Wilson & Ors, Ex parte- Re Minister for Aboriginal and Torres Stsrait Islander Affairs

[1996] HCATrans 156

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  
  Adelaide  No A14 of 1996

In the matter of -

An application for Writs of Prohibition and Certiorari and Information of Quo Warranto against THE MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS

First Respondent

and

JANE HAMILTON MATHEWS

Second Respondent

Ex parte -

DOROTHY ANN WILSON, DULCIE CECELIA WILSON, BERTHA GOLLAN, MARGUERITA EFFIE WILSON, JENNIFER CHRISTINE GRACE, BETTY ELIZA TATT, VEENA JOYCE GOLLAN, AUDREY MARY DIX and BERYL LENA KROPINYERI

Applicants

Directions hearing

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  
  Adelaide  No A21 of 1996

B e t w e e n -

DOROTHY ANN WILSON, DULCIE CECELIA WILSON, BERTHA GOLLAN, MARGUERITA EFFIE WILSON, JENNIFER CHRISTINE GRACE, BETTY ELIZA TATT, VEENA JOYCE GOLLAN, AUDREY MARY DIX and BERYL LENA KROPINYERI

Plaintiffs

and

THE MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS and JANE HAMILTON MATHEWS

Defendants

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 MAY 1996, AT 9.30 AM

Copyright in the High Court of Australia

MR M.L. ABBOTT, QC:   If your Honour pleases, I appear for the applicant with my learned friend, MR N.J. ILES.  (instructed by Piper Alderman)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:   If your Honour pleases, I appear with MR E. WILLHEIM and MS M.A. PERRY for the Minister, the first respondent.  (instructed by the Australian Government Solicitor)

MR E. WILLHEIM:  If your Honour pleases, I appear for the second respondent to submit to the order of the Court, except as to costs.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Mr Abbott, the question of relief in this case seems to me to raise a couple of interesting questions.  The first is whether there would be any relief by way of certiorari at common law in respect of the decision of the Minister, but is there not a constitutional question as well as to whether certiorari lies to an officer of the Commonwealth in respect of a purported exercise of statutory power when no further or consequent relief is sought or available against that officer?

MR ABBOTT:   Yes, your Honour.  However, we say this arises under the original jurisdiction by virtue of it being a matter which is referable to the doctrine of separation of powers and it calls into account the nature and extent of the judicial power of the Commonwealth.

HIS HONOUR:   I understand that.  What I am not sure about is whether or not certiorari lies as a remedy in itself against the Minister.  I am thinking of cases stemming from Pitfield v Franki.

MR ABBOTT:   And Reg v Cook; Ex parte Twigg.  And I am mindful of something your Honour said about those cases.

HIS HONOUR:   Do you not need to give a 78B notice in relation to them?

MR ABBOTT:   We probably do, your Honour.  An alternative course has been suggested by my learned friend to me this morning which may overcome these aspects.  We are prepared to join with my learned friend, which may circumvent some of those arguments, and that is whether your Honour would state a question under section 18?

HIS HONOUR:   What is the question?

MR ABBOTT:   The question, that I have not had much time to consider, would be, I think, this question:  was the appointment of Justice Mathews incompatible with her office of Justice of the Federal Court?

HIS HONOUR: I would not be prepared to state that question for two reasons: first of all, it assumes that there has been a power of appointment exercised. It seems to me that one of the interesting questions is whether the Minister exercised any power at all, having regard to the language of section 10 of the Act. One can see that a report may be a condition precedent to the Minister’s power to declare, but one does not see that the nomination of a person is necessarily the exercise of the power.

MR ABBOTT:   We would, of course, argue that it was.

HIS HONOUR:   Of course, I appreciate that.  But I cannot state a question which assumes it.

MR ABBOTT:   Exactly.  As I said, that was a suggestion my learned friend made this morning and we are certainly mindful of some of the issues that arise because it seems to us that, pursuant to section 76, we can, under some circumstances, obtain remedies under section 32.  We would argue that this is a matter arising under section 76, thereby invoking section 30 and thereafter section 32 in so far as it calls into consideration the nature and extent of the judicial power.

HIS HONOUR:   No doubt there is an argument there, and I am not seeking to dispose of that argument at all.  I simply wish to ensure that if the matter comes to the Court it is in a shape which is ready for determination.

MR ABBOTT:   Exactly.

HIS HONOUR:   I must say I am rather puzzled that the application was not made to the Federal Court under the AD(JR) Act, but that is another matter.  At all events, the question that seems to me to arise at this stage is whether you need to give a 78B notice.

MR ABBOTT:   Out of an abundance of caution we would, particularly ‑ ‑ ‑

HIS HONOUR:   Perhaps we will hear what the Solicitor‑General has to say about this subject as well.

MR GRIFFITH: Your Honour, my learned friend has been a bit generous in saying he was willing to join with us. It was merely an issue that we raised because we were anxious to avoid any delay in the furnishing of the report. We are then concerned with the issue. We would have thought, your Honour, that inasmuch as an issue under the Constitution arises, it would have been better to have issued a writ claiming a declaration and subsumed in that would be the question of “Is there an appointment in the first place?” I must say, your Honour, we are inclined to the view that, notwithstanding the felicities of section 10, implicit in section 10 is the power to appoint someone. Otherwise, your Honour, there is ‑ ‑ ‑

HIS HONOUR:   Although it confers no powers at all.

MR GRIFFITH:   I beg your pardon, your Honour?

HIS HONOUR:   It confers no powers or imposes no duty.

MR GRIFFITH:   No, your Honour, it does assume a report and one cannot find anywhere else the capacity to appoint someone to give it, so that we would say, by necessity, your Honour. I do not think there is going to be an issue between the parties on whether or not an appointment of some person is necessary and we cannot suggest the source of authority other than section 10 for that appointment. So, that is not, as we see it, a live issue although, your Honour, we would agree that it is something that is a necessary step for my learned friend to get then to his constitutional contention that there is an essential incompatibility of office. Notwithstanding the way the matter seemed to be presented before Justice Dawson, your Honour, we see that there is really one issue, is the appointment incompatible.

HIS HONOUR:   The problem though, Mr Solicitor, is this:  leaving aside the Pitfield v Franki line of argument, the first question would be: if the Minister has made a nomination which is sufficient to enliven the report that ultimately emerges with the character of a report answering the section 10 description, is the nomination so made an exercise of a power, the nature of which can lead to certiorari? Now, that might not be a constitutional question, but it seems to me that if there is a negative answer to that, where do we go from there in reaching the constitutional point?

MR GRIFFITH:   Your Honour, I also made the point to my learned friend this morning that we would not have thought that prohibition would be available against the Judge either so that there is, inasmuch as there is an alternative claim, as we see, it for prohibition, we would argue that that would be unobtainable too, as a matter of law. 

Your Honour, we would refer to Ainsworth, 175 CLR 564 where it does seem to have been the view of the Court that in a case where prerogative writs were not available, declaratory relief could be made. Hence the suggestion we made to our learned friend this morning that it would be sufficient, we would have thought, to resolve the issues for the Court to declare, subject to this question of section 10 report, your Honour, that the appointment is or is not incompatible. Your Honour, it would be accepted by us, if there was a declaration it was incompatible, that would be the end of the matter. There would be no need to have anything further in ‑ ‑ ‑

HIS HONOUR:   Yes, but that is not before the Court.

MR GRIFFITH:   I know it is not, your Honour, but what we suggest, and that is what I suggested to my learned friend, is just as in Ainsworth the Court was able to go to the essential issue, we would have thought that to avoid delay - and we are anxious to avoid delay, your Honour, and say, “Perhaps you should go off and either apply under the AD(JR) Act in the Federal Court or to issue a writ in this Court pleading the constitutional issue.”, we would prefer, your Honour, for there to be an order, in so far as necessary, by consent, revoking the reference end of the application for an order nisi and for your Honour, on the basis of the affidavit material, to state what seems to be two questions:  first the question of appointment and, secondly, the issue of whether or not, if there is an appointment, that would be regarded as an incompatible appointment for Justice Mathews.

HIS HONOUR:   Mr Solicitor, I am willing to take whatever course is open to have issues which are being joined between the parties brought to the Court’s attention.  I must confess I have no particular desire to do so by way of ignoring the initiating process that is before the Court.

MR GRIFFITH:   Your Honour, hence our reference to Ainsworth where the Court referred to - - -

HIS HONOUR:   In Ainsworth it was an appeal and so the whole of the powers of the Supreme Court would have been available to the Court on appeal.

MR GRIFFITH:   Your Honour is quite right.  I mean, I am being result driven, your Honour, so we do not want delay.

HIS HONOUR:   If there is no question of delay, why not issue a writ?

MR GRIFFITH:   Your Honour, I was just going to say that.  My friend can issue a writ this morning before he leaves town as far as we are concerned.

HIS HONOUR:   Yes, there is no problem about framing relief in a way that can get to the Court.

MR GRIFFITH:   Your Honour, he could do it on an endorsement.  Just say there are two questions:  one, the appointment; one the incapacibility and your Honour could state the question.  That is, in essence, your Honour, what we were getting to but your Honour has gone directly at it.

HIS HONOUR:   Then why do I not adjourn this until you and Mr Abbott have some further discussion?

MR GRIFFITH:   Your Honour, I imagine we can nod down the bar table.  Are you nodding?

MR ABBOTT:   Yes.

MR GRIFFITH:   Your Honour, it would seem in principle that is - my learned friend, your Honour, has to issue his writ and give the notices.  We cannot do everything for him.  He having raised the issue, unless he goes away, your Honour, we wish it to be disposed of as soon as may be and not to inhibit the reporting process.

HIS HONOUR:   If the writ is issued and the 78B notices are given, I take it the next step would be seeking the reservation of a question or the statement of a case.

MR GRIFFITH:   Yes, your Honour, but given that there is affidavit material, subject to the Court’s views, your Honour, we would regard that as being sufficient statements of the facts which the plaintiff desires to rely upon.

HIS HONOUR:   So that you would ask for a reservation of the question.

MR GRIFFITH:   On the affidavits, yes.  So all we need is your Honour’s reference to the affidavits and then the questions.

HIS HONOUR:   Then the only other thing we would need is the formulation of the questions.

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   I am quite content that such a procedure should be followed, Mr Solicitor, but I do not propose to settle the questions as from the bar table at the moment.

MR GRIFFITH:   We appreciate that, your Honour.  Your Honour, could I mention something about timing?

HIS HONOUR:   Yes.

MR GRIFFITH:   I discussed with my learned friend that we would regard it as expected that there would be orders made by your Honour for full written submissions at such time as your Honour may refer the matter into the Court.  In that context, I think my learned friend and I agreed that this would be a very much less than half day case.  Without going into the reasons, it is very much the position of the respondents that they would, if it were possible, wish the matter to be considered as one which may come on in the first week in June if the Court had time in that week to deal with it, even if there were a wait and see, your Honour, to see whether or not such time was available in that week.

HIS HONOUR:   Mr Solicitor, it could only be on a stand-by basis.

MR GRIFFITH:   Yes, your Honour, I have discussed that with my learned friend.

MR ABBOTT:   We would accept that, your Honour.

MR GRIFFITH:   The advantage of that, your Honour, is it would avoid any consideration to the issue of whether there - up to at least that date - would be any application for any delay.

HIS HONOUR:   Can I say that if the documents can be brought into proper order and the questions stated in time, I would be prepared to have it on a stand-by basis in the event that there was time available in that first week in June.

MR GRIFFITH:   I am indebted to your Honour.

HIS HONOUR:   But in default of that being realistic, then I would think it would be on Thursday, 8 August.  So, what I would suggest is that there may be some discussion between counsel as to the form of the writ, the form of the questions that are reserved and the form of the 78B notice.  I would then state the questions and, by consent, I would hope, give directions as to the preparation of written submissions and the listing would be as I have indicated.  I would offer no confident expectation that the stand‑by date would be realised.

MR GRIFFITH:   We quite understand the position for that, your Honour.  Would your Honour contemplate that the parties will be required to appear before your Honour when we do have the questions ready?

HIS HONOUR:   I think it would be very desirable, but if that could be done this afternoon I am available.

MR GRIFFITH:   Sorry, I was assuming your Honour was requiring the writ to be issued first before it would come back on.

HIS HONOUR:   I do, yes.

MR ABBOTT:   We will do it this morning.

HIS HONOUR:   That can be done this morning.

MR GRIFFITH:   I can always lend my learned friend the money for the stamp fees, your Honour.  We can perhaps do that.

HIS HONOUR:   Yes.  Assuming those questions can be settled and those directions available to be given, then this afternoon.

MR GRIFFITH:   We are indebted to your Honour being so flexible.

HIS HONOUR:   So, if you care to nominate a time this afternoon, it will be at that time.

MR GRIFFITH:   At 2.15 my learned friend suggests, your Honour.

HIS HONOUR:   Make it 2.30.

MR GRIFFITH:   If your Honour pleases.

HIS HONOUR:   Very well, I will adjourn to 2.30.  It will be necessary, I would think, once this procedure is adopted, for some formal step to be taken in respect of the motion that is to be made before the Full Court under the direction of Justice Dawson.

MR GRIFFITH:   If your Honour pleases.

HIS HONOUR:   Adjourn until 2.30.

AT 9.46 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.38 PM:

HIS HONOUR:   Yes, Mr Abbott.

MR ABBOTT:   If your Honour pleases, due to the very great assistance of the Senior Registrar and her staff which we have been accorded, we have managed to issue in Adelaide in the Adelaide Office of the Registry new proceedings No A21 of 1996.  A copy of the writ and statement of claim, I think, is before your Honour and has been provided, but not served, on my learned friends.  We would seek whatever leave is necessary to proceed now in respect of the writ and statement of claim in No A21 of 1996.  We have, subject to that leave being obtained, provided minutes of order containing the questions that we seek to have answered by the Full Court.

HIS HONOUR:   Yes.  Mr Solicitor, you are content, I take it, with this kind of procedure?

MR GRIFFITH:   Yes, your Honour.  I have instructions to say that an appearance will be entered by the first respondent.  There is no reason to suppose that the second respondent not give like instructions, your Honour.

HIS HONOUR:   Yes.  Perhaps I will hear from Mr Willheim about the second respondent.  Mr Willheim.

MR WILLHEIM:   Thank you, your Honour.  I cannot go further than that.  Obviously there has not been opportunity to seek instructions, but there is no reason to suppose otherwise.

HIS HONOUR:   Yes.  If I were to reserve questions at this stage, I would have to give leave, of course, to the second respondent to move for a reconsideration of those questions if necessary.

MR WILLHEIM:   Thank you, your Honour.

MR GRIFFITH:   May I make the suggestion that your Honour express any orders subject to the appearances being filed and entered.

HIS HONOUR:   Yes.  I would like to discuss the questions before we get ‑ ‑ ‑

MR GRIFFITH:   Yes, your Honour, but if your Honour expressed the order in that way then the filing of the appearances would cover that contingency.

HIS HONOUR:   Yes, quite.  Thank you, Mr Solicitor.  The questions, I see here, are numbers 1 and 2, Mr Abbott.  I am concerned about the two general questions and the framework of those two questions.  The first is whether there is an exercise of power at all and whether we need to be concerned with the question of an exercise of power.  Is it not the fact that you seek to challenge the effectiveness of the nomination?

MR ABBOTT:   Yes.  Up until I heard what fell from your Honour this morning I had proceeded on the basis there had been an exercise of a grant of power.  It was your Honour’s words which prompted the first question, obviously.

HIS HONOUR:   It just occurs to me that we might get involved in discussions about the nature of the function of nomination which are unnecessary.

MR ABBOTT:   We would be happy for the first question to be excised.

HIS HONOUR: I wonder if you might be better served, since this is the question that concerns the Minister at this stage, “Is the nomination and/or appointment of the second defendant by the first defendant as a reporter under section 10 effective to authorise the second defendant to make a report to the first defendant in satisfaction of section 10(1)(c) of the Act?”

MR ABBOTT:   Yes, your Honour.

HIS HONOUR: And then question 2 raises another problem. It seems to me to be difficult to speak in terms of a performance by the second defendant of the functions of reporter being invalid. I wonder whether the second question may not be better framed as, “Is the second defendant capable of accepting the nomination and/or appointment by the first defendant to make a report under section 10?”

MR ABBOTT:   I would obviously want to adopt what your Honour has said.  I can see the sense of what your Honour has put.

HIS HONOUR:   I will see what Mr Solicitor has to say about it.

MR GRIFFITH: Your Honour, we have some problems about the use of the expression “reporter” because that is not an expression of section 10. But if the meaning is clear, we have no objection to it. Really it is “the functions of preparation and submission of a report under section 10”, but if saying “reporter” comprehends that meaning, we will go along with it, your Honour, but it was not our suggestion.

HIS HONOUR: To make a report under section 10 would cover it, I suppose.

MR GRIFFITH:   Yes, it would, your Honour.  So we would make that comment.  As to where one slips in “invalid”, your Honour, we would not have ourselves done it in the way that is proposed by my learned friend, but what your Honour suggests seems to cover the point that we would have made.

HIS HONOUR: It leaves unresolved what might be a third question and that is, “Would a report to the Minister purportedly for the purposes of section 10(1)(c), made by the second defendant in conformity with other provisions of the Act, be a report which satisfies section 10(1)(c)?”

MR GRIFFITH:   We are not sure that that arises particularly ‑ ‑ ‑

HIS HONOUR:   I do not know that it does.

MR GRIFFITH:   Not at the moment, your Honour, because if we get a hearing in June that will be before the report.

HIS HONOUR:   That is a very hypothetical question really.

MR GRIFFITH:   It is, your Honour.  If we do not, and it goes to August, it may well be the matter will have to come back.  Your Honour, it could be accepted that notice will be given to the plaintiffs before any report is furnished, the final report.

HIS HONOUR:   I am sorry, I am not ‑ ‑ ‑

MR GRIFFITH:   Notice would be given to the plaintiffs before the second respondent does furnish her report to the Minister, so that they will have an opportunity to approach the Court if they are concerned about the matter that your Honour raises in the third issue.  We were hoping, your Honour, and particularly appreciative of the possibility of being on a stand-by in June to avoid those issues.  So we do not, for the moment, invite your Honour to cite that as a question.

HIS HONOUR:   Yes.  Apart from that, have you any further submissions as to the questions?

MR GRIFFITH:   No, your Honour.  The way your Honour has amended my learned friend’s draft does seem to cover our points of difficulty.

HIS HONOUR:   Mr Willheim.

MR WILLHEIM:   No, your Honour.

HIS HONOUR:   I am prepared, Mr Abbott, to make an order as the Solicitor suggests, subject to the entry of appearances and to such further application as the second respondent may be advised to make, in terms which reserve for the consideration of the Full Court the following questions:

1. Is the nomination and/or appointment of the second defendant by the first defendant to make a report under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) effective to authorise the second defendant to make a report to the first defendant in satisfaction of section 10(1)(c) of the Act?

2. Is the second defendant capable of accepting the nomination and/or appointment by the first defendant of the second defendant to make a report under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)?

Does that cover it as far as you are concerned?

MR ABBOTT:   Yes, your Honour, that covers it.

HIS HONOUR:   Mr Solicitor?

MR GRIFFITH:   There is one other matter we notice a difficulty on, that the draft order recites the affidavits filed in the first matter as being the material.  There is just a disconformity there, your Honour.  We do not want to have unnecessary costs, but it is a matter of appropriate form.

HIS HONOUR:   Do we need the affidavits?  Do they contribute anything?

MR GRIFFITH:   We do not, but my learned friend thinks he does, your Honour.

MR ABBOTT:   We need some of them, your Honour, the letter of nomination, unless it was by agreement.

MR GRIFFITH:   There is no difficulty about the instrument of appointment being included in the documents with the statement of claim.  We are content for that just to be attached.  It is an agreed document.  But if that is all my learned friend wants ‑ ‑ ‑

HIS HONOUR:   That can be satisfactorily accommodated by a reference in the questions themselves.

MR GRIFFITH:   Indeed, your Honour, and the question assumes, of course, the fact that the second respondent is a Justice of the Federal Court, but there is no issue on that, of course.

HIS HONOUR:   That is contained as an allegation in the statement of claim.

MR GRIFFITH:   Yes, so that is agreed, your Honour.

HIS HONOUR:   Mr Abbott, if one were to amend the questions that I have suggested to you by putting “nomination and/or appointment of second defendant (as appears from the attached letter of appointment), does that cover it?

MR ABBOTT:   I think so, your Honour.  My only hesitation is that I have not considered the full ramifications of your Honour’s proposed amendments to the question and whether there is any other document in our exhibits to the affidavits that we would need to put before your Honour but I cannot think of any that readily spring to mind other than the letter of 16 January.

HIS HONOUR:   I am certainly not intending to reserve any question where there is some contested issue of fact.

MR ABBOTT:   Of course not.

HIS HONOUR:   Perhaps you could have a quick look through the annexures to the affidavit and see if - - -

MR ABBOTT:   If I may, your Honour.

MR GRIFFITH:   Your Honour, perhaps while my learned friend is looking at that, could I raise another point which occurs to us and that is that as we understand the point is made there is incapacity by reason of judicial office so that it may well be, your Honour, that the question should be limited not so much to saying whether she is capable but whether she is incapable by reason of judicial office.

HIS HONOUR:   Yes, incapable by reason of judicial office.

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   Yes, that seems to be a more precise way of doing it, I think, Mr Solicitor, thank you.

MR ABBOTT:   Your Honour, we have had a brief look at the exhibits and I think only that letter of 16 January is the only one on the question as now framed by your Honour.

HIS HONOUR:   Yes.  I think one can perhaps overcome this best by saying it is ordered that on the facts pleaded in the statement of claim and by reference to the letter dated so-and-so, whatever it may be, there be reserved for the consideration of the Full Court the following questions and, as we have discussed, subject to the Solicitor-General’s latest suggestion, that it be incapable by reason of judicial office.

MR ABBOTT:   The letter, your Honour, is a letter from Rosemary A. Crowley, Minister for Family Services, acting for and on behalf of the Minister for Aboriginal and Torres Strait Islander Affairs, to Justice Jane Mathews, dated 16 January 1996.

HIS HONOUR:   Yes, thank you, Mr Abbott.  You can draw an order in terms that we have discussed this afternoon.

MR ABBOTT:   Thank you, your Honour.

HIS HONOUR:   Now, the question is the preparation of written material.  What would be necessary would be a full statement of the argument and authorities relied upon.  How long would it take you to prepare that?

MR ABBOTT:   Assuming we have this week, your Honour, to tidy everything up;  issue the fresh section 78B notices, we would seek to have two weeks until Friday, 24 May and my learned friends to have two weeks thereafter until Friday, 7 June, on the basis that this matter would be on stand-by to come on during the week of 10 June, I think it is, and possibly on 14 June, on the Friday.

HIS HONOUR:   What do you say about the timetable, Mr Solicitor?

MR GRIFFITH:   I say, yes, your Honour.

HIS HONOUR:   Yes.  Very well, there will be submissions to be prepared accordingly.  Now, as to the stand-by provisions or the stand-by proposal, that will be not only a matter for me to determine in the course of listing the Court’s business but I would need to consult with the other members of the Court and have regard to the nature of the work of the Court during the preceding days of that week, so that so soon as may be an intimation will be given to the parties as to whether it will or will not come on, but I cannot give you an indication affirmatively that it will or that any minimal time will be required.

If the argument were to proceed, how long would you expect your oral argument to take, Mr Abbott?

MR ABBOTT:   I would say, depending upon its acceptance, between one and two hours.

HIS HONOUR:   Yes.  On its acceptability, perhaps.

MR ABBOTT:   Acceptability, yes.

HIS HONOUR:   That depends, I suppose, upon the extent to which you are able to illuminate the problem in your written submissions.

MR ABBOTT:   Yes.

HIS HONOUR:   Mr Solicitor, have you any idea?

MR GRIFFITH:   Your Honour, I hesitate to say to restrict my predictions, but I would say half an hour, your Honour.

HIS HONOUR:   Yes, very well.  Apart from reserving costs, is there any other matter to - - -

MR ABBOTT:   Yes, your Honour, we would ask your Honour to vacate the order of Justice Dawson in action No A14.

HIS HONOUR:   By consent?

MR GRIFFITH:   Yes, your Honour, with costs reserved.

HIS HONOUR:   By consent?

MR WILLHEIM:   Yes, your Honour.

HIS HONOUR:   Costs reserved to whom, Mr Solicitor?

MR GRIFFITH:   Your Honour, inasmuch as the order is vacated, your Honour, that there have been preparation work considering the evidence and also, your Honour, in connection with today’s appearance and we have not been able to agree on the final disposal of that matter and, absent agreement, it was thought appropriate to leave those costs reserved until we discover the fate of this action, so it is left hanging, in effect.  We are not able to agree.

HIS HONOUR:   I wonder if the more appropriate order may not simply be to adjourn the matter to a date to be fixed and let the whole matter go back  before Justice Dawson.

MR GRIFFITH:   Perfectly appropriate, your Honour, but we are not asking for it to go back at the moment.

HIS HONOUR:   No, I appreciate that, but the parties can be at liberty to restore the matter for mention before Justice Dawson on seven day’s notice.

MR GRIFFITH:   Thank you, your Honour.

HIS HONOUR:   The Court will adjourn to a date to be fixed.

AT 2.57 PM THE MATTER WAS ADJOURNED