour, in our submission special leave

should be granted in this case for the following

reasons:. firstly, the case raises a series of

Equal taken a very narrow view of the operation of the

issues central to the operation of the

Act, firstly, be adopting - - -

MASON CJ:  Now, before you come to that, again we do not

have the benefit of a judgment of the Full Court of
the Supreme Court in this matter.	It seems to be a

characteristic of cases in Victoria. Can questions

of this kind get before the Full Court of a supreme

court?

MR NORTH:  Not by appeal from a single judge but directly

from the Equal Opportunity Board at the time when

this matter was determined. The situation has now

changed, effective in fact from 1 September, which

was a few days after 28 August when His Honour

Mr Justice Phillips determined this case. So that

this case will presumably be the last one that

follows this route. We could not go anywhere else,

having chosen to - rather the PTC having chosen to

Waters 2 16/11/90

go to the single judge of the supreme court in the

first instance.

MASON CJ: But under the statute as it now stands, as it now

operates, an appeal can be taken direct from the

Board to the Full Court?

MR NORTH:  I am not sure of that, but certainly, Your Honour

to a single judge and then, in distinction to our position, from the single judge to the Full Court.

So the problem that was facing this case no longer

arises - the problem that Your Honour was

addressing in the previous matter. But it does

face us in the sense that PTC had no alternative in

going to the supreme court.

MASON CJ:  I follow that, but it would seem in light of the

legislative changes that are now in operation,

matters of this kind will come before the Full

Court and we could expect, in the fullness of time,

an exposition by the Full Court in case after case

of the interpretation and operation of this

statute.

MR NORTH That is quite likely, Your Honour, but what we

would be saying in this case - and I was just

saying it by using the words "series of issues",

this case is, in a sense, a very good vehicle, we

would suggest, for determination of so many

issues - - -

MASON CJ: That may be from your point of view; that is not

necessarily the way the Court would look at it.

MR NORTH:	I see that, Your Honour, but in terms of the Act being explained for the public benefit, that is a
feature of this case.

MASON CJ: Yes, but you see the handicap from the Court's

point of view. It does not have the benefit of a

consideration of all these questions which you say are fundamental to the operation of the Act by the

Full Court of the State.

MR NORTH:  I do see that, Your Honour, and that is just an

historical fact but it ought, with respect, given

the fundamental nature of the questions that are

raised and the variety of them - - -

MASON CJ: But you see this Court has repeatedly said that

it does not regard cases which come from single

justices as appropriate vehicles in circumstances

where we are denied the benefit of consideration by

an intermediate court of appeal.

MR NORTH:  Your Honour, that is accepted, and it is just

inevitable in this particular case. I can say no

Waters 16/11/90

more about it really than that. But if the case

otherwise warrants the consideration of the High

Court, in my submission it ought to get it,

particularly seeing this might be the last one and

the problem will not arise in the future.

MASON CJ: Yes.

MR NORTH:  Your Honour, I was seeking to set out the series

of issues central to the operation of the Act which warrants special leave by virtue of the very narrow

view taken by the supreme court of this Act.	The
first one is that the court adopted the
interpretation of discrimination which
significantly limits access under the Act;
secondly, by adopting the interpretation of
exemptions from the operation of the Act which
significantly broadens the exemptions; and by

defining narrowly the nature and content of the

orders that can be made by the Board. In our

submission, this approach runs counter to the

principles of a general and facilitative approach

to remedial legislation and contrary to the

principle that a restrictive approach should be

taken to exemption provisions.

The second matter.upon which we rely is that

the issues raised not only relate to the disabled

who constitute 15 per cent of the population in

Victoria but also to those who might suffer discrimination based on all the other grounds set out in the Act, namely sex, marital status, race

and so on, including for instance, the holding of

religious or political beliefs. So its potential

effect i.s, we would submit, wide; as wide as the

definition of discrimination in the Act would be on

our view.

Nextly, it is our submission that having

regard to the subject-matter of the Act, it is

clearly socially important legislation and it is

important for that reason that the Court ensure its

proper interpretation. Nextly, a number of the

issues raised are common to the Equal Opportunities

legislation of the Commonwealth, New South Wales,

South Australia and Western Australia where

legislation in relevantly similar terms exists.

Finally, the case raises the question of the

ability of the Minister or a public servant to

exempt by direction, no matter how informally

given, a public authority from the operation of the

Equal Opportunity Act.

GAUDRON J: It is that point, is it not, that you have to

establish was wrong before any of the other matters

that you have identified really come into play.

Waters 4 16/11/90

MR NORTH: It is one, certainly, that if we lost on, there

would be no value in the other points.	I accept
that, Your Honour, yes.

MASON CJ:  What about directing your argument to

establishing that Mr Justice Phillips was wrong in

the approach he took to that question.

MR NORTH: If Your Honour pleases. His Honour's judgment on

this matter commences at page 110 where he sets out

the two relevant pieces of legislation. the Equal Opportunity Act:

does not render unlawful -

(a) an act done by a person if it was

necessary for the person to do it in order to

comply with a provision of -

and the relevant subsection is (ii):

any other Act;

Then on page 110 at line 18 section 31(1) of the

Transport act is set out and that, we accept, requires the Public Transport Corporation to comply with specific directions of the Minister or the

Director-General. The Court will see on page 113

that at line 8 there is set out a direction which

was given by the Director-General - I am sorry, it

is a direction purporting to come from the Minister

directing, through the Director-General, the

implementation of "the Cabinet resolution approving

the scratch ticket system and the driver-only

trams".

His Honour held that section 31(1) of the

Transport Act was a provision of another Act for

the purposes of section 39(e)(ii).	We submit that
this was wrong.	We submit that section 39(e)(ii)

requires the provision of the other Act to specify

conduct which would otherwise be discriminatory,

that is that the other Act must itself not leave it

to another person to give a direction in certain

terms, but itself specify acts which, if complied

with, would amount to discrimination. There are

examples - or there were certainly existing
examples when the Act was passed. The one we rely

upon, a copy of which I hand to the Court, is

section 132 of the Labour and Industry Act by way

of an example.

Your Honours will see that that provision

makes a discrimination based on sex in terms of

weights that can be lifted and we would submit that

Waters 16/11/90

it is that type of legislation to which 39(e)(ii)

is referring.

MASON CJ:	Why should the words be read down in that way?
MR NORTH:	Your Honour, for this reason - in fact His Honour

characterized our argument as a too restrictive

reading at page 117. We submit that it is a

restrictive reading; that a number of readings are

open but that as a matter of construction of this Act in these circumstances, a restrictive reading is appropriate and necessary, firstly because the

provision is an exemption. It exempts behaviour

from the purview of the Act; secondly, in our

submission, it should be strictly construed to

facilitate the objects of an Act which I have

referred to as one of social benefit; and thirdly,

we say that the consequence of taking a non-

restrictive approach would be to open up results

which would seem, on their fact, to be unintended.

So that, for instance, as we put and was rejected

by His Honour at page 117, a Director-General who

is a public servant could orally direct the Public

Transport Corporation, for instance, not to comply with the entirety of the Equal Opportunity Act.

Now, His Honour described that submission or

the argument as overstated, on page 117 at line 19
but, with respect, it is the result and it is not

one that would follow from an ordinary

interpretation.

MASON CJ: What about (iii) in paragraph (e)? Is that not

inconsistent with your submission, because it looks

to a situation where what is done is necessary to

comply with a provision of:

an instrument made or approved by or under any

other Act.

Is there any restrictive definition of

"instrument"?

MR NORTH:	Not in the Act, Your Honour, no.
MASON CJ:	So (iii) contemplates an exemption in the case of

what is necessary to comply with an instrument, say

a document in writing executed by a public servant

under statutory authority.

MR NORTH:	Yes, but Your Honour it is the issue of "under statutory authority" which binds the exercise of
the power to what is fundamentally a legislative
rule. In other words, the instrument still must be made or approved by or under any other Act, so that
it is as restrictive, in our submission, as (ii) in
the sense that it looks to the instrument being

Waters 6 16/11/90

warranted by the Act and we would say, with

respect, the clear line that goes through (ii) and (iii) is that the legislature retains control over

what is discriminatory conduct or not. And it does not hand it over to a Director-General of transport
who can, with the stroke of a pen, exempt large

governmental undertakings from this legislation.

Your Honour, it is not as if this

section 31(1) of the Transport Act is unique or

unusual. It is one example of many similar types of sections scattered through the statute book in Victoria giving ministers the power to direct

governmental public servants and other officials of

statutory corporations instructions as a matter of

course. It seems to be the ordinary power vested

in a minister, and we have some examples, for

instance, if I can just hand up by way of

illustration two that we have readily found: one

in the Housing Act in section - - -

MASON CJ:  Mr North, we will take these and we will look at

them over the adjournment. We will adjourn at this

stage and resume at quarter past 2.

MR NORTH: If Your Honour pleases.

AT 12.52 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.20 PM:

MASON CJ:  Mr North, I think having heard what you have to

say on 39(e)(ii) we might hear what Mr Costigan has

to say in response to this application and, for

that matter, in support of his application for

special leave.

MR NORTH: If Your Honour pleases.
MR COSTIGAN:	If the Court pleases, we adopt what was said

by the learned trial judge in relation to

section 39(e)(ii).	We say that his analysis of the
section was correct.	We would particularly refer

to those parts of his judgment which commence on

page 110, pick up page 115, 119 and 123. At

page 115 line 15 His Honour said:

There is no doubt but that s.31(1) is properly

characterized as "a provision of another Act"

within the meaning of 39(e)(ii) -

Waters 7 16/11/90

and His Honour then went on to analyse it, and

particularly at page 117, as my learned friend
indicated, he said that the complainants had

overstated the position and on page 118 at the

bottom and page 119 he came to the conclusion that

the direction given in this case by the Minister

through the Director-General to the Corporation was

of a kind which fell within section 39(e)(ii). We

adopt that and we say, as we said to His Honour on

a number of occasions, a distinction had to be made

between the client for whom we appear, which is the and any suggestion that the Minister himself was the defendant.

We are a corporation who, under section 31 of the Transport Act, was directed to pursue and to

implement government policy in two respects:

firstly, the implementation of a "scratch" ticket

system and, secondly, the implementation of a

driver-only system. They were specific directions

given to the Corporation by the Minister which,

under section 31 of the Transport Act it was

required to comply with. The Corporation, of

course, was placed in an invidious position if, on
the one hand, it was required by the Minister

passing on the decision of Cabinet to follow a

particular course and implement, under that

direction, government policy and on the other hand

required not to discriminate in the sense in which

it was said the Act required it not to

discriminate. So we submit that when His Honour

said that the direction given to the Corporation by

the Minister was a direction contemplated by

39(e)(ii), His Honour was correct.

When His Honour then went to the secondary

question of whether it was necessary for the the direction, we say His Honour was correct in

his analysis of the situation having regard to the

fact that the direction itself - and perhaps I

limit myself here to the question of driver-only

trams, because the question of "scratch" tickets is

really no longer a matter of interest, different

decisions having been made by government and

different directions having been given under the

Transport Act, the Corporation having been directed

by the Minister through the Director-General to

introduce a system of driver-only trams, steps

taken by it to introduce that system were necessary

to comply with the direction. It was not to the

point to suggest that there may be some other way

of doing it which we had not analysed. There may,
of course, be other kinds of steps that could be
taken by the Corporation to implement the decision,

but the end result of those steps in compliance

Waters 16/11/90

with the direction would be to produce a driver-

only tram system.

So that we say in so far as the learned trial

judge indicated or found that 39(e)(ii) was
relevant to this direction, he was correct. In so

far as he found that it was necessary for the

Corporation to do what was complained of in order

to comply with that direction, His Honour was

correct. Quite simply, that is our submission on

39(e)(ii), if the Court pleases.

I take it the Court is not wishing me to argue

other points in the application for special leave

because - - -

MASON CJ: That is a matter for you, Mr Costigan. After all,

we have called on you. We were particularly

interested in the submissions that you would make

by way of response to Mr North's argument on

39(e)(ii), but now in effect it is for you to

advance any other argument that you think

appropriate against the grant of special leave.

MR COSTIGAN:  We would say also this, Your Honours, that

even if the Court was against me so far as

39(e)(ii) was concerned, there is a hurdle which my

learned friend has to get over in terms of the
interpretation of section 17(S)(c) and that is the
provision of the Act which defines "discrimination"

in terms of the imposition of a reasonable

requirement or condition.

MASON CJ:  I see, yes.

GAUDRON J: That only goes to part of the case, does it not?

MR COSTIGAN: Yes, it does, but in so far - - -

GAUDRON J: If Mr North is correct on 39(e)(ii)

MR COSTIGAN:	He still has a problem, Your Honour, - - -
GAUDRON J: The complaints stand dismissed by virtue of

39(e)(ii). Nothing else in this case would result

in the dismissal of the complaints, only in a

further hearing. So you say that results in the

dismissal of one complaint.

MR COSTIGAN:	We would say that is not correct, Your Honour. Even if 39(e)(ii) did not apply so as to exempt the Corporation from the operation of the Act, it would
still be incumbent upon the complainants to
demonstrate that there were acts of discrimination
within the meaning of the Act.  In order to do that
one would have to go back to the analysis of the
Act which His Honour made, starting in effect at

Waters 9 16/11/90

section 29 which says that it is unlawful for a

person to discriminate in the way in which that

section then sets out, and having picked up
section 29, provided one was satisfied that you

came within section 29, you have then got to go

back to section 17(5) to see whether there was

discrimination as there defined. In the particular
circumstances of this case, we would say that what

my learned friend and the complainants have always

said was that there was discrimination because the

Transport Corporation had imposed on the

complainants a requirement or condition which - and

then reading the rest of the section, but you do

not get discrimination unless there is that kind of

requirement of condition which is contemplated by

subsection (5).

McHUGH J: But this point is a very important point, is it

not? The High Court really did not deal with it in

Banovic.

MR COSTIGAN:  No, it did not. It really said it is

important to define what is the requirement or

condition but there was an agreement between the

parties in Banovic that there was a requirement or

condition so it did not become a matter of debate. But it is a matter of crucial debate in this case, of course, and it is difficult for me to say that

it is not an important point because it is an

important point, but we say the learned trial judge

is absolutely right and that even if important,

this is not a matter that the Court ought to give

leave to appeal on because the result which

His Honour came to is clearly the correct result.

It is in that sense, Justice Gaudron, that I

was saying that even if we do not persuade the

Court in relation to 39(e)(ii), if in any event the

complainants are not able to satisfy the

requirements of 17(5) then they are not going to

win anyway.

GAUDRON J:  Does that go to both issues or only to the

driver-only trams?

MR COSTIGAN:  It only goes to driver-only trams. We did not

dispute- - -

GAUDRON J: If you were not right on 39, the complaints

would still very much be alive as to the "scratch"

tickets.

MR COSTIGAN:  Yes, but we would say that it would not be for

this Court to give special leave to appeal in

relation to the "scratch" tickets as they have

disappeared. It would be theoretical. But the

driver-only trams is really - we never disputed

Waters 10 16/11/90

before the trial judge that there was a requirement

or condition in relation to the "scratch" tickets

which enabled one to get into subsection (5) and

then consider whether it was discriminatory. The

argument about requirement or condition was really focused on the question of driver-only trams. But we would say that if our submissions which were

accepted by the court and which we adopt are

correct, that there was not a requirement or

condition of a discriminatory nature within the

meaning of this Act in relation to driver-only

trams, then the complaints would not succeed

independently of 39(e)(ii) and this Court should

not give special leave.

GAUDRON J: But what has happened to "scratch" tickets?

They stand dismissed by virttie of the decision above concerning section 39(e)(ii).

MR COSTIGAN:  Yes.

GAUDRON J: If you are wrong on 39(e)(ii) those complaints

are still good and they must go back, assuming all

other things against Mr North's clients, to be

determined in accordance with the matters in the

judgment.

MR COSTIGAN:  Your Honour, with respect, that is so, but it

would not trouble this Court, the "scratch"

tickets. We would say, if there was any question

of this Court looking at "scratch" tickets that it

would not be appropriate for it to do so, having

regard to the change in government policy and the

specific announcements that have been made over the

last 12 months and, in fact, the change of practice

in the Melbourne transport system.

MASON CJ: Just remind us of that, would you, Mr Costigan.

MR COSTIGAN:  It is almost 12 months since the trams were

stationary in Melbourne and there - - -

MASON CJ:  Coming from New South Wales, we are not as

conversant with these events as no doubt everyone

else here is.

McHUGH J: Not even with trams.

MR COSTIGAN:  I am glad to say I was not in the country when

it happened, Your Honour. There was a great

dispute in Melbourne as to the "scratch" tickets

and there was great opposition to it which resulted
in a great deal of publicity as a result of which

the government changed its policy and indicated -

and in fact a new system of "scratch" tickets was

introduced and there has recently - that is in the

last few months - been introduced alternative

Waters 11 16/11/90

systems and now you can buy your tickets on the

tram in the way in which you used to be able to buy
them, but you can also buy "scratch" tickets at the

newsagent if you choose that course. So that the

requirement that any passenger on a tram had to

obtain a "scratch" ticket has disappeared and

therefore the basis for the complaints has

disappeared, so far as the future is concerned.

So that for this Court to be considering the

question of whether "scratch" tickets would
discriminate - - -

MASON CJ:	You say it is not a live point for the future.
MR COSTIGAN:	It is not a live point and should not trouble

this Court.

McHUGH J: If this Court was to follow the interpretation

given to the words "requirement or condition

imposed" in the English and other cases, there

would be a strong case for saying that the judge
was wrong here and the interpretation seems to have

gone very far.

MR COSTIGAN:  Your Honour is directing that remark to the

driver-only - - -

McHUGH J:	The conductor -
MR COSTIGAN:	The strong argument, Your Honour, is no doubt

the argument that my learned friend put to the

judge which was rejected.

McHUGH J:  I must ·say, although I dissented in Banovic,

having regard to those English authorities, I would
think that there is a strong argument in favour of

saying that the judge was wrong in this case, prima

facie.

MR COSTIGAN:  Your Honour, we say that there is a strong

argument that he was right and that on a proper

analysis of what is meant by - - -

McHUGH J:  I know, but the words have been interpreted

almost to cover any case where you want to allege

discrimination. You just simply say, here is a

requirement that you cannot use these trams unless

you are prepared to go on them without a conductor,

and that is a relevant requirement or condition.

MR COSTIGAN:  What the section says, putting it in terms of

this case, is that the Corporation has imposed a

requirement or condition on the people who are

complaining.

Waters 12 16/11/90

McHUGH J: But the cases do not require some existing

relationship between the parties before the

condition or requirement is imposed. They seem to

accept that the requirement can be part of the

initiation of the relationship almost.

MR COSTIGAN:	We do not challenge that, and of course that is true in relation to the "scratch" tickets.	The
very purchase of the ticket incorporates some
condition or requirement that the potential

passenger cannot get on the tram or cannot purchase a ticket except, in the early part of this year, by

buying a "scratch" ticket. And we never really

challenged, in the light of the authority, that

that was a requirement or condition. We say it is

a quite different matter when what you are doing is

providing a service to the public which is a

service without conductors. You are not

discriminating against one group compared to other

groups by saying that they are to be treated

differently; what you are doing is providing a

service which is available to everyone in the

community. There are some people who, for other

reasons, are disadvantaged and have more

difficulty.

McHUGH J: That is the whole point about indirect

discrimination, is it not?

MR COSTIGAN:  It is, but the discrimination has to be tested

by reference to the service that is being provided

and if the service itself is of a kind that is

going to be more difficult for some people than

others, it is not necessarily discriminatory. But

that is the argument, Your Honour. We could spend

some hours - - -

McHUGH J: That was the argument in Queensland Bar

Association v Street's case. They said there was

no discrimination against interstate barristers

simply because they had to comply with

residence - - -

MR COSTIGAN:  I am not here to defend the Queensland Bar,

Your Honour.

MASON CJ:  No, I think you have a difficult enough task as

it is.

MR COSTIGAN:  That is all we wish to say about that point,

Your Honours. So far as our own application for

special leave is concerned, that is in matter No. 3

of 1990 - - -

MASON CJ: Yes, the jurisdictional point.

Waters 13 16/11/90

MR COSTIGAN:  The jurisdictional point, but we have to say

quite frankly, Your Honour, that if the Court did

not grant leave - - -

MASON CJ: It would be of no importance.

MR COSTIGAN:  We would not pursue it, that would be the end

of it.

MASON CJ: But despite the bait that you hold out to us, I

think you ought to pursue the argument.

MR COSTIGAN:  It was not an offer. The point is a short one

and that is that His Honour Mr Justice Cummins was

hearing the application - let me go backwards.	The
complaints were made following an announced

decision by government that there was. going to be a

new system which included "scratch" tickets and

driver-only trams. The complaints went to the

Equal Opportunity Board who said, we have got no

jurisdiction because there are no acts of

discrimination upon which we can act and therefore

we have no jurisdiction. That went to His Honour

Mr Justice Cummins who said that, yes, on a proper

analysis of the Act it is possible to have an act

of discrimination even though it is an anticipated

act and not an actual act.

Now, we say that that is wrong and the proper

interpretation of the Act would indicate that what

is able to be complained of under the Act are

actual acts of discrimination and we would invite

the Court to look at the Act and, in particular,

from section 17 onwards, 17, 18, 20 and then the

range of. sections from 21 to 33, all of which speak

of the unlawful acts of discrimination in respect

of which an unlawful categorization is imposed.	We
say that a proper reading of the Act - - -

GAUDRON J:  Mr Costigan, to what extent is this point of

practical application, given that the decisions

have since been implemented?

MR COSTIGAN:  It is difficult to answer that question,

Your Honour. It is a matter of very considerable

interest, indeed of public interest, in the

operation of the Act, whether complaints can be

made before the Equal Opportunity Board before any

actual acts of discrimination have occurred.

GAUDRON J: The effect would be in this case, would it, that

if you were right on this point but wrong on the

others, any one of the others, the complainants

would simply go and lodge fresh complaints?

MR COSTIGAN:  I do not want to speak for them - - -

Waters	14	16/11/90
GAUDRON J: Well, could.

MR COSTIGAN: But could, yes. It is for that reason, quite frankly, we would not wish to pursue this important point in isolation from other points, but that if

the Court felt that the application by my learned friend should be granted and this matter debated,

we would wish to have this available for debate at

the same time. I cannot be franker than that,

Your Honours, and that is the reality of it.

MASON CJ:  I know you have been very frank, Mr Costigan.

MR COSTIGAN: There is nothing further we wish to put.

MASON CJ:  Now Mr North, we do not wish to hear you on your

application, but what do yOu say in response to

Mr Costigan's application?

MR NORTH:	Your Honours, we say that his application is academic in the sense that the issue there was jurisdiction in the case of anticipated
discrimination or at least - - -

MASON CJ: True, but if we are undertaking the appeal on

your application which necessarily involves

examination of a number of important questions

concerning the interpretation of the Act, why
should we not look at this fundamental question as

well?

MR NORTH:  Your Honour, I could say there is no reason, put

that way. I cannot deny that that is a significant

point, but it is academic in this case, and it is

academic because the case before

Mr Justice Phillips and before the Board, when it

came to the hearing, was all postulated on the

basis of a then implementation. As long as that is

clear to the Court, I cannot advance a reason to

say that as an academic matter the question of

whether there is discrimination on an announcement,

as was held in Banovic or as was accepted in

Banovic is not an important matter.

I have nothing else to say unless the Court wishes to hear -

MASON CJ:  The Court will grant special leave in each

application but we should specifically indicate

that the grant of special leave in Mr Costigan's

application is subject to revocation of the grant

in the event that the Court, when it comes to

explore the issue in greater depth on the appeal,

feels that that is the appropriate way in which to

dispose of the case, and in a less specific way I

should also say that there may be some aspects of

Mr North's proposed appeal which may require

Waters 15 16/11/90

reconsideration on the part of the Court. But

subject to those comments, special leave is granted

in relation to each application.

AT 2.42 PM THE MATTER WAS ADJOURNED SINE DIE

Waters 16 16/11/90