Webster v Deahm

[1993] HCATrans 209

..

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• ~

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF

DISPUTED RETURNS

Office of the Registry

Sydney No S71 of 1993

B e t w e e n -

ALASDAIR PAINE WEBSTER

Petitioner

and

MAGGIE DEAHM (also known as

MARGARET JOAN DEAHM)

First Respondent

and

BRIAN COX. THE ELECTORAL

COMMISSIONER

Webster 128 6/8/93

Second Respondent

For Directions

GAUDRON J

TRANSCRIPT OF "PROCEEDINGS

AT SYDNEY ON FRIDAY. 6 AUGUST 1993. AT 10.02 AM

(Continued from 30/7/93)

Copyright in the High Court of Australia

HER HONOUR:  Now, what has gone wrong, Mr Therry-Ward?

MR THERRY-WARD: Well, nothing has really gone wrong,

Your Honour. You will recall that a subpoena was

issued directed to the second respondent to produce
the consolidated list of voters and the certified
list of voters for the electorate of Macquarie.

Those documents are now in the Court and I would formally ask Your Honour if we could have access to

those documents.

HER HONOUR:  Yes. I take it there is no difficulty about

that? ·

MRS GLASSON:  No, Your Honour. The documents are produced

and there is no objection to access. The second

respondent asks that the documents be returned back

to its custody rather than being left with the

Court.	I understand my friend has no objection to
that.

MR THERRY-WARD:  There is no objection to that. I am sure

there will be no difficulty about this either, that

my people can have access to them in the office of

the Commission.

MRS GLASSON:	Yes, that is the position, Your Honour.
MR THERRY-WARD:	Thank you.
MR McCARTHY:	Your Honour, I also have no objection to

access being had but could I just raise this for

the first respondent to try and understand what the

position is: in relation to this point, as I

understand where Your Honour's thinking was moving on the last occasion, the issue was in relation to whether the parts of the petition that applied to

the invalidity of the electoral roll, 361(1),

Your Honour was concerned as to whether this was,

in effect, a live issue or not, in the sense, as I

had understood it, that Your Honour wanted to be

assured that whatever the number of votes that were

involved with that would, to take the matter

further, affect the result of the election.

As I had understood Mr Therry-Ward,

Mr Therry-Ward had a list of names that he said

were people who were on the electoral roll but

should not be on the electoral roll, and what he

could not, or, at that time, say to Your Honour is

whether these people had, in actual fact, voted or

not. The only inquiry that needed to be made was

whether those persons that were being challenged as

not being properly on the roll who were on the roll
had in actual fact voted, and that that was the

purposes of looking at the roll.

Webster 129 6/8/93

Now, as I understand it, Your Honour, from the

AEC, if that list is provided to the AEC, they will

tell Mr Therry-Ward who, on that list, has in

actual fact voted. There is, I see over there,

enough material to keep anyone busy until the next

federal election. But I would have thought there

was another way in which this could be fairly

briefly done.

Your Honour, I raise that for two reasons:

first of all, to just inquire as .to whether I am

mistaken as to what the fact issue was that

Your Honour just wished to -

HER HONOUR: Well, I do not know what has gone on, I am

sorry. I was preparing to give judgment today on

the motions when I was told that Mr Therry-Ward

wished to make further submissions, and then a

subpoena was issued. That is as much as I know.

Then it was suggested that the submissions could

not be made because somebody's computer had

crashed. That was the message I received.	I know
nothing.

MR McCARTHY:  Your Honour, if it would be of assistance or

convenient to Your Honour, perhaps Mr Therry-Ward

might just say what it is that is being sought.

That was my understanding as to what the only

factual inquiry was at the present time and that he

wanted to say something about that as a result of

that. But, Your Honour, could I invite

Mr Therry-Ward to inform Your Honour and ourselves

as to what it is that is sought if it is something

other than what has just been outlined?

MR THERRY-WARD:  Your Honour, the situation is quite clear,

in my submission. We have a list now of 797

people. Within that list of 797 people are 414

people, at least, who were not entitled to be on
the roll.	Now, Your Honour will recall that much

of the - indeed, the substantial argument on the

last occasion was whether there should be an

inquiry into the validity of section 361(1).

Now, it appears that at least 414 people are

on the rolls that should not be there, and they

should not be there for a number of reasons, not

the least - - -

HER HONOUR:  Well, do not go into those. We know about

that, Mr Therry-Ward.	We know you have alleged
that.

MR THERRY-WARD:	Yes.
HER HONOUR:	I was told by the Registrar that you wished to

make certain further submissions. I understand

Webster 130 6/8/93

there was communication between you and the

Registrar as to whether or not those submissions

could be put in in writing with the agreement of

all concerned.

MR THERRY-WARD:  Yes.

HER HONOUR: Well then, what has since happened to that?

Why am I not giving judgment today? I mean, the

reason I am not giving judgment is because I was

told that there was to be further submissions.

Now, what is going on?

MR THERRY-WARD:  That is another matter, with respect. The

problem about that is Mr Sackar is not here at the

moment and therefore - - -

HER HONOUR:  What do you want to put submissions to me

about?

MR THERRY-WARD:  Your Honour, I would prefer not to in the

absence of Mr Sackar, but it relates to - - -

HER HONOUR:  The Electoral Commission is represented.

MR THERRY-WARD:  Yes. It relates to the fact - we sought to

demonstrate to the Court that it was not possible

for us to have access to the electoral rolls prior

to the petition being prepared.

HER HONOUR:  That has got nothing to do with anything except

to the extent that it might be a factor to be taken

into account if relief is to be given under

paragraph (aa).

MR THERRY-WARD: Yes, indeed. Well now, Your Honour,

therein lies the point. I do not want Your Honour

to take the view, as Your Honour might take it at

the moment, that in fact we were not diligent in

that respect. It is my submission that section 47A

of the Freedom of Information Act expressly

excludes electoral rolls capable of being produced

under that Act. Now, in addition to that,

section 360 of the Electoral Act makes provision,

however, that if application is made, then it is

possible for an order to be made for access to be

given to the rolls. So that, as we saw it at the

time, proceedings have got to be started. Then we

can get access to the rolls.

My only additional submission in respect of

this, Your Honour, is that we could not have, in

all diligence, obtained access to the rolls prior

to the petition being prepared and that it is not,

in fact, the case that we were therefore not

diligent in that respect.

Webster 131 6/8/93

HER HONOUR:  What do you propose to do today or hereafter?

I will tell you whether I agree to it but you tell

me what you are proposing to do because I have no idea what has gone on. I must return to Canberra

next week. This is a most unsatisfactory state of

affairs for things are now necessarily left

hanging.

MR THERRY-WARD:  Yes. Your Honour, could I just indicate

first of all that Mr Webster inspected the rolls

yesterday and obtained much of the information that

he requires so that he can properly instruct me.

As I understand the position, he now wishes to

further inspect the rolls to obtain the further

information that he requires and when that is

done - I cannot imagine that that is going to take

very long from what I have been told - we will then

be in a position to argue the matter further.

HER HONOUR: Argue what matter further?

MR THERRY-WARD: Well, Your Honour, to demonstrate, for

instance, that of, for example, a list of 797

people that we have, it would appear - - -

HER HONOUR:  You will be in a position, will you, to provide

particulars -

MR THERRY-WARD:	- of names and addresses.
HER HONOUR:	You will be in a position to provide

particulars of the numbers whom you say voted?

MR THERRY-WARD:	Yes.
HER HONOUR:	Will you want to do any more than that?
MR THERRY-WARD:	Yes, just one further thing, Your Honour.

Last night I was given instructions to prepare an	additional subpoena. That has now been prepared.
It is directed to the Electoral Commissioner. It
seeks additional information. A copy of that
document has been handed to my learned friend for
the second respondent this morning but it is
proposed to have that registered in the Registry
this morning.

HER HONOUR:	What does that go to?
MR THERRY-WARD:	Can I just indicate to Your Honour what

that goes to? Your Honour will recall that one of

the allegations in the petition is that there have

been a number of instances where people voted

multiple times and that voters were issued with

incorrect voting papers.

Webster 132 6/8/93

HER HONOUR:  There is no allegation to that effect in the

petition, as I recollect it. The allegation is

that people's names were twice struck off. There

is no allegation of double voting.

MR THERRY-WARD:  Yes. Well, Your Honour, once again, what

this particular subpoena is going to is to that

particular matter.

HER HONOUR:  I do not see how that is in the least bit

relevant; not in the least.	How can that be
relevant?	You cannot change your petition now.

You can give particulars, but you cannot change the

grounds of the petition.

MR THERRY-WARD:  Your Honour, in my submission, this is

going to the question of giving particulars to

matters already in the petition. It is certainly

not suggested - - -

HER HONOUR:	How?
MR THERRY-WARD:	Your Honour, in respect of the double

voting, for instance.

HER HONOUR:	But it is not alleged in the petition that there was double voting.
MR THERRY-WARD:	I think the way it goes, Your Honour, is it

is suggested in the petition that persons voted

more than once.

HER HONOUR: Is it so stated?

MR THERRY-WARD: Yes, Your Honour. Perhaps if I could find

that. At page 7 at about point 5. It is (c) on

page 7, Your Honour:

That Section 338 of the Act was not complied

with - - -

HER HONOUR:	Yes, I see.
MR THERRY-WARD:	The first part of this subpoena relates

directly to that.

HER HONOUR:  So, you want to give particulars of that?

MR THERRY-WARD:  To give particulars of that. Then

Your Honour will recall that it is claimed in the

petition that 800, or thereabouts, provisional

votes were disallowed and so that further

particularization can be given of that, the

subpoena is directed to that question.

HER HONOUR: Well now, what is that? This is a most

unsatisfactory state of affairs, Mr Therry-Ward.

Webster 133 6/8/93

It came forward on the basis of motions - most

unsatisfactory - and there is no application by you

even to be given leave to add further particulars

as such. Most unsatisfactory.

MR THERRY-WARD:  Yes, I am sorry, Your Honour.

HER HONOUR:  Yes. I mean, the Court's time is not limitless

in this regard, more particularly when it is now

looking as though a very considerable part of its

time has been wasted. If you wanted to make an

application to give further particulars - well,

what is the particular that you will want to be

added?

MR THERRY-WARD:  What is intended to be given, Your Honour,

is, first of all, further particulars.

HER HONOUR:	As to what?
MR THERRY-WARD:	As to the allegation on page 7, starting at

paragraph (c) and the particular given under (c).

HER HONOUR:	Page 7, (c), yes, that is one.
MR THERRY-WARD:	And then to page 12 at about point 5:

(b) Persons voted in the Election in the Electorate of Macquarie who were not

entitled so to vote.

HER HONOUR:	Yes.
MR THERRY-WARD:	And page 13 at about point 8:

(c) Provisional votes for the Election in the Electorate of Macquarie were unlawfully

excluded from being counted.

And then in relation to page 16, the allegation is

at (c), that the election for Macquarie was

invalid, and certain initial particulars are given there. It is further proposed to seek information in the subpoena to further particularize that

matter.

HER HONOUR:  I do not see how you can get information from

the Electoral Commission - well, I do not know. It

seems to me that at the very least you have got to

have a motion on for leave to amend those

particulars.

MR THERRY-WARD:	Yes, Your Honour.
HER HONOUR:	I do not know whether the Electoral Commission

is prepared to make the information available to

Webster 134 6/8/93

you or not. But it seems to me most unsatisfactory

the procedures that have been adopted.

MR THERRY-WARD:  Yes, I am sorry for that, Your Honour.

Perhaps, in that case, Your Honour, if we prepare a notice of motion.

HER HONOUR:  Do you know the particulars you want to add?

Do you want to see the rolls to get those particulars?

MR THERRY-WARD: Certainly, in part, yes, Your Honour.

HER HONOUR:  Is that information there sufficient for you?

MR THERRY-WARD: It is sufficient, together with the

information - let me put it this way: with what is

included in those boxes, together with what is

sought in this latest subpoena - - -

HER HONOUR: Well, now what are you seeking besides the -

are they the ballot papers or the rolls?

MR THERRY-WARD:	They are the rolls.
HER HONOUR:	You are seeking the ballot papers, are you,

now?

MR THERRY-WARD:	Yes, Your Honour.
MRS GLASSON:	Your Honour, they are not strictly the rolls.

What is produced in those boxes is a :::msolidated

list for the Division of Macquarie, pl'~ts the

certified lists of all ..... in that division.

HER HONOUR:  Yes, thank you. Now, you are seeking as well

the ballot papers? Are you seeking anything else?

Why do the ballot papers matters.	I mean, I see no
basis on which they matter.

MR THERRY-WARD:  It is not really all of the ballot papers,

Your Honour. What we are concerned with at the

moment is the fact that a number of voters were

issued with incorrect ballot papers.

HER HONOUR:	Where does that come from?
MR THERRY-WARD:	That is also alleged in the petition.

HER HONOUR:  Yes. Where?

MR THERRY-WARD: It is to be found, Your Honour, in

particular (a) at the bottom of page 16.

HER HONOUR:  No, it is not.

Webster 135 6/8/93

MR THERRY-WARD:  The only ballot papers that are really

required, Your Honour, are those for the

provisional votes.

HER HONOUR:  You are going on a fishing expedition there.

MR THERRY-WARD: Certainly, I am trying not to see it that

way, Your Honour. It is not intended to.

HER HONOUR:  Now, what is this subpoena that you - is it

then just for the ballot papers for the provisional

votes?

MR THERRY-WARD:  Yes. Can I hand it up to you, please,

Your Honour?

HER HONOUR:  It looks very much like a fishing expedition,

pure and simple, to me, Mr Therry-Ward - pure and

simple.

MR THERRY-WARD:  Yes, Your Honour. Can I just try to

convince Your Honour that it is not intended to be

a fishing expedition. It is intended,

particularly, to assist the Court.

HER HONOUR:  Is there not a preliminary question, so far as

those matters are concerned, whether I would allow

you to particularize anything else?

MR THERRY-WARD:  You see, the difficulty is that we were not

able to get the rolls before the petition - it gets

back to the original trouble, Your Honour. If we

had been able to have full access to all of the

voting materials, it might have been a different

situation but the problem is that we cannot do

that, as I see - - -

HER HONOUR:  I am not going to authorize that subpoena

in isolation from an application for further

particulars because it seems to me that what you

want to do is so particularize this petition as to

make it by no means clear that it is the same

petition that was advertised or filed.

MR THERRY-WARD: Yes. So, Your Honour, for instance, can I

just indicate that we have been told by the

Electoral Commission that 415 people were given the

wrong ballot papers. Now, the only way that we can

substantiate that is -

HER HONOUR:  I do not see where that is even anywhere in

this petition. It is certainly not in 16(a).

MR THERRY-WARD: In my submission, Your Honour, it relates

to the - on the top of page 17 reference is made to
the 19,473 votes in New South Wales, and it may

well be - - -

Webster 136 6/8/93

HER HONOUR:  Mr Therry-Ward, it is difficult enough to make

any sense of the document that you have filed.	It
is almost incomprehensible. It is certainly the
worst court document I have seen in many, many

years. The requirements of the Act are clear. I

am prepared to defer consideration pending your
taking out a notice of motion seeking to

particularize other matters and you can at the same

time argue, if you wish, that you need access to

some material from the Electoral Commission to

complete the particulars and provide some basis as

to why that should be done.

The first consideration is whether, in any

circumstances, there would be a grant of

dispensation with respect to the matters that you

would wish to particularize now.

MR THERRY-WARD:	Yes, Your Honour.
HER HONOUR:	Now, that is as much as I am prepared to do.

When can you have such a notice of motion?

MR THERRY-WARD:  Your Honour, it can be prepared

immediately.

HER HONOUR: Well, I hope not. I hope it will be given some

thought. When will it be filed with the benefit of

some thought?

MR THERRY-WARD:  Your Honour, I can have it filed, say, at

the latest, by next Wednesday.

HER HONOUR:  I will hear what Mr McCarthy has to say, and

Mr Sackar.

MR McCARTHY:  Your Honour, I appreciate what Your Honour has

said. Your Honour, I would have thought that one

of the matters that Mr Therry-Ward in his motion

should also seek as an order is why the notices of

motion that have been moved by the first and second

respondents ought to be set aside at this stage.

Your Honour, the state of the proceedings as

at this morning was that there had been a motion at

Your Honour's direction that had been put on by

both the first and second respondents; submissions

had been received in relation to that; oral

argument had been heard and the matter was
reserved, and Your Honour was proceeding on a

programme to give judgment.

Now, Your Honour, what I understand

Mr Therry-Ward wants is, first of all, leave to

amend his particulars but a part of that must

surely be associated with eventually seeking to

Webster 137 6/8/93

have our motions reargued in some shape or form or

that our motions be set aside in some shape - - -

HER HONOUR: 

I think it would be to the extent that relief

is granted under - with respect to the particulars,
that relief not be granted as requested by you.

MR McCARTHY: 

Yes, Your Honour. Well, Your Honour, in

respect to the extent to which he is given an

opportunity to amend, I assume -

HER HONOUR:  No, he has not been given an opportunity -

well, it may happen.

MR McCARTHY: Sorry, I withdraw that, Your Honour: an

opportunity to particularize, I assume that -

HER HONOUR:	An opportunity to seek leave to particularize.
MR McCARTHY:	Your Honour, that would have to carry with it

at least an implication that at some stage or other

he would also be seeking to have those parts of the

petition - if he is granted leave, to have those

parts reargued. I just wanted to isolate that as

one of the factors, Your Honour, that appears to me

to - - -

HER HONOUR:  Yes, the matters being page 7, particular (c);

page 12, particular (b); page 12, particular (c);

page 16, it is said, is (a) but I see no basis for

page 16(a) being the subject of a particular at the

present time.

MR McCARTHY:  Your Honour, presumably it would also be part

of the argument - I give notice at the moment,

Your Honour, that not only has the Court's time

been wasted atrociously but there are costs that

have been thrown away by both the respondents in

relation to this matter. Your Honour is aware

that - and I hope that they were, in some sense, as

helpful - I took some pains to prepare written

submissions in this matter before the motion was

heard on the basis of the petition that was before

Your Honour and I - again, I hope, of some

assistance to the Court - argued the matter fairly

fully last Monday week in relation to what was set

out there. That, again, was on the basis of the

petition as it was filed and the material as set

out.

As I understand it, my learned friend now

seeks to further particularize the petition and, I
assume, seeks then to reopen the motions in some

shape or form so that he can put other submissions

to Your Honour.

HER HONOUR: That is as I understand it, yes.

Webster 138 6/8/93

MR McCARTHY:  Your Honour, obviously, that is a matter for

Your Honour's ultimate discretion but I would

respectfully submit that none of this is taking the

parties, including the petitioner, anywhere. The

petitioner has a petition which, at law, he has

filed which he is, also at law, in our submission,

because the 40 days have now expired, not in a

position to amend.	The particulars that are sought
at first - - -

HER HONOUR: Well, that is the question, is it not? It has

not been decided.

MR McCARTHY:  I accept that, Your Honour, but I submit that

what has been put to Your Honour has not taken the

matter any further. But I could understand how

Your Honour may well wish to have it put in that I

am saying things on the run and that - - -

HER HONOUR:  It is very difficult to deal with it without a

formal motion, particularly in the context of the

petition.

MR McCARTHY:  Your Honour, in those circumstances, I presume

the Court and the respondents would be assisted if
there was a fairly detailed argument given as to

why our motion should not be just dealt with now,

if Your Honour is - - -

HER HONOUR:	He is entitled to ask for relief.
MR McCARTHY:	Yes, Your Honour

HER HONOUR:  He has not thus far. He is entitled to make

his application. There is no great prejudice in

making an application.

MR McCARTHY:  No. As Your Honour has said, this is going to

involve some considerable further time.

Your Honour, I would just submit again that nothing	that has been put to you this morning would lead	Your Honour necessarily to believe that anyone's
interest, including the interests of justice, will
be served if any of this course of action is
adopted. Thank you, Your Honour.

HER HONOUR:	Mr Sackar?
MR J. SACKAR:	Your Honour, if I may announce my appearance

now with Mrs Glasson. We do not oppose the course

proposed by Your Honour. At some stage, hopefully,

the matter will be sorted out. Your Honour has to

make a decision as to whether, what my learned

friend seeks by way of added particulars, in fact,

puts him in a category where he can ask for

Your Honour's indulgence under section 358.

Webster	139	6/8/93
HER HONOUR:	Yes.	It is only then that the subpoena

MR SACKAR: Yes, becomes relevant. So, Your Honour, whilst we adopt the spirit of what Mr McCarthy has had to

say, we do not oppose Your Honour's course,

naturally enough, and the sooner we have the matter

sorted out, really, the better.

HER HONOUR:  Mr Therry-Ward, you will file a motion, will

you, seeking leave to add further and better

particulars with respect to the matter on page 7,

paragraph (c); page 12, paragraph (b); page 12,

paragraph (c), and I will allow page 16, paragraph

(a), to see what it is you could do with that

paragraph, but it seems to me that it is hopelessly

deficient in any respect at this stage.	You will
file that by Wednesday next?

MR THERRY-WARO:	Yes, Your Honour.
HER HONOUR:	And you will prepare written submissions as to

why leave should be granted and why subpoenas

should be issued to complete the particularization,

and serve those on the respondents.

MR THERRY-WARD: Yes, Your Honour.

HER HONOUR:  When can the matter then proceed? It cannot

proceed any day next week because the Court is

sitting in Canberra. We are in Sydney the

following week but then again not the week after.

MR THERRY-WARD:  Would Your Honour be able to suggest a

date?

HER HONOUR:  I think, really, it is the convenience of

counsel for the respondents now. Is there any date

in the week commencing the 16th that is suitable to

the respondents' counsel?

MR McCARTHY:  Your Honour, I have just spoken to my learned

friend. He is in very considerable difficulty for

a long period of time and has just indicated to me,

in those circumstances, that it would, obviously,

be a date that was convenient to the Court and to

the rest of the parties. Your Honour, I have some difficulties in the week after next. Your Honour,

had indicated, at one stage, that, in this matter,

judgment might have been given next Friday, but

Your Honour has indicated that - - -

HER HONOUR:	Today it was going to be given.
MR McCARTHY:	Yes, and then it was stood over until the

16th.

HER HONOUR:  Today.

Webster 140 6/8/93

MR McCARTHY:  Your Honour, is there any prospect, if we went

to Canberra next week, to see - - -

HER HONOUR:	No, every day is -
MR McCARTHY:	Including Friday you are sitting in Canberra?

HER HONOUR: Including Friday; every day.

MR McCARTHY:	Your Honour, is the Thursday or the Friday of the following week convenient to Your Honour?
HER HONOUR:	Yes, both days are free in Sydney.
MR THERRY-WARD:	Could I just indicate, Your Honour, I have

got a trial that is going in Nowra all of that

week. I know Your Honour has indicated that you

would not be able to do anything on next Thursday

or Friday, but that would definitely be the case,

would it?

HER HONOUR: Absolutely. This is not the Court of Petty

Sessions.

MR McCARTHY:  Your Honour, could I indicate, on the 23rd and

24th I have real difficulties on those days but if

there was a day later that week - - -?

HER HONOUR:  If that week is out, the only possibility is

Monday, the 23rd, but, again, that depends whether the Court is sitting.

MR McCARTHY:  Your Honour, there is a matter in the Federal

Court that I am involved with interstate at which

there are further directions on Monday. If that

matter falls through, I would be available on that

day, otherwise, I am, Monday, Tuesday and

Wednesday, in the Federal Court elsewhere and it is

a matter that I have been in for some time. But,

Your Honour, again, I know that this is not the

place that should be held - there are no other

dates that week that are convenient to Your Honour,

commencing the 23rd?

HER HONOUR:  No, not even the 23rd is available. The Court

is sitting in Canberra. I will take a brief

adjournment and I can tell you whether I might have

some availability in Canberra that week but that

would be all.

AT 10.43 AM SHORT ADJOURNMENT

Webster 141 6/8/93

UPON RESUMING AT 10.51 AM:

HER HONOUR:  In the week commencing 23 August I can sit in

Sydney on the Monday, all day, if the parties can

do that. Otherwise, it is in Canberra on Thursday,

the 26th. Now, I think you may all prefer Sydney.

So, Mr McCarthy, if you become available on that

day - you will know that on Monday, will you?

MR McCARTHY:  Yes, Your Honour. I will contact

Your Honour's associate on Monday.to advise you,

and Mr Sackar and Mr Therry-Ward, and inform them

as to what the situation will be.

HER HONOUR:  I take it that is your preferred course?

MR THERRY-WARD: Yes, Your Honour. Can I just indicate that

on that particular day - - -

HER HONOUR:  On the Monday?

MR THERRY-WARD: Yes, on the Monday, right through that

week, I have got this trial?

HER HONOUR:  On Monday, the 23rd? You said it was the week

before.

MR THERRY-WARD:  No, the week before as well. If

Your Honour would excuse me if I am not here, my

instructing solicitor, he knows as much about it as

I do and - - -

HER HONOUR:  Well, if you are not going to be here that week

or the following week - there is nothing in the

earlier week for you, Mr McCarthy?

MR McCARTHY:  Your Honour, the week of the 16th, I had

indicated that on Thursday or Friday, Your Honour,

I would be happy to come.

MR THERRY-WARD:	So would I.
HER HONOUR:	You would be happy on - - -?

MR THERRY-WARD: Yes, Thursday, the 19th or Friday, the 20th

is fine as far as I am concerned.

HER HONOUR: Thursday, the 19th it is, and I am adjourning

now before there is further confusion on that

matter.

MR McCARTHY:	Your Honour, is it in Sydney or in Canberra?
HER HONOUR:	Yes, Thursday, the 19th, here in Sydney.

Mr Sackar, you were - - -?

Webster 142 6/8/93

MR SACK.AR:  I was only going to say I will try and be here,

Your Honour.

HER HONOUR:	Thank you.
MR McCARTHY:	Your Honour, in relation to the notice of

motion, is Your Honour proposing to give directions

concerning that?

HER HONOUR: Well, it should be filed and served by

Wednesday next and there should be written

submissions filed and served by the Friday, I

think.

MR McCARTHY:  Your Honour, in relation to further facts, is

it also to be a - if there is anything in that way,
to support the motion that that is to be on

affidavit?

HER HONOUR: 

Yes, but I think the problem is that there are

not facts; we have got to assume facts and the
question really is whether, on the basis of assumed

facts, one would amend them - give leave to amend

the petition and issue subpoenas to complete the

facts.

MR McCARTHY: 

So, Your Honour, the notice of motion is to be

filed by the 11th and the submissions are to be

received by the 13th, is it?

HER HONOUR:  Yes. Can you - - -?

MR THERRY-WARD:	Yes, that is fine, thank you, Your Honour.
HER HONOUR:	It is only Mr Therry-Ward's submissions we are

concerned about?

MR McCARTHY:  Yes, Your Honour. As Your Honour pleases.

HER HONOUR:  Yes. Well then, we will adjourn until

Thursday, 19 August at 10 am.

AT 10.56 AM THE MATTER WAS ADJOURNED

UNTIL THURSDAY 19 AUGUST 1993

Webster 143 6/8/93