Inspector Guillarte v Trustees of De La Salle Brothers

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Friday 19 March 2004

INSPECTOR CORRIE GUILLARTE v TRUSTEES OF DE LA SALLE BROTHERS

Prosecution under section 15(1)(a) and section 27(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 49

1 The Trustees of De La Salle Brothers ("the defendant") owns and operates Oakhill College, a Catholic secondary school at Castle Hill in the State. On 13 December 2000, Peter Clarence Thomas, a 16-year old student at the school who was employed as part of a student employment program, was performing work as a casual general hand. His duties required him to access the roof of one of the buildings at the school for the purpose of cleaning the gutters. Whilst doing so Mr Thomas fell through a skylight on the roof. Mr Thomas fell approximately 5.1 metres and suffered various fractures. He returned to his full time studies at the school on 30 January 2001.

2 On 15 February 2001 the WorkCover Authority of New South Wales received an anonymous complaint in relation to the injuries sustained by Mr Thomas. The defendant had failed to give notice to the Authority within seven days of the incident that an accident that had caused personal injury had occurred at the school on 13 December 2000.

3 The defendant was prosecuted by Inspector Corrie Guillarte of the Authority under s 15(1) and s 27(1) of the Occupational Health and Safety Act 1983. Section 15(1) provides: 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

4 Section 27(1) provides: 27 Notification of accidents and other matters (1) Where: (a) an accident occurs at a place of work, whether or not it causes the death of, or bodily injury to, any person, or (b) any other matter occurs at or in relation to a place of work which affects the health or safety of any person, being an accident or other matter which is required by the regulations to be notified under this section: (c) except as provided by paragraph (d), the occupier of the place of work, or (d) such other person as is prescribed, shall give notice of the accident or other matter in accordance with subsection (2). Maximum penalty: 500 penalty units in the case of a corporation or 250 penalty units in any other case. (2) A notice of an accident or other matter referred to in subsection (1) shall be given to such persons, within such time and in such manner as are prescribed.

5 The Regulation referred to in s 27(1) requires that notification of injury be made as soon as practicable but not later than seven days after the accident occurs.

6 In relation to the charge under s 15(1) of the Act the amended application for order alleged that the defendant failed to: Ensure the health safety and welfare at work of all of its employees, in particular Mr Peter Clarence Thomas contrary to section 15(1) of the Occupational Health and Safety Act 1983. In particular, on 13 December 2000, at the said site, the defendant failed: (a) to provide and maintain systems of work that were safe and without risks to health; (b) to provide information, instruction, supervision and training to its employees to enable them to perform their work in a manner that was safe and without risks to health.

7 In relation to the charge under s 27(1) of the Act it was alleged the defendant failed to: [G]ive notice to the WorkCover Authority that an accident had occurred at the site, a place of work, on 13 December 2000 contrary to the provisions of section 27(1) of the Occupational Health and Safety Act 1983. In particular, the defendant failed: 1. to notify the WorkCover Authority no later than seven days after the occurrence of a serious personal injury to Peter Clarence Thomas as required under section 27(1) of the Occupational Health and Safety Act (NSW) 1983. The injuries sustained by Mr Thomas were serious personal injuries within the meaning of clause 5(4) of the Occupational Health and Safety (Notification of Accidents) Regulation 1990.

8 The defendant pleaded guilty to the amended charges. I have taken the approach that the evidence in one matter is also evidence in the other.

9 An agreed statement of facts was tendered in relation to both charges. The statement relating to the s 15(1) charge contained the following information: 7. On 13 December 2000, the defendant employed a number of persons including: (a) Mr Vladimir Drozdoff (" Mr Drozdoff "), maintenance supervisor; (b) Mr Mark Sullivan (" Mr Sullivan "), maintenance officer; (c) Mr Thomas, casual general hand; and (d) Mr Glenn Howard (" Mr Howard "), casual general hand. 8. On 13 December 2000, Mr Thomas was aged 16 years and Mr Howard was also aged 16 years. 9. On 13 December 2000, Mr Drozdoff was responsible for the maintenance of the premises at the said site. Mr Sullivan assisted Mr Drozdoff with the maintenance. 10. Mr Thomas and Mr Howard were employed by the defendant as part of the student employment program and were both students of Oakhill College, the secondary school operated at the said site by the defendant. 11. Mr Thomas was rostered to work at the site from 11 December 2000 - 22 December 2000 and from 14 January 2001 - 25 January 2001. 12. As casual general hands Mr Thomas and Mr Howard undertook duties such as sweeping, lawn mowing, applying fertilisers, trimming lawn edges with a whipper snipper, cleaning - including scrubbing floors and walls, cleaning by using a high pressure water hose, moving desks and cleaning leaves off roofs. 13. Mr Thomas and Mr Howard received no formal training or written documentation in relation to how to perform the duties of general hand. Mr Thomas and Mr Howard learnt how to perform the duties as general hand on-the-job and received training and instructions by fellow employees. 14. On 13 December 2000, Mr Drozdoff's immediate supervisors were the Principal of Oakhill College and the Bursar of Oakhill College, Mr Stephen Molloy. Mr Molloy was not present at the site on 13 December 2000. 15. On the morning of 13 December 2000, Mr Drozdoff told Mr Sullivan to clean out, with the assistance of two student employees, the roof gutters on the north side of the Brother Quentin Building located on the said site. Mr Drozdoff instructed Mr Sullivan to clean out the roof gutters by hand and then to clean any remaining mess with a fire hose. 16. Mr Drozdoff did not consider that the presence of a skylight on the roof of the Brother Quentin Building a risk to any worker because Mr Drozdoff had told Mr Sullivan to clean the gutters, not the roof, of the Brother Quentin Building. 17. On 13 December 2000 Mr Sullivan, along with Mr Thomas and Mr Howard went to the rear of the Brother Quentin Building. 18. Mr Sullivan told Mr Thomas and Mr Howard to clean out the roof gutters of the Brother Quentin Building by hand and then to clean any remaining mess down with a fire hose. 19. Mr Sullivan set up a ladder so as Mr Thomas and Mr Howard could access onto the roof of the Brother Quentin Building. 20. Mr Sullivan did not access onto the roof with Mr Thomas or Mr Howard. Instead, Mr Sullivan left Mr Thomas and Mr Howard to perform the work of cleaning out the roof gutters unsupervised. 21. Mr Sullivan left Mr Thomas or Mr Howard to perform the work while he went to collect a tool. Mr Sullivan then proceeded to check on other workers working in a different section of the site. 22. The roof of the Brother Quentin Building is double tiered and it was onto the lower level roof of the Brother Quentin Building to which Mr Howard and Mr Thomas accessed via the ladder that Mr Sullivan had set up for them (" lower roof "). The lower roof is approximately 700 millimetres wide and is flat. Access to a second level roof on the Brother Quentin Building (" second level roof ") is made from the lower roof. Located on the second level roof was a skylight, which measured approximately 1.5 metres X 1.5 metres. The skylight was approximately 9 metres away from the gutter on the second level roof that Mr Howard and Mr Thomas had been told to clean. 23. At all material times on 13 December 2000 the tools used by Mr Thomas and Mr Howard to clean the gutters were a blower and gloves. Both Mr Howard and Thomas were wearing steel-capped boots. 24. Once on the lower roof Mr Howard and Mr Thomas cleaned the leaves out of the lower roof gutter. After they had completed this task, Mr Thomas and Mr Howard pulled the ladder up on to the lower roof. They then positioned the ladder on the lower roof and accessed up and onto the second level roof.

25. Mr Howard commenced cleaning the leaves out of the gutter on the second level roof and Mr Thomas moved back onto the second level roof with a blower to blow leaves into the gutters that Mr Howard was cleaning. Some leaves became stuck around the skylight. Mr Thomas attempted to blow those leaves that were stuck around the skylight with the blower. Whilst attempting to do this Mr Thomas stood on the skylight. Mr Thomas fell through the skylight. 26. Mr Thomas fell a distance of approximately 5.1 metres. 27. Mr Thomas fell into a hallway in front of a set of stairs located directly below the skylight in the hallway of the Brother Quentin Building. 28. Immediately prior to Mr Thomas falling through the skylight, Mr Howard heard a "crack" sound and then saw Mr Thomas disappear through the skylight. 29. After Mr Thomas had fallen through the skylight Mr Howard descended from the second level roof and the lower roof via the ladder. Mr Sullivan passed Mr Howard running for help for Mr Thomas. 30. Mr Thomas was taken to Westmead Hospital and then transferred to Baulkham Hills Private Hospital on 14 December 2000. The hospital records reveal that Mr Thomas sustained the following injuries in the accident: (a) Fracture of the right distal radius and radioulnar dislocation over carpal bones; (b) Small wedge compression fracture of L2; (c) Left calcaneal fracture; (d) he had a normal CT head, abd and C-spine C1 and 2. 31. Mr Thomas returned to his studies at the school as a full time student on 30 January 2001. Mr Thomas also suffered from abrasions. Mr Thomas underwent surgery to his right forearm and had an orthopaedic implant (pins) inserted into his right arm. Mr Thomas also undertook physiotherapy. 32. Mr Thomas returned to work in the student employment program on 19 March 2001. 33. On 13 December 2000 the defendant had no formal system of work in place for working on roofs, including a system to ensure the prevention of falls. 34. On 15 February 2001, WorkCover received an anonymous complaint (File no. DOI/005477) in relation to injury sustained by Mr Thomas. The complaint was allocated to me on 16 February 2001. 35. The Defendant positively assisted the WorkCover Authority in precisely identifying the Defendant for the purposes of ensuring the institution of a valid prosecution. 36. On 12 March 2001 Inspector Guillarte visited the site and: (a) confirmed with Mr Drozdoff that an accident had occurred at the site during the Christmas holidays in 2000; (b) confirmed the accident involved a school student, enrolled at Oakhill College at the said site; (c) observed the roof area of the Brother Quentin Building. The second level roof was partially covered by a blue tarpaulin which covered a broken skylight; (d) observed a section of the second level roof area with a broken skylight covered by a blue tarpaulin, from inside the hallway of the Brother Quentin Building. 37. At the time of the accident the defendant had control and ownership of the site including the Brother Quentin Building. The defendant failed to ensure the health safety and welfare at work of all its employees, in particular, Mr Thomas. The defendant failed: (a) to provide and maintain systems of work that were safe and without risks to health; (b) to provide information instruction, supervision and training to its employees to enable them to perform their work in a manner that was safe and without risks to health.

10 The agreed statement of facts in relation to the s 27(1) charge was in similar terms to that relating to the s 15(1) charge.

11 Also tendered into evidence by the prosecutor was a bundle of nine colour photographs showing various aspects of the scene of the accident, a factual report into the incident completed by Inspector Guillarte on 31 May 2001 and a statement showing that the defendant has no prior convictions under the Occupational Health and Safety Act.

12 For the defendant two affidavits were read, both by Stephen John Molloy, schools administrator, employed by the defendant. Mr Molloy is the Bursar of the College. Mr Molloy's affidavits went to his working experience, background information about the College and the defendant, it being noted that the defendant conducts or has a role in administering 18 schools in Australia with an approximate total student population of 20,000. At Oakhill the present enrolment stands at 1,526. Mr Molloy expressed the belief that the defendant is a corporate entity deriving that status from the provisions of the Roman Catholic Church Communities' Lands Act 1944.

13 Mr Molloy also explained the defendant's youth employment program. He deposed that: Students are selected for the Program by College management in consultation with House Deans. As part of this process, a student who is a candidate for participation in the scheme is firstly assessed by College teaching and management staff to determine that the student has a level of maturity and a sense of responsibility sufficient to suggest that the student's participation in the Program is likely to be successful. The Program has proven to be very popular with students and their parents, and has a number of advantages for both the College and students, namely:- a. The students gain valuable work experience with the opportunity to obtain a reference on their approach to work - for example, this was the deciding factor for one student who obtained an apprenticeship with an electrician following work in the program; b. Parents of students employed in the Program like the fact that the students gain work experience in a familiar environment; c. The College has the benefit of employing people who know the physical layout of the College and who can be expected to have a commitment to the College. The students who are employed in the Program undertake "general hand/grounds assistant" duties, which include maintenance duties such as sweeping, mowing, whipper snipper work, fertilizing, cleaning (scrubbing floors and walls), high pressure water cleaning, organizing desks and moving them, and clearing leaves, rubbish and debris from the roofs of the buildings. Students are provided with on the job training, and supervision in their duties, by the College's maintenance supervisor, Mr Vladimir (Wally) Drozdoff and the permanently employed maintenance groundsman, Mr Mark Sullivan. Instructions provided, orally, included safety matters such as: a. Wearing of safety gloves, safety hats and appropriate footwear at all times; b. Correct use of ladders, and exercising care when working at any height (eg not to work standing too near the edge of a roof). The Program is not designed to and does not operate as a cost saving measure. Students are paid at the governing rates of pay and conditions for the classification of "Grounds Assistant" under the applicable State award for maintenance staff at schools, and superannuation contributions are paid on their behalf into the relevant Catholic Schools' Superannuation Fund. 14 In relation to Mr Thomas, Mr Molloy said: As with all the other students in the Program, Peter was inducted into the program by Mr Drozdoff and given on the job training, instruction and supervision by Mr Drozdoff and Mr Sullivan. By 13 December 2000 Peter had, on a number of occasions, undertaken all of the various tasks that were customarily assigned to students in the Program (as referred to in paragraph 16 of this Affidavit) and was regarded by his supervisors at that time as an experienced and responsible employee in the Program.

15 Mr Molloy addressed in his affidavit the accident and to his knowledge how it occurred. As to the failure to report the accident Mr Molloy said: Prior to the receipt of information supplied to the College by Inspector Guillarte in early June 2001, I was not aware of the requirement to report certain accidents to the Workcover Authority under Section 27 of the 1983 Act. The only reporting requirements for injuries of which I was aware were those for reporting injuries to the workers' compensation insurer.

16 Mr Molloy explained that Mr Thomas was put on an injury management plan and was successfully rehabilitated. Following the accident steps were taken to address occupational health and safety at the College. Mr Molloy said: The College Occupational Health & Safety Committee was formed in February 2000. As required under the 1983 Act, all members of the Occupational Health & Safety Committee attended a four (4) day training course in June 2000. My enquiries have failed to locate any internal College records pre dating December 2000 concerning staff training or instruction on occupational, health and safety matters or in connection with working on roofs prior to December 2000. Further the College took the following steps: a. Immediately after the accident, an instruction was given forbidding work being undertaken on roofs of College buildings by anyone until further notice, and signed to that effect were placed on roofs, including the roof of the Brother Quenton building. b. Soon after the accident, a warning sign was placed next to the skylight on the Brother Quenton building. c. A Work Method Statement was developed and implemented (in compliance with Workcover Improvement Notice No. 216447) relating to cleaning roof gutters using ladders, the use of a harness and working on flat roofs. d. The problem relating to skylights and working on roofs was discussed with other maintenance teams from other schools within the Independent Schools Property and Facilities Managers Group. e. Safety Instructions for the Maintenance Department were also developed and implemented. f. A workshop demonstration was attended by Mr Drozdoff, on the application of roof lifelines and fixing eyelets. g. Three (3) acrylic skylights at the College were replaced with a polycarbonate substrate which has a high impact resistance. h. Safety instruction meetings for all maintenance staff were conducted within the Maintenance Department. i. Safety videos relating to occupational health and safety and the College as a workplace were purchased and showed to all existing maintenance employees. The Safety Videos are now showed as part of the induction program to all students taking part in the Program and to maintenance employees. j Safety signs were installed around the College, particularly on the roofs of the College, stating that all personnel were to keep off the roofs. k. A safety harness kit was purchased by the College and will be brought into operation once appropriate fixtures are attached to roofs. l. All new staff now have an induction in occupational health and safety and are given training on workplace safety. m. All staff have been issued with instructions about a wide range of safety matters including working on roofs. n. Supervisors are required to closely supervise student employees at all times. o. Student employees are permanently prohibited from working on roofs in any circumstance and the work is undertaken by a contract company, Program Maintenance Services. p. All administration staff have been briefed on all the requirements regarding notification of accidents under Section 27 of the Occupational, Health & Safety Act, 1983 and a specific person, the Assistant Bursar, has been nominated as the person responsible for complying with the requirements in relation to notifying workplace accidents. q. Codes of Practice booklets relating to occupational health and safety, and specific to tasks to be performed around the College have been acquired. 17 Mr Molloy deposed that the defendant had fully cooperated with the WorkCover Authority in its investigation of the accident and that it very much regretted the accident.

18 In his second affidavit Mr Molloy expanded on the training and supervision provided to students in the youth employment program including safety inductions carried out by the defendant and in particular the safety topics and instruction provided to student engaged in cleaning roof gutters. Mr Molloy also explained: Supervision of students, … is organized by scheduling regular student workplace inspections at close intervals, at approximately every 30 to 40 minutes for low safety risk tasks. Tasks that have a higher safety risk would require permanent supervision. A supervisor would be present at the work site at all times. Should the supervisor need to leave the work site the supervisor is required to have students cease work and vacate the work site until a supervisor has returned. … student employees are now permanently prohibited from working on roofs in any circumstance. This was communicated to the students orally by Mr Drozdoff. There is also signage on the roofs indicating that access to the roofs is prohibited.

19 As Ms P E McDonald counsel for the prosecutor submitted, there are a number of factors to be taken into account in addressing the primary consideration in sentencing proceedings, namely, the objective seriousness of the offence. These factors are: (a) The nature and quality of the offence and whether it involved obvious and foreseeable risks, whether there were simple and straightforward steps available to remedy any failures on the part of the defendant and, whether injuries sustained by an employee or person manifested the degree of seriousness of the relevant detriment to safety; (b) the need for general deterrence; (c) the need for specific deterrence; (d) the maximum penalty for the offence as prescribed by Parliament.

20 Mr Thomas was on the roof to clean the gutters with a leaf blower and fire hose. Some leaves apparently got stuck around the skylight and in attempting to remove them Mr Thomas stood on the skylight and fell through it. It does not matter how the accident occurred but only whether employees were exposed to risks. The risk to health and safety in this case was that the students working on the roof of the building might fall. The roof was some four metres above the ground. The risk was foreseeable, indeed, obvious in the absence of any system of fall restraint being used, thereby increasing the gravity of the offence.

21 Employees, especially young, inexperienced persons, must not be permitted to work at heights where there is any risk at all to their health and safety. A proper system of fall restraint must be utilised. In this case, I note that the defendant has prohibited students from working on roofs under any circumstance. I consider that to be a proper response to the accident that occurred on 13 December 2000.

22 That the defendant allowed young employees onto the roof of a College building to perform work without proper fall restraint and instruction, supervision and training was a significant lapse of sound judgment on its part, which could have had tragic consequences.

23 The gravity of an injury resulting from a breach of the Act does not of itself dictate the amount of penalty. However, the occurrence of death or serious injury may manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 at [32] and the cases referred to therein. In this case Mr Thomas suffered fractures and a dislocation after falling some 5.1 metres. As I have already noted, the consequences could have been much worse.

24 The seriousness of an offence may be compounded by the fact that there were simple, straightforward steps available to the defendant to ensure the safety of employees but the defendant failed to take those steps. In the present case the steps taken by the defendant after the accident demonstrates that the risk to safety was easily avoided. Those steps included the following:

· Development of a work method statement relating to cleaning roof gutters using ladders and the use of a harness; · Replacements of skylights with a more resilient material consisting of polycarbonate substrate; · Purchase of fall restraint systems including safety harness kit; · Further instruction and training to employees on working safely at heights; · The prohibition of student employees working on roofs.

25 In WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383 at 452 Walton J, Vice President, in the context of considering the need for general and specific deterrence said: In my view, the existence of a risk to safety in a business which engages a large number of young, inexperienced and vulnerable workers, particularly where the business utilises dangerous equipment, must enhance the seriousness of the offence. Such a circumstance compels the imposition of a sentence which will attract the attention of other persons or corporations operating enterprises with similar features to the necessity of vigilantly ensuring the safety of young and inexperienced workers.

26 It seems to me that I should give weight to the need for general deterrence in fixing any penalty. Whilst the defendant operates a youth employment program and is not employing young people in a business for profit, I consider, as Walton J did in McDonald's, there is a need to compel attention to the obligation upon all employers to ensure the safety of young and inexperienced workers.

27 As to specific deterrence, it is unlikely in my opinion the defendant will re-offend given the extensive steps it has taken to improve its approach to occupational health and safety and to its policies and practices in that regard. I observe that it has banned student employees from working on roofs. I do not propose to give much weight to the need for specific deterrence in fixing penalty.

28 The maximum penalty in relation to the offence under s 15(1) is $550,000. That is a significant amount for any offender to have to meet but, of course, the maximum amount will only apply to the worst of cases. This is not one of those. Nevertheless, the amount of the maximum penalty set by Parliament reflects the community's deep concern about workplace accidents and this in turn should be reflected in the court's assessment of the offender's culpability on a scale that is as high as $550,000.

29 As to the offence under s 27(1) of the Act, the evidence indicates that the defendant simply was not aware of its obligations to notify and that there was no attempt by the defendant to cover up the accident. I accept that this was the case. I note, however, the observations by the Full Bench in Gotico Industries Pty Ltd v Benbow (2001) 103 IR 78 at [6] regarding the importance of s 27: We wish to emphasize the significance of s 27 of the Occupational Health and Safety Act 1983. The provision does not merely impose formal requirements for the notification of accidents in the nature of the registration of an incident, but rather requires a notification of accidents so that the WorkCover Authority of New South Wales may carry out necessary investigations to identify and remedy hazards to safety: see WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Proprietary Co Limited (1999) 90 IR 277 at 290 and 295. The section is an important provision ensuring the proper investigation of breaches of the Occupational Health and Safety Act and the adoption of appropriate remedial measures to prevent further such occurrences.

30 The maximum penalty for an offence under s 27(1) of the Act is $55,000.

31 There are a number of subjective factors to be taken into account. Mr J J E Fernon SC for the defendant pressed the Court to consider the nature of the defendant and its undertaking. That is, it is a religious order engaged in education and which has instituted a youth employment program to provide pre-employment training and experience to young people. Mr Fernon submitted that a heavy fine had the potential to jeopardise such program.

32 Mr Fernon referred to Inspector Farrell v The Salvation Army (New South Wales) Property Trust [2003] NSWIRComm 229 where Haylen J said: The numerous charitable and religious works undertaken by the defendant emphasises its status as a good corporate citizen in the sense it is relevant to the present proceedings. This is a significant factor which is taken into account in mitigation of penalty.

33 Mr Fernon submitted that I should take a similar approach in respect of the defendant in these proceedings. I accept without equivocation that the defendant is a good corporate citizen and, through its good works, is held in high esteem in the community. This is a factor that is taken into account in mitigation.

34 Mitigation of the penalty in this case also comes about because of the defendant's good character, the fact it has no previous convictions, its commendable cooperation with the WorkCover Authority, the steps it has taken to make occupational health and safety a priority consideration and its early plea of guilty.

35 In relation to the charge under s 15(1) of the Act I consider an appropriate penalty to be $100,000. However, this should be discounted by 25 per cent to take into account the utilitarian value of the early guilty plea and a further 10 per cent for the other subjective factors. This results in a penalty of $65,000.

36 In relation to the charge under s 27(1) of the Act I consider an appropriate penalty to be $9,000. However, this should be discounted by 25 per cent to take into account the utilitarian value of the early guilty plea and a further 10 per cent for the other subjective factors. This results in a penalty of $5,850.

23 The Court makes the following orders: Matter No IRC 6360 of 2002 : 1) The offence is proven and a verdict of guilty is entered.

2. The defendant is convicted of the offence as charged.

3. The defendant is fined an amount of $65,000 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. Matter No IRC 6362 of 2002 : 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $5,850 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

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