Civil and Administrative Tribunal New South Wales Medium Neutral Citation: OnePath Life Limited, Allianz Australia Life Insurance Limited and Suncorp Life and Superannuation Limited v NSW Registry of Births, Deaths and Marriages and Gerasimov (No 2) [2014] NSWCATAP 52 Hearing dates: On the papers Decision date: 22 September 2014 Jurisdiction: Appeal Panel Before: M Chesterman, Principal Member Decision: The Appellants are to pay 75% of the Second Respondent/Cross Appellant's costs of these appeal proceedings, as agreed or assessed. Catchwords: Review of decision under Births, Deaths and Marriages Act 1995 - merits of appeal against stay and of cross appeal - costs Legislation Cited: Administrative Decisions Tribunal Act 1997 Births, Deaths and Marriages Act 1995 Civil and Administrative Tribunal Act 2013 Cases Cited: Jonamill Pty Ltd v Alramon Pty Ltd (No 2) [2010] NSWADTAP 3 OnePath Life Limited, Allianz Australia Life Insurance Limited and Suncorp Life and Superannuation Limited v NSW Registry of Births, Deaths and Marriages and Gerasimov [2013] NSWADT 196 OnePath Life Limited, Allianz Australia Life Insurance Limited and Suncorp Life and Superannuation Limited v NSW Registry of Births, Deaths and Marriages and Gerasimov [2014] NSWCATAP 3 Valentino Franchise Pty Ltd v Brookfield Multiplex WS Retail Landowner Pty Ltd (No 2) [2012] NSWADTAP 40 Category: Principal judgment Parties: OnePath Life Ltd (First Appellant/First Cross Respondent) Allianz Australia Life Insurance Ltd (Second Appellant/Second Cross Respondent) Suncorp Life and Superannuation Ltd (Third Appellant/Third Cross Respondent) NSW Registry of Births, Deaths and Marriages (First Respondent/Fourth Cross Respondent) Sergy Gerasimov (Second Respondent/Cross Appellant) Representation: Counsel S Walsh (Appellants/First, Second and Third Cross Respondents) P Bingham (Second Respondent/Cross Appellant) Turks Legal (Appellants/First, Second and Third Cross Respondents) Crown Solicitor's Office (First Respondent/Fourth Cross Respondent) Maurice Blackburn Lawyers (Second Respondent/Cross Appellant) File Number(s): 139037, 139040 Decision under appeal Citation: OnePath Life Limited, Allianz Australia Life Insurance Limited and Suncorp Life and Superannuation Limited v NSW Registry of Births, Deaths and Marriages and Gerasimov [2013] NSWADT 196 Date of Decision: 2013-08-30 00:00:00 Before: General Division File Number(s): 133166,139040 reasons for decision Introduction 1This decision deals with an application by the Second Respondent/Cross Appellant in appeal proceedings for an order that the three Appellants (which are also Cross Respondents) pay his costs of these proceedings. 2The three Appellants/Cross Respondents are insurance companies. Henceforth, they will be referred to as 'the insurers'. The First Respondent/Fourth Cross Respondent is the Registrar of Births, Deaths and Marriages ('the Registrar'). The Second Respondent/Cross Appellant, Sergey Gerasimov ('the executor'), is the executor named in the will of Vladimir Ivanovich Safronov. 3The decision under appeal ('the Tribunal's decision') was given in the General Division of the Administrative Decisions Tribunal (hereafter 'the Tribunal') by the President of the Tribunal, Judge Kevin O'Connor. It was published on 30 August 2013 and is reported as OnePath Life Limited, Allianz Australia Life Insurance Limited and Suncorp Life and Superannuation Limited v NSW Registry of Births, Deaths and Marriages and Gerasimov [2013] NSWADT 196. The principal orders made by the Tribunal comprised the rejection of an objection to jurisdiction that had been made by the executor and an order staying the proceedings pending the resolution of concurrent proceedings in the District Court. 4An appeal by the insurers against the stay order and a cross appeal by the executor challenging the rejection of his objection to jurisdiction were filed on 26 September 2013 and 17 October 2013 respectively. They were heard by an Appeal Panel of the Tribunal on 23 December 2013. Because the order appealed from involved the exercise of an 'interlocutory function' as defined in section 24A of the ADT Act, leave to appeal was required by virtue of section 113(2A). The Panel granted this leave. 5On 1 January 2014, the Tribunal was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The decisions taken thereafter in these proceedings are therefore decisions of an Appeal Panel of NCAT. But because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule). 6On 14 February 2014, the Appeal Panel delivered its decision dismissing both the appeal and the cross appeal (OnePath Life Limited, Allianz Australia Life Insurance Limited and Suncorp Life and Superannuation Limited v NSW Registry of Births, Deaths and Marriages and Gerasimov [2014] NSWCATAP 3 - 'the appeal decision'). 7The appeal decision contained no order or direction regarding the costs of the appeal proceedings. But on 18 February 2014 the executor, by letter to the Registrar of NCAT, asked to be heard on the matter of costs. The Registrar then conveyed directions by the Appeal Panel setting a timetable for the filing of submissions on this matter and indicating that it would be decided 'on the papers': i.e., without a hearing. The executor and the insurers filed submissions on 9 April 2014 and 28 April 2014 respectively. 8Since the matter in issue in this decision is the costs of appeal proceedings that were initiated in the Tribunal, the Appeal Panel may be constituted by a member of NCAT who was formerly a Deputy President of the Tribunal, sitting alone: see Administrative Decisions Tribunal Act 1997 ('the ADT Act'), section 24A(1)(a) and (2)(a). Relevant facts 9Full outlines of the somewhat unusual facts of this case may be found in the Tribunal's decision at [1 - 9] and [18 - 22] and in the appeal decision at [7 - 21]. What follows is a brief summary dealing with the matters of significance for the present decision. 10On 10 March 2011, the Registrar made an entry in the Births, Deaths and Marriages Register ('the Register'), recording the death of a person named as Vladimir Ivanovich Safronov. Mr Safronov was an Australian citizen of Russian origin. Having been resident in New South Wales for some time, he travelled to Russia in October 2009. The entry in the Register stated that on 7 March 2010 he died at Kharkov in the Ukraine. 11Under the Births, Deaths and Marriages Registration Act 1995 ('the BDMR Act') the Registrar is authorised, at his discretion, to make an entry in the Register of a foreign death of a person ordinarily resident in New South Wales, so long as he has been given one or more documents that he considered to be 'equivalent' to a notice of the type required when registering a death occurring in this State. In registering Mr Safronov's death, the Registrar relied on official documents that had been issued in the Ukraine. 12During February 2011, the executor applied to the Registrar for a death certificate relating to Mr Safronov. The Registrar issued a certificate, dated 19 March 2011, bearing the standard certification that it was a true copy of particulars recorded on the Register. Later that month, the executor notified the insurers of the issue of the certificate and sent them a copy of it. 13Each of the insurers had issued a life policy to Mr Safronov during 2007. They were separate policies, each with a death benefit of $400,000. 14When the executor claimed payment of the amount due under each of the policies, the insurers declined his claims. They maintained that documentation that they had obtained from the Ukraine cast serious doubt on the correctness of the documents that the Registrar had received from the Ukraine. 15During September 2011, the executor instituted proceedings against the insurers in the District Court. 16In a letter dated 22 November 2012 to the Registrar, the insurers' solicitors stated that findings made by investigators whom they had retained cast doubt on the veracity of the evidence on which the Registrar had relied. They requested 'a review of the decision to issue the Death Certificate pursuant to s 38 of the Births, Deaths and Marriages Registration Act 1995'. 17The executor's solicitors subsequently wrote to the Registrar opposing any reopening of the matter. 18The Registrar replied to the insurers in a letter to them dated 26 April 2013. He referred to the District Court proceedings between them and the executor and stated that since this Court would need to determine whether or not Mr Safronov was deceased, he did not propose, at this stage, to undertake a review of his decision. He noted that he was authorised to amend the Register so as to reflect any findings made by the Court in due course. The proceedings in the Tribunal 19On 23 May 2013, the insurers applied to the Tribunal for a review of the following decisions of the Registrar: (a) his decision to include particulars of Mr Safronov's death on the Register; (b) his decision not to conduct an internal review of this decision under section 53 of the ADT Act; (c) his decision not to conduct an inquiry into this decision under section 44 of the BDMR Act; and (d) (as an alternative to (c)) his failure to make a decision as to whether to conduct such an inquiry. 20Subsequently, the District Court proceedings were adjourned pending determination of the insurers' application to the Tribunal. 21The Tribunal heard the matter in July and August 2013. The Registrar appeared and stated through his counsel that he would abide any decision that it reached. The executor, who had successfully applied to join the proceedings as the second respondent, opposed the Tribunal's dealing with the insurers' application. He claimed that it was not competent and had no jurisdiction to entertain this application. The Tribunal's decision 22The Tribunal's decision, and indeed the appeal decision, contained a number of references to provisions of the BDMR Act and the ADT Act. These are reproduced in the appeal decision at [29 - 30]. 23As mentioned earlier, the principal orders in the Tribunal's decision comprised rejection of the executor's objection and an order staying the Tribunal proceedings pending resolution of the concurrent proceedings in the District Court. 24The basis of the objection to jurisdiction was a claim that the insurers were not 'interested persons' under the ADT Act and were therefore not entitled to apply under section 53(1) of this Act for an internal review of the Registrar's decision. By virtue of section 55(1)(a) and (b), the right to apply to the Tribunal for review of an administrator's decision was likewise confined to 'interested persons' and was also stated not to be exercisable unless the applicant had 'duly applied for an internal review'. 25To a significant extent, this claim by the executor relied on the terms of section 48(1), which required any administrator (such as the Registrar) who has made a reviewable decision to 'take such steps as are reasonable in the circumstances' to give notice of it to 'any interested person'. Further support for the claim could be discerned in the requirement in section 53(2)(d)(ii) that the time limit for lodging an application for internal review should depend (in certain circumstances) on when the applicant was 'notified of the making of' the administrator's decision. The executor argued that since at the time of the Registrar's decision the insurers were not known by him to be 'interested persons', they fell outside the range of persons contemplated as potential applicants in sections 53(1) and 55(1). 26As was stated in Order 1 of its decision, the Tribunal rejected the executor's objection to jurisdiction. It held that the term 'interested person' in section 53(1) should not be confined to persons who were known by the Registrar at the time of his decision to be 'interested persons' or to be within any group that might be 'interested persons'. It pointed out that under section 56 of the BDMR Act the right to apply to the Tribunal for a review of a decision by the Registrar was conferred on any person who was 'dissatisfied' with the decision. It also expressed the opinion that the notification to which section 53(2)(d)(ii) of the ADT Act referred could include notification by any means, not just through the process established in section 48(1). 27With reference to the insurers' application to the Tribunal for review, the Tribunal considered whether a prerequisite for applying stated in section 55(1)(b) of the ADT Act - namely, that where the person applying was entitled to an internal review of the administrator's decision, the person must have 'duly applied for such a review' - had been satisfied. It held that the letter dated 22 November 2012 from the insurers' solicitors to the Registrar, properly interpreted, did not constitute an application for internal review (even though the Registrar appeared inclined to treat it as such) and that this prerequisite had accordingly not been satisfied. The Tribunal went on to point out, however, that under section 55(3)(b) the Tribunal had a 'dispensing power'. This authorised it to deal with an application for review even though there had been no compliance with section 55(1)(b), so long as it was satisfied that this was 'necessary in order to protect the applicant's interests' and that the application had been made 'within a reasonable time following' the decision in respect of which review was sought. 28The Tribunal expressly refrained from deciding whether this 'dispensing power' should be exercised in the insurers' favour. In its decision at [38], it instead declared itself not to be satisfied (responding to an argument put on behalf of the executor) that there would be 'any utility in having the Tribunal proceed at this stage'. Having then referred to the Tribunal's 'wide discretion under section 73 of the ADT Act to manage its business' and to the fact that under the BDMR Act there were 'at least three different facilities for ensuring that the Register is correct', it stated as follows at [41]:- 41 In this case all the relevant material will fall to be addressed by the District Court. I do not see the evidentiary effect given by s 49 to a death certificate to be so significant that the Tribunal should get involved at this point. 29Section 49 of the BDMR Act, to which the Tribunal referred in this passage, empowers the Registrar (in subsection (1)(a)) to issue a certificate certifying particulars contained in an entry on the Registrar and states in subsection (2) that a certificate so issued is 'admissible in legal proceedings as evidence of: (a) the entry to which the certificate relates, and (b) the facts recorded in the entry'. 30It was on these grounds that the Tribunal ordered (in Order 2) that the insurers' application for review should be stayed pending resolution of the District Court proceedings that the executor had instituted against them. It further ordered (in Order 3) that the matter should be re-listed once the outcome of those proceedings was known, adding that if the insurers still wished to proceed with their application, it would hear them 'in relation to the exercise of the discretion under s 55(3) of the ADT Act'. The appeal decision 31As already indicated, the Appeal Panel dismissed both the appeal and the cross appeal. With one minor addition to Order 3, it confirmed the Tribunal's orders. 32The cross appeal. In its decision, the Appeal Panel dealt first with the executor's objection to the Tribunal's jurisdiction. Like the Tribunal and on similar grounds, it rejected the contention that the category of 'interested persons' under sections 53(1) and 55(1) of the ADT Act must be co-extensive with the category of 'interested persons' to whom administrators were required to give notice of reviewable decisions under section 48(1). It also rejected submissions to the effect that because the Registrar's function was a 'narrow' one of registering certain information, without seeking to resolve disputed issues of fact, the possible use by an executor of a death certificate provided by the Registrar as rebuttable evidence of a death of a person must be insufficient to cause insurers who had issued life insurance policies to be 'persons interested' in his decision to register the death. Further arguments by the executor were that the insurers' 'interest' in this case was only in 'the outcome of the District Court proceedings', and that the insurers were not persons whose interests were immediately and directly affected by the Registrar's decision to register Mr Safronov's death. 33The Appeal Panel's rejection of these submissions was chiefly based on two considerations. First, section 56(1) of the BMDR Act stipulated that any person 'dissatisfied' with a decision by the Registrar could apply to the Tribunal for review of it, and by virtue of the definition of 'interested person' in section 4 of the ADT Act, this was the relevant criterion to be applied. Secondly, because the duty imposed by section 48(1) on administrators was only to 'take such steps as are reasonable in the circumstances' to notify 'any interested person', the range of 'interested persons' under this provision should not be regarded as co-extensive with 'interested persons' under section 53(1) or section 55(1)(a). 34The Panel added the following observation at [58]:- We do not see how an insurance company that is obliged to pay out money under a life insurance policy can be regarded as not 'interested' in a decision by a responsible state authority, having evidential consequences, that the policy holder has died and that his or her death should be entered on an official register. 35Two subsidiary grounds of the cross appeal were formulated in paragraphs [44] and [45] of the appeal decision as follows:- 44 Secondly, [the Tribunal] misconstrued section 55(1)(b) of this Act so as to conclude that the insurers could apply to the Tribunal for a review of the Registrar's decision even though, being entitled (in its opinion) to seek an internal review, they had not 'duly applied' for such a review. 45 Thirdly, it erred in deciding that by virtue of section 55(3)(b) it could entertain the insurers' application to it and should not dismiss this application, even though, being entitled (in its opinion) to seek an internal review, they had not 'duly applied' for such a review. 36The Appeal Panel dismissed these grounds, endorsing submissions by counsel for the insurers which it summarised as follows at [56]:- 56... section 55(3)(b) did not stipulate that its dispensing power could only be exercised if the party seeking its exercise made an application to this effect and... the Tribunal, by granting a stay of the proceedings before it, had left unresolved the question whether it should exercise this power. 37The appeal. The principal contention advanced by the insurers was that the two grounds on which the Tribunal had based its stay order (Order 2) were inadequate. It was insufficient, first, simply to treat the lack of 'utility' in 'having the Tribunal proceed at this stage' as a ground for effectively denying relief to the insurers. This was all the more evident because the District Court, unlike the Tribunal, had no power to order the Registrar to correct the Register if it concluded that Mr Safronov's death should not have been registered. Secondly, the Tribunal's finding that the evidentiary effect (under section 49(2) of the BDMR Act) of the death certificate in the District Court proceedings was insufficient to justify the Tribunal's getting 'involved' was flawed, because (a) no evidence had been adduced on this matter, (b) it was not a matter of which judicial notice could be taken, (c) the finding was therefore merely 'speculative' and (d) the Tribunal had not given sufficient reasons for making it. 38Broadly in line with the executor's submissions, the Appeal Panel dismissed this contention for the following reasons: (a) the Tribunal's finding as to the lack of 'utility' of the proceedings before it was justifiable because the District Court had wider powers of investigation than either the Tribunal or the Registrar; (b) the Court would in any event have to determine whether Mr Safronov had died as stated in the death certificate; (c) the Tribunal's decision to grant the stay accordingly had the beneficial effect of avoiding delay, duplication of proceedings and an unnecessary escalation of costs; (d) under section 45(2) of the BDMR Act, the District Court, like any court, had power to order the Registrar to correct the Register; (e) the Tribunal's finding as to the evidentiary effect of the death certificate was a 'discretionary judgment' that it was entitled to make; (f) because the ground on which the insurers challenged the certificate was that it had been procured by fraud, they would, in order to succeed, be required to adduce cogent and compelling evidence, which would 'blow away' the presumption arising from section 49(2) of the BDMR Act; and (g) if the registration of Mr Safronov's death were set aside by the Tribunal, the documentary evidence on which the registration had been based could still be tendered by the executor as prima facie evidence of the death. 39The appeal decision (at [96]) contained the following further observation on these matters:- 96... in the substantive hearing of the District Court proceedings, not a great deal would be likely to turn on the question whether Mr Gerasimov, in seeking to prove the death of Mr Safronov, came armed with documentation that he obtained from the Ukraine plus the death certificate issued in New South Wales or merely with the Ukraine documentation. 40At the appeal hearing, the insurers advanced the following additional arguments: (i) the Tribunal failed to afford them procedural fairness because it did not put them on notice that a stay order might be made; (ii) it erred in ruling that their solicitors' letter dated 22 November 2012 to the Registrar did not constitute an application for internal review; (iii) having expressed the opinion that it should exercise in their favour its discretion under section 55(3) of the ADT Act to permit their application to proceed, it should have heard the application on its merits; and (iv) it had failed to deal with a submission advanced by them that it should remit the matter to the Registrar. 41The Appeal Panel gave the following reasons for rejecting these arguments: (i) in written submissions to the Tribunal, the executor had in fact submitted that, as an alternative to dismissing the insurers' application, the Tribunal should adjourn the proceedings until the District Court proceedings had been heard and determined; (ii) the Tribunal's ruling that the insurers had not 'duly applied' for an internal review was correct, particularly in light of the fact that the Registrar, after receiving the letter of 22 November 2012, had not in fact proceeded with any such review; (iii) the Tribunal had clearly stated in its reasons, and confirmed in Order 3, that it had not decided whether to exercise the discretion conferred on it by section 55(3) of the ADT Act in favour of the insurers; and (iv) because it had found that the insurers had not 'duly applied' for an internal review, there was no application before it that it could remit to the Registrar. The executor's submissions regarding costs 42The executor correctly based his application for an order for his costs of the appeal on section 88(1A) of the ADT Act. This subsection follows the pronouncement in section 88(1) that 'Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section'. The executor relied on the following provisions within subsection (1A):- 1A. 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 it is fair to do so having regard to the following:... (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. 43Quoting from Valentino Franchise Pty Ltd v Brookfield Multiplex WS Retail Landowner Pty Ltd (No 2) [2012] NSWADTAP 40 at [18], the executor submitted that the criterion established in this subsection constitutes a 'relatively low hurdle', since it will 'take into account the compensatory purpose of an award of costs, which will generally favour the successful party'. He argued also, citing relevant Tribunal cases, that two aspects of these proceedings - namely, that they were appellate proceedings in which the appellants failed and that they were commercial in nature - were factors suggesting that a costs order would be 'fair'. He referred to the complexity of the proceedings, adding that the parties opposing him were three insurers, with their 'attendant resources', and that the existence of concurrent District Court proceedings imposed an additional costs burden on him. 44Relying on dicta of an Appeal Panel of the Tribunal in Jonamill Pty Ltd v Alramon Pty Ltd (No 2) [2010] NSWADTAP 3 at [47 - 49], the executor contended further that because there was 'a substantial disparity between the relative strengths of the parties' claims' his application for costs attracted the operation of paragraph (c) of section 88(1A). In support of this contention, he argued as follows: (a) the insurers' application for review was 'fundamentally misconceived' because, as both the Tribunal and the Appeal Panel had found, they had not 'duly applied' for an internal review; (b) the insurers had been notified of the issue of the death certificate as early as March 2011, but did not seek any form of review by the Registrar until November 2012; (c) the Appeal Panel had rejected the insurers' submissions summarised above in subparagraphs (iii) and (iv) of paragraph [40]; (d) for the reasons set out above at [38], notably in subparagraph (c), it had held that the Tribunal had not erred in deciding in its discretion to stay the proceedings; and (e) it had made the observation quoted above at [39]. The insurers' submissions regarding costs 45The brief submissions filed by the insurers treated the executor's application as being for his costs of the Tribunal proceedings as well his costs of the proceedings before the Appeal Panel. This appears from the nature of some of the arguments advanced and from the submission in paragraph 10 (the final paragraph) that 'in the alternative... the usual order should be made, namely that each party bearing (sic) their own costs of the hearing before the President below and of this Appeal'. It is however clear, particularly from the executor's letter to the Registrar of NCAT asking to be heard on costs (a copy of which was sent to the insurers' solicitors), that the only costs applied for were those relating to the appeal proceedings. 46The arguments in the insurers' submissions that pertained to these costs specifically were as follows: (a) a party seeking an order for costs under section 88(1A) of the ADT Act bears the onus of showing that such an order would be 'fair'; (b) the executor had been 'wholly unsuccessful' in claiming in his cross appeal that the insurers were not 'interested persons'; and (c) he had been similarly unsuccessful in claiming that they had not 'duly applied' for an internal review. 47Other arguments in these submissions were or might have been relevant to the matter of costs at first instance only. An example is the argument (put in paragraph 6) that the Tribunal had merely stayed the proceedings before it, as opposed to dismissing them, it could not be said that the executor had been successful in his attempt to have them dismissed. This consideration is not relevant to the matter of the costs of an appeal focusing on the correctness of the stay order. Discussion and conclusions 48The foregoing outline of the proceedings at first instance and on appeal is comparatively lengthy because they involved arguments from both parties on numerous distinct issues and the merits of these arguments varied widely. This aspect of them is of prime importance when evaluating the executor's submission that there was 'a substantial disparity between the relative strengths of the parties' claims'. 49The arguments of the appellant insurers constituting what is labelled above (at [37]) as their 'principal contention' were not wholly without merit. The main question at issue - whether the Tribunal should proceed to determine the insurers' application while the District Court proceedings remained in abeyance (see [20] above), or should adjourn its proceedings on the assumption that the Court would then hear and determine the claim brought by the insurer - was of an unfamiliar kind and called for evaluation of a number of considerations. The Tribunal did not in fact refer to most of these considerations, even though some of them were set out in the written submissions put before it by the executor. 50Accordingly, one specific argument put to the Appeal Panel in support of the insurers' 'principal contention' clearly had merit. As summarised above in subparagraph (d) of [37], this was that the Tribunal had not given sufficient reasons for its decision to grant the stay. 51On the other hand, once the reasons advanced by the Appeal Panel for upholding the stay are brought into account, it becomes apparent that the Tribunal's decision to grant the stay was entirely justifiable and that continuation of the proceedings before it had distinct disadvantages in the longer term. The prospect of a time-consuming and wasteful duplication of proceedings was evident. The challenge made by the insurers was to the Tribunal's exercise of a discretion. It is well recognised that appeals of this nature must be supported by particularly compelling arguments. 52The insurers' 'additional arguments' (see [40] above) were weak ones. Their challenge (see subparagraph (ii) of this paragraph) to the Tribunal's important ruling that they had not 'duly applied' for an internal review under the ADT Act might be thought to fall outside this generalisation. But particularly since their solicitors' letter to the Registrar dated 22 November 2012 appeared to seek a review under a different statute - namely, the BMDR Act - and did not mention the ADT Act or use the phrase 'internal review', the insurers' case on this question must be regarded as significantly flawed. 53For these reasons, there was a 'a substantial disparity between the relative strengths of the parties' claims' in the appeal, considered alone, such as to attract the operation of section 88(1A)(c) of the ADT Act. The executor's claims were substantially stronger than those of the insurers. 54The arguments put in support of the executor's cross appeal, outlined above at [32] and [35], were however also weak. The most important of them, relating to the meaning of 'interested persons' in sections 53(1) and 55(1) of the ADT Act, failed to take account of the obviously important consideration that under section 56(1) of the BDMR Act, read in conjunction with section 4 of the ADT Act, any person 'dissatisfied with' as opposed to 'interested in' a decision of the Registrar could seek review in the Tribunal. The two subsidiary arguments could be quickly disposed of. 55It follows that there was also 'a substantial disparity between the relative strengths of the parties' claims' in the cross appeal. But in this part of the proceedings, the insurers' claims were substantially stronger than those of the executor. 56The matters urged by the executor as relevant under subsection (d) of section 88(1A) - namely, that these proceedings were complex and of a commercial nature and that the costs now being considered relate to unsuccessful appeal proceedings - must be taken into account in relation to both the appeal and the cross appeal. They do not support the executor's case only. 57It may however be safely inferred that the latter proceeding was 'triggered' by the former. If the insurers had not appealed, the executor would not have sought to challenge any aspect of the Tribunal's decision. The stay was an order that he had sought in the alternative and was sufficient for his purposes, at least for the time being. In his reasons, set out in the notice of cross appeal, for filing this notice outside the prescribed time limit of 28 days following the Tribunal's decision, the executor made a statement to this effect. He said that the insurers' filing of their notice of appeal, coupled with their filing of a notice of motion in the District Court proceedings seeking a stay of them until their appeal had been decided, had 'made it necessary' for him to institute his cross appeal. The insurers have not sought to challenge this statement. 58Taking all these circumstances into account, it is 'fair' that the insurers should pay a significant proportion of the executor's costs of the appeal proceedings. An award covering all of his costs would not be appropriate since he instituted and maintained an unmeritorious cross appeal. The award should be of 75% of the executor's costs. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 22 September 2014