Williams v NSW Land and Housing

The statutory scheme 38The obligations imposed on the Tribunal as to the way in which proceedings before it are to be conducted, are those provided in s 28 of the Consumer, Trader and Tenancy Tribunal Act. It provides: "28 Procedure of Tribunal generally (1) The Tribunal may, subject to this Act, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand: (a) the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings. (5) The Tribunal: (a) is to act as expeditiously as is practicable, and (b) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (d) in the case of a hearing-may require the presentation of the respective cases of the parties in proceedings to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (e) may require a document to be served outside the State, and (f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (g) may dismiss any proceedings if the applicant fails to attend a hearing, and (h) must, if requested by the applicant, allow the applicant to withdraw the application, and (i) may dismiss any proceedings if it considers the proceedings to be frivolous or vexatious or for any other reason that appears to it sufficient, and (j) may order that any proceedings are to be stayed." 39Section 29(4) empowers Tribunal Members to give procedural directions 'that, in the opinion of the member, will enable costs to be reduced and will help to achieve a prompt hearing of the matters in issue between the parties in the proceedings'. 40Section 35 requires the Tribunal to give a reasonable opportunity 'to call or give evidence and otherwise present the party's case' and to make submissions in relation to the issues in the proceedings. Section 36 permits a party to be represented, if an application for permission to be represented is made and granted. Regulation 14 of the Consumer, Trader and Tenancy Tribunal Regulation 2009 permits a party to seek such permission in circumstances which include in (j), if the party is a government agency and is to be represented by an officer of that or any other government agency; in (p), if another party in the proceedings is a government agency; and in (q), if the Tribunal is of the opinion that the party would be placed at a disadvantage if not represented at the hearing. 41Section 39 of the Act empowers Tribunal Members to examine witnesses on oath and also to 'examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings' (s 39(1)(c)). 42All of these provisions must be considered in the context of the provisions made in s 3, which provides: "3 Objects of Act The objects of this Act are as follows: (a) to establish a Consumer, Trader and Tenancy Tribunal to determine disputes in relation to matters over which it has jurisdiction, (b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair, (c) to enable proceedings to be determined in an informal, expeditious and inexpensive manner, (d) to ensure the quality and consistency of the Tribunal's decision-making."

Denial of procedural fairness 43For its part the first defendant urged the view that like the conclusion reached in Elabbas v CTTT [2007] NSWSC 878 at [48], it would be concluded in this case that the Tribunal Member had outlined the procedure to be followed and had ensured that the parties were given a reasonable opportunity to give evidence and make submissions in relation to the issues in the proceedings. 44Given the course which the proceedings before the Tribunal took, that submission may simply not be accepted. 45It is well settled that in civil proceedings in a court, the right to cross-examine is an important one. In Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405 O'Keefe J observed: "30 There may, however, be cases in which the denial of an oral hearing or of the right to cross-examine may constitute a denial of natural justice. In determining whether or not that is so in a given case, it is necessary to consider the whole of the circumstances including the legislation, the general practice as understood by the parties and any acceptance by them as to the way in which the proceedings are to be conducted. The Practice Note to which reference has been made is material in this regard. It is for the relevant tribunal, in this case the Small Claims Division of the Local Court, to determine such matters in the light of its obligation to act fairly." 46As Young J discussed in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 at 22, it is the duty of a trial judge to ensure that all parties have a fair trial and that: "In carrying out his duties the trial judge must so exercise his discretion in and about the examination and cross-examination of witnesses that a fair trial is assured." 47While the proceedings here in question came before the Tribunal, rather than a court, given that this statutory scheme requires the Tribunal to adhere to rules of procedural fairness, and to act according to equity, good conscience and the substantial merits of the case, the importance of ensuring that Ms Williams had a fair opportunity to cross-examine the defendant's witnesses is apparent. At the least, she needed to be given some explanation of what the process was and why it was important. 48That is underscored when consideration is given to the fact that the power to examine and cross-examine witnesses given by s 39 of the Consumer, Trader and Tenancy Tribunal Act was one which the Tribunal Member plainly exercised in relation to witnesses Ms Williams called, but without explaining that this power was available to be exercised by the Tribunal. It is also relevant that it was not one exercised in the same way, in relation to the witnesses called by the defendant, a matter about which Ms Williams complained. The result of the approach adopted was that the evidence given by the defendant's witnesses was not explored or challenged, but the evidence which she called was closely examined by the Tribunal Member. 49That is an unusual approach to adopt in adversarial proceedings such as this, particularly where the first defendant was represented, but Ms Williams was not. It is not one about which the first defendant complains. It is Ms Williams who complains that by the approach adopted by the Tribunal Member, she was denied procedural fairness. Given that she was also not given the opportunity to make any submissions as to the case brought against her, as the first defendant had been, it is impossible to see that the approach adopted adhered to the statutory requirements governing the conduct of these proceedings. 50What procedural fairness in proceedings before the Tribunal requires, has been repeatedly considered. In Italiano v Carbone [2005] NSWCA 177, Einstein J observed under the heading 'The measure of natural justice which the Act requires to be observed': "145 These submissions raise the question of the measure of natural justice which the Act requires to be observed by the CTTT. Clearly enough the critical parameter in terms of procedures required to be followed can only be discerned from the express and implied provisions of the Act. The proper approach was put in the following terms by Kitto AJ in Mobil Oil Australia Pty Ltd v the Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-504: "Even if the Board is bound in law to act "in the spirit and with the sense of responsibility of a tribunal whose duty is to mete out justice" (to quote Lord Haldane's words in Local Government Board v. Arlidge [1915 AC 120, at p 132) it does not follow (and his Lordship proceeded immediately to say so) that the procedure of each such tribunal must be the same: "what that procedure is to be in detail must depend on the nature of the tribunal" (1915) AC, at p 132. And notwithstanding what Lord Loreburn said in Board of Education v. Rice (1911) AC 179 about "always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view" (1911) AC, at p 182, the books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place. By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf. Ridge v. Baldwin [1963] 2 WLR 935, at p 947. As Tucker L.J. said in Russell v. Duke of Norfolk [1949] 1 All ER 109, in a passage approved by the Privy Council in University of Ceylon v. Fernando [1960] 1 All ER 631, at p 637, there are no words which are of universal application to every kind of inquiry and every kind of tribunal: "the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth" (1949) 1 All ER, at p 118 . What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances. And it is not a one-sided business." [emphasis added] 146 The CTT Act in section 28 exhibits a clear intent that the CTTT, subject to the Act, may determine its own procedures and is to act with as little formality as the circumstances of the case permit according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. As Lord Shaw observed in Local Government Board v Arlidge [1915] AC 120 at 138: "[T]he assumption that the methods of natural justice are ex necessitate those of courts of justice is wholly unfounded." 147 However there are some aspects of the procedures which require to be seen to have been observed, preferably formally. The record does require a clear identification of the parties. There must be no doubt as to the identity of the applicant. There must be no doubt as to the identity of the respondent. Notice of an application requires to be served on the respondent. Where a party applies for an amendment to an application, appropriate notice requires to first be given to the respondent and the application to amend amendment requires thereafter to be considered and if granted, should be made by order of the CTTT. Whilst a considerable degree of informality is clearly permissible [cf section 43 (3)], the above described procedures centrally go to the record and are basic to the fundamental requirement entitling each party to be aware of the identity of the parties and of the nature of the case made against them. 148 Where as here, a complaint amounts to a denial of procedural fairness, the Court is not dealing with fairness as an abstract concept. As was put by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam [2003] 214 CLR 1 (at [37]): "[Fairness] is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." 149 In some cases the manner in which the parties and the CTTT conduct proceedings may show that albeit that some procedures are not formally observed, the parties by their conduct may be taken to have implicitly accepted that further compliance with suggested formalities was otherwise waived. The real question concerns whether any and if so which procedural step requires to be strictly observed in the absence of which the proceedings are a nullity." 51It is impossible to conclude in this case that Ms Williams was given procedural fairness or that practical injustice was avoided. 52What must be done in circumstances where a party to the proceedings appears unrepresented, has been repeatedly considered. In Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362, it was observed, for example: "54 The obligations of a court or tribunal to ensure that an unrepresented party understands the procedural aspects of the matter was discussed by the High Court in MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512. In that case, the High Court stated that giving full weight to the adversary character of a criminal proceeding, the trial judge's primary obligation remained to ensure that the accused had a fair trial: per Mason J at 534. See also King v The Queen [2003] HCA 42; (2003) 215 CLR 150 at 179-180 [95] per Kirby J. 55 In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 July 1986, unreported), Samuels JA stated that: "In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent." 56 This passage was adopted by the Full Court of the Federal Court in Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 at 446 [28]. The Court noted, however, at 445 [27], that the duty of a trial judge might be more extensive in criminal proceedings, as compared to civil proceedings: see also Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943; (2006) 91 ALD 362." 53In that case it was concluded at [57] that: "... the Deputy Chairperson of the Tribunal explained, to the extent it was appropriate, what was occurring during the course of the proceedings. In this regard, I am of the opinion that the Deputy Chairperson satisfied the obligation of a presiding judicial officer where a person does not have legal representation. The principles that govern the obligation of a judicial officer in such circumstances was discussed in Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31 at [147]-[155]; McMurtrie v Commonwealth of Australia [2006] NSWCA 148 at [46]-[48]; and Minogue v Human Rights and Equal Opportunity Commission at 445-446 [26]-[29]." 54In this case, that conclusion is not available. Ms Williams was not given an appropriate explanation of what cross-examination involves, nor was she given an opportunity to make submissions. 55In Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31 the obligations to an unrepresented litigant were explained by reference to the admittedly more onerous obligations which arise in criminal proceedings. It was there observed: "150 The need for a trial judge to ensure that an unrepresented party understands the procedural options available to him or her has also been considered in the context of the criminal trial. In MacPherson v The Queen (1981) 147 CLR 512, the High Court considered the view of the Court of Criminal Appeal that "there was no obligation on the trial judge to advise the applicant that he might object to the confessional evidence, and might seek to test its admissibility on a voir dire": at 523, per Gibbs CJ and Wilson J. Their Honours continued: "It was suggested that a judge who advised an accused person in this way would be assuming the role of an advocate, and that in any case he could not effectively advise the accused on such a matter, and that if the accused were persuaded to seek a voir dire the result might be to his disadvantage." 151 Their Honours rejected that approach at 524: "However, there should be no difficulty in explaining to an accused person (in the absence of a jury) that it is necessary for the judge to hear evidence in the absence of the jury to enable him to decide whether the evidence of the confession should be admitted, that the accused may cross-examine the Crown witnesses and give and call evidence himself on the issue of voluntariness, that if he does give evidence he may be cross-examined, and that his answers on cross-examination may be used against him on the trial. It would be wrong to think that a judge who explained to an accused person the choices open to him would be playing the part of an advocate - he would be performing his duty as a judge by informing the accused of his rights in relation to the conduct of the trial." 152 Mason J in MacPherson expressed a similar view (at 534): "Giving full weight to the adversary character of a criminal trial and the difficulties of advising an accused who is not represented, I nevertheless consider that the trial judge is bound to ensure that an accused person has a fair trial. To that end he is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial. Once an issue as to the voluntariness of a confession arises fairness to the accused suggests that he should be acquainted with his right to a voir dire hearing. If he is left in ignorance of it he loses a valuable opportunity of testing the admissibility of the evidence, an opportunity which is often availed of by counsel for the accused. A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as 'fair'." 56It was concluded that the conduct of the trial in that case revealed sufficient unfairness to demonstrate a miscarriage. This, it seems to me, is a similar situation, notwithstanding the more informal processes operating in this Tribunal. 57It is also relevant to consider that it is well settled, as discussed by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, that 'A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case'. 58Under the Act the Tribunal had a discretion as to whether or not to accept Ms Williams' various adjournment applications. The discretion had to be exercised under s 29, according to considerations of equity and good conscience; ensuring that Ms Williams was afforded procedural fairness and under s 35 that she had a reasonable opportunity to present her case and make submissions. Of necessity that required consideration to be given to the fact that the first defendant was represented in the proceedings and she was not. 59Her initial applications were refused, even though Ms Williams had been obliged to participate in a residential rehabilitation programme, as a condition of bail, with the result that she was not able to comply with the Tribunal's directions as to the service of her evidence, or to prepare for the proceedings and where representation which she understood had been arranged for her for the hearing on 11 April, had not materialised. At the adjourned hearing on 23 May she informed the Tribunal member that Mr Ewan was not there to represent her, which Mr Ewan confirmed and again, she was forced to proceed, representing herself, albeit the Tribunal Member dealt with Mr Ewan on some occasions as if he were representing Ms Williams. 60This situation not only now raises the question of whether Ms Williams was given an opportunity of adequately presenting her case, before the Tribunal at the time of the hearings, it raised the obligation to take care to ensure that Ms Williams was given procedural fairness. In the circumstances of this statutory scheme, that required amongst other things, that she be given some basic explanation of the processes to be pursued at the hearing and what they entailed, particularly in relation to cross-examination. It also required that the parties be treated in an even handed manner, if the requirements of equity and good conscience were to be observed. That did not occur. 61It was not until the second witness called by the first defendant had given his evidence, that the Tribunal Member raised with Ms Williams the possibility of cross-examination. Having omitted to make any mention of that possibility beforehand and having not given her that opportunity in respect of the first witness, the Tribunal Member did not tell Ms Williams anything about the value or purpose of such questioning, namely in order to challenge the evidence being given by the defendant's witnesses as being as untruthful or unreliable, to provide a basis for a later submission that it should be rejected. Ms Williams was simply told that she could ask questions, which she said she did not wish to do. 62The approach adopted left Ms Williams in ignorance of a fundamental procedure which, if invoked, may have proven to be of real advantage to her. The way in which the proceedings then unfolded, exacerbated the problem which had arisen. 63The first defendant called the rest of its witnesses, they being asked no questions by anyone; Ms Williams and her witnesses largely gave their evidence by being questioned by the Tribunal Member, as to matters of interest to her, rather than by being asked questions by Ms Williams. Having not been given the opportunity to make any submissions, Ms Williams' protests, while the oral decision was being delivered, that she disputed things which had been said by the defendant's witnesses, clearly revealed that she had not had either necessary knowledge, or understanding of the importance of testing the defendant's witnesses, in relation to the matters which were in dispute. What was clear from Ms Williams' objections as the oral reasons were being delivered, was that not only had she not been given an opportunity to put her case, there were aspects of the evidence of other witnesses with which she disagreed, but which she had not tested, by any cross-examination. 64It is apparent from the Tribunal Member's variously given decisions, that she became conscious of the difficulty which had resulted from the way in which the hearings had been conducted. The Tribunal Member attempted to deal with this, by 'ruling out' the evidence given by certain of the defendant's witnesses. 65Ms Williams had not made any such application and the first defendant was not heard in relation to that approach being adopted. Had the parties been invited to make submissions about this approach, as they clearly ought to have been, Ms Williams might have made the obvious submission that other witnesses called by the first defendant should also not be believed. 66It is apparent that the steps which the Tribunal Member explained she would take, when the oral reasons were given, in order to attempt to address the problem which it was appreciated had arisen, were inadequate and could not cure the difficulty which had resulted from the unfair procedures adopted to that point. They were clearly not practically fair and could not ensure that Ms Williams was given a reasonable opportunity to put her case. 67The right to cross-examine had been raised only belatedly with Ms Williams and in such a way that it cannot fairly be concluded that the circumstances in which she waived her right, ensured that she received procedural fairness. Her case on appeal, that she did not understand the procedure, or its importance and with no legal experience and no explanation of the process or its purpose, that she was not able to cross-examine, when forced to appear unrepresented, must be accepted. The result of the process adopted was that untested evidence given by the defendant's witnesses as to crucial matters, came to form the foundation of the Tribunal's decision. 68Contrary to the defendant's submissions, Mr Ewan did not appear for Ms Williams at the second hearing, when the first defendant called its final witness, even though the Tribunal Member addressed both him and Mr Hayden, at various points of the hearing, as if they were representing her. The Act only envisages representation by permission applied for and granted. That did not occur, in relation to either of them. 69Further, also contrary to the defendant's submission, the Tribunal Member did not conclude on 11 April that Ms Williams should be represented by a tenancy advisory service representative. Had such an advocate been present, leave may have been granted, but the Tribunal Member determined that Ms Williams had to proceed unrepresented. It was at the conclusion of the first day's hearing that the Tribunal Member urged Ms Williams to seek representation. At the rescheduled hearing Mr Ewan made clear that he was not present to represent Ms Williams, but only to advise and assist her. Still the Tribunal Member refused her adjournment application that day, notwithstanding her intervening difficulties in preparing for the resumed hearing. 70Had it been that the Tribunal Member had decided on the first day that Ms Williams should be given leave to be represented, a refusal to adjourn the hearing when the representative did not attend as expected, would have been plainly unjust and inconsistent with the obligation to provide procedural fairness and to act according to equity and good conscience. 71The first defendant relied on Hoeben J's observation In Brennan v Consumer, Trader & Tenancy Tribunal [2010] NSWSC 1240 at [48] to submit that the presence of a representative for Ms Williams at the hearing on 11 April would not have made any difference to the outcome of the proceedings. His Honour there observed: "48 As Italiano v Carbone demonstrates, the supervisory power of this Court can be exercised to intervene where procedural unfairness occurs in proceedings before an inferior Tribunal. The question remains, however, whether the Court should intervene. In other words would the attendance of the plaintiff have made any difference to the outcome?" 72It was argued that the presence of a representative could have made no difference to the decision to terminate Ms Williams' tenancy, because of the Tribunal Member's decision not to pay any regard to the evidence of three particular witnesses. That submission may not be accepted. 73It is apparent that Ms Williams disputed not only the evidence of the three witnesses whose evidence was disregarded, but also the evidence of the witnesses on whom the Tribunal Member's decision rested. The presence of a representative would have ensured that the evidence of all of the defendant's witnesses was tested; it would have ensured that the evidence led for Ms Williams, was directed to her case, rather than being dictated by the questions asked by the Tribunal Member as to the matters she identified were of concern to her; and that Ms Williams was given an opportunity to make submissions. 74In Mikel v Dudley [2008] NSWSC 1090, a complaint was also made that the Tribunal had prevented the plaintiff from cross-examining a witness and that by reason of the Tribunal's conduct of the proceedings, he was denied procedural fairness. Hall J there concluded that in the circumstances there had been no denial of procedural fairness, because he was satisfied that cross-examination of the witness on any of the relevant issues would, in no way, have conflicted with or prevented findings being made by the Tribunal as to matters which fell for determination, in relation to an implied warranty which bound the plaintiff. In the result there was no injustice in the approach taken by the Tribunal to the cross-examination of the witness. In reaching that conclusion, Hall J referred to the judgment of Sackville J in Prentice v Cummins (No 6) [2003] FCA 1002, where his Honour also discussed questions of injustice in the approach taken to cross-examination and its curtailment. 75This was a very different case. The need for an opportunity to cross-examine, if there was to be a fair hearing, given the factual issues lying between these parties, was correctly recognised by the Tribunal member, albeit belatedly. Having determined that Ms Williams had to proceed unrepresented, the Tribunal Member had to ensure that Ms Williams was not only told that she could cross-examine witnesses, but also that she was given some explanation of what that involved and why it was important that it be pursued and that she had a real opportunity to put her submissions. 76Ms Williams had to represent herself at a hearing for which she had been released from the rehabilitation facility to attend on day release. If procedural fairness was to be ensured in the circumstances which had arisen, the Tribunal Member having refused to adjourn the hearing, even though Ms Williams had obvious difficulties in preparing for the hearing, she had to be given some understanding of what cross-examination was, before she was required to indicate whether she wished to exercise the right, or being expected to undertake the process. 77The first defendant submitted that the Tribunal Member's decision ultimately rested on evidence that Ms Williams had been arrested on 19 April, when intoxicated, for breach of apprehended violence orders. It is unnecessary to determine whether or not that it is so. The merits of the decision do not arise for consideration in these proceedings. What arises for determination is whether or not Ms Williams was afforded the procedural fairness the Tribunal was obliged to ensure she received. 78Like the conclusion reached by Hoeben J in O'Hara v Consumer Trader and Tenancy Tribunal & Ors [2007] NSWSC 663, this is a case where despite the significant degree of flexibility which the Tribunal has in determining the manner in which proceedings before it will be conducted, it failed to comply with the requirements imposed upon it by s 28 and s 35. Those obligations are expressed in obligatory language. 79In the result the orders sought by Ms Williams must be made.

Costs 80The usual order is costs follow the event. As an unrepresented litigant, Ms Williams is entitled to an order in her favour as to her expenses, but not any costs.

Orders 81For these reasons I order that:

1. The Tribunal's decision of 23 May 2012 be set aside.
2. The first defendant bear Ms Williams' expenses of the proceedings, as agreed or assessed.

Amendments 04 November 2016 - [47] typographical error 'consciousness' amended to 'conscience' DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2016