Wentworth v Wentworth

[1992] HCATrans 156

~ ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S36 of 1992

B e t w e e n -

KATHERINE WENTWORTH

Applicant

and

PETER FITZWILLIAM NEVILLE

WENTWORTH

Respondent

Application for expedition

and for interlocutory relief

MASON CJ

(In Chambers)

Wentworth 1 21/5/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 21 MAY 1992 AT 10.18 AM

Copyright in the High Court of Australia

MISS C. SIMPSON, QC:  May it please the Court, I appear with

my learned friend, MISS P. SHARPE, for the

applicant. (instructed by H.D. Kelly & Co)

MR R.C. McDOUGALL, QC:  May it please the Court, I appear

with my learned friend, MR R.S. ANGYAL, for the

respondent. (instructed by Dunhill Madden Butler)

HIS HONOUR:	What is this all about, Miss Simpson?
MISS SIMPSON:	Your Honour, this is an application or, I

should say, two applications by the applicant for

interlocutory orders relating to a special leave application which is pending in this Court. The

substantive order sought by the applicant in this

application is that the application for special

leave be expedited and that if she is successful in

her application for special leave, that the appeal

be expedited.

The second substantive order sought by the

applicant is for injunctive relief, that relief

being in the nature of a Mareva injunction or,

alternatively, an order under Order 49 rule 3(1) of

the High Court Rules for preservation of property

which would protect her position in the event that
she is ultimately successful in her application for

special leave and, if it eventuates, her appeal to

this Court. It may be of assistance, Your Honour,

if I - - -

HIS HONOUR:  What a minute, I am not sure that I follow

that. You are seeking that this additional relief,

that is the injunctive relief, in the event that

the applicant is successful in her special leave

application?

MISS SIMPSON:  No, we seek that order to preserve her

position to cover the event that she is successful

in her application to this Court.

HIS HONOUR:	I see, yes.
MISS SIMPSON:	Your Honour, it might be of some assistance

if I firstly hand up a short chronology of the

events and then perhaps outline to Your Honour the

course of events that bring the parties to this

Court. My friend has a copy of the chronology.

The applicant made a claim for an order under

section 7 of the New South Wales Family Provision

Act claiming provision out of the estate and the notional estate of her father, G.N. Wentworth, who

is referred to as the "testator". She also sought

orders and was successful in obtaining orders

designating certain shareholdings of the respondent

Wentworth 2 MISS SIMPSON, QC 21/5/92

as notional estate under the provisions of that
Act.

Your Honour, I have brought up spare copies of the Family Provision Act, and it might be useful if

I hand that up now.

HIS HONOUR:  Yes, thank you.

MISS SIMPSON: There was a trial of the application during

April and May 1991 before Mr Justice Bryson in the

Supreme Court of New South Wales. Judgment was delivered by His Honour on 14 June 1991 and formal orders were made on 28 June 1991. Without,

Your Honour, going into the whole of the detail of they also included an order that the respondent pay to the applicant an annuity of $21,000 out of that
the orders that were made by His Honour, they
included an order designating all of the shares
held by the respondent in a company called Recato

estate. And the final order, for present purposes,

was that the respondent pay the applicant's costs

of that application. There was some days which

were excluded from that and the applicant was

ordered to pay the respondent's costs, but the bulk
of the costs were to be paid by the respondent.

He declined the applicant's claim for an order for costs to be taxed on a common fund or an

indemnity basis. Neither party was content -

HIS HONOUR:	What was the claim in respect of taxation on a common fund basis?
MISS SIMPSON:	The claim made was that the estate designated

as notional estate, which was the shareholding in

Recato Ten, was in fact a common fund and the

principles relating to payment of costs on a common

fund basis should have applied, so the applicant -

plaintiff in that court - would have received

effectively the whole of her costs and not merely

party and party costs.

HIS HONOUR:  Do you mean costs of and incident to her

application or costs as between solicitor and

client?

MISS SIMPSON:  Costs as between solicitor and client. I

think that expresses it equally, Your Honour.

Your Honour, neither party was content with

the orders that were made by His Honour and each of
them filed appeals to the Court of Appeal against

both the substantive and the costs orders so that

there were, in fact, four different notices of

appeal or grounds of appeal filed; the applicant's

Wentworth MISS SIMPSON, QC 21/5/92

appeal against the substantive orders and her

subsequent or supplementary grounds of appeal

relating to the costs orders and the respondent

filed similar notices of appeal. All appeals were heard by the Court of Appeal

in December 1991 over a three-day period and

judgment was delivered on 3 March this year.	The
result of the appeal was that the applicant was

successful to the extent that the order that the

respondent pay an annuity to the applicant was

reversed and the respondent was ordered to pay to her a lump sum of $100,000 together with interest

at legacy rates.

The Court of Appeal declined to order that the

costs of the trial be paid on a common fund or an

indemnity or a solicitor/client basis and made an

order that the respondent pay half of the

applicant's costs of the two appeals, which the

court ordered to be consolidated. It is from those
orders that the applicant seeks special leave to

appeal to this Court. The respondent's appeal to

the Court of Appeal was entirely unsuccessful and

was dismissed.

HIS HONOUR:  But when you say that the applicant seeks to

appeal from those orders, does she seek to appeal

from the order for $100,000?

MISS SIMPSON:  She seeks an increase in that amount. She

does not appeal from the order that provision be

made for her out of the estate.

HIS HONOUR:  In other words, it is accepted a lump sum

provision should have been made rather than an

annuity provision?

MISS SIMPSON:	Yes, that was the applicant's basis for the appeal in the Court of Appeal.
HIS HONOUR:	What is she now asking for in terms of a lump

sum?

MISS SIMPSON:  The total which would be claimed is in the

vicinity of $1 million, Your Honour.

HIS HONOUR:  But when you say "the total", the total of

what?

MISS SIMPSON:  The total provision that she would claim

should be made for her provision out of the estate

and notional estate of the testator. But that, of course, leaves aside questions of costs. But what

she would seek, Your Honour, is, under section 7 of

the Family Provision Act, an order that provision

be made in the amount of $1 million or thereabouts.

Wentworth 4 MISS SIMPSON, QC 21/5/92

HIS HONOUR:  In other words, she is seeking a legacy in an amount of $1 million.

MISS SIMPSON: Yes, Your Honour. Your Honour, that really

brings up to date the position so far as - - -

HIS HONOUR: 

That is substantially more than any benefit

that has been awarded to her so far in the supreme
court.

MISS SIMPSON:  Yes. If the order of Mr Justice Bryson were

capitalized rather than treated as - - -

HIS HONOUR:  Yes. What would that amount to?

MISS SIMPSON: About $400,000 and something, Your Honour.

Your Honour, I should say this, that the applicant's costs of the trial itself, which took

about a month in the supreme court, amounted to
about $750,000.

HIS HONOUR: That seems incredible to me.

MISS SIMPSON:  It does, indeed, Your Honour. I might say,

Your Honour, she was represented - - -

HIS HONOUR:	I must say there are two things about that that strike me as incredible or virtually so: one, that
a TFM application should have taken almost a month
before a single judge of the supreme court - I find that extremely hard to accept - and then, secondly,
that her costs could amount to $750,000.

MISS SIMPSON: It might be useful if I say a little bit

about those proceedings. I was not involved in

them, Your Honour, but I have read the transcript.

HIS HONOUR:  I do not think you need do so. I think my

imagination might extend to some appreciation of

what happened.

MISS SIMPSON:  It may be, Your Honour, that the details will

emerge at some stage in this Court in any event.

Well, Your Honour, what has happened more

recently is that the applicant has received certain

information from various sources about the

intentions of the respondent with respect to

property that he and the company, Recato Ten, own.

The evidence is to the effect that the respondent

himself is not seized of substantial assets except

for his shareholding in Recato Ten, and Recato Ten

is the holder of very substantial real estate.

There is extensive evidence that the

respondent is proposing to dispose of all or some

Wentworth MISS SIMPSON, QC 21/5/92

of those assets and there is also some evidence

that he is proposing to leave the jurisdiction

although, as of last night, there is affidavit

evidence to the effect that that is not so.

HIS HONOUR:  First of all, what is the evidence that he is

proposing to leave the jurisdiction?

MISS SIMPSON:	A conversation, Your Honour, between - - -
MR McDOUGALL:	Evidence to which we object,

Your Honour, - - -

HIS HONOUR: This is this hearsay -

MR McDOUGALL: Fourth-hand hearsay, Your Honour, yes.

HIS HONOUR: Fourth-hand hearsay, yes. That is all there

is?

MISS SIMPSON: That is all there is, Your Honour, and it is

denied in an affidavit served on us last night.

HIS HONOUR:  But denied by whom?

MISS SIMPSON: Denied by the solicitor for the respondent,

not by the respondent himself.

HIS HONOUR:  I suppose he is repaying you in kind,

Miss Simpson.

MR McDOUGALL:  Something like that, yes, but it is

first-hand hearsay.

HIS HONOUR:  I have not seen that affidavit so that - has

the affidavit been filed, Mr McDougall?

MR McDOUGALL: Almost certainly not, Your Honour, given that

it was sworn at some late stage last night. It is

an affidavit of Judith Louise O'Hare sworn 20 May

1992.

HIS HONOUR:  Now, does it deal with anything more than a

denial of - - -?

MR McDOUGALL:	Yes, it deals with the false proposition that interest was not paid - - -
HIS HONOUR:	Miss Simpson, I had better interrupt what you

are telling me so that I can look at this

affidavit. There is not much point in your

addressing me unless I have a picture in my mind of

the evidence that has been filed.

MISS SIMPSON: Yes.

Wentworth 6 21/5/92

HIS HONOUR:  Now, you are asking leave to file this in

Court, are you?

MR McDOUGALL:	I am, indeed, Your Honour, yes.
HIS HONOUR:	Now, are you opposing that?
MISS SIMPSON:	No, Your Honour.
HIS HONOUR:	I grant leave to file the affidavit in Court.
MR McDOUGALL:	And a short affidavit sworn this morning,

Your Honour, 21 May 1992, by the same deponent.

HIS HONOUR:  Very well, they will both be the subject of a

grant of leave to file in Court.

MR McDOUGALL:	May it please the Court.
HIS HONOUR:	You have seen these affidavits, have you,

Miss Simpson.

MISS SIMPSON: Yes, I have, Your Honour.

MR McDOUGALL:  The shorter affidavit sets out some material

on information and belief as to the status of a

certain bank guarantee. It does not make a great

deal of sense by itself. The longer affidavit

traverses a number of matters sworn to by Mr Russo on which we understand the applicant will rely and

sets out in paragraph 2.5, on information and

belief, the reasons underlying the admitted

attempts by Recato Ten to sell its properties.

HIS HONOUR: Well, it seems that the lawyers are doing well

out of this litigation even if no one else is.	I
have read the affidavit but I have not read the
annexures to it.

MR McDOUGALL: If Your Honour pleases.
HIS HONOUR:	Yes, Miss Simpson?
MISS SIMPSON:	As a result of that information corning to the

applicant, Your Honour, she sought injunctive

relief in the Supreme Court of New South Wales. an order and the matter again came before

Mr Justice Bryson. She sought orders restraining

the respondent from dealing in his property. She

was successful to the extent that His Honour made

such an order but added the proviso that the order

should not apply to so much of the property as

exceeds in value the sum of $1.5 million.

HIS HONOUR:  When was that order made?

Wentworth	MISS SIMPSON, QC	21/5/92
MISS SIMPSON:	On 24 April.	That order was made ex parte.

The matter then came back before the duty judge on,

I think it was 29 April and, by consent, the order

was continued.

HIS HONOUR:  Where do I find that order?

MISS SIMPSON: It is exhibited, Your Honour, to the

affidavit of Mr Russo, sworn on 18 May. That is

the very bulky affidavit of Mr Russo.	Your Honour,
it is exhibit SR20.	I am sorry to say,

Your Honour, that the pages of the affidavit are
not paginated but it is about four or five pages in
from the back of the affidavit. It is, in fact,

the last of the exhibits.

HIS HONOUR:  Yes, it seems to be, and it has a schedule.

MISS SIMPSON:  Yes. The schedule is the property which was

sought in the summons to be a schedule of the

property which the injunction related to. If

Your Honour goes back two pages beyond that

schedule, Your Honour will see the orders that were

made. Would it help Your Honour if I handed up my

learned junior's copy of the affidavit.

HIS HONOUR:  No, no. I have the order that was made. What

I wanted to know, Miss Simpson, was what was the relationship in time between the making of that

order and the filing of the application fo'r special

leave to appeal?

MISS SIMPSON:  The application for special leave to appeal

was filed, Your Honour, on 24 March 1992.

HIS HONOUR:  Now, you say that this order was made up until

29 April.

MISS SIMPSON: Yes, and then the matter came back before

Mr Justice - - -

HIS HONOUR:  Why was it made for five days? What was the point of that? Was it an interlocutory order?

MISS SIMPSON: It was made ex parte, Your Honour, at that

stage.

HIS HONOUR:  I see. What happened on 29 April?

MISS SIMPSON:  On the 29th the order was extended by consent

by Mr Justice Powell and then returnable for a

third time on 6 May. The matter returned before

Mr Justice Powell on 6 May but for reasons that

perhaps I need not trouble this Court with, it was

not heard by him and it was heard by

Mr Justice Young. On that occasion, the applicant

sought not only a continuation of the order but an

Wentworth MISS SIMPSON, QC 21/5/92

extension of the amount or an increase of the

amount covered by the proviso to the sum of

$2.2 million, but that was refused.

HIS HONOUR:  Where do I find Justice Young's order? That is

in one of the - - -

MISS SIMPSON:  It is exhibited to the affidavit of

Miss O'Hare.

HIS HONOUR: This is the long affidavit.

MISS SIMPSON:  The long affidavit of Miss O'Hare and it is

the second-last document.

MR McDOUGALL:  It is exhibit J to that affidavit,

Your Honour. It is a copy of the reasons for judgment actually.

HIS HONOUR:	What was the jurisdiction to make this order?
MISS SIMPSON:	We relied, Your Honour, on Jackson v Sterling

Industries. There has been some debate in the

supreme court as to jurisdiction to make an order

in the nature of a Mareva injunction relating to

Family Provision Act cases. The debate seems to be

whether an injunction can be granted to restrain an

executor or administrator from proceeding to
distribute the estate rather than trespassing upon

the kind of order that the applicant sought in this

case.

HIS HONOUR:  But this order is currently in force?

MISS SIMPSON:  It is currently in force. I note that the

reasons that appear in the affidavit extend the order to 21 May, which is today. In fact, what

His Honour did was to initially say 21 May and then

he changed the return date to 25 May which is next

Monday.	As the judgment presently stands and if
the orders formally taken out reflect the judgment,
the order would expire today.	But it was not my

understanding - I do not think it was the

respondent's understanding that it should expire

today; it should continue until Monday.

HIS HONOUR:  So it common ground that it continues until the

25th?

MR McDOUGALL:  Yes, the reason being that otherwise it would

come back before the duty judge, Mr Justice Powell,

who for reasons that one need not go into, is

incapable of hearing the particular dispute.

HIS HONOUR:  I see.

Wentworth 9 MISS SIMPSON, QC 21/5/92

MR McDOUGALL:  And it is before Mr Justice McClelland who

will be the duty judge next week on the 25th.

HIS HONOUR:	But it will be coming back before him?
MR McDOUGALL:	Yes, and there will be a contested

interlocutory application either then or when the

court can hear it, as we understand it,

Your Honour.

HIS HONOUR: 

Why need I be concerned about this aspect of

the case, seeing it is a matter that is currently
the subject of orders in the supreme court and,
apparently, is going to be the subject of contest
in the supreme court on Monday?

MISS SIMPSON: 

I must say, Your Honour, that was the first I

had heard that it would be contested.	It has
always been consented to up to now.	The only

outstanding matter, Your Honour, is the amount

covered. I am sorry, there are two matters,

Your Honour: one is the amount covered or excluded

from dealing. The applicant claims that

$1.5 million will not protect her potential

interest. The amount of - - -

HIS HONOUR:  But that is going to be adjudicated on,

presumably, is it not, in the supreme court?

MISS SIMPSON: Yes, it will, Your Honour.

HIS HONOUR:  Why need I be concerned about this interim

protection?

MISS SIMPSON:	It is very difficult to say why there should be a duplication of the -
HIS HONOUR:	There is every reason why there should not be a

duplication and there is every reason why, assuming

the supreme court has jurisdiction to deal with

this matter, it should be the court to deal with it

and not this Court.

MISS SIMPSON: 

Your Honour, my instructions are to ask that

this Court deal with it but of course the supreme
court is currently seized of it and except for the
extension of the amount, there is nothing further I

can advance.

HIS HONOUR: 

Very well.

MISS SIMPSON: 

The other application is that the special

leave application and the appeal, if there is to be

one, be expedited. The bases for that are to be

found in the affidavits to which I will take Your

Honour. They are the applicant's present

precarious financial position and a medical

Wentworth 10 MISS SIMPSON, QC 21/5/92

condition of which there is evidence contained in

the affidavits.

HIS HONOUR:  I should say this to you, Miss Simpson, that

the next special leave day is Friday, 5 June,

approximately a fortnight away. Now, the list for

that day is currently full and I do not regard this

case as of, as it were, sufficient weight in terms
of the factors that tend to urgency as warranting

the displacement of any case that is in that list.

Now, that means that the next occasion on which we

would be hearing special leave applications in in might say, I would grant limited expedition, which

is all I can do in the circumstances, to the extent

that if a case drops out of the list on 5 June then

I would place this case in the list to take up any

vacancy.

Now, there is no indication at the moment that

any case is likely to drop out, but it is a

possibility, I suppose. Now, that is all I feel I

could do in terms of expedition.

MISS SIMPSON:  I do not know if Your Honour is inviting me

to comment but - - -

HIS HONOUR:  Yes, I am inviting you to comment in the sense

that what I am indicating to you is an incapacity

to do more than that and, in a sense, that is as

much as I think I can do. Otherwise, I would be

forced to displace cases in which the parties have

been told their case will come on for hearing.	I
do not think I would be entitled to visit extra
inconvenience, extra in costs on those parties.

MISS SIMPSON:  I think we would accept whatever limited

expedition were available, Your Honour, and be

grateful for the opportunity.

HIS HONOUR:  I would give you limited expedition to that

extent.

MISS SIMPSON:  Thank you, Your Honour. I do not know if

Your Honour wishes me then to go to the affidavit

material.

HIS HONOUR:  I would not think so but I will ask

Mr McDougall what he wants to say and I will ask

some questions of Mr McDougall as well.

Mr McDougall, you have heard what I have said

about expedition. You have no objection to the

matter being expedited on that basis, I take it?

MR McDOUGALL:  No, Your Honour.

Wentworth 11 21/5/92

HIS HONOUR:  And I suppose from your point of view, the

sooner this litigation comes to an end the better.

MR McDOUGALL: Precisely so, Your Honour.

HIS HONOUR:  So that I imagine you would be supporting

expedition to the extent that it is available.

MR McDOUGALL:  I am unable, on my instructions, to support

it but I acknowledge the force in what Your Honour

says.

HIS HONOUR:  I would not do anything about the appeal until

we know the fate of the special leave application.

Then it would be appropriate, if the application is

granted, to consider expedition of the appeal but

not before.

Now, Mr McDougall, I am minded to let this

other dispute find its resolution in the supreme
court. Quite obviously there should not be a

duplication.

MR McDOUGALL:  That would be our primary submission,

Your Honour.

HIS HONOUR:  But can I ask you this: what is the progress

on the bank guarantee, because I take it that if a

bank guarantee is provided, leaving aside the

question of amount at the present time, that will

solve this problem that arises from apprehensions

about what might happen to the proceeds of sale of

the assets of Recato Ten.

MR McDOUGALL:  It would solve a problem which we say does

not exist.

HIS HONOUR:	Yes, I realize that.
MR McDOUGALL:	Your Honour, the position is that the

application has been made to the respondent's bank
at Bowral.	The manager has no authority to

approve; has passed it on to this superiors with a

recommendation for approval and according to

Ms O'Hare's affidavit sworn this morning, he is likely to have an answer tomorrow, which, I take

it, is Friday. As we understand it, the answer is

likely to be favourable. If that timetable is

adhered to, we will be able to inform the supreme

court on Monday of whether we can or cannot proffer

a guarantee of the kind referred to.

HIS HONOUR:  But at the moment you are talking about a

guarantee of $1.5 whereas the applicant is seeking

some kind of security in relation to $2.2.

Wentworth 12 21/5/92

MR McDOUGALL:  Yes, but the merits of the two figures can be

dealt with on Monday.

HIS HONOUR:  Yes. Is there anything else you want to say?

MR McDOUGALL:	No, Your Honour.
HIS HONOUR:	Yes, Miss Simpson.

MISS SIMPSON: There is only this about the bank guarantee,

Your Honour, that even if it is approved and

offered, it does not entirely dispose of the

applicant's problems - or the respondent's

problems - in that if the applicant's fears of the

respondent departing the jurisdiction, with his

assets, are well founded, it would not protect

her - we apprehend it would not protect her in the

event of a contest between other creditors or

amongst a number of creditors, so it would be open

to the respondent to defeat the applicant's claim

by leaving the jurisdiction and leaving sufficient

debts that whatever share she took in whatever

property was left would be minimal.

HIS HONOUR:  It seems a little unlikely, does it not? From

reading the affidavits, including the affidavits of

the applicant and her solicitor, one has the

distinct impression that there is a marked surplus

of assets over liabilities in Recato Ten and after
all, the figures being mentioned in relation to

Southlands, for example, are far in excess of the figures that were mentioned in the judgment of

Mr Justice Bryson.

MISS SIMPSON: Yes, that is so, Your Honour, but the fears

she has arising from the course of history -

HIS HONOUR:  Perhaps one can understand apprehension, but on

the face of it, looking at it objectively, I would

not have thought that there was that much concern

or reason for concern.

MISS SIMPSON:  She deposes, Your Honour, that she has those

concerns and the reason for it and -

HIS HONOUR:  I realize that she has those concerns and I

realize that there is a long history of personal

difficulty and disputation behind all this.

MISS SIMPSON: It might also be observed, Your Honour, that

the respondent himself, in none of these

applications, has put on direct evidence.

HIS HONOUR:  Yes, I have noted that.

Wentworth 13 MISS SIMPSON, QC 21/5/92

MISS SIMPSON:  The injunction has been before the supreme

court for more than a month - just about a month

now and even in this Court - - -

HIS HONOUR:	But I must say, Miss Simpson, that perhaps the only wise decision taken in the whole course of
this litigation is that somebody has not given evidence.

MISS SIMPSON: That might explain the lengthy proceedings in

the supreme court, Your Honour. They are the

observations we make, Your Honour. There is still

concern about the efficacy of the banker's

undertaking and any injunction ordered by the

supreme court.

HIS HONOUR:  I think all I need say in the circumstances,

Miss Simpson, is that I will grant limited

expedition of the application for special leave by
the applicant to the extent that, if a case

presently listed for hearing on 5 June next drops

out, leaving a sufficient vacancy to have the

applicant's application listed, the applicant's

application will then be listed for hearing. But

otherwise, I would not grant further expedition.

So far as the application for interlocutory

relief is concerned, as that application is

presently pending in the Supreme Court of New South

Wales and will come on for hearing again on Monday,

it is obviously undesirable that proceedings for

injunctive relief along the same lines should be

dealt with by two courts at the one time. I

decline to take any action in that matter at this

stage and leave it for resolution by the supreme

court.

MISS SIMPSON: If Your Honour pleases.

HIS HONOUR:  Now, subject to anything that may be said, I

would order that costs of these proceedings be

costs in the application for special leave to

appeal.

MISS SIMPSON: If Your Honour pleases.

MR McDOUGALL:  Your Honour, we would ask for the costs of the interlocutory application. The question in

issue was that of the injunction where the

applicant has sought, in our submission, wrongly to

move in two jurisdictions and we would submit that

an order which simply leave the question of today's

costs up in the air and dependent upon the fate of
an application which is totally unrelated in any

real sense in terms of merits is an insufficient

response.

Wentworth 14 21/5/92

HIS HONOUR:	What do you say to that, Miss Simpson?
MISS SIMPSON:	Your Honour, the principal application was

the application for expedition. The applicant has

been successful to a limited extent in that, but in any event, it was a perfectly proper application to

make, the costs of which should depend upon the

ultimate outcome.

HIS HONOUR:  What do you say to a reservation of the costs?

Do you oppose that, Mr McDougall? The only trouble

about reserving the costs is that if the costs are

to be reserved, then they have to be dealt with by
the Court that is hearing the application for

special leave to appeal. The Court hearing the

application for special leave to appeal will not

know the circumstances except to the extent that if

I sit, then I will know. So I do not think that is

an appropriate - - -

MR McDOUGALL:  No, we would submit Your Honour should deal with the question of costs today. We would submit

that we should have our costs but I suppose the "at

least" position is that they should be our costs of

the application to come in any event, so that

regardless of the fate of the special leave

application and the appeal, if special leave be

granted, the costs of today should not be visited

upon us. But that is very much a fall-back

position.

HIS HONOUR: 

That alternative order is an order that the

costs of these proceedings be the respondent's
costs in the special leave application.

MR McDOUGALL:  Yes. We say we should have them today and

put an end to it but the alternative order is, as

it were, the least that can be done.

HIS HONOUR:  I suppose the other course would be that the

applicant should pay half your costs of this

application.

MR McDOUGALL: That is a matter for the Court's discretion.

I can say nothing either way.

HIS HONOUR:  Do you want to say anything further,

Miss Simpson?

MISS SIMPSON: Nothing further, Your Honour.

HIS HONOUR:  I think in the circumstances the appropriate

order is that the applicant pay half the

respondent's costs of this application.	The Court
will now adjourn sine die.

AT 10.53 AM THE MATTER WAS ADJOURNED SINE DIE

Wentworth 15 21/5/92