CITATION: Trustees of the Pious Society of St Charles v Vodap Pty Ltd & Ors ( No2) [2004] NSWADT 113 DIVISION: Retail Leases Division APPLICANT Trustees of the Pious Society of St Charles FIRST RESPONDENT Vodap Pty Ltd SECOND RESPONDENT PARTIES: Vincenzo Macchia THIRD RESPONDENT Ornella Macchia FOURTH RESPONDENT Domenico Macchia FIFTH RESPONDENT Adriano Macchia FILE NUMBER: 035023 HEARING DATES: 17/10/2003, 9/12/2003 SUBMISSIONS CLOSED: 05/31/2004 DATE OF DECISION: 06/08/2004 BEFORE: Montgomery S - Judicial Member APPLICATION: Costs MATTER FOR DECISION: Costs LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150 Brooks Maher v Cheung [2001] NSWADT 18 Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12 Colleja v Malli [2001] NSWADT 20 Gizah Pty Limited -v- AXA Trustees Limited (No. 2) [2001] NSWADT 164 Hoblos v Marchese [1999] NSWADT 127 CASES CITED: Holpitt Pty Limited v Varimu Pty Limited (1991) 103 ALR 684 Lynch v Perpetual Trustees Australia Limited [2000] NSWADT 78 Prsa v Polymeris [2000] NSWADT 108 Raethel -v- the Director General Department of Education and Training [2000] NSWADT 56 Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27 Trustees of the Pious Society of St Charles v Vodap Pty Ltd & Ors [2004] NSWADT 71 Wood and Anor v Bergman (No. 2) [2003] NSWADT 175 APPLICANT REPRESENTATION: J Hollier, solicitor RESPONDENT S Underwood, solicitor ORDERS: Each of the applications for costs is refused. Each party is to pay their own costs. REASONS FOR DECISION Background 1 In the substantive matter, the Trustees of the Pious Society of St. Charles ("the Applicant"), as lessor of the first floor together with part of a verandah of a building on land at 44 Beaumont Street, Hamilton ("the Premises") sought certain orders against Vodap Pty Ltd ("Vodap") as the lessee of the Premises and against Mr. Vincenzo Macchia, Mrs. Ornella Macchia, Mr. Domenico Macchia and Mr. Adriano Macchia as guarantors to the Applicant of Vodap's performance of all of its obligations under the Lease ("the Respondents"). The Premises were used as a restaurant known as The Italian Centre Restaurant. That business ceased trading on or about 28 December 2002. 2 In determining the substantive matter I made the following orders: "1. The application brought by the Trustees of the Pious Society of St. Charles is dismissed. 2. In the absence of any agreement between the parties in relation to the amount that Vodap should be entitled to recover in relation to the cost of cleaning, each party is invited to file further evidence and submissions. Any further material on which Vodap relies is to be filed and served within 14 days of these reasons. Any material that the Applicant wishes to provide in reply is to be filed and served within 28 days of these reasons. 3. Each party is invited to file written submissions in relation to the issue of costs within 28 days of the date of these reasons. 4. Leave is granted to either party to have the matter relisted for further hearing on the matters that remain outstanding. Any application for relisting is to be filed within 28 days of the date of these reasons." 3 The reasons for decision in the substantive matter are recorded in Trustees of the Pious Society of St Charles v Vodap Pty Ltd & Ors [2004] NSWADT 71. Pursuant to Order 3, the Respondents have sought an order for costs. The parties each provided submissions in relation to the costs application. This determination is made on the basis of the written submissions without the need for the parties to attend. 4 The Applicant claims costs in respect to the Respondents' motion to strike out the claim heard in the Local Court on 6 March 2003. Relevant Legislation 5 The Tribunal's power to award costs in relation to proceedings before it is governed by section 88 of the Administrative Decisions Tribunal Act 1987 ("the ADT Act"). Section 88 of the ADT Act provides: "88 Costs (1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application." 6 Pursuant to section 88(3) of the ADT Act, the power to award costs does not apply in proceedings for an original decision, such as the present proceedings, unless the enactment conferring jurisdiction provides for the awarding of costs. Section 77A of the Retail Leases Act 1994 ("the Act"), which is the enactment conferring jurisdiction, provides: "77A Tribunal may award costs The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Part." 7 The Tribunal's power to award interest in relation to a retail tenancy claim before it is governed by section 72A of the Act. Section 72A(1) provides: "72A Power of Tribunal to award interest (1) When the Tribunal orders on a retail tenancy claim or an unconscionable conduct claim that a person pay money to another person, the Tribunal may order that there is to be included, in the amount ordered to be paid, interest at a specified rate on the whole or any part of that amount for the whole or any part of the period between when the cause of action arose and when the order takes effect." The Respondents' submissions 8 The Respondents submit that they should be entitled to an order that the Applicant pay their costs of these proceedings and they further submit that there are special circumstances entitling them to such an order. 9 The Respondents submit that they made every reasonable attempt to resolve the matter by repeated alternate dispute mechanisms whereas the Applicant commenced proceedings without necessity to do so. The Respondents assert that in doing so the Applicant acted in breach of its obligations under the Act; without notice to the Respondents that there was a dispute, and without first providing Vodap with adequate particulars or evidence in respect of monies allegedly owing or without any reasonable attempt to resolve any dispute. Further, after commencing proceedings, the Applicant made no genuine attempt to provide Vodap with the proper evidence of outgoings paid as requested by Vodap, to which it was or should have been entitled and as required under the Act. 10 The Respondents further assert that the Applicant brought and maintained a vexatious unsustainable claim of entitlement to CPI increases during the term of the lease. In all the circumstances the Applicant should not have proceeded to a hearing of the case, particularly with respect to its claim for rectification. The Respondents were put to unnecessary expense in filing a defence and Notice of Motion in response to the Applicant's Statement of Claim issued out of the Local Court of Newcastle. Had the Applicant given the Respondents notice of its allegations or made application to the Retail Tenancy Unit, then the Respondents would not have been put to the unnecessary costs of dealing with the Local Court action. 11 The Respondents submit that from the time they became aware of the Applicant's claim and upon receipt of proper material in support, they made every reasonable attempt to comply with their obligations under the lease. Further, they made every attempt and acted reasonably in attempts to resolve all matters in dispute. 12 In further support of their submissions, the Respondents rely on the Decision of the Tribunal in Gizah Pty Limited -v- AXA Trustees Limited (No. 2) [2001] NSWADT 164 and the authorities cited in paragraphs 25, 27, 30, 31, 33 and 36 of that Decision. Those paragraphs state: "25 Secondly, in my view the power to make costs order under section 88 is not confined to the entire case of the applicant, rather a costs order can be made in respect of part only of the case if the circumstances so warrant. In Prsa v Polymeris [2000] NSWADT 108 the Tribunal said: (23) While the applicant's claim was clearly flawed in law as to the failure to approve the new tenant, it was not so clearly flawed in the claim for breach of the covenant of quiet enjoyment. Accordingly it my view there are no " special circumstances" concerning the entire case warranting an order for costs. However I do accept the submission by the lawyer for the Lessor that the cost of obtaining the expert business evidence in reply was only necessary because the consent to assignment claim was pressed. Accordingly in my view the applicant should pay respondent's costs of retaining (the expert ) to prepare the report … 27 The real question is: what are "special circumstances" in the context of the Retail Leases Act? A starting point is Brooks Maher v Cheung [2001] NSWADT 18. Although this was an administrative law application the Tribunal indicated that it could " only make an award of costs if it is satisfied that there are special circumstances warranting an award of costs." The Tribunal then went on to analyse the phrase "special circumstances" and said this- (l1) (referring to Mangoplah) The legislature has given a clear indication that the Tribunal is not to apply the usual approach to an unfettered discretion to award costs in judicial proceedings, ie that the successful party can expect to enjoy the benefit of a costs order. Something more than success is needed to warrant an order, whether the successful party is a citizen challenging an administration decision or an administrative agency resisting such a challenge. (12) " Special" is given 17 meanings in the Macquarie Dictionary, Third edition, The Macquarie Library . One meaning is "distinguished or different from what is ordinary: a special occasion." Another meaning is "extraordinary; exceptional; exceptional in amount or degree, especial; special importance." In interpreting the term "special circumstances" in a different context, the Federal Court in Holpitt Pty Limited v Varimu Pty Limited (1991) 103 ALR 684 preferred the former definition. In my opinion the court's duty in application of this kind is to consider whether the applicant has shown some circumstances which takes the matter out of the ordinary course. (14) We are satisfied that the plain meaning "special circumstances" is circumstances which are out of the ordinary, without having to be extraordinary or exceptional. But "special circumstances" alone are not sufficient. Under s 88 (1) the special circumstances must "warrant an award of costs". The circumstances which would or would not "warrant an award of costs" can not be exhaustively listed. … 31 In Hoblos v Marchese [1999] NSWADT 127 the Tribunal refused to find "special circumstances" and in support of its opinion relied upon numerous cases .The Tribunal correctly (in my respectful view) observed that the discretion under section 88 is not unfettered, required that the Tribunal "must take into account all the circumstances" and that the "discretion to displace (the ordinary rule that costs follow the event) is a judicial one requiring the private and public proposes of the rule to borne in mind." … 33 The Retail Leases Division of this Tribunal deals with commercial matters. All parties to a retail lease are parties engaged in trade and commerce for reward. As such they must be regarded as commercial persons and it is not to the point that one or either of them is unrepresented. Provided that "special circumstances" are found that would warrant the making of a costs order and there are no other disentitling factors, it seems to me that an order must be made. Indeed, the commerciality of this Division was identified in Colleja v Malli [2001] NSWADT 20 where the Tribunal made this observation: 49 The only other matter which I need to address, is the matter of costs. I have jurisdiction to award costs, but only if there are special circumstances, and I am satisfied that the offer of Lease made by the Lessor at the commencement of the second day's hearing was both proper (and perhaps even generous) and amounts to special circumstances. I note that the Respondent did not completely reject the offer at that time, but sought to further negotiate it to terms even more generous, an approach, which in my view at the time (and on mature consideration still was) so inappropriate that it amounted to a full rejection. Thus, Applicants' costs of the last day's hearing (but not the costs of preparing for it) and the costs of making written submissions, all on a party/party basis, must be borne by the Respondent. … 36 It seems to me that the various aspects of the matter claimed the Applicant to constitute "special circumstances" generally fell within the general principle that "the matter falls within the aspect of litigation before the courts which is of a nature which the courts decide everyday"-see Lynch v Perpetual Trustees Australia Limited [2000] NSWADT 78 at para 42." 13 The Respondents also referred the Tribunal to paragraphs 38, 45, 46 and 47 of Gizah which state: "38 The first aspect is the submission by the Applicant generally to the effect that the case should not have been run by the Respondent, at least with regard to arguing the representations point, simply because it was to a major extent on the Respondent's own evidence that the representations were have been found to have been made, and against the Respondent. That is not discounting at all the evidence of the Applicant, rather it supports the argument that it was from the mouths of the Respondent's own witnesses that the Tribunal could find that the representations were in fact made. Therefore the case at least on that aspect should not have been run at all, rather the Respondent should have admitted that the representations had been made at the outset. … 45 However, there is a third aspect of this litigation that must be put into the balance. The Applicant relied upon an affidavit of its solicitor which showed that prior to the proceedings being commenced the Applicant made an offer to settle at a figure less than ultimately ordered. During the proceedings themselves the Applicant made two further offers to settle, again in each case less than the amount ultimately ordered. In both cases such offers were either rejected or not replied to. In addition on the first day of the hearing the Respondent made an offer and again it was considerably less then the amount ultimately awarded. 46 In commercial matters offers to settle, where properly made, are matters to be taken into account on the question of costs. A party responding to such an offer needs to weigh up, by a cost-benefit analysis, the commercial desirability of proceeding with the litigation. Calderbank letters, formal offers of compromise and offers to settle are all matters to be weighed up in the balance. In this particular case the Applicant put forward three offers to settle, one prior to commencement of legal action, all of which were rejected, by silence or formal rejection. The Respondent's settlement offer was plainly inadequate and bore little or no relationship with the losses suffered by the Applicant. 47 In my opinion these factors coupled with those set out in paragraph 37 above outweigh by a considerable margin the disentitling factors set out in paragraphs 39-42 above such that in my view there are "special circumstances warranting an award for costs" in favour of the Applicant." 14 The Respondents submit that Judicial Member Molloy in Gizah emphasises the commercial nature of the Retail Leases Division of the Tribunal and correctly highlighted the importance of commercial considerations to offers of settlement and questions of costs. They further submit that if parties to proceedings are not faced with the possibility of not only having to pay their own legal costs but that of the other party, then there is less pressure on that party to genuinely consider all reasonable offers of settlement. This is particularly the case where an applicant may be in a financially superior position to that of a respondent and where its financial risk or liability as to costs generally is proportionally less than is its opponent's. In determining whether costs should be awarded to a successful party to proceedings, the relative financial positions, experience and commercial strengths and actions of the parties should be considered along with the quantum and certainty of a claim and all reasonable offers to settle. 15 The Respondents submit that the actions of the Applicant's agent and the Applicant in pursuing the claim as they did and their unwillingness to genuinely attempt to negotiate a reasonable settlement even up to the day preceding the hearing were actions designed to take advantage of the Respondents' limited commercial expertise and bargaining strength. The Respondents submit that while this may or may not have been intentional, the effect is the same. The Respondents assert that for any offer to have merit and be worthy of acceptance it must be reasonable and consistent with the losses suffered. They further assert that the Applicant's offer was not genuine, completely inadequate and the Respondents could not have accepted it and avoided the need for the hearing that followed. 16 Additionally, the Respondents submit that the quantum of the Applicant's claim, which remained uncertain throughout the course of proceedings, was not commensurate with the probable, and ultimately actual, costs of running the proceedings. The Respondents submit that it is highly probable that the Applicant was in a financially superior position to the Respondents and that while the Respondents' offers of settlement were reasonable in all the circumstances, the Applicant failed to give proper consideration to those offers. 17 The Respondents submit the Applicant's actions were frivolous and vexatious. Had the Applicant been aware that it might be ordered to pay the costs of the Respondents if unsuccessful, it would have taken a more genuine approach to less costly alternative dispute resolution processes and would have not pressed part of parts of its case which were unsustainable in the circumstances. 18 The Respondents ask the Tribunal to accept that the events and actions of the parties constitute "special circumstances" that warrant an award of costs in their favour. They seek an award of costs from 24 January 2003, shortly after the date of service of the Applicant's Local Court Statement of Liquidated Claim, until conclusion of the matter. In the alternative, the Respondents seek an award of costs for the costs of defending and filing a notice of motion transferring the Local Court proceedings to the jurisdiction of the Tribunal in accordance with the Act, or otherwise as the Tribunal deems fit. The Applicant's Submissions 19 The Applicant claims costs in regard to the Respondents' motion to strike out the claim heard in the Local Court on 6 March 2003. That motion was for a strike out and was contested. The motion was to strike out on the basis that the Applicant was not a legal entity. The motion was unsuccessful and costs were reserved. The Applicant asks the Tribunal to assess its costs as to the motion at $600. 20 In response to the Respondents' submissions the Applicant argues that there are no special circumstances such as to warrant an order for costs against it. The Applicant submits that it had an arguable case. It was entitled to argue its case and put the Respondents to evidence. The Applicant bore the burden of proof which it was not able to discharge, but that does not mean that the bringing of the case was unjustified, and certainly does not mean that it was "frivolous and vexatious". The Applicant submits that it presented a clear and arguable case as to quantum and jurisdiction as set out in its Points of Claim and as detailed in submissions at the hearing. 21 The Applicant further submits that it was not being uncommercial in running the claim. The amount of the claim was not small and the parties' lawyers look steps to keep costs to a minimum. The Applicant also asserts that it did make reasonable attempts to settle the matter. There was mediation attended by both parties. In support of this assertion Applicant referred to emails the solicitors for each party, each of which show a desire to negotiate and a desire to run the proceedings in an economical way. 22 The Applicant asserts that section 75 of the Act does not require proceedings to be commenced in the Tribunal. There are good reasons for a country applicant to bring proceedings in the Local Court. These include the default judgement mechanism of the Local Court and the convenience of the court at Newcastle. 23 The Applicant further asserts that there is no evidence to support the Respondents' allegation that there is a difference as to the party's financial positions. As to the relative commercial experience of the parties the Applicant argues that with respect to the issue of costs the relevant experience is current experience and in that regard the Respondents had legal representation. The Applicant further argues that the allegation that the Applicant's offer was unreasonable is incorrect and unfair. The Applicant also asserts that it is unfair in that the Applicant is unable to give evidence of the offers made at mediation. There is no evidence of a Calderbank offer in the Respondents' submissions. 24 The Applicants accordingly submit that there are no "special circumstances" as to warrant the award of costs that the Respondents seek. Findings 25 The common law principle governing costs in civil cases is that costs 'follow the event'. However, section 88 of the ADT Act lays down a different principle, namely, that the Tribunal must be "satisfied" that there are "special circumstances warranting an award of costs": Wood and Anor v Bergman (No. 2) [2003] NSWADT 175. 26 In Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12 it was stated at paragraph 90: "The power to award costs in circumscribed. In keeping with the position found in many modern statutory tribunals, the usual rule is that costs are not to be awarded. This is a measure that has at least two objectives - one, to remove an impediment to the exercise of important rights that the Tribunal has been established to see protected where appropriate; two, to discourage the use of lawyers. In these ways the goals of affordable, accessible justice are seen as being supported. But circumstances can arise in proceedings where a party should be given some compensation by way of a costs order. The `special circumstances' power allows the Tribunal to take that action. 27 In Gizah Pty Ltd v AXA Trustees Ltd, Judicial Member Molloy stated at paragraph 29: "I am of the opinion that in order to satisfy the test of "special circumstances" one must find circumstances that are out of the ordinary, but without having to be extraordinary or exceptional, and those special circumstances would warrant an award of costs. 28 That view has been quoted with approval by several decisions of this Tribunal, most recently in Wood and Anor v Bergman. In that decision Deputy President ADCJ Chesterman also referred to other observations in Gizah Pty Ltd v AXA Trustees Ltd (No. 2) and observed that they were quoted with approval by an Appeal Panel of the Tribunal in the recent decision in Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27. The Deputy President stated at paragraphs 11 and 13: "11 It is recognised that the Retail Leases Division is unique within the Tribunal, in that it alone deals with commercial disputes between parties who are engaged in trade and commerce for reward. In Gizah , at [22] and [33 - 34], the significance of this for costs orders was explained as follows. Whereas in the context of appeals from administrative decisions the requirement of 'special circumstances' might be interpreted so as not to discourage proceedings by a private individual on account of the risk of an adverse costs order, no such consideration should apply in the context of retail lease disputes. The 'commerciality' of the Retail Leases Division calls for an interpretation quite different from that which might be adopted in any other Division of the Tribunal." "13. The proposition, however, that 'special circumstances' should be interpreted differently within this Division, because it deals with relationships of a commercial character, does not imply that costs should simply follow the event. This was made clear in Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150 at [4]." 29 It was further stated by the Deputy President at paragraphs 14: "14. In Alessa , it was said also, at [5-6], that where an application to the Tribunal lacked any conceivable merit in fact or law, this could constitute 'special circumstances' justifying a costs order under s 88 in favour of the successful respondent. It would be a situation where refusal to grant such an order would be 'seriously unfair'. In such a case, the purpose of the costs order would be to prevent the 'gross abuse' of the Retail Leases Act by frivolous, vexatious and misconceived proceedings." 30 The question to be determined is whether in the circumstances of this case there are special circumstances that warrant the making of an order for costs. The expression "'special circumstances" is to be given its normal meaning. The circumstances must be seriously beyond the usual or ordinary pursuit of a claim so that it would be seriously unfair to a party not to be awarded some or all of its costs where it has been successful. The question of whether the facts that had been proved constituted "special circumstances" is a question of fact: Randi Wiks Pty Limited v Pokana Pty Limited at paragraph 27. 31 The primary submissions on behalf of the Respondents appear to relate to the Applicant's pre-trial conduct and its conduct of the proceedings and that the application was wholly unsuccessful. 32 In Raethel -v- the Director General Department of Education and Training [2000] NSWADT 56 the President of the Tribunal considered that it would be an error to use the power to award costs for punitive purposes rather than for compensatory purposes. 33 The Respondents' submissions with respect to the Applicant's conduct of the proceedings are rejected. I do not accept that the application was "frivolous and vexatious". While I accept that the Applicant's may have based its case on erroneous information or poor advice from its agent, I do not accept that this amounts to "special circumstances". In my view the Applicant's arguments were put forward in good faith and the Applicant had a reasonable basis for those arguments. This is not a situation where the Applicant had an unarguable case. The position is not altered by the fact that the application was unsuccessful. 34 As to the Respondents' submissions with respect to the success of the application, I agree with the comments of Judicial Member Molloy in the unreported decision on an application for costs in Randi Wiks Pty Limited v Pokana Pty Limited [2003] NSWADT 11 March 2003 where he observed: "The plain fact that a party wins or loses or is successful or unsuccessful on a point does not mean that they are entitled to or should be the subject of a costs order. I think that principle is plain. What the Parliament has done in section 88 is leave it to the relevant Tribunal to determine what are special circumstances in the particular circumstances of a matter before it, and as there are many permutations and combinations of what may amount to special circumstances then that simply requires the Tribunal to search and find, if there are any special circumstances, in the particular matter." 35 That observation was endorsed by the Appeal Panel in Randi Wiks Pty Limited v Pokana Pty Limited at paragraph 42. If it were otherwise, then in effect the common law rule that costs follow the event, which Parliament has sought to displace, would be reinstated. 36 I note the argument presented by Mr. Underwood with respect to the Applicant's superior commercial and financial position and its alleged failure by the Applicant to negotiate in good faith. I agree that an abuse of process by use of a superior financial position to force another party to litigation, where that party's claim was without merit, could amount to special circumstances to give rise to an award of costs. However, I do not accept that the principle is applicable in the circumstances of this matter. It is clear that the parties did in fact participate in mediation in an attempt to resolve the dispute. It is not open to me to consider what transpired in that mediation and I am unable to comment on the reasonableness of any offers that might have been made. As to offers subsequently made by the Applicant, it seems to me that the amounts discussed were referrable to the respective positions adopted by the parties. While I agree that the Applicant's position did not succeed at the hearing it does not follow that it was unreasonable or unarguable. Without a finding that the Applicant's position was frivolous or vexatious I cannot agree that the offers were unreasonable even thought the Applicant's position was subsequently found to be without merit. 37 I do not accept that the reasons proffered by the Respondents justify an award of costs. In these circumstances, there is nothing that falls into the category of "special" in the circumstances that have been urged upon me. I am not satisfied that the circumstances warrant any interference with the position that each party should bears their own costs. I am therefore unable to accede to the Respondents' application that there be a costs order. 38 I note that the Respondents have not made any submissions with respect to the Applicant's application for a costs order in relation to the Respondents' motion to strike out the claim heard in the Local Court on 6 March 2003. It is my view that this matter should have been pursued in the Local Court. I appreciate that the Applicant might now be statute barred from pursuing that issue. 39 If the matter were to be determined in the Tribunal, any order would have to be made pursuant to section 88 of the ADT Act and it would be necessary for the Applicant to show that there were special circumstances warranting an award of costs. On the evidence before me I could not be satisfied that such special circumstances existed. 40 Consequently, I make no order as to costs in relation to the whole of these proceedings. Orders Each of the applications for costs is refused. Each party is to pay their own costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.