Satchithanantham v Multilink Investments Pty Limited

REASONS FOR JUDGMENT The proceedings before the Federal Magistrate 1 In these reasons for judgment, I should state at the outset, because of the number of proceedings which I must address, that I have referred throughout these reasons for judgment to Mr Satchithanantham always as "appellant" and Multilink Investments Pty Limited always as "respondent". On 7 May 2002, Federal Magistrate Driver dismissed an application for review of a sequestration order made by Registrar Hedge on 22 February 2002 against the appellant, at the instance of the respondent, his Honour having undertaken a re-hearing of those prior bankruptcy proceedings before the Registrar which had led to the making of that order (Martin v The Commonwealth Bank of Australia [2001] FCA 87). On 28 May 2002, the appellant filed a notice of appeal against that decision of Driver FM, the same containing 32 grounds of appeal. The appellant subsequently filed on 2 August 2002 so-called supplementary grounds of appeal containing an additional 10 grounds of appeal, some being divided into a number of sub-grounds. Those documents appear to have been prepared by the appellant without legal assistance. 2 In the bankruptcy review proceedings conducted before Driver FM, the appellant had the benefit of legal representation provided by Mr Griscti of counsel, instructed by Allens Arthur Robinson solicitors, on a pro bono basis, and his Honour was complimentary of the assistance he received from those legal representatives for the appellant. Moreover it would appear that the appellant also had the benefit of legal representation in the proceedings originally conducted before the Registrar. However the appellant appeared in person in the present appeal proceedings before me. It is readily apparent that he is the author of both the notice of appeal and the supplementary grounds of appeal documents. It must be said at the outset that both documents are largely prolix and confusingly expressed. 3 In contrast to the proliferation of purported grounds of appeal now raised in the present proceedings before me, three grounds of appeal were pursued by the appellant's former legal representatives before the Federal Magistrate, which I will summarise below from his Honour's reasons for judgment: (i) the bankruptcy notice, non-compliance with which formed the basis of the creditor's petition, although purportedly served by the petitioning creditor (presently of course the respondent to the appeal) on the appellant by fax, and also by ordinary post on 10 January 2001, was not in fact properly served, and did not come to the appellant's attention prior to the service of the respondent's creditor's petition; (ii) the creditor's petition was in any event not properly served on the appellant, because it was handed to him in the precincts of a court; and (iii) the Registrar had erred in refusing to adjourn the hearing of the creditor's petition pending the outcome of an application by the appellant for special leave to appeal to the High Court of Australia against a decision of the Supreme Court of New South Wales Court of Appeal given on 11 February 2002, which dismissed an appeal by the appellant against a decision of the District Court of New South Wales in favour of the respondent on which the bankruptcy notice giving rise to the petition in bankruptcy had been based. 4 The Federal Magistrate rejected each of those three grounds of appeal from the Registrar's decision. As to the first ground of appeal to the Federal Magistrate, his Honour gave the following reasons for upholding the validity of service of the bankruptcy notice at least by facsimile transmission: (i) Service of a document required or permitted by the Bankruptcy Act 1966 (Cth) ("the Act") or by the Bankruptcy Regulations may be validly served on a person, inter alia, if sent by post to the last-known address of the person, or if sent by facsimile transmission to a facility maintained by the person for receipt of electronically transmitted documents (Reg 16.01(1)). (ii) Though personal service of a bankruptcy notice was the most common or usual form of service, it was not the only form of service, and was not an essential requirement of the Act or the Regulations. (iii) The appellant had not discharged the rebuttable presumption created by regulation 16.01(2) that proper service by post or fax was in fact effected. 5 Propositions (i) and (ii) of [4] immediately above are correct and must be beyond dispute. In fact the only issue seemingly pressed by the appellant's then legal representatives before Driver FM on the appellant's application for review related to ground (iii). His Honour's reasons for rejection of that ground (iii) of the appeal may be most appropriately recounted by extracting in full pars 11 to 14 of his Reasons for Judgment: "11. The evidence presented by Mr Satchi, as I have said, is equivocal but it was designed to establish, as asserted by Mr Satchi, that he was overseas at the time of the purported service. That evidence was limited to movement stamps on his Australian passport. That evidence does provide proof that Mr Satchi was outside Australia on certain dates. Those dates include 3 January 2001, 6 January 2001, 19 January 2001, 2 February 2001, 18 February 2001 and 20 February 2001. There are other dates when Mr Satchi was apparently overseas in March 2001. The implication is sought to be created by those movement stamps that Mr Satchi was out of Australia from at least 3 January 2001 until at least the end of January 2001. Mr Satchi has conceded that he returned to Australia on 31 January 2001. Mr Satchi was obliged to make that concession, contradicting earlier evidence he had presented to the Court, when it became apparent that he had been in Australia at a time when he had previously asserted that he was in fact outside Australia. 12. While the evidence contained in Mr Satchi's passport is of some assistance to him it does not establish to my satisfaction that Mr Satchi was outside Australia on 10 January 2001 when the bankruptcy notice was purportedly served. Mr Ash has submitted, I think powerfully, that it would have been or should have been a relatively straightforward matter for Mr Satchi to satisfy the Court that he was in fact overseas on 10 January. He could, for example, have produced hotel receipts; he could have sought or subpoenaed from the Immigration Department movement records to more clearly establish his movements; he could have produced other evidence relating to things done or places visited overseas on a particular day. Mr Satchi has apparently been unable to produce that more cogent evidence. 13. Mr Satchi asserts that the bankruptcy notice did not come to his attention until 14 February 2002 when the creditor's petition, together with the bankruptcy notice, were served on him. Mr Ash has submitted, I think correctly, that that assertion lacks credibility and that the bankruptcy notice must have come to Mr Satchi's attention some considerable time before then. Precisely when that was, we are left to speculate about. Mr Satchi seeks to explain the alleged failure of anyone in his residence to tell him about the bankruptcy notice on the basis of an alleged dispute between himself and other members of the household leading to people vacating the household, in March 2001. Whether such a dispute occurred or did not occur, I do not think it necessary for me to find. It would have been a simple matter for Mr Satchi to call his wife to dispute the conversation she was alleged to have had with the process server on 10 January 2001. He did not do that. She could have also given evidence concerning any reasons why she failed to bring the bankruptcy notice to Mr Satchi's attention at that time or around that time. Again, that evidence was not brought. 14. I draw an adverse inference from the failure to call any evidence from Mrs Satchi. I conclude that the evidence of Mrs Satchi would not have assisted Mr Satchi. I find that the bankruptcy notice was served by facsimile on 10 January 2001 and was in all probability brought to Mr Satchi's attention, at or around that time. Mr Satchi has failed to satisfy me, as he is bound to do to be successful in this element of his application, that the bankruptcy notice did not come to his attention until a time when the bankruptcy period would not have expired before the filing of the creditor's petition." As may be seen from those reasons, Driver FM did not accept the credibility of the appellant's evidence as to alleged ineffective, or absence of, service of the bankruptcy notice. 6 As to ground (iii) of the appeal to the Federal Magistrate referred to in [3] above, his Honour accepted that there was authority for the proposition that a court exercising jurisdiction in bankruptcy should not proceed to sequestrate the estate of a debtor, when an appeal is pending against the judgment relied on as the foundation of the bankruptcy proceedings, provided that the appeal is based on genuine and arguable grounds (Ahern v Deputy Commissioner of Taxation (1987) 76 ALR 137; Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460). Upon that footing, his Honour nevertheless made the following preliminary observations: (i) the proceedings commenced by the appellant in the High Court for special leave to appeal from the decision of the Court of Appeal boiled down to a claim that the Court of Appeal had occasioned to him a serious miscarriage of justice, but there did not appear to be raised, by the draft grounds of appeal proposed to be pursued in the High Court, any principle of general application or any important issue of legal principle not previously resolved, such as to be likely to attract the grant of special leave; (ii) the District Court proceedings had been resolved adversely to the appellant after "a fairly extensive hearing", and the Court of Appeal was "somewhat dismissive" of the appellant's appeal from the District Court, and delivered only short reasons for judgment; nevertheless it was necessary to consider whether it would be prudent to await the outcome of the special leave application, upon the hypothesis that "…one can never be sure what the outcome of an appeal or a special leave application might be"; (iii) the creditor's petition against the appellant has been extended by the Court, just prior to the anniversary of its filing in the Court, for a further year until February 2003, and was therefore still pending; and (iv) even if special leave might be granted by the High Court, his Honour would nevertheless "be left to speculate about the outcome of the appeal". However Driver FM concluded that the appellant's pending special leave application to the High Court appeared to have poor prospects of success, given that it was "simply an appeal to the High Court to find an injustice where, objectively, there is very little to suggest that any injustice has occurred, either in the Court of Appeal or in the District Court". 7 The Federal Magistrate thereafter observed that apart from the grounds specifically advanced in the application for review before him, which have been summarised in [3] above, it had been conceded by counsel for the appellant that all elements necessary to support the creditor's petition had been made out in the re-hearing proceedings before him. His Honour therefore concluded as follows at [22]: "I find that whether or not the application for special leave is genuine it does not have reasonable prospects of success and is almost certainly doomed to fail. Accordingly, I should not adjourn the petition to await the outcome of the special leave application." The stay application of the appellant made in relation to the orders of the Federal Magistrate consequential upon his reasons for judgment of 7 May 2002 8 A stay application in relation to the sequestration order made by the Federal Magistrate was rejected by Jacobson J on 27 June 2002 (Satchithanantham v Multilink Investments Pty Limited [2002] FCA 914). On that occasion, as before me in the present appeal, the appellant appeared in person, and there was placed before his Honour the 32 grounds of appeal the subject of the notice of appeal filed 28 May 2002 from the decision of the Federal Magistrate to the Full Federal Court. His Honour's reasons for judgment provide some detail as to the District Court and Court of Appeal proceedings to which I have already referred. Partly for the reason that the appellant's supplementary grounds of notice of appeal to the Full Court purport to separately propound 13 sub-grounds of appeal relating to the reasons for judgment of Jacobson J, and partly in the light of what has been already mentioned in [6] above, it is appropriate for me to summarise the reasons of Jacobson J for rejection of that stay application, irrespective of the apparent absence of a properly constituted application for leave to appeal from his Honour's decision, and of the grant of any such leave. (i) On 18 August 2000, Acting District Court Judge Boyd-Boland gave judgment adversely to the appellant for an amount of approximately $272,000, pursuant to a guarantee given by the appellant to the respondent in the present appeal (ie Multilink Investments Pty Limited); that judgment was given of course in the District Court proceedings to which reference has already been made. (ii) On 11 February 2002, the Supreme Court of New South Wales Court of Appeal (Mason P, Santow JA and Ipp AJA), in the appellate proceedings to which reference has already been made, received submissions upon the appeal from the present appellant against the decision and judgment of Boland ADCJ. In dismissing that appeal without reserving judgment, their Honours expressed the unanimous opinion that the appeal did not raise any question of general principle, but merely re-agitated issues which had been already addressed by the Acting District Court Judge, or else the appellant's submissions on the appeal had attempted to introduce new issues which were not the subject of the grounds of appeal formulated in the notice of appeal to the Court of Appeal. (iii) There was no error apparent in the reasons of the Acting District Court Judge, the issues propounded on appeal being principally that his Honour had erred in his assessment and evaluation of the evidence, and hence there was no appealable error. 9 Jacobson J concluded his reasons for judgment upon the stay application adversely to the appellant to the effect that the application for special leave to appeal to the High Court did not involve any question of law of general public importance, nor did it involve the interests of the administration of justice, and that accordingly the application for special leave to appeal to the High Court had no realistic prospects of success. His Honour observed incidentally that the evidence before him disclosed that the appellant has no assets in Australia, other than a one half interest in his matrimonial home, but nevertheless he claimed to have substantial financial interests in Brunei, albeit said by him to be held in the name of a company he controlled, including a judgment debt of $1.8 million, and another debt of $400,000, each in its favour. No statement of affairs appears to have been provided by the appellant to his trustee in bankruptcy, up to the time the proceedings before Jacobson J were heard, nor since that time. General observations upon the present appeal proceedings 10 Earlier on 5 August 2002, I ruled that the present appeal was appropriate to be heard by a single justice of this Court. Hence I am exercising the appellate jurisdiction of the Federal Court, pursuant to a direction made by the Chief Justice on 5 August 2002 under subs 25(1A) of the Federal Court of Australia Act 1976 (Cth). 11 None of the very numerous grounds of appeal the subject of the notice of appeal from Driver FM, or of the so-called supplementary grounds of appeal document, possess the resemblance of potential viability. Many of those grounds, being lengthy in content, are in the nature of rambling criticisms of the reasons for judgment of the District Court and of the Court of Appeal, and also those of Driver FM. They include assertions of error in relation to evidentiary matters which are expressed mainly in broad or unspecific terms, and propositions on a variety of matters asserted to have been wrongly adopted in the various proceedings below in this Court, and in the Court of Appeal, and purported assertions of legal principle. Of course a litigant in person cannot necessarily be expected to frame grounds of appeal strictly in accordance with established legal principles and practice, but that is the handicap under which unrepresented litigants inherently labour, particularly in circumstances, as here, where unrepresented litigants in appellate proceedings have already failed at first instance when then represented by competent legal practitioners, and are not able to accept the decision at first instance. 12 The burden placed upon the Court in this present appeal, and also on the respondent and its legal representatives, in endeavouring to comprehend and to consider the numerous purported grounds of appeal, has been exacerbated by the appellant's lengthy written submissions of nine pages, most of which are difficult to comprehend or are so broadly expressed as not to constitute grounds of appeal according to law. Moreover the appellant has presented to the Court appeal books containing 1034 pages of material largely irrelevant to the issues arising on the present appeal. The opening segments of the appellant's written submissions are framed in terms of extreme breadth and generality, as appears from what I have extracted below: "2. Appellant is relied (sic) on all the materials in the appeal books Volumes 1 and 2 filed in this Court. 3. Appellant is relied (sic) on all grounds and the supplementary grounds of the notice of appeal dated 28/5/02 and 2/8/02 (pages 346-362). 4. Appellant is relied (sic) on all the affidavit evidences filed in this court and the court below, in addition to the oral evidence given in the court below. 5. Appellant is relied (sic) on all supporting evidences in support his Honour's (sic) adverse findings in the Court below: Appellant : Affidavit dated 26/6/02 (pages 446-484) Affidavit dated 2/8/02 (Pages 616-676) Appellant's wife: Affidavit dated 26/6/02 (pages 485-511). 6. Appellant response (sic) to the adverse findings of the appellant's credibility in the District Court, as argued by the respondent's counsel Mr David Ash in the court below: Appellant's submission in the Court of Appeal - Arvind Mohanty (paragraphs 37-327, pages 865-919) - Appellant (paragraphs 328-369, pages 919-926) Appellant's Reply in submission in the Court of Appeal (pages 854-858) Supplementary red appeal book 2 in the Court of Appeal (The respondent only brought the red book - 1 to the court on 7/5/02, by excluding JAB-3 of page 513. Please also refer paragraph 5 of page 655). Appellant's submission in the High Court of Australia, namely: Reply to respondent's Summary of argument (pages 849-853) Appellant's summary of arguments (pages 834-843) Appellant's draft notice of appeal particularly grounds 13 & 15 (pages 830-831). Appellant's counsel Mr Griscti's report in response to his Honour's judgment (pages 951-961, 963, 981-1000 and 1025-1027)." 13 Obviously it is no function of the Court to read such a large amount of material in order to endeavour to discern whether the same might contain something conceivably helpful to the appellant. It emerged during the course of the hearing that the appellant has been engaged in business in Australia for some time, and apparently still has the extensive business interests in Brunei which I have already mentioned, albeit, conducted by a company in which his wife is said to be the sole or main shareholder, yet he has received the benefit of pro bono legal assistance in the bankruptcy proceedings below conducted before Driver FM, and has sought and obtained from this Court exemption from filing and hearing fees in relation at least to the conduct of this present appeal. I should add for completeness that in the course of the present appeal proceedings, I have earlier dismissed that element of the appeal, on the motion of the respondent, as sought an order that the solicitors and counsel for the respondent, and counsel for the trustee in bankruptcy, pay damages to the appellant in the sum of $380,000 : Satchithanantham v Multilink Investments Pty Ltd [2002] FCA 974. Submissions advanced in relation to service of the bankruptcy notice 14 Following the initial submissions of the appellant of obviously impermissible width and generality extracted in [12] above, there follows certain submissions which warrant consideration by the Court. The first of these raise an issue as to valid service of the bankruptcy notice, additionally to those submissions of the appellant ventilated before Driver FM to which I have earlier referred. The appellant advanced, apparently for the first time in the proceedings, the assertion that the bankruptcy notice served upon him was merely in the form of a photocopy, and that service of the bankruptcy notice was ineffective for that reason, and he referred to an unreported decision of Von Doussa J delivered on 30 May 1997 in Re Tadeusz Stec; Ex parte Peter Scragg [1997] 462 FCA. No such photostat copy of the bankruptcy notice was produced by the appellant to substantiate the submission. On the contrary, what was placed before his Honour below by the respondent was an affidavit evidencing service of the bankruptcy notice by facsimile transmission, as Reg 16.01(1)(e) duly permits. No attempt appears to have been made by the appellant, in the course of the hearing before his Honour, to rebut the presumption of effective service of the bankruptcy notice arising pursuant to that Regulation. Instead the appellant sought to establish below that the document did not come to his attention at all prior to the filing by the respondent of the creditor's petition, in relation to which contention there was made by Driver FM findings included within those set out in pars 11 to 14 of his reasons for judgment (extracted in full in [5] above). There is plainly no substance in these submissions of the appellant as raised on the appeal conducted before me. 15 The appellant further contended that his passport details, summarised by Driver FM within those extracted paragraphs of his reasons for judgment, demonstrated that there had been no "proper service [of the bankruptcy notice] as it did not comply with the rules". The rejoinder of the respondent to that submission, which I set out below, sufficiently answers the appellant's submission, without the need for further reasoning: "One of the complicating issues was the focus on whether or not Satchi was overseas at the relevant time. This is not the issue. The issue is whether Satchi has shown that the notice did not come to his attention. In finding that in all probability the notice came to Satchi's attention on the date it must be presumed to have been faxed (10 Jan 2001), his Honour made a determination upon credit and upon the failure of Satchi to call evidence: Reasons, [13]-[14], AB 339-340." The fact therefore that Driver FM erroneously stated in par 11 of his reasons for judgment that "Mr Satchi has conceded that he returned to Australia on 31 January 2001" is of no materiality, particularly in the light of the other factors and circumstances included relevantly in pars 11 to 14 of those reasons extracted in [5] above. The further documentary material forwarded to my Associate after completion of the hearing by letter dated 16 September 2002, without the apparent prior consent of the respondent, also does not effectively answer the appellant's case as to non-service or ineffective service of the bankruptcy notice. 16 The appellant next contended that because the interest charge of $74,247.27 set out in the bankruptcy notice was an overstatement to the extent of merely $124.24, the bankruptcy notice was invalid on that account, and he referred to decisions of this Court in Bendigo Bank Ltd v Williams (2000) 98 FCR 377, Kirk v Ashdown [1999] FCA 1664 and Trustees of the Franciscan Missionaries of Mary v Weir (2000) 98 FCR 447. That contention was not apparently raised in the proceedings below. In any event, those authorities do not support the appellant's contention, in the light of subs 41(5) of the Bankruptcy Act 1966 (Cth) reading as follows: "A bankruptcy notice is not invalidated by reason only that the sum specified in the notice as the amount due to the creditor exceeds the amount in fact due, unless the debtor, within the time allowed for payment, gives notice to the creditor that he or she disputes the validity of the notice on the ground of the mis-statement." 17 Other submissions advanced by the appellant relating to the bankruptcy notice also fail to specifically come to issue with or effectively address the reasons for judgment of Driver FM, and moreover were not apparently raised in the proceedings before his Honour, and do not merit in any event specific reference and discussion in these reasons. It suffices to say that I have considered each of those submissions, to the extent that they are comprehensible, and have been unable to distil any semblance of viability in relation thereto. Submissions advanced in relation to service of the bankruptcy petition 18 As I have recorded in [3(ii)] above, the issue raised by the appellant in relation to service of the bankruptcy petition, in the context of the application for review below made to Driver FM, when his Honour had the benefit of competent assistance from counsel and solicitors for the appellant, which he duly acknowledged, was to the effect that the creditor's petition was not validly served, because the purported service was effected only in the precincts of the Court. His Honour dismissed that ground for review in the following terms: "3. As matters transpired today I ruled that the second proposition was not a relevant ground of attack on the sequestration order because there was incontrovertible proof that the creditor's petition had been subsequently served properly on Mr Satchi more than five days before the original hearing of the creditor's petition and (of course) well before the re-hearing of the matter today. As a result that issue was not pursued." An affidavit relating to the service on 2 August 2001 of the creditor's petition upon the appellant in the precincts of the Court was made by Malcolm Hill on 20 August 2001. Whether that service was or was not effective in law does not matter, because it appears that further service of the creditor's petition was later effected on the appellant, as appears from the foregoing passage in the reasons for judgment of the Federal Magistrate, and hence the basis for his Honour's conclusion concerning service of the creditor's petition. 19 I should perhaps further record that in the course of his address in the present appeal proceedings, counsel for the respondent drew my attention to a number of instances of the conduct of the appellant up to the time of the hearing of the application for review by the Federal Magistrate, being instances said to constitute misleading and deceptive conduct on the part of the appellant (though certainly not misleading and deceptive conduct on the part of his pro bono legal representatives who appeared before his Honour) in the nature of endeavours to frustrate the legitimate course of the bankruptcy process commenced by the respondent. It is unnecessary for me to go into detail in relation to those matters, which were brought to my attention upon the basis that the same reflected adversely upon the appellant in relation to his conduct as a litigant. It suffices for me to conclude that I have not encountered any viable reason advanced by the appellant within his oral and written submissions as to why his attacks upon the Federal Magistrate's finding set out in [3] of his judgment below should be sustained. I should add in that regard that I have not found it to be necessary, expedient or appropriate to recite most of the appellant's submissions, whether comprehensible or otherwise, and then attempt to deal with the same, merely because they have been propounded. There must be a sensible limit to the extent to which a judge should be expected to make findings upon submissions which cannot sensibly or rationally be described as bearing that description. It suffices to say that I have read and listened to all that the appellant has put to me by way of purported submissions, and have not been able to discern or distil any legal merit relating thereto or arising therefrom. 20 Notwithstanding the observations just made, one issue purportedly of a jurisdictional nature contained in the appellant's written submissions should also perhaps be specifically mentioned; that issue was framed within the appellant's written submissions, which I reproduce literally below: "8(j) His honour Mr Driver FM, erred in conducting a re-hearing as indicated in the paragraph 3 of the Judgment, instead of review the original matter as it was on 'de novo', as highlighted in the Notice of Appeal Grounds 2 on page 346 and 355. The Bankruptcy Act 1887 (NSW) s 135 was not, like an equity appeal, a re-hearing. Re Baker (1889) 6 WN (NSW) 17 (NSW Sup Ct, FC)." No elaboration upon this submission was propounded, by reference to transcript or otherwise, and it is unclear as to whether the same was ultimately pressed. It is readily apparent in any event, from the findings of his Honour for instance in [3] of his reasons for judgment, that the Federal Magistrate fully understood that his function was one of a re-hearing (Martin v Commonwealth Bank of Australia [2001] FCA 87; Wilcox v Cottrell [2002] FCA 1357), and I have no reason to doubt that his Honour did comprehensively observe that procedural requirement. No complaint appears to have been made by the appellant's then legal representatives that a re-hearing was not being appropriately conducted by his Honour. Submissions advanced in relation to the rejection of the appellant's application for adjournment pending the outcome of his application for special leave to appeal 21 There remains for consideration the third issue or ground of appeal addressed by the Federal Magistrate, which has been set out in [3(iii)] above. In my opinion, the Federal Magistrate correctly restated and applied the principles governing adjournments, being principles somewhat similar to those subsequently restated and applied by Jacobson J in the context of the dismissal by Jacobsen J of the appellant's application to stay the orders of the Federal Magistrate. In my opinion the Federal Magistrate's application of those principles to the circumstances which relevantly confronted him cannot be faulted. Conclusion 22 In the result, the appeal must be dismissed with costs. In so doing, although I have not specifically addressed even most of the very numerous purported grounds of appeal, I have nevertheless read and given consideration to each of them, and have been unable to detect the existence of any potential or conceivable merit or viability in relation thereto. In those circumstances, I do not consider that it is necessary or expedient for me to set out or summarise each of the grounds of appeal and explain why the same is misconceived or irrelevant, if not incomprehensible, in relation to the issues correctly arising on the present appeal. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.