Balhorn v Colby
[1982] FCA 226
•21 OCTOBER 1982
And: RON COLBY (Official Trustee)
BRIAN BURZACOTT (Senior Assistant Official Trustee) and JOHN WATSON (Assistant
Official Trustee)
V.G. No.39 of 1982
Bankruptcy
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION Fox, Northrop and Ellicott JJ.
Bankruptcy _ practice and procedure _ rescission of orders _ application for damages and compensation for alleged misfeasance.Bankruptcy Act 1966 ss.27, 28, 30, 37, 58, 116, 129, 152
Bankruptcy Amendment Act 1976 ss.5, 7
Federal Court of Australia Act 1976 s.25
Bankruptcy Rules rr.106, 134
Federal Court Rules O.1, r.11, O.41, r.5
MELBOURNE
#DATE 21:10:1982
THE COURT ORDERS THAT:
l. Appeal allowed.
2. In lieu of the orders made on 19 March 1982, the following orders are made:
A. The orders made on 2l October l98l be set aside.
B. The registrar in bankruptcy forthwith deliver up to the official trustee in bankruptcy the documents marked for identification as 'MFI2' referred to in the order of the registrar in bankruptcy on l June l98l.
C. That the application of Sydney Gordon Balhorn dated l9 June l98l, insofar as it sought an order restraining the registrar in bankruptcy from delivering the documents marked for identification as 'MFI2' referred to in the order of the registrar in bankruptcy on l June l98l, the two applications of Sydney Gordon Balhorn dated 30 December l98l and the application of Sydney Gordon Balhorn dated 25 February l982 each be dismissed.
D. That Sydney Gordon Balhorn pay the costs of the official trustee in bankruptcy of Sydney Gordon Balhorn's application of l9 June l98l including the costs reserved by Deane J. on 14 August l98l, otherwise no order as to costs incurred up to and including 2l October l98l.
E. That all parties pay their own costs of the proceedings giving rise to the hearing before the Federal Court of Australia on l and 5 March l982, l9 March l982 and all costs incidental to that hearing.
3. No order as to costs of the appeal.
This is an appeal from orders made by a Judge of this Court exercising jurisdiction in bankruptcy. The facts, and relevant statutory provisions, are set out in the judgement of Northrop and Ellicott JJ.The appellant conducted his appeal in person, as he had conducted proceedings below. The problems which have arisen are almost entirely a product of his inability, or unwillingness, to comply with fundamental requirements of judicial procedure. Before this Court he was given great latitude indeed in the presentation of his case, so that we might, as best we could, ascertain the nature and validity of his complaint against some or all of the orders which had been made adversely to his interests. The notice of appeal comprised a lengthy tirade, and should not have been allowed to remain on the file. However, no application was made in respect of it, and we considered it for the guidance it might offer in indicating the nature of the appellant's concern.
The essence of the matter is that the appellant wishes to proceed against certain persons concerned with the administration of his estate in bankruptcy on the basis of their "misfeasance, negligence, wilful default and criminal conspiracy to defraud ...". He sought relief in the bankruptcy proceedings by way of an award of the damages in the sum of $2,000,000 and, as incidental thereto, he sought an order that documents of title to land formerly owned by him remain with the registrar, and not be handed over to the official trustee, until his action be heard and determined. He was not present when these matters came on for hearing before a Judge of the Court, and the Judge, satisfied that he had received due notice, proceeded in his absence, and refused the relief he sought. The Judge gave him an opportunity to come in, by staying the operation of the orders he made (which included an order for costs). The exact form of the order he made in this regard was possibly the source of the uncertainty which later occurred. The appellant made application in due time, and in accordance with the terms of the orders sought to rescind them. This application, and others of relatively minor significance, came on for hearing before another Judge. It is apparent from the record that the latter took every reasonable step to ensure that the appellant received a full and fair hearing, but the position was plainly made very difficult by the appellant's unfamiliarity with legal process, and the repetition of what must have sounded as very extravagant allegations. The learned Judge made two principal orders: he dismissed the application for recission, and confirmed the orders sought to be rescinded. At this stage, as it appears to me, the matter proceeded along incorrect lines. The Judge should not have made an order "confirming" the orders already made, although in the ordinary course little or no harm would have flowed from his doing so. There was a case for rescinding the earlier order on the basis that that the appellant could have been under a genuine misunderstanding concerning the first hearing. Apart from that, there was scope for doubt whether, before the Judge, the appellant was presenting his case on the major issue. I am prepared to accept what the appellant now says, supported as it is by some passages in the transcript, namely that he was far from being in a position to proceed, and sought at the time to make that clear.
There is also scope for concluding that the appellant is a humbug, and for acceding to the submission for the respondents that serious allegations should not be allowed to continue undetermined.
On the whole, I prefer the approach which does not leave irretrievably determined against him the case which he believes he has and which he feels strongly he has never had a fair chance to litigate. I agree with the orders proposed.
Sydney Gordon Balhorn, the appellant, appeals from some of the orders contained in a judgment of the Federal Court of Australia constituted by single Judge and given on l9 March l982. The Federal Court was exercising jurisdiction in bankruptcy, see the Bankruptcy Act l966 (as amended), s.27 and s.28. Special reference is made to s.27(1A) of the Act and s.5 and s.7 Bankruptcy Amendment Act l976 which came into operation on l February l977. As will appear later, the proceedings which gave rise to this appeal are not proceedings incidental to proceedings instituted in the Federal Court of Bankruptcy. The proceedings were brought in the original jurisdiction of the Federal Court of Australia but it is important to note that except as to Order 4l of the Federal Court Rules, those rules did not apply to the proceedings before the Federal Court constituted by a single Judge, Order l, rule ll, Federal Court Rules. The practice and procedure to be applied in relation to proceedings in the original jurisdiction of the Federal Court of Australia in bankruptcy matters is to be in accordance with the Bankruptcy Rules as in force from time to time and as made under s.3l5 of the Bankruptcy Act.
On 5 December l973, a sequestration order was made by the Federal Court of Bankruptcy against the estate of the appellant under s.58 of the Bankruptcy Act as then in operation. Upon the making of the sequestration order the property of the appellant vested forthwith in the official receiver in bankruptcy. At that time the appellant was the owner of land at Port Albert in the State of Victoria on which he conducted a poultry farming business. Part of that land was held under the general law and is described in Memorial l92, Book 690, Memorial l93, Book 690 and Memorial 9l6, Book 698. This general law land is hereinafter called 'the land' and it vested in the official receiver on 5 December l973.
The official receiver has not been able to obtain from the appellant the documents comprising the chain of title to the land, 'the title deeds'. On 5 December l978 the appellant was discharged from bankruptcy by reason of s.l49 of the Bankruptcy Act as then in operation. On l June l98l, in proceedings which need not be described further, the appellant produced the title deeds to the deputy registrar in bankruptcy and since then they have been in the custody of the registrar in bankruptcy.
On l9 June l98l the appellant filed in the Federal Court of Australia an application seeking orders which can be summarised as follows:
l. An order restraining the registrar in bankruptcy from delivering the title deeds to the official trustee (the official trustee in bankruptcy having become the trustee of the appellant's estate following the commencement of Act No. l2 of l980 on l February l98l); and
2. An order for relief and compensation from the respondents (being officers of the official trustee in bankruptcy) in the nominal sum of two million dollars over their misfeasance, negligence, wilful default and criminal conspiracy to defraud the plaintiff with P. Vodicka, P. Ryan, Solicitors, and A.E.B. Balhorn, occupier of the appellant's stolen home and farming business at Port Albert.
In addition, the applicant sought that order l be made pending the hearing and determination of the claim being order 2.
On l3 April l98l the official trustee in bankruptcy, 'the official trustee', filed an application in the Federal Court of Australia naming the registrar in bankruptcy, not the appellant, as respondent, seeking an order that the registrar in bankruptcy deliver the title deeds to the official trustee.
On l2 October l98l these two applications came on for hearing before the Federal Court of Australia constituted by Lockhart J. There was no appearance by the appellant, but the Court, being satisfied that the appellant knew that the two applications were to be heard by the Court on that day, proceeded to hear the applications in the absence of the appellant. The Court reserved its decision and on 2l October l98l it made the following orders and published its reasons for judgment for so doing:
'l. That Mr. Balhorn's application of l9 June l98l be dismissed;
2. That the Registrar in Bankruptcy deliver up to the Official Trustee in Bankruptcy the documents marked f identification as 'MFI 2' referred to in the order of the Deputy Registrar in Bankruptcy made on l June l98l;
3. That Mr. Balhorn pay the costs of the Official Trustee of Mr. Balhorn's application of l9 June l98l including the costs reserved by McGregor J. on l4 July l98l and the costs reserved by Deane J. on l4 August l98l; otherwise no order as to costs.
4. That the Official Trustee serve Mr. Balhorn personally with a sealed copy of these orders and a copy of my reasons for judgment; and that an affidavit of service thereof be filed;
5. That orders l, 2 and 3 shall not operate until the expiration of 2l days from the date of filing the said affidavit of service; and if, in the meantime Mr. Balhorn files an application in the Victoria District Registry of this Court to rescind or set aside orders l, 2 and 3 or any of them, the order which he seeks to set aside shall not operate until further order of the Court;
6. Liberty to apply is reserved to all parties on two days' notice.'
Order 5 operates as a stay on the operation of orders l, 2 and 3. The reference to an application to rescind or set aside those orders must refer to an application under s.37(l) of the Bankruptcy Act, the relevant part of which is as follows:
'37(l) Subject to sub-sections (2) and (3) the Court may rescind, vary or discharge an order made by it under this Act or suspend the operation of such an order.'
On the facts of this appeal, sub-sections (2) and (3) are not relevant.
Within the time specified in order 5, the appellant, by application dated 30 December l98l made application to the Court for an order rescinding orders l, 2 and 3. By a separate application dated 30 December l98l the appellant made application for leave to amend his application of l9 June l98l and in substance sought that the hearing of the application by the official trustee be stayed pending the hearing of his other claims being the claims for damages and a claim for an order requiring the official trustee to return other property previously owned by the appellant. In addition, the appellant continued his claim being claim l set out above. Later in these reasons comment will be made concerning the nature of the documents filed by the applicant.
On 8 February l982 the Court gave directions in relation to these applications including a direction that:
'The application of Mr. Balhorn dated 30th December l98l be specially fixed for hearing in Melbourne on Monday, lst March, l982 at l0.l5 a.m.'
Other directions were given but they need not be set out. It is to be noted that the direction set out does not specify which of the applications of the appellant dated 30 December l98l was fixed for hearing on l March l982, but logically it must have included the application to set aside the orders l, 2 and 3 made on 2l October l98l.
Under Bankruptcy Rule l06, by notice of intention to oppose application, the official trustee gave notice that on the hearing of the application by the appellant to rescind orders l, 2 and 3 it intended to oppose the application on the grounds that the appellant had been notified of the date of hearing of the application, namely l2 October l98l, that he had not attended, and that he had given no satisfactory explanation of his failure to attend at the hearing of the applications on l2 October l98l and that the material filed by the appellant in support of his applications of l9 June l98l was scandalous, irrelevant and objectionable and failed to disclose any legal basis for the orders sought and that the delay in the delivering up to the official receiver of the title deeds was obstructing the due administration of the appellant's estate and was prejudicing the interests of the creditors of the appellant's estate.
On l March various matters involving the appellant came on for hearing before the Federal Court of Australia constituted by a single Judge. On the material before it, the Court refused an application by the appellant that the hearing of the matters be adjourned. The matters were heard on l March l982 and 5 March l982 when the Court reserved its decision. Judgment was given on l9 March l982. In its reasons for judgment the Court identified the matters before it as follows:
l. The appellant's application dated l9 June l98l.
2. The appellant's application dated 30 December l98l being the application seeking to amend the application dated l9 June l98l.
3. The appellant's application to rescind Orders l, 2 and 3 made on 2l October l98l.
4. The application (sic) of the official trustee dated ll February l982 opposing the application referred to in 3.
5. The appellant's application filed on 25 February l982 seeking an order that a Full Court of the Federal Court of Australia hear the matters.
In addition, the Court listed the evidentiary material which had been filed in connection with the applications and referred to the evidence given orally before the Court. It is to be noted that no reference was made to the application by the official trustee dated l3 July l98l seeking an order that the registrar in bankruptcy deliver the title deeds to the official trustee.
The Court made the following orders:
'l. The applications presently before me filed on 30th December, l98l which include the 'NOTICE OF AMENDMENT' are dismissed.
2. Orders l and 2 of the Court on 2lst October, l98l are confirmed.
3. The Orders as to costs made by Lockhart J. on 2lst October, l98l are varied so that Orders as to costs will be:
In respect of the proceedings heard on l2th October, l98l, each side is to pay its own costs and costs reserved of l4th July, l98l, l4th August, l98l and on 8th February, l982.
4. In respect of the hearing before me on lst and 5th March, l982, each side is to pay its costs of and incidental to the hearing on lst March, l98l; and Mr. Balhorn is to pay the Trustee's costs of and incidental to the hearing of 5th March, l982.
5. The application dated 25th February, l982 to have the Full Court of the Federal Court adjudicate on this matter is dismissed.
6. Each side is to pay its own costs of the application dated 25th February, l982 referred to in paragraph 5.
7. Any costs incurred by the Official Trustee in respect of the applications of l9th June, l98l, l3th July, l98l, 7th August, l98l, 30th December, l98l, 25th February, l982 and 5th March, l982 be taxed and such of them as are not payable by Mr. Balhorn be payable out of the estate.'
In addition, the Court noted that no argument had been presented on behalf of the official trustee in respect of its notice of intention to oppose the applications with respect to the nature of the appellant's material.
The appellant appeals from orders l, 2, 4 (second section), 5 and 7 of the judgment of the Federal Court made on l9 March l982.
At this stage it is necessary to make some comments concerning the material relied upon by the appellant. The appellant has appeared in person. He has prepared his own material. The documents filed by the appellant are rambling, lengthy and almost unintelligible. There is a strong prima facie case that most, if not all, of the contents of the documents ought to have been struck out as being scandalous, vexatious and oppressive, see Federal Court Rules, Order 4l, rule 5. See also Bankruptcy Rule 134. At all material times the Court has granted the appellant a remarkable indulgence in allowing him to rely upon the material he had filed and in making submissions to the Court. The notice to appeal itself is almost meaningless, but the Court has extended much latitude and has treated it as raising all possible grounds of appeal. There has been no application by the respondents to have the contents or part of the contents of the notice of appeal struck out as being scandalous, vexatious and oppressive. In addition, on the appeal the Court received assistance from counsel who, at the request of the Court, appeared as amicus curiae.
In the light of these comments the Court has to consider the appeal by the appellant.
The application to have the matters heard by a Full Court was, quite correctly, dismissed, see sections l9 and 20 Federal Court of Australia Act. No other Act enables the order to be made. Section 25(6) of the Federal Court of Australia Act has no application, its operation being limited to the statement of a case or reservation of a question.
Difficulties arise with regard to the other orders made by the Court on 19 March l982. Logically, the appellant's application dated 30 December l98l for an order rescinding orders l, 2 and 3 of the orders made on 2l October l98l should have been heard and determined before the other applications were decided. That application was made under s.37 Bankruptcy Act, but that section apparently was not referred to by the parties appearing before the Court nor was it referred to in the reasons for judgment given on 19 March 1982. That application was dismissed, (see order l of l9 March l982). In those circumstances in the light of order 5 of 2l October l98l the appropriate order would have been to order that orders l, 2 and 3 of that date should operate forthwith. In this appeal the first task of this Court, as we see it, notwithstanding the course adopted below, is to consider the appellant's application for rescission of orders l, 2 and 3.
Section 37(l) of the Bankruptcy Act has been set out. It confers a general and unfettered discretion upon the Federal Court. It is a discretion that must be exercised judicially but should not be construed narrowly. The orders made were not judgments entered in default of procedural requirements so the well-known principles to be applied when considering whether judgments entered by default should be set aside do not apply. It is important, however, to note those principles and this can be done by referring to what was said by McInerney J. in Gamble v. Killingsworth & McLean Publishing Co. Pty. Ltd. (l970) V.R. l6l at l68-9:
'The judgment which was entered on l7 January l968 was, in my view, judgment by default within the meaning of O.27, r.l5. Certainly the order of Smith, J., made on 27 November l967 did not, of itself, amount to a judgment: see Re Gurney, (l896) 2 Ch. 863, at pp.864, 865, per Kekewich, J. See also Nixon v. W. Phelan & Sons Pty. Ltd., (l960) V.R. 94, at p.96, per Sholl, J.
If the judgment by default was regularly entered, that is, if, in the events which had happened the plaintiff, was, according to the Rules of the Court, entitled to enter judgment by default, the Court, in considering whether that judgment should on application made under O.27, r.l5, be set aside, is bound to consider whether any useful purpose is served by acceding to the application. Plainly no useful purpose is served if it appears that if the judgment were set aside and the action allowed to go to trial, there would be no possible defence : see Bayview Quarries Pty. Ltd. v. Castley Development Pty. Ltd., (l963) V.R. 445, at p.446, per Sholl, J. If, therefore, application is made to set aside a judgment which has been regularly obtained, it is an 'almost inflexible rule' that the Court will not accede to the application unless the applicant shows a defence on the merits : see Farden v. Richter (l889), 23 Q.B.D. 124, and Collins Book Depot Pty. Ltd. v. Bretherton, (l938) V.L.R. 40; (l938) A.L.R. 87.
If a judgment in default is regularly entered, the Court, when setting aside judgment and giving leave to the defendant to come in and defend, can impose terms upon the defendant see Cockle v. Joyce (l877), 7 Ch.D. 56; Wright v. Mills (l889), 60 L.T. 887; Re Hartley, (l89l) 2 Ch. l2l; 64 L.T. 786.
But if the judgment attacked is shown to have been irregularly obtained, as, for instance, if it is shown to have been entered prematurely or for too much, the defendant is entitled to have it set aside ex debito justitiae and without terms _ except as part of the condition of an order as to costs : see Anlaby v. Praetorius (l888), 20 Q.B.D. 764; Daly v. Silley, (l960) V.R. 353."
In the present case, the orders sought to be rescinded or set aside were made in the absence of the appellant. The principles to be applied to cases of this kind have been stated. Reference is made to Rosing v. Ben Shemesh (l960) V.R. l73 in which a Full Court of the Supreme Court of Victoria considered a County Court rule in a form which provided that a Judge of the County Court in a case where judgment had been given at the trial of an action in the absence of a defendant had power to grant a new trial upon such terms as he thought fit 'on sufficient cause shown to him for that purpose'. The words quoted do not appear in s.37 of the Bankruptcy Act. In relation to the discretion conferred on the County Court Judge, the Full Court (Herring C.J., O'Bryan and Dean JJ.) said at pp.l76-l77:
'In Grimshaw v. Dunbar, (l953) l Q.B. 408, the plaintiff obtained an order for possession in the county court in the absence of the defendant who had been told by a court official that it would not be necessary for him to attend at the hearing, seeing he had paid all arrears of rent into court. Nearly three months later, the defendant applied to have the order set aside and a new trial ordered. This application was refused. The defendant appealed to the Court of Appeal, and that Court allowed the appeal. The views expressed by Jenkins, L.J., are conveniently summarized in the headnote as follows: 'When determining whether to exercise his jurisdiction under Order 37, r.2, of the County Court Rules l936, to order a new trial, the county court judge should be influenced by the following considerations : First, the reason why the party failed to appear when the case was heard. Secondly, whether there has been any undue delay by the absent party in launching his proceedings for a new trial; delay in itself would not be important, but delay prejudicing the other party, or delay enabling rights of third parties to intervene, would be material. Thirdly, whether the other party would be prejudiced by a new trial in any respect which could not be adequately compensated by a suitable award of costs. A new trial should seldom, if ever, be refused on the ground that the applicant's case was a weak one.'
What is of importance from the point of view of the present case is that the Court of Appeal in Grimshaw v. Dunbar were concerned with a case where the learned county court judge had given no reason for refusing the application for a new trial, and it appeared on examination of the facts that what had actuated the judge must have been that he thought that the defendant was unlikely to succeed if there was a new trial. See, at p.4l9, per Roxburgh, J. All three judges of the Court of Appeal decided as a matter of law that the judge was not entitled to reject an application for re-instalment on this ground."
Although not applicable to the present case, by way of comparison reference may be made to the Federal Court Rule, Order 35, r.7(2).
On the material before it on l and 5 March l982, the Court found that the appellant knew that the relevant applications were coming on for hearing before the Court on l2 October l98l, that that date was suitable to him, but that from what he had been told by the registrar in bankruptcy, he believed that the date would be confirmed in writing. That confirmation in writing was not sent to the appellant. On this aspect of the matters, the learned trial Judge said:
'I accept what is common ground that the parties knew the date was fixed as l2 October l98l. Any ordinary person, not having received a letter confirming it, would, I consider, have made some enquiry; but Mr. Balhorn did not. But I have preferred to consider the matter on the wider issues, i.e. as to whether submissions which are made and evidence by Mr. Balhorn should induce an order different from that of the learned trial Judge delivered on 2l October l98l; or entitle Mr. Balhorn to have rescinded the Orders l, 2 and 3.'
The trial Judge did not have the benefit of submissions concerning s.37 of the Bankruptcy Act. In all the circumstances he applied the wrong principles to this part of the matter before him. This is reflected in the orders made. Once the application for an order rescinding orders l, 2 and 3 made on 2l October l98l was dismissed, apart from determining the date of their operation, there was nothing further for the Court to do with respect to those orders. It was not exercising appellate jurisdiction in regard to those orders.
On the findings of fact made by the trial Judge we are of opinion that the orders made on 2l October l98l should be set aside. In the very special circumstances of the case there was an explanation, implausible as it was, for the non-attendance by the appellant at the hearing of the applications on l2 October l98l. Applying the principles set out in Rosing v. Ben Shemesh, orders l, 2 and 3 should be set aside. In so doing we note particularly that a new trial should seldom, if ever, be refused on the ground that the applicant's case was a weak one. On the question of prejudice, it is to be noted that the automatic stay provisions contained in order 5 prevented undue delay by the appellant causing prejudice to the respondents to the appeal.
We turn now to the substantive applications. Those matters were canvassed at length before the trial Judge and before this Court. In addition, this Court permitted the appellant to refer to other material not before the trial Judge.
The first matter for consideration is the application by the official trustee of ll July l98l seeking an order that the registrar in bankruptcy deliver the title deeds to the official trustee. The appellant was not made a party to that application, although clearly interested in it. His application of l9 June l98l, either originally or in its amended form, seeks an order preventing the registrar in bankruptcy delivering the title deeds to the official trustee at least until the hearing of the determination of the other orders sought by the appellant. In his reasons for judgment the trial Judge said:
'Mr. Balhorn stated in his submissions to me that he does not contest the right of the Official Receiver to hold the documents, nor, as I understand him, would he dispute the right of the Official Trustee in Bankruptcy to take over the documents except that he had made an allegation of fraud which he contends should be sufficient to require that the documents are not handed over until that matter is resolved.'
Consideration of sections 30, 58, 116, 129 and 152 of the Bankruptcy Act makes it clear that the Court has the )power to make the orders sought by the official trustee. On the whole of the material before the Court, no reason appears why that order should not be made nor is there any reason why the order should be stayed pending the hearing and determination of the other matters raised by the appellant. No application is made to annul the bankruptcy and the rights of the official trustee to deal with the property are preserved. Mr. Balhorn's application for compensation is not dependent, in any way, on the exercise of those rights being stayed pending that application being determined. Accordingly, the Court will order that the registrar in bankruptcy forthwith deliver up the title deeds to the official trustee.
There remain the other applications by the appellant relating to his claim for damages and compensation and for the return of other property. As has been said already, apart from the application of l9 June l98l, the documents filed by the applicant in relation to his claim for compensation are almost unintelligible and, prima facie, are objectionable. Much of the present difficulties have probably arisen by allowing that material to remain before the Court in its present form and to be relied upon, and in the failure to ensure that the material relied upon by the appellant conformed with Order 4l, rule 5 of the Federal Court Rules. See also Rule 134 of the Bankruptcy Rules. In all the circumstances, we think the best course to adopt is to rescind the order made by the learned trial Judge dismissing in toto the applicant's application of l9 June l98l and in lieu thereof order that the applicant's said application insofar as it seeks an order restraining the delivery of title deeds be dismissed. This will leave the applicant free to pursue the claim for compensation in that application if he wishes. However, we consider that his amended application of 30 December l98l is objectionable in form and should be dismissed without prejudice to the applicant's right to seek an amendment, on any proper ground, to his application of l9 June l98l. All material filed by him to date in support of his application of l9 June l98l should be struck out as it also offends the provisions of Order 4l, rule 5. Any further application or material supporting any application filed by him should be in proper form.
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