Polovin v Miller [2015] NSWCATAP 63 | Case summary

Ground 1: Exceeding the Tribunal's jurisdiction

Relevant aspects of the Tribunal proceedings. As already stated, the amount of damages claimed by the applicants in their application dated 10 July 2013 to the Consumer, Trader and Tenancy Tribunal was $110,000. But on 21 May 2014, they filed and served evidence that included both an expert report and a Scott Schedule setting out particulars of their claim. In this Schedule, the total of all the specific amounts of damages claimed was $567,862.28.
A directions hearing relating to the proceedings took place on 18 June 2014. The transcript of this hearing indicates that at its commencement Senior Member Smith pointed out that if this amount of $567,862.28 was in fact being claimed by the applicants, the Tribunal would no longer have jurisdiction to determine their application.
The basis for this provisional ruling was s 48K of the Act, which states:- 48K Jurisdiction of Tribunal in relation to building claims (1) The Tribunal has jurisdiction to hear and determine any building claim brought before it in accordance with this Part in which the amount claimed does not exceed $500,000 (or any other higher or lower figure prescribed by the regulations).
The applicants' solicitor, Mr G Aronstan, replied that his clients were prepared to abandon any amount in excess of the Tribunal's jurisdictional limit of $500,000.
The solicitor then appearing for the respondent, Mr P Wiggins, argued that the amount stated in the Scott Schedule, $567,862.28, was to be regarded as the amount claimed by the applicants and that for this reason the Tribunal did indeed lack jurisdiction. It was not open to them, he maintained, to file and serve evidence in which their claim was particularised in an amount exceeding $500,000 and to seek to evade the operation of s 48K by stating that the amount that they sought was only $500,000. If they wished to reduce the amount of their claim in this way, they were obliged to supply further particulars identifying the items of alleged damage that they were prepared to abandon. If this were not done, the respondent would be put to the expense of responding to 'the whole of the Scott Schedule and the whole of the expert report'.
Mr Aronstan stated that his clients were not prepared at this stage to advise the respondent which items in the Schedule were not pressed.
Senior Member Smith indicated that although this position adopted by the applicants might have implications when the question of costs arose for determination, he was satisfied that as long as they abandoned any excess over $500,000, the Tribunal did have jurisdiction. He stated that he would make an order amending their application to the Tribunal so as to reduce the amount claimed to $500,000.
At the end of this hearing on 18 June 2014, the Tribunal made a number of directions as to the future conduct of the proceedings. It did not make an order concerning the amount of the applicants' claim. But after drawing attention to this omission in his concluding remarks, Senior Member Smith stated '… I will make a note on the file that the Tribunal notes the applicant (sic) now seeks orders in the sum of $500,000.'
This question of the Tribunal's jurisdiction was not raised by either party at the directions hearing on 9 September 2014. At its conclusion, Senior Member Smith gave further directions as to the conduct of the proceedings. These included a direction that the hearing of the case was to take place on 13 and 14 October 2014.
At the commencement of the hearing on 13 October 2014, Senior Member Smith mentioned once more that the amount stated in the applicants' Scott Schedule exceeded the Tribunal's jurisdictional limit. Their counsel, Mr R Zikmann, referred to the note on the Tribunal's file that had been made at the hearing on 18 June 2014. Senior Member Smith observed that because the applicants had still not identified which items within the Schedule were being abandoned, the respondent would be 'put to the defence of the entire matter' and that this would produce problems for the applicants when they 'got to the issue of costs'. In reply, Mr Zikmann advised that the applicants were 'quietly confident' that after the expert witnesses whom the parties had engaged had completed their meeting in conclave, the total amount stated in the Schedule would be adjusted to a figure below $500,000.
Following further discussion of this matter at this hearing on 13 October 2014, Senior Member Smith reiterated that he had previously noted the applicants' limiting of their claim to $500,000 and that their failure to specify which items in the Schedule were being abandoned might have costs implications. He added that if the amount of their claim had been 'much larger than $500,000' - for example, $700,000 or $800,000 - he might have transferred the proceedings to a forum whose jurisdictional limit would not be exceeded.
At the end of this hearing, the Tribunal gave a number of directions, including the following: (a) the substantive hearing set down for 13 and 14 October 2014 was vacated; (b) the expert conclave was to take place on those two days; (c) the applicants were to file and serve Points of Claim by 24 October 2014; and (d) the respondent was to file Points of Defence by 31 October 2014. The Tribunal also made the costs order against the respondent that is challenged in Ground 2 of the appeal.
In a letter dated 24 October 2014 to the respondent's solicitor, Mr R Kalde, Mr Aronstan advised that in an enclosed report prepared by the applicants' expert witness (Mr P Ratcliff) following the conclave, the amount claimed by them was reduced to $488,576.64.
In a further letter to Mr Kalde dated 25 February 2015, Mr Aronstan advised that the applicants had abandoned two specified issues of their claim and that the amount claimed was now $489,250.65.
The respondent's submissions. In the Outline of Submissions annexed to the Notice of Appeal and in the oral submissions made on her behalf by Mr Luitingh of Counsel, the respondent contended that the Tribunal's conclusions regarding the applicants' conduct in claiming an amount exceeding $500,000 were erroneous in law for three reasons.
The first of these was that the Tribunal had wrongly interpreted the jurisdictional limit imposed by s 48K of the Act as 'a mere cap on the Tribunal's power to award damages'.
Secondly, it was highly significant that at the hearing on 18 June 2014 the applicants did not seek leave to amend the amount of their claim to $500,000 and the Tribunal did not make an order to this effect. The Tribunal merely noted 'in some unspecified manner' that at some future time they would seek an order of this nature. Through continuing to hear the matter, it erred in law. This wrongful assumption of jurisdiction by the Tribunal amounted to a serious violation of the constitutional rights of parties to be heard in the appropriate jurisdiction. For this reason, it was essential for the applicants to observe the formalities associated with obtaining leave to amend their application and with filing and serving an amended application. They did not do this until after 13 October 2014.
Thirdly, the Tribunal erroneously failed (a) to treat the Scott Schedule as a document that 'particularises all of the claims that the respondent has to meet' and (b) to rule that the fact that the applicants were 'willing to cap their damages claim at $500,000' could not 'cure the jurisdictional impediment' unless they abandoned 'a sufficient quantum of [their] Scott Schedule to bring the claim within the Tribunal's jurisdiction'. The Tribunal's error involved taking insufficient account of the role of an applicant's Scott Schedule in putting the respondent on proper notice as to the details of the case that it would have to meet. This function was well recognised in the law. Mr Luitingh referred in this context to the judgment of French J in Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees Association of Western Australia [1987] FCA 135; 13 FCR 413.
It was also argued in the respondent's submissions that because the boundaries of the Tribunal's jurisdiction under the Act had been set by Parliament in s 48K, the respondent could not validly consent, or waive a right of objection, to the Tribunal acting beyond its jurisdiction.
The applicants' submissions. The arguments put forward in the applicants' Outline of Submissions filed before the appeal hearing and in Mr Zikmann's oral submissions were as follows. The Scott Schedule was properly to be regarded as a working document, indicating that the applicants' claim could have been for the amount of $567,862.28 stated in it. It was not intended or sufficient to bring about any increase in the amount of $110,000 then being claimed. The statement by Senior Member Smith at the end of the hearing on 18 June 2014, noting that they now sought damages in the amount of $500,000, sufficiently indicated to the parties that the Tribunal treated their claim as enlarged to this extent. Having regard to this statement and to the discussion of the matter during earlier stages of this hearing, the formal steps that Mr Luitingh claimed to be mandatory were not necessary at all. It followed that the amount of the applicants' claim never exceeded the Tribunal's jurisdictional limit.
Our conclusions on Ground 1. We are satisfied that this Ground must fail, broadly for the reasons advanced on the applicants' behalf. We add the following observations.
The respondent's argument on this matter suffered from an internal contradiction to which the applicants' submissions did not refer. Her submissions as to the effect of filing and serving a Scott Schedule implied that the amount of a claim may be adjusted by these relatively informal measures. They do not involve any formal steps such as filing an amended application, let alone seeking leave to amend from the Tribunal. On the other hand, her contention that the 'note' made by Senior Member Smith on 18 June 2014 (preceded as it was by sustained discussion between him and the parties' representatives as to the legal implications of the Scott Schedule) had no impact on the amount of the applicants' claim was accompanied by submissions that, since a question of jurisdiction involving the constitutional rights of the parties was in issue, strict adherence to formal procedures was required.
We strongly incline to the view that the applicants did not amend the amount of their claim merely by filing and serving the Scott Schedule. But if this view is incorrect, the respondent's claim of lack of jurisdiction must still be rejected. This is because we are entirely satisfied that the statement made by Senior Member Smith at the end of the hearing on 18 June 2014, when considered in its context, must be interpreted as granting Tribunal approval of the applicants' earlier statement that they wished to adjust the amount of their claim to $500,000. It does not matter whether this involved an increase from $110,000 or a reduction from $567,862.28. In either event, the amended claim was endorsed by the Tribunal as one within the jurisdictional limit imposed by s 48K.
In view of this decision on Ground 1 of the appeal, we must give consideration to Ground 2.

Ground 2: Error in making the costs order of 13 October 2014

The terms of the Tribunal's costs order and the accompanying reasons. The terms of this order were as follows:- The respondent shall pay the applicants' costs thrown away of today and tomorrow (13 and 14 October 2014) including any preparation costs incurred between 7 October 2014 and 13 October 2014. Costs to be as agreed or assessed on the ordinary basis.
In the first paragraph of its reasons, the Tribunal identified the source of its power to award costs. This paragraph was not contested in the appeal.
The Tribunal then continued as follows:- I am satisfied the respondent has been recalcitrant in having failed to comply with directions made by the Tribunal on 18 June 2014 to file and serve all evidence by 22 August 2014. Furthermore, there was no request for an extension of time to do so. Although the delay was caused in part by the failure of the respondent's husband to provide adequate and timely instructions to the respondent's solicitors, I am satisfied that the delay was also due to a complete failure to respond to the applicants' evidence that was served on the respondent on or about 22 May 2014. The filing and serving of all material by the respondent on 8 October 2014, only two working days before the hearing, was prejudicial to the applicants who had no opportunity to respond to it and little opportunity to consider it. In light of the delay and the consequent adjournment it is appropriate that the applicants have their costs due to the delay, including the cost of preparation for today's hearing.
Relevant facts. In the parties' submissions on this matter, there was considerable conflict as to the extent to which each of them contributed to the delay in bringing the proceedings to the stage where a hearing could take place. In view of the conclusions that we have reached, it is not necessary for us to provide an outline of all the evidence, or indeed the submissions, on this topic. As was well demonstrated in a chronology handed up to us at the appeal hearing by counsel for the applicants, these proceedings were marked by numerous interlocutory applications and other procedural steps. In order to determine Ground 2, we need only to refer to some of them.
Following the applicants' filing of their initial application on 10 July 2013, the parties attempted over a period of some months to settle their dispute. On being advised at a directions hearing on 17 February 2014 that no agreement had been reached, the Tribunal directed that the applicants' evidence be filed and served by 21 April. On 1 May, it granted an extension to 16 May. The applicants completed their filing and serving of lay and expert evidence on 21 or 22 May (on 20 March they had filed and served a 'preliminary report' of their principal expert, Mr Ratcliff).
At the directions hearing on 18 June 2014 to which we have already referred, the date (13 June) that had been stipulated for the respondent to file and serve her evidence was amended to 22 August 2014. An amended version of the directions given on that day was published by the Tribunal on 27 June. It confirmed 22 August as the date by which the respondent was obliged to file and serve all her evidence.
On 24 July 2014, however, the respondent put forward a claim that the applicants' application was 'time-barred'. On 31 July, the Tribunal directed that she should file and serve her evidence and submissions on this matter by 15 August and that the applicants should file and serve evidence and submissions on the matter by 29 August. The applicants, but not the respondent, complied with these directions.
On 4 August 2014, the case was set down for substantive hearing on 13 and 14 October.
In a letter dated 3 September 2014 to the Tribunal, Mr Kalde advised that the respondent would not be able to prepare her defence properlty in time for a hearing on those days.
At the directions hearing on 9 September 2014 to which we have already referred, Mr Luitingh, appearing for the respondent, withdrew her claim that the applicants' application was 'time-barred'.
The respondent had not yet filed and served her evidence, despite the Tribunal's direction on 18 June that she should do so by 22 August. This default by her was the subject of criticism by Senior Member Smith. Mr Luitingh applied for a further extension of time.
Mr Luitingh also applied for a direction vacating the hearing set down for 13 and 14 October. He stated that it was 'almost certain' that the respondent would not be able to meet those dates. Mr Aronstan indicated that postponement of the hearing was opposed by the applicants. He also expressed the opinion (which was shared by Mr Luitingh) that a conclave was likely to be useful in this case. In addition, he agreed with an observation from the Bench that if a conclave was to take place it would have to be after all the evidence had been filed, which would mean that the hearing dates of 13 and 14 October would have to be vacated. Mr Aronstan was pressed by Senior Member Smith to state whether his clients wished to maintain these hearing dates or to agree to their being vacated so that a conclave could take place. Mr Aronstan said that his clients preferred the former alternative.
Senior Member Smith then directed that the matter continued to be set down for a substantive hearing on 13 and 14 October 2014 and that 'the period of time for the respondent to comply with directions made on 18 June is extended to 7 October'. He strongly recommended that the parties' experts should meet before the hearing in order to narrow the issues in dispute so far as possible. In response to an application by Mr Aronstan for a costs order relating to the proceedings on 9 September 2014, he indicated that these costs would be reserved.
On 16 September 2014, the respondent's principal expert witness, Mr R Taylor, inspected the applicants' premises for the first time.
On 7 October 2014, Mr Kalde served on Mr Aronstan a report by Mr Taylor, a report prepared by a second expert witness (Mr J Perry) and an unsworn affidavit of the respondent. On 8 October, he filed and served these reports, the respondent's affidavit (duly sworn) and an affidavit sworn by her husband. On 10 October, he filed and served a supplementary report by Mr Perry.
In an letter sent on 8 October 2014 by email to Mr Aronstan, Mr Kalde indicated that he proposed to renew the respondent's application for adjournment of the substantive hearing 'in the event that the Hearing is unable to meaningfully proceed'. (This letter was principally concerned with a dispute that had arisen as to whether Mr Kalde had been properly put on notice of the existence and contents of Mr Ratcliff's 'preliminary report'.)
In a reply sent by email on 9 October 2014, Mr Aronstan stated that his clients were 'prepared to consent to an adjournment' of the substantive hearing provided that certain consent orders (including an order vacating the hearing) were made by the Tribunal. He suggested that a letter should be sent to the Tribunal requesting that these orders be made in chambers in order to obviate the need for the parties to attend on 13 October. He also suggested that this letter should explain to the Tribunal that an adjournment was sought because the parties were 'not ready to proceed due to unforeseen circumstances'. These circumstances, he said, included (a) the fact that an expert report of the applicants remained unanswered due to a misunderstanding between the parties; (b) the desire of the applicants to reply to 'evidence adduced by the parties on the eve of the hearing'; and (c) the parties' realisation 'that without a conclave the matter will not finish in two days and it is not in the interest of anyone for the matter to be part heard'.
In further correspondence between Mr Kalde and Mr Aronstan on 9 and 10 October 2014, they continued to agree that an adjournment should be sought. They initially disputed various aspects of the additional orders that should be requested from the Tribunal, but eventually reached a consensus.
This correspondence included a letter from Mr Aronstan to Mr Kalde on 10 October, in which Mr Aronstan stated that he was 'willing to consent to' an order vacating the hearing and to the additional orders that had been agreed on. One of the additional orders was that the conclave should proceed on 13 October.
On 10 October 2014, Mr Kalde sent a letter by email to the Tribunal asking it to make these orders in chambers. He set out the reasons why adjournment of the hearing was requested and annexed a copy of Mr Aronstan's letter of 10 October.
On 10 October 2014, the Tribunal, constituted by Principal Member Harrowell, refused this application for adjournment, stating that 'any further application will be considered by the presiding Member' and that no adequate explanation had been given for non-compliance with the Tribunal's previous orders.
Soon after the commencement of the hearing on 13 October 2014, Mr Kalde applied for it to be adjourned. Mr Zikmann opposed this application and proposed an alternative course of action, which involved commencing the hearing (with the expert conclave also taking place) but adjourning it part heard in order to permit the applicants to consider their response to the evidence filed very recently by the respondent. A lengthy discussion then ensued between the Bench and the parties' representatives.
During this discussion, Senior Member Smith was severely critical of the respondent's dilatoriness in filing evidence. The submissions put by Mr Kalde included a reference to two aspects of the directions hearing on 9 September 2014. These were that he had put forward his application for vacation of the hearing set down for 13 and 14 October and that the Tribunal had indicated that '7 October would be sufficient time for the applicants to deal with' any evidentiary material filed by the respondent.
Towards the end of this discussion, the Tribunal received submissions from both parties on an application by Mr Zikmann for a costs order covering the applicants' costs of preparing for and attending the hearing.
The Tribunal then made the costs order, accompanied by brief reasons, that is the subject of Ground 2 of the appeal. It also vacated the hearing and made a number of other directions, including those set out above at [22].
The respondent's submissions in the appeal. The three most significant arguments advanced by Mr Luitingh were these: (a) the Tribunal's direction of 9 September extending to 7 October the date by which the respondent was to file and serve her evidence had the inevitable consequence that the applicant would have insufficient time before the hearing to consider this evidence, file and serve any evidence in reply and prepare for the hearing; (b) to a substantial extent, the respondent complied with this direction; and (c) the applicants had joined in the respondent's application, made by letter to the Tribunal on 10 October 2014, for the hearing of 13 and 14 October to be vacated.
Mr Luitingh also pointed out that in Mr Kalde's letter of 3 September 2014 and at the directions hearing on 9 September the Tribunal had been notified that the respondent almost certainly could not meet the scheduled hearing dates of 13 and 14 October. He referred also to Senior Member Smith's statement to Mr Aronstan at that hearing that if a conclave (which both parties considered desirable) was to be held, those dates could not be retained.
Two further arguments put by Mr Luitingh focused on the Tribunal's finding, in its reasons accompanying the costs order, that the respondent had been 'recalcitrant'. These were as follows: (i) particularly since this constituted a serious charge against both the respondent and her solicitor, the Tribunal was obliged to afford procedural fairness to the respondent with respect to it, but failed to do so; and (ii) that in any event the finding was unwarranted, because the respondent had substantially complied with the Tribunal's direction on 9 September 2014 extending until 7 October the time for her to file her evidence. In relation to the first of these arguments, Mr Luitingh pointed out that at the hearing on 13 October 2014 Mr Kalde had handed up a lengthy affidavit outlining all the work that he had done in obtaining the respondent's lay and expert evidence, but the Tribunal's reasons for the costs order did not refer to this affidavit.
In addition, Mr Luitingh claimed that the applicants had taken a longer time than the respondent to file their evidence. As indicated earlier, we do not need to refer to this claim for the purpose of determining this appeal.
By virtue of all these matters, Mr Luitingh submitted, the costs order made against the respondent constituted a substantial miscarriage of justice within the meaning of cl 12(1) of Schedule 4 to the Civil and Administrative Tribunal Act 2013. It answered the descriptions 'not fair and equitable' and 'against the weight of the evidence' contained in paragraphs (a) and (b) of that provision. Mr Luitingh referred here to the discussions of the phrase 'substantial miscarriage of justice' in Mraz v The Queen [1955] HCA 59; 93 CLR 493 and Collins v Urban [2014] NSWCATAP 17.
The applicants' submissions. A preliminary submission put by Mr Zikmann, though not argued at any length, was that because the Tribunal's costs order was made during an interlocutory hearing, the decision to make it was an interlocutory decision. It followed, he said, that the respondent required leave in order to appeal against it.
His arguments in response to those of Mr Luitingh were to the following effect. The history of these proceedings showed that the respondent had been guilty of 'serial non-compliance' with the Tribunal's orders. It was appropriate that Senior Member Smith had become 'very agitated' about her failures to act in accordance with his directions.
It was not correct, he maintained, to say that the Tribunal's direction on 9 September 2014 to file and serve her evidence by 7 October had been 'substantially complied with'. In fact, the date on which a substantial proportion of it was filed and served in proper form was 8 October and the remainder was not filed or served until 10 October. She could have filed and served her lay evidence considerably earlier, but failed to do so. In addition, her principal expert did not inspect the applicants' premises until 16 September, even though they had served their expert report nearly four months earlier, on 22 May.
Mr Zikmann contested Mr Luitingh's claim that on 10 October 2014 the applicants had consented to, or joined in, the respondent's application for the hearing on 13 and 14 October to be vacated. They had gone no further, he said, that to indicate that they would not oppose it. When this application was refused, their legal representatives had no choice but to prepare for the hearing to go ahead. When it commenced, their response when the respondent renewed this application was to oppose it. In these circumstances, the Tribunal's decision to award to the applicants their costs of preparing for and attending the vacated hearing accorded with the normal rule that a party who has successfully applied for an order vacating a hearing should pay the costs of the opposing party thrown away on account of the order.
Mr Zikmann was asked by the Appeal Panel about the omission in the Tribunal's reasons of any reference to its direction, made on 9 September 2014 following the respondent's request for an extension of time, that she could have until 7 October to file and serve her evidence. His answer was that the reasons did not explain the full basis for the costs order and that in order to ascertain this one had to consult the transcript of the hearing on 13 October.
Our conclusions on Ground 2. At the outset, we will indicate that in our opinion leave is not required for the appeal to proceed on this Ground. It appears to us that the order under appeal, being a costs order, is an 'ancillary decision' as defined in s 4 of the Civil and Administrative Tribunal Act 2013 even though it was made in the course of an interlocutory hearing. In case this view is incorrect, we add that leave should in any event be granted, because on this matter of liability for costs the order has the effect of determining the rights of the parties.
Our decision on Ground 2 is that it has been made out, for the following reasons.
We find persuasive the first of what we described above as the three principal arguments advanced by Mr Luitingh. We agree with him that the Tribunal's direction of 9 September 2014, extending to 7 October the date by which the respondent was required to file and serve her evidence, had the inevitable consequence that the applicants would have insufficient time before the hearing on 13 October to consider this evidence, file and serve any evidence in reply and prepare for the hearing.
Given the relatively short period of time between 7 and 13 October, we do not agree with Mr Luitingh's accompanying argument that the respondent's conduct in relation to this direction amounted to 'substantial compliance'. But the important point is that even if she had wholly complied with it, through filing and serving all her evidence on 7 October, this problem would have arisen.
Independently of this factor in favour of upholding Ground 2, we find (as we foreshadowed to Mr Zikmann at the hearing) that the Tribunal's grounds for making the costs order were founded an incorrect recollection of what had occurred at the directions hearing on 9 September 2014. In its reasons, it stated that the respondent had been 'recalcitrant' through having 'failed to comply with directions made by the Tribunal on 18 June 2014 to file and serve all evidence by 22 August 2014'. It added that 'furthermore, there was no request for an extension of time to do so'. As the foregoing summary of the hearing on 9 September clearly demonstrates, neither of these statements reflects the true position.
These inaccuracies in the Tribunal's account of relevant events lend support to Mr Luitingh's submission that in finding the respondent to have been 'recalcitrant', it did not take proper account of the matters that Mr Kalde outlined in his affidavit handed up on 13 October 2014.
We are not impressed by Mr Zikmann's claim that the applicants did not consent to, or join in, the respondent's application for the hearing to be vacated, but merely indicated that they would not oppose it. The correspondence between Mr Aronstan and Mr Kalde between 8 and 10 October 2014 (see [50 - 54] above) significantly undermines this claim. It also detracts significantly from Mr Zikmann's submission that the costs order was justifiable under the normal rule that a party who has successfully applied for an order vacating a hearing should pay the costs of the opposing party thrown away on account of the order.
In our opinion, the Tribunal's failure to take account of important aspects of what occurred at the directions hearing on 9 September 2014 constituted an error of law, by virtue of which its costs order could not be permitted to stand. But because this reason for allowing the appeal with regard to Ground 2 was not argued, we do not base our decision on it.
We agree with Mr Luitingh that the Tribunal's costs order made against the respondent on 13 October 2014 was 'not fair and equitable' and was 'against the weight of the evidence' and for those reasons constituted a 'substantial miscarriage of justice' within the meaning of cl 12(1) of Schedule 4 to the Civil and Administrative Tribunal Act 2013. We accordingly uphold Ground 2 of this appeal and set aside the costs order.
We would add that, as Mr Zikmann argued, that the respondent may well have been dilatory in preparing, filing and serving her evidence. We have not made any determination on this submission, or on the opposing submission that the applicants were dilatory. Our decision to uphold Ground 2 of this appeal does not prevent either of the parties from including allegations along these lines in any future costs application within these proceedings.
The parties indicated that they wished to be heard on their costs of the appeal. Because neither of them has been wholly successful, our provisional view is that an application for such costs is unlikely to succeed. But there may be countervailing factors of which we are unaware.
We accordingly direct as follows. Any application for the costs of this appeal must be filed and served, with supporting submissions, within 21 days of the date of this decision. Any opposing submissions must be filed and served within a further 21 days. Any party desiring that the question of costs should not be reserved for a decision 'on the papers', but should be the subject of a hearing, should address this matter in their submissions. Unless persuaded otherwise, the Appeal Panel will make its decision 'on the papers'.

Polovin v Miller

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