Determination
87As long ago as 1903, it was said in Wise v Perpetual Trustee Co Ltd [1903] AC 139 at 149:
"Clubs are associations of a peculiar nature. They are societies the members of which are perpetually changing. They are not partnerships; they are not associations for gain; and the feature which distinguishes them from other societies is that no member as such becomes liable to pay to the funds of the society or to any one else any money beyond the subscriptions required by the rules of the club to be paid so long as he remains a member. It is upon this fundamental condition, not usually expressed but understood by every one, that clubs are formed ..."
88The first question that arises in this proceeding is whether the Plaintiff's removal and suspension from membership is justiciable. If it is, the next question is whether the Plaintiff is entitled, as of right, or as a matter of discretion, to the relief he seeks.
89Neither side pointed to anything in the Constitution of the Club that suggests that the Constitution is intended to be legally binding. Neither are there any clear positive indications that the members contemplated the creation of legal relations, inter se, pointed to. Rather, it was submitted that entering into Club membership and the purpose of what followed between them was fundamentally social and directed to engaging in social and sporting activities.
90The Defendant submits that the Plaintiff's relationship with the Club was consensual, and not contractual, and that his removal and suspension involved no diminution of, or damage to rights of, property, livelihood, or trade. It was submitted that his removal and suspension from membership, whether in accordance with the Constitution or not, gives rise to no legally enforceable right. The Constitution was not to be treated as amounting to an enforceable contract.
91Although the term was not used, the effect of the submission was that there was a "consensual compact", which the members of the Club agreed to observe without affording each other contractual rights and remedies. (Palmer J, in Carter v NSW Netball Association [2004] NSWSC 737, at [85]-[86], referred to the phrase "consensual compact" being used by Priestley JA in Scandrett v Dowling (1992) 27 NSWLR 483, at 513, and by Young J (as his Honour then was) in Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421, at 425, "to describe the status of rules or procedures which, construed in their context and with regard to their purpose, can be seen as adopted by the members of a non-profit organisation in order to express their shared ideals, purposes or beliefs rather than in order to create contractually binding rights and duties enforceable in a court of law".)
92There is some support for the view that the relationship of the parties was consensual. In McManus v Lithgow and District Workmen's Club Ltd (NSWSC, 25 May 1981, unreported) Helsham CJ in Eq said, at 3, in respect of the present Defendant, stated:
"The jurisdiction possessed by a domestic tribunal of the kind involved here which enables it to rule upon disciplinary matters comes from it acting under rules which rest upon a consensual basis; the powers which the tribunal has stem from the contract between each member of the club and other members and the club itself constituted by the Memorandum and Articles of Association, and any rules made in pursuance of any power given to make rules. It is part of the agreement between members that any untoward conduct can be investigated by a tribunal constituted by the Board and punitive action can be taken if decided to be proper."
93However, I note that in Henderson v Kane and the Pioneer Club [1924] NZLR 1073 at 1075, Salmond J said:
"Social clubs are of at least three different kinds, which may be distinguished as members' clubs, proprietary clubs, and incorporated clubs. A members' club is one in which the premises and other property of the club are vested either in the members themselves as owners in common or in trustees for them. In such a case the interest of each member in the use of the club premises is a right of property, at law or in equity, vested in that member in common with the others. If he is wrongfully excluded from the premises he is excluded from the use of his own property, and the nature of any legal remedy possessed by him, whether by way of damages or otherwise, must be determined accordingly. In the case of a proprietary club, on the other hand, the premises and property of the club belong not to the members in common, but to the individual proprietor of the club. The relation between him and the members is exclusively one of contract. In consideration of an annual subscription or other payment each member has vested in him a contractual right to use the club premises and the benefit of club-membership in accordance with the terms of his contract as embodied in the rules of the club. An incorporated club, in the third place, is intermediate in its nature between a members' club and a proprietary club. The premises and property of the club are not vested either at law or in equity in the individual members. Nor are they vested in a mere stranger who has no other than a contractual relation with the members. They are vested in the body corporate of the members themselves. The precise nature of the legal relationship so constituted between the individual members and the incorporated body, and between one individual member and another, doubtless depends to some extent on the provisions of the particular statute under which the incorporation has taken place."
94See also Farrell v Royal King's Park Tennis Club (Inc) [2006] WASC 51 at [51] - [63] in which some of the other authorities are discussed.
95In Halsbury's Laws of Australia, vol 28, [435-320]:
"Unless a member's proprietary rights were involved or the circumstances showed clearly that the rules of an association were intended to create a legally enforceable contractual relationship among the members inter se, the traditional approach adopted by the courts was to refuse to intervene in the internal affairs of voluntary not-for-profit associations to review alleged breaches of the consensual relationship between the members."
96Reliance was placed on the joint judgment of Rich, Dixon, Evatt and McTiernan JJ in Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358, at 370-371, which is regarded as the seminal authority:
"Judicial statements of authority are to be found to the effect that, except to enforce or establish some right of a proprietary nature, a member who complains that he has been unjustifiably excluded from a voluntary association, or that some breach of its rules has been committed, cannot maintain any action directly founded upon that complaint. For example, in Forbes v Eden, (1867) LR 1 Sc. & D. 568 at p 581, Lord Cranworth said:
'Save for the due disposal and administration of property, there is no authority in the Courts either of England or Scotland to take cognizance of the rules of a voluntary society entered into merely for the regulation of its own affairs. ...'
...
There are, however, reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorized resolution expelling a member of a voluntary association, or by the failure on the part of its officers to observe the rules regulating its affairs, unless the members enjoyed under them some civil right of a proprietary nature. As a generalization it expresses the result produced by the application of a number of independent legal principles: it is not in itself the enunciation of explanation of a rule or rules of the common law. One reason which must contribute in a great degree to produce the result is the general character of the voluntary associations which are likely to be formed without property and without giving to their members any civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract."
97Starke J said, at 384:
"As a general rule the Courts do not interfere in the contentions or quarrels of political parties, or indeed, in the internal affairs of any voluntary association, society or club. 'Agreements to associate for purposes of recreation, or an agreement to associate for scientific or philanthropical or social or religious purposes, are not agreements which Courts of law can enforce. They are entirely personal. Therefore, in order to establish a civil wrong from the refusal to carry out such an agreement, if it can be inferred that any such agreement was made, it is necessary to see that the pursuer has suffered some practical injury, either in his reputation or in his property' (Murdison v Scottish Football Union, (1896) 23 R (Ct. of Sess.) 449 at pp 466-67)."
98In Dixon v Australian Society of Accountants (1989) 95 FLR 231; 87 ACTR 1, it was held that the principles espoused by the High Court in Cameron v Hogan do not apply to persons who become members of a company limited by guarantee. Cameron v Hogan involved an unincorporated voluntary association.
99A similar view was expressed in Zusman v Royal Western Australian Bowling Association (Inc) [1999] WASC 86 at [7] - [9].
100In McKinnon v Grogan [1974] 1 NSWLR 295, Wootten J said, at 299:
"Despite Cameron v Hogan (1934) 51 CLR 358 the courts frequently deal with disputes between individual members and social clubs, such as RSL Clubs. This seems to be both proper and desirable, and the courts should be willing to assist in resolving disputes in organisations, whatever their size, in which parties have deliberately adopted formal rules to govern their relations."
101More recently, in Western Australia in Rush v WA Amateur Football League (Inc) [2007] WASCA 190; (2007) 35 WAR 101, the Court of Appeal held:
"[30] In Skelton's case, [Skelton v Australian Rugby Union Ltd [2002] QSC 193], Chesterman J noted that there were many cases in which courts have intervened where exclusion or suspension from membership of a club or association had occurred in breach of the organisation's rules or of natural justice. However, as his Honour noted, all of those cases were predicated upon the person involved suffering some diminution of rights of property, livelihood or trade. To that category of case may be added cases where a person's reputation is damaged.
...
[37] In the particular circumstances of this case, in the absence of any property, income or reputational interests, this Court has no jurisdiction to decide issues arising out of the consensual but non-contractual relationship between the parties. ... "
102Even more recently, it has been described as "tolerably clear" that the courts will intervene in the affairs of voluntary associations in some circumstances, including where there has been a breach of contract; where a proprietary right has been infringed; or where someone's livelihood or reputation is at stake: Carberry v Drice as Rep of Brisbane Junior Rugby Union (An unincorporated Body) [2011] QSC 016 per Wilson J at [33].
103The Plaintiff relied upon like statements of principle.
104What constitutes "rights of property" was not the subject of specific submissions. However, both parties referred to Article 25(a) of the Constitution that gave members of the Club a right to use the sporting and other facilities of the Club.
105In Finlayson v Carr [1978] 1 NSWLR 657, which case concerned membership of the Australian Jockey Club, Waddell J held, at 666:
"[M]embership of the club carries with it important rights of a tangible and practical nature to the enjoyment of the property of the club ... it is clear that membership of the club carries with it important proprietary rights."
106In my view, subject to discretionary considerations that are relevant to making the orders and declarations that are sought, the right that the Plaintiff had to use the sporting and other facilities of the Club, whilst he was a Club life member, whether or not that right included the use of the bowling greens whilst he was disqualified from the Bowling Club, was a right of property, or sufficiently related to his property rights, to justify the Court's power to hear and determine the proceedings.
107In addition, the issue of the Plaintiff's removal and suspension gives rise to his "reputational interests". In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578, the majority said:
"It has long been accepted that reputation is an interest attracting the protection of the rules of natural justice. Thus, over a century ago, Jessel MR said in Fisher v Keane ((1879) 11 Ch D 353) 'according to the ordinary rules by which justice should be administered by committees of clubs, or by any other body of persons who decide upon the conduct of others, [they ought not] to blast a man's reputation forever - perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct'"
108Thus, even if the Constitution provided consensual, rather than contractual, rights, I am of the view that the decision on 29 August 2011 to remove and suspend did have, or may have had, an effect on the Plaintiff's property rights, or reputation, albeit in the case of the suspension it was an interim, or temporary, one, pending him being given the opportunity for a full and fair hearing, is sufficient to warrant the Court hearing and determining the matter.
109I also remember that the Plaintiff also seeks declaratory relief. Lord Sterndale M.R. in Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 at 507 commented:
"In my opinion, ... the power of the court to make a declaration where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion".
110In Sutherland Shire Council v Leyendekkers [1970] 1 NSWR 356, Street J, at 361-362, said:
"[Tlhe power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is
no legal restriction on the award of a declaration."
111His Honour also said, at 363:
"An almost unlimited variety of disputes has thus been resolved, in many of which there was either no occasion to grant, or no jurisdiction to grant, effective consequential or substantive relief."
112Accordingly, I am satisfied that there is a justiciable issue before the Court. I accept that, ultimately, "there are no prescriptive principles as to when it is or is not appropriate for a court to exercise its discretion to make a declaration or grant an injunction in a dispute within a voluntary organisation or social sporting club": Zusman v Royal Western Australian Bowling Association (Inc) at [41]. This does not mean, however, that the Court must make the declaration(s) sought by him or otherwise grant the relief he seeks.
113Even if I were wrong in the above stated conclusions, I think it would be convenient to consider the bases of the Plaintiff's claim in order to save the parties further costs and expense. The hearing of the proceedings was of almost two days duration and seven months has passed since the events the subject of complaint. It seems to me it would be in each party's interests if I dealt with the issues raised.
114I turn then to the question (which was more strenuously debated) whether the Plaintiff's removal and suspension on 29 August 2011 was in breach of the Constitution and if it was, whether the Plaintiff is entitled to the relief he seeks.
115There was no dispute that the basis of the removal from the bowling green and suspension from the Club on 29 August 2011, was Article 49(a)(i) of the Constitution and, in that Article, only that, as Secretary, or the senior employee of the Club then on duty, Mr Alexander had formed the opinion that the Plaintiff was then "quarrelsome".
116There is no definition of the meaning of "quarrelsome" in the Club's Constitution. Nor does the case law appear to provide clear examples of what, in such circumstances, constitutes "quarrelsome" conduct.
117I have referred to the Oxford Dictionary definition that was put to Mr Alexander. No doubt there are other meanings.
118It seems to me that the word "quarrelsome" has the flavour of someone being inclined to dispute or quarrel, or someone being argumentative or contentious. As was accepted by the Plaintiff's counsel during submissions, a synonym for "quarrelsome" often suggested is "argumentative".
119I do not think that "quarrelsome" behaviour necessarily requires a lack of civility, raised voices, violence, physical harassment, or an argument that may be described as "heated". One may still be quarrelsome whilst at the same time being civil.
120It must be remembered, however, that the requirement prescribed by Article 49(a)(i) of the Club's Constitution is not that the Plaintiff was, at the relevant time, in fact, "quarrelsome", but rather that, the Secretary, or the senior employee of the Club then on duty, formed the opinion that the he was then "quarrelsome".
121Within the meaning of "opinion" seems to be the concept that there is a matter about which doubt can reasonably exist, and as to which persons, without absurdity, can come to different conclusions.
122The Article imposes upon the relevant person an obligation to form an opinion on the question. That opinion must be distinguished from the grounds upon which it founded. There must be some particular conduct that logically leads to that opinion. However, once the opinion is formed, with an eye to the relevant Article of the Constitution, he, or she, could act upon it and remove and suspend the member.
123Thus, the scheme of the Article in the Constitution that was relied upon suggests that, relevantly, the formation of the opinion and the decision whether to remove and suspend will be considered by the Secretary, or the senior employee of the Club then on duty, consecutively. The decision to remove or suspend is posited on the formation of the relevant opinion. Once the requisite opinion is identified, namely, the opinion that is within the intended scope of the Article (in this case that the Plaintiff was quarrelsome), then the question whether to remove and suspend is for the Secretary or the senior employee of the Club then on duty. The Article does not prescribe any lesser sanctions.
124Of course, the Secretary, or the senior employee of the Club then on duty, did not have to exercise the express power to sanction granted by Article 49(a)(i)(a). It seems to me that he, or she, has a broad discretion about whether to exercise the power of removal and suspension, even if the relevant opinion is formed.
125The validity of the opinion does not depend upon its soundness; it is sufficient if the opinion expressed was one reasonably open to the Secretary, or the senior employee of the Club then on duty. Whether it is a sound one is not a question that the Court should decide unless what is said to be the opinion appears to be manifestly wrong, or arrived at recklessly, carelessly, or in bad faith. If the opinion of the Secretary, or the senior employee of the Club then on duty, could be justified on any reasonable ground, then the requisite opinion exists and the power to remove and suspend is enlivened.
126Nor does the Constitution prescribe how the Secretary, or the senior employee of the Club then on duty, may inform himself, or herself, upon relevant matters, or as to the matters he, or she, should consider, or ignore, in forming the opinion. In addition, the Article, in my view, does not require a formal and deliberate process of developing and "forming" an opinion. It simply requires an opinion to be formed by the Secretary, or the senior employee of the Club then on duty.
127However, as was said in another context in Musumeci v Attorney General of NSW & Anor [2003] NSWCA 77 at [97]:
"the flavour of the word "opinion" when used in connection with an opinion by a person or body which triggers a situation whereby a person may be liable to be prejudiced usually has the meaning of an informed decision; see eg Allcroft v London (Bishop) [1981] AC 666 and Bruce v Cole NSWCA, 12 June 1998, unreported.
128An important matter is that one cannot determine the matter through the prism of hindsight; one must consider the question as at 29 August 2011 and upon the basis of the events said to have then occurred.
129Nor do I have to decide whether the Plaintiff was correct in his view of the entitlement to use the bowling green whilst he was suspended from the Bowling Club and in circumstances when he had not paid his Bowling Club membership fees. Had he explained the basis of his view, that question might have been relevant.
130When Mr Alexander first approached the Plaintiff and asked him to leave, this request could not have been based upon Article 49(a)(i)(a). At that point, other than the Plaintiff being present on the bowling green with his wife, there would have been nothing done by the Plaintiff to enable Mr Alexander to form the opinion that the Plaintiff was being "quarrelsome".
131The request then being made was based upon Mr Alexander's belief that, as a suspended member of the Bowling Club, and as a person who had not paid the requisite fees to be a member of the Bowling Club, the Plaintiff was not entitled to use the bowling green. It was a request that was made independent of the formation of the opinion prescribed by Article 49(a)(i) and the decision to remove and suspend later made by Mr Alexander.
132However, subsequently, on 29 August 2011, following Mr Alexander's repeated requests, and his threat to call the police, he did form an opinion that the Plaintiff was "quarrelsome".
133In my view, at that time, he had cause for, and was justified in, doing so.
134The Plaintiff had attended on 29 August 2011 knowing that there was likely to be "a problem" if he used the bowling green. By attending to "test the waters", he provoked, or at least significantly contributed to, the events that subsequently occurred. He was determined to remain, when asked to leave, for what he believed were sound reasons. He did not specify, either prior to attending at the bowling green, or at some time during his discussions with Mr Alexander, or subsequently, what those reasons were. He simply maintained he had done nothing wrong and that he was not prepared to leave. In my view, he did so intentionally.
135He also chose not to leave the bowling green, or approach any other person to advance his case for refusing to leave. For example, he did not go into the Club premises and seek to discuss the matter further. He decided, in my view, to remain at the bowling green, without any real explanation, and, thereby, enabled the formation of the opinion that he was quarrelsome.
136The decision by Mr Alexander to remove and suspend the Plaintiff from the Club followed what occurred at the bowling green after the repeated requests, by Mr Alexander.
137Even the Plaintiff's wife, who was of a similar view as to the Plaintiff's entitlement to use the bowling green, adopted the approach, when Mr Alexander canvassed the possibility of the police being summoned and a fine being imposed, that they should leave.
138The Plaintiff's case for relief would have been far stronger if he had taken the step of providing to Mr Alexander his reasons, referring to the Constitution, if necessary, on, or before, the events that occurred for refusing to leave. He could have sought the ruling of the Board before, or after, going to the bowling green. It was the intentional failure to do so and then to not leave the bowling green that led to the events that occurred on 29 August 2011, about which complaint is made.
139Once Mr Alexander formed the opinion that the Plaintiff was being quarrelsome, the only sanctions authorised by the terms of Article 49(a)(i) were removal and suspension. However, in each case, the sanction was a temporary one, until the next meeting of the Board or Disciplinary Committee at which the charge was heard: Article 48(c). The right to put his case at the meeting of the Board or Disciplinary Committee was the means available, under the Club's Constitution, to remedy any grievances arising from what had occurred and to determine any controversy that existed as to the interpretation of the Constitution.
140It follows that I am not satisfied that the suspension of the Plaintiff by the Defendant was ultra vires or void, or that it was wrongful. Nor was the suspension without reasonable cause.
141On the evidence that was read and heard, there is no reason to conclude that a hearing before the Board, or of the Disciplinary Committee, would have been conducted on an unsatisfactory basis. In the circumstances, I am not prepared to grant the relief sought by the Plaintiff.
142Even if I am wrong in the conclusions that I have reached on the basis for the Plaintiff's removal and suspension, and that Mr Alexander had no right to remove or suspend the Plaintiff, I would not grant relief because of the weight of the discretionary considerations adverse to intervention by the Court granting the relief sought.
143The Constitution provides a procedure for the Club and members to follow. I have, earlier explained my reasons for rejecting the submissions regarding why the Plaintiff had not followed that procedure. The existence of the available procedure set out in the Constitution and the Plaintiff's deliberate decision and subsequent election not to utilize that procedure is each a significant discretionary consideration.
144Had the Plaintiff followed the procedure, the Board could have determined the issue on, or about, 31 October 2011. By that date, it could have been provided with the reasons that were advanced during the course of these proceedings. The Board then, for the first time, would have had the Plaintiff's reasons for refusing to leave on 29 August 2011 before it, and could have determined, on that basis, what to do. The reasons may very well have provided exonerating, or mitigating, circumstances. The questions raised in these proceedings could easily, and appropriately, have been settled within the Club's internal machinery.
145Then, even if the Board concluded that the Plaintiff's reasons for remaining were unsound, there can be little doubt that the Board could then have found that his conduct on 29 August 2011, was reasonably based, or if not so based, that his reasoning was arguable and plausible. Mr Allan had provided advice to the Plaintiff. He confirmed the advice that he gave to the Plaintiff in these proceedings in an affidavit, upon which he was not cross-examined. No doubt, he could have provided a similar statement to the Board prior to its meeting.
146In addition, the Plaintiff had a firm of solicitors representing him. Therefore, he had available to him, if he required it, legal assistance in stating his case, not only in relation to whether his removal and suspension was valid, but if it was, on the question of further sanction, if any, to be imposed. Mitigating factors could have been identified.
147Finally, the Defendant stated, during the course of the case, in view of the time that has passed since the events on 29 August 2011, it was more likely than not, that the Board, now, would not impose any additional suspension, since, in effect, the Plaintiff, by virtue of his own conduct, has been suspended for 6 months at the date of the hearing. This was a sensible, and appropriate, concession to have made.
148In my view, there is, therefore, no real utility in making the declarations sought by the Plaintiff since the dispute has become spent. As was said by Young J in Wilcox v Kogarah Golf Club Ltd (NSWSC, 23 November 1995, unreported);
"A person who seeks a declaration needs to show that the declaration is of utility at the time when the Court makes its order. There are some cases where the Court has granted a declaration after a suspension has been served if it can see that a real question is involved and the Court's decision will give some practical guidance. Thus in Merricks v Nott-Bower [1965] 1 QB 57 the police had been transferred in 1957 and in 1963 those police successfully sought declarations that their transfer was contrary to natural justice. That, however, is an exceptional situation and ordinarily the Court will hesitate to find that there is any utility in making a declaration particularly well after a period of suspension has been served.
Again, the Court does not make a declaration where there are other avenues of dealing with the matter nor where a party has let time go by before making his or her application. Again, these are discretionary matters but the Court only makes a declaration where it can see that there is some practical utility at the time when a declaration is made in intervening.
The Court is also particularly concerned that members of non-proprietary clubs and churches and associations should not resort to the Court for declarations on minor aspects of the relationship between members.
...
Although a suspension is getting close to expulsion the Courts have consistently said that a suspension for a short period of time is ordinarily not a matter with which they will interfere. In Holden v Cronulla Golf Club Ltd, 24 June 1986, unreported, I said that the Court will often take the view that where a period of suspension from a golf club is for a relatively short period the Court will decline to intervene, that this is a discretionary matter and each case would have to be considered on its own basis. There are also other decisions which are in the same plight, for instance, the decision of Helsham J in Ghantos v Windsor Country Club Limited, 29 March 1974 and the decision of the Northern Ireland Chancery Division in Watt v MacLaughlin (1923) 1 Irish Reports Chancery 112."
149To the extent that a similar problem may arise in the future, the Board has power to decide on the interpretation of the Constitution or on any matter arising (Article 4 of the Constitution) knowing that there is an argument being advanced about that interpretation.
150In all the circumstances, I am not prepared, as a matter of discretion, to grant the relief sought by the Plaintiff and I order that his amended Summons be dismissed.
151I understand that the parties, in the event of being unsuccessful, may seek some additional relief to the effect that the matter should go back before the Board so that what was stated can be given effect to. Before any further costs are incurred, I shall give the parties an opportunity to consider these reasons, and direct the Club, within 14 days to inform the Plaintiff, whether it is considered necessary to conduct the disciplinary hearing and, if so, when that hearing is to occur. If such a disciplinary hearing is to take place, directions can be given so that there is no delay in concluding it. (One hopes, however, that enough time, and money, has been spent and that nothing further will be required to be done.)
152I shall stand the matter over for a period of 21 days to consider what further directions, if any, should be made and to allow agreement to be reached on the way forward and on the issue of costs.
153On the issue of costs, my tentative view, even though the Plaintiff has been unsuccessful, because of my findings regarding the role played by Mr Alexander on 29 August 2011, is to make no order as to costs, to the intent that each party is to pay his, or its, own costs. However, I am prepared to hear submissions if either of the parties wishes to submit that another costs order is appropriate in all the circumstances.
154The orders I make are that:
(a)The amended Summons be dismissed.
(b)The balance of the proceedings stand over for 21 days to enable parties to consider what further directions, if any, should be made and to argue costs, if agreement unable to be reached.