#kiefel

GLEESON J: At the outset, can I indicate that I cannot see Mr Gibson.

KIEFEL CJ: You are quite right, neither can we. We do not have a picture.

MR MERKEL: I am not sure how familiar your Honours are with the tweeting process, and I may be a little inaccurate - - -

KIEFEL CJ: I think some more than others is the answer to that.

MR MERKEL: I think I am at the bottom of the barrel, your Honour, but I have tried to understand it a little.

MR WILLIAMS: I think it was Justice Gordon who said you perhaps will not often have a company acting as trustee of many trusts but we do in the commercial world. Many corporate superannuation trustees find themselves, for example, in exactly that situation. The largest professional trust companies find themselves in exactly that situation. Many of them are trustees of hundreds if not thousands of separate trusts. Perhaps Justice Gordon might be more attuned with some of the misconduct that has gone on in relation to those trusts than some others of us but - -

KIEFEL CJ: I do not think that comment is necessary.

MR WILLIAMS: I am sorry, your Honour, it was meant to be amusing and it was not and I apologise.

KIEFEL CJ: Perhaps out of place.

BELL J: Mr Reynolds, is that a submission you rely on?

MR REYNOLDS: Your Honour, I mentioned before that I was attempting to approach the matter, I think I put it, in a spirit of strict legalism. I said there were two or three points where - - -

BELL J: And this is one of the two or three?

MR REYNOLDS: Yes.

BELL J: Do you rely on it?

MR REYNOLDS: I have to put at least - - -

BELL J: The answer is yes.

MR REYNOLDS: - - - touch on this. Now, I said - - -

KIEFEL CJ: You do not have to put it at all.

MR REYNOLDS: I am sorry, your Honour.

KIEFEL CJ: You do not have to put it at all. You are senior counsel and you should be putting arguments which are properly addressed to the legal issues, not the opinion of someone who holds a personal, ethical, moral position. You do not adopt that position, Mr Reynolds, and you know that.

MR REYNOLDS: Your Honour, the difficulty I have is that I am responding to a deterrence from a particular thing which, as I explained, has not been identified and all I am saying is that there is another view.

KIEFEL CJ: If you are having difficulty understanding the submissions put against you, perhaps you best leave things to reply.

MR SILBERT: Can we say at the outset that the Crown did not change its position in relation to the way in which the manifest inadequacy was run. It is unfortunate that the appellant’s written case referred to by my friend is not before the Court. [...]

KIEFEL CJ: Mr Silbert, do you think we should have the document provided to the Court?

MR SILBERT: I think it would be of assistance, your Honour. The difficulty is that my junior has just gone and drawn on it. [...]

MR HOLDENSON: Would the Court be assisted by me providing a non-handwritten-on appellant’s written case to the Court crier?

KIEFEL CJ: A clear copy would be useful.

MR ODGERS: Of course, your Honour. I am just attempting to respond to the proposition that because you know there is something in the suitcase, the element of intention is met. I just – you can see I am struggling with this. I am saying that cannot be enough.

KIEFEL CJ: We know you are struggling, Mr Odgers.

MR ODGERS: I will cease to struggle. I have attempted, manfully, to respond to that.

NETTLE J: That is gender normative, Mr Odgers.

MR ODGERS: Yes. Gender – I have struggled personally – whatever the word is – “person-fully”.

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.