#hutley

GAGELER J: You may not be able to see the light, Mr Hutley, I think.

MR HUTLEY: I thought I was on orange, your Honour, not – has it gone red?

GORDON J: It is on orange, it has five minutes to go.

GAGELER J: I am sorry, you are right.

MR HUTLEY: I thought I was on orange, your Honour.

GAGELER J: You are. I misread the colour.

MR HUTLEY: It will not matter about selling snow globes to Finland. It will be about market power in Australia. If Maggie Beer’s restaurant in South Australia is advertised nationwide for customers to come to South Australia and use it, does that mean because there are potential customers in Brisbane, Melbourne and Sydney, she is engaged in - her restaurant is in a national market for restaurants, a Sydney market for restaurants or what?

KIEFEL CJ: Probably a market in supermarkets.

MR HUTLEY: I am sorry.

KIEFEL CJ: National supermarkets.

MR HUTLEY: I am talking about the restaurant, your Honour.

NETTLE J: Let us assume all the homes are in the town of Albury, for example. ... Plumbers are all around the place through southern New South Wales and northern Victoria, where is the market?

MR HUTLEY: Your Honour, it all depends what the question – this is where the purposive – if, for example, it is alleged that our plumber of Albury has done some illegal act, he or she has taken part of his or her market - - -

NETTLE J: No, none are illegal, there are just all these plumbers from south New South Wales and northern Victoria are prepared to go to Albury to provide domestic plumbing services to customers who live in that town. Where is the market?

MR HUTLEY: Your Honour, with respect, the question may be, and this is – you have got to ask it for a purpose, you have got to ask it in the context of the question and, as this Court said, which you are worried about. There may be a number of plumbing markets in Victoria which overlap depending upon about whose conduct you are asking.

NETTLE J: I am not trying to be difficult but - - -

MR HUTLEY: I am not trying to be difficult either, your Honour.

NETTLE J: - - - let us just assume there is half a dozen plumbers scattered throughout southern New South Wales and half a dozen in north Victoria and they are the only chaps who are prepared to go to Albury to provide the services. Where lies the market?

MR HUTLEY: Your Honour, if you are asking the question is there a market in Albury, there may be.

MR HUTLEY: The United Kingdom has held that the words “adduced in the proceedings” mean admitted in the proceedings. In that regard, one can see that that is the ordinary meaning - - -

*FIRE ALARM WARNING*

KIEFEL CJ: We will proceed until we are interrupted again.

MR HUTLEY: [...] We submit there were powerful reasons for the conclusion that the true construction was “admitted”. The driving consideration against it was the reference to “fresh” and we say that is an error.

*FIRE ALARM WARNING*

KIEFEL CJ: Yes, Mr Hutley.

MR HUTLEY: [...] It should not be construed to render admissible evidence that which was inadmissible.

*FIRE ALARM WARNING*

MR HUTLEY: [...] Even if it is tendered then one moves to the second question of construction, namely - - -

*FIRE ALARM WARNING*

MR HUTLEY: [...] What we submit is the construction of the two is – and I will assume now “tender” is the word rather than “admitted” – that the policy is that the defendant, respondent here, people in the respondent’s position, should not be - - -

*FIRE ALARM WARNING*

KIEFEL CJ: Mr Hutley, would you prefer to continue or stand down until the fire alarm is over? I know it is not interrupting your focus

MR HUTLEY: If your Honours are happy for me to continue, I will continue, rather than - - -

KIEFEL CJ: Yes, thank you.

MR HUTLEY: [...] The first question, your Honour, is whether “tender” is - - -

*FIRE ALARM WARNING*

MR HUTLEY: If “adduced in the proceeding” means admitted, then on any version the Court of Appeal erred, and one does not have to get to (b). The evidence simply was not admitted, nor could be admitted. The Court of Appeal erred. If it means tendered, the question then becomes could evidence be tendered in those proceedings with the exercise of reasonable diligence if it is clearly inadmissible. That, in other words is, if it is just a physical possibility to, as it were, hand it across the Bar table is the test - - -

*FIRE ALARM WARNING*

MR HUTLEY: What we are putting, Chief Justice, is if that is the meaning then there is nothing – this elaborate structure in (2) was utterly otiose.

MR BIRCH: They wish to argue that we are going to be faced with obstacles as a result of section 73 of the Constitution. We will have to devise arguments as to why we are not. So it will not be a short page and a half exercise.

GAGELER J: Mr Birch, you need to think very carefully about this. I mean it is an extremely ambitious argument that you are seeking to mount. You will have to think up some very, very clever ways of getting around some pretty fundamental difficulties I think.

MR BIRCH: Your Honour, we have thought already. We perceive the difficulties. We can see why at first blush this argument might seem to be too hard for us but we consider that there are some arguments that would appeal to a court.

GAGELER J: Very well.

GAGELER J: Your time on the special leave application is up. Is this a short point that you are about to embark on?

MR WILLIAMS: The short point is this. Your Honours, the insured is defined in the policy – in the slip – in exactly the same way as it is in the policy. In other words, in the same way as it – my friend says it is not. May I hand the document up please?

GAGELER J: Yes, all right.

MR HUTLEY: There has been a finding about that.

MR WILLIAMS: I know, it is erroneous.

MR HUTLEY: No, at first instance, which was unchallenged on appeal. So, their Honours should be taken to the fact that - you are just seeking to challenge a finding which was unchallenged on appeal.

MR WILLIAMS: You will have your turn. You have had your turn.

GAGELER J: Gentlemen, let us get on with it.