Practice and Procedure - pleadings - motion by applicant to amend its further re-amended application for an order of review in order to overcome respondent's successful objection to competency in circumstances where the applicant would have succeeded "on the merits" - if amendment allowed whether respondent should be allowed to adduce additional evidence and make additional submissions "on the merits".

Mr R A Conti QC with Dr J Griffiths of counsel instructed by Mallesons Stephen Jaques appeared for the applicant.

Mr T A Gray QC with Mr R J Whitington and Ms A Moroney of counsel instructed by Australian Securities Commission appeared for the respondent.

1. Orders that the proceedings stand over to Wednesday 26 April 1995

2. Directs that at that time the parties bring in an agreed form of

short minutes of orders, and if agreement shall not have been

reached, the forms of short minutes of orders for which they

respectively contend.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

LINDGREN J I published Reasons for Judgment on Monday 16 January 1995 (reported at (1995) 13 ACLC 161) and stood over the proceedings to Monday 23 January 1995 for the making of orders. In the event, by consent, the proceedings were further stood over to 27 January 1995. On 19 January, the applicant filed a notice of motion returnable on 27 January seeking leave to amend in terms of a Second Further Re-Amended Application for an Order of Review annexed to the notice of motion. The motion was supported by an affidavit of Kevin Francis Lloyd sworn 18 January 1995.

2. On 27 January and 17 February I heard submissions on that motion and on the question of the appropriate orders to be made in the light of my earlier Reasons for Judgment. Pursuant to directions made on 17 February, written submissions were subsequently made, the last of these having been received on 27 February.

3. These present Reasons for Judgment assume that the earlier ones have been read. The decision of which the applicant ("DTT") sought review was formulated in DTT's Further Re-Amended Application (for ease of reference, I will call it "the existing Application") as follows:

"the decision of the Respondent made on or about 29 March

1994 ('the Decision') and announced by Press Release dated

21 April 1994 that it was in the public interest to cause

proceedings to be begun and carried on by The Adelaide

Steamship Company Limited ('the Company') against Deloitte

Haskins and Sells ('DHS') and Deloittes Ross Tohmatsu ('DRT')

in the Federal Court, South Australian Registry (Matter No:

SG 3036 of 1994) ('the Proceedings') pursuant to section 50

of the Australian Securities Commission Act 1989 ('the

Act')."

4. In DTT's existing Application and in my earlier reasons, this was referred to as "the Decision". I will again call it this and also, for convenience, refer to it as "the public interest decision". As in my earlier reasons, I adopt the abbreviated forms of reference, which appear in DTT's formulation of the Decision quoted above.

5. In its existing Application, DTT did not attack the ASC's decision also made on or about 29 March 1994 actually to cause the Proceedings to be begun and carried on by the Company pursuant to s 50 of the Act. I will refer to the latter as "the decision to litigate".

(a) in my view, the public interest decision was not a "decision

under an enactment" for the purposes of s 5 of the

Administrations Decisions (Judicial Review) Act, 1977 (Cth)

("the AD(JR) Act"); and

(b) if I had been of the view that it was, or if DTT had sought an

order of review in respect of the decision to litigate, I would

have granted the relief sought by DTT in the existing

Application.

7. The relief sought in the existing Application comprises a declaration that the public interest decision was invalid and contrary to law, an order setting it aside or quashing it, and an order restraining the ASC from pursuing or further conducting the Proceedings.

8. I found that DTT had established ground 1 (a) (iii) of the existing Application, namely that the ASC had failed to take into account the following relevant consideration:

"The policy of the general law that it is a matter for the

directors of a wronged company to determine whether

proceedings shall be commenced in its name for the

enforcement of its rights, and whether, consistently with

the policy underlying and reasons for the exception allowed

for in the section (s 50 of the Australian Securities Act

1989 (Cth)), it was in the public interest for proceedings

to be begun and carried on in the name of Adelaide Steamship

Company Limited" ((1995) 13 ACLC 161 at 177).

9. I refer to this consideration, as I did in my earlier reasons, as "the Foss v Harbottle consideration".

10. By their proposed amended Application, while continuing to seek an order of review of the Decision, DTT would seek in the alternative an order of review of it and of the decision to litigate. Apart from making amendments mutatis mutandis, DTT does not seek to amend the existing Application, and in particular, does not seek to amend the statement of grounds of review or the relief sought.

11. If DTT's application for leave to amend were to be granted without more, it would follow that the substantive relief sought by it would also be granted, and so it would have succeeded totally (subject to costs) notwithstanding that it has failed on the ASC's objection to competency. On the other hand, if DTT's application for leave to amend were to be refused without more, the Proceedings would continue and there would be a hearing of an estimated six months' duration at substantial cost, notwithstanding the fact that, in conformity with my earlier reasons, I would have held that the ASC's decision to litigate was flawed by its failure to take into account a relevant consideration. Accordingly, DTT's application for leave to amend assumes great significance.

SUMMARY OF THE PARTIES' SUBMISSIONS ON DTT'S APPLICATION FOR LEAVE TO AMEND:

12. In summary, accepting for present purposes that the Decision is outside s 5 of the AD(JR) Act, DTT submits that it should be permitted to amend for the purpose of overcoming a "technical defect" and taking the benefit of my conclusion "on the merits" in its favour. DTT points out that precisely the same grounds of review, evidence and submissions are relevant to the decision to litigate as were relevant to the public interest decision, so that it cannot reasonably be said that the case would have taken a different course if DTT had sought to impugn the decision to litigate.

13. For its part, the ASC submits that the amendment should not be allowed, and that in conformity with my earlier upholding of its objection to competency, the existing Application should be dismissed with costs. However, it proffered an undertaking not to raise any objection based on untimeliness if DTT should file a fresh application challenging the decision to litigate.

14. The ASC submitted that it would have conducted its case differently if the hearing had taken place on the footing of the proposed amended Application. It elaborated upon this submission by saying that it would have filed and read affidavit evidence and made additional submissions which would have overcome the Foss v Harbottle point. According to the submission, the evidence would have shown that the Company's board was not truly independent of DTT after all, and the additional submissions would have caused me to take a different view of s 50 by reference to certain additional extrinsic materials which were not before me on the earlier hearing.

15. I directed the ASC to serve copies of affidavit material and a copy of additional submissions which it wished me to take into account on the application for leave to amend, as representing the additional affidavit material and additional submissions which, it says, would have been read and made if the hearing before me had proceeded on the basis of DTT's proposed amended Application.

16. The ASC served a draft affidavit of Timothy Patrick Howes, then Acting Executive Director, Enforcement Division of the ASC in South Australia dealing with the discussion which had taken place between members of the ASC on 29 March 1994 about the reluctance of the Company's board to issue proceedings. The affidavit evidence was that Mr Howes was asked by members of ASC in attendance if he was aware of any reason why the Company's board did not support the commencement of proceedings to which he replied that at least one current director had been a director of David Jones Limited, an associate of the Company at the relevant time, and that David Jones Limited might be joined by the respondents to the Proceedings because it had received dividends in the 1990 year. The point made was, of course, that the particular director was possibly in a position in which there was a conflict of duties owed to companies with competing interests.

17. Mr Howes' draft affidavit said that the particular director had been the principal spokesperson for the Company's board in communications with the ASC officers prior to the meeting of the ASC on 29 March and had raised objection to the issue of the proposed Proceedings by the ASC in the Company's name on the grounds of commercial inconvenience to the Company and potential problems in the current directors' obtaining indemnity insurance in the future.

18. Mr Howes' affidavit would say that he was aware that another director on the current board of the Company was formerly a partner of DHS. Finally, Mr Howes would depose that there was extensive debate by the members of the ASC as to the extent to which the opinion of the Company's current board should be taken into account, and that someone had asked, "Why had the Company's new board of directors, its bankers or lawyers not identified and pursued the cause of action we were advocating?" - to which Mr Howes had replied that only the ASC had the necessary powers and in particular the right to inspect the working papers of the auditors. He had told those present that only by means of the ASC's powers of compulsion was it possible to identify any cause of action which existed, that no other party would have been in a position to identify such a cause of action, and that given the Company's precarious financial state, the current directors were unlikely to devote resources to an investigation for reasons of public interest. Finally, he had said that it would "be impossible to ascertain that there was not any significant business relationship between the current management of the Company and those persons who were identified as likely respondents to the action".

19. The submissions which the ASC says it would have put if the hearing had taken place on the footing of the proposed amended Application rather than the existing Application, responded in detail to the various grounds of the application for an order of review. In particular, they dealt with the genesis of s 50 in some detail and annexed numerous documents showing the derivation of s 50. The purpose was to support a submission that the distinction which the section draws between a non-corporate and a corporate person in whose name the ASC might cause proceedings to be begun and carried on is not explained by the notion of "wrongdoer control" as stated in my earlier reasons.

20. It suffices to say that, contrary to DTT's submission, evidence and submissions of the kind described might have made a difference to the result. But I have not reached a conclusion as to whether they would, even if unchallenged, have done so.

Why did DTT, in its existing Application, not seek review of the decision to litigate?

The course of the litigation down to the hearing of the substantive application on 27 and 28 October 1994

21. It is necessary to consider with care the course of the litigation. DTT originally (by its application filed on 19 May 1994) sought review of both the Decision and the decision to litigate. The ASC filed a notice of objection to competency in respect only of the Decision. This should have made it clear to DTT that the ASC considered that the decision to litigate was, and that the public interest decision was not, a reviewable decision under the AD(JR) Act. DTT, through its solicitors Mallesons Stephen Jaques ("MSJ"), proposed a direction that the ASC's objection to competency be heard first. The ASC's response dated 9 June 1994, on which DTT relies, was, omitting formal parts, as follows:

"Perhaps the notice of objection to competency need not be

determined separately. The ASC's concern in relation to the

competency is that we say there is only one decision, not

two. All grounds are expressed to relate to both

'decisions' as characterised by you and whether or not there

is a preliminary determination would not seem to make any

difference to preparation of argument on the application.

To list the matter separately might be just another

unnecessary day in court."

22. This letter was confirmation of the ASC's position that the only reviewable decision was the decision to litigate. But, as DTT submits, the letter is an obstacle to any contention by the ASC that different grounds, evidence or submissions were relevant according to whether DTT attacked the Decision or the decision to litigate or both.

23. MSJ agreed to the ASC's proposal that there not be a separate hearing of the objection to competency first.

24. On 15 June 1994, the day before the first directions hearing in the matter, MSJ advised the ASC that DTT intended to serve an amended application. In considering what transpired at that first directions hearing (before Burchett J), it is important that one bear in mind that it has never been in doubt that DTT's aim was to bring down the Proceedings. This is common ground and any other proposition would be nonsense. However, following that directions hearing, the parties formed radically different views of the appropriate way in which that was to be achieved. Because of the importance of what occurred, I will set out the relevant passage from the transcript. Dr Griffiths appeared for DTT and Ms Moroney appeared for the ASC. Dr Griffiths intimated that DTT wished to amend the application by adding s 39B of the Judiciary Act 1903 (Cth) as an additional basis of jurisdiction. The following exchanges occurred:

"Mr Griffiths: ... a notice of objection to competency has been

filed on behalf of the respondent in respect of

one of the two decisions that are being sought

to be reviewed in the current application. So

we would be seeking to ...

His Honour: When you say two decisions, I have been told

that this is a challenge to the decision to sue

in this particular form of action. What other

decision is under challenge?

Mr Griffiths: Has your Honour got a copy of the application?

His Honour: Well, I am not looking at it at the moment. If

you could just tell me.

Mr Griffiths: The first decision which is challenged in the

existing application is the decision of the

first respondent to cause proceedings to be

begun in the name of the company and the second

decision which is sought to be challenged is the

decision that it was in the public interest to

cause the proceedings to be begun.

His Honour: But is it not one decision?

Mr Griffiths: Well, I think that may be the basis ...

Ms Moroney: That is our submission, your Honour.

His Honour: How can it possibly be two? It might be a

composite decision but the basis on which you

would begin proceedings is you think it in the

public interest to do so. I do not see how you

divide them out, frankly." (transcript, 6)

25. To my mind, it is, with respect, clear that Burchett J was expressing the view that the only operative decision was the decision to litigate, and that the public interest decision, whether or not appropriately referred to as a "decision", provided merely "the basis" for the decision to litigate.

26. Mr R A Conti QC, who, with Dr J Griffiths of counsel, appeared before me on the hearing of the substantive application and of the motion for leave to amend, has said that the view was formed on DTT's side, on the basis of an understanding of his Honour's remarks, that only the public interest decision should be attacked and that if that attack succeeded, the Proceedings could not continue. This view was partly correct. A successful attack on the public interest decision would inevitably constitute a successful attack on the decision to litigate provided an order of review was sought of the decision to litigate.

27. Consistently with the view which it had formed, on 22 June 1994 DTT served an amended application which omitted reference to the decision to litigate, and attacked only the public interest decision. On 23 June 1994, MSJ asked the ASC to advise whether, in the light of this, its notice of objection to competency would be withdrawn. The writer of the letter seems to have assumed that the only problem which had existed was that the original application had nominated two decisions rather than one, and to have overlooked the fact that the existing notice of objection to competency related to the public interest decision. The ASC replied on 28 June advising as follows:

"Given the amended application, the form of the Notice of

Objection to Competency filed on 3 June is no longer

relevant. The objection however remains.

Accordingly a fresh Notice of Objection to Competency is

today being filed so that there is no confusion."

28. The problem referred to was that the ASC's existing notice of objection to competency distinguished in its terms between the two decisions which were referred to in the original application. Relevantly, the new notice of objection to competency was only formally different and was in respect of what was now the one and only decision attacked by DTT in the proceedings, namely the public interest decision.

29. The present proceedings were before me on 12 October 1994 in connection with an earlier application by DTT to amend (see [1994] FCA 1414; (1994) 15 ACSR 168). In the course of the hearing, Mr T A Gray QC, who, with Mr R J Whitington of counsel, appeared for the ASC (Mr Gray, Mr Whitington and Ms A Moroney of counsel appeared on the hearing of the substantive application and also on the hearing of DTT's motion for leave to amend), referred to the issue raised by his client's notice of objection to competency. He said,

" ... the relevant decision, your Honour, is not that there

is a public interest in proceeding, the relevant decision is

whether or not proceedings are to be begun and the threshold

to be achieved or the trigger that allows that discretion to

be exercised is a state of mind in the Commission, a matter

of judgment.

The Commission has to make a judgment as to whether in its

view it appears to be in the public interest for a person to

begin or to carry on a proceeding. If it forms that view or

forms that judgment about that appearance - and that is all,

just an appearance - then it has a discretionary exercise.

Now, your Honour, my learned friends have characterised the

decision that they attack in different terms and we have a

notice of objection as to competency. They want to have

your Honour (treat it) as though the decision is that it is

in the public interest to carry on.

So there will be a debate in two weeks' time (the

application was fixed for hearing before me on 27 and 28

October) about that but it is very relevant for the present

purposes, your Honour, to understand that it is an

appearance as to public interest that triggers a discretion.

..." (transcript, 24)

30. The thrust of what Mr Gray was putting was that the public interest "appearance" was not a "decision" at all, rather than that it was a decision which was superseded by the decision to litigate. This may have caused those representing DTT to think that the contest on 27 and 28 October was to be only whether the public interest appearance was a decision at all.

31. The parties' submissions on the hearing of the substantive application on 27 and 28 October 1994.

32. In connection with the application for leave to amend, both parties have relied upon various parts of the transcript of the hearing of the substantive application on 27 and 28 October 1994.

33. On 27 October 1994 both parties came armed with written submissions. That of DTT comprised 55 pages and dealt with both the ASC's objection to competency (7 pages) and the various grounds of its substantive application (48 pages). The ASC presented two written submissions, one on its notice of objection to competency (7 pages) and one on DTT's substantive application (11 pages).

34. The length and content of the respective written submissions is illuminating. The thrust of DTT's submission on the issue of competency was that the Decision was a "decision" and not just an "appearance" impinging on the ASC from outside. The bulk of DTT's submissions addressed, one by one, the several grounds of review specified in its existing Application.

35. On the objection to competency, the ASC submitted that the public interest appearance was no decision at all but was a state of mind required as the basis for the taking of the decision to litigate. According to the submission, DTT was not a person "aggrieved" by that state of mind of the ASC. The precise point that even if the public interest decision was a "decision", it became a "spent force" upon the taking of the decision to litigate (on which I upheld the objection to competency) was not put in that form. In the alternative to its submission just referred to, the ASC addressed briefly the decision to litigate. It submitted that the authorities established that a decision to litigate was not a decision "under an enactment" and that the ASC's decision to litigate in the Company's name and right was covered by those authorities. I rejected that submission.

36. In response to the ASC's submission on the objection to competency, DTT submitted that the Decision was a decision as distinct from "some sort of Damascus road illumination that occurred to the Commission" (transcript 45, lines 5-6; see The Acts of the Apostles, ch 9, v. 3), and that the steps which followed constituted merely an implementation of it. DTT did not clearly face the ASC's submission that the only reviewable decision involved was the decision to litigate, except by successfully responding to the ASC's submission that even the decision to litigate was covered by the line of authority referred to earlier.

37. DTT invited me to conclude, on the basis of passages in the transcript to which it refers, that it should not be treated as having "abandoned" an attack on the decision to litigate. It says that I should conclude that it was attacking the decision to litigate "through" its attack on the public interest decision. It pointed to para 1.4 of its written submission which contained the following:

"Thus whilst the 'ultimate decision' the subject of

challenge is the decision to cause the proceedings to be

begun and carried on, the scope of the challenge encompasses

the 'antecedent conclusion or finding' that it was in the

public interest to take the course sought to be reviewed."

38. Moreover, as I said earlier, DTT successfully met the ASC's alternative submission that even the decision to litigate itself was not reviewable.

39. Both parties have referred me to numerous passages in the transcript of the argument on 27 and 28 October. DTT's objective was to show (a) that in spite of the way in which the Decision was formulated in the existing Application, it had intended to attack the decision to litigate; and (b) that the ASC had addressed submissions to the issue of the reviewability of the decision to litigate. The ASC's objective was to show that it was made abundantly clear to DTT throughout that the ASC was still contending (a) that only the decision to litigate was reviewable; and (b) that what DTT was targeting was not a reviewable decision. I do not think it necessary to refer to all of these passages: some support can be found in the transcript for each of the two competing positions.

40. DTT submitted that to allow the amendment would not cause prejudice to the ASC and that to refuse it would cause prejudice to DTT. Perhaps the strongest factor favouring the granting of leave to amend is that without it DTT is faced with defending, at substantial cost, litigation which is estimated to last some six months and which, on the evidence and submissions before me on 27 and 28 October, I would have held to have been launched on the basis of a defective decision-making process. However, the proposition that the ASC would not be prejudiced by the granting of leave to amend was strongly contested by it and merits close consideration.

41. Would the ASC have conducted its case differently if the hearing of DTT's substantive application had proceeded on the basis of DTT's proposed amended Application?

42. If DTT had sought review of the decision to litigate either alone, or in the alternative or in addition to the public interest decision, precisely the same grounds of review, evidence and submissions would have been relevant to the attack on that decision as were relevant to the attack on the public interest decision. Yet there is a striking difference between the ASC's 11 pages of submissions on the merits which it put before me 27 and 28 October, and its draft submission of 59 pages plus annexures which it now says it would have put before me if the case had proceeded on that occasion on the footing of DTT's proposed amended Application.

43. The ASC submits that it was confronted with DTT's detailed submissions on the merits only on the morning of the hearing on 27 October, and did not have an opportunity to come to grips with, for example, the Foss v Harbottle consideration. Ground 1 (a) (iii) (failure to take into account the Foss v Harbottle consideration) occupied nine pages of DTT's written submissions supplemented by primary material in a bundle of documents, yet the ASC's written submission on the whole of grounds 1 (a) and (b) comprised only some two pages. But ground 1 (a) (iii), had long formed part of DTT's existing Application. Moreover, the ASC could have applied for further time in which to make a written reply to DTT's detailed submissions on its substantive application, but did not do so.

44. It is true that the ASC addressed submissions on the alternative basis that the decision to litigate was an issue. However, those submissions can be summarised as being to the effect that authority covered the matter. What is striking is the virtual absence of a detailed response, ground by ground, to DTT's submissions on the merits.

45. Whether I should proceed on the basis that the ASC's case would have been conducted differently if the hearing had taken place on the footing of DTT's now proposed amended Application is a question which has caused me some difficulty. In response to my questioning, senior counsel for the ASC explained that those representing the ASC had always conceived of s 50 as involving two distinct stages: the "public interest" stage and the "decision to litigate" stage. He informed me that those advising the ASC had conceived of the issue of a person's consenting to the ASC's commencement of litigation in his or her name as being pertinent to the latter stage and not to the former. Accordingly, so he said, the ASC had approached the hearing without considering:

(a) the historical background to s 50's requirement of consent in

the case of wronged individuals and the absence of any such

requirement in the case of wronged companies; or

(b) the kind of issues raised by the Foss v Harbottle consideration

and that the ASC would have directed attention to these matters if

the decision to litigate had been the subject of DTT's existing

Application.

46. Order 13 r 2 of the Federal Court Rules clearly gives the Court power to grant the leave to amend sought by DTT. Whether leave should be granted is a matter of discretion and I am to be guided by my "assessment of where justice lies": see the often cited passage from Lord Griffiths' judgment in Ketteman v Hansel Properties Ltd (1987) AC 189 at 220. Although I was taken to various authorities on the exercise of the discretion in particular cases, it was not suggested, and it is difficult to see on what basis it could be suggested, that any other principle should ultimately govern me in determining DTT's application for leave to amend.

47. There is substance to the submission that DTT was clearly on notice of the ASC's contention and of Burchett J's view that the only reviewable decision involved was the decision to litigate, yet persisted in challenging only the public interest decision, and so should suffer dismissal of its application. To be weighed against this are the facts that I am assured by counsel for DTT, and I accept, that DTT's understanding was that it was open to it to attack and bring down the public interest decision and in doing so to cause the decision to litigate also to fall away. Moreover, although the ASC could not have asserted more clearly that the only reviewable decision to be considered was the decision to litigate, the arguments which it had put to DTT prior to the hearing and to me on the hearing did not represent exactly the line of reasoning which led me to accept that the only reviewable decision was the decision to litigate.

48. In all the circumstances, if justice can otherwise be achieved, I would grant DTT the leave to amend which it seeks.

49. Just as I have had some difficulty in understanding why DTT thought it appropriate to seek review only of the public interest decision, so I have had difficulty in understanding why the ASC would have conducted its case differently if the hearing before me had proceeded on the basis of DTT's now proposed amended Application. In this respect, however, I do not think that the relevant question is whether the ASC would reasonably have conducted its case differently, but rather the simple question whether it would in fact have done so. I accept the assurance of Mr Gray QC for the ASC that the ASC would have conducted its case differently, and I accept his explanation of how the thinking of the ASC's legal representatives could have led to the adoption of different courses of conduct according to whether the decision to litigate was or was not being attacked.

50. It seems to me that in the light of the foregoing, I should either:

(a) refuse the application for leave to amend and dismiss the

existing Application, while noting that the ASC undertakes not to

object on time grounds to the filing of a fresh application for an

order of review under the AD(JR) Act in respect of the decision to

litigate either alone, or in addition or in the alternative, to the

public interest decision; or

(b) that leave to amend be granted subject to the ASC's having leave

to reopen to read Mr Howes' affidavit (once it is sworn) subject

to all just exceptions as to admissibility and to make submissions

in terms of the form of submission provided in opposition to the

application for leave to amend (with oral elaboration), and

further subject to DTT's right to lead evidence and make

submissions in reply.

51. The ASC favours (a) and DTT favours (b), although the ASC does not object to my hearing the matter further if course (b) should be adopted. DTT submits that under either course, the more so in the case of (b), the ASC achieves a forensic advantage in being able to shape its case with the benefit of my earlier reasons. This is so, but it is a price of the grant of leave to amend. The alternative course which I would consider, course (a) is perceived by DTT to be less favourable to it.

52. In my view, alternative (b) should be followed. In its favour is the fact that I am familiar with the issues and can treat myself as part heard with some consequential saving in time and cost.

53. In relation to costs, the ASC succeeded on its objection to competency. But it succeeded by reference to a line of reasoning rather different from that which it had argued. DTT succeeded "on the merits" in relation to the one and only ground on which I reached a firm view. In relation to the hearing of DTT's substantive application on 27 and 28 October 1994, I think it appropriate that DTT pay two thirds of the ASC's costs of those days. DTT should pay the ASC's costs of the application for leave to amend.

54. It will be necessary for the proceedings to be listed on a date when orders will be made to give effect to the foregoing Reasons and to provide for the further conduct of the proceedings. There will be a direction that the parties bring in agreed short minutes of orders accordingly, and that if they do not agree, they bring in the sets of short minutes of orders for which they respectively contend.