Director of Public Prosecutions v Gadaloff

[1999] QSC 151

SUPREME COURT OF QUEENSLAND

CITATION:	DPP & Anor v Gadaloff & Anor [1999] QSC 151
PARTIES:	DIRECTOR OF PUBLIC PROSECUTIONS (First applicant) AND BRISBANE CITY COUNCIL (Second Applicant) v GARTH MICHAEL GADALOFF (First Respondent) AND NARELLE ANN GADALOFF (Second Respondent)
FILE NO:	No. 10425 of 1999 No. 7649 of 1997
DIVISION:	Trial Division
DELIVERED ON:	26 May 2000
DELIVERED AT:	Brisbane
HEARING DATE:	10 May 2000
JUDGE:	Chesterman J
ORDER:	That the moneys invested in the Commonwealth Bank account pursuant to the orders of Mr Justice Chesterman of 19 January and 4 February 2000, together with interest, be forfeited to the State of Queensland and that the money so forfeited be transferred to the Brisbane City Council.
That the property identified in the Notice of Motion, with the exception of the house and land at 29 Denver Road Carseldine, be forfeited to the State of Queensland and that the property so forfeited be transferred to the Brisbane City Council.
That upon payment of the sum of $25,000.00 by the Brisbane City Council to Mrs Gadaloff, the house property be forfeited to the State of Queensland and be transferred to the Brisbane City Council.
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – FORFEITURE OR CONFISCATION – Application for confiscation of tainted property – whether respondent can withdraw guilty plea at confiscation proceedings – whether discretion should be exercised to preserve part of property from forfeiture.
Saffron v Federal Commission of Taxation 102 ALR 19
Crimes (Confiscation) Act 1989 ss 92, 17, 24, 28, 6, 4, 23, 13 Criminal Code s 651
COUNSEL:	P Smith for the first applicant C May, solicitor for the second applicant The first respondent appeared on his own behalf The second respondent appeared on her own behalf
SOLICITORS:	Minter Ellison appeared for the first applicant Director of Public Prosecutions appeared for the second applicant The first respondent appeared on his own behalf The second respondent appeared on her own behalf

1. CHESTERMAN J: On 26 October 1998 the respondent Garth Gadaloff pleaded guilty to a charge that between 1 January 1992 and 23 August 1997 he dishonestly acquired for his own use a sum of money the property of the Brisbane City Council (“the Council”) being at the relevant times an employee of the Council. On the same day both respondents pleaded guilty to a charge that between 1 January 1992 and 23 August 1997 they engaged in money laundering. The respondents had also been charged summarily with offences against s 92 of the Crimes (Confiscation) Act 1989 (“the Act”) that they possessed property reasonably suspected of being tainted. The two summary charges against each respondent were transmitted to the Supreme Court pursuant to s 651 of the Criminal Code and on the day mentioned the respondents pleaded guilty to the summary charges. The respondent Garth Gadaloff was sentenced to a term of eight years imprisonment for dishonestly acquiring the Council’s property, and four years imprisonment, to be served concurrently, on the charge of money laundering. As well he was sentenced to one year’s imprisonment on the summary charges, to be served concurrently. The respondent Narelle Gadaloff was sentenced to two years imprisonment for money laundering and one year for possessing tainted property. Her sentences were also to be served concurrently.

   Mr Gadaloff applied for leave to appeal against the sentences imposed on him but his application was refused on 23 November 1998. He then applied for an extension of time to appeal against his convictions notwithstanding that he had pleaded guilty. On 24 September 1999 the Court of Appeal refused to extend time giving as a primary reason that there was no sufficient basis for allowing Mr Gadaloff to withdraw his pleas of guilty.

2. The Director of Public Prosecutions (“DPP”) has applied for orders pursuant to ss 17 and 24 of the Act that specified items of property be forfeited to the State of Queensland on the ground that they are tainted property. It also seeks a declaration pursuant to s 28(7) of the Act that the Council is the owner of the property, and a further order that the property be transferred to the Council. The Council has made its own application seeking the same relief.

   The items of property listed in the DPP’s application are identical with the property which formed the subject matter of the summary charges against the respondents. Attached to these reasons as Appendix 1 is a copy of the application made by the DPP. Attached as appendices 2 and 3 respectively are copies of the Bench Charge Sheets alleging offences by Narelle Ann Gadaloff against s 92 of the Act. The charges against Mr Gadaloff were identical.

3. The respondents were legally represented when they appeared in the Supreme Court in October 1998 and pleaded guilty to all charges. Mr Gadaloff's solicitor tendered a document containing material advanced in mitigation of sentence. The document commenced with the recital that Mr Gadaloff “pleads guilty” to the charges which were set out in detail. It continued:

   “Gadaloff generally accepts the facts asserted by the Crown. Accordingly, it is accepted that Gadaloff stole a substantial sum of money from the Brisbane City Council over a period of three to four years. He took criminal advantage of an obviously flawed system of accounting within the Council . . . the disposal of the funds was not sophisticated. The Gadaloff’s purchased real estate and motor vehicles and registered them in their own names. The cash was kept in deposit boxes and bank accounts also registered in their names. The total sum taken is not clearly ascertainable. It seems however that most, if not all, of that sum will be recovered, perhaps fortuitously, due to the preservation of it by Gadaloff. On the Crown material, assets valued as at August 1997 in the vicinity of $1,871,838.00 will be recovered from the Gadaloffs . . . despite the incapacity of any one to actually determine how much was stolen, it is clear that substantial, if not complete, restitution will ultimately be made.”

4. The submission was made with the view to minimising the extent of the Council’s loss. The argument put forward on Mr Gadaloff’s behalf was that the Council would recover all, or very nearly all, of the money that Gadaloff had stolen so that the consequences of his criminality were diminished.

   It was very earnestly argued that Mrs Gadaloff should not be sentenced to a term of actual imprisonment but that a wholly suspended sentence was appropriate. It appears that in support of the endeavour to keep Mrs Gadaloff out of gaol the Council was approached with the suggestion that if it supported Mrs Gadaloff’s position both respondents would cooperate to achieve a speedy transfer of the tainted property to the Council. On 2 October 1998 a solicitor employed by the Council wrote to the DPP:

   “I have been asked to confirm to you the Council’s position in relation to the disposal of these matters . . . I have been instructed that should the abovenamed enter guilty pleas . . . and promptly proceed towards their sentences, then the Council would not request that you seek a custodial sentence in respect of Mrs N A Gadaloff.

   I am further instructed that should the above pre-conditions be met it is Council’s intention to offer the settlement of its claim . . . in relation to all the property . . . on the basis . . . that the abovenamed admit the claim and surrender any interest in all property . . . save the matrimonial home . . .”.

   On the same day the prosecutor faxed a letter to Mr Gadaloff’s solicitor which enclosed the Council’s letter but expressly indicated that the DPP believed that the circumstances of Mrs Gadaloff’s offence necessitated a custodial sentence.

5. Section 17 of the Act provides that if a person is convicted of a serious offence an appropriate officer may apply to the Supreme Court for a forfeiture order against particular property. The DPP is an appropriate officer. See s 6. Both respondents were convicted of serious offences. See s 4.

   By s 23, if a person is convicted of a serious offence and application is made under s 17 for a forfeiture order against particular property, and the court is satisfied that the property is tainted, the court may order that it be forfeited to the State. By s 28(2) and (7) of the Act a person who claims an interest in the property, forfeiture of which is sought, may apply to the court for an order declaring the nature and extent of the person’s interest in the property and a further order directing the State to transfer the property to the person. It is pursuant to this provision that the Council seeks to obtain the itemised property.

   By s 13 “tainted property” relevantly means properly derived from the commission of a serious offence, or property reasonably suspected of being tainted which is in the possession of the respondents.

6. The facts concerning the respondents criminal conduct were succinctly stated by McPherson JA when the Court of Appeal refused Mr Gadaloff’s application for an extension of time. His honour said:

   “The applicant was first employed by the Council in about 1993. In 1994, it was noticed that revenue from parking meters was, without apparent explanation, undergoing fluctuations and declining in amount. Income from that source was received in the form of cash, which was collected from the meters and transported under conditions of strict security for counting and banking to a central Council office in George Street. There the applicant as the head bulk cashier had custody of the keys which permitted access by members of staff engaged in counting the money collected. It is said to have been received in daily amounts as large as $750,000, although this figure is disputed by the applicant, who claims it was much less than that. Other possibilities having been excluded, Council investigators began in 1996 to focus on the fate of the money once it arrived at the central office. By 1997 they were secretly weighing and counting the money on and after its arrival, with the result that significant discrepancies were observed in the amounts received compared with amounts that were later counted. Whatever the precise amount received, it appeared to be less when later counted. A surveillance camera was installed, by means of which the applicant was on one or more occasions observed at an early hour of the day entering and then leaving the counting room with bags of money.

   Attention then turned to the applicant’s life style, income and assets, which were found to exceed by a substantial margin his Council salary of some $40,000 pa, which was in fact being wholly applied in paying the loan on his house. Mrs Narelle Gadaloff was in paid employment at the time, but her own income was not such as to account for their standard of living or their wealth. Further investigation disclosed the existence of land and properties purchased in the name of the fellow employee who has also been charged with offences arising out of the applicant’s activities. On 22 August 1997 a search warrant was executed on the applicant’s Brisbane home. While that search was being carried out, the applicant arrived home. A search of his car at the time revealed some $7,5000 in bank notes in a Council envelope in his car. The applicant declined to answer questions on the subject. Three days later a search was conducted of safety deposit boxes held in the maiden name of the applicant’s wife. They were found to contain a total of $787,257 in cash, which was arranged in bundles of $10,000 or $20,000 in Brisbane City Council envelopes. At the time that search was being conducted, Mrs Gadaloff arrived with a view to gaining access to the boxes. Ultimately an assessment was made of all the money and properties traceable to the applicant, which placed its total value at some $1.9 million. This included an amount of some $200,000 or more deposited in a Swiss bank account, which the applicant later arranged to have returned to Australia”.

7. That account is taken from the recital of facts provided by the prosecutor to the court on 26 October 1998 when the respondents were sentenced. They were the facts which the respondents’ solicitor said that Mr Gadaloff “generally accepts”.

8. Notwithstanding that what was said earlier on their behalf effectively admitted that the property the subject of the application had been acquired from the proceeds of Mr Gadaloff’s misappropriation of Council money and that they intimated that they would cooperate in making restitution to the Council by the transfer of the property the respondents resist the orders sought. Mr Gadaloff puts his opposition on three bases:

   (a)          He disputes that he is guilty of stealing the Council’s money and seeks to explain his pleas of guilty on the basis that his former solicitor coerced him in to confessing to the crimes, abetted by the Council which promised that his wife would not go to gaol and that they would be allowed to keep their home.

   (b)          The amounts of cash in his possession at the time of his arrest was not the proceeds of theft but his own moneys given to him by an aunt who emerged from obscurity and who disappeared with equal mystery.

   (c)          That the Council’s accounting systems and record are so inaccurate and its staff so corrupt that it is impossible to be satisfied that it has lost the amounts it alleges, which range between $2.8 million and $4.7 million.

   I am satisfied that there is no substance in any of the grounds.

9. It is not open in these proceedings for Mr Gadaloff to contend that he is not guilty of the offences to which he confessed on 26 October 1998. Those convictions are a matter of record. An attempt to withdraw the pleas of guilty was rejected by the Court of Appeal. See Saffron v Federal Commission of Taxation 102 ALR 19. I must proceed on the basis that the respondents committed the acts which constitute the offences of which they have been convicted.

10. Mr Gadaloff’s assertions that he acquired his substantial assets from his own moneys and that the large amounts of cash found in his and his wife’s possession at the time of his arrest was his own are not worthy of any credence whatever. The account is that Mr Gadaloff is a descendant of a well established and very successful mercantile family which had extensive gold mining, timber and shipping interests in tsarist Russia. The family reached its apogee of wealth and influence shortly before the Bolshevik Revolution as a result of which its members and fortunes were both alike dissipated. Despite the devastation caused by two world wars and one civil war, the seizure and destruction of private property by successive communist governments, and the disintegration of the Russian economy since 1989, Mr Gadaloff claims that some members of the family survived and managed to preserve a substantial part of the fortune. Unselfishly (and uncharacteristically of human nature) these survivors did not desire to keep the money for themselves but wished to give substantial amounts of it to distant relations in Australia whom they did not know. Mr Gadaloff’s brother travelled twice to Russia for the purpose of being the recipient of the antipodean share of the family bounty. His endeavours were frustrated because he was detained and interrogated by members of the Soviet Secret Police who suspected him of something or other. Because he had attracted the attention of the authorities it was thought that he was not suitable as the vehicle for the transfer of the wealth to Australia. It was thought that he would be searched again and the money seized, or that he might betray those who gave him the money.

11. When in Moscow Mr Gadaloff’s brother had met their aunt Tamara, a prominent engineer who enjoyed the trust of the Russian government. She was allowed to travel more or less freely outside Russia. After his brother’s failure Mr Gadaloff started receiving “information and phone calls” from his aunt who expressed a desire to meet him so that he could “accept from her a gift”. Mr and Mrs Gadaloff travelled to Germany on their honeymoon in November 1991. Mrs Gadaloff was left behind in West Germany while Mr Gadaloff travelled to Berlin where he met aunt Tamara and received from her the sum of US $1.3 million in cash. Mr Gadaloff took the money, rejoined his wife and returned ahead of schedule to Australia. What aunt Tamara intended by the transfer of the money is not clear. She did not speak English and Mr Gadaloff does not speak Russian. They conversed in German though it seems his grasp of that language is very limited. His best understanding of things was that his aunt would endeavour to travel to Australia with her daughter at some time in the future. In the meantime Mr Gadaloff was to be the “sole custodian” of the money. If anything should happen to his aunt the money was to be his absolutely. Unhappily, though fortunately for Mr. Gadaloff, aunt Tamara did die only a few months after their meeting. Although her death was attributed to cancer Mr Gadaloff suspects murder. His aunt’s daughter is alive but he does not know where to contact her.

12. The most surprising thing about this tale is that Mr Gadaloff told it without obvious embarrassment at its mendacity. It is a tale full of romance but devoid of truth. It fails a number of reality checks.

13. The tale is impossible to reconcile with Mr Gadaloff’s plea of guilty to stealing money from the Council and his “general acceptance” of the prosecutor’s assessment that he had stolen about $2.5 million. His indication of cooperation in the transfer of cash and property to the Council is equally inconsistent with the money being his. The explanation that the money was honestly come by was not advanced until after he had been sentenced to a longer period of imprisonment than he anticipated and his appeal against that sentence had been dismissed.

    The money was to benefit members of the Gadaloff family who had settled in Australia. Initially Mr Gadaloff’s brother was to bring it to this country but when he proved unsuitable as the courier Mr Gadaloff was chosen. He had no reason to think that he was the only Gadaloff intended to enjoy the money. He did not give any of it to any family member, not even his parents or brother.

His brother should have been able to corroborate some material aspects of
Mr Gadaloff’s account but was not called to do so.

The substantial sum of Australian bank notes found in the safety deposit box was contained in Council envelopes. On the day of his arrest Mr Gadaloff's briefcase contained $7,500 in notes, in a Council envelope. He had just come from work.

Money which is honestly acquired is put to work. It is invested, or at the least, put in a bank account where it will earn interest. Mr Gadaloff kept his in a suitcase and then a safety deposit box. He and his wife acquired two parcels of land bought with the assistance of a friend and in the friend’s name. Such furtiveness does not usually indicate honesty.

There were obvious risks involved in carrying the money from Berlin to Brisbane. Apart from the risk of loss or theft there was the hazard that it might be discovered during the customary check on arrival. When given the money Mr Gadaloff was only a few hours’ train journey from Switzerland where large sums of money can be easily and confidentially accommodated. He was aware of such facilities because he later transferred over $200,000 from Australia to a Swiss bank account. He did not take that option.

There is no obvious reason why Mrs Gadaloff should not have accompanied her husband to Berlin. West Berlin has been perfectly safe for travellers for over thirty years. The respondents travelled to Germany two years after the demolition of the Berlin wall and the withdrawal from East Germany of Russian troops and influence. Mrs Gadaloff has never corroborated her husband’s account of how he came by the money. Indeed her account of what she had been told appears quite different. See T68.30-40.

He has no record of converting any of the US dollars into local currency.

1. I have no doubt that the source of the respondents’ wealth was not an elusive but eleemosynary aunt, but the daily harvest from parking meters which Mr Gadaloff regarded as his very own cornucopia.

2. The respondents’ third ground proceeds on a misunderstanding of the evidence. Mr Gadaloff is critical of the Council’s estimate of the parking meter revenue it has lost, and even more critical of the assumption that his depredations were responsible for the loss. The matter is dealt with at a considerable length in Mr Gadaloff’s affidavits but it is not necessary to consider the material relevant to this point. Mr Gadaloff’s argument is that the Council is not entitled to be reimbursed more than the amount of its loss and Mr Gadaloff argues that it cannot prove how much it lost.

   The answer is provided by an analysis which convincingly demonstrates, not the amount lost by the Council, but the extent to which the respondents have prospered beyond what can be explained by lawful means. Between 1 January 1993 and Mr Gadaloff’s arrest in August 1997 the respondents spent in recorded transactions $2,256,576.13 more than their combined legitimate incomes. If one rejects the fantasy of aunt Tamara one is left with Mr Gadaloff’s admission that he misappropriated moneys from the Council as the only explanation for the source of expenditure.

3. The value of the property which the Council claims is less than the amount demonstrated to have been stolen by Mr Gadaloff. Sergeant Acreman who conducted a very thoughtful investigation deserves to be commended for his meticulous attention to detail and thoroughness in gathering information. The results of the investigation have been carefully analysed and the results produced in an easily understandable format.

   Detective Sergeant Acreman has been able to compare the known expenditure of the respondents in the period 1993 to August 1997 with the known sources of the respondent’s income. They both worked. Their employers are known as is their level of remuneration. The comparison shows the figure I have mentioned. The respondents in the period spent on lavish lifestyle and the accumulation of assets $2¼ million more than they earned. The expenditure figure is conservative because it does not take in to account money spent on ordinary living expenses, such as food or entertainment for which there were no written records. I reproduce the table prepared by Sergeant Acreman in which the net result of his analysis is revealed.

   NET LAWFUL INCOME FOR GARTH AND NARELLE GADALOFF INCLUDING ACCOUNT INTEREST

YEAR GARTH NARELLE COMBINED EXPENDITURE & OVER

INCOME CASH GROWTH EXPENDITURE

1993	$ 23,237	$ 21,742	$ 44,979	$ 68,705.11	$ 23,726.11
1994	$ 22,215	$ 20,630	$ 42,845	$ 112,664.19	$ 69,819.19
1995	$ 23,382	$ 22,123	$ 45,505	$ 183,133.81	$ 137,628.81
1996	$ 24,454	$ 21,542	$ 45,996	$ 726,003.07	$ 680,007.07
1997 to	$ 18,670	$ 780	$ 19,451	$ 1,166,069.95	$ 1,146,618.95
August

TOTAL EXCESS EXPENDITURE & ASSET GROWTH ABOVE LAWFUL INCOME $ 2,256,576.13

1. I am satisfied that the source of the expenditure in excess of the respondents’ lawful income was money stolen by Mr Gadaloff from the Council. It does not matter that the Council may be unable to prove the precise amount in excess of that figure which Mr Gadaloff took. I am satisfied that he took at least that amount and that the order for forfeiture I intend to make will not exceed the extent of the Council’s loss.

2. Section 23 which empowers the court to order that tainted property be forfeited to the State does so by conferring a wide discretion whether or not in a particular case to make an order. Subsections 2 and 3 mention circumstances that the court may take into account in the exercise of the discretion but those provisions do not require those factors to be considered, or if they are considered, to be given any particular importance. The factors mentioned are: the hardship that may be expected from the forfeiture order; the use to which the property is ordinarily put; and the gravity of the offence which gives rise to the application for forfeiture.

   The authorities make it clear that the hardship referred to is something other than the consequence of the forfeiture order. Were it otherwise the operation of the Act would be severely circumscribed. The express object of the Act is to deter the commission of serious offences by depriving the perpetrators of financial gain and by increasing the financial loss associated with their criminal activities. In the present case, with the possible exception of one item of property, there is no consideration suggesting that a forfeiture order should not be made. Simple justice demands the order. The large amounts of cash in Australian currency is, beyond doubt, money stolen from the Council. The foreign currencies, equally clearly, were purchased by stolen money. The same is true of the real properties at Draper bought in their collaborator's name. The other items of property were acquired, directly or indirectly, from the proceeds of Mr Gadaloff’s theft.

3. The possible exception concerns the home jointly owned by the respondents which was their family residence. The property is located at 29 Denver Road, Caseldine. It was purchased in January 1994. A deposit of $72,355.90 was paid in cash and the balance of $100,000 was financed by a loan from Suncorp Metway Limited. That loan was repaid in remarkably quick time, being fully discharged on 27 November 1996. Repayment occurred in two ways. On nine separate occasions cheques for amounts totalling $49,760.71 were deposited to the credit of the home loan account. The balance of the debt was paid by funds transferred from Mr Gadaloff’s personal bank account into which his salary was paid. For the three years in which the loan was extant all of Mr Gadaloff’s salary was applied to pay off the home loan. Of the nine cheques seven were for amounts in round figures totalling $27,000.00. The other two cheques represented Mrs Gadaloff’s employment and superannuation entitlements when she ceased working with Dun & Bradstreet. She received a payment in respect of superannuation of $10,393.17 and severance or retrenchment benefits totalling $12,376.54.

4. There can be no doubt in the circumstances outlined by Detective Acreman that the deposit was funded by money taken from the Council. Of the amount of $100,000.00 borrowed just over $50,000.00 was repaid from Mr Gadaloff’s salary and just over $22,500.00 from Mrs Gadaloff’s own moneys. The repayment of the balance of the debt was sourced from theft.

5. Mr Smith, who appeared for the Council, is clearly right when he submits that Mr Gadaloff was only able to devote the whole of his Council salary towards the repayment of the home loan because he could support himself and his family in increasing affluence with stolen money. It would be quite wrong, in this circumstance, to regard the loan repayments made from Mr Gadaloff’s bank account as having been made from his own moneys. The interest in the home represented by that proportion of the repayments is tainted property within the definition. It is property indirectly derived from the misappropriation of Council money, and/or it was property used in connection with the misappropriation.

6. The only moneys applied to the purchase of the home which are undoubtedly the respondents’ own moneys are the sums provided by Mrs Gadaloff. I think Mr Smith is correct in submitting that the whole of the house property is tainted and is amenable to an order for forfeiture but the provision of Mrs Gadaloff’s money supplies a reason why the discretion should be exercised to preserve part of the property from forfeiture. As a result of their convictions and of the orders to be made in this application the respondents will be destitute. Mr Gadaloff will remain in prison for a considerable time. Mrs Gadaloff has been released but has the care and custody of their young son. It is not in the public interest that she be wholly deprived of the means of supplying herself and her child with a place to live. Her offence, though serious, is nowhere near as grave as her husband’s. She assisted to conceal what he stole but she did not herself participate in the theft. I propose to make an order the effect of which will be to invite the Council to pay $25,000.00 to Mrs Gadaloff for her interest in the home. That amount includes a modest return on her investment in the home.

7. On 19 January and 4 February 2000 I made orders that the property comprising Australian and Foreign currency notes be invested in an interest bearing account with the Commonwealth Bank. I order that the money so invested, together with accretions, be forfeited to the State of Queensland. I further order that the other property identified in the Notice of Motion, with the exception of the house and land at 29 Denver Road Carseldine, be forfeited to the State of Queensland. I order that the property so forfeited be transferred to the Brisbane City Council. I direct that upon payment of the sum of $25,000.00 by the Council to Mrs Gadaloff that the house property be forfeited to the State of Queensland and be transferred to the Council.

8. An error was identified in evidence with respect to the amount of Australian currency found in the safety deposit box. The Notice of Motion overstated the sum by $5,000.00. The form of order I have made will accommodate this discrepancy.

9. The Council seeks an order that the DPP pay its costs thrown away by the adjournment of the hearing on 8 May. The hearing could not proceed on that day because Mr Gadaloff had not been brought from prison. His absence was occasioned by an oversight on the part of the solicitor who appeared for the DPP who had on previous occasions arranged for Mr Gadaloff’s transfer from the gaol and who had agreed to do so for 8 May. Notwithstanding this fact I do not propose to make the DPP pay the costs of the adjournment. The application was brought for the benefit of the Council and to assist the Council to recover public moneys. It would be an unkind cut to visit the applicant’s assistance with the order sought.

   I give the parties liberty to apply with respect to the form of order.