Siminton v Tracey & Anor [2007] HCATrans 24 (2 February 2007)

Last Updated: 22 March 2007

[2007] HCATrans 024

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M136 of 2006

B e t w e e n -

DAVID SIMINTON

Plaintiff

and

JUSTICE TRACEY

First Defendant

VICTORIAN DISTRICT REGISTRAR OF THE FEDERAL COURT

Second Defendant

Application for order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 2 FEBRUARY 2007, AT 11.07 AM

Copyright in the High Court of Australia

MR D.B. SHARP: If the Court pleases, I appear on behalf of the plaintiff. (instructed by Erhardt & Associates)

MR R.M. NIALL: May it please your Honour, I appear on behalf of the second defendant, the Victorian District Registrar of the Federal Court of Australia. (instructed by Federal Court of Australia)

HER HONOUR: Yes.

MR NIALL: While I am on my feet, your Honour, may I seek your Honour’s leave to file in Court a very short affidavit of Sia Lagos, the District Registrar, which updates the factual context?

HER HONOUR: Thank you. I will just take a moment to read that, Mr Niall.

MR NIALL: Thank you, your Honour.

HER HONOUR: Yes, and you are filing that?

MR NIALL: If your Honour pleases.

HER HONOUR: Yes, thank you. Do you have a copy, Mr Sharp?

MR SHARP: If your Honour pleases.

MR NIALL: Your Honour should have in addition to this affidavit that has just been filed the affidavit of my instructing solicitor, Mr Hardy Steffen Erhardt, and a summons and an outline of argument.

HER HONOUR: I will just take a minute to find that. I do not think I have an outline of argument, Mr Sharp. I am having trouble locating one.

MR SHARP: I am sorry, your Honour, I was getting confused with the next matter. There is no outline of argument.

HER HONOUR: There is no outline of argument, I am sorry.

MR SHARP: Yes, I am sorry about that, your Honour.

HER HONOUR: Do you want me to look now at the outline of argument in relation to the second matter? Is that what you were intending?

MR SHARP: No, your Honour, although I can indicate that ultimately if we are successful on our argument today with respect to this matter we would be seeking that it be directed to be consolidated or heard together with the other matter. We say they are linked and that the one is dependent upon the other.

HER HONOUR: Yes. Which summons are you proceeding on in this matter now, or the date of the summons?

MR SHARP: This is No 136, your Honour, the matter of - - -

HER HONOUR: But the date of the summons.

MR SHARP: The summons dated 23 October 2006. I am sorry, no, your Honour, no, I am not. That was the summons for interlocutory relief. It would be the summons - - -

HER HONOUR: Is it the summons of 31 October 2006 seeking a stay?

MR SHARP: That is the interlocutory application, your Honour.

HER HONOUR: I thought that had been dealt with.

MR SHARP: Yes, it has.

HER HONOUR: So what is the summons - - -

MR SHARP: The summons is the actual summons of 23 October 2006.

HER HONOUR: Just give me a moment. I am having trouble locating that summons, Mr Sharp. It may have found its way into the other matter by mistake, but in any event, if you explain to me what you are seeking today.

MR SHARP: Yes, your Honour. The relief sought is set out in the application if your Honour were to turn to the application dated 23 October.

HER HONOUR: Yes.

MR SHARP: I could read that to your Honour, or your Honour might wish - - -

HER HONOUR: Yes.

MR SHARP: I will read it aloud:

The Plaintiff seeks the following Orders in relation to a Decision of Justice Tracy made 6 October 2006 (the Decision) in the matter of
Australian Prudential Regulation Authority (APRA) v. DAVID ROBERT SIMINTON (SIMINTON) (and for which the reasons for judgment were given on 18 October 2006), which decision was made pursuant to a Notice of Motion dated 3 October 2006 filed by the Victorian District Registrar seeking Directions concerning the enforcement of a fine of $50,000.00 ordered by the Full Court - - -

HER HONOUR: I now have that, Mr Sharp, thank you.

MR SHARP: If your Honour pleases.

HER HONOUR: What is the relief you are seeking today?

MR SHARP: Your Honour, we would seek directions for a hearing. In particular, since there has been a change in the order which was made on 6 October we would say it is a variation which has occurred of that order but that the fundamentals are unchanged. In particular, we would seek a direction that we be permitted to file a further affidavit addressing the change and to file an outline of argument by a certain date that the defendants be directed insofar as the first defendant wishes to do so and the second defendant to file an answering affidavit and an outline of argument and the matter be directed to be heard together or consolidated with matter No 156. Those would be the directions which we would seek, your Honour, subject to anything that otherwise might be deemed appropriate.

HER HONOUR: So you are really seeking a timetable in relation to the filing of affidavits and a consolidation with the second matter?

MR SHARP: Yes, your Honour. We say this matter should proceed. I believe my learned friend will seek to address you and to argue that it should be ordered now discontinued or dismissed but we would argue to the contrary.

HER HONOUR: Yes, I see. I might hear from Mr Niall and you will of course have an opportunity to respond to whatever he says might be the convenient way to deal with the matter.

MR SHARP: Yes, and so if your Honour wishes to hear from my learned friend first and for me to respond then we can proceed.

HER HONOUR: In relation to what you are proposing, yes. Thank you.

MR NIALL: May it please, your Honour. In my submission, the application should be dismissed under Order 25 rule 3.3 on two bases: first, that there is nothing substantive left to challenge by reason of the orders made by Justice Tracey on 6 November and, secondly, no intelligible ground of jurisdictional error is disclosed in the application. Can I very briefly develop those arguments, your Honour. The application seeks to challenge some - - -

HER HONOUR: Did you, by the way, file an outline of argument in this matter?

MR NIALL: No, your Honour, I have not, on this occasion. Your Honour will recall on the last occasion an outline of argument was filed. Your Honour may not recall. On the last occasion there was a summons for a stay of his Honour Justice Tracey’s order.

HER HONOUR: Yes, I do recall that.

MR NIALL: We filed an outline of argument saying that there were no intelligible grounds of jurisdictional error. Your Honour, with respect, agreed with that submission and refused a stay. Nothing has changed in that area.

HER HONOUR: Yes.

MR NIALL: The second issue and the significant issue is that the second reason your Honour refused a stay was because it was premature because there were proceedings still in the Federal Court. What happened is that the matter returned to the Federal Court and if your Honour goes to the affidavit of Ms Lagos that I filed this morning - - -

HER HONOUR: He describes the progress, yes.

MR NIALL: Yes. If your Honour goes to the order which is exhibit 3, I think, your Honour will see the orders made by Justice Tracey.

HER HONOUR: Yes.

MR NIALL: Can I invite your Honour to go to exhibit I, to the affidavit of Hardy Steffen Erhardt sworn on 23 October 2006?

HER HONOUR: What was that date again?

MR NIALL: It is 23 October 2006.

HER HONOUR: Yes, I have that.

MR NIALL: If your Honour goes to exhibit I your Honour will see that is the judgment of Justice Tracey – the reasons for judgment, I apologise, of 18 October and there are the orders that his Honour made on 6 October.

HER HONOUR: Yes, I have that.

MR NIALL: Your Honour will see it was order 1, “On or before 23 October” the plaintiff produce some books to the registrar; order 2, that he attend for oral examination; 3, a consequential service and costs be reserved. That is the orders that the plaintiff seeks to challenge in this proceeding.

HER HONOUR: Yes.

MR NIALL: By order of his Honour Justice Tracey in November following your Honour’s order his Honour set aside order 2. He vacated order 2 which is the substantive order, so there is nothing left to be agitated in this Court on the constitutional writ.

HER HONOUR: Nothing left to be agitated on appeal, pursuant to this process, yes.

MR NIALL: Yes, your Honour. In relation to order 1 which his Honour did not set aside I have two very brief submissions to make. The first is that the order is spent. It required something to occur before 23 October. Now, that time has passed. It is not requiring the plaintiff to do anything any more and a constitutional writ directed to order 1 would be of no utility because it would not excuse any past non-compliance because order 1 being an order of a superior court of record must be observed until it is set aside and therefore it stands as an order of a court. If it is set aside now it has no significance because any past non-compliance will still be non-compliance for which consequences may or may not follow.

HER HONOUR: Yes, I follow.

MR NIALL: In our submission, the plaintiff can get no useful utility by prosecuting this application and that is the substantive basis on which we say your Honour should bring it to an end, with respect. The second is, in your Honour’s reasons on the first occasion that the matter was before you your Honour held, with respect, that the application does not identify intelligible grounds of jurisdictional error by Justice Tracey and the application by summons for a stay is premature. That has not changed, with respect, your Honour. So, for those two reasons your Honour should dismiss the application. May it please, your Honour.

HER HONOUR: Yes, thank you.

MR SHARP: Your Honour, might I take issue with my learned friend’s submission that a ruling that an order has been made and has been breached whilst it was extant settles the matter. I would submit that to the contrary in even the most determined or decisive decisions in that regard, and there are a number, that the qualification has been that if there is a lack of jurisdiction constitutionally in the court which has made the order that the blanket rule of an order being made must be obeyed regardless of whether or not it is subsequently successfully appealed or not.

HER HONOUR: But, Mr Sharp, as you know, these writs very much depend on discretion and utility is a major factor in relation to the exercise of such discretion. There is indubitable force in what Mr Niall says about the lack of utility in relation to these writs, having regard to what has happened.

MR SHARP: Perhaps I can address those issues, your Honour.

HER HONOUR: First of all, what about paragraph 2 of Justice Tracey’s order? That was a substantive order. It has been vacated.

MR SHARP: Yes, your Honour. First of all, implicit in his order was a rejection of the plaintiff’s application for time to pay. So, in that order there are in effect two orders, your Honour, an order rejecting the plaintiff’s, Mr Siminton’s contention that he should have time to pay and, secondly, the actual literal order that the Registrar should take steps to issue contempt proceedings.

Now, as far as we know, although in conversation earlier today with my learned friend there is a suggestion to the contrary, no steps have been taken to issue contempt proceedings. We certainly have not been served with any contempt proceedings and it is approximately three months, of course, since Justice Tracey’s original order and approximately two months since his direction to the Registrar.

HER HONOUR: In a sense, that just emphasises, does it not, in another way the lack of utility in relation to the proceedings?

MR SHARP: No, your Honour. If I might be permitted to expound further? One of the issues which was raised and is raised in the application is the capacity - to be able to comply with the order is a fundamental and necessary aspect of making the order which has now been made directing that the Registrar should take steps to prosecute for contempt. There was to the contrary ample evidence before Justice Tracey that Mr Siminton did not have the capacity to pay, not least of which was the fact that he has had all of his assets frozen, all of his funds and assets have been frozen.

The amount of $50,000 was ordered to be paid within 60 days. Although he was granted a slight extension that, in effect, was less than a month, if I remember correctly, and there was no evidence put by the Registrar to refute – admittedly, the hearsay evidence of my instructing solicitor in the supporting affidavit for an extension of time but Mr Siminton had indicated to him that he had no money and was unable to pay the fine.

HER HONOUR: Mr Sharp, can I ask you to look at the orders in respect of which you are seeking relief.

MR SHARP: Yes, certainly, your Honour. The varied orders.

HER HONOUR: They are part of exhibit I.

MR SHARP: Yes.

HER HONOUR: The first order is that on or before 23 October 2006 Mr Siminton produce certain documents.

MR SHARP: Yes.

HER HONOUR: That has not been done, as I understand it, and no consequences have followed?

MR SHARP: That does not preclude possible contempt proceedings for breach of them.

HER HONOUR: But there have not been any and they have been - - -

MR SHARP: There has not been any. As I said, there has been no contempt proceedings but it does not preclude them.

HER HONOUR: And we are now into February 2007.

MR SHARP: Yes.

HER HONOUR: As to paragraph 2, that order has been vacated?

MR SHARP: Yes, but it has been substituted and I would say, more precisely, although the terminology used has been to “vacate it”, it has been used as a hanger in which to make the replacement order – the replacement number 2 order which is directing the Registrar to commence contempt proceedings.

HER HONOUR: But this is the order which is the subject of the application for constitutional writs, the one we are looking at now?

MR SHARP: Yes, this is the order of Justice Tracey.

HER HONOUR: Which is the subject matter of your application in this Court.

MR SHARP: I am sorry, your Honour, I might be obtuse but are we talking about 136, perhaps, or 156, the Registrar’s motion or Mr Siminton’s motion?

HER HONOUR: I am dealing with Justice Tracey’s order of - - -

MR SHARP: He made three orders on that day, actually.

HER HONOUR: I am sorry, the one that constitutes part of exhibit I.

MR SHARP: Yes, that was 136 now before this Court.

HER HONOUR: Yes.

MR SHARP: I refer to that for perhaps obvious reasons as the Registrar’s motion. The Registrar brought that motion for directions to Justice Tracey. Your Honour has heard in the interlocutory summons - what we say are manifest, patent on their face, failings on the part of that order. Firstly, just to reiterate briefly, that it has been brought in the – what I would call the trial division of the Federal Court whereas the order directing the fine be paid was in the Full Court. As a consequence, the numbers are wrong or different. The parties are reversed.

The matter has been brought, has been initiated and partly heard, we would submit, as we put in our affidavit, by Justice Goldberg sitting in the Full Court, because that was an issue in that very proceeding. In fact, we would say Justice Tracey himself rejected the contention that he could hear this matter. When we commenced – initiated steps to obtain an extension of time or time to pay we were told by Justice Tracey’s associate that it was inappropriate for him to hear the matter in the trial division or in the – I think trial division is the best I can come up with, your Honour.

In the trial division it was inappropriate for him to hear the matter because the Full Court was seized of it and it was a Full Court order which was being sought to be enforced. Accordingly, we had to withdraw our insipient request to apply for an extension to Justice Tracey and go to the Full Court where it was heard by Justice Goldberg, admittedly as a single judge, sitting as the Full Court. So the matter has already been seized by the Full Court. It is not just as though it is an arcane argument.

HER HONOUR: But that is another reason not to be proceeding with constitutional writs in this Court.

MR SHARP: Your Honour, we have already tried to go to the Full Court and we failed. We sought leave and that was refused. We say that the matters are manifest on their face, and the real manifest error that perhaps now is issued is that there is no evidence of capacity to comply with the order, none whatsoever, and therefore that of itself, as one of the reasons we have set out in what I would call the substantial rounds of issue, apart from the fact that it is in the wrong court and in the wrong matter, one of the - - -

HER HONOUR: But you are not contending, are you, that a lack of capacity to pay means that the orders made – what are you contending in relation to the lack of capacity to pay? I mean, a judge is entitled to make orders that require payment despite a lack of capacity to pay. It does not follow inexorably that if there is a lack of capacity to pay the judge declines to make orders to pay.

MR SHARP: We say, your Honour, that there must be evidence, some evidence – and there is none – there must be some evidence in a contempt proceeding.

HER HONOUR: But there is no contempt proceeding on foot, as I understand it.

MR SHARP: No, but the direction was to commence a contempt proceeding. We say that that order – and the application to Justice Tracey is an unusual situation, it is an anomalous situation. It seems to be a developing area in the Federal Court perhaps because of the number of contempt proceedings which are now growing, but the Federal Court is now, in effect, forming a procedure which has not been tested, other than in the Federal Court, which we say is ripe for testing, it should be tested - they are forming a procedure as to how to go about commencing contempt proceedings.

The procedure which is forming flows from a decision of Justice Merkel and has been adopted in the judgment of Justice Tracey, or referred to in the judgment of - - -

HER HONOUR: But none of this has happened. I mean, as I say, constitutional writs and the granting of them will turn on discretionary considerations. If they are applied on a prophylactic basis that is going to be a very important aspect in relation to discretion and it is hard to see that there is any – well, there is no utility made out.

MR SHARP: This is the utility, your Honour, the - - -

HER HONOUR: It is as though you want a weapon for the future in case something happens.

MR SHARP: We are told that it has been issued.

HER HONOUR: That is not the way in which the jurisdiction works.

MR SHARP: I am sorry, your Honour, but my learned friend has indicated to me this morning that it issued last year, or filed – was filed and issued last year, the contempt proceeding. We have not been served with it but it is – if my learned friend is correct then it is extinct. The point is this. If in fact this matter is dismissed we say that the principal application from which the contempt flowed we have proceedings afoot to set it aside. We say that if it was made without a proper constitutional basis that it does not follow that the order of the court from which the contempt is alleged to have arisen had to be obeyed. If it was constitutionally unsound the order would fall.

In any event, we say – and I know that the Full Court has ruled against us in this and we did not appeal but we say this, that in fact there is ample power in a superior court or a court which has issued an injunction, and which it should have done to dissolve the injunction. When an injunction is dissolved we say it is dissolved ab initio. That is why they used the word “dissolve”. The rule may have some substance in respect to substantial matters but with respect to injunctions the effect of a dissolution of the injunction it is, prima facie, we would say, dissolved ab initio.

In any event, the Rules and section 65A under which the order was made which was allegedly breached, precisely allows the order setting it aside to have retrospective effect. In other words, what I am saying is this, if the order from which the breach and the subsequent contempt arises is set aside there is ample room, and we would submit ample justice in the application, that it be set aside ab initio - - -

HER HONOUR: That can all go through the normal appellate processes in the Federal Court if and when any contempt proceedings are pursued.

MR SHARP: Your Honour, the contempt proceedings - as I have said, we understand they have been directed. In any event, it is the order of Justice Tracey we say has effect. It is not without effect. The effect is that it has given authority to the Registrar to proceed. If this is not dealt with by way of these proceedings that, we would say, unsound order will form a basis for a contempt proceeding.

HER HONOUR: But that can be dealt with through the appellate processes of the Federal Court.

MR SHARP: But at the moment there is no contempt proceeding, as your Honour has pointed out.

HER HONOUR: That is right. That makes it even more premature, Mr Sharp.

MR SHARP: No, with respect, I would submit to the contrary. What is being appealed is this discrete order of – orders being – the relief is being sought is against this discrete order. The order of Justice Tracey is discrete and entire in itself. It has consequences. It provides authority to the registrar when the registrar so determines to issue contempt proceedings. We should not have to have hanging over our head this sword which may be exercised at any time of contempt proceedings. We say that this is not a matter of utility. This is a matter of substance.

If we do not get this order of Justice Tracey set aside we are standing in constant danger of contempt proceedings. It is an entire and discrete proceeding. The application to Justice Tracey is complete in that sense. It is not an interlocutory step. It is a complete step and it was complete when he gave directions to the registrar. We say that that is reason to set it aside. We should not have to proceed wondering if we are going to be dealt with for contempt or proceedings are going to be put on for contempt.

HER HONOUR: So that is really the significant point from your point of view, that you want to pursue the constitutional writs because of peril that you may face contempt proceedings at some time in the future?

MR SHARP: Yes, your Honour. Prima facie it is a direction that should be obeyed but at the discretion of the registrar as to when it will be obeyed. We should not have to abide that. We should not be denied a relief or a remedy if that order was improperly made. It does have, we say, substance. It is not an exercise in futility to have it set aside because if it is set aside by your Honour or by this Court then the registrar will no longer have a basis for proceeding. In any event, we say, as I have indicated, that there patently was no capacity and that capacity must be proved beyond reasonable doubt to proceed and we say that his Honour should not have made that order given that there was no evidence to justify a direction to issue contempt proceedings. I do not know if there is anything further than that, your Honour.

HER HONOUR: Yes, thank you. Thank you, Mr Sharp. Yes, Mr Niall.

MR NIALL: Very briefly, if I may, your Honour. The application seeks to impugn the orders of 6 October, exhibit I, and they are the only orders that are sought to be impugned by the application. The entirety of my learned friend’s submissions was directed, in effect, to the orders of 6 November in respect of which there is no process before this honourable Court seeking to challenge. Can I inform your Honour, in relation to the order of 6 November - that is not the subject of affidavit material because, in our submission, it is not relevant - is that pursuant to that order - the registrar has issued contempt proceedings in relation to the failure to comply with the order of the Full Court of the Federal Court made in July 2006.

HER HONOUR: Just let me make a note of that. The order of the Full Court was - - -

MR NIALL: That was the order that required Mr Siminton to pay the fine. He did not pay the fine and on 6 November in that last order, that Ms Lagos deposed to this morning, directed the registrar to issue contempt proceedings in relation to that order and that has been done, I am instructed. I do not understand why it is not being served but that will be attended to but that should not detain your Honour.

HER HONOUR: I see. No.

MR NIALL: In my submission the focus and sole focus is the order of 6 October in respect of which no challenge can be made.

HER HONOUR: Let me just get this straight.

MR NIALL: Yes, your Honour.

HER HONOUR: The constitutional writs, as I understand it, are directed to the orders of Justice Tracey made on 6 October 2006 - - -

MR NIALL: Yes, your Honour.

HER HONOUR: In respect of which the first order, and I put this to Mr Sharp, was an order for production of documents by a certain period of time.

MR NIALL: That is correct.

HER HONOUR: Production has not taken place?

MR NIALL: That is correct.

HER HONOUR: No consequences have followed?

MR NIALL: That is correct.

HER HONOUR: In relation to order 2 that has been vacated.

MR NIALL: That is correct.

HER HONOUR: That is the subject matter, those two orders, of the application for constitutional writs.

MR NIALL: That is correct, your Honour.

HER HONOUR: Yes.

MR NIALL: That is why – I apologise. I have not put that in written outline, your Honour, but that is why we say it is futile. If your Honour pleases.

MR SHARP: Your Honour, I must not have made myself clear, I apologise, but of course the purpose of the supplementary affidavit is to incorporate what we say is a variation of the original order. In other words, the order of 6 November which vacated and substituted is patently a variation of the original order. It relied on the – his Honour did not even hear evidence or require affidavit material. He vacated the order on the application of my learned friend as a preliminary application. It is quite clear, in my submission, and the purpose of the affidavit partly, which we would seek directions to file, would be to amend the application to incorporate the variation – of the.....variation.

To say that the original order has been brought to an end and therefore that is the end of the matter when in fact we have – effectively, proceeding on the original application, the registrar summons, we submit, is a misdescription of what has occurred. I could not - - -

HER HONOUR: Well, where do I find the variation of paragraph 2?

MR SHARP: It has to be implied from the circumstances. The order certainly does not condescend to call it a variation but the circumstances of such are quite clear – make it quite clear by inference that it is a variation. The summons relied upon in which to make the order was the original summons. The fact that it is inserted by way of No 2 is deleted or vacated and replaced, we would submit, by this new order as a substitute order impliedly means that the original order has been varied. It is not as though the original order has been included. We say that it flows from the original
summons which is of course where the original order flowed from and the second order flowed from. They both flowed from the summons.

HER HONOUR: Yes, thank you. I will adjourn for a short period.

AT 11.45 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.20 PM:

HER HONOUR: By an application for an order to show cause filed in the High Court of Australia under Rule 25.01 of the High Court Rules, the plaintiff seeks constitutional writs, declaratory relief and ancillary orders against Justice Tracey, a judge of the Federal Court of Australia and the Victorian District Registrar of the Federal Court of Australia. Justice Tracey made interlocutory orders on 6 October 2006 (1) that the plaintiff “produce all his books, bank statements, savings accounts, share certificates and other documents relating to his financial position before the Deputy Registrar of the Federal Court of Australia” and (2) that the plaintiff “be orally examined as to whether he has any, and what other property or means of satisfying the judgment of the Full Court of the Federal Court made on 19 July 2006”. No production of books has taken place as ordered and no consequences have flowed from the non-production. Order 2 has been vacated.

Today the plaintiff seeks orders for directions in respect of the matter for the filing of affidavits and also seeks a consolidation order with matter M156 of 2006. The second defendant, the Victorian District Registrar of the Federal Court of Australia, opposes the setting down of a timetable and has made application for dismissal of the plaintiff’s application under Rule 25.03.3. The grounds upon which that application are made are that there is nothing substantive left to challenge in relation to the orders made by Justice Tracey on 6 October 2006 and, further, that there are no intelligible grounds of error as set out in the plaintiff’s application.

The plaintiff’s counsel has stated that the plaintiff wishes to maintain his application in this Court because the orders made by Justice Tracey may result in contempt proceedings at some future time against him. Accordingly, the plaintiff may be subject to further and distinct proceedings in the Federal Court in respect of which he will able to exercise rights of appeal in that court available under the Federal Court Rules.

The application for an order to show cause does not identify intelligible grounds of jurisdictional error by Justice Tracey and, accordingly, it should be dismissed. The order I will make is: application for an order to show cause dated 23 October 2006 be dismissed.

MR NIALL: I apply for costs, if your Honour pleases.

HER HONOUR: Do you have anything to say about that, Mr Sharp?

MR SHARP: No, I do not.

HER HONOUR: The application is dismissed with costs.

AT 12.22 PM THE MATTER WAS CONCLUDED