This, however, was in a context where the committee had no formal power in relation to the relevant matters and was merely consulted.
33 After noting the attitude of the committee of inspection and referring to the renewed offers received by the SPL in September 2006 from the solicitors of the CPH/PBL interests and the News Limited interests,
White J said (at [32]):
"Although no arrangements for the extension of the limitation period have been finalised with PBL, CPH and News, it appears that those companies, and certain individuals associated with them, are willing to agree not to rely on limitation defences if proceedings are commenced within six months of judgment being delivered in the ASIC v Rich proceedings."
34 His Honour then said (at [33]):
"Mr Weston has not sought to identify before me any specific reason as to why it is necessary that any person be examined before he is in a position to advise the creditors of One.Tel whether proceedings should be brought against any person in relation to the cancellation of the RRI. That may be because his view is based on confidential and privileged material made available to the Committee of Inspection. Nonetheless, the position remains that I have no better reason than did Windeyer J to think that the expenditure of vast sums of money on public examinations would be well spent. It is true that I have the benefit of the view of the Committee of Inspection, but I do not know on what materials the Committee based its view."
35 His Honour later repeated that he had "no specific material as to why such examinations are thought necessary at this stage", adding that he was "not prepared to act on such a generalised description". The last comment related to the following (at [34]):
"The events surrounding the liquidation of One.Tel have already been the subject of extensive investigation. The general liquidators have conducted examinations, although I was told that their investigations did not cover the ground which Mr Weston would seek to cover. I was told that ASIC had conducted s 19 examinations, and I understood from counsel's submissions that the special purpose liquidator has been given access to the transcripts. Of those examinations, of course, detailed evidence has been given in the ASIC v Rich proceedings which are presently part-heard before Austin J. I was told by counsel for Mr Weston that whilst this material covers, and may resolve, a number of issues, nonetheless, there are other issues which have not been covered, or not covered sufficiently for Mr Weston's purposes. I was told that there will be gaps still to be covered from persons who have been examined, or who have given evidence to date. I was told there are other persons, who have not been examined or given evidence, whom Mr Weston would wish to examine."
36 White J declined to give a direction that the SPL would be justified in applying for the issue of examination summonses in respect of such persons as he determined appropriate. His reasons, in summary, were (at [39]):
"In my view, provided Mr Weston secures a binding agreement with the potential defendants to an extension of the limitation period, the current regime, whereby he confines himself to a review of relevant materials in the ASIC v Rich litigation, should not be changed. In any event, I am not prepared, on the present materials, to give the Court's imprimatur to the proposed expenditures on the conduct of examinations. I would need to be persuaded by far more specific evidence than is currently before me that the proposed course is necessary to enable Mr Weston to express a concluded view on whether rights of action exist in relation to the cancellation of the RRI. This is particularly so, at the present time, when judgment has not been given in the ASIC v Rich proceedings."
The SPL's current applications under Part 5.9
37 Notwithstanding this outcome, the SPL proceeded on 15 December 2006 to file the interlocutory process referred to at paragraph [5] above. It was, as I have said, amended on 20 December 2006.
38 There is nothing to prevent a liquidator pursuing a course of action in respect of which he has made an unsuccessful attempt to obtain a direction from the court. But, of course, the examinations the SPL seeks by means of the interlocutory process are in respect of specified persons - not, as the application for directions had contemplated, in respect of "such persons as the SPL determines appropriate".
39 As I have said, an affidavit was filed in support of the application for the issue of the particular examination summonses under s.596B but the persons represented by Mr Bathurst and Mr Pembroke have not seen it.
The applications by the PBL associates and the News associates
40 In the light of this perhaps over-extensive statement of background, I turn to the matter before me. In an immediate sense, the question for decision is whether the applicants represented by Mr Bathurst and Mr Pembroke should be given leave to be heard on the hearing of the SPL's Part 5.9 applications, that is, the applications under ss.596A and 596B for orders for the issue of examination summonses; and that they be given access to the affidavit supporting the s.596B application.
41 The power of the court relevant to the first issue is conferred by rule 2.13(1) of the Supreme Court (Corporations) Rules 1999:
"The Court may grant leave to any person who is, or who claims to be:
(a) a creditor, contributory or officer of a corporation, or
(b) an officer of a creditor, or contributory, of a corporation, or
(c) any other interested person,
to be heard in a proceeding without becoming a party to the proceeding."
42 An application under s.596A or s.596B is a "proceeding" for these purposes; and a person in respect of whom the issue of an examination summons is sought is, in that context, obviously an "interested person". The rule is accordingly applicable and the question is whether the power it confers should be exercised in favour of the PBL associates and News associates the subject of the s.596A and s.596B applications.
43 In approaching that question, I should state some general propositions which I consider uncontroversial:
1. In the case of a person within the class described in s.596A, the court has no discretion to refuse the issue of an examination summons, provided that the evidence supports the claim that the person is within the class.
2. In a s.596B case, however, the court has such a discretion to exercise and must do so according to its assessment of the person's ability to provide information about the company's examinable affairs and the usefulness of that information in the due conduct of the external administration.
3. An application under s.596A or s.596B usually proceeds ex parte. I have already referred to provisions of the Supreme Court (Corporations) Rules dealing with that aspect.
4. According to the usual procedure, a person actually summoned for examination may apply to have the summons discharged. Abuse of process is a well-established ground for discharging an examination summons. As Mr Pembroke observed, however, it is suggested at paragraph 27.170.1 of "Ford's Principles of Corporations Law" that the court can refuse to issue a summons where it appears that the application is an abuse of the court's process.
44 As Mr Cotman SC pointed out on behalf of the SPL, these matters and other applicable principles are conveniently summarised at paragraph [10] of the judgment of Warren J (as her Honour then was) in Re Freshkept Technology Pty Ltd [2000] VSC 500:
"Before turning to the case at hand some general principles can be extracted from the authorities concerning compulsory examination:
(1) No notice of a summons for examination is required and generally notice should not be given: Re BPTC Ltd (No 1) (1992) 8 ACSR 736.
(2) The court should not direct the examiner to notify the examinee about the matters to be covered at the examination: Re Brash Holdings (1995) 15 ACSR 755, 767; 16 ACSR 324.
(3) An examinor may pursue an examination to identify property that would benefit persons entitled to it including under the terms of a deed of company arrangement: Re Brash Holdings , supra.
(4) In considering whether to order examination the court does not make final judgment about the prospects of success in an action that is the subject of the investigation unless it is so manifestly groundless that it must necessarily fail: Re Brash Holdings at 764.
(5) There must be full and frank disclosure by the examinor to the court upon applying for an order for the issue of a summons: Re Southern Equities Corp Ltd (1997) 25 ACSR 394.
(6) The powers of the court to order examination are extremely wide and the court is not bound in any way by the limitations found in earlier legislation: Flanders v Beatty (1995) 13 ACLC 529.
(7) An application to set aside an examination order on the ground that it is brought for an improper purpose must be made promptly and set up all objections in the one application: Bond v England (1997) 24 ACSR 472.
(8) The prevailing right or interest in the examination is the right of the public, particularly in public companies, and the rights of the creditors and shareholders: Re Cortaus Ltd (1996) 19 ACSR 591.
(9) It is proper for an applicant to conduct him or herself in a manner that is secretive and the applicant should not be asked to verify reasons for wanting an examination as the process is inquisitorial: Re Excel Finance Corp Ltd (1993) 10 ACSR 255, 263-4."
45 The applicants seek to pursue a course quite different from the usual course. They say that it is not sufficient that they have an opportunity, after the event, to seek discharge of such examination summonses as may be issued (one could add "if any", in the s.596B cases); and that the court should, in considering whether to issue the summonses, hear submissions from the potential examinees.
The arguments advanced by the PBL associates and the News associates
46 In taking that stance and contending that this case is exceptional, the applicants point to six matters. First, they say that some of the prospective examinees - specifically, Mr Green, Mr Miller and Mr Macourt - have already been extensively examined both by ASIC under s.19 of the Australian Securities and Investments Commission Act 2001 (with extracts made available to the One.Tel liquidators) and by the general liquidators under Part 5.9 of the Corporations Act.
47 Second, they point to the fact that the court, when appointing the SPL, took the view that the central question of solvency at the time of the cancellation of the rights issue in May 2001 was likely to be answered by findings made in the ASIC v Rich proceedings, with the result that the SPL was, as it were, instructed not to concern himself directly with solvency but to monitor ASIC v Rich to inform himself on that matter. The applicants accept that, as those proceedings have become more protracted, that thinking has changed to a certain extent. But the ASIC v Rich outcome is still seen as an important element in the SPL's decision-making and, the applicants say, the general principle should remain that the SPL defers major investigative effort until after judgment is given in ASIC v Rich.
48 The third point made on behalf of the applicants is that the SPL's position, from the point of view of instituting relevant proceedings within applicable time limits, can be accommodated by the proffered undertakings to the effect the CPH, PBL, News Limited and the PBL associates and News associates will not rely on any limitation defence if proceedings are commenced within six months after delivery of judgment in ASIC v Rich. The undertakings would include consent to a further order extending the s.588FF(3) period.
49 A fourth matter mentioned by counsel for the applicants is that it is not necessarily clear how a claim under s.588FF(1) could be maintained in relation to the cancellation of the rights issue. The provisions which, as it were, feed into s.588FF (that is, ss.588FA to 588FE) concentrate upon a concept of "transaction". It is said that it is difficult, as a conceptual matter, to classify a decision to abandon or not to proceed with an unrealised proposal as a "transaction".
50 The fifth point made on behalf of the applicants is that White J, as recently as November 2006, was not receptive to the proposition that the SPL should conduct examinations and declined to give a direction that the SPL would be justified in conducting such examinations as he considered appropriate.
51 Sixth, the applicants consider themselves to have been given an assurance that they would be heard if any and when any application for the issue of examination summons was pursued. They point to the following sentence in paragraph [30] in the judgment of White J of 26 April 2006:
"The affected parties are entitled to the opportunity to be heard before any further order is made in relation to examinations."
52 I shall consider these arguments in turn.
First argument - prior examinations
53 The fact that someone has been examined before is not of itself any reason to think that a subsequent move to conduct an examination entails abuse of process. In a s.596A case, the court must issue a subsequent examination summons even where the examinee has been excused and discharged at the conclusion of a prior examination - subject, of course, to any proved abuse of process: see Re Shepherds Producers Co-operative Ltd (2006) 65 NSWLR 381.
54 Subsequent examination might be found to involve abuse of process if it were shown that the intention was to harass the examinee or to take him or her needlessly over old ground. But, as I say, it is not of itself objectionable.
55 In the absence of any evidence of any intention (or effect) of harassment, needless repetition or collateral motivation, there is no basis for thinking that abuse of process is involved in the SPL's current proposal. Indeed, until the affidavit in support of the s.596B application is considered, the court does not know what the SPL's purpose is.
Second argument - the solvency question can be left to one side
56 It is clear that the original intention, as reflected in Windeyer J's decision of December 2003, was that the SPL should, to the maximum extent, avoid independent investigation of the question of solvency in May 2001 and be guided by the findings in ASIC v Rich on that matter. By April 2006, that intention had, of necessity, been modified. I need not repeat what I have said on this at paragraphs [27] and [28] above.
57 The situation today is one in which relevant assistance may in due course be obtained from findings in ASIC v Rich but the need for separate consideration of the solvency question cannot necessarily be seen any longer to be non-existent. Nor can continued monitoring of ASIC v Rich necessarily be seen as sufficient for the promotion and protection of the interests the SPL represents.
Third argument - the sufficiency of undertakings
58 Implicit in the third argument advanced on behalf of the applicants is the proposition that agreements or undertakings by them and their principals (CPH, PBL and News Limited) will be sufficient to overcome any time bar that the SPL may encounter in initiating any proceeding of the kind he is required by the terms of his appointment to investigate.
59 To the extent that any such proceeding involves causes of action affected by the Limitation Act 1969, that proposition is probably valid. Under s.68A of that Act, the benefit of extinguishment, by time, of the right and title to a cause of action to recover any debt, damages or other money does not accrue to a party unless the party pleads or otherwise appropriately claims the extinguishment. Effect can thus be given to an agreement not to rely on a time bar.
60 As regards any claim under s.42 of the Fair Trading Act, cases on s.82(2) of the Trade Practices Act (which is in terms identical with those of s.68(2) of the State Act) make it clear that the time bar arising under s.68(2) is procedural only and that it represents "a condition of the remedy rather than an element of the right", to quote the words of the members of the Full Federal Court in Western Australia v Wardley Australia Ltd (1991) 30 FCR 245 at p.266. The parties have clearly proceeded on the basis that an agreement not to plead the time bar will be effective.
61 When it comes to any claim based on s.588FF(1) of the Corporations Act, however, the position seems to me - as it has apparently seemed to the parties - to be different. In that case, the parties have adopted a course that has seen an order made under s.588FF(3)(b) extending the period within which can application under s.588FF(1) "can only be made". As a result of that order, the applicable period is now six years, rather than three years, after the "relation-back" day which, it is apparently accepted, was in May 2001. That period of six years will expire in something more than three months from now.
62 It is said on behalf of the applicants that this time factor does not represent any real barrier to the continuation of a regime based on undertakings. It seems to be acknowledged that the particular time bar is one that the parties cannot dispense with or agree to ignore, this being the force of the words "can only be made" in s.588FF(3). But Mr Bathurst submitted that the court has, even now, power to extend the period within which a s.588FF(1) application "can only be made". This is because, on the approach Mr Bathurst advances, the order under s.588FF(3)(b) fixing a period longer than three years was an interlocutory order - or, at least, an order of the kind referred to in rule 36.16(3) of the Uniform Civil Procedure Rules 2005, that is, an order that did not determine any "claim for relief" or determine any question (whether of fact or law or both) arising on any "claim for relief". That being so, it is submitted, that provision of the rules empowers the court to vary the order already made and the power of variation extends to allow the substitution of some period longer than that specified in the s.588FF(3)(b) order already made.
63 I have very strong doubts as to the correctness of that submission. The expression "claim for relief" is defined by s.3(1) of the Civil Procedure Act 2005. The definition, which applies also for the purposes of the Civil Procedure Rules, is as follows:
"'claim for relief' includes:
(a) a claim for possession of land, and
(b) a claim for delivery of goods, and
(c) a claim for the recovery of damages or other money, and
(d) a claim for a declaration of right, and
(e) a claim for the determination of any question or matter that may be determined by the court, and
(f) any other claim (whether legal, equitable or otherwise) that is justiciable in the court."
64 A claim for an order under s.588FF(3)(b) seems to me to be within paragraph (f) of this definition. A claim to have a period longer than three years made available for the initiation of an application or applications under s.588FF(1) is a claim justiciable in this court. Jurisdiction to determine the claim is conferred on the court by s.1337B(2) of the Corporations Act. This is because the claim is a "civil matter", as defined by s.9, and arises under a provision of one of the pieces of legislation referred to in the s.9 definition of "Corporations legislation".
65 It is pertinent to note that an extension order under s.588FF(3)(b) need not be confined to prospective proceedings concerning a particular person or transaction. The provision is concerned with not only a particularly proposed s.588FF(1) application (as in the present context) but also the situation where the identity of potential targets of s.588FF(1) applications is still being ascertained. This is made clear in the judgment of Spigelman CJ (with whom Mason P and Handley JA agreed) in BP Australia Ltd v Brown (2003) 58 NSWLR 322 at [168] - [170]. Section 588FF(3)(b) orders in terms not related to particular persons and particularly foreshadowed s.588FF(1) applications have been made in a number of cases: see, for example, McGrath v HIH Insurance Ltd (2004) 205 ALR 643; New Cap Reinsurance v Reaseguros Alianza SA [2004] NSWSC 787; Australian Securities and Investments Commission v Karl Suleman Enterprizes Pty Ltd (2004) 52 ACSR 103. This aspect of s.588FF(3)(b) emphasises the separateness of any application under that section from any s.588FF(1) application.
66 An application under s.588FF(3)(b) is not an interlocutory application in any proceeding. It is an application the object of which is to allow a liquidator more time within which to commence a proceeding. Once a proceeding has been initiated by the making of a s.588FF(1) application, there is no basis for the making of a s.588FF(3)(b) application in relation to the particular matter.
67 After a s.588FF(1) application is made and a proceeding is thereby instituted, the procedural regulation of the conduct of the matter is left to the procedural law applicable in the particular court - subject, however, to any other operation of provisions of the Corporations Act. So much is made clear at [32] of the joint judgment of Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ in Gordon v Tolcher (2006) 231 ALR 582 to which Mr Cotman referred. Their Honours also emphasised, at [35], that an application under s.588FF(3)(b) for the fixing of an extended period "is a 'matter' distinct from that seeking an order with respect to the voidable transaction", that is, the "matter" consisting of the s.588FF(1) application. This is emphasised by the circumstance that the s.588FF(1) function may be exercised by a wider range of courts than the s.588FF(3)(b) function.
68 In Gordon v Tolcher, at [39], the High Court expressly approved the following passage in the judgment of Spigelman CJ in BP Australia Ltd v Brown (above):
" Section 588FF(3) does not have the effect of requiring all applications to be brought within a short period of time. It does, however, have the effect of requiring those who wish to keep open the option to do so, to determine that they do wish to do so within the three year period and to seek a determinate extension of the period. One thing that must be decided within the three year period is how long the process of deciding whether to pursue voidable transactions will take. Eventually, investigations to overcome deficiencies of information or the pursuit of funding must cease. Parliament has identified a reasonable time for such matters to occur, subject to a single determinate extension of time."
69 For all these reasons, it seems to me that an order under s.588FF(3)(b) is an order that determines "a claim for relief" and is therefore beyond the power of variation created by rule 36.16(3). But even if the order were of the kind referred to in the rule, the clear recognition in BP Australia Ltd v Brown that s.588FF(3)(b) covers the field, so far as extension of the s.588FF(3) period is concerned, would seem to preclude the applicability of the rule in a case of the kind under discussion. I refer, in that connection, to the valuable analysis by Debelle J in Davies v Chicago Boot Co Ltd (2006) 58 ACSR 505. As his Honour's judgment shows, the approach taken in Rodgers v Commissioner of Taxation (1998) 88 FCR 61 (a case on which Mr Bathurst expressly relied) has been overtaken by BP Australia Ltd v Brown. The subsequent endorsement of relevant aspects of the BP Australia decision by the High Court in Gordon v Tolcher seems to me to confirm the correctness of Debelle J's approach.
70 These considerations concerning s.588FF(3) indicate that it would be most unsafe for the SPL to contemplate that some consensual regime could be effective to preserve beyond May 2007 the full opportunity of the SPL to pursue all viable causes of action that may have accrued to One.Tel and its liquidators from the cancellation of the renounceable rights issue - assuming, of course, that an application under s.588FF(1) can be seen to be among those viable causes of action.
The fourth argument - no evident "transaction"
71 This assumption is challenged in the next part of the applicants' arguments. The concept of "transaction" central to the provisions contribution to the s.588FF jurisdiction has been recognised as being a very wide concept. The relevant case law was recently collected and discussed by Hamilton J in Kalls Enterprises Pty Ltd v Baloglow [2006] NSWSC 617. One of the points his Honour made is that a number of separate dealings may constitute a transaction.
72 That an outside observer cannot, with ease, see a transaction in a particular factual context is therefore unremarkable. In any event, one would expect that, if and to the extent that the SPL had in prospect the possibility of making a s.588FF(1) application by reference to a particular "transaction" and sought to conduct s.596B examinations to that end, he would provide in his s.596C affidavit at least some preliminary explanation of the possible "transaction" requiring investigation.
The fifth argument - White J's decision of 28 November 2006
73 It is true that White J declined on 28 November 2006 to give the SPL a direction that he was justified in undertaking such Part 5.6 examinations as he considered appropriate. I have quoted paragraph [33] of his Honour's reasons where the basis for the refusal are stated. He referred on several occasions to lack of specific evidence as to the need for examinations.
74 Now, of course, the SPL has, of necessity, filed an affidavit which, it must be assumed, shows the reasons why the SPL considers the particular s.596B examinations to be necessary or desirable. One may surmise that the same reasons are relevant to the s.596A application. The information that White J found to be lacking will almost certainly be found in that affidavit. If it is not - or if the information does not show a sufficient basis for orders under s.596B - the attempt to secure examinations under s.596B is likely to fail. And any such failure may well rebound also on any summons issued under the mandatory provisions of s.596A.
75 In short, the SPL's Part 5.9 application by way of the amended interlocutory process filed on 20 December 2006 will be considered by reference to evidence beyond that which was before White J on 28 November 2006.
The sixth argument - assurance of an opportunity to be heard
76 The sentence in White J's judgment of 26 April 2006 quoted at paragraph [51] above does not, in any sense, represent an assurance that the present applicants will be heard before any examination summonses affecting them are issued. It is no more than a reflection of part of the undertakings given at that time.
77 The undertaking involving CPH/PBL was expressed to be subject to condition (c) set out at paragraph [19] above. There was a corresponding condition in the News Limited undertaking.
78 Paragraph (iii) of this condition (c) contemplated the possibility that there would be an order resulting in the examination of relevant persons and that the affected persons would have an opportunity to be heard. But that paragraph (iii) did no more than identify one event pending which the SPL was not to seek to examine relevant persons, at least if condition (c) was to continue to be satisfied so as to support the consensual regime with respect to extension of or non-reliance on time bars. Another such event (that provided for in paragraph (ii)) was the start of the period of six months immediately before the expiration of the extended limitation period. That paragraph (ii) event has now occurred. It follows that, because of the happening of the paragraph (ii) event, moves by the SPL to examine relevant persons are no longer inconsistent with condition (c) and that paragraph (iii) of that condition no longer has any operative force or relevance.
79 In summary, the court has never indicated that the present applicants would be afforded an opportunity to be heard on any application by the SPL for the issue of examination summonses; nor, as things now stand, do arrangements presently prevailing between the parties purport to afford any such assurance.
Conclusion
80 The SPL now finds himself in a situation where, at least according to the analysis at paragraphs [63] to [69] above, time is running out, so far as initiation of any s.588FF(1) proceeding is concerned. The timing imperatives to which he appears to be subject in that respect will not allow him to await the outcome in ASIC v Rich before making a decision whether to commence such a proceeding. Nor, because of s.588FF(3), can matters be safely dealt with by inter partes agreements.
81 In those circumstances, the court should proceed at once to consider the applications made by the special purpose liquidator under ss.596A and 596B. Nothing the applicants have put forward suggests any ulterior purpose or any need for those applicants to participate in the hearing of the SPL's applications. The applications should be dealt with by the court in the usual way, that is, upon the ex parte application of the SPL.
82 The applicants' application for access to the s.596C affidavit is premature. The outcome of the s.596B application may be that no examination summonses are issued. In that event, there will be no point in granting access to an affidavit containing what the SPL may still regard as confidential and sensitive information. The appropriate course at this point is to dismiss the application for access to the affidavit but to make it clear that this will be without prejudice to the right of any person upon whom an examination summons is in due course served to make a like application by reference to circumstances then prevailing.
83 I make the following orders:
1. Order that the interlocutory process of Martin Green and Darren Miller filed on 29 January 2007 be dismissed with costs.
2. Order that the interlocutory process of News Limited, John Hartigan, Peter Macourt and Ian Philip filed on 29 January 2007 be dismissed with costs.
3. Order that the amended interlocutory process of Paul Gerard Weston filed on 20 December 2006 be stood over to 9.30am tomorrow, Thursday, 15 February 2007 before me.
Postscript
84 I would make one final comment. The court is conscious of the very large sums of money that have been expended by the SPL, particularly on legal fees. For reasons canvassed in my judgment of 15 August 2006 (Onefone Australia Pty Ltd v One.Tel Ltd (2006) 58 ACSR 466), it is inappropriate that the principal liquidators have any oversight of expenditure by the SPL. In a judgment of 20 December 2006 (Onefone Australia Pty Ltd v One.Tel Ltd [2006] NSWSC 1447), White J observed that the SPL, because of his confined and particular responsibilities, does not have the ability a liquidator usually has to prioritise tasks and channel resources accordingly. His Honour said (at [8]):
"He [that is, the SPL] does not have the same perspective of the overall administration of One.Tel as do the general liquidators. He is therefore not in as good a position as would be a liquidator in the usual course of administration to decide whether moneys spent on legal costs and disbursements in investigating potential causes of action relating to the cancellation of the renounceable rights issue would be moneys well spent."
85 White J then referred to the role that the committee of inspection had been playing and the assistance the court would derive from knowing the committee's attitude to expenditures by the SPL:
"10. As a matter of practice, the special purpose liquidator has been providing the members of the Committee of Inspection with at least summaries of the legal expenses incurred, and has provided the members of the Committee with a budget of future expenditure on legal costs. The Committee has de facto assumed a greater role in overseeing such expenditures than would normally be the case.