Legal Profession Conduct Commissioner v Fowler
[2019] SASC 216
•23 December 2019
Supreme Court of South Australia
(Civil: Application)
LEGAL PROFESSION CONDUCT COMMISSIONER v FOWLER & ANOR
[2019] SASC 216
Judgment of The Honourable Justice Stanley
23 December 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - GENERALLY - CLASSIFICATION: FINAL OR INTERLOCUTORY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS
This is an interlocutory application brought by a practitioner seeking an order that the appeal filed by the Legal Profession Conduct Commissioner (the Commissioner) be dismissed on the grounds that it is incompetent because leave to appeal is required and has not been obtained.
The practitioner gave notice of a show cause event pursuant to s 20AH of the Legal Practitioners Act 1981 (SA) (the Act). The relevant show cause event was the service on the practitioner by the Australian Taxation Office of a creditor’s petition under the Bankruptcy Act 1966 (Cth). The practitioner subsequently entered bankruptcy and has been an undischarged bankrupt since June 2018.
A Judge of this Court made a determination as to whether the practitioner should remain entitled to practice and, if so, whether, and what, conditions should be imposed governing any continuing right to practice. The judge made orders imposing conditions on the practitioner’s right to practice.
The Commissioner purported to appeal from the judgment. The practitioner’s solicitors wrote to the Commissioner to suggest that the Commissioner required permission to appeal. The Commissioner responded in writing rejecting the contention that permission to appeal was required. The practitioner’s solicitors again wrote to the Commissioner putting him on notice that if he refused to apply for permission to appeal by 6 September 2019 the practitioner would apply to the Court to dismiss the appeal as incompetent. That is what occurred.
Held:
1. The judgment the subject of the appeal is not interlocutory, therefore SCR 288(1)(a)(I) does not apply and permission to appeal is not required.
Legal Practitioners Act 1981 (SA) s 20AH; Bankruptcy Act 1966 (Cth); Supreme Court Civil Rules 2006 (SA) r 288(1)(a)(i); Supreme Court Act 1935 (SA) s 50(4), s 50(5), referred to.
Legal Profession Conduct Commissioner v Fittock [2017] SASCFC 169, applied.
Licul v Corney (1976) 180 CLR 213, distinguished.
LEGAL PROFESSION CONDUCT COMMISSIONER v FOWLER & ANOR
[2019] SASC 216
Civil: Application
STANLEY J:
Introduction
This is an interlocutory application brought by a practitioner seeking an order that the appeal filed by the Legal Profession Conduct Commissioner (the Commissioner) be dismissed on the grounds that it is incompetent because leave to appeal is required and has not been obtained.
Background
The practitioner gave notice of a show cause event pursuant to s 20AH of the Legal Practitioners Act 1981 (SA) (the Act). The relevant show cause event was the service on the practitioner by the Australian Taxation Office of a creditor’s petition under the Bankruptcy Act 1966 (Cth). The practitioner subsequently entered bankruptcy and has been an undischarged bankrupt since 5 June 2018.
A Judge of this Court made a determination as to whether the practitioner should remain entitled to practice and, if so, whether, and what, conditions should be imposed governing any continuing right to practice.
On 26 April 2019 the judge made orders imposing conditions on the practitioner’s right to practice.
On 16 May 2019 the Commissioner purported to appeal from the judgment.
On 8 August 2019 the practitioner’s solicitors wrote to the Commissioner to suggest that the Commissioner required permission to appeal.
On 28 August 2019 the Commissioner responded in writing. The Commissioner rejected the contention that permission to appeal was required.
On 3 September 2019 the practitioner’s solicitors again wrote to the Commissioner putting him on notice that if he refused to apply for permission to appeal by 6 September 2019 the practitioner would apply to the Court to dismiss the appeal as incompetent.
That is what occurred.
Terms of the orders
The order made by the judge imposing conditions on the practitioner’s right of practice commence as follows:
That from the date of this order until further order the following conditions are to be endorsed upon the Practitioner’s current practising certificate, and on any subsequent certificate that may issue to the Practitioner:
1. The Practitioner shall not employ any staff.
2. The Practitioner shall not change the structure of his business (whether by going into partnership or establishing an incorporated legal practice, or otherwise).
3. The Practitioner shall advise any barristers he proposes to instruct of his bankrupt status.
4. The Practitioner shall meet the following criteria to the satisfaction of the supervisor:
4.1 That all Business Activity Statements (BASs) and income tax returns are lodged on time;
4.2 That all tax liabilities are paid on time;
4.3 That the Practitioner retain in his office account sufficient funds to pay his accrued and unpaid tax liabilities at any given point in time; and
4.4 That all other business liabilities of the Practitioner are paid on time.
5. The Practitioner shall be subject to general supervision and monitoring by Mr Franco Camatta, legal practitioner (the supervisor), and for that purpose, the Practitioner shall provide him with unfettered access to the Practitioner's:
5.1 client files;
5.2 business and taxation records; and
5.3 online internet banking in relation to the Practitioner's trust account and office account (read only).
6. The Practitioner shall ensure that the future applications for a practising certificate and professional indemnity insurance are lodged in a timely and compliant manner with the Registrar of Legal Practitioners at the Law Society of South Australia in accordance with the prescribed time for doing so.
7. The Practitioner shall comply with the reasonable directions of his Trustee in Bankruptcy.
8. The Practitioner shall retain Mr Brett Wiseman (Fellow, IPA; registered tax agent) (the accountant) to monitor his financial affairs and assist him in ensuring compliance with his financial and tax obligations, in accordance with the scope of work detailed in the second affidavit of Jonathon Craig McKay, filed herein on 21 March 2019.
9. The Practitioner shall co-operate with the accountant and provide him with all documentation sufficient to enable the timely filing within prescribed periods of all future BAS and and income tax returns with the Australian Taxation Office (ATO).
10. Subject to the operation of the Bankruptcy Act 1966, the Practitioner shall pay all amounts self-assessed or assessed by the ATO as payable as and when such payments fall due.
11. The Practitioner shall co-operate with the accountant to ensure that payment for future applications for practising certificates and professional indemnity insurance are made within the prescribed time frame.
12. The accountant shall assist the supervisor, and report fortnightly to the supervisor on the Practitioner’s compliance with his obligations under these Conditions.
13. The Practitioner shall retain Mr Simon Smith (Chartered accountant, Fellow of CPA Australia, Associate Member of the Institute of Internal Auditors Australia) (the auditor) to monitor his Trust Account, and to assist him in ensuring compliance with Schedule 2 of the Legal Practitioners Act 1981.
14. Subject to the supervision and direction of the auditor, the Practitioner shall operate the Trust Account (TA) in the following manner:
14.1 Subject to paragraph 14.2 below, the Practitioner may draw and sign such TA cheques (or otherwise draw on funds held in the TA) as may be required for any particular transaction in which he holds instructions, and in respect of which he holds or receives funds in the TA for that purpose;
14.2 In respect of each and every such TA cheque drawn and signed by him (or other withdrawal) the Practitioner shall, every week, provide to the auditor evidence in the TA books and records of the withdrawals with respect to his operation of the TA in respect thereof as the auditor may put to him;
14.3 The Practitioner shall only draw and sign TA cheques payable to him or his office account (or otherwise transfer funds in the TA to him or his office account) in discharge of client-approved fee invoices under the supervision of the auditor, who shall attest to the same by appropriate endorsement on the office copy of the fee invoice.
15. The auditor shall provide the supervisor with the following trust account reports for the previous month within 7 days from the end of each month:
15.1 Trust Bank Reconciliation;
15.2 Trust Trial Balance;
15.3 Trust Account Receipts Cash Book; and
15.4 Trust Account Payments Cash Book.
16. The supervisor is to satisfy himself that the Practitioner is meeting his professional and business obligations in a timely manner and shall provide a written report to the Law Society of South Australia and the Legal Profession Conduct Commissioner on a 6-monthly basis during the period of the order.
17. The accountant shall provide a written report to the Law Society of South Australia on a quarterly basis and within 14 days of the expiration of each quarter as to the Practitioner’s compliance with his financial, taxation and Trust Account obligations, the first such report to be in respect of the quarter ending 30 June 2019.
18. The Practitioner is to notify all existing and new clients of his status as an undischarged bankrupt and of the fact that, notwithstanding this status, the Supreme Court has given its permission for him to continue to practise as a sole Practitioner subject to conditions.
19. The Practitioner shall forthwith advise the Law Society of South Australia should he cease to practise in the manner provided in this order.
20. Liberty to apply generally to both the Practitioner, the Legal Profession Conduct Commissioner and the Law Society of South Australia.
21. The Law Society of South Australia or the Legal Profession Conduct Commissioner may apply for further orders if any non-compliance with these conditions is reported by the supervisor or if for any other reason they have concerns about the Practitioner’s practice.
The issue
The issue on the application is whether the nature of the judgment under appeal is final or interlocutory. If the judgment the subject of the appeal is interlocutory, permission to appeal is required pursuant to SCR 288(1)(a)(i).
Relevant provisions
Section 50(4)(b) of the Supreme Court Act 1935 (SA) (the SCA) provides that an appeal lies only with permission of the Court if the rules provide that the appeal lies by permission of the Court.
However, s 50(5)(e) of the SCA provides that the rules cannot require the Court’s permission for an appeal if the judgment under appeal makes a final determination of a substantive right.
SCR 4 defines “interlocutory proceeding” to mean a proceeding of any of the following kinds in which an order or direction of the Court is sought –
(a) a proceeding that is preliminary or ancillary to an action or appellate proceeding, or an intended action or appellate proceeding, in the court;
Examples –
(1) an application to require production of evidentiary material that may assist in the formulation of an action.
(2) an application for a freezing order.
(b) a proceeding for an order or direction about the course of conduct of an action or appellate proceeding;
Example –
an application for extension of time to take a step in an action.
(c) a proceeding related to the enforcement of a judgment;
Example –
an application for an order or direction under the Enforcement of Judgments Act 1991.
Submissions of the parties
Mr Wells QC, counsel for the practitioner, submits that the orders made by this Court are interlocutory in nature because they do not set down any final charter of rights which governs the future rights and liabilities of the parties. The nature of the orders made by the Court in this case are supervisory. The practitioner’s conduct is to be monitored and kept under review for the purpose of determining whether he should be permitted to continue to act, subject to the conditions imposed by the orders, or whether those orders should be varied so as to amend the basis upon which he will be permitted to continue to practice in the future.
Ms Nelson QC, counsel for the Commissioner, submits that the nature of the orders made by the Court are not procedural or adjectival. The Court has made a final decision, subject to appeal, relating to the practitioner’s rights to practice. That decision resulted in orders permitting him to practice under prescribed conditions. The fact that the Court has reserved liberty to the parties to apply to vary those orders, raising the possibility that at some indeterminate time in the future those conditions may be varied or revoked, does not detract from the nature of the orders made determining the right of the practitioner to practice for the indefinite future. For that purpose, the order is not interlocutory.
Relevant principles
The final/interlocutory dichotomy has most recently been considered by the Full Court in Legal Profession Conduct Commissioner v Fittock.In their joint reasons, the Chief Justice and Blue J, with whom Parker J agreed, analysed the authorities pertaining to whether an order is interlocutory or final, as follows:
In Cowie v State Electricity Commission of Victoria Gowans J held that an application for permission to bring an action against a statutory authority, notwithstanding a failure to give notice of action pursuant to the Limitation of Actions Act 1958 (Vic), was not an interlocutory motion because the determination of the application would finally decide the vulnerability to, or immunity from, suit of the statutory authority.
In Mibor Investments Pty Ltd & Ors v Commonwealth Bank of Australia, in the context of an action to set aside a statutory demand, Hayne J explained the distinction between interlocutory and substantive applications by reference to Cowie as follows:
The question whether an application is interlocutory for the purposes of r.43.03(2) is not to be decided according to whether the order made on determination of the application would be interlocutory for purposes of appeal: see eg Cowie. It is to be determined according to whether the application will decide the rights of parties or is ‘… made for the purpose of keeping things in statu quo till the rights can be decided, or for the purpose of obtaining some direction of the Court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the Court ultimately to decide upon the rights of the parties’.
In my view this application is an interlocutory proceeding. Unlike the question in Cowie’s Case (which was whether a statutory authority had immunity from suit in a particular case because of a failure to give notice under the Statute of Limitations) the present proceeding determines only whether a demand may stand or not. If the demand stands, the consequences are serious but there is no final determination of any right. All that follows from the demand not being set aside is that the company will have a further perhaps short period within which it must meet the demand or face a conclusion that it is to be presumed insolvent (unless it proves the contrary). No order can be made under s 459G which finally determines the rights of parties.
(citations omitted)
In Hall v The Nominal Defendant the Court by majority (Taylor, Windeyer and Owen JJ, Barwick CJ dissenting) held that an order made pursuant to s 65A(3) of the Traffic Act 1925 (Tas) (‘the Traffic Act’) refusing an application for an extension of time within which to institute proceedings against a nominal defendant is not a final order for the purposes of s 35(1)(a) of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’). Section 35(1)(a) of the Judiciary Act then provided that an appeal to the High Court could not be brought from an interlocutory judgment of a State Supreme Court without leave of the Supreme Court or the High Court. Taylor and Owen JJ held that the dismissal of an application for an extension of time in which to proceed did not preclude the unsuccessful applicant from making a further application.
Windeyer J acknowledged the difficulty caused by the mass of apparently conflicting decisions on the distinction between final and interlocutory orders and then continued:
In most cases the test that seems to be most satisfactory, and the one that accords most nearly with what has been said on the subject in this Court, is it seems to me to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them. It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation.
Windeyer J concluded that even an order granting an extension of time was merely interlocutory for the following reasons:
The effect of such decisions as there are of this Court on the point seems to me to be that when an action has been commenced between parties then whether an order in that action is interlocutory depends on whether or not it results in a final determination of that action. I say of ‘that action’ because it appears that the question depends more upon the action actually brought by a writ than upon the cause of action upon which the writ was founded. For example, it has been held that a judgment of non-suit is a final judgment, notwithstanding that it leaves the plaintiff at liberty to bring another action for the same cause. A judgment on a demurrer may thus be either final or interlocutory depending upon circumstances. These cases are all illustrative of the general proposition that a final order is one which finally disposes (subject only to appeal) of an action or an existing dispute between parties … But I find it hard to relate the test of finality or otherwise in the determination of a dispute between parties to an application under s 65A(3), because in such a case there is no existing dispute between parties and no existing action, and unless the prescribed times be complied with or extended there is no cause of action it seems to me … The question is, in effect, whether he should be permitted to bring an action. A refusal of this application means that he cannot do so. I am prepared to assume that in practical effect, if not in strict law, a refusal would preclude him from making another application for an extension of time. But does this mean that such a refusal would be a final order? On the whole I think not … The position when there is an existing dispute between the defined parties does not, I think, provide an analogy. There, as I have said, the cases shew that the determining factor is the effect of the order in establishing finally or otherwise the rights of the disputant parties — does it put an end to an existing dispute or existing action? But in a case such as this the character of the proceedings in which the order is made seems to me of more significance than is the result for the applicant. I am unable to accept the view that if an extension of time as sought were granted such an order would be a final order. It seems to me it would be interlocutory; and I think that the position is the same if the extension be refused or if a lesser time were allowed than was sought.
(underlining added; citations omitted)
Taylor and Owen JJ expressed no opinion on whether an order extending the time to bring an action pursuant to s 65A(3) of the Traffic Act was final or interlocutory.
It is the proper characterisation of an order granting an extension of time which is most apposite to the issue on this appeal. If an order granting an extension of time is a final order, then the underlying matter is not an interlocutory one even if a refusal to grant an extension is an interlocutory decision. It is helpful therefore to consider more closely the reasons of Barwick CJ who held that both orders dismissing and granting an extension of time were final.
Whereas Windeyer J’s conclusion was influenced to a large degree by the view that a final order is generally one which is dispositive of an entire action, Barwick CJ closely analysed the nature of the statutory limitation on bringing the action. Barwick CJ held that s 65A of the Traffic Act gave a right of action if the action was instituted within the stated time but not otherwise. An order of the court extending time in a matter brought out of time restored a lost right. Substantive rights and liabilities were therefore dependent on, and finally determined by, the grant of an extension of time.
Barwick CJ concluded that:
It is clear that the statute gives a right of action to a person of the described class in the stated circumstances if the right is exercised by the commencement of an action within the stated time after due notice to the nominal defendant.
(emphasis added)
Having so characterised the limitation period, it is not surprising that Barwick CJ held that an order extending the time was final and not merely procedural. An order of a court extending the time for bringing an action which is otherwise statute barred effectively determines an element of the cause of action. The limitation is, to use the language adopted in a more recent decision of the High Court, enacted as ‘a condition which is of the essence of the right to damages rather than providing for no more than a bar to the enforcement of an existing right’.
Barwick CJ then turned to a consideration of whether an order refusing an extension of time is also a final order. He held that it is. Barwick CJ distinguished an extension of the time within which to bring an action from applications to extend the time in which to take a step in an action and applications to set aside a default judgment. The latter are classically interlocutory. His Honour explained that such interlocutory steps were ‘under the control of and generally within the discretion of the Court in which the action is brought’, whereas the action itself ‘is brought to enforce rights which, if they exist, derive from facts or circumstances apart from the statute or jurisdiction which gives the court control of the proceedings’. Barwick CJ also distinguished the order sought in Hall from the dismissal of an action for a deficiency in the statement of claim. His Honour explained that in such cases ‘the right, if any exists, is not determined by the order’.
Contrasting the non-suiting of a plaintiff referred to by Windeyer J in the passage cited at [19] above and the dismissal of a claim for a deficiency in the statement of claim is instructive. A non-suit disposes of an action but does not preclude a plaintiff bringing another action. Yet from the perspective of the defendant the order of a non-suit denied it the practical certainty of a final order dismissing the plaintiff’s claim on the merits. There was good reason therefore to treat the order as final and therefore subject to appeal by an aggrieved defendant. A deficient, frivolous or vexatious statement of claim on the other hand does not effectively bring a legal controversy before a court and therefore, when dismissed, does not finally determine any controversy.
In Licul v Corney the High Court held that orders made for substituted service and orders made setting aside those orders were interlocutory orders for the purposes of s 35(1)(a) of the Judiciary Act. Gibbs J said:
The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view — which was preferred by the Court of Appeal in Salter Rex & Co v Ghosh — is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties? Within either of those tests the judgment of the Full Court in the present case is not a final judgment. It does not have the effect of finally disposing of the rights of the parties. It leaves it open — at least in theory — to the applicants to make a further application, upon prior notice served on the respondent himself, for an extension of time for service of each summons, and if that extension is granted, and the summonses are served, to proceed with the actions. The order is therefore not final in nature whatever its practical effect may be.
(citations omitted)
In Hardel Pty Ltd v Burrell & Family Pty Ltd, Kourakis CJ summarised the authorities as follows:
[24] The discussion in those passages of the interrelationship between the underlying dispute or matter involving the parties and the action which is instituted to resolve it is of considerable importance. An action is brought so that the controversy between the parties may be adjudicated. A final order determines the underlying matter, or some part of it, and for that reason will generally dispose of the action or an element of it. An interlocutory order, on the other hand, determines an aspect of the forensic procedure in accordance with which the matter will be adjudicated. For that reason it will generally direct the course of further proceedings rather than determine any part of the subject matter of the dispute. It must be remembered that the action itself is no more than the procedure by which the court’s jurisdiction is invoked; it must not be conflated with the subject matter of the controversy. Consequently, an order bringing an action to an end by dismissal of the action or default judgment may still be interlocutory. The anomalous position of an order non-suiting a party is the result of the peculiar history and features of that procedure.
…
[34] In my respectful opinion there is much utility in the reformulation of the interlocutory/final dichotomy by reference to the concept of procedural or adjectival orders on the one hand, and orders determining substantive rights and obligations on the other. Disputed questions of law may arise between persons about the scope and extent of those rights and obligations, as may factual disputes about the circumstances which attract them. Rights carry with them a co-relative right to enforcement or remedial orders if those obligations are breached. It is the function of courts to adjudicate those controversies. As Kitto J observed in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd:
[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons.
[35] A final order is generally one that creates the ‘new charter’ to which Kitto J referred. It is the very essence of the exercise of judicial power that it finally settles the controversy which is the subject matter of the action, and thereby precludes any further application for another or different orders with respect to that matter; to ask whether a further application can be brought for the purpose of determining whether an order is final or interlocutory conflates cause and effect.
[36] Conversely, decisions on whether the court’s jurisdiction to adjudicate a controversy has properly been invoked, and on whether its procedures for determining that controversy have been complied with, are generally adjectival and therefore interlocutory. Speaking loosely it might be said that parties have a right to the correct and proper application of the procedural rules of the court to the litigation they conduct within it. Indeed, if the proper procedure is not applied, the parties can generally seek leave to appeal procedural orders. However, parties do not have ‘rights’ against the judicial tribunals that determine their controversies in the same sense that they have rights against each other under the substantive law.
(citations omitted)
As a general rule, procedural and interlocutory matters do not concern the substantive rights or interests of the parties. Interlocutory or procedural matters are adjectival, that is they relate to the course the action will take and not the determination of the substance of a legal controversy. Most commonly they deal with the course of the proceedings including such things as timetabling, discovery, the form in which evidence will be taken and submissions. Section 80(1b) of the LP Act, which contemplates that procedural or interlocutory matters may be dealt with by a member of the Tribunal who is not one of the panel of three members constituted pursuant to s 80(1) of the LP Act, reinforces that connotation of the phrase.
Consideration
As Gibbs J observed in Licul v Corney a distinction between interlocutory and final judgments is not always easy to draw. That is particularly so in this case. However, the analysis in Fittock supports the principle that the relevant dichotomy is between procedural or adjectival orders, which do not concern the substantive rights or interests of the parties, as against orders that determine the substance of a legal controversy. I am bound by the decision in Fittock.
The nature of the orders made in this case determine the substantive rights and interests of the practitioner. It is in the nature of the jurisdiction being exercised by the Court, which is supervisory, that the exercise of that jurisdiction may result in orders governing the conditions under which the practitioner will be permitted to practice in the indefinite future. While the supervisory nature of those orders may permit the possibility of a variation or revocation of those orders at some subsequent time, that does not detract from the fact that the Court’s determination concerns the practitioner’s substantive rights. The orders made will continue to govern the conditions under which he practices unless and until the Court determines otherwise. To my view, that distinguishes the orders made from interlocutory orders which are concerned with procedural or adjectival matters.
It can be seen that the orders made by the judge impose extensive conditions which both limit the practitioner’s right to practice in the future and impose obligations which he must observe in order to continue to practice. His practice will be supervised by another practitioner; he must retain an accountant to monitor his financial affairs and assist him in complying with his financial and tax obligations; and he must retain an auditor who will supervise the operation of his trust account.
These are not procedural or adjectival orders. Neither the reservation in the preamble to the conditions: “until further order” nor the grant of liberty to apply to the practitioner, the Commissioner and the Law Society detracts from the substantive nature of the orders made by the judge. The substance of the legal controversy heard by the judge is determined by these orders. While these orders may be varied or revoked in the future, for the present they finally dispose of the legal controversy. The rights, duties and obligations established by these orders apply indefinitely, subject to the possibility, which may never arise, that the Court may make further orders.
For these reasons the judgment the subject of the appeal is not interlocutory. SCR 288(1)(a)(i) does not apply. Accordingly, permission to appeal is not required.
I note that Mr Wells indicated that should the application be dismissed the appeal books will be certified. In those circumstances I do not need to make any order in that regard.
Conclusion
I would dismiss the application. I will hear the parties as to costs.
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