Wells Fargo Trust Company, National Association (As Owner Trustee) & Anor v VB Leaseco Pty Ltd (Administrators Appointed) & Ors

[2021] HCATrans 63

[2021] HCATrans 063

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S200 of 2020

B e t w e e n -

WELLS FARGO TRUST COMPANY, NATIONAL ASSOCIATION (AS OWNER TRUSTEE)

First Applicant

WILLIS LEASE FINANCE CORPORATION

Second Applicant

and

VB LEASECO PTY LTD (ADMINISTRATORS APPOINTED) ACN 134 268 741

First Respondent

VIRGIN AUSTRALIA AIRLINES PTY LTD (ADMINISTRATORS APPOINTED) ACN 090 670 965

Second Respondent

VAUGHAN NEIL STRAWBRIDGE, JOHN LETHBRIDGE GRIEG, SALVATORE ALGERI AND RICHARD JOHN HUGHES (IN THEIR CAPACITY AS VOLUNTARY ADMINISTRATORS OF THE FIRST AND SECOND RESPONDENTS)

Third Respondent

TIGER AIRWAYS AUSTRALIA PTY LIMITED (ADMINISTRATORS APPOINTED) ACN 124 369 008

Fourth Respondent

Application for special leave to appeal

KIEFEL CJ
GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 12 APRIL 2021, AT 10.09 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   May it please your Honours, I appear with my learned friend, MR P.F. SANTUCCI, for the applicants.  (instructed by Norton Rose Fulbright Australia)

MR J.T. GLEESON, SC:   May it please the Court, I appear with MS K.I.H. LINDEMAN, for the respondents.  (instructed by Clayton Utz)

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, there is, in our submission, evident general public importance in authoritative understanding of the meaning of treaties of global commercial significance.  Just such an instrument is the Convention with its relevantly incorporated protocol for international interest in mobile equipment, known as the “Capetown Convention”, given statutory force in this country.

There has not been any decision by a court of ultimate appellate standing in the world so far as we have been able to find out concerning the significance of the conduct claimed by us and upheld at first instance to be required of a lessee upon default in equipment lease and resisted, upheld in the Full Court, on the basis that the words did not require what was in the circumstances of Australia’s location in the antipodes and the lessor’s location in North America as being unquestionably a relatively expensive exercise.

GORDON J:   Accepting all that is right, are we left with a money claim?

MR WALKER:   I am so sorry, your Honour?

GORDON J:   Accepting that that is all correct, are we left with a money claim?

MR WALKER:   Ultimately, it will be a money claim.  There are other money claims not crystallised concerning what I am going to call the possibility of subsequent and consequential expenses that have not been litigated.  So, money claims, yes, your Honours have been informed by what might be called an updating affidavit of the crystallising of the immediate, perhaps primary expense, which is the relocation to Florida.  The money has now been so crystallised as to have been paid in.

GORDON J:   Can I ask another question as well?  Is your primary complaint that the Court of Appeal commenced at the wrong point, the wrong starting point?  I ask that for this reason.  If you read at application book 136 and start with Article XI of the Protocol and you accept the proposition that you have just put to us, that is that it replaced the domestic law in a sense that it – to the extent that it is inconsistent, it prevails over the domestic insolvency provisions and the like, is it right that they have started at the wrong point at paragraph 94?  In other words, they seem to assume a construction rather than looking at the provisions themselves?

MR WALKER:   I am chary of characterising the choice made of the starting place of a number of provisions, all of which have to be construed as necessarily being wrong, however, in our submission, it is plain whether it is a starting point or a culmination that Article XI(2) in Protocol is at the heart of the matter.  I presume that is why their Honours in paragraph 94 in terms of persuasive enterprise regard it as necessary for our success that Article XI(2) had the effect for which we had successfully contended at first instance.

In one sense, of course, one starts with the fact that but for the Convention there is a commercial agreement.  There is a commercial agreement in the nature of a lease used obviously for the purpose of trade financing where possession granted by the lease and retaken upon default is naturally of the essence, in other words, resembling in functional terms the hypothecation involved in the charge, for example.

STEWARD J:   Could I ask you, Mr Walker, is really the nub of your case ‑ is it when the Full Court says at paragraph 105:

it is tolerably clear that the Convention and the Protocol were not intended to operate in a way that would result in such a reworking of generally accepted principles of insolvency law.

Does the nub of – your point is that the treaty does in fact do just that?

MR WALKER:   It sets out to do so ‑ ‑ ‑

STEWARD J:   It is to give special priority to the owner of the equipment in order over term to reduce the cost of financing?

MR WALKER:   Depending upon the primitive purity of one’s view of private contract law, your Honour, it is clear that the Convention sets out to violate ‑ ‑ ‑

STEWARD J:   Yes.

MR WALKER:   ‑ ‑ ‑ what might otherwise happen.  The same is true of the sovereign force of municipal insolvency regimes.  It is clear beyond doubt that the Convention sets out – a polite word would be, to modify.

STEWARD J:   So, in general terms, is that the nub of your case, that that is where the Full Court got it wrong?

MR WALKER:   In what I might call rhetorical terms ‑ ‑ ‑

STEWARD J:   Yes, yes.

MR WALKER:   ‑ ‑ ‑ that is, in terms of the framing of the way in which their Honours finally reach their conclusions, yes, 105 is in several respects wrong ‑ ‑ ‑

STEWARD J:   All right.  Thank you.

MR WALKER:   ‑ ‑ ‑ as not “tolerably clear”.  Of course, there is a reworking and generally accepted principles are, in any event, internationally sufficiently various as to obviously yield that as the intended purpose of this largely taken up and hitherto regarded as largely successful important treaty to regulate trade.

KIEFEL CJ:   Mr Walker, could I take you back to the question of relief?

MR WALKER:   Yes.

KIEFEL CJ:   What would be the relief reframed sought ‑ ‑ ‑

MR WALKER:   With an appropriate declaration ‑ ‑ ‑

KIEFEL CJ:   ‑ ‑ ‑ as to the cost of redelivery?

MR WALKER:   As to what I will call the rights and obligations, there would then be consequential orders, both declaratory and mandatory, with respect to the funds in court.  There are other matters that have not been litigated that obviously fall out pursuant to the obligations with respect to expenses that may or may not come to be incurred with respect ‑ ‑ ‑

KIEFEL CJ:   What matters would not be determined by the principal declaration that you see?

MR WALKER:   The principal declaration will be that under which everything else will follow, we submit.

GORDON J:   By that, do you mean ancillary costs and expenses of the removal?

MR WALKER:   That is right.

GORDON J:   I see.

MR WALKER:   Related to the removal in terms of ascertaining state of repair and the like.  I stress, they have not been litigated but they would be very largely determined, at least as to the premises upon which they would proceed, by the declaration, which would be the primary relief sought.

Of course, it is true that happily there have only been this number of engines for our client which have been affected by the difference between the parties.  But the evident significance in what has to be, in a number of different ways, a global trade of the drastic alteration of the obligation, particularly in leasing agreements, is one which bespeaks the general public importance far far beyond the financial significance of the particular case.

GORDON J:   Is it affected by the structure of the transaction?

MR WALKER:   Not in any idiosyncratic fashion.  The structure of the transaction in terms of what I might call its paradigm, namely a lease ‑ ‑ ‑

GORDON J:   Different if it is a mortgage.

MR WALKER:   ‑ ‑ ‑ is really at the heart of the matter, that is, possession is given upon default, possession is to be given back with mobile equipment, which is what the State’s parties have been concerned with seeking to find some agreement with.  There is an obviously musical chairs effect around the world with respect to the location of mobile equipment such as aircraft engines which calls for a number of possible solutions.  Having no solution is obviously unsatisfactory and those State’s parties who have acceded to the Convention have obviously turned their mind against that, that is leaving it purely to municipal law.

KIEFEL CJ:   Does the choice of transaction or security taken affect the operation of the Convention ‑ ‑ ‑

MR WALKER:   There are distinct differences signified both in the Convention and in the Protocol, and possibly also with respect to individual sovereign declarations, with respect, for example, to what they call a security agreement, title reservation agreement or a leasing agreement – I think perhaps charge and lease has been an obvious commercial distinction ‑ and those are differences which, in our submission, the Convention deals with, at reflecting two things, what in the preamble is intended to be promoted, namely the autonomy of the parties necessary in these transactions, that is they choose and stipulate in advance as part of the negotiation that produces the price of the finance.

GORDON J:   That is the point of it, is it not?

MR WALKER:   Yes.

GORDON J:   The whole point was to create certainty to bring about cheaper financing for aircraft objects ‑ ‑ ‑ 

MR WALKER:   Exactly.  Which, with respect – I am sorry.

GORDON J:   ‑ ‑ ‑ but also to provide certainty and predictability that, when there was a default, everyone knew ‑ ‑ ‑ 

MR WALKER:   Where ‑ ‑ ‑ 

GORDON J:   ‑ ‑ ‑ where, when, and how, what was to happen.

MR WALKER:   The first instance judge, in our submission ‑ and with great respect, has thoughtfully canvassed, but plainly indicated, in our submission correctly, where considerations of that kind ‑ which could, in commercial and diplomatic terms, no doubt lend themselves to varying views ‑ the importance of understanding that the Convention has taken a position and with relation to these leasing agreements has, under the Protocol, as it applies by Australia’s diplomatic choices, produced, after the so‑called waiting period, a requirement for what we are going to call in shorthand “delivery”.

That is certainty.  It is a self‑evident certainty compared to what I will call the musical chairs idea, which is simply wherever the engine happened to be when the waiting period comes to an end.  The same thing is true, obviously, with respect to what I will call the commercial and financial significance that the preamble of the Convention, application book 159, plainly has in mind as informing and understanding of its provisions.  They are better served, of course, by knowing in advance that the location signified by the parties’ agreement for where the goods are to be returned upon the stipulated events, that that is that upon which the financial decisions have been made.

GORDON J:   Can I ask one question which seemed to play some significance in the part of the reasoning of the majority, and that is the interaction between Article II ‑ or paragraph 2 of Article XI dealing with “give possession of the aircraft”, and its contradistinction with paragraph 5, which provides:

Unless and until the creditor is given the opportunity to take possession under paragraph 2 –

As I understand your argument, those sit together comfortably in the sense that it identifies the point at which risk transfers.

MR WALKER:   Yes.

GORDON J:   Is that the way you put it?

MR WALKER:   Absolutely.  They cannot pull against each other, we know that as a matter of fundamental approach to textual interpretation, including of international instruments, that is the first thing.  The second thing is, clearly, 2 has a significance or primacy to which 5 is ancillary, because 5 is a risk allocation provision referring to states of affairs revolving around the notion of possession, about which our learned friends of course have expatiated in writing.

We say, of course, his Honour below was correct ‑ at first instance was correct with the reconciliation, because the honouring of the obligation under this leasing agreement to return, in accordance with, as it happens entirely consistently with Article XI(2), could well produce some kind of stand‑off or refusal.  Tender refused is not unknown in commerce, and 5 will ensure that the financial consequences of not having been able to, as it were, hand the object over, will be regulated in favour, obviously, of what I will call a compliant debtor.  It is for those reasons, in our submission, that their Honours have, with respect, started a chose concerning the difficulties that paragraph 5 is yet to present for the obvious reading of paragraph 2.

It meant that, with respect, disproportionately, that minor and easily resolvable linguistic question swept away consideration of the far more obvious linguistic questions to which we have drawn attention, and which Justice Middleton referred to, such as one finds, most neatly, in the difference between Alternative A and Alternative B in Article XI itself.  So you see the language at application book 172, Alternative B, clause 2(b) uses the language of giving an “opportunity to take possession”, which is obviously different, the French is also different, as we have drawn to attention, from the wording which governs in this case, and which governs in most of the cases around the world.

KIEFEL CJ:   Mr Walker, does the reference to civil law and common law concepts of possession – which seems to have developed as this matter has proceeded through the courts – does that muddy the waters a little for the purposes of an appeal in this Court?

MR WALKER:   No.  The international text governs – it is not that one drives what I will call the common law world from the understanding of an international text about international commerce – that would be historically perverse ‑ but there is no muddying of the waters.

KIEFEL CJ:   The Court of Appeal’s decision is not influenced by this approach or is it just a helpful discussion on the way?

MR WALKER:   There is a discussion on the way.  In our submission, there is – in our friend’s answer to special leave and, to a much lesser degree in the Full Court’s approach, there is an artificiality in suggesting the spectrum of meanings in different contexts that the English word “possession” may convey in some – not all – juristic contexts.  It is artificial because the question is, what do the phrases mean in this international text?  We know that the phrases are not just in English.

We have drawn to attention the equally authoritative French text which, plainly, is a matter of syntax – makes the same distinction as one would, in idiomatic English, see between giving possession, on the one hand, and merely giving an opportunity for the other to take possession oppositely.  It is for those reasons, in our submission, that there is no muddying of the waters here.  There is a plain question which is, very rightfully, a decision by this Court in a way which will provide international

guidance concerning these really very important commercial obligations.  If it please your Honours.

KIEFEL CJ:   Yes, Mr Gleeson.

MR GLEESON:   Thank you, your Honours.  Could I start with why it is an inappropriate vehicle – I will do that briefly and then come to the substantive point of prospects.  The first problem is that this case was brought on urgently before Justice Middleton and the expedited appeal came on within two or three weeks.  That explains part of the answer to your Honour’s question that there was not a complete exploration of civil law doctrine, although it was not ignored. 

More importantly, the parties joined in deciding this case on the English text of the Convention.  We know from the Convention that there are six equally authoritative texts – not just French – Spanish, Arabic, and so on.  The parties chose to fight on the English text of the Convention.  Therefore, we submit, it would be not open to the Court, on an appeal, to be dealing with Mr Walker’s arguments about the French – indeed, the French was not in evidence.  There was no translation evidence. The travaux was never explored.  So, for that reason, it is an inappropriate vehicle because it cannot, through that urgency, address all six versions of the text.  The second vehicle problem ‑ ‑ ‑

KIEFEL CJ:   But you would normally argue, would you not, that the parties would be constrained in the appeal to the way in which it was conducted before the primary judge.

MR GLEESON: We would certainly argue that, and the French, we would submit, is not available, even under a section 73 appeal. It just could not be considered. That is one problem. The second problem is, your Honour the Chief Justice asked about the relief. In a most peculiar development, as we have shown in the affidavit of Orfhlaith McCoy which the Court should have, at page 71 and following, particularly page 74 to 75.

That is now the further amended originating application and ground 6a, which has never been abandoned, introduced after the decision in the Full Court, seeks to get to the same result through a brand new route which is some combination of Article XII, plus certain provisions of the Corporations Act.  Therefore, any appeal could not produce finality if we are correct on the current question.  It is not simply a matter of the money claimed.

The third problem your Honours will have observed is that of the Virgin administration there were 140 leases and there were 70 lessors.  The only person who took this point is Mr Walker’s client.  They are entitled to do that.  The reason one might think there is no consideration of the point worldwide is that it has not occurred to anyone before to take this point.  It is of no further significance to the Virgin administration except for the money.  It is at the moment of no significance to Qantas and hopefully will remain so.  Mr Walker’s clients are seeking some form of international precedent from this Court.

KIEFEL CJ:   But you say the precedent would not be useful to anyone because no one takes the point?

MR GLEESON:   It would not be useful to anyone because the Court would ‑ ‑ ‑

KIEFEL CJ:   You think it will encourage people to take the point?

MR GLEESON:   It would encourage people to take the point which every other lessor ‑ and one may imagine that the competitors of Mr Walker’s clients were extremely commercially focused.  Every one of them the affidavit demonstrates took our view of the obligation and, to be perfectly clear about the two differences, our view of the obligation is “give possession” means to yield the possessory title that you currently have which is a title to the aircraft objects which can be asserted against the whole world, save someone who can prove a better title.  Now, in civil law it is a slight variation on that, but that is at the core of it. 

The alternative view is that “give possession” means you must effect a physical redelivery of the objects as if the lease were at an end.  Your Honour Justice Gordon asked a question about the particular provisions of the document.  If it is significant, it is in the application book at paragraph 27, page 110 that the particular lease which they are seeking to invoke part of – this is clause 19(b) – has the usual range of remedies on default, and over the page, (iii)(C) is an absolutely clear‑cut distinction between the remedy of demanding that you return the equipment free of all claims, so you have to pay off all liens:

in the manner and condition required by, and otherwise in accordance with, all the provisions of Section 18 as if –

on the end of a lease term ‑ section 18 is in paragraph 23 on the previous page – you must return it free of liens to their delivery location or, returning to the remedy, you may enter the premises and take possession.

Now, that fundamental distinction is in the lease, it is consistent with the civil law.  It is consistent with the common law, and what Mr Walker is trying to do is to fold into the second remedy, which is taking possession, the first remedy, which is returning, as if the lease were at an end.  That is the ultimate question of construction which no other lessor has sought to advance on his behalf.

Could I take your Honours to Justice Middleton to the three core paragraphs which Mr Walker seeks to reinstate, and they are on page 42.  Without diminishing anything else in his Honour’s judgment, paragraphs 85 to 87, that is the core construction you are asked to consider, that the obligation to give possession – that is Article XI(2) of the Protocol – and here the corresponding remedy as provided for in Article XI – so, pausing there, his Honour has read Article XI of the Protocol as imposing an obligation on us – correct.  He has read it as creating a corresponding remedy for them – we disagree.  He is then provided with content by the requirement that it be exercised “in a commercially reasonable manner”. 

That takes his Honour through to Article IX(3) of the Protocol, and lo and behold the conclusion is the place you started, which is an obligation to give possession, has now been turned into an obligation to give possession “commercially reasonably”, meaning in terms of the lease provisions as if the lease was at an end.

Now, the first reason that the Full Court found error in that conclusion of Justice Middleton is that the Full Court at paragraph 101 accepted our submission that that involved an elision.  At paragraph 101 on page 138, the Full Court accepted that that was an elision between obligation on the one hand, remedy on the other hand and, in turn, manner of exercise of remedy.  If paragraph101 is correct, then the appeal would fail.

STEWARD J:   Mr Gleeson, what in your view does Article XI(2) of the Protocol give the lessor which is over and above whatever rights the lessor might otherwise have had under domestic law in Australia, in particular having regard to section 443B(3) of the Corporations Act?

MR GLEESON:   Yes, thank you, your Honour.  That question goes exactly to the heart of the case.  What the Full Court has said is that your right as a lessor to take possession arises under the Convention.  It arises under Articles VIII and X of the Convention which are set out on pages 113 to 114.  The problem the lessor faces under the Convention is found on page 114, paragraph 41 and it is Article 30(3)(b), and what that does for the Convention purposes is subject the taking of possession remedy to the domestic law.  That is why section 443B and like provisions completely prevail over the Convention remedy of taking possession.

The essential modification of domestic law, which as your Honour, with respect, correctly says is designed to reduce finance, is to lift that roadblock under domestic law, under the Corporations Act, but the way it lifts it ‑ which is the critical thing ‑ is to say your obligation is to give possession.  So, what that means is the insolvency administrator who otherwise would say the stay has descended, you can get proof of debt or whatever, because of Article XI(2), come the 60 days can no longer take that point.  At the end of the 60 days the insolvency administrator must yield possession, and as the Full Court, we would submit, correctly says in paragraph 106, that very quick paragraph, what your obligation is is to take the affirmative steps to ensure that what would otherwise be the domestic law stay is overcome.

GORDON J:   Does that sit correctly, that analysis, with Alternative B?

MR GLEESON:   Alternative B ‑ it does is the answer, your Honour. 

GORDON J:   How, given the language is different?

MR GLEESON:   Alternative B is a different model, obviously enough.  I am just drawing it up, it is on ‑ ‑ ‑

GORDON J:   It is on page 172 of the application book.

MR GLEESON:   Page 172, yes.  So, in Alternative B, instead of there being the 60‑day period, the hard waiting period in which the IA has the choice at any time in 60 days to give the possession, but if they have not done it they must do it on the 60 days, under Alternative B, all that is required is to give a notice within that period whether you will cure defaults et cetera, or give the creditor the opportunity to take possession.

The giving the opportunity to take possession is the exact parallel of what your Honour raised with Mr Walker in Alternative A, Article XI(5), and the critical thing on the 60 days in either case, if applicable, is what the IA must do is to say here is the object – here is my possessory title to the object which is currently good against the whole world.  I yield to you in the sense of give you the opportunity to assume that possessory relationship to that object if you wish.  The creditor is not required to take that opportunity, and many will not, because of the burdens that will flow from possession, but the essential requirement if the engines are in Adelaide is to say we yield to you the opportunity to take the possessory title to those engines. 

Now, that could, in fact, be done through the custody of the IA if that is the way the possession was assumed but once that is done under Article XI(5) then the position of the creditor is do I take that possession.  If I do not, what happens then is the object simply falls back under the domestic law of the Corporations Act.  If the opportunity is taken, the possessor is the creditor in priority over the Corporations Act.

So, to come back to your Honour’s original question, what is the radical nature of the variation, that is what it is and so the effect of it is that the creditor gets the opportunity to free their asset from the Corporations Act if they wish.  What Mr Walker’s construction argument does is take it one complete step further which is that the IA is bound to effect the physical redelivery in accordance with the lease terms meaning what?  Pay off any superior liens, pay the cost of redelivery to the United States?

Now, the reason the Full Court correctly found the problem with that is if your Honours go back to Article XI(4), that is Alternative A, on page 171, the IA is brought under this scheme in its official, not in its personal, capacity.  The evident intent is that the obligation should be ones which the IA is capable of performing as the official administrator, but not ones that have to be paid out of the IA’s pocket.

The logic of the applicant’s case is, depending upon the size of the estate, either these costs, which could be very substantial, will have to be met personally, or, even if there is an indemnity against the estate, these costs are then paid in priority to the other creditors of the estate.  So, that interference with the domestic insolvency law, we submit, goes beyond the language of “give possession” within Article XI(2).

So, your Honours, for those combinations of vehicle reasons and prospects reasons, we would ask the Court to refuse leave.  May it please the Court.

KIEFEL CJ:   Anything in reply, Mr Walker? 

MR WALKER:   Briefly.  Your Honours, there is no split here between obligation and remedy.  They must march together; that is what his Honour at first instance is referring to at application book 42, paragraph 85.  In the same portion of his Honour’s reasons, application book 47 and following, particularly paragraphs 106 and 107, reasons for the particular regime becoming necessary to be determined by the meaning of the Convention and the Protocol, rather than by municipal insolvency law, is there set out. 

In relation to the clarity of the inter partes agreement, your Honours will recall application book 110, quoted in paragraph 23, the obligation, upon termination, to return the leased equipment free of all liens to the delivery location, et cetera.  That is picked up by the provisions to which my learned friend took you, quoted in paragraph 27, application book 111, with respect to a demand for return.  So, remedy is commensurate with obligation, unless there is some powerful and exceptional legal reason to the contrary.

It is to be recalled that the Convention contemplates remedies – so‑called additional remedies – that are permitted by the applicable law, including any remedies agreed upon by the parties.  That is Article 12, that you will find at page 164 of the application book.  Coupled with the desirable and sought to be advanced autonomy of the parties as contracting parties and counterparties, in our submission, that is a powerful recognition of the significance of the agreements between the parties, made before intervening insolvency and in a way that is intended to be given priority by reason of the Convention with respect to the insolvency after the waiting period.  That is the reason why, in our submission, there has been an error by the Full Court in failing to give the ordinary meaning to the language of “give possession” and the additional remedy of return to the delivery location of these parties before the intervention of the insolvency had agreed upon.

STEWARD J:   Does that mean – I am sorry to interrupt ‑ does that mean that Article 12 is an additional source of an obligation to deliver, because it picks up ‑ ‑ ‑

MR WALKER:   Yes.

STEWARD J:   Yes, I understand.

MR WALKER:   And the point is that is permitted by the Convention, to use the language of it, and the Protocol.  Hence, the significance, the centrality of the agreement, which is not to be modified except as set out in these terms.  You see that, for example, at application book 171 in Article XI(10).

When one goes to Article XI(13), one goes back to the exercise of remedies, which will include XI(2), upon which we are intent, which picks up the return under Article XII of the Convention, and, in our submission, his Honour at first instance satisfyingly rendered that scheme, a scheme which is intended by the Convention to have the priority stipulated with respect to insolvency.

The fact that Australia may be further away than most other places from most European or American delivery points is the very kind of accident of location increasing expense which, in our submission, the Court would be intent on recognising as an all the more reason for the clarity of the meaning found by Justice Middleton.  If it please your Honours.

KIEFEL CJ:   The Court will adjourn briefly to decide the course it will take.

AT 10.45 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.48 AM:

KIEFEL CJ:   There will be a grant of special leave in this matter.  What is your time estimate, Mr Walker?

MR WALKER:   It should all be finished in a day, your Honour.

KIEFEL CJ:   Do you agree, Mr Gleeson?

MR GLEESON: I have got a slight hesitation, your Honour, but I am assuming the French is not in it. If we are exploring section 73 of the Constitution, we are clearly beyond a day. 

MR WALKER: I could not spend more than half a day arguing about section 73, your Honour.

KIEFEL CJ:   One day.  Thank you.

MR GLEESON:   May it please the Court.

KIEFEL CJ:   The Court will now adjourn to reconstitute.

AT 10.49 AM THE MATTER WAS ADJOURNED