Timms & Ors v Commonwealth Bank of Australia & Anor

[2006] HCATrans 17

[2006] HCATrans 017

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S273 of 2005

B e t w e e n -

ANASTASIA TIMMS

First Applicant

BRIAN TIMMS

Second Applicant

TW HOLDINGS PTY LIMITED

Third Applicant

BDA INTERNATIONAL PTY LIMITED

Fourth Applicant

and

COMMONWEALTH BANK OF AUSTRALIA

First Respondent

LESLIE LUDOVIC ROSENFELD AND ALFRED KANT T/AS ROSENFELD KANT & CO

Second Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 FEBRUARY 2006, AT 10.44 AM

Copyright in the High Court of Australia

__________________

MR R.G. FORSTER, SC:   If it please the Court, I appear with my learned friend, MR N. MANOUSARIDIS, for the respondent.  (instructed by J.K. O’Sullivan)

GUMMOW J:   What is the position of the second respondent?

MR FORSTER:   I understand that no application is made in respect of the second respondent but perhaps the applicant ‑ ‑ ‑

GUMMOW J:   I think there is a note here that they offer no submissions.  Who is appearing for the applicants?

MR A. TIMMS:   Your Honour, the sons of the applicants are appearing on behalf of the applicants.  (instructed by the applicants)

GUMMOW J:   Yes, I think you need leave for that, Mr Timms.

MR TIMMS:   Yes, we do seek leave of the Court to appear on behalf of the applicants.

GUMMOW J:   Yes.  Is that opposed?

MR FORSTER:   No, your Honour.

KIRBY J:   You assure us that your parents are aware that you are making this application?

MR TIMMS:   Absolutely, your Honour, and I have here an authority from my parents.

GUMMOW J:   Are they in Court?

MR TIMMS:   They are indeed, right there.

GUMMOW J:   Very well.  Yes, Mr Timms.

MR TIMMS:   Your Honours, we say this case merits a grant of special leave for two major reasons.  The first is because it raises significant issues of principle that are of general public importance.  The second is because the errors of the courts below have been of sufficient importance to…..a significant injustice to the applicants.

We have three key points.  I will do your Honours the favour of not rehashing in great detail the submissions contained in our written case but what I will do is run through each of those key points and point to the critical errors made by the courts below that give rise to each of those points, also showing along the way how each of them would be arguable in this Court.  As I go through each of those points I will point - or attempt to make supplementary submissions with references to relevant passages from the decision this Court handed down yesterday in the case of CSR vDella Maddalena. 

The first point concerns the intersection of Abalos and Rhesa Shipping.  The critical error can be found at paragraph 45 of Justice Stein’s judgment in the court below.  That is at page 194 of the application book where his Honour holds that Abalos unquestionably applies to the determination of the appeal, and he further finds that Justice Barrett’s finding “was well and truly based on credit.”  In other words:

It rested wholly on the credibility of the appellants . . . and on the credibility –

of the relevant Bank witness.  Our submission as contained within our written case is that an appellant only has to satisfy the strictures of the test from Abalos where what he or she seeks to overturn is a finding of fact.  In this case we say a finding such as the trial judge made at first instance was an onus‑based finding made pursuant to the principle in Rhesa Shipping.  It involves an explicit refusal to make any findings of fact.  The trial judge could not make up his mind one way or the other with regard to the facts agreed by the parties.

KIRBY J:   But really you needed the facts, did you not?  You needed to establish that assurances were given, that the Bank thought it was a viable and profitable enterprise?

MR TIMMS:   That is correct, your Honour.

KIRBY J:   And this so‑called Rhesa principle is just an ordinary statement that if you do not prove something you have to prove, if you do not discharge that obligation you do not win on that point.  There is nothing new in that.

MR TIMMS:   That may be the case, your Honour, but what we submit is new is the matter in which an intermediate appellate court disposes of an onus‑based finding made pursuant to Rhesa Shipping.  No intermediate appellate court – no authority exists to guide an intermediate appellate court in those circumstances.  We say that a true reading of Abalos would indicate that only findings of fact have to overcome the very high threshold, very high bar that it replaces to intermediate appellate review.  In this case another test should be substituted in its favour and we say that this is important ‑ ‑ ‑

KIRBY J:   We have been down this track so many times in SRA and in Fox v Percy and now in Della Maddalena.  I do not think we would want to revisit that just for a particular fact case.

MR TIMMS:   Your Honour, I do understand that.

GUMMOW J:   Do you have some legal training?

MR TIMMS:   I have done a law degree, your Honour.

GUMMOW J:   I thought so.

KIRBY J:   You are doing a good job, I must say.

MR TIMMS:   What we say is that the case should also be revisited in light of the decision in CSR v Della Maddalena.

KIRBY J:   All CSR said was to stick with Fox v Percy and do not revive all this talk about subtle influences of demeanour.

MR TIMMS:   That is right, your Honour.

KIRBY J:   And to the extent that Abalos and Jones v Hyde and all of those cases went on about subtle influences of demeanour, you just excise that little part, but the fact is judges of trial do have great advantages over appellate judges because they actually see the whole of the evidence, they see the witnesses, get the feel of the case.  All we get is the snips and snaps of transcript.

MR TIMMS:   I accept that, your Honour.  The supplementary submission I would like to make is that this case does not involve - or should not be properly characterised as a case where the first instance findings were based on credibility, and this is a submission we made ‑ ‑ ‑

GUMMOW J:   How can you say that?

MR TIMMS:   Your Honour, I point you to page 192 of the appeal book.  Can I just say as a preliminary remark, I accept that that is indeed what the Court of Appeal held.  They held that it was a properly characterised credibility‑based finding.  But if I can just take you to ‑ ‑ ‑

GUMMOW J:   “Credibility” is a bit of a slippery word.

MR TIMMS:   That is right, your Honour.

GUMMOW J:   What the primary judge in the view of the Court of Appeal did was to say that there is a reconstruction of a recollection, which is conscious or unconscious, but a human thing that happens, not necessarily mendacious.

MR TIMMS:   Yes, that is correct, your Honour, but if I could just take you to page 192 ‑ ‑ ‑

KIRBY J:   But a big fight in this case was about what the bankers said and what was understood by what they said and on that one thing was said by your father, I think, and the other thing was said by the banker, so there is a sort of classic matter to be resolved.

MR TIMMS:   The exceptionality of this case inheres in the fact that it was not simply a case of being too diametrically opposed to accounts of what actually happened.  There was considerable overlap between what the applicants allege was said at the critical meeting and what one of the key witnesses for the Bank, Mr Walker, conceded both at the trial and at the retrial was said, so there was overlap between the critical evidence given both by the applicants and by the relevant witness for the Bank.  But the other important point is – and this is a key point for our application - is to examine the precise manner in which the trial judge disposed of the case with reference to the principle in Rhesa and to examine the manner in which ‑ ‑ ‑

GUMMOW J:   As Justice Kirby has reminded you, I do not think Rhesa Shipping was a blinding landmark in the law.

MR TIMMS:   Understood, your Honour.  What I would say is that both the Court of Appeal and the first instance judge have failed to have regard to the three factors identified in Moukhayber as being critical to the application of the principle in Rhesa and there is no definitive High Court determination on that matter on the precise manner in which – the precise steps a trial judge or primary judge should take in applying the principle from Rhesa.

Our submission is that his Honour should have taken account of these three critical factors identified in Moukhayber, and so we say that this case falls into that very narrow category of exceptions to the rule in Abalos which you yourselves, your Honours, have identified, namely that category of exceptions identified in Fox v Percy, Pledge v RTA, State Rail Authority v Earthline and now reaffirmed in Della Maddalena.  In other words, we take issue with the Court of Appeal’s…..application of the principle from Abalos.  We say that Abalos has to be read through a Fox v Percy frame and that the Court of Appeal effectively failed to do that. 

Needless to say, this represented an abdication of the Court of Appeal’s statutory duty under section 75A of the Supreme Court Act.  We say that our case is similar to Earthline in that there exists undisputed documentary evidence that was so convincing that no reliance on the demeanour or credibility or otherwise of the witness could rebut it.

KIRBY J:   It was not all that convincing.  You refer in your written submissions to three documents.  The only one that comes really from the Bank’s source is the first document.  The other two are your assertions of what ‑ ‑ ‑

MR TIMMS:   Two come from the Bank, your Honour, one comes from us.  On top of that we have the trial judge’s own finding that there was no reason why the Bank officers in question would not have thought that the business was basically sound, so on the basis of inherent probability it would speak strongly in favour of the Bank officers in question having made either the alleged representations at the 26 November 1991 meeting.

So what we say is had the Court of Appeal had regard to the test under Moukhayber, had the primary judge properly applied the test in Rhesa by having regard to these three factors in Moukhayber – and I will not go through them because they are in our written case – the case would have been decided in the applicants’ favour independently of any determination with respect to the relevant ability or credibility of witnesses in recalling the contents of the relevant meeting.

So we have two critical errors in that regard.  We have the Court of Appeal’s error in not addressing the argument at all and simply deciding that because it was a credibility‑based finding and because Abalos applied, that particular section of the appeal should be left alone.  We have Justice Barrett’s crucial error at paragraph 120, page 80 of the application book where he says – he actually says:

I must be guided by . . . Moukhayber –

and then in the same breath says that:

There is only one contemporary document, being Mr Hart’s diary note.

That simply is not the case, and the Court of Appeal by its ‑ ‑ ‑

KIRBY J:   But the other document does not really have a great power.  There is no doubt that the judge was aware of the other two documents so that – I realise the forensic point you make but the judge was aware of the three documents, he referred to them elsewhere and the first, the banker’s own document, is an important document.  There is no doubt about that, but that did not convince the judge to come down on your side on those facts.

MR TIMMS:   That may be the case, your Honour, but in that ‑ ‑ ‑

KIRBY J:   The basic problem for you is we cannot be a court of trial.  We are a court of principle, and we have already laid down the principles in SRA and in Fox v Percy and in Della Maddalena.  What is the important point of principle in this case is the approach of intermediate courts.

MR TIMMS:   Yes.  Your Honour, we say the important point of principle is to affirm the approach taken by Justice Heydon in Moukhayber and to affirm that that is the proper approach for courts of first instance.

KIRBY J:   But his Honour only really went back to Briginshaw, did he not?

MR TIMMS:   That is correct.

KIRBY J:   As Justice Gummow said, there is nothing new in this.  This is stuff you learn in the first year of law school.

MR TIMMS:   That is right.

KIRBY J:   Judges have to make decisions, the facts are often very disputed and sometimes confused, that it is often difficult to resolve them, that we have to be very careful about resolving them on the look of the witnesses but that sometimes that can be done and sometimes it is just that you are not sure and you do not resolve it.

MR TIMMS:   Yes, your Honour.  We would submit that these points are of significant public importance because until the High Court issues a definitive statement on the respective entitlements and responsibilities of both courts at first instance and courts of appeal in firstly making onus‑based findings pursuant to Rhesa and secondly reviewing such findings, uncertainty will remain over the proper approach to be taken.  I take your Honour’s point that these matters have been dealt with, but obviously they have not been dealt with with sufficient certainty to prevent errors such as the error of the court below from occurring.

So it is incumbent upon this Court to reiterate that principle and we also state as an aside that on the issue of justice alone this case merits a grant of special leave.  As I said earlier, a significant injustice has been done to the applicants by ‑ ‑ ‑

KIRBY J:   You had one trial, did you not, and then the decision was set aside?

MR TIMMS:   That is right, your Honour.

KIRBY J:   You then had a second trial?

MR TIMMS:   Yes.

KIRBY J:   The decision was adverse to you, a Court of Appeal of the State has decided against you.  There really has to be a limit to the times and chances you get to prove your case.

MR TIMMS:   I appreciate that, your Honour.

KIRBY J:   And coming to the High Court in what is essentially a fact case is a very big ask.

MR TIMMS:   There is a further issue and this is our third ‑ ‑ ‑

KIRBY J:   How many days did the trial go before Justice Barrett?

MR TIMMS:   Approximately 18 – probably about 15, that would be my guess.

KIRBY J:   Then we have all these big appeal books.  I mean, it really is not our function.  Our function is not to be an intermediate court, not to retry matters on appeal, it is to establish basic principles for the courts of the nation and that really is not what this case seems to involve.  I do understand its importance to your parents, I understand its importance to your family, but we have to keep our eye on our proper function.

MR TIMMS:   Yes, I appreciate that, your Honour, and I have attempted to point to the many issues of principle that this case raises, and there is one final one which I would like to draw attention to and that is the so‑called shadow ledger issue which we refer to in our written case.  This issue was put in the court below and I refer your Honours in that regard to paragraph 5 of our submissions in reply at page 253 of the application book.

KIRBY J:   That too is a very particular factual question, is it not?

MR TIMMS:   Your Honour, we say that the doctrine of election would be extended in a logical and incremental fashion by having this whole class of cases that this particular fact scenario represents extended to include it.  That is our submission.  We acknowledge that it is a small point but the important thing is that it is a real point and it involves a real question of law.  This issue is of public importance because it arises frequently and it affects a great number of people, potentially anyone who takes out a loan with a bank, so for that reason we submit that a grant of special leave on this point will afford the Court the opportunity to extend the doctrine of election to a whole new class of cases.  Those, your Honours, are our submissions.

GUMMOW J:   Yes, thank you, Mr Timms.  Yes, Mr Forster.

MR FORSTER:   If your Honours please.  May I deal first with the Abalos matter.  In our submission, the Court of Appeal’s decision, in particular at pages 193 to 195 of the application book, with respect, correctly sets out the law and the application of the law to the facts in the present case.  So far as the application of Abalos is concerned, as explained ‑ ‑ ‑

KIRBY J:   As I tried to point out in SRA, the law goes through periods in this, periods when it has great deference to appearance of witnesses and periods when it is sceptical about it, and there does not seem to be anything we can do to stop that, it is just generational.  At the moment the word is – the degree of scepticism about the appearance of witnesses.  Does that alter the Court of Appeal’s decision?  In other words, the notion that the trial judge had the advantage of seeing the banker is not to be as important as actually looking at the records and the documents and the logic of the facts.  Science has shown how unreliable it is to judge witnesses’ truth from their appearance.

MR FORSTER:   That is so.  However, what your Honour said in Maddalena and Fox v Percy still make it quite clear that there are great advantages or Abalos – if I may call them broadly the Abalos principles - apply in circumstances where a trial judge has an advantage in the sense of having observed the witnesses in court, their conduct and their demeanour, and this, in our submission, was a classic case where that was the case.

What his Honour the trial judge did and what the Court of Appeal approved was that at the crucial meeting on 26 November there were four people present.  The evidence which was central to this issue was whether or not Mr Walker made certain representations.  It will be recalled that at the first trial the applicants gave no evidence that any representations were made at that particular meeting.  At the first trial, in cross‑examination, Mr Walker gave evidence to suggest that in fact he make those representations.

KIRBY J:   But there is the letter, is there not, Mr Hart’s submission to the Western Zone, dated 11 November 1991, where he said:

We consider the venture to be viable with the ability to service commitments proposed substantiated.

That, it seems, is the best objective evidence that the applicants had.

MR FORSTER:   Your Honour, that of course – a number of things about that letter.  First of all, it is two weeks before the meeting, 11 November.  Secondly, of course, it is a letter going from the branch to their point of control, the zone.  It is an internal ‑ ‑ ‑

KIRBY J:   All the more reliable because it is not thought to be turning up in the High Court of Australia years later.

MR FORSTER:   Yes, and indeed, his Honour found – and there was no dispute – that the Bank officers in question, that is to say, Mr Hart and Mr Walker, did believe this particular business to be good and viable and profitable, notwithstanding what was known to another branch of the Bank.  So there is no doubt that on 26 November the Bank officers did believe it was profitable, viable and good, but there is a big distinction, and the Bank officers made it clear, between believing it, and they say, “I didn’t believe it, we would not have gone ahead with the transaction”, and saying it to proposed borrowers, and they were insistent – certainly Mr Hart insisted that that was never said and, apart from that passage in the cross‑examination, Mr Walker also insisted that he had never said that, and significantly the applicants did not say that that was said, that there was any representations made by Mr Walker.  It was on the ‑ ‑ ‑

KIRBY J:   You are referring to the first trial?

MR FORSTER:   At the first trial.  After the first trial, when Mr Walker gave certain evidence, suddenly the applicants filed fresh affidavits saying, in effect, “I remember Mr Walker made these representations”, and they were cross‑examined at great length in respect of their sudden recollection, something they did not recall two years earlier, and it was in relation to that change of evidence that his Honour the trial judge formed the view that it was effectively reconstruction rather than recollection.

So that his Honour in his analysis of the facts went into great detail and formed the view which, in our submission, he would have formed clearly based not on just documents but on what he saw in the witness box while the two applicants were cross‑examined at some length, certainly including on this particular topic.  So those two witnesses were the subject of analysis by the trial judge in relation to their demeanour and conduct.

So far as Mr Walker was concerned – he was the gentleman who gave evidence that he had made the representation – the trial judge went into some detail, extensive detail, analysing his evidence and formed the view which he could only have formed on watching him and observing him that Mr Walker did not really understand his role as a witness, and quite frankly he just could not rely on him.  As the Court of Appeal says at page 194, paragraph 46, those are matters which only a trial judge and no appellate judge could judge.

GUMMOW J:   There is also paragraph 49, I think.

MR FORSTER:   Yes, your Honour.  Those pages, paragraphs 44 and 49, in our submission, are unexceptionable.  The only other witness, Mr Hart, actually denied any such representation being made, but his Honour does not appear to have relied on Mr Hart perhaps because his Honour found that Mr Hart had made a misrepresentation to his own superiors in relation to whether the accounts had been checked or not, but in any event, his Honour simply ignored the corroborative effect of Mr Hart’s evidence and then makes his decision based on an analysis of what, in our submission, he sees and hears the witnesses deal with in the witness box. 

There is, in our submission, a clear distinction between this case and a case where there are other objective factors such as in Della Maddalena which an appellate court would consider throws some ‑ ‑ ‑

GUMMOW J:   What do you say about the Earthline submission?

MR FORSTER:   Your Honour, in our submission ‑ ‑ ‑

GUMMOW J:   Namely, that there are external documents, as it were.

MR FORSTER:   Your Honour, there are three external documents referred to.  That is one.  The second one is also an internal document and the third one is a letter written by the applicants two days later, and that in fact formed the basis of the so‑called November letter claim on which the applicants were unsuccessful before the trial judge ‑ ‑ ‑

KIRBY J:   I thought the third letter was the letter of 3 December 1991 to the Western Zone in which it said:

The companies of the Artrona Group in themselves are profitable and viable over a period of time.

That was a letter from Mr Hart.

MR FORSTER:   Yes, again, to his own internal control.

KIRBY J:   That does not really matter, does it, whether it was - it is an objective document at the time.  I think the documents in SRA were internal documents.

MR FORSTER:   Yes, but once again, your Honour, it falls in the same category as the first document, namely, it is one thing - and there is no doubt and we do not dispute that Mr Hart believed that this was a good business, and again, he put up the submission to his ‑ ‑ ‑

KIRBY J:   Of course, the applicants say that that gives credence to the fact that he would have said to them what he believed.

MR FORSTER:   Yes, and there is some force in that and that does ‑ ‑ ‑

KIRBY J:   It presents an issue for trial that has to be resolved by a trial judge with the advantages which the trial judge has, most especially knowing the sequence of the previous trial, knowing the facts that you have mentioned and knowing all the detail of the case which we can only see through a glass darkly, we can only gets bits and pieces.

MR FORSTER:   That is our submission, your Honour, yes, and that does lend some credence and that submission was put to the trial judge quite correctly.  The trial judge, however, having considered the witnesses and what he saw ‑ ‑ ‑

KIRBY J:   The trial judge did not really determine this case on the classic Abalos or Jones v Hyde basis, did he?  He did not say, “I looked at them closely, I studied their appearance in the witness box and I came to the conclusion I could believe Mr Hart and not believe the applicants”.  I mean, it was not as brutal as that.

MR FORSTER:   No, it was not, your Honour.

KIRBY J:   On the contrary, the trial judge was rather careful in saying, “Well, there is this dispute and I have to resolve it, and I’ll resolve it”, essentially, as I understood it, on the onus.  It was not proved.

MR FORSTER:   In a sense, it is to the credit of the trial judge that he did not try to cover himself by saying the usual things.

KIRBY J:   Yes, they have become less usual under the instruction of this Court.

MR FORSTER:   Yes.  So he in fact – but nevertheless, when one analyses what his Honour did, it clearly was a review of his observations.

GUMMOW J:   Yes, very well.  Is there anything else, Mr Forster?

MR FORSTER:   Your Honour, the only other submissions are briefly that there is no reason why a finding that the trial judge is unsatisfied on the evidence should not be dealt with in the same way so far as Abalos is concerned as a finding that X or Y happened.  So far as the ‑ ‑ ‑

KIRBY J:   The shadow ledger?

MR FORSTER:   Your Honour, one problem with it, one immediate problem, is that the matter was not in any sense developed in the Court of Appeal.  The trial judge made findings which your Honours will undoubtedly have seen.  They are contained at pages 141 to 155, and his Honour deals with it at some length distinguishing on the one hand the necessary accounting process of writing off interest on bad and doubtful debts ‑ ‑ ‑

KIRBY J:   Anyway, it is a very particular issue.  I do not think we would be giving special leave on that matter alone.

MR FORSTER:   No, your Honour.  Then so far as the Court of Appeal was concerned, the only dealing that the Court of Appeal was exposed to on that point was what is contained in the notice of appeal to the Court of Appeal, and that is at page 175 of the application book, and your Honours see that paragraphs 23 to 26 deal with that issue.  So far as the submissions to the Court of Appeal were concerned, the extent of the submissions to the Court of Appeal, your Honours, were at page 35 of the second volume and

your Honours see that the submissions merely reproduce the contents of the notice of appeal and took the matter no further.

Finally, so far as the oral argument in the Court of Appeal was concerned at page 214 of the first volume the Court of Appeal, through Justice Stein, noted in relation to this particular matter ‑ ‑ ‑

KIRBY J:   Yes, we have read that.

GUMMOW J:   We have read that.

MR FORSTER:   In our submission, it certainly would not be a matter on which this Court would grant special leave.  Those are our submissions, if the Court pleases.

GUMMOW J:   Yes, thank you, Mr Forster.  Yes, Mr Timms.

MR TIMMS:   Your Honours, I would simply like to clarify one matter raised by the respondent.  The respondent has claimed that at the first trial the applicants gave no evidence that the alleged representations were made at the 26 November 1991 meeting.  It is important to understand that the words “good, viable and profitable” have at all times appeared in the documents in favour of the applicants’ claim.

They appeared in the first statement of claim.  It is not, as the respondent has attempted to characterise it, some kind of miraculous reconstruction that occurred as a result of things that were said by the Bank’s witness at the 2001 trial.  The applicants have been steadfast in maintaining that those were the words used at the 26 November 1991 meeting and that the Bank had at all times represented to them that the business was good, viable and profitable.  So that is the one thing I would like to – the one misconception that the respondent has tried to thrust upon the Court which I would like to clear up.

My final submission is simply to say that the interests of justice in this particular case speak very strongly in favour of a grant of special leave.  It almost goes without saying that for the applicants the stakes are very high.  I do not speak for the respondent but certainly for the applicants the stakes are very high.  We are dealing with the family home, it is the sole family asset, and in those circumstances it is our submission that this Court should grant special leave.  Thank you, your Honours.

GUMMOW J:   Yes, thank you.

The case for the applicants for special leave was well represented, with the authority of the applicants, by one of their sons who holds a law degree.  We have read the written submissions of the parties and we understand the importance of the case to them.  However, we are not convinced that the New South Wales Court of Appeal erred in the ultimate disposition of the appeal brought to it, nor are we convinced that the reasoning in an explanation of principle in Fox v Percy (2003) 214 CLR 118 or in a decision delivered yesterday by this Court in CSR Limited v Della Maddalena [2006] HCA 1 requires a different outcome in this case.

The matters of principle as to the approach of intermediate courts of appeal to the resolution of disputes as to facts will not have to be restated by this Court in the circumstances of this case.  Despite the arguments of the applicants, we are not convinced that error has been demonstrated on the part of the New South Wales Court of Appeal.  Accordingly, special leave is refused with costs.

MR TIMMS:   In that case we would ask to be given 28 days to vacate our house.

GUMMOW J:   Let me ask Mr Forster about that.

MR FORSTER:   Your Honour, yes, I have instructions to indicate that that will be observed.

GUMMOW J:   Yes, well, you have that assurance.

MR TIMMS:   Thank you, your Honour.

GUMMOW J:   We will adjourn to reconstitute.

AT 11.21 AM THE MATTER WAS CONCLUDED