Kok, t/as Claridge Valet Dry Cleaners v WorkCover Authority of New South Wales

CATCHWORDS : Appeal - Application for extension of time to appeal - Proposed appeal relating to workers' compensation prosecution - Challenge to conviction, penalty and order for payment of insurance premium - Principles to apply in considering an out of time application - Relevance of need to obtain leave to appeal - Leave unlikely to be granted - Appeal unlikely to succeed - No satisfactory explanation for delay of nearly 23 months in bringing appeal - Purpose of extension of time to do justice between the parties - Interests of administration of justice - Application to extend time refused - Appeal incompetent - Appeal struck out, with costs.

Costs - Unsuccessful application to extend time to appeal - Unmeritorious application - Application should not have been brought - Indemnity costs awarded against applicants. Industrial Relations Act 1996 s 188(1) s 189(1) s 197(1) LEGISLATION CITED : Workers Compensation Act 1987 s 155(1) s 156(1) Workplace Injury Management and Workers Compensation Act 1998 s 245(4) De Luxe Cab Co Ltd v Grenside (1999) 92 IR 384 De Simone Consulting Pty Ltd v Ison (No 2) [2000] NSWIRComm 269 Legge v Coffey Engineering Pty Ltd [2000] NSWIRComm 278 CASES CITED : LEP International Pty Ltd v Caine (2000) 97 IR 35 Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 Van Rooy Machinery Pty Ltd v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436 WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 HEARING DATES: 03/05/2001; 03/19/2001 EXTEMPORE JUDGMENT DATE : 03/19/2001

APPLICANTS Mr B C Kok in person and as agent for Ms W S Sinisa No appearance for Mr Sione Leota or Ms Satua Leota

LEGAL REPRESENTATIVES: RESPONDENT Mr D B O'Neil of counsel Solicitors: Ms S Reid WorkCover Authority of New South Wales

JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HUNGERFORD J Monday, 19 March 2001 Matter No IRC 5057 of 2000 BERNARD CORNELIS KOK, WINNIE SINA SINISA, SIONE LEOTA AND SATUA LEOTA, TRADING AS CLARIDGE VALET DRY CLEANERS v WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR ADRIAN REYNOLDS) Application to extend time to appeal and appeal against orders made by a Local Court constituted by an industrial magistrate, Ms P Staunton, on 6 November 1998 under the Workers Compensation Act 1987. JUDGMENT (extempore) [2001] NSWIRComm 48 1 This is an application by Bernard Cornelis Kok, Winnie Sina Sinisa, Sione Leota and Satua Leota pursuant to s 189 of the Industrial Relations Act 1996 for an extension of time to appeal against orders made by a Local Court, constituted by Ms P Staunton sitting as an industrial magistrate, given on 6 November 1998 for a breach of the Workers Compensation Act 1987. 2 In the challenged orders, her Worship convicted the applicants, who were then trading as Claridge Valet Dry Cleaners, of a breach of s 155(1) of the Workers Compensation Act for failing to obtain from a licensed insurer a policy of insurance in relation to liability under that Act for workers' compensation in the period from 1 August 1995 to 12 December 1997. A fine of $1,500.00 was imposed with a moiety to the prosecutor. Her Worship also ordered the applicants to pay, pursuant to s 156(1) of the Workers Compensation Act, an amount of $13,682.85 being double the premium due for such a policy in the period concerned plus court and professional costs in the sum of $551.00. The total amount payable by the applicants was thus $15,733.85. It was not paid and remains outstanding. 3 At the commencement of the hearing of the application on 5 March 2001, Mr Bernard Kok appeared for himself in person and sought to proceed by representing as agent each of the other three applicants. However, there were irregularities in the initiating documents, including lack of signatures on the application and the notice of appeal and absence of authority for Mr Kok to appear on behalf of certain of the applicants. I accordingly ruled: I will treat this in the circumstances as an application for an order seeking an extension of time within which an appeal may be brought, such application being by Bernard Cornelis Kok, Winnie Sina Sinisa and by Sione Leota. I do not accept on the face of the material that it is an application by Satua Leota and to the extent that the application purportedly is made by her, I would propose that it be dismissed as incompetent.

In so far as Mr Kok's appearance is concerned, I accept that he may appear in his own right for himself and pursuant to the affidavit sworn by Winnie Sinisa on 29 November 2000, that he appears in the proceedings being heard as an applicant by way of agency.

However, in the absence of any other material, I do not accept that Mr Kok appears for Sione Leota who is, nevertheless, an applicant in the proceedings but not appearing. I affirm that ruling.

Mr Kok was then heard on the application to extend time in which the appeal could be validly brought. 4 The application, if granted, would permit an appeal against the orders of her Worship, subject to leave to appeal, pursuant to the combined operation of s 245(4) of the Workplace Injury Management and Workers' Compensation Act 1998 and s 197(1) of the Industrial Relations Act. Under s 189(1) of the Industrial Relations Act any such appeal is to be made within 21 days after the date of the challenged decision or within such further time as may be allowed. Here, the application to extend time was filed on 17 October 2000, together with the proposed application for leave to appeal and appeal. As the challenged decision was given on 6 November 1998, the appeal was sought to be brought one year, ten months and three weeks after the time within which it should have been brought. Mr D O'Neil of counsel appeared for the respondent, WorkCover Authority of New South Wales (Inspector Adrian Reynolds), and opposed the application. 5 The application to extend time to appeal stated the reasons why it was not filed beforehand, as follows: 1. At the hearing on 6 November 1998 we were advised that no appeal was allowed. 2. Much later and by chance, we were advised that we can appeal.

3. At the time and even now, we can not afford legal representation - we lost approximately $150,000 due to defamation by a Television Station in 1998. Currently our turnover is back on track, however it will take many years to recover $150,000. 6 The grounds for claiming an extension of time were stated in the application and those grounds essentially concerned a claim that the applicants were wrongly advised and that they were convicted on false evidence. 7 In a supporting affidavit sworn and filed on 29 November 2000, Mr Kok relevantly deposed for present purposes: 2. Directly after the 6 Nov 1998 court proceedings I, Bernard C Kok, asked the legal Workcover Authority of NSW where I decision. I was told by Ms Bronwyn Smith (Legal Officer of Workcover Authority of NSW) that an appeal was not allowed.

3. Thereafter we decided to offer the Workcover authority of NSW the amount of $670 based on the wrong percentage however they refused.

4. During the first half of 2000, one director/party, being Mrs Winnie S Sinisa, got served with bankruptcy notices, issued by the Federal Court of NSW of behalf of the Workcover Authority of NSW. 5. This service made Mr B C Kok - not being served with a bankruptcy notice - to ask questions of some of the company's clients. Like several solicitors/barristers being clients of Claridge Valet Drycleaners stated directly, that we, being Claridge Valet Drycleaners and being B Kok, W S Sinisa, S & S Leota, did have the right to appeal.

6. The reasons we did not receive and/or accept legal services are the we could not afford each service, due to a one-off loss of amount $150,000 - minimum.

7. The Workcover Authority of NSW has to prove that we are liable to the amount of money claimed. 8 It will be apparent that the major, if not the sole, reason put forward why the appeal was not filed in a timely way was that after the hearing on 6 November 1998 Mr Kok said he was informed by Bronwyn Smith, the solicitor who appeared for the informant in the Local Court proceedings, that there was no appeal; it was only during the first half of 2000 when one of the applicants, Winnie Sina Sinisa (also Mr Kok's former wife), was served with bankruptcy notices that Mr Kok made enquiries of some of the business's customers who were lawyers that he found there was a right to appeal. Nevertheless, I interpose that it was not until 17 October 2000 that the present application was filed and, even then, there was no evidence of any steps taken by Mr Kok or any of the other applicants beforehand to obtain independent advice regarding the right to appeal her Worship's decision. 9 At the hearing before me, Mr Kok was cross-examined on this aspect and he gave the following evidence: Q. Did you make any notes of that conversation of 6 November 1998? A. No, the Judge did.

Q. I'm sorry? A. The Judge did. That is Judge Staunton. If you check the last page of the court records, Judge Staunton suggested we have a talk outside the door.

Q. Do you say that that is a note of the conversation, the Judge saying that? A. We discussed the matter outside the court room for five to ten minutes and she was explaining to me how to pay it off, while I was asking her questions about an appeal, that's why I got told that no appeal was allowed.

Q. Did you report the conversation so far as it related to an appeal to anyone? A. Yes, I discussed it later on with a barrister who was a customer of our little company and he said, "You could have appealed." That's the reason I come here today.

Q. You understood that in the proceedings in the Local Court that WorkCover were prosecuting you? A. I understand that, sir, but WorkCover never proved a point in court.

Q. And the Magistrate didn't indicate that you should discuss with WorkCover your right of appeal, did she? A. No.

Q. You didn't think that WorkCover were your legal advisers, did you? A. I know they were not my legal adviser, no.

Q. For the purposes of this question you were told, assume for the purposes of this question only that what you say is right, you were told you couldn't appeal? A. That is correct.

Q. What did you do about paying the fine? A. I haven't paid it. I refuse to pay it.

Q. You refuse to pay it? A. That's why I am here.

Q. You accept it is an order made by the court? A. Yes, I accept that.

Q. I want to suggest to you that Ms Smith didn't at any time tell you anything about whether you could appeal or not? A. That is your right to say, sir, but the discussion took place and I urge you to check the last page of Ms Staunton's proceedings.

Q. And you say you have a practice of keeping notes about what happens at court? A. Yes.

Q. Both inside court and outside court? A. That is correct.

Q. And you haven't been able to find any such notes so far as they relate to any conversation of this type? A. That is right. My residential area was in turmoil due to the fact that my ex-wife, who was living on the same premises but not in a de facto relationship, moved out about three or four weeks ago and left an enormous mess.

Q. Did you start looking three to four weeks ago? A. I am still looking.

Q. So you didn't start looking three or four weeks ago, your search for these documents about what was said? A. Sir, if you have a look through my house right now and see the pile of papers, you will get a headache.

Q. Did you start looking three to four weeks ago for these documents? A. Yes, I did.

10 There was no reason nor explanation for the delay of at least a few months in filing the present application from "the first half of 2000" when the bankruptcy notices were served to 17 October 2000. Further, that evidence in Mr Kok's affidavit that it was the bankruptcy notices in the first half of 2000 which caused him to make enquiries of lawyer customers was not consistent with his oral cross-examination when, as to whether he reported the 6 November 1998 conversation with Ms Smith to anyone, he said - "I discussed it later on with a barrister who was a customer". That evidence readily leaves open the inference that Mr Kok may well have discussed appeal rights with a lawyer, but shortly after 6 November 1998, and did not do anything about it until the bankruptcy notices were served on his wife, Ms Winnie Sinisa. Indeed, that inference would be in accordance with other oral evidence given by Mr Kok to the effect that he did not do anything about paying the fine after it was imposed on 6 November 1998 and, as he said, "I haven't paid it. I refuse to pay it". 11 In insisting he discussed with Ms Smith the question of an appeal after the hearing on 6 November 1998, Mr Kok relied on the concluding words in the transcript of proceedings before her Worship, in terms, as he put in cross-examination, that her Worship made notes of the conversation with Ms Smith but he did not know whether he made any notes. However, the transcript clearly records her Worship advised Mr Kok about procedures to pay the fine and Ms Smith confirmed the facility of an extended time to pay; the proceedings then concluded but with no mention of any appeal. 12 The doubts which one might have about Mr Kok's evidence as to the alleged advice to him by Ms Smith about there being no appeal, were heightened when he was pressed in cross-examination on 5 March 2001 about his practice in keeping notes of proceedings in court. Even though that was his practice, he said he had been unable to find any such notes when he started looking "three to four weeks ago". One might reasonably wonder about a matter as seemingly important to Mr Kok that he did not start until quite recently a search for the notes which recorded material concerning the very reason offered for the delay in bringing the appeal. And this is particularly so where the present application when filed on 17 October 2000 had annexed thereto a number of other relevant documents and Mr Kok's supporting affidavit sworn on 29 November 2000 made no mention of any notes. 13 Ms Smith swore an affidavit on 1 March 2001 and gave oral evidence concerning her role in the proceedings before her Worship. She relevantly deposed: 5. I am aware of the within Appeal against this conviction and have read the documentation filed herein by the Appellants.

6. I am aware that the Appellants have alleged that following the hearing on 6 November 1998, I told them that they could not Appeal from the conviction recorded against them by Magistrate Staunton.

7. To the best of my knowledge and recollection I did not tell the Appellants that they were unable to Appeal the decision of Magistrate Staunton. In fact to the best of my knowledge and recollection I do not recall speaking to or having a conversation at all with the Appellant following the hearing on 6 November 1998.

In her oral evidence-in-chief, Ms Smith said: Q. Finally you heard what his Honour said, it has not been put to you before. What do you say to the proposition you told Mr Kok he could not appeal the decision of the Magistrate? A. I would not have said that. I would have said they had 28 days to speak to somebody down here or to get legal advice.

Q. As at the date of hearing how long had you been working for WorkCover? A. I commenced about February that year.

Q. Did you ever in any circumstance advise any defendant that they did not have a right to appeal? A. No.

Ms Smith was cross-examined to this effect by Mr Kok: Q. Ms Smith, you recall Magistrate Staunton asking you to have a discussion with me at the end of the court case on 6 November 1998 with regard to an extended period of time to pay? A. I don't recall it specifically but the Magistrate would often ask me to discuss an extended period of time with defendants and I would always advise them to call me in two or three days or a week to discuss it. Q. You don't remember? A. I don't remember specifically in this case.

Q. So with regard to your notes at the court is it possible you forgot to write it out? A. Yes, I don't write everything the Magistrate said down.

Q. It is quite possible we had a discussion and you forgot to write it down? A. It is more likely I would have suggested you or any other defendant call me in three days or a week to discuss it. That is generally what I did.

I point out that in that cross-examination of Ms Smith the questions were directed to an extended period of time to pay the moneys the subject of her Worship's order. They did not extend in any way to the question of an appeal. 14 The principles applicable in considering an application to extend time to appeal are, in my view, well settled by the authorities. In Van Rooy Machinery Pty Ltd v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436 at pp 438-439 in [16] and [17], I endeavoured to set out those principles by reference to cases such as the Full Bench decisions in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at pp 5-6 and WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at pp 299-301 and the decision of Wright J, President, in LEP International Pty Ltd v Caine (2000) 97 IR 35 at pp 41-42. The approach so followed was approved by a Full Bench ( Wright J, President, Walton J, Vice-President and Glynn J) recently in De Simone Consulting Pty Ltd v Ison (No 2) (2000) NSWIRCom 269 at [3] and [4]. I have had regard to the principles so stated in considering the present matter. 15 Of particular relevance as to a satisfactory explanation being required for the delay in filing any appeal, I refer as apt to the case here what was said by Wright J, President in De Luxe Cab Co Ltd v Grenside (1999) 92 IR 384 at p 390, as follows: As earlier noted in its judgment in Parkes Council, the Full Bench cited with approval the judgment of McHugh J in the High Court in Gallo v Dawson . His Honour, at 459 of the report, in turn cited with approval the following passage from the advice of the Judicial Committee in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12: "The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion." In my view, the material filed by the applicant fails, on any reasonable analysis of it, to provide any proper explanation of the failure to file the appeal within the time required. Although the factual circumstances are significantly different, the conclusion reached by the Full Bench in Parkes Council (at 304), in the following terms aptly describes the evidence relied upon here: "the evidence adduced by the applicant offered no adequate explanation why the notice of appeal was not filed in a regular manner. …" 16 I am reminded too in this respect of observations I made in Van Rooy Machinery (97 IR at p 442 in [33]), namely: Essentially, it seems to me, in deciding whether or not to grant an application to extend time to appeal comes down to the proposition of doing justice between the parties and ensuring the proper administration of justice. 17 That synthesis of the position was cited with approval by Wright J, President in Legge v Coffey Engineering Pty Ltd (2000) NSWIRCom 278 at [23]. 18 Here, the reason advanced by Mr Kok for the delay was the advice he said Ms Smith gave him following the hearing before her Worship on 6 November 1998 that there was no right of appeal. I have set out earlier the salient pieces of the evidence concerning this aspect. I have to conclude, having in mind my earlier stated criticisms of it, that I find as unsatisfactory the evidence given by Mr Kok. It was inconsistent and lacked credibility. I gained the impression from his oral evidence that he was prepared to answer questions in a manner supportive of his case regardless of his earlier affidavit evidence - his explanation for the delay overall simply did not fit the period of the delay of about 23 months. The blunt statement made by Mr Kok that the fine was not paid after it was so ordered on 6 November 1998, and that he refused to pay, speaks much of his approach to this issue. That is particularly so having regard to his explanation that it was not until the first half of 2000 that enquiries by him of his lawyer customers following the bankruptcy notices led to knowledge that there was a right to appeal. I am not at all persuaded that Mr Kok ever intended to satisfy the orders against him. The bankruptcy notices, I infer, brought the realisation to Mr Kok that the respondent would pursue payment of the moneys due and that he should do something to avoid or forestall that action. The present application to extend time to appeal was that "something". I have to conclude, therefore, that I do not accept his evidence as establishing a proper and reasonable explanation for the delay; indeed, I consider the present application is but a further step in his attempt to avoid payment of the moneys ordered by the Local Court on 6 November 1998. 19 On the other hand, I accept as understandable and cogent the evidence of Ms Smith. I believe her evidence that she did not tell Mr Kok on 6 November 1998 he did not have a right of appeal. 20 My conclusions on the evidence before me as to Mr Kok's motivation in bringing this application, particularly having regard to the inordinate delay involved of about 23 months, receive support by reference to his conduct in the proceedings before her Worship. In the decision given on penalty her Worship said: Nevertheless I have regard to the history of this matter which as I have found has not been without its attempts on the part of the defendants as it were to almost filibuster their way through numerous adjournments for a whole variety of reasons and today's most recent application having been denied them.

I have already outlined those factual matters that I have relied upon and the conclusions that I have come to and I have to say that whilst I have some sympathy for the defendants' financial position it's not one that is such as to suggest that no penalty should be imposed in respect of this matter. There are no prior convictions against the defendants under the Workers' Compensation legislation but as Ms Smith herself has said they've certainly made it - certainly couldn't suggest that they'd take the benefit of having entered a plea either at the first available opportunity or indeed having raised those matters which they chose to do by way of defence and then placing, what I consider to be, the paucity of material before the Court and indeed the attempts at what I consider to be to suggest that they had no employees during some parts of the relevant times.

Earlier, in considering the question of whether the offence had been made out, her Worship observed as to that history of the matter, as follows: Now this matter has something of a history. It was before these courts on 23 February this year. Mr Kok who appears on behalf of Claridge Valet Dry Cleaners and his other partners here today appeared on that occasion. It was then put down to be dealt with on 30 March 1998. There was no appearance by anybody on behalf of Claridge Valet Dry Cleaners. It was then adjourned to 28 April 1998 to be dealt with on an ex parte basis. On 28 April 1998 it was further adjourned to 4 May 1998 and Mr Kok appeared on that occasion.

On that occasion Mr Kok claimed that his records, that he had been robbed and that a number of his records were missing and he needed time to get certain matters together, that was on 4 May. The matter was then adjourned to 22 June 1998 when it came on for hearing. There was no appearance by Mr Kok on that day or anybody on behalf of the defendants and the matter was then set down for hearing on 20 August 1998 to be dealt with on an ex parte basis. On 20 August 1998 Mr Kok put in an appearance again and on this day he claimed, he sought an adjournment when he said that the bookkeeper had gone, at least on the court papers, AWOL … for six, with the books and he sought an adjournment. That was granted, it would seem probably reluctantly on that day because the magistrate dealing with the matter marked the papers that in setting the matter down for this day that there were to be no further adjournments granted and it therefore comes on for hearing before me today. This morning Mr Kok made a further application for the matter to be adjourned on the basis that he needed some more time to get some more documents together from another firm of accountants it seems. I refused that application and have proceeded to deal with the matter. 21 I am not persuaded that the applicants have made out a satisfactory explanation for the delay. Indeed, I am not satisfied that the delay here was to any extent reasonably based. This ground must fail. 22 A further ground was relied upon to support an extension of time, namely, to correct a miscarriage of justice. Mr Kok put that the appeal had every possibility of succeeding. I interpose the comment, even if time be extended, that a further hurdle exists requiring the applicants to obtain leave to appeal pursuant to s 188(1) of the Industrial Relations Act . 23 The basis for this ground was that her Worship relied upon a Workers' Compensation Cover Note issued by MMI Workers' Compensation (NSW) Limited setting out an estimated premium and on which the prosecutor based his claim and on which her Worship based her decision as to the amount of premium payable. This issue was fully considered by her Worship as the record of the proceedings showed. In the decision, her Worship said: I also have had placed before me by Ms Smith on behalf of the Authority, Ex 4, which is a copy of a Workers' Compensation cover note issued by MMI Insurance which is a cover note to cover the defendants during the period 27 March 1997 to 26 April 1997 and Mr Kok, on behalf of the defendants, claims that that cover note, to the best of his knowledge, he says must have been issued in error. He had heard about it on the grape vine he said, that it was issued by somebody in a firm of accountants acting on behalf of the defendants and he says was based on inaccurate information as to the amount of monies by way of estimated wages for the purpose of calculating the premium because he said the four persons who trade as Claridge Dry Cleaners are taking no wages from the business and they were the only ones employed he says or said at some point, particularly during 1997 and therefore he disputes any of the information in the cover note.

Now Mr Kok has said that I should take no account of that cover note because he says, look it came to him via the grape vine that it had been requested by an employee of a firm of accountants that were acting for the defendants at the time and that he really knew nothing about it and if there was an estimation of wages there then it was an estimation based, at least this was what he asks me to infer, on something that either somebody made up or else on misconstrued or misrepresented figures.

Well I have to say to Mr Kok that I don't accept that. I don't accept that a firm of accountants would ask an insurer to issue a cover note based on information that Mr Kok says "Well really you can't imagine how they came to give that figure out." I believe that they would have. If what he said, if what Mr Kok says is correct, and he places nothing before me to assist me, I come to a view based on that cover note that it was issued by MMI because it was requested by the defendants or somebody acting on the defendants' behalf. They don't just send out cover notes, or insurance companies don't unless they're asked for them and that information contained in that cover note was information given to, if it wasn't asked for by Mr Kok, that information was provided by either Mr Kok or one of his partners trading as Claridge Valet Dry Cleaners.

A review of the evidence and argument in the proceedings, to me, makes that conclusion by her Worship unsurprising. 24 I am far from satisfied that the applicants have made out the miscarriage of justice ground. In any event, the reasoning and conclusion by her Worship does not exhibit any apparent error. I do not think leave to appeal would be allowed but, even if it were, an appeal would be unlikely to succeed. 25 In the result, and in accordance with the applicable principles, I am not satisfied the delay has been satisfactorily explained. Neither am I satisfied that the applicants on appeal would have any real chance of success even if leave were granted. There was no other material in the proceedings, nor any argument, which otherwise would justify an extension of time within which an appeal could be brought. 26 The application to extend time to appeal is refused and I so order. The notice of appeal is, therefore, incompetent and is struck out.

(The parties addressed on costs) 27 The respondent sought an order for costs on an indemnity basis. In De Simone Consulting v Ison (No 2) , a judgment of a Full Bench of the Court earlier referred to and also concerning an extension of time application to bring an appeal, their Honours said on the question of costs, and specifically on indemnity costs ([2000] NSWIRComm 269 at [9]): Reference has been made to the authorities as to indemnity costs helpfully collected in a recent judgment of Schmidt J in Payne v The University of Sydney [2000] NSWIRCom 158 at [4] and [5]. In particular there was reference to the following extract from the judgment of Hill J in Boner v Anderson (No 2) (1993) 50 IR 470 to 475 as approved by Full Benches in Anderson v Boner (1993) 52 IR 114 at 118 and in Australian Mutual Provident Society v Avis (unreported, Bauer, Peterson and Marks JJ, 18 December 1997): "It is fair to say that generally speaking an order for costs on an indemnity basis is justified in a case in which there are special or unusual features of an unmeritorious or improper nature surrounding the case of one party (usually the loser) which make it unreasonable and unfair that the successful party should be out of pocket as a result of the proceedings." We adopt that statement of principle in this matter (although omitting reference to the notion of improper conduct in the present context) and apply those principles to the circumstances of this case.

Those statements of principle by a Full Bench are, of course, binding on me sitting alone. I indicate, in any event, my respectful agreement with them. The circumstances of this case as I have outlined them, justify, in my view, a costs order in favour of the respondent on an indemnity basis. I consider the applicants' case to have been unmeritorious to such an extent that I do not think proper grounds existed for the application to extend time to appeal to have been brought. 28 Accordingly, I further order that the applicants pay the respondent's costs of and incidental to the application to extend time to appeal on an indemnity basis. _______________

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