N2744

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MC. NO. 6 OF 2003

BETWEEN

HENRY ToROBERT
Petitioner/ Cross-Respondent

AND:

MARY ToROBERT
Respondent/ Cross-Petitioner

AND:

JANET ROBERTS
Cross – Co-Respondent

WAIGANI:		KANDAKASI, J.
2004:	19th October
1st December

JUDGMENTS & ORDERS – Self executing or conditional orders – Nature and effect of – No automatic effect – Perfecting of order required - Proof of condition stipulated being satisfied required before perfecting orders – Formal application to and Court order required to perfect conditional order – Court to be guided by the need to do justice on the merits of the substantive case.

MATRIMONIAL CAUSES – Special cause – Utmost good faith required – Petitioner required to disclose all facts – No ex-parte hearing where respondent indicates preparedness to defend petition – Time bar under Matrimonial Causes Act no bar to setting aside irregularity ordered judgment – SS. 60 & 63 Matrimonial Causes Act (Chp. 285).

Papua New Guinean Cases Cited:
Hon. Andrew Baing & The Independent State of PNG v. PNG National Stevedores Pty Limited & Bank of South Pacific Limited (23/02/00) SC627.
Dobson v. Dobson [1973] PNGLR 299.
Papua New Guinea Banking Corporation (PNGBC) v. Jeff Tole (27/09/02) SC694.

Overseas Cases Cited:
FAI General Insurance Co Ltd v. Southern Cross Exploration [1988] 165 CLR 268.
Wilson v. Wilson (1967) FLR 203.

Counsel:
S. Kassman for the Respondent/Cross-Petitioner/Applicant
J. Shepherd for the Petitioner/Cross-Respondent/Respondent

1st December 2004

KANDAKASI J.:	 Mary ToRobert, the respondent and cross-petitioner (the applicant) in these proceedings is applying to set aside an order purportedly made by, Justice Gavara-Nanu on or about 13th June 2003. The order in question followed, at least from Henry ToRobert, the petitioner and cross-respondent’s (the respondent) arguments, a failure by the applicant in complying with self-executing orders earlier made by the Court on 11th June 2003. Those orders imposed a duty on the applicant to file and self her answer and cross-petition on the respondent within a specified period and ordered also that, failing that, the relief sought in the petition by the petitioner, the respondent in this application would be granted.

The basis for the applicant’s application is that, the purported orders of 13th June 2003 were not made by the Court and further or in the alternative that, if the Court made those orders, she complied with the conditions stipulated under the earlier orders of 11th June 2003. She therefore argues that the condition stipulated in the self-execution orders of 11th June 2003 did not occur or exist to warrant the purported making of the orders of 13th June 2003.

The issues for this Court to determine therefore are these:

1.	Did the Court make the orders of 13th June 2003?
2.	Did the respondent meet the requirements for perfecting of conditional or self-executing orders? and
3.	If the answer to the second question is "yes", did that automatically entitle the respondent to the relief he was seeking in the petition? 

The Relevant Background and Facts

The relevant background and facts giving rise to these issues are these. The respondent married the applicant on 27 June 1981. Out of that marriage, they have one child, Henry Junior, who is studying in a University in Australia. Since, 15th March 2000, they have been living separate lives. On 25th March 2003, the respondent filed this petition seeking a decree of judicial separation on the ground of constructive desertion and an order for the distribution of matrimonial property.

Initially, the petitioner proceeded under the relevant rules as an uncontested matter and was listed for hearing on that basis on 11th June 2003. On that date, the matter came before, Gavara-Nanu J., for hearing. Both parties turned up with Mr. Peter Mills representing the respondent while Mr. Stephen Kassman appeared for the applicant. At that time, it became clear that the applicant was contesting the petition. Therefore, the Court ordered amongst others, with the consent of the parties three main orders. The first granted the applicant leave to file and serve an answer to the petition together with her cross-petition by or before 4:00 p.m. on 13th June 2003. Secondly, it ordered that if the applicant failed to comply with the first order, the relief sought by the respondent (petitioner) in his petition would be granted. Thirdly, it directed the filing and serving of affidavit evidence of the parties with the latest of that being the respondent’s response by or before 4:00 p.m. on 21st July 2003 and set 24th July 2003 at 9:30 am for trial of the matter. 

The respondent relying on his, his co-cross-respondent and two affidavits by Mr. Jeffrey L. Shepherd claim that, the applicant failed to file and serve her answer to the petition and her cross-petition by or before the 13th June 2003, deadline. He therefore went through his lawyers for a perfection of the self-executing order of 11th June, namely for a grant of the relief he sought in his petition. He did that by way of a letter dated 19th June 2003 from Blake Dawson Waldron Lawyers, per Peter Mills, addressed to the Registrar of the National Court. In that letter, the respondent enclosed one affidavit each by himself and his co- cross-respondent both sworn 19th June 2003 and a draft minute of the orders aimed at giving effect to the self-executing orders of 11th June 2003. The letter also requested the Registrar to refer the affidavits and draft minute of orders to Gavara-Nanu J., for his approval.

The respondent goes on to argue that, His Honour Gavara-Nanu J., considered the affidavit material and approved the orders. This, he says, was confirmed in a telephone conversation between His Honour’s associate, Mr. Patrick Timo and Mr. Jeffrey L. Shepherd on 1st July 2003, when the latter enquired about the signing of the orders. The respondent also says that, at that time, His Honour’s associate informed that the draft orders would be signed and the sealed copies would be available at the registry for collection. This, the respondent claims was done after the associate consulted with His Honour on the same day. 

On the other hand, the applicant relying on her own affidavit and several other affidavits in support, including one from Mr. Stephen Kassman, says that, His Honour Gavara-Nanu J., did not in fact make those orders either in open Court or in his chambers. Instead, she says the Registrar signed them. Further, she says, she did not default in terms of the orders of 11th June 2003. In so saying, she points to having filed and served her answer to the petition and her cross-petition against the respondent (petitioner) and his co-cross-respondent and notice of her proceedings on them by filing on 11th and serving sealed copies of these documents on Blake Dawson Waldron Lawyers on 13th June 2003. Mr. Mills confirms this in his affidavit of 19th June 2003. He however raises the point that they did not act for the co-cross-respondent and certainly did not hold instructions to accept service of those documents on her behalf.

An initial perusal of the Court file failed to provide any satisfactory answer to the question of whether the Court made the orders, the subject of this application. In relevant parts, the endorsement showed the signing of orders by consent on 11th June 2003. The endorsement following that was, one for 24th July in terms of:

"Jeff Shepherd (by telephone)
"ORDER: 1. Self executing orders were already made disposing off the matter."

The minutes of the orders in question complicated the issue. It showed the orders having being made on 13th June 2003 and entered on 30th June 2003 and filed on 2nd July 2003. Further, affidavits filed in support of the request for an approval of the orders in question, were sworn and filed on 19th June 2003, well after the orders were purportedly made on 13th June 2003. This was rather confusing because usually, the date of filing would correspond with the date of entry or the date of entry would be after the date of filing of the draft minutes of the orders and certainly not before that.

Given that, with the agreement of the parties, I sought His Honour’s assistance in terms of his recollection of what he might have done in relation to the orders in question. His Honour by memorandum dated 1st June 2004, informed that he could neither recall making the orders nor could he find any record of making the orders either on 13th June 2003, or anytime thereafter. His Honour also said his diary notes for the relevant dates showed nothing about this matter and particularly the making of the orders. Further, his Honour specifically stated that the entries for 24th July 2003 are in essence to the words or the substance of what Mr. Shepherd said to his associate. Mr. Shepherd in his affidavit of 18th October 2004, confirms this, and adds however, that the trial of the petition could not proceed on 24th July 2003 as fixed on 11th June 2003, because that was conditional on "no self executing order being made" under the orders of 11th June 2003. However, as the Court made the self-executing orders, the trial could not proceed on 24th July 2003. 

I provided copies of his Honour’s memorandum to the parties and suggested that they resolve the issue of whether or not the Court made the orders in question. Despite the allowance of sufficient time for that, the parties were not able to come to any agreement. Therefore, they returned to the Court on 19th October 2004, with further affidavit material and submissions, essentially, maintaining their respective positions.

Findings of Fact

A number of things are very clear to me from all of the material, including the arguments of the parties before me. The first thing is that there is no evidence of the Court sitting in an open Court and making the orders, the subject of this application. Secondly, the respondent’s lawyers provided two affidavits and a draft minute of the order to the Registrar of the National Court and asked him to refer them to Gavara-Nanu J., for His Honour’s approval. Thirdly, the respondent’s lawyers did not give any notice to the applicant’s lawyers of what they proposed or were doing. Fourthly, the respondents did not give any direct evidence of exactly when, where and who (judge) made the orders in question. Fifthly, the respondent did not explain satisfactorily, by any direct evidence when the file, his two affidavits and draft minutes reached Gavara-Nanu J from the Registrar. Further, he also failed to satisfactorily explain by any direct evidence how he was able to persuade the Court to ignore the applicants answer to the petition and her cross-petition already filed in Court by 11th June 2003 and were on the Court file from that day, and served on his lawyers on 13th June 2003. Finally, the respondent also failed to satisfactorily, explain the confusion in the dates appearing in the relevant minutes of the purported orders. This is critical because, the date of the order appears to be 13th June 2003 and its entry appears to be 30th June 2003. But, how could this be, when the affidavits in support and the request for the orders were not filed and made until the 19th of June 2003. 

In these circumstances, I find that the Court did not make the orders in question. In the event that I were wrong on that, I need to consider the questions of whether the respondent correctly demonstrated a case for a grant of orders purportedly made on 13th June 2003. In the context of a consideration of that question, it will be necessary to consider the nature of a self-executing order and the way to perfect such an order. I will start with the later first.

The Relevant Law

The Supreme Court in Hon. Andrew Baing & The Independent State of PNG v. PNG National Stevedores Pty Limited & Bank of South Pacific Limited (23/02/00) SC627 settled, in my view, the relevant principles governing conditional judgments or self-executing orders in our jurisdiction. In that case, the first respondent sued the appellants and the PNG Harbours Board for damages. After the close of pleadings and during pre trial proceedings, the respondent obtained orders for discovery of documents. The appellants did not comply with Orders of the Court for discovery of documents. The Court therefore granted a conditional order in terms of the following in relevant parts:

"1. 	That the First and Third Defendants make file and deliver a List of Documents verified by Affidavit within forty-eight hours (48) of the making of this Order.

2.	That in default of compliance with this Order and on the filing of an Affidavit of non compliance the Defence be struck out and interlocutory judgment be entered for the Plaintiff against the First and Third Defendants."

The appellants did not comply with the terms of the first order. Consequently, the respondents filed an affidavit with the registrar for the appellants defence to be struck out and for the entry of judgment with damages to be assessed. The registrar accepted the affidavit, struck out the appellants’ defence, and entered judgment against them.

The appellants did nothing about the judgment against them until about 16 months later, when they made an application for a set aside of the orders. The National Court refused that application because it was of the view that, because the orders were by consent of the parties, it lacked jurisdiction. That led to an appeal to the Supreme Court.

In determining the appeal in favour of the appellants, the Supreme Court observed at page 6 of the judgment:

"But what is equally clear is that the said orders were conditional orders. We say they were conditional orders because the terms of it were conditional upon the happening of some event in the future. The event was that the Appellants were to ‘make file and deliver a list of documents verified by affidavit within forty eight hours (48) of the making of this Order.’ This meant that if the appellants did not comply with the terms of the order, the respondent had to come back to the Court and an appropriate application to the Court. Thus, this required further judicial function to be exercised in determining that the condition had not been satisfied at the specified time."

The Court had regard to the decision of the High Court in Australia in FAI General Insurance Co Ltd v. Southern Cross Exploration [1988] 165 CLR 268 which considered, amongst others, the meaning and effect of conditional orders. There the court per Gaudron J., at 289, said:

"A conditional order, of its nature, necessitates the exercise of the further judicial function of determining that the condition was not satisfied at the specified time."

In that case, the Court of first instance made conditional or self-executing orders against the plaintiff in relation to the provision of particulars and security for costs within a specified date. The plaintiff applied for an extension of time, which the Court denied. Immediately on the same day, the plaintiff filed a document it contended was the provision of further particulars and furnished the required deposit. Subsequently, the plaintiff filed an application for orders declaring that the proceedings were not dismissed when the deadline for it to provide the particulars and to furnish the security expired and also sought an extension of time to comply if need be. The Court of first instance dismissed that application saying because the earlier orders were self-executing, the proceedings had terminated and so therefore, the Court was without jurisdiction to grant the relief sought. 

On appeal, the appellate court held that, the earlier orders requiring the plaintiffs to give particulars and furnish security were conditional or self-executing orders. As such, it required further judicial function to determine that the condition was not satisfied. As such, the Court of first instance had the power to hear and determine the application for extension of time on its merits.

In the case before our Supreme Court, the Court held at pp.8 – 9:

"In the present case as the orders of the 13 September 1996 were conditional orders, there was therefore a need for further judicial function to determine whether the condition had been satisfied or not at the specified time.
…
Secondly, as we have said earlier, as the orders of the 13 September 1996 were conditional orders, the very nature of those orders necessitated the exercise of further judicial function of determining whether the conditions were satisfied or not at the specified time. This meant, in our view, that upon expiration of the specified time the First Respondent ought then to have applied by way of notice of motion to the Court under Order 9 r 25 (1) (b) NCR to have the appellants' defence struck out and judgment entered.

This would require the Court to exercise further judicial function to determine if the condition had been satisfied or not at the specified time.

Even though the orders of 13 September were by consent, nevertheless the orders were conditional orders requiring further judicial function to be performed. Therefore it meant that the respondent had to come to the Court, for the Court to exercise further judicial function to determine whether the conditions had been satisfied or not at the specified time."

							(Emphasis added)

Then in relation to the Registrar making the orders the subject of the appeal in that case, the Supreme said this about that at pp. 10 - 11:

"The term ‘Court’ is defined in the rules to mean ‘a Judge or acting judge of the National Court’. See S.6 NCR. Thus under this provision only a judge has the jurisdiction to strike out a defence and order that a judgment be entered. The definition does not include the Registrar or anyone else. The Registrar therefore had no jurisdiction to make any orders under Order 9 r 25.

In this case no court made the Orders of the 17 September 1996. The Respondent did not apply to the Court to firstly determine whether the conditional order had been satisfied or not at the specified time. Further when the conditional order had not been satisfied the Respondent ought to have applied to the Court by a appropriate notice of motion pursuant to Order 9 r 25 (1) (b). In the present case the Respondent did not do that. In other words it did not comply with the procedural law set out under Order 9 r 25 (1) (b). Instead of complying with this procedure it filed an affidavit and had the Registrar make the Orders. This was not regular. The registrar had no jurisdiction to make the orders on 17 September 1996. He simply had no jurisdiction to do so. It follows from these that the interlocutory judgment made on 17 September by the Registrar was irregular as having being made without jurisdiction."

The clear impression I gather from these authorities is that, self-executing or conditional orders are not final orders in themselves. Instead, they are a forewarning of what would happen if a party required to take certain actions or steps specified in such orders fails to take them within the time limits stipulated by such orders. Such orders are therefore, not an end in themselves but rather set conditions precedent for the entry of the order or judgment forewarned in these kinds of orders on the fulfilment of the condition specified in the order. Then where there is a satisfaction of the stipulated conditions, it entitles the party seeking its benefit to go back to the Court and demonstrate the satisfaction of the condition and there being no impediment to the grant of the orders or judgment already forewarned. 

This, as the Supreme Court said, requires further judicial function. That function is to determine a satisfaction or not of the condition stipulated in the self-executing or conditional order. If the exercise of that judicial function results in a determination in terms of a satisfaction of the conditions, the Court would then make the orders or enter the kind of judgment or orders forewarned. It follows clearly therefore that; there is no automatic coming into effect or issuance of the forewarned orders or judgment on the expiry of the set deadline. Given that, it appears clear to me that, it is a misnomer to describe the kind of orders under consideration as "self-executing" or "conditional orders." They should instead be described as "condition imposing orders". 

The authorities also make it very clear that, the further exercise of the judicial function requires the filing and serving of a notice of motion in accordance with the rules of the Court. This enables a hearing of both or all of the parties to the relevant action before arriving at the final decision on the satisfaction of the stipulated conditions and the consequence that should follow from a determination of that question. The authorities do not suggest, the party seeking benefit from a conditional order should proceed ex parte and informally in chambers. It follows therefore that, the notice of motion must be heard and disposed off in the normal way in open court unless, the parties otherwise agree. This is necessary because, it might end one’s claim or may mean judgment against one of the parties. Hence, before the Court comes to a decision on an issue that might ultimately end a party’s litigation or a defence, that party must be first heard, which the principles of natural justice adopted under our Constitution adopts and guarantees. 

Application of the Law to the Facts

In the present case, there is neither any evidence nor is there any argument that, the respondent did not file and serve a notice of motion, seeking to perfect the condition imposing orders of 11th June 2003. Instead, the clear and uncontested evidence of the respondents is that, two affidavits together with a draft minute of the purported orders of 13th June 2003 were forwarded to the Registrar, for him to on forward to His Honour, Gavara-Nanu J. It is not clear whether the Registrar forwarded the documents to the His Honour and if so when. Likewise, it is not clear when His Honour received the documents and made the orders. If His Honour made the orders, which, he has no recollection of, it is not, clear on what authority he was able to do that. 

Certainly, the issues of filing and serving a notice of motion, hearing the parties in open court and the satisfaction of the condition in the orders of 11th June 2003 did arise. If the Court made the orders of 13th June 2003, just how did his Honour address these issues is not clear. 

In relation to the issue of satisfaction of the condition, I note that the evidence discloses, the applicant having filed her answer to the petition against her and her cross-petition against the respondent and his co-cross-respondent. This was done on 11th June 2003, being the same day of the orders imposing the conditions, and well before the expiry of the date stipulated in the orders of 11th June 2003. The evidence also shows clearly service of these documents on the applicants’ lawyers on 13th June 2003, being the deadline for the service of those documents. Interestingly, it is the same day on which, the Court purportedly, made the orders the subject, of this application. However, that could not happen given that the deadline was at 4:00p.m. on the 13th of June 2003. The only issue taken by the respondent’s lawyers was that, they did not have the necessary instructions to accept service of the documents on behalf of the co-cross-respondent. There was therefore no issue with regard to service on the respondent.

On the above facts, surely there was compliance of the first part of the orders of 11th June 2003, in so far has it required filing and serving of the applicants, answer to the petition against her and her cross-petition on the respondent. The only difficulty was with service of these documents on the co-cross-respondent. The evidence of the applicant shows that she arranged for service on the co-cross-respondent but had difficulty locating her. This resulted in attempted service on her. Interestingly, the respondent and his co-cross-respondent admit in their respective affidavits of living together at the relevant time, at a particular address at the Islander Village in Port Moresby. No doubt, through process adopted by the applicant and the evidence of the respondent and his co-cross-respondent living together, the respondent and his lawyers knew that, the applicant was having difficulty in effecting service on the co-cross-respondent. This clearly indicated to them that the applicant was not sitting back and doing nothing about her duties under the orders of 11th June 2003. She complied fifty percent (50%) of what was required of her concerning the need for her to file and served the documents in question on the co-cross-respondent. Despite this, the respondent to the application before me, proceeded in the way he did to secure orders ultimately determining the petition against the applicant in a summary manner on the pretext of failure to comply with the orders and therefore satisfaction of the first part of the orders of 11th June 2003.

Given these facts the question then, was or could the Court have been satisfied that the conditions under the orders of 11th of June 2003 were satisfied to enable the ultimate making of the orders forewarned in those orders? In the absence of any evidence establishing a case contrary to the above, I am of the view that, the respondent did not and could not have persuaded the Court in terms of the conditions under the orders of 11th June 2003 being met. 

Matrimonial causes, such as this case, are a special kind of proceedings. The Matrimonial Causes Act (Chp. 285) and the rules enacted under the Act mainly govern these kinds of proceedings. Clarkson J., highlighted the special nature of matrimonial causes in Dobson v. Dobson [1973] PNGLR 299, in this way:

"‘It has been pointed out time and again that matrimonial matters are not purely private litigation. A duty lies upon every petitioner to make full disclosure to deal with the court with the utmost good faith.’"

There, His Honour was quoting from the judgment of the Asprey J.A., in the Australian Federal Court in the case of Wilson v. Wilson (1967) F.L.R. 203 at pp. 217-218. His Honour said this in the context of an application under s.68 (now 63) of the Matrimonial Causes Act for a set aside of an order nisi for the dissolution of marriage.

The Court there granted the application because it found that the petitioner did not disclose to the Court hearing the petition and granting the order nisi that, the respondent was taking steps to defend the petition. In the circumstances the Court found that, the petitioner did not act in utmost good faith to the Court in that, the petitioner misled the Court into thinking the petition was uncontested.

If anything is clear, from the above judgment, it is the fact that, a petitioner in a petition for divorce and related orders that, he or she has to act in utmost good faith to the Court by disclosing all the information he or she knows. Further, where a respondent to a petition shows an interest in defending a petition he or she is entitled to a hearing, unless by his or her own conduct makes an inter parte hearing impossible.

In this case, the applicant appeared in Court on 11th June 2003 and demonstrated her interest in opposing the petition against her and that she was going to file a cross-petition against the petitioner (respondent) and the co-cross-respondent. She was therefore, given the opportunity to file and serve her answer to the petition against her and her cross-petition by 11th June 2003. She filed and served these documents on the respondent but not the co-cross-respondent. Given that, in fairness, she was entitled to notice or service of the process the respondent was invoking which, had the potential of shutting out the applicant completely. The respondent denied her that entitlement. That meant that, the respondent did not give her the opportunity to be heard, which is a cardinal principle in our justice system before final judgment against her. If she was given the opportunity to be heard, she would have explained the difficulties she was having and may have successfully applied for an extension of time and possibly an order for substituted service.

It is clear law that, the Courts exist to do justice on the substantive merits of the case, as the substantive law may grant: Papua New Guinea Banking Corporation (PNGBC) v. Jeff Tole (27/09/02) SC694. Hence, the Courts have expressed great reluctance in readily granting default judgment. This reluctance has been more so in matrimonial causes such as this given the interest and emotions involved in the dissolution of a marriage. For years, a man and a woman live together under one roof and become a single unit. Through that relationship, they build a family and family properties where there a real feelings and emotions developed, attached and maintained. Later when one seeks to opt out of that relationship, a lot of feelings and emotions are also involved because it goes into the very core of some of the parties. That is why, in my view, the legislature allowed for orders nisi rather than final orders, capable of set aside, unlike in other causes of action.

In this case, the applicant and the respondent are the key principle parties. They were married for almost 20 years. They had children and built up properties and other assets. The petition seeks dissolution of that marriage and a distribution of various family properties and or assets. Surely, this affects the parties in a more involved way. This cannot in my view, be suddenly decided in a certain way to the exclusion of the other merely because of a technical failure as in this case where there is a failure to serve personally a co-cross–respondent, the applicants answer to the petition and her cross-petition, but having served these document on petitioner. In the circumstances, if not for the other reasons already stated, the order in question could not stand on this ground alone. As such, it could be set aside. 

The respondent might well rely on section 60 of the Matrimonial Causes Act and say the applicant is precluded from bringing this application because the time period for her to do so has expired. Indeed, I note that the respondents are in fact taking issue on the timing of this application. The section in question would operate against the application if the orders of 11th June 2003, were not conditional. However, the fact of the matter and is correctly not in issue that, the orders of 11th June 2003 were conditional.

The Supreme Court in Hon. Andrew Baing & The Independent State of PNG v. PNG National Stevedores Pty Limited & Bank of South Pacific Limited (supra) as already noted, had an application for set aside that was made 16 months after the entry of the purported orders of the Court. The Court appears not to have concerned itself with the delay issue after having satisfied itself that, the order or judgment before it was irregularly entered and required correction.

In the present case, it is uncertain as to whether the Court made the order, as it is not clear who made the orders, when and where. Besides, given the very nature of conditions imposing orders, commonly known as "self-executing" or "conditional" orders, further judicial function was required before the perfecting of the orders forewarned. Hence, the orders could not come into force or be granted without the exercise of further judicial function. The orders, the subject of this application, have come into existence without any formal application by notice of motion and without hearing or giving the opportunity to be heard before judgment that finally disposed of the action, which no doubt affects the applicant in may ways. It is also clear that, there was no hearing in an open court before a court granted the orders or judgment in question. Clearly, the respondent obtained the orders highly irregularly. Accordingly, the applicant is entitled as was the appellants in the Hon. Andrew Baing & The Independent State of PNG v. PNG National Stevedores Pty Limited & Bank of South Pacific Limited (supra) for a set aside of the purported court orders and or judgment of 13th June 2003 on the basis of the authorities discussed in that case.

Having regard to all of the foregoing, I would answer each of the issues presented as follows:

1.	The Court did not make the purported orders of 13th June 2003 on that date or at all.
2.	The respondent did not meet the requirements for the perfecting of the conditional, self-executing, or condition imposing orders of 11th June 2003. 
3.	Even if the respondent met the requirements for perfecting of the conditional, self-executing or condition imposing orders, a further judicial function was required. As there was no further exercise of judicial function, the purported orders of 13th June 2003, were irregularly obtained which require correction.

In view of the above findings and answers to the issues raised, I grant the orders sought in paragraphs 2, 3, 4 and 5 of the applicant’s notice of motion filed on 15th December 2003.

_________________________________________________________________________
Lawyers for the Applicant/Respondent/Co-Petitioner:	Kassman Lawyers
Lawyers for the Respondent/Petitioner/Cross-Respondents:	Blake Dawson Waldron