Wilson v Anderson and Ors S101/2000

[2000] HCATrans 609

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S101 of 2000

B e t w e e n -

DOUGLAS WILSON

Applicant

and

MICHAEL ANDERSON FOR AND ON BEHALF OF THE EUAHLAY-I DIXON CLAN

First Respondent

THE MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AS STATE MINISTER UNDER THE NATIVE TITLE ACT 1993 (CTH)

Second Respondent

NEW SOUTH WALES ABORIGINAL LAND COUNCIL

Third Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 OCTOBER 2000, AT 10.15 AM

Copyright in the High Court of Australia

___________________

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR J.M.C. EMMERIG, for the applicant.  (instructed by Blake Dawson Waldron)

MR E.S. NEUMANN:   If the Court pleases, I appear for the first respondent.  (instructed by Craddock Murray & Neumann)

MR V.B. HUGHSTON:   If the Court pleases, I appear with my learned friend, MR S.B. LLOYD, for the second respondent.  (instructed by the Crown Solicitor for New South Wales)

MR J. BASTEN, QC:   If the Court pleases, I appear for the third respondent.  (instructed by Andrew Chalk Associates)

GLEESON CJ:   Mr Jackson, may I ask you a question:  how long did argument in this matter take in the Full Court of the Federal Court?

MR JACKSON:   Two days.

GLEESON CJ:   And how long, if leave were granted, would you expect argument on an appeal to take in the High Court?

MR JACKSON:   It depends on the question of interveners, of course.  I would think it would be probably more than one day, less than two days.

GLEESON CJ:   Thank you.

MR JACKSON:   Could I say, your Honour, that the application involves two aspects of the Full Court’s approach to the case, and that is relevant to any question of time.  The first is the fact that the Full Court, as is apparent from its order, which your Honours will see at page 121, declined to answer Question (a) or Question (b) and, in consequence, Question (c) of the questions in the case stated to it.  That is the first complaint, as it were, the failure to answer, whatever the answer might have been, the questions.  The second is, of course, the fact that the Full Court did not answer the questions in a manner favourable to the applicant.

GLEESON CJ:   The reason I asked those questions was I just wondered whether the possibility had occurred to the parties of this application for special leave being stood over to be heard before a Full Court on the basis that argument on the application before the Full Court would be as full as argument on an appeal.  It is a course that is frequently taken in criminal cases.

MR JACKSON:   Yes, your Honour, I think, two of the last cases before the Court adjourned earlier this year were of that kind and that is a course with which, of course, we would be content.

Could I say this: as is apparent from the material, the case is concerned with a form of lease granted under section 23(1)(a) of the Western Lands Act 1901. I will take your Honours to the provision in just a moment. The issue arises in relation to a significant number of leases granted under that provision. The approach taken by the Full Court was that it should not determine the questions until there had been determined what was the nature and content of the native title rights which existed prior to the grant of the lease in 1955. Your Honours will see that in the Full Court’s reasons at page 58, paragraph 149.

Could I say in relation to that, your Honours, that that view creates some difficulties.  The first of them is that the – and perhaps I am putting that slightly incorrectly.  Could I say in relation to them, the difficulty arises in this way:  the nature of the entitlements conferred by the Act and by leases granted pursuant thereto does not change.  If the true effect of the Act and lease is to confer a right to exclusive possession, that must have a most significant effect upon the native title claims made by the first respondent.

The terms of Question (c), which your Honours will see at page 121, were limited to rights involving presence on the land.  If, at the end of the day – by that I mean the end of the native title process – one finds, after a lengthy hearing identifying the interests said to exist, that the statute and the lease denied their existence in any event, that is a situation which, in our submission, is, in the end, unsatisfactory.

As appears from page 164, paragraph 2 of the application book, this is an issue of general application and, in that regard, of some importance.  Could I say, your Honours, in support of what I submitted earlier, that the resolution of an issue of this kind was recognised by Justice Gummow in his reasons in Yanner v Eaton (1999) 73 ALJR 1518, as of some importance. I do not know that your Honours have that. Could I give your Honours copies of the decision. I mentioned Justice Gummow because he was the only member of the Court who referred specifically to the position in relation to leases. Your Honours will see at page 1540 in paragraph [108], that his Honour said:

The continued subsistence of native title will turn upon the extent of the inconsistency in question.  In the case of a grant of a fee simple or of a leasehold interest, as known to the common law, this second step will be unnecessary; subject to the observations above concerning the intersection of native title rights and estates, the comprehensiveness of the grant precludes any question of partial extinguishment.

In the joint judgment at page 1526, paragraph [35], there is a reference to the position concerning a grant in fee simple.

McHUGH J:   On the view expressed in paragraph [108], nothing turns at the level of abstraction at which you define the native title.  You may remember the discussion I had with you during the argument in Yanner about this matter.

MR JACKSON:   Yes.

McHUGH J:   It is an “all or nothing” situation from your point of view.

MR JACKSON:   Yes.  I have referred so far to the first question, the desirability of answering the question, whatever the answer might be.  Could I turn then to the second issue to indicate the essence of the case which we would seek to advance.  That is set out, first of all, in our summary of argument, commencing at page 138, paragraph 3.4 and following.

Could I refer particularly to paragraph 3.5.  I wanted to take your Honours, if I might for just a moment, to the relevant provisions of the enactment.  Your Honours will see behind tab 5 in the materials that your Honours will have, is the Western Lands Act.  It is in folder 2.  At page 42 is the provision which empowers the grant of leases.  Your Honours will see section 23(1), which says:

It shall be lawful for the Minister to grant leases of Crown Lands –

(a)  as leases in perpetuity; or

(b)  for any term expiring not later than –

et cetera, but, no doubt, (a) is the relevant one.  Prima facie, we would submit, just pausing at that point, the concept that is involved is the grant of something which would involve a right to exclusive possession.  If one goes to the other provisions of the Act, they make it readily enough apparent, in our submission, that what is contemplated is something that is a lease in the ordinary sense.  That comes about by looking at the structure of, particularly, sections 23 and 24.  Your Honours will see in section 23(2) that there is a prohibition upon the grant of a lease:

unless such lands have been set apart for disposal by notification in pursuance of section twenty-four of this Act.

Then one goes to section 24, at the bottom of page 42, it gives, in subsection (1) a power to:

the Minister, after such inquiry and report as may be deemed expedient, may declare by notification in the Gazette that the Crown lands…..shall be set apart for disposal by way of –

and your Honours will see paragraphs (a), (b), (c) and (d), each of which says “lease” but identifies particular classes of people who may obtain them.  Then your Honours will see subsection (2):

The Minister shall specify in any such notification that the land is set apart for the purpose –

and what the particular purpose of the lease is to be.  One then sees, for example, in 24(3)(a), that the notification is to have:

particulars of the date on and after which the lands therein described may be applied for, the period within which applications, where conflicting, shall be deemed to be made simultaneously, that the lease is to be a lease in perpetuity ‑ ‑ ‑

McHUGH J:   How can you distinguish this from Wik?  Wik legislation distinguished between licence and lease and it referred to the lease being granted and it referred to it being an interest in land and yet the majority held it did not give exclusive possession sufficient to extinguish native title.  In 24(2) the land is set aside for “grazing and agriculture combined or mixing farming”, not to do as you like with it.  Was that not part of the reasoning of some of the justices in Wik?

MR JACKSON:   Your Honour, various Justices expressed various reasons and in the end there was a note, in effect, giving the view of the majority, but may I say in relation ‑ ‑ ‑

KIRBY J:   Are you challenging the ruling for which Wik stands?

MR JACKSON:   No, your Honour, we are not challenging Wik.  What we are seeking to say is – if I may say two things.  The first is, if I just go back for one moment, what we are seeking to say is that this case is not the same as Wik.  We have set out, for example, in paragraphs 3.5, 3.6, 3.7 and 3.8, some of the submissions which we would make in relation to the effect of the particular legislation and so on.  The point that we seek to make about those is that one ends up with a different result, but, your Honours, it still leaves the anterior question which, in our submission, the Full Court should have dealt with, namely, “Is that submission correct?”, so that that is why we seek ‑ ‑ ‑

KIRBY J:   Could I ask you:  how long would it be anticipated ‑ has there been any discussion of the parties as to the trial of the content of the native title right of the applicants for that right?

MR JACKSON:   We are in the other side’s hands, I am afraid, in that regard and I cannot give your Honour an answer to that.

KIRBY J:   Because, as I understand it, you say that the convenience of this Court’s dealing with the matter is it is an “all or nothing” point; it is a legal point; it is discerned by looking at what Wik stands for and what the statute here provides and seeing if the two are analogous.  If they are, that is the end of your position on the knock‑out point and, if they are not, you have won the case and you do not have to go to trial on the lengthy elaboration and exploration of the native title right.

MR JACKSON:   Yes, your Honour, and may I say there is an alternative to that, and that is that this Court says the Full Court should have dealt with that question and the matter then goes back to the Full Court.

KIRBY J:   Is that all that you would be seeking from this Court?

MR JACKSON:   No, your Honour.  We would have the crumb if we could not have the plate.

GLEESON CJ:   That is the least you want.

MR JACKSON:   That is the least we want.  We would ask the Court to deal with both the issues but ‑ ‑ ‑

KIRBY J:   That would be a very difficult thing to require of the Full Court without this Court clarifying what the contours of the answer to the question would be, because, in order to decide whether or not it was unnecessary or unsuitable to answer, you have to have some concept of what the answer is going to be, otherwise you are at a level very theoretical of whether or not the Full Court fully exercised its powers, which I find it difficult to concede how that could be really answered without having a conception of what the answer was going to turn out to be.

MR JACKSON:   Your Honour, that may well, in our submission, militate in favour of the whole matter being dealt with by the…..but could I just say one other thing in relation to the general area your Honour was putting to me, I think, and it is this, that undoubtedly there will be cases in which the, or a court, arrives at an answer similar to that in Wik, an answer different from that in Wik, but the fact that the Court has given an answer in relation to one form of legislation and lease in Wik, does not mean that particular cases will not be sufficiently important for this Court to consider them in other circumstances.  I have given your Honours a reference already to the fact that this is a case which is potentially applicable to a very large number of people.

KIRBY J:   But I think the question is not whether this Court will visit the issue, given its significance and given the large number of people affected, given the submission of the State that it should, but whether or not it is timely, whether or not the Court does not better do that after facts have been found and the issues have been fully ventilated, and then this Court is in a position to give a final and not an interlocutory decision.

MR JACKSON:   In an appropriate case, that is the appropriate thing to do, of course, but may I say, with respect, in relation to a case such as this, the ultimate question, in our submission, is the effect of the State legislation and the effect of the grant pursuant to it.  That is something that is fundamentally a legal question involving questions of interpretation and ones that cannot really be affected by underlying issues of fact.

KIRBY J:   I did not quite understand your reference to what Justice Gummow said in Yanner v Eaton because his Honour was there referring to a lease at common law – you said so – whereas we are here referring to a particular statutory creature, the lease, as in Wik, the pastoral lease, as in here the Western Lands lease.  They are different beasts; that was the whole point of Wik.

MR JACKSON:   Your Honour, what Wik decided was that the particular legislation did not give, by the use of the term “lease” in a particular context, all the attributes of a common law lease.  Some yes, some not.

GLEESON CJ:   You want to argue that the word “lease” in this statute should not be read as though it was in inverted commas?

MR JACKSON:   Yes, your Honour.  Essentially, we say, whatever might have been the result in Wik, applying Wik to the present case, one sees a situation where a different result should be arrived at.

KIRBY J:   What is the most important distinction between the pastoral lease in Wik and the Western Lands lease here?

MR JACKSON:   The most important distinction, in our submission, is that one does not really see the features – I am not talking about questions of size or anything; we are talking about much small areas – but one does not really see, in our submission, in the legislation or in the lease granted pursuant to it, any features which significantly reduce the concept of lease contemplated by the use of the term “lease” in the general way in the enactment.

KIRBY J:   Size may be legally irrelevant, but many of the pastoral leases we looked at in Wik were enormous, the size of many countries.  What is the size – is there any conception ‑ ‑ ‑

MR JACKSON:   I think it is 44, 45 square kilometres, your Honour.

KIRBY J:   Forty‑five square kilometres?

MR JACKSON:   I think that is so, yes.  It is a large area, no doubt, in one sense, in another sense, not, but, in our submission, it is a case where one looks at the legislation and sees the result of it.  It is 4,492 hectares, your Honour.  Those are our submissions.

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr Neumann.

MR BASTEN:   I am not sure that anybody else wishes to address your Honour orally on this matter.

GLEESON CJ:   We are always happy to accept that, Mr Basten.

MR BASTEN:   I am not being contradicted.  Your Honours, we would say that this is an inappropriate case for a grant of special leave for a number of reasons.  Firstly, the carefully reasoned judgment of the Full Court indicates a number of reasons why it was inappropriate to answer the substantive questions and there is no matter of principle which would attract this Court’s intervention on that basis.  Secondly, we say that the questions were correctly answered for the reasons given by their Honours and there is no reasonable likelihood that a substantive answer would be given in the circumstances.

Perhaps significantly, if my friend does not seek to challenge the principles which were established by this Court in Wik, then all he seeks to do is to have the application of those principles revisited in relation to one particular statutory circumstance.

KIRBY J:   But a particular statute which has a large application to very many citizens who contend that they are in a state of uncertainty, and in respect of which there is tendered to this Court a relatively simply statutory question:  look at Wik, look at what Wik stands for, look at the statute in that case, look at the statute in this case and the lease, is this a lease akin to common law or is this a lease akin to a pastoral lease?  If it is not akin to a pastoral lease, then you have a difficult question.  If it is, end of question.

MR BASTEN:   Yes.  Your Honour, the Australian citizens for whom the Land Council is a representative body appreciate that there is a level of uncertainty – there is in all these cases.  The Native Title Act mandates a process of mediation as the primary means of solving these problems.  That process has been put on hold whilst this abstract question is raised before this Court and there are some concerns about that mechanism for dealing with the matter.

May I just say two things about the abstract question to which your Honour refers.  Since the decision of this Court in Wik the Parliament has legislated.  In 1998 it amended the Native Title Act in a manner which deals, we would say, comprehensively with pastoral leases.  Your Honours have, I think, those provisions of the Native Title Act in the bundle which deal with this matter.  They deal with two aspects:  pastoral leases are categorised as either exclusive possession pastoral leases or non‑exclusive possession pastoral leases.

The first thing we would wish to say is that it is inappropriate to deal with a case which has been dealt with entirely on the basis of the concept of exclusive possession in a common law sense when the Parliament has spoken and the real issues which will need to be determined require the elucidation and construction of the statutory provisions, and the statutory provisions are not necessarily the same as the common law provisions.

Secondly, the fact that this matter might have been dealt with, as it were, by way of demurrer by accepting, as a matter of fact, that the native title rights claimed all existed, is not a basis for approaching this case on some different footing to that adopted by the Federal Court.  This was not brought by way of a demurrer, there were no agreed facts in relation to native title in any sense, nor was it assumed by the Full Court, nor could it be assumed on the questions, that any particular native title was established or might be established.

KIRBY J:   Your demurrer point seems an over nice one, but the first point you raise may have more substance.  Do you say that this Court would simply be exploring an academic or hypothetical question of no relevance to the parties given that there has been supervening legislation which makes it really irrelevant to work out what the Western Lands legislation gives to the character of the lease?

MR BASTEN:   Yes, that is a possible outcome, your Honour, depending upon the construction of the Native Title Act, which has not been put in issue.  It may be that the concepts used in the Native Title Act are simply those of the common law, but that was not debated before the Federal Court, nor was it raised by the applicant before the Federal Court.

Sections 23B and 23G of the Native Title Act are complex and use terminology which was used by this Court in Fejo.  They also use the term “exclusive possession”, but it was the common law concept which my friend sought to agitate before the Federal Court.  It would be a different question which would be raised if it were the Act which were now sought to be dealt with in this Court and that is the reason why we say that these questions are, and always were, inappropriate to be dealt with separately and apart from the factual determinations.

Your Honours, in relation to my friend’s main point, he puts it in a simple and, perhaps, simplistic sense in saying that the question is really whether the word “lease” in this statute means what it means at common law.  The relevance of that, your Honours, is that the statutory construction point was precisely the point which was addressed by the Federal Court.

The hearing before that Court, in which there were really only two main parties involved, took two days.  The written submissions went to some hundreds of pages because it was thought appropriate to investigate the historical context in which this legislation was enacted.  The Court ultimately did not think that appropriate because that had been dealt with in Wik in a particular way.  The parties would, no doubt, wish to revisit that question in this Court to see whether the historical context gave rise to a difficult construction of this statute.

Accordingly, in answer to your Honour the Chief Justice’s suggestion at the beginning of this debate, we would think that it would be difficult to deal with it in the manner that your Honour had dealt with.  Of course, at the end of the day, it might be that special leave would be refused, but it would need a full debate and, we would think, no less than a full day’s hearing to reach that result.

KIRBY J:   No less than?

MR BASTEN:   A full day’s hearing to reach that result, together with the comprehensive written submissions which would no doubt be sought to be relied upon again.

KIRBY J:   In a sense, Mr Jackson’s client takes a risk if, in fact, this Court were to hold that this case is resolved by Wik, that the statutes are analogous and that is the end of that legal problem.  Then, so far as medication is concerned, your clients are in a much stronger position.

MR BASTEN:   No stronger than we are now, your Honour.  The question is really whether that ‑ ‑ ‑

KIRBY J:   No, the question has not been fully ventilated and answered.  If this Court answered the question, that would be the end of the matter.

MR BASTEN:   It might or it might not, your Honour, because ‑ ‑ ‑

KIRBY J:   It would depend on the answer.

MR BASTEN:   Depending on the answer, yes.

KIRBY J:   I find it very difficult to see how one can approach the problem without having a conception of what the answer to the legal quality of the lease is.  To just tell the Federal Court to answer it without giving some guidance as to what the answer is going to be is really, I think, unrealistic.

MR BASTEN:   With respect, we would accept that, your Honour, but we would go one stage further and say this:  all members of the Federal Court suggested that it simply could not be said in a literal sense that this was an exclusive possession lease.  There were numerous bases upon which, consistently with Wik, others were entitled to come onto the property and the pastoralist would not have a right in ejectment, if that is the inference to be drawn from the term “exclusive possession”.

The question ultimately is whether, consistently with what this Court has said about extinguishment of native title, the lease demonstrates a plain and clear intention to allow the pastoralist to exclude native title holders from the leasehold property.  That is not the way that the question is formulated.  If it were formulated in that way, then one would need to know a little bit more, we would think, about the native title in order to be sure that one could answer it usefully.

It is for that reason that there is an attractive, perhaps simplicity, about formulating a question in terms of exclusive possession, but ultimately it may not give rise to a useful answer to any of the parties.  We said so much before the Full Court and there was a sense in which the Full Court’s judgment accepted that position.  We say, without going back to what their Honours said, that they were correct in that regard, and that includes all members of the Court.  I am not sure that there is much more I can say in opposition to the ground.

GLEESON CJ:   Thank you, Mr Basten.  Mr Neumann or Mr Hughston, do you want to add anything?

MR NEUMANN:   No, your Honour.

MR HUGHSTON:   No, thank you, your Honour.

GLEESON CJ:   Yes, Mr Jackson?

MR JACKSON:   Your Honours, may I deal with one matter raised by our learned friend, and that is the effect of the Native Title Act provisions.  Could I just say this aspect, of course, was adverted to in the courts below and what your Honours will see is, if one goes to page 20 of the application book, there is a passage that commences there and concludes relevantly on page 23.

Your Honours will see the reference to the questions for the separate determination, making no reference to the Native Title Act.  Then the provisions of the Native Title Act that are germane are set out, including at page 21 the provisions about pastoral leases.  When one comes to page 22, there is the heading “Significance Of The Legislation For The Questions”.  Your Honours will then see at page 23, about line 5 on the page, it said Mr Basten:

submitted that the question of extinguishment of native title could not be addressed in the present case without reference to the NTA.  He accepted that the NTA did not constitute a code in relation to extinguishment.

Your Honours will see an argument then set out.  Then your Honours will see at line 21:

Mr Basten appeared to accept that under both the statutory scheme and the common law, the question was whether the Lease conferred a right of exclusive possession over the land.  He also appeared to accept that this question was to be answered by reference to common law principles.  Thus, on his submissions ‑ ‑ ‑

KIRBY J:   I rather gather that the appearance was not the reality, that their Honours mistook the appearance.  Mr Basten was being more than usually obscure, perhaps I should say “subtle”.

MR JACKSON:   Yes.  Your Honour, I will not endeavour to deal with that aspect particularly, but could I just say, if one goes to the next paragraph, whatever their Honours might have discerned from that, they did express a view.  That commences at about line 36 on the same page.  They said:

In our view, it is clearly correct, as Mr Sullivan submitted, that the NTA contemplates that native title rights in respect of particular land might have been extinguished prior to the commencement of the legislation –

and that is what they go on to deal with through the remainder of that paragraph.

KIRBY J:   I see we are getting into something which takes this away from the pristine question of law that you are offering.  I can smell a notice of contention in the wind and a suggestion that the Full Court’s decision could be supported on a basis founded in the Native Title Act which their Honours, by mistaking appearances, did not fully explore because they did not have to, but then we would be at the end of a special leave application before a Full Court, or of an appeal, and really we would not have advanced the matter very far.

MR JACKSON:   Your Honour, some smells attract one towards them, others repel.  This is one which should be repelled, in our submission, because it is an attempt to blur an issue where there is, in fact, no blurring of it.  It may take a few minutes to make that apparent in due course but, in our submission, there is, in fact, a very clear issue.

McHUGH J:   What about the use of history?  History was relied on by Justice Toohey, Justice Gaudron and Justice Kirby in Wik, and writings by subsequent historians suggest that the history that their Honours relied on was, if not wrong, at best misleading.  Does this mean that the reasoning in Wik will have to be re‑examined again in depth, or the correctness of the reasoning?  It could stand as a decision, but are we going to have to examine the reasoning?

MR JACKSON:   Your Honour, could I say in relation to that, that that is, in some respects, possible because history was referred to below ‑ ‑ ‑

KIRBY J:   I thought you said you were not challenging the holding in Wik.

MR JACKSON:   No, your Honour, I am not challenging the result in Wik.  It may be ‑ and your Honours will see at page 141, in paragraph 3.10 of our written submission ‑ ‑ ‑

McHUGH J:   Line 46:

to reach conclusions concerning historical material relied upon by some only of the majority in Wik ‑

What concerns me is that if part of the reasoning in Wik was swept away, what would you say, that we would just simply say that the decision stands as a decision in Queensland?

MR JACKSON:   Your Honour, that must, with respect, inevitably be so, although the meaning that conveys may vary depending on later decisions about the same general topic.

KIRBY J:   What, even though the federal Parliament, acting on the basis of Wik, has enacted national legislation which accepts the Wik decision, and that the whole landscape of the law has been changed by the decision?  It would be a bit difficult for you to go back and try to persuade this Court to completely undo it because some of the reasoning in some parts of it were said by some to be historically incorrect.

MR JACKSON:   Your Honour, could I just say that the question of the historical correctness of particular views is, in the end, in our submission, really a relatively minor matter in the whole thing.

GLEESON CJ:   I suppose one thing is clear, and that is that a decision of a court cannot be authority establishing history.

KIRBY J:   I think Justice Beaumont makes that point at the end of his reasons.

MR JACKSON:   Yes.  Your Honour, it is impossible to say that we would not seek to put some historical matter before the Court.  At the same time, your Honours will have appreciated that the principal argument that we seek to advance is one based upon the statutory provisions.

GLEESON CJ:   We will adjourn to consider it for a moment.

KIRBY J:   Could I, just before we do, ask Mr Basten a question?  I ought to have asked him when he was on his feet.  You remember that I asked

Mr Jackson about the time that would be taken, because he essentially wants to avoid the trial, saying there is a preliminary point which is for his side, a winner.  Have you any conception of what the trial that would clarify the content of your native title rights would take, assuming mediation to fail and assuming that the matter goes to trial on native title elaboration?

MR BASTEN:   No, your Honour, because until the mediation has been completed, we do not know what the issues in dispute between the parties might be.  There may be a large measure of agreement – there often is these days – as to what is accepted and what is not.  There is a greater level of agreement year by year as to what does not need to be litigated.  I am simply not in a position to assist your Honour on that basis.

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in this matter.

AT 10.51 AM SHORT ADJOURNMENT

UPON RESUMING AT10.53 AM:

GLEESON CJ:   This application for special leave to appeal will be adjourned to be heard further before a Full Court of this Court on a future occasion.  On that occasion, all parties should be prepared to present argument as on the basis of an appeal.

We will adjourn for a short time to reconstitute.

AT 10.54 AM THE MATTER WAS ADJOURNED
TO A DATE TO BE FIXED