Re Karounos, G. v Ex parte The Official Trustee in Bankruptcy

[1989] FCA 629

Re: GEORGE KAROUNOS
EX PARTE: THE OFFICIAL TRUSTEE IN BANKRUPTCY
No. 345 of 1981
FED No. 629
Bankruptcy
89 ALR 580
25 FCR 177

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY
BANKRUPTCY DISTRICT OF THE STATE OF SOUTH AUSTRALIA
GENERAL DIVISION
Sheppard J.(1)

CATCHWORDS

Bankruptcy - objection to discharge - order made that the period at the expiration of which the objection lapse be extended until application that bankrupt not be discharged finally determined whether order a valid exercise of power.

Order purporting to order that the period at the expiration of which an objection entered against discharge of bankrupt will lapse be extended found to be made without jurisdiction - in consequence bankruptcy came to an end five years after sequestration order - consequences of order rescinding order made without jurisdiction.

Bankruptcy Act 1966, ss. 37, 149 and 150

HEARING

SYDNEY

#DATE 6:10:1989

Counsel for the Bankrupt: Mr J R Mansfield, QC and Mr G G Palasis

Solicitors for the Bankrupt: Andersons

Counsel for Official Trustee: Mr J M Wilkinson and Mr J C Clarke

Solicitors for Official Trustee: Cowell Clarke

ORDER

THE COURT ORDERS THAT in the application filed on 2 August 1989:-

1. The order made by Foster J. on 28 April 1986 be rescinded.

2. No order be made as to costs.

THE COURT ORDERS THAT in the application filed on 25 February 1988:-

1. No order be made.

2. No order be made as to costs.

THE COURT ORDERS THAT in the application filed on 16 April 1986:-

1. No order be made.

2. No order be made as to costs.

NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

JUDGE1

To be dealt with are two applications made by the bankrupt in this matter. In the order in which they need to be dealt with, there is first an application filed on 2 August 1989 seeking, inter alia, that an order made on 28 April 1986 by Forster J. be set aside. The order has not been taken out. The other application was filed on 25 February 1988 and seeks an order that an application by the Official Trustee filed on 16 April 1986 for an order pursuant to subsec. 149(12) of the Bankruptcy Act 1966 ("the Act") be struck out for want of prosecution. In ordinary circumstances an application to set aside an order made by a judge of the Court is heard by the judge who made the order. That course was not possible because of the retirement of Forster J.

1. The facts of the matter were agreed upon by the parties and are conveniently stated in a statement of agreed facts which is in evidence. The estate of the bankrupt was sequestrated on 8 May 1981. On 15 March 1984, an objection to discharge dated 14 March 1984 was filed by an acting Official Receiver on behalf of the Official Trustee. The objection was filed pursuant to the provisions of para. 149(3)(c) of the Act to which I shall refer in more detail in a moment. On 17 April 1986 an application on behalf of the Official Trustee was made to the Court for an order pursuant to subsecs. (8) and (12) of s. 149 of the Act. On 28 April 1986 the application came before Forster J. The principal orders which his Honour made were as follows:-
   

"1. That the period at the expiration of which the objection for and on behalf of The Official Trustee dated the 14th day of March 1984 to the discharge of the bankrupt shall lapse be extended pursuant to Section 149(8) of the Act until the application of The Official Trustee dated the 16th day of April 1986 for an order under Section 149(12) of the Act be finally determined.

2. That the application of The Official Trustee filed herein and dated the 16th April 1986 for an order pusuant to Section 149(12) of the Act be adjourned for mention and for the purpose of giving necessary directions to a date to be fixed on the application of either party hereto."

The orders were made by consent. As I have said, the orders have not been taken out, that is, there has been no signing and sealing of them.

1. It is order 1 made by his Honour which the bankrupt seeks to have set aside. The remaining facts of the matter concern the application made by the bankrupt to dismiss the Official Trustee's application made pursuant to subsec. 149(12) for want of prosecution. I shall refer to those facts after I have referred in more detail to the relevant legislation.

2. Section 149 of the Act provides for the discharge of bankrupts by operation of law. It is to be contrasted with s. 150 which provides for the discharge of bankrupts by the Court. In ordinary circumstances a bankrupt is discharged by force of s. 149 upon the expiration of three years from the date of the bankruptcy; subsec. 149(1). Subsection 149(3) provides, inter alia, that a bankrupt is not discharged from bankruptcy by virtue of s. 149 if there has been entered by one of the persons specified in para (c) of the subsection an objection to the discharge of the bankrupt by force of the section and the objection has not been withdrawn or lapsed before the time when the bankrupt would have been so discharged but for the subsection.

3. As mentioned, the objection lodged by the Official Trustee on 15 March 1984 was lodged pursuant to this provision. It is to be observed that it was lodged a little less than two months prior to the expiration of the three year period for which s. 149 provides. By para. 149(7) of the Act, subject to subsec. (11), an objection entered under para 149(3)(c) lapses at the expiration, subject to para (b), of the period of five years from the date of the bankruptcy. Paragraph (b) is in the following terms:-
   

"(b) if the Court makes an order under sub-section (8) or (9) in relation to the bankrupt - the period fixed by the order".

1. Subsection 149(8) of the Act is as follows:-
   

"The Court may, at any time before the expiration of 5 years from the date of the bankruptcy, on the application of the Registrar, the Inspector-General, the trustee or a creditor, order that the period at the expiration of which an objection entered under paragraph (3)(c) will lapse be such period, being a period exceeding 5 years, commencing on the date of the bankruptcy as is specified in the order."

1. Subsections 149(11) and (12) are as follows:-
   

"(11) An objection to the discharge of a bankrupt, unless sooner withdrawn, lapses upon the discharge of the bankrupt under section 150.

(12) The Court may, at any time before the discharge of a bankrupt, on the application of the Registrar, the Inspector-General, the trustee or a creditor, direct that the bankrupt shall not be discharged from bankruptcy by virtue of this section."

1. It is the Official Trustee's application pursuant to s. 149(12) which the bankrupt contends ought to be dismissed for want of prosecution. It is now appropriate to state the facts relevant to that application. The account of them which follows is taken from the agreed statement of facts earlier referred to. On 26 May 1986 the application made pursuant to s. 149(12) (hereafter referred to as "the Official Trustee's application") came on for mention. It was adjourned to 16 June 1986 for further mention. On 16 June the application was adjourned to 7 July 1986 to enable "a determination of the question of particulars" and to enable the bankrupt to file an affidavit in opposition to the application. On 7 July 1986 the application was adjourned to 11 August 1986 for mention only. The Official Trustee was to provide particulars by 14 July 1986 to the bankrupt and the bankrupt was to file and serve an affidavit in support of a notice of opposition by 25 July 1986. The Official Trustee was given liberty to apply for an order for discovery.

2. On 11 August 1986 the application was further adjourned to 25 August 1986. A direction was made that the bankrupt file and serve affidavits in opposition to the application by 21 August 1986. On 25 August 1986 the application was adjourned to 8 September 1986. The bankrupt was ordered to pay the costs of the applicant, apparently in respect of that day. On 8 September 1986 the Official Trustee's application was listed for hearing on 10 November 1986. Four days were allotted.

3. On 19 September 1986 the application was brought before the Court because 10 November 1986 was not suitable to counsel for the bankrupt. Forster J. ordered that the matter be set down for 2 March 1987. The application was not heard on that day. According to the Statement of Facts, the Associate to Forster J., prior to 2 March 1987, telephoned the solicitor for the bankrupt to advise that the judge would not be able to hear the matter on that day and that it would be heard on 28 April 1987. It could not proceed on that day.

4. Nothing apparently transpired during the remainder of 1987. On 23 February 1988 the bankrupt's solicitors requested the Court to relist the Official Trustee's application. Two days later, on 25 February 1988, the application now to be determined that the Official Trustee's application be dismissed for want of prosecution, was filed.

5. On 14 March 1988 that application came before Forster J. and was adjourned to 21 March 1988 at the request of the bankrupt's solicitors. The reason for the adjournment was the filing by the Official Receiver of an affidavit on the Friday preceding 21 March 1988, namely, 18 March 1988. On 21 March 1988 the matter was further adjourned to 28 March 1988. On 28 March 1988 the application to dismiss for want of prosecution was adjourned by consent. The Official Trustee's solicitor informed the Court that the matter could not proceed because investigations were being carried out by the Corporate Affairs Commission and the Fraud Squad in relation to the bankrupt.

6. On 3 November 1988 the bankrupt's solicitors sought the relisting of the bankrupt's application to have the Official Trustee's application dismissed for want of prosecution. The matter was listed for 21 November 1988. The matter was adjourned at the request of the Official Trustee because the Official Trustee had not been notified of the relisting of the application. On 28 November 1988 the application was further adjourned to 12 December 1988 to enable the Official Trustee to file affidavits. On that day there was no appearance for the bankrupt and the matter was adjourned. It was relisted on 6 February 1989 pursuant to a request made by the bankrupt's solicitors by letter dated 14 December 1988. On 6 February 1989 the application was adjourned to 20 February 1989 and was then further adjourned to 20 March 1989. On that day it was adjourned again to 3 April 1989 to enable the Official Trustee to instruct new solicitors. The bankrupt unsuccessfully opposed the adjournment. On 3 April 1989 the application was adjourned once again, this time to 1 May 1989, to enable the Official Trustee to instruct another firm of solicitors.

7. On 1 May 1989 the application to dismiss the Official Trustee's application for want of prosecution was adjourned to 8 May 1989 when it was set down for hearing on 20 June 1989. A directions hearing was fixed for 2 June 1989. The directions hearing was adjourned to 16 June 1989 and on that day the hearing was adjourned to 2 August 1989. It could not be heard on that day, but was listed on 3 August 1989.

8. When the matter was called on for hearing, counsel for the bankrupt informed me that he wished to make an application to set aside the order made by Forster J. on 28 April 1986. The application in that behalf had been filed in the Registry the day before. Not unnaturally counsel for the Official Trustee said that he was taken by surprise by the application. In the light of the sorry history of the matter, I was unwilling to adjourn it once again. I said that I would entertain argument on the point and give to counsel for the Official Trustee an appropriate opportunity of considering it. He requested an adjournment until the following morning which I granted. Unfortunately, due to circumstances beyond my control, I was forced to return to Sydney on the afternoon of 3 August 1989. I saw counsel in Chambers and suggested that I receive submissions in writing from each of them on all matters to be determined in the two applications. I said that, if necessary, I would resume the hearing either by telephone or by returning to Adelaide. Written submissions were received by my Associate. In the circumstances it has been unnecessary to fix any further hearing of the matter.

9. I deal first with the question whether the first of the orders made by Forster J. on 28 April 1986 ought to be set aside. If that question is determined favourably to the bankrupt, it would seem that the second application, namely, the application to dismiss the Official Receiver's application for want of prosecution will be redundant because the necessary consequence of the setting aside of the order will be that the bankrupt was discharged by operation of the section on 7 May 1986, five years after the making of the sequestration order. That is because, if there is no effective order under subsec. 149(8) of the Act, the objection lodged pursuant to para 149(3)(c) of the Act lapses at the expiration of five years; see subsec. 149(7).

10. The question which arises for determination is whether the order made by Forster J. specified a period for the purposes of subsec. 149(8) of the Act. To be precise, the question is whether the order which he made was an order that the period, at the expiration of which an objection entered under para (c) of s. 149 would lapse was a period, being a period exceeding five years, commencing on the date of the bankruptcy "as is specified in the order". Those words need to be considered along with the words of para 149(7)(b) which refer to "the period fixed by the order". His Honour purported to make an order under subsec. 149(8) which would accommodate the necessary uncertainty which attended the date when the application under subsec. 149(12) would be determined. The order said that the period at the expiration of which the objection to the discharge of the bankrupt should lapse be extended until the application of the Official Trustee for an order under subsec. 149(12) of the Act "be finally determined".

11. The initial question is whether, for the purposes of subsec. 149(8), the order in question specifies a period, being a period exceeding five years commencing on the date of the bankruptcy. I was referred to dictionary meanings of the words "specify" and "period". The Macquarie Dictionary defines the word "specify" as meaning to mention or name specifically or definitely or to give a specific character to. It may also mean to name or state as a condition and to make a specific mention or statement. "Specific" means, inter alia, specified, precise or particular or peculiar or proper to something as qualities, characteristics, effects. One of the meanings of "period" is any specified division or portion of time. That is the meaning which I think the word bears here, particularly in the light of the various periods of time which are mentioned in the section.

12. In United Repairing Co. Limited v. Glover (1945) NZLR 160 the New Zealand Court of Appeal was concerned with a number of questions, one of which was whether an order made under s. 3(5) of the Factories Amendment Act 1936 (N.Z.) was expressed to be for "a specified period". In the course of his judgment Myers C.J. said (p 164) that the expression "specified period" must mean that the period must be fixed, definite and certain. Likewise Kennedy J. said (p 170) that "specified" meant definitely or specifically mentioned; determined; fixed; or settled.

13. The contention of counsel for the Official Trustee was that the order in question did specify a period. The period was a period commencing on the date of the bankruptcy which will conclude when the application made pursuant to subsec. 149(12) is determined. It was contended that the date upon which it is determined is something which can be ascertained with certainty. It will be determined either on the date it is withdrawn, if that should happen, or on the date upon which an order dealing with the application, either by dismissing it or allowing it, is made. Nothing was said in argument about what would happen if there were an appeal from an order dismissing or allowing the application, but I suppose it could be said that the appeal itself would finally dispose of the matter when it was dismissed or upheld. A further matter not mentioned in argument was the fact that the order was made within the five year period but that its effect could, at least in theory, have been spent before that period of five years elapsed. This may have seemed unlikely when the order was made, no more than 10 days being involved, but the order did not make it clear that the period, whatever it was to be, was to be in excess of five years from the date of the bankruptcy.

14. I do not gainsay that in some circumstances there may be the sufficient specification of a period by reference, not to a definite point of time, but to the occurrence of an ascertainable event. The question is whether that is the meaning which the provision was intended to have in s. 149. Sections 149 and 150 deal with the discharge of bankrupts, s. 149 providing for discharge by operation of law and s. 150 providing for discharge by the Court. As has been remarked in other cases, s. 149 reveals it to be the clear policy of the legislature that, in ordinary circumstances, bankrupts are not to be kept undischarged for an indefinite period unless there is good and sufficient reason why that should be the case. To this end, subject to the operation of the later subsections and s. 150 of the Act, all bankrupts are discharged from bankruptcy upon the expiration of three years from the date of their bankruptcies. Subsection 149(3) provides for circumstances in which subsec. 149(1) will not operate. Two of these are, respectively, the filing of an objection in terms of subsec. 149(4) and an order of the Court made under subsec. 149(12). In relation to objections, subsec. 149(7) provides that an objection will lapse after five years from the date of the bankruptcy unless the Court makes an order under subsec. (8) or subsec. (9) (which is not relevant) in relation to the bankrupt. Pausing there, there is manifest an intention to bring bankruptcies to an end, even where there have been objections, if not three years after bankruptcy, then five years after bankruptcy, unless the Court makes an order of the kind which is mentioned.

15. Each of the provisions to which I have referred makes mention of a finite period of years and indicates to persons affected by the section what the position is to be in relation to the discharge or not of bankrupts both three years and five years after bankruptcy and when applications are to be made within those periods. There is thus an underlying policy to be discerned from the terms of the section that this area of the law is to be attended with a high degree of certainty. That is not an unexpected result when one considers what is involved. Bankruptcy seriously affects the status of persons who are made bankrupt. So long as they are undischarged bankrupts, they continue to suffer the disadvantages and disabilities of bankruptcy. Those general considerations provide a reason why one would not lightly adopt a construction of a section which would involve uncertainty. I can see the advantage in having a situation in which the Court may grant an order which holds the position indefinitely until an application under subsec. 149(12) is dealt with. The Court itself often makes orders of this kind as, for example, when it restrains conduct of a particular kind until the hearing of an application for final relief or until further order. But the Court's charter in the present case is subsec. 149(8) and it is the words which the draftsman has used to which attention must be paid.

1. Having reflected on the matter, I think that the intention was that the extension contemplated by the subsection was to be for a finite period of time, that is to say, a period of months or of years. This would itself operate as an encouragement to an applicant under subsec. 149(12) and to the Court itself to dispose of such an application with a degree of expedition. That is something which the Act, by implication, recognises as essential, again bearing in mind the nature of what is involved, namely, the status of persons who are made bankrupt. The unfortunate history of this matter is an illustration of what may happen if matters are left open-ended.

2. The order here was made by consent and has not been taken out. The Court has jurisdiction under s. 37 of the Act to rescind, vary or discharge it or to suspend its operation. Counsel for the Official Trustee submitted that I should vary the order to give effect to the parties' intention which was to hold the position until the application under subsec. 149(12) could be heard. There is no formal application made to vary the order nor any formulation of the variation which is sought. The application is opposed by counsel for the bankrupt and I do not think that I should give effect to it. An order under subsec. 149(8) of the Act must be made before the expiration of five years from the date of bankruptcy. To vary the order as suggested by counsel for the Official Trustee would have the effect of making a new order, something which the Act does not authorise the Court to do. That consideration apart, it is now well over eight years since the bankruptcy. For whatever reason, little appears to have been done by the Official Trustee to prosecute the application made pursuant to subsec. 149(12). There is not to be discerned in the conduct of the application any sign of enthusiasm or of the degree of diligence which is called for in a matter of this kind. Accordingly, I think the order which I should make is that the order in question should be rescinded.

3. My conclusion in that respect makes it unnecessary to reach a conclusion on the other application which is before me, namely, whether the Official Trustee's application under subsec. 149(12) should be dismissed for want of prosecution. Notwithstanding submissions to the contrary, I am of opinion that the Court has power to entertain such an application. It does not have the express powers conferred upon it by its rules which do not apply to bankruptcy matters but it has, in my opinion, an ample implied power to control its own proceedings and to do justice in relation to the parties before it by dismissing a matter for want of prosecution if that is what seems appropriate.

4. Nevertheless, had I taken a different view about the validity of the order which was made, I would not have acceded to the application. It seems to me that the bare statement of the steps that have been taken or not taken in the proceedings during the last three years does not tell one enough about the conduct of each of the parties. Neither has seemed very willing to bring the matter to a head. The application to have the matter dismissed for want of prosecution was itself filed over 18 months ago. I would, had the occasion arisen, therefore, have dismissed the application but given directions putting the parties on terms to prepare for a hearing of the application under subsec. 149(12). If those steps had not been taken within the times specified, I would then, if the Official Trustee were in default, have given close consideration to doing what the bankrupt has asked me to do.

5. In the circumstances I do not think it appropriate now to make orders. Rather, I propose to stand the matter over for a short time to enable the parties and their legal representatives to consider what I have said. When the matter is next in the list counsel for the bankrupt are to bring in short minutes of order to give effect to my decision. I shall then also deal with the question of costs. Because of the fact that counsel are in Adelaide and I am in Sydney, the hearing will be conducted by telephone. Counsel for the bankrupt should despatch a draft of the suggested short minutes by facsimile transfer to my Associate a day or so before the hearing is to take place.

6. On 4 September last I published reasons for judgment in this matter, but did not make any orders because I wished to hear counsel on the forms of order that it was appropriate to make. I have heard counsel in telephone hearings that have taken place on 4 October and today.

7. There were two applications which were to be dealt with. In the order in which I dealt with them, there was first an application filed on 2 August 1989 seeking that an order made on 28 April 1986 by Forster J. be set aside. The second application was one filed on 25 February 1988. It sought an order that an application by the Official Trustee filed on 16 April 1986 for an order pursuant to subsec. 149(12) of the Bankruptcy Act 1966 be struck out for want of prosecution. In the view I took of the matter it became unnecessary to decide the second application.

8. For the reasons which I published I reached the conclusion that the court had no jurisdiction to make the order which it did on 28 April 1986 even though the order was made by consent. I did not then make orders because I thought I should hear the parties on the question of the form of them, particularly bearing in mind what might be the position in relation to acts done or liabilities incurred or steps taken in relation to the bankruptcy after the period of five years from the date of the sequestration order had elapsed when, on the view I took of the matter, the bankruptcy should have come to an end.

9. In the course of the argument that has ensued I have been referred to a number of authorities. These have persuaded me that the position will be appropriately dealt with if I simply say that the order in question is rescinded. It is not necessary to deal at length with the considerations which are involved. Central to the resolution of the problem is what was said by Wilson and Dawson JJ. in Jackson v. Sterling Industries Limited (1987) 162 CLR 612 at pp 619-620. In particular their Honours said (p 620):-
   

"The orders made by the Federal Court are effective until set aside, discharged or stayed. The fact that they were erroneously made is something to be taken into account in any proceedings consequent upon their having been disobeyed. The principle remains, however, that the order of a competent court must be obeyed whilst it remains in force."

What their Honours said seems to me to be as apt for this case as it was for the case of Jackson v. Sterling Industries Limited.

1. In Isaacs v. Robertson (1985) AC 97 the Privy Council said (p 102):-
   

"Their Lordships would, however, take this opportunity to point out that in relation to orders of a court of unlimited jurisdiction it is misleading to seek to draw distinctions between orders that are 'void' in the sense that they can be ignored with impunity by those persons to whom they are addressed, and orders that are 'voidable' and may be enforced unless and until they are set aside. Dicta that refer to the possibility of there being such a distinction between orders to which the descriptions 'void' and 'voidable' respectively have been applied can be found in the opinions given by the Judicial Committee of the Privy Council in the appeals Marsh v. Marsh (1945) AC 271, 284 and MacFoy v. United Africa Co. Ltd. (1962) AC 152, 160; but in neither of those appeals nor in any other case to which counsel has been able to refer their Lordships has any order of a court of unlimited jurisdiction been held to fall into a category of court orders that can simply be ignored because they are void ipso facto without there being any need for proceedings to have them set aside. The cases that are referred to in these dicta do not support the proposition that there is any category of orders of a court of unlimited jurisdiction of this kind; what they do support is the quite different proposition that there is a category of orders of such a court which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irregularity and give to the judge a discretion as to the order he will make. The judges in the cases that have drawn the distinction between the two types of orders have cautiously refrained from seeking to lay down a comprehensive definition of defects that bring an order into the category that attracts ex debito justitiae the right to have it set aside, save that specifically it includes orders that have been obtained in breach of rules of natural justice. The contrasting legal concepts of voidness and voidability form part of the English law of contract. They are inapplicable to orders made by a court of unlimited jursidiction in the course of contentious litigation. Such an order is either irregular or regular. If it is irregular it can be set aside by the court that made it upon application to that court; if it is regular it can only be set aside by an appellate court upon appeal if there is one to which an appeal lies."

The order here which has to be dealt with is, of course, in the category of an order which is irregular. That is the conclusion which I reached in the reasons I have already published.

1. I should also refer to the decision of the High Court in Cameron v. Cole (1944) 68 CLR 571, which is to the same effect.

2. In those circumstances, I think the appropriate order to make in relation to the application filed on 2 August 1989 is that the order in question be rescinded. I say "rescinded" rather than "set aside" simply because "rescind" is the word which is used in s. 37 of the Bankruptcy Act. That section confers express power on the Court to rescind orders and I would prefer to act pursuant to it than to act under the implied, if not the inherent, power of the Court. There may be little difference in consequence or effect and I certainly do not think, as was suggested at one stage during the course of the argument, that there can be any difference in effect between rescinding an order and setting an order aside.

3. It remains to say something about the question of costs. Counsel for the bankrupt referred me to Re Campbell (1987) 13 FCR 326 and to the principles there discussed. He sought a limited order as to costs. Having reflected on the matter, I think there should be no order as to costs. I am minded to take that view principally because the order which I will rescind by the order I make was made by consent so that the problem was contributed to by the bankrupt himself.

4. As to the other application, it is unnecessary to make any order in respect of it and I propose to say that I make no order on it. I indicated that I would not have acceded to that application if it had been relevant to decide it and I think again the appropriate order is that there be no order as to costs. One cannot tell from the facts and circumstances to which reference is made in the reasons already published the degree of fault attributable to each side for the sorry state of affairs which led to such a protracted drawing out of an application which should have been dealt with with a degree of expedition.

5. In the circumstances then, the orders which I make are as follows. In relation to the application filed on 2 August 1989 I rescind the order made by Forster J. on 28 April 1986. I make no order as to the costs of that application. In relation to the application filed on 25 February 1988 I make no order and I make no order as to the costs of it. Is there any other matter?

6. MR. MANSFIELD: Your Honour, I wonder if I might raise with you the application under s. 149(12) generally which is technically extant, although there can be no order now after the five year period, but I wonder if your Honour might formally order with respect to that that there be no order on that application, including no order as to costs.

7. HIS HONOUR: What do you say to that, Mr. Wilkinson?

8. MR. WILKINSON: I have no objection.

9. HIS HONOUR: I think I should do that to tidy up the record. The application was filed on 16 April 1986. I think in relation to that application I should say that I make no order and no order as to costs.