WorkCover Authority of NSW (Insp Carmody) v Develco Projects Pty Ltd

HEARING DATES: 08/20/2001 DATE OF JUDGMENT: 10/12/2001

PROSECUTOR: Mr W.G. Roser SOLICITORS: Mary Lagana WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANT: Mr P.M. Hall QC with Ms E Collins of counsel SOLICITORS: Andrew Cardell Ree Allens Arthur Robinson

JUDGMENT: - 13 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : 12 October 2001

IRC2636 of 1999 WORKCOVER AUTHORITY OF NSW (INSP CARMODY) v DEVELCO PROJECTS PTY LTD Prosecution under s16(1) of the Occupational Health and Safety Act 1983 JUDGMENT (As to costs) [2001] NSWIRComm 246 1 This is an Application for Costs, on an Indemnity Basis, brought by the defendant company against the prosecution, the WorkCover Authority of New South Wales.

2 The WorkCover Authority of New South Wales charged the defendant, Develco Projects Pty Ltd, with a breach of s16(1) of the Occupational Health and Safety Act 1983 ("the Act") in that, between 16 June 1997 and 15 December 1997, the defendant failed to make arrangements for ensuring the safety and absence of risk to health, in connection with excavation work carried out adjacent to a free-standing brick wall on a construction site at Kent Street, Mascot: As a result of the said failure two persons, not in the defendant's employment, sustained fatal injuries when the wall collapsed on them on 15 December 1997. HISTORY 3 The history related to this prosecution is relevant. Similar prosecutions were instituted against two other companies in relation to the collapse. Originally all three defendants pleaded not guilty to the charges laid and a hearing was listed of all charges against all defendants concurrently. (Later the file indicated one of the other defendant's changed their plea).

4 As to the charges against the named defendant, in its investigation of the accident, the prosecuting Authority, the WorkCover Authority, took a statement dated 28 January 1998 from Mr Kimmedy, Project Manager. He was asked: Q7 On the 15th December 1997 who were you employed by? A. Develco Pty Ltd. Q8 What is Develco Pty Ltd A.C.N. number? A. To be advised. Q9 What is the nature of the business undertaken by Develco Project Pty Ltd? A. Develco is a property developer, which buys sites or buildings and then carries out developments on them for a lease back or on selling. We are not a builder and we don't have a building arm. We employ a builder to carry out construction. Q10 What is the official name of the company who contracted Consolidated Constructions to develop and construct the project at 10-12 Kent Road Mascot? A. Develco Project Pty Ltd.

5 As the interview proceeded all questions were directed to the conduct of the affairs of Develco Project Pty Limited, even though Mr Kimmedy had revealed he was employed by Develco Pty Limited.

6 Mr Kimmedy also provided written authority to the prosecution on 8 May 1998 on the letterhead of Develco Project Pty Limited. The letterhead also refers to Develco Pty Limited with an ACN number. The written authority revealed there were a number of associated companies.

7 Arising from its investigation, on 28 May 1999 the prosecutor charged Develco Projects Pty Limited with a breach of s16 of the Occupational Health and Safety Act 1983. The defendant entered a plea of not guilty to the charge.

8 The defendant company then made a number of submissions to the prosecution as a basis for its consideration to withdraw the charge. A submission related to the validity of the summons was first made. Solicitors for the defendant then requested further and better particulars from the prosecutor on both 21 January 2000 and 12 July 2000. On 31 July 2000 and 3 August 2000 the defendant submitted as to particular matters on the question of either the status of the summons or causation of the breach. On 30 August 2000, it again requested the prosecutor reassess the defendant company's liability under the Act given the content of the expert evidence it was to rely upon. That is, the defendant specifically requested the prosecution withdraw the charge given there was insufficient evidence as to the defendant company's action or lack thereof to be causative of the risk.

9 The defendant submitted the collapse at the heart of the allegation occurred in Stage Four of the project, long after the defendant had had any involvement on the site. Mr Leavy, the expert relied upon by the prosecution, had first concluded as to the failure: 7.1 General: The excavations on the site in the vicinity of the wall weakened its foundations and left it unstable. Whereas the initial excavations carried out in the second phase of the development weakened the foundations, this was not to an extent that the wall became unstable, otherwise it would not have withstood the vibrations that were generated in compacting the fill to the correct level and which were plainly felt by the people in the adjacent property. The additional mechanical and hand excavations being carried out on the day of the accident were sufficient to weaken the support from the soil and cause it to fail. The mechanism of failure may have been exasperated by a gust of wind that initiated the collapse. The risk as pleaded in the summons occurred between 16 June 1997 and 15 December 1997.

10 After receiving the submissions as to the state of the evidence: namely, that the conduct of the defendant was not causative of the risk, the prosecution resubmitted a number of issues to their expert. He then opined in a second report: . . . Section 7.1 of my Engineering Report on the accident may be somewhat misleading. The longer-term effect of the compaction on the stability of the wall should be considered and the paragraph should be amended to read: The excavations on the site in the vicinity of the wall weakened its foundations and left it unstable. This process began with the excavations that were carried out in the second phase of the development whereby the soil adjacent to the wall was reduced to a level below the underside of the foundation. Other factors subsequent to the initial excavation - including the vibrations that were generated in compacting the fill on site to the correct level and which were plainly felt by the people in the adjacent property, the movement of vehicles along the driveway to the Blue Mountain Water Company, heavy traffic along Ricketty Street, and wind and rain - further adversely affected the foundations to the extent that the additional mechanical and hand excavations being carried out on the day of the accident were sufficient to weaken the support from the soil and cause it to fail. The mechanism of failure may have been exasperated by a gust of wind that initiated the collapse.

11 A further submission based on an alternative reasoning was made to the prosecution but not until 15 September 2000. The submission informed the prosecution the defendant was not the relevant "employer" at the site on the relevant dates responsible for any risk to the safety of others. This ground for discontinuance was submitted three weeks before the hearing. On receiving the new submission as to the assertion the defendant was not the "employer" at the dates of the risk, relevant documents held by the defendant company were made available to the prosecution and were inspected. On the last working day prior to the hearing dates the prosecution gave notice to the defendant of an intention by the prosecutor to offer no evidence at hearing against Develco Projects Pty Ltd, the named defendant.

12 At the hearing the prosecutor as notified offered no evidence against the defendant. He placed on record no reason for the application to dismiss the charge. Hungerford J dismissed the charge in accordance with s14(1) of the Supreme Court (Summary Jurisdiction) Act 1967. As was said by Walton J, Vice President in WorkCover Authority of NSW (Insp Ankucic) v J L Lennard Foods Equipment Pty Ltd (No. 2) (1999) 92 IR 111 (at 117): Where a prosecution is dismissed, it is the equivalent of finding that the offence has not been proven and the defendant acquitted. . . . (See discussion re difference between withdrawal and dismissal in Lawson v Wallace [1968] 3 NSWLR 82 at 86).

13 The defendant had incurred considerable costs in the preparation of a contested and lengthy hearing of the charge.

14 The defendant then made Application for Costs now before the court. The application was first listed for hearing before Hungerford J. He began to hear the Application on the day he delivered and published judgment in one of the associated matters (see WorkCover Authority of NSW (Insp Carmody) v Byrne Civil Engineering Constructions Pty Ltd (No 1) [2000] NSWIRComm 33). In that judgment his Honour expressed some views as to the state of the evidence. The defendant, after reading the judgment of Hungerford J then made application for his Honour to disqualify himself from hearing the application for costs.

15 His Honour, in a judgment published 11 May 2001, [2001] NSWIRComm97, disqualified himself from hearing the application for costs. The submissions 16 The defendant submits the Court, in the use of its discretion, would order costs to the defendant on an indemnity basis. The defendant submits the company representative, from the beginning of the investigation into the accident, revealed the true identity of the employer to the prosecution. The company representative also provided, on a company letterhead to the prosecution, evidence there were a number of associated companies. The defendant submits the prosecution was on notice as to "employer" being in issue from the first. The defendant submits it was a fundamental flaw in the prosecution's case to pursue the defendant who was not the relevant employer on the date of the accident.

17 Further, the defendant submits the prosecution's evidence, in the form of an expert's opinion, did not provide it with the requisite, causal connection between the alleged breach and any action or lack of action by the named defendant. As to the latter submission the defendant further submits it made written submissions to the prosecution before the hearing as to the issue of causal connection to the risk but no consideration was given by the prosecution to its request.

18 The defendant further submits it is significant, in the consideration of the use of the court's discretion as to costs, that the prosecutor, when he offered no evidence to the charge, did not identify, on the record, why he took such action.

19 The defendant argues it should never have been prosecuted under s16(1) as, in law and in fact, it was never an "employer" in accordance with the provision of s16 of the Act. It is submitted the prosecution must prove each essential element to an offence under s16(1) of the Act. It is further submitted the evidence of the prosecution, through expert reports relied upon, revealed the defendant's conduct was not causative of the risk relied upon and alleged. Therefore it was unreasonable for the prosecution to advance.

20 The defendant also submits there is no specific conduct by the defendant constituting sufficient grounds for the displacement of the ordinary approach of the courts to award costs to a successful defendant. 21 The prosecutor submits the summons was filed on 28 May 1999 against the defendant. On 2 November 1999 the prosecutor received representations seeking the withdrawal of the summons. These representations did not assert it was not an employer. On 24 January 2000, the prosecution received the defendant's request for further and better particulars based on the argument as to causal nexus. On 12 July 2000 a further request for particulars was made by the defendant, again with no assertion it was not an employer. On 31 July 2000 a challenge to the validity of the summons was notified to the prosecutor, again there was no representation as to "employer". On 3 August 2000 the defendant again requested discontinuance. On 30 August 2000 the defendant again made representation relying upon the state of the evidence as to conduct causative to the risk.

22 The prosecutor submits it was not until 15 September 2000, three weeks from the hearing, a further representation was received where the question as to "employer" was directly raised. In correspondence the defendant offered to the prosecution an inspection of the documentation proving the party named by the prosecution was not an employer relevant to the charge.

23 The prosecution acknowledges it is fundamental to a charge under s16(1) that it be laid against an "employer". Between 18 September 2000 and 5 October 2000 the various documents in the custody of the defendant were examined by the prosecution. The prosecutor concedes the allegations were withdrawn on the last working day before the hearing.

24 The prosecutor submits, in determining whether it is "just and reasonable" for costs to be granted in this matter, the court would not consider any order related to indemnity costs, such an order being confined to matters where the conduct of the prosecutor was vexatious; or the case was hopeless; or the prosecutor should have known it had no chance of success or there was ulterior motive or collateral purpose to the prosecution. The prosecutor submits no such adverse inference should be drawn against the prosecution for proceeding in the circumstances before the Court.

25 The conduct of the defendant who made numerous representations as to the causal connection of the defendant to the accident without raising the issue of "employer" is also relied upon by the prosecutor in support of its submission there should be no order as to costs in favour of the defendant. 26 The prosecutor submits the issue of "employer" was the only reason it withdrew the prosecution and such evidence was not made available to it up until 5 October 2000 after which the withdrawal of the prosecution was notified. 27 It is further submitted by the prosecutor the defendant company had an obligation to inform the prosecutor it was not an employer pursuant to s16(1) of the Occupational Health and Safety Act 1983. The Legislation 28 A number of legislative provisions are relevant to the court's consideration as to an application for costs. The Supreme Court (Summary Jurisdiction) Act 1967 (NSW) applies to a prosecution for an offence against the Occupational Health and Safety Act 1983 (NSW) taken before the Industrial Relations Commission in Court Session. Costs orders are considered in s14 of the Supreme Court (Summary Jurisdiction) Act 1967. Section 47(1)(b) of the Occupational Health and Safety Act 1983 (NSW) and s168(1) of the Industrial Relations Act 1996 (NSW) are also applicable.

29 Section 47(1)(b) of the Occupational Health and Safety Act 1983 states: 47. Summary procedure for offences (1) Proceedings for an offence against this Act or the regulations shall be dealt with summarily: (a) . . . or (b) before the Industrial Relations Commission in Court Session. (c) . . . Section 168(1) of the Industrial Relations Act 1996 states: 168. Criminal procedure (1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission.

Section 14 of the Supreme Court (Summary Jurisdiction) Act 1967 states: Judge may order payment of costs 14. (1) Where a Judge: (a) convicts any person of an offence punishable in the summary jurisdiction of the Court; (b) makes an order dismissing the charge for any such offence; or (c) makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of any such offence,

the Judge may, in and by the conviction or order, order the defendant, in the case of a conviction or order referred to in paragraph (a) or (c), to pay to the prosecutor, or, in the case of an order referred to in paragraph (b), order the prosecutor to pay to the defendant, such costs as to the Judge seem just and reasonable.

(2) The amount so ordered to be paid for costs shall in all cases be specified in the conviction or order.

(3) Subsection (1) does not empower the Judge to order costs to be paid in proceedings for an offence referred to in section 475A (1) of the Crimes Act 1900.

30 Therefore the power of the Commission to award costs is conditional upon a Judge (of the Court or the Commission) making an order dismissing the charge (s14(1)(b) of the Supreme Court (Summary Jurisdiction) Act 1967). In accordance with s14(1)(b), Hungerford J made such an order. Consideration 31 The awarding of costs is discretionary. The discretionary powers of the Industrial Relations Commission to order costs have been considered in the matter of WorkCover Authority of NSW (Inspector Ankucic) v L J Lennard Foods Equipment Pty Ltd (No 2) (1999) 92 IR 111 (at 112-113).

32 The relevant principles which must be applied to the exercise of a court's discretion do not suggest any fettering of the discretion but provide a guide "in the form of principles or guidelines" (Norbis v Norbis (1986) 161 CLR 513 at 519). The High Court in Latoudis v Casey (1990) 170 CLR 534 adopted the principles as expressed in Norbis and acknowledged that in the conferral by statute of a power to award costs, when proceedings terminate in favour of a defendant, such a power is evidence of a legislative intent to abrogate the traditional rule that costs are not awarded against the Crown. As Mason CJ said in Latoudis (at 543.1): . . . 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 successful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the cost to which he or she has been put by reason of the legal proceedings.

33 The discretion of the court is not unconfined (Latoudis per Mason CJ at 540-544; per Toohey J at 564-565 and per McHugh J at 569-570). The reasonableness of the prosecution is not a relevant consideration as to costs (Latoudis per Toohey J at 564). A successful defendant has a reasonable expectation of obtaining an order for costs (Latoudis per McHugh J at 566). An order for costs would not be granted if there has been conduct which occasioned unnecessary expense in the conduct of the proceedings by the defendant. Mason CJ said in Latoudis (at 542-543): In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs. To burden a successful defendant with the entire payment of the costs of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge, which, in the event, should not have been brought. It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself or herself, though the circumstances of a particular case may be such as to make it just and reasonable to refuse an order for costs or to make a qualified order for costs. As the Report of Committee on Costs in Criminal Cases (NZ) (1966), par 30, stated: 'Because we cannot wholly prevent placing innocent persons in jeopardy that does not mean we should not as far as is practicable mitigate the consequences.' It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principles . . .

34 A court is empowered to award indemnity costs in circumstances where the conduct of one of the parties is deserving of criticism (see Packer v Meagher (1984) 3 NSWLR 486, per Hunt J and Degman Pty Limited (In Liq) v Wright (No 2) (1983) 2 NSWLR 354 per Holland J).

35 The defendant concedes the issue as to "employer" was not raised with the prosecution until late in the conduct of the pre-trial proceedings. The defendant urges indemnity costs as it was forced into significant expense to obtain expert evidence. Further the defendant submits it is relevant to the court's consideration when submissions as to conduct not causation of the risk, relying upon the state of the expert evidence of the prosecution, the prosecution obtained a second report from their expert reassessing the causation issue. 36 The first ground relied upon by the defendant in support of the application for costs, namely, the state of the prosecution's evidence as to conduct causative of risk, would require the Court to make a finding that the prosecutor had no evidence or not sufficient evidence on which it could rely to prove the allegation of the breach. Such is the submission of the defendant. In any challenge to expert evidence on the issue of conduct causative of the risk the expert would be cross examined on the alleged change of view. It is not for this Court, in a hearing on an application for costs orders, to make findings as to the state of the evidence revealed pre-trial. I reject the submission the court should make a finding there was a fundamental flaw in the prosecution's case in this consideration. In litigation the evidence would be called, the witnesses might be required for cross examination, issues such as credit would be addressed and any alternative expert evidence would be called and given weight in a court's consideration.

37 However, a second ground is relied upon in support of the application for costs, namely, the prosecution did not meet its onus to prove an essential element of the offence in a criminal prosecution under s16(1) of the Act, namely, prove "employer". The prosecution under s16(1) of the Act must prove: (a) the defendant was the employer referred to in the section; (b) that there were persons not employees of the defendant, who were exposed to a risk to their health and safety; (c) that the risk arose from the conduct of the client's undertaking; and (d) that exposure to the risk was at the defendant's place of work. While I make no finding as to whether the conduct of the "employer" was not causative of the risk from the evidence I find the prosecutor has proceeded against a defendant who was not the "employer" at the time of the alleged risk. The prosecution had access to evidence from its investigation which it ignored, as to this essential element of this offence. To have charged the defendant company without making further inquiries as to "employer" made the costs expended by the defendant in defence of this allegation of breach inequitable.

38 Other matters arise in this consideration. Section 14(1) of the Supreme Court (Summary Jurisdiction) Act 1967 requires, from the judicial officer, an assessment of costs which are "just and reasonable". The Supreme Court (Summary Jurisdiction) Act 1967 states the court may make an Order for the prosecutor to pay the defendant: 14(1)(c) . . . such costs as to the Judge seem just and reasonable.

14(2) The amount so ordered to be paid for costs shall in all cases be specified in the conviction or order.

39 Much of the costs and expense in this matter, including the obtaining of experts' reports and the submissions arising out of those experts' reports were expended after the prosecutor was on notice via both admissions of Mr Kimmedy and the documentation provided this defendant company was not the employer.

40 The very serious nature of charges under the Occupational Health and Safety Act 1983 require the prosecution to identify a named defendant as an "employer" in order to properly pursue such a charge. The prosecutor acknowledges it is an essential element of an offence to prove "employer". Modern industrial trends which encourage the development of contract and subcontract labour requires a very thorough investigation by the prosecution as to the identification of the employer. The role of holding companies and corporate structures must be acknowledged by the Authority and the relevant information and company searches obtained. There is no evidence such a thorough search occurred in this case. Although there was an admission by a defendant corporation as to the distinguishing features between a corporate entity on site and a corporation which employed the workers on the site, this was not pursued by the prosecutor. The WorkCover Authority has failed to meet the onus placed upon it (see WorkCover Authority of NSW (Insp Mauger) v SWR Constructors Pty Ltd [2001] NSWIRComm115; WorkCover Authority of NSW (Insp Mauger) v Ridge Consolidated Pty Ltd [2001] NSWIRComm15).

41 The prosecutor submits the defendant company had an obligation to name the employer. The prosecution submits the Occupational Health and Safety Act 1983 places a number of obligations upon an employer. Division 4 of the Act, s31M provides protection from incrimination. At common law an individual need not answer any questions asked by any authority or public officer or person. Any compulsion to answer renders the answers subject to the privilege against self-incrimination and they are not admissible in court proceedings: Sorby v Commonwealth (1983) 152 CLR 281 (at 294 and 309). However, the privilege against self-incrimination does not apply to corporations: Environmental Protection Authority v Caltex Refining Co Pty Limited (1993) 118 ALR 392; (1993) 178 CLR 477. Answers by officers or employees or agents of the corporation made pursuant to a compulsory requirement under legislation may be admitted as evidence against the corporation. Officers of the corporation are bound to testify against the corporation unless they are able to claim the privilege personally.

42 Oral evidence given by an officer of a corporation is that of a witness, not of the corporation (see Caltex Refining Co; Smorgen v Australia and New Zealand Banking Group Limited (1976) 134 CLR 475 at 481; 13 ALR 482).

43 Section 31N(d) of the Occupational Health and Safety Act 1983 compels an answer unless a person has a reasonable excuse. However, s31M requires the statement must be given, even where self-incrimination applies. The obligation to answer questions arises from a combination of ss31I(e) and 31N of the Occupational Health and Safety Act 1983. 44 The prosecution submits from the wording of s 31M(2) of the Occupational Health and Safety Act 1983 the protection does not apply to restrict the use of information gained from persons against corporations. While the questions, answers and statements may not be used against the person, an officer or servant of a corporation must answer and the answer may be used without limit against the corporation.

45 It is arguable how far such an obligation extends in a criminal prosecution. However, the facts in this case reveal the defendant, when it re-discovered in pre-trial preparation the issue of "employer" was alive, quickly revealed it to the prosecution. Mr Kimmery, Project Manager, revealed at the start of the WorkCover investigation the name of the employer on site. In the circumstances, I believe it's actions were proper and it met its obligations under the Act.

46 In the circumstances I award Costs to the defendant.

47 The question however of indemnity costs is a discrete issue. In Rosniak v Government Insurance Office (1997) 41 NSWLR 608 (at 616) Mason P held: . . . the discretion to depart from the usual 'party and party' basis for costs is not confined to the situation of what Gummow J described as the 'ethically or morally delinquent party' (Botany Municipal Council v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34FCR 412 at 415): see Baltic Shipping Co v Dillon, 'Mikhail Lermontov' (1991) 22 NSWLR 1 at 34; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233-234. Nevertheless the court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation. This is because party and party costs remain the norm, although it is common knowledge that they provide an inadequate indemnity. Any shift to a general or common rule that indemnity costs should be the order of the day is a matter for the Legislature or the rule-maker: Huntsman Chemical Co Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242 at 248.

48 I find in the circumstances there is not sufficient evidence of "unreasonable conduct" on the part of the prosecutor to order indemnity costs. I reject the submission there was never any or sufficient evidence as to conduct causative to the risk to send this matter to trial. Such is a question for the trial. However, when the issue of "employer" was raised with the prosecution, from the evidence it reacted appropriately, inspected the relevant documents provided and notified the defendant of its determination. It then offered no evidence against the defendant, made the appropriate application to the court and the charge was dismissed.

49 The court Orders the prosecution pay the defendant's costs on a party/party basis.

50 As to the effect and nature of this order there must be further consideration. In Caltex Refining Co Pty Limited v Maritime Services Board of New South Wales (1995) 36 NSWLR 552 the Court of Appeal examined the effect of s52 of the Land and Environment Court Act 1979 which also refers to "just and reasonable costs". The Court found a judge must exercise the power to award costs personally and make the actual order; the requirement such an order be both "just and reasonable" entails there will be a fair hearing on the merits of the application for the order and the terms of the order, finally made, be in themselves reasonable; the court is both entitled and bound to receive any relevant evidence presented in admissible form by any party wishing to be heard as to the terms of the final costs order; the court is entitled to any other assistance lawfully available to it, including the assistance of the Registrar of the Court who may tax a bill of costs as a prelude to the judge making the final costs order with the assistance of the results of taxation; the court may not make an unquantified costs order, leaving it to someone else to fix the quantum of the order; and in reaching a final decision, the court must act judicially, demonstrating a clear and sufficiently exposed process of reasoning to the quantum of costs.

51 I Order the parties to meet in relation to the Order as to Party and Party costs to the defendant. In accordance with the view expressed in the Caltex Refining Case, this Court is obliged to give specific Orders related to costs with a quantification as to those costs. I require the parties to conciliate on this issue. If the parties are in dispute I advise the parties to seek the assistance of the Registrar of the Court as a prelude to the court making any final cost Orders as to the quantification of costs which are "just and reasonable" on a party and party basis.

52 I grant leave to the parties to re-list the matter on short notice.

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