R -v- BARTLETT [No 17] [2014] WASC 492 (18 December 2014)

Clifford Chance applied by application dated 14 December 2012 to set aside these two CDPP Crossline summonses. When these matters were raised before the Court counsel for the CDPP announced that his client would not pursue or call on the first CDPP Crossline summons, as a consequence of which neither it nor the application to set it aside was further pursued.

1. On 10 September 2012 Messrs Bartlett and Sayers issued a witness summons to the ACC seeking the production of eight categories of documents (the first ACC witness summons). The ACC produced various documents under this summons except for certain specified documents in respect of which it claimed privilege on the basis of public interest immunity and seven documents (under items 4 and 5 of the summons) to which objection was raised on the grounds of absence of legitimate forensic purpose (NLFP) and PII.
2. On 25 September 2012 Messrs Bartlett and Sayers issued a witness summons to the ACC seeking production of a wide variety of documents (the second ACC witness summons).

By application dated 31 October 2012 the ACC applied to set aside or to cancel

(i) so much of the first ACC witness summons as applied to the documents being sought by items 4 and 5, and

(ii) the Bartlett and Sayers second ACC summons dated 25 September 2012 entirely.

That second witness summons was not pressed and was dismissed by order made on 22 March 2013: R v Bartlett [No 5].

20 The second CDPP Crossline summons remained, as did the application to set it aside, but each was adjourned pending further developments in the prosecution. Neither was ever brought on for further hearing except in relation to this present application for costs.

21 There were also two summons for the production of documents issued by the accused Deborah Jeanne Grace, substantially in the same terms as the first and second CDPP witness summonses and which resulted in similar dispositions.

22 The written submissions on the present applications for costs include claims in relation to the witness summonses issued by Mrs Grace (by the ACC but not by the CDPP) but, by the time these applications for costs came to be argued, she had been acquitted of the charge against her in the indictment and was no longer represented in the proceedings. It is unclear whether or not she had notice of these applications for costs but she did not appear whether in person or by counsel. As it is uncertain whether she had notice of these proceedings and as no oral submissions in relation to her position were advanced by any of the applicants for orders for costs, I consider that I should not deal with any matter of costs concerning Mrs Grace on this occasion. I will, however, reserve liberty to apply in relation to her position so that, if so advised, either or both of the CDPP and the ACC can, after giving notice to Mrs Grace, apply to list for hearing any application for costs concerning her.

23 On 22 March 2013, when moving for orders dismissing the witness summonses issued by Messrs Bartlett and Sayers to the ACC dated 25 September 2012 and 19 March 2013 counsel for the ACC foreshadowed an application for costs against those two accused in relation to those two summonses if the issue were not able to be resolved between the parties.

24 As to the remaining summonses issued by Messrs Bartlett and Sayers on 10 September 2012 and 19 March 2013, the position was that many of the documents sought by the summons had been provided before the summons had issued but there remained seven documents the subject of dispute where objections had been raised on the grounds of LPP or PII. They became the subject of the decision in R v Bartlett [No 5] given on 16 April 2013 where the claims to privilege from production were upheld in relation to three of the documents but production of the remaining four was ordered.

25 On 16 April 2013, in the decision in R v Bartlett [No 5] I upheld the application by the ACC to set aside items 4 and 5 of the witness summons issued by Messrs Bartlett and Sayers on 10 September 2012; I also upheld the ACC's application to set aside the witness summons issued by Bartlett and Sayers on 19 March 2013 to the extent to which objections to production remained; and I granted the ACC liberty to apply for costs if an agreement as to costs could not be reached between the parties.

26 On 30 October 2013 Clifford Chance applied to set aside the witness summonses issued by the CDPP to Clifford Chance requiring the production of the Crossline materials. As previously observed, counsel for the CDPP did not attempt to pursue the first Crossline summons after application to set it aside was first made and the application to set aside the second Crossline summons was never brought on for final determination.

27 As a consequence, there are now three sets of applications for costs before the court. They are:

1. An application by the CDPP dated 17 April 2014 seeking orders that the former accused, Messrs Bartlett and Sayers, should pay reasonable costs of the CDPP in respect of:

(a) the witness summons dated 25 September 2012 for the production of records in relation to the stay application (subsequently cancelled or withdrawn); and

(b) the summons dated 19 March 2013 to produce records or materials relating to the stay application which was set aside or cancelled by order of 16 April 2013.

1. An application by Clifford Chance dated 14 December 2012 seeking costs in respect of the first Crossline summons issued by the CDPP to Clifford Chance dated 12 December 2012.
2. Applications by the ACC that Messrs Bartlett and Sayers should pay its costs of the ACC's application of 31 October 2012 to cancel or set aside:

(i) the Bartlett and Sayers' witness summons of 10 September 2012 insofar as it sought the production of documents listed in items 4 and 5;

(ii) the Bartlett and Sayers' summons of 25 September 2012.

28 Insofar as the final outcomes after hearings or rulings on the several applications may be significant:

(a) Messrs Bartlett and Sayers abandoned their witness summonses directed to the CDPP dated 25 September 2012, resulting in it being dismissed;

(b) The Bartlett and Sayers substituted summons to the CDPP of 19 March 2013 was set aside by order dated 16 April 2013 (R v Bartlett [No 5];

(c) The first Crossline witness summons issued by the CDPP to Clifford Chance dated 10 December 2012 was abandoned by the CDPP after application had been made to set it aside;

(d) The second Crossline witness summons issued by the CDPP to Clifford Chance also dated 10 December 2012 and subject to an application by Clifford Chance to have it set aside dated 14 December 2012 was never called on for final hearing or determination;

(e) The witness summons issued by Bartlett and Sayers to the ACC dated 10 September 2012 was set aside on the application of the ACC insofar as the witness summons sought the production of the documents referred to in items 4 and 5 of that summons;

(f) The witness summons issued by Bartlett and Sayers to the ACC on 19 March 2013 was set aside in part by the order of 16 April 2013.

29 As already apparent, the applications to cancel or set aside these various witness summonses were dealt with progressively during the long course of several interlocutory hearings before the first trial. It was convenient for them to be heard either at the same time as or immediately following other interlocutory applications dealing with the stay applications or the contested admissibility of other evidence. At some of these appearances the CDPP, the ACC, the accused Bartlett and Sayers and the firm Clifford Chance were represented by senior counsel and on others by junior counsel, depending upon the significance of the issues to be dealt with at the particular hearing or hearings.

30 Although, in one sense, the question of whether or not some or all of a witness summons on a criminal prosecution should be cancelled or set aside on application by the person to whom it was directed is a commonplace, even routine, procedure, that was not the case in this present prosecution. This is because the entire factual background relevant to the prosecution and the steps in the conspiracy alleged by the prosecution to have been committed was extremely complicated and covered a long period and many extensive transactions. Consequently, the question of relevance of materials sought by the various witness summonses, to issues arising from the case was itself complicated, as were the issues arising in relation to the claims made for a stay of the prosecution. For these reasons, I am satisfied that on the occasions when they appeared or advised, the engagement and appearance of senior counsel for the several interests was justified and that if costs are being awarded then on occasions when the retention of senior counsel was involved on issues giving rise to a liability for costs suitable allowances for senior counsel should be permitted and, should it be necessary to do so, I would certify for that in respect of each of the successful applications for costs.

Principles relating to awards for costs in proceedings on indictment

31 Several submissions going to fundamental questions about the power and practice of this court to award costs in proceedings associated with prosecution on an indictment were raised by the parties, together with some subsidiary submissions of narrower impact bearing on particular circumstances of these cases. In substance, the submissions which were advanced were to the effect:

1. That this court has no power to award costs or that established practice demonstrates that no award of costs should be made, in relation to criminal proceedings associated with a trial on indictment.
2. To the extent that there may be a statutory power to award costs, such as s 166(2) of the Criminal Procedure Act, that power should be circumscribed in relation to proceedings on indictment by the traditional practice that no orders for costs are made in favour of or against the Crown.
3. In relation to the claims for costs associated with the applications to cancel or set aside witness summonses in these various cases:

(a) there cannot, or should not, be any award for costs made unless a particular witness summons was actually cancelled or set aside in part;

(b) that where circumstances have arisen in which a power to award costs may have arisen, such as the withdrawal of the original Bartlett and Sayers witness summonses of 25 September 2012 and in other like instances, if an application for costs were not made at the time the witness summons was withdrawn or replaced by another, then that particular application has been concluded and it is now too late for an application for costs to be made, or entertained;

(c) that where there is an application for the cancellation or setting aside of a witness summons but, by consent of the parties, it was used as a vehicle to determine disputed claims for privilege from production, then the summons has not been cancelled or set aside and there is no basis for any award of costs;

(d) that in relation to the application for costs made by the ACC, it is an independent statutory authority and should not be regarded as, or an agent of, the Crown.

32 It will be convenient to deal with these submissions in turn although, as will be seen, there are areas in which several of them overlap.

33 All parties have made reference to the statutory power of the court generally to award costs conferred by the Supreme Court Act 1935. That is to be found in s 37, which provides:

(1) Subject to the provisions of this Act and to the rules of court and to the express provisions of the Magistrates Court (Civil Proceedings) Act 2004, or any other Act, the costs of and incidental to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom or out of what estate, fund, or property, and to what extent such costs are to be paid.

(2) Nothing in this section shall alter the practice in proceedings in relation to the prerogative and criminal jurisdiction of the Court.

34 While counsel for the ACC and for Clifford Chance rely upon this provision as a general statutory power allowing costs to be awarded in their favour on their respective applications, counsel for Messrs Bartlett and Sayers rely on s 37(2) for the submission that nothing in the section alters the established practice in the criminal jurisdiction which, so they submit, is against the making of any award of costs to or by the Crown. Each of these submissions is, however, subject to the qualification contained in s 37(1) that the statutory provision is subject to the express provisions of any other Act which, naturally, includes the provisions of s 166 of the Criminal Procedure Act.

35 The power of this court to award costs against an accused person in favour of a third party who succeeded in applications to have set aside writs of subpoena issued against it by the accused was extensively examined in Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159, which was decided before the CPA was enacted. In that case, Malcolm CJ (Franklyn and Rowland JJ agreeing) decided that a subpoena issued out of the Supreme Court with respect to criminal proceedings should be regarded as issued on the 'Crown side of the Court' notwithstanding that the subpoena was issued to a person who was not a party to the prosecution and that, therefore, the power to award costs arising from the determination of the application to set aside such a subpoena was subject to s 38(2) of the Supreme Court Act. The court decided that there was a clear distinction to be drawn between the payment of costs by an accused where a third party is caused to incur costs by the issuing of a subpoena which is later found to be oppressive, and the right of an accused to a fair trial. The court observed that it is common practice for witnesses in such proceedings to be provided with conduct money and payment for their expenses and that this practice did not place an unfair burden on the accused. Their Honours held that the practice not to award costs for or against the Crown in criminal proceedings was based on the prerogative right of the Crown not to receive or to pay costs but that that practice did not apply as between parties other than the Crown, even on the Crown side of the court.

36 Significant points of the decision in Carter are that this court has power to determine and award costs under s 37(1) and that that was an instance in which such costs should be awarded against the accused.

37 Similar reasoning leading to a comparable outcome is to be found in R v Barbaro (1992) 108 ACTR 1; (1992) 106 FLR 387 where Miles CJ held that the Commissioner of the Australian Federal Police was entitled to an award of costs in relation to a subpoena issued by a person who was standing trial on an indictment in the Supreme Court of the ACT.

38 Those two decisions establish the power of the court, in its jurisdiction under s 37, to entertain and determine orders for costs such as are being sought by the applications now before the court. They also confirm the distinction between the Crown, or the prosecutor for the Crown (here the CDPP) and other government law enforcement agencies such as the Commissioner for the AFP, or other third parties. Consequently, I consider that in this present situation the ACC is not to be treated as the Crown or as an agency of the Crown.

39 This entire subject has been the subject of helpful analysis and explanation in G E Dal Pont, 'Law of Costs' (2nd ed, 2009) [24.1] - [24.23] - especially [24.17]. The existence of a limited power to award costs to or against an accused in a criminal proceeding in this State is now expressly recognised and confirmed as an exception to the specific statutory prohibition against any such award of costs which is found in s 123 of the CPA. That provides:

(1) An accused must not be charged a fee by a court for or in respect of any act or proceeding that relates to the prosecution of the accused in a superior court.

(2) A superior court cannot order a party to a case to pay another party's costs of or relating to proceedings in the court that relate to a charge in an indictment or a charge on which an accused has been committed to the court, except under section 166(2).

40 The first point to note is that the applications for costs in the present case have all been made pursuant to a specific statutory power, namely, s 166 of the Criminal Procedure Act which provides:

(1) On an application by the witness, a party to the case or a person who has a sufficient interest in the witness summons, the court that issued a witness summons may cancel it, wholly or in part and on any terms it feels fit.

(2) On such an application the court may order a party to the application to pay all or some of another such party's costs.

41 Section 166(2) makes it plain that the power to award costs extends to enabling the Court to order a party to an application to cancel the witness summons in whole or in part to pay all or some of the costs of another party to that application. This includes the power to award costs to the witness who has applied to cancel the witness summons.

42 As the provisions of s 166(2) of the CPA are broad and general in their application and apply to all forms of trial, not only to prosecutions on indictment, the implications in the submissions made on behalf of Messrs Bartlett and Sayers and Clifford Chance are that this statutory power should be regarded as being subject to the historic disinclination to award costs against an accused person or in favour of the Crown but that it constitutes no impediment to making an order for costs in favour of an accused person or any independent third person.

43 In Attorney-General (Qld) v Holland [1912] HCA 26; (1912) 15 CLR 46 there is a collection of authorities dealing with the old rule that the Crown neither pays nor receives costs, although, as Griffith CJ recognised at [49], this rule can be excluded by necessary implication. That was a case concerning the entitlement or liability of the Queen's Proctor for costs when intervening in a matrimonial cause and it was held that the Attorney-General was not entitled to receive or liable to pay costs. In analysis of that rule, Barton J referred to authorities illustrating the rule that the Crown is not bound by a statute unless it appears on the face of the statute that it was intended that the Crown should so be bound, which led to his Honour's conclusions that the matrimonial causes legislation then being considered and which conferred upon the court a power to award costs did not apply in the case of an intervention by the AttorneyGeneral. Isaacs J dissented, essentially on the ground that upon its proper construction the particular legislation conferring the power to award costs did apply to the Crown.

44 However, that old rule that the Crown neither receives nor pays costs, notably in criminal proceedings, was said by Mason CJ in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 to have been displaced. The Chief Justice observed that the rule could not survive once courts of summary jurisdiction were given a statutory discretion to award costs in criminal proceedings. Mason CJ was addressing the exercise of a statutory power to award costs in the summary jurisdiction but nevertheless observed (543):

If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reasons of the legal proceedings ... Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings.

Once a legislature abolishes the rule that the Crown and those who institute summary proceedings in the public interest neither pay nor receive costs, the various rationales of that rule cannot be used to justify the exercise of the discretion to refuse to order the payment of costs of successful defendant in summary proceedings. To use them in that manner is to ignore the purpose of the legislature in enacting the legislation.

46 Counsel for Clifford Chance has cited a passage in the judgment of Dawson J in Latoudis v Casey (559) where, in the course of examining different practices in the several jurisdictions in Australia with regard to the award of costs to a successful defendant in summary proceedings, his Honour said:

In Victoria, little assistance on the question of costs is to be gained from a comparison of summary prosecutions with civil proceedings. The more obvious comparison is with prosecutions for indictable offences where, in the absence of some special statutory provision, costs are awarded to neither side.

47 Two things must be said about that observation. The first is that Dawson J was dealing with a case involving the exercise of a discretionary statutory power to award costs to a defendant in summary proceedings; secondly, that earlier in the same judgment Dawson J (557) had traced the historical disinclination to award costs in criminal proceedings to 'the basic common law principle that the Crown neither pays nor receives costs', citing Attorney General (Qld) v Holland which, as Mason CJ said, as one of the majority in Latoudis, has now been displaced. Dawson J then traced (557) the gradual development by statute into the common law of a power to award costs, a power which equity had possessed from an early date.

48 The scope of the decision in Latoudis v Casey was examined extensively in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 but was not in any way qualified or diminished.

49 These principles and their historic background were also examined in Re Suitors' Fund Act 1964 (WA); Ex parte Brazier [2002] WASC 243; (2002) 135 A Crim R 48 by RobertsSmith J where his Honour observed [4]:

At common law it has long been held that costs are not available to a successful defendant in relation to indictable offences: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 559 and the position was further made clear in R v Wright (1992) 77 A Crim R 67 ...

50 His Honour then went on to cite a passage from the judgment of Brooking J in R v Wright (1992) 77 A Crim R 67 at page 68 which included:

But, with the greatest respect, it appears to me that the reason why costs cannot be awarded against the Crown on a prosecution for an indictable offence is not the special position of the Crown. It is the simpler and more fundamental reason that, in the absence of statute, there is no power to award costs ... Costs were, as regards the courts common law, entirely the creature of statute, and this is so also in relation to criminal proceedings ...

51 I consider, therefore, that I must conclude because of authority binding on me or otherwise of highly persuasive authority, that the old rule that the Crown neither pays nor receives costs has now been entirely displaced with the result that, at least in proceedings involving a prosecution on indictment, there is power to award costs but only if created by statute. Where a statutory power is available, however, any consideration of its exercise should not be restricted or impeded by the former rule.

52 The Official Prosecutions (Accused's Costs) Act 1973 (WA) does not apply to proceedings triable on indictment - s 4(1). Nevertheless, it adopts a procedure for the determination of the quantum of costs which is a useful comparative for the present applications. That Act makes reference to any award of costs (s 6(5)) to be determined in accordance with the scale fixed by a legal costs determination by the Legal Costs Committee (Legal Profession Act 2008 (WA) s 275). The scale utilised in relation to awards for costs in summary proceedings is the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2012, but that in turn provides that a party is entitled to recover costs exceeding those set out in the determination if the matter 'is complex or involves a high degree of skill or urgency, if that is reasonable in the circumstances', rule 7(1) and (2) - see generally G E Dal Pont, 'Law of Costs' at [25.32].

53 So in Breedon v Kongras (Unreported, WASC, Library No 960570, 25 September 1996) Owen J directed that because of the complexity arising, the engagement of senior counsel was justified and an order for costs exceeding the scale was warranted. This scale is not directly applicable but, nevertheless, it provides a convenient starting point - Haddon v Everitt [2001] WASCA 420; (2001) 126 A Crim R 418 [128], 442 - 443 (Steytler J).

54 In the present instance, I am satisfied that all the applications to set aside the witness summonses which are the subject of these proceedings were complex, both in relation to the grounds relied upon to set aside the particular summonses, and also because of the complex background which needed to be addressed and assimilated in order to place the resulting issues in proper context. For that reason, therefore, I consider that where senior counsel were retained and appeared on the applications, although not on every hearing, whether for the CDPP, or the ACC, or for Messrs Bartlett or Sayers, then suitable allowances for senior counsel should be made. Otherwise, in relation to an assessment of the quantum of costs, I consider that draft bills of costs should be prepared and exchanged based on the time spent by practitioners or clerks engaged on either side at rates taken by analogy from the legal costs determinations or, in the case of counsel, for counsel fees charged and to be allowed on a similar time basis.

55 It was submitted to me that the determination of the costs should be by a process of taxation before a registrar of the court in a manner analogous to the taxation of costs in civil proceedings between parties. However, I do not consider that that can or should be done. No authority has been cited to me where costs on the Crown side of the court in criminal proceedings have been assessed or taxed by a master or registrar. The power to award costs reposes in the court itself and I consider, therefore, that the parties should exchange draft claims for costs, prepared on analogy with bills of costs, and then attempt to agree on the quantum to be allowed in each individual case. If agreement cannot be reached, then the contending claims, together with written submissions in support of, or in opposition to, the claims, should be filed. Unless any party advances good cause in written submissions for the matter to be the subject to further hearing in open court, I will determine the quantum of such claims on the papers.

Determination of the individual claims for costs

56 This then leads me to a consideration and determination of the claims for costs made by the various parties and the extent to which each such claim, where successful, should be allowed.

57 The present applications for costs have already been identified and listed in [27] above and are now dealt with in the same order.

58 The first is the application by the CDPP seeking orders that Messrs Bartlett and Sayers should pay its reasonable costs of the witness summonses which they issued dated 25 September 2012 and the witness summons dated 19 March 2013.

59 The witness summonses by the two accused dated 25 September 2012, although issued, were not pressed after application had been made by the CDPP for them to be cancelled. I consider, therefore, that the CDPP is entitled to be paid his costs for applying to set aside that summons and all costs thrown away by reason of the abandonment of that witness summons to produce documents, up to and including the appearance by counsel on the occasion when the court was informed that the witness summons would not be pressed. I therefore order that Messrs Bartlett and Sayers pay to the CDPP its costs in association with the summons calculated in the manner already explained.

60 In relation to the replacement witness summons dated 19 March 2013 issued by Messrs Bartlett and Sayers producing materials relating to the stay application, I consider that the application by the CDPP to have that summons cancelled (utilising the same application as had issued to cancel its predecessor) should also result in an order that Messrs Bartlett and Sayers should pay to the CDPP all additional costs incurred in connection with the application to set aside that witness summons. That summons was set aside or cancelled by the order of 16 April 2013. Again, I will order that Messrs Bartlett and Sayers pay to the CDPP its costs and that they are to be calculated and determined in the manner previously explained.

61 The next application is by Clifford Chance by summons of 14 December 2012 to set aside the first Crossline summons issued by the CDPP to Clifford Chance dated 12 December 2012. The summons to cancel the witness summons is dated 14 December 2012 and, as soon as that was brought on for hearing, counsel for the CDPP announced that it would not be pressed. Accordingly, I consider that Clifford Chance is entitled to an order that the CDPP pay its costs of and incidental to the issue of its application of 14 December 2012 seeking an order for the cancellation of the first Crossline summons up to and including the day on which the CDPP announced to counsel that that witness summons would not be pursued. An order to that effect will be made and the costs are to be calculated and determined in the manner already explained.

62 The next application is by the ACC that Messrs Bartlett and Sayers should pay its costs of the ACC's application of 31 October 2012 to cancel:

(i) the Messrs Bartlett and Sayers witness summons of 10 September 2012 insofar as it sought the production of documents listed in items 4 and 5.

(ii) Messrs Bartlett and Sayers summons on 25 September 2012.

63 As a result of the cooperation between the solicitors and accountants previously described, these summonses issues by Messrs Bartlett and Sayers to the ACC and the ensuing applications by the ACC to set them aside were refined in the first place to deal with disputed claims as to privilege and the second witness summons was set aside in part by order of 16 April 2013, but, otherwise, were not further dealt with by the court. They remained pending but did not require any further determination in view of the resolution of other matters and the dismissal of the stay applications.

64 On 16 April 2013, I set aside items 4 and 5 of the Bartlett and Sayers summons of 10 September 2012 which had been issued to the ACC. The ACC was, therefore, partially successful in setting aside the accused's witness summons of 10 September 2012 and, consequently, should be entitled to recover its costs of that application insofar as they extended to or were associated with pars 4 and 5 of the summons, but not otherwise. Accordingly, the order for costs for Messrs Bartlett and Sayers to pay to the ACC its costs of that summons again to be calculated and determined in the manner previously explained.

65 The Bartlett and Sayers summons to the ACC for the production of documents dated 20 September 2012 was not pursued after application had been made by the ACC to set it aside. It follows that I consider that Messrs Bartlett and Sayers should pay the ACC its costs of the application made to set aside the summons and all costs thrown away by the ACC up to and including the point when those accused intimated that that summons to set aside the witness summons would not be pursued. Once more, the calculation and determination of those costs should follow the method previously explained.

66 In case any difficulties arise in implementing the orders which will be made to give effect to these determinations or in the event that there is any issue from these applications which had not been resolved by these orders, there will be liberty to apply. These reasons will be made available to the parties immediately following their publication and the parties are directed to endeavour to bring in agreed minutes of orders to give effect to these decisions within 28 days. In the event that agreement on the form of orders cannot be reached, the parties may file minutes setting out the orders contended for any relevant written submissions which will then be on the papers unless, for good reason, any party contends that a further oral hearing is necessary.