Ace v State of NSW (TAFE Commission and Det) (No 3)

[2011] NSWADT 154

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	ACE v State of NSW (TAFE Commission and DET) (No 3) [2011] NSWADT 154
Hearing dates:	18 November 2010
Decision date:	27 June 2011
Jurisdiction:	Equal Opportunity Division
Before:	R J Perrignon, Judicial Member Dr J Schneeweiss, Non-judicial member B Weule, Non-judicial member
Decision:	The respondent's application for costs is dismissed
Catchwords:	Application for costs of hearing, Equal Opportunity Division
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Interpretation Act 1987
Cases Cited:	Jenkins v YMCA of Great Lakes Inc. t/as Great Lakes Aquatic & Leisure Centre [2008] NSWADT 335 Tickell v Trifleska Pty Limited (1990) 25 NSWLR 353 Hobartville Stud Pty Limited v. Union Insurance Co Limited (1991) 25 NSWLR 358 Ohn v Walton (195) 36 NSWLR 77 Latoudis v Casey (1990) 170 CLR 534 Tu v University of Sydney (No. 2) [2002] NSWADTAP 25 O'Sullivan v NSW Medical Board (No 2) [2010] NSWADT 188 MT v AA (no 2) EOD [2010] NSWADTAP 28 AT v Commissioner of Police [2010] NSWCA 131 Murtough v NSW Bar Association [2008] NSWADT 166
Category:	Costs
Parties:	ACE (Applicant) State of NSW (TAFE Commission and DET) (Respondent)
Representation:	Counsel M Tibbey (Applicant) K Nomchong (Respondent) P Baker (Applicant) State Crown Solicitor (Respondent)
File Number(s):	071120

REasons for decision

1. On 19 July 2010, the Tribunal dismissed the applicant's complaint of discrimination on the grounds of carer's responsibilities. The respondent applies for its costs of the hearing, and of this application for costs, or such portion of those costs as the Tribunal considers fair. Its grounds may be summarised broadly as follows:

1) The applicant attempted to deceive the respondent in the events which led to the complaint, and to deceive the Tribunal at hearing.

2) Her claim had no tenable basis in fact, because the Tribunal: (a) found that she did not have a responsibility to care for her parents during the complaint period, and (b) was not satisfied that the persons she relied on as comparators were in fact comparators for the purposes of the legislation.

3) On 19 August 2009, the applicant unreasonably rejected the respondent's offer that the complaint be discontinued, and that each party pay its own costs.

4) The applicant conducted the proceedings in a way which unnecessarily disadvantaged the respondent in failing to comply with orders of the Tribunal - in particular, timetables.

1. The respondent accepts that the effect of section 88(1) of the Administrative Decisions Tribunal Act 1997 is that parties should pay their own costs of proceedings in the Tribunal unless the Tribunal considers a costs order to be fair, having regard to the discretionary matters set forth in section 88(1A). It submits that the grounds listed above satisfy at least some of those discretionary factors, with the result that it would be fair to make a costs order in its favour.

Legislation

1. The Tribunal's power to make costs orders in complaints referred to it under the Anti-Discrimination Act 1977 is to be found in Section 110 of that Act, which provides:

'The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings before the Tribunal in relation to a complaint.'

1. Section 88 of the Administrative Decisions Tribunal Act 1997 provides:

'Costs

(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.'

1. Section 88(1) gives effect to the long-standing practice of the Tribunal that, generally speaking, each party is to bear its own costs. Unlike the situation in some other jurisdictions, costs do not automatically 'follow the event'. The Tribunal may only vary its usual practice if it considers it 'fair to do so': section 88(1A). In determining whether it is fair, the Tribunal must have regard to the matters set forth in section 88(1A).

Deceit

1. The respondent says the applicant attempted to deceive the respondent during the complaint period in the following ways.

1) By telling the respondent from 2 June 2005 that she needed full-time leave because she was taking care of her parents.

2) By telling the respondent that she had a responsibility to provide care for her parents thee days per week.

3) By implying, in her request for part-time work made in September 2005, that she would be fit for part-time work in January 2006.

4) By making false or exaggerated statements about her parents' alleged medical conditions.

5) By providing a medical certificate which was false, in that it alleged she had stayed with her mother and helped her 'all of this time' during the period 25 September 2005 to 15 April 2006.

1. The respondent says the applicant also attempted to deceive the Tribunal during the course of the proceedings:

1) by pursuing a claim for economic loss, in circumstances where she had provided medical certificates to CentreLink proving that she was incapable of working during the complaint period, and

2) by telling the Tribunal that she was in Queensland at the very times when her bank records showed she had been engaged in purchase and deposit transactions in Sydney.

1. In considering this first ground - that ACE attempted to deceive the respondent and the Tribunal - it is necessary to identify the findings made by the Tribunal. ACE claimed both direct and indirect discrimination on the grounds of her responsibility to care for her parents in Queensland. She said she was treated differently from other employees, whom she named and identified as having either no carers responsibilities or having different kinds of carers responsibilities from her, in the granting of part-time work.

1. On the whole, the Tribunal found ACE to be an unsatisfactory witness. It could not be satisfied of the truth of her assertions that her parents were in need of care, that she had a responsibility to provide care, or that she in fact provided care when she said she did. It could not be satisfied that ACE even visited her parents in Queensland on all the occasions on which she said she did. It made a positive finding that she did not have responsibility to care for her parents during the complaint period.

1. However, the Tribunal made no positive finding that either parent was not in need of care throughout the complaint period, that the applicant had failed to provide care throughout the complaint period, or that she had not visited her parents when she told the Tribunal she had. The evidence did not enable a finding either way. On those issues, there was no finding that the applicant had attempted to deceive the Tribunal.

1. In particular, the Tribunal did not find that ACE had knowingly lied in asserting that she had carers responsibilities during the complaint period. She may have held a genuine belief to that effect. Such a belief is essentially an opinion, based on a perception of underlying facts. Her belief may have been based on an inaccurate perception or recollection of events occurring many years before the hearing.

1. There was before the Tribunal a substantial body of medical evidence. It demonstrated serious, long-term psychiatric pathology, which affected her mood, prevented her from working, and degraded her memory. That is consistent with a genuine belief as to her responsibilities at the time, based on an inaccurate perception of events at that time. Even taking into account the many contradictions in her evidence, and the repeated and unexplained lack of corroboration in many instances, except for the matters referred to below, the Tribunal's findings on credit went no further than that her evidence was unreliable.

1. However, the Tribunal was satisfied that ACE attempted to deceive the respondent in one respect. It found that, during the complaint period, she knew she was incapable of working part time, or at all, when she requested part-time work. It found that she made the request in order to secure an advantage for herself - namely, the continuation of her employment so as to qualify for sickness benefits - and in requesting part-time work, she was implying that she was capable of it.

1. The respondent says that this, and all the other attempts to deceive it during the complaint period upon which it relies, constitute 'attempting to deceive another party' within the meaning of subsection 88(1A)(a)(v).

1. The respondent is, of course, a party, but it was not a party during the complaint period, when these attempts occurred, if at all. To succeed on this issue the respondent must show, not only that the attempts occurred, but that subclause (v) is wide enough to include attempts to deceive a party prior to commencement of proceedings.

1. In context, subclause (v) is directed to deceit occurring during the course of proceedings, because it is preceded and qualified by the words in subsection 88(1A)(a), which provide:

'whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as ...'

1. Subsection (a) is directed to conduct occurring in the course of the proceedings. It is not, in our view, enlivened by conduct occurring prior to commencement of proceedings. To attract subclause (a)(v), attempts to deceive a 'party' must occur at a time when that person is a party, and not before.

1. Even so, the respondent says that the attempted deceit falls to be considered under the phrase ' any other matter that the Tribunal considers relevant' in section 8(1A)(e). That is considered separately below.

1. There was also one occasion on which the Tribunal was satisfied the applicant had fabricated an answer in re-examination. That was an occasion on which she said that, in a meeting in January 2006, she had asked for part-time work, contradicting her evidence in chief. That is a factor which weighs in favour of a costs order.

No tenable basis in fact

1. The applicant brought her claims for direct and indirect discrimination on the basis that she had responsibilities to care for her parents. Weighing all the evidence, the Tribunal found that she did not have carers responsibilities during the complaint period. It was not a situation in which no evidence of those responsibilities was given. Such evidence was given by both ACE and her daughter. For the reasons set forth in the Tribunal's decision, the Tribunal was not persuaded by that evidence.

1. The claims of direct and indirect discrimination depended on proof, inter alia , that the applicant had carers responsibilities. As the Tribunal found to the contrary, the fundamental factual basis for those claims was not made out. The respondent says that this constituted a failure to establish a 'tenable basis in fact', satisfying the provisions of subsection 88(1A)(c):

'(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law'.

That is so, only if the phrase 'no tenable basis in fact or law' means either of two alternatives - the lack of a tenable basis in fact, or the lack of a tenable basis in law. In our view, that is not its meaning. Properly construed, clause (c) is to be read conjunctively. It is enlivened only where the Tribunal is satisfied that a claim has no tenable basis in fact, and no tenable basis in law. Were it otherwise, the mere fact that a party had failed to prove a material fact would render a costs order almost inevitable, at least where no countervailing factors were present. That would be consistent with a legislative desire to make this Tribunal a 'costs jurisdiction' in which costs automatically follow the event. That is not the object of section 88, as subsection (1) expressly confirms. An interpretation which promotes the purpose or object of legislation is to be preferred to one which does not: section 33, Interpretation Act 1987 .

1. The respondent argues also that the applicant failed to prove that any of the three employees who were granted part-time work was a proper comparator for the purposes of the legislation. That is so, at least in respect of Ms Pryde and Mr Frangeskou. The Tribunal found they were not appropriate comparators, because each had carers responsibilities.

1. The applicant had argued that Ms Pryde and Mr Frangeskou were appropriate comparators, because their responsibilities were of a different character from those of the applicant. This was an arguable question of law, albeit one which was rejected by the Tribunal. It would be an odd result if the mere arguing of a novel point of law was capable of overcoming the usual rule as to costs in the Tribunal. As we have found, the fact that a claim has no tenable basis in law is of itself insufficient to attract clause (c).

1. The applicant had also asserted that her daughter was an appropriate comparator. The Appeal Panel has since found that:

'There was evidence to support the Appellant's assertion that her daughter worked part-time for the Respondent prior to [January 2005 when she resigned to look after her mother] and that she did not have carer's responsibilities.' ACE v Director General, Department of Education and Training (EOD) [2011] NSWADTAP 23.

1. Putting to one side the question whether the claims enjoyed a tenable basis in fact or law, subclause (c) requires the Tribunal also to have regard to the 'relative strengths of the claims made by each of the parties'. The applicant's case was significantly weaker than the respondent's. For that reason, the discretionary factor in subclause (c) weighs in favour of the respondent's application.

Unreasonable rejection of offer

1. The respondent says that, in considering 'any other matter that the Tribunal considers relevant' under subclause 88(1A)(e), the Tribunal is entitled to have regard to the applicant's rejection of the respondent's offer on 19 August 2010. We are satisfied that subclause (e) is wide enough to authorise consideration of that circumstance. If the Tribunal were satisfied that the offer was a genuine attempt at compromise, and its rejection was unreasonable, that would be a factor weighing in favour of the respondent's application.

1. However, the applicant reminds the Tribunal of observations made in this Division in Jenkins v YMCA of Great Lakes Inc. t/as Great Lakes Aquatic & Leisure Centre [2008] NSWADT 335 [at 28]:

'In jurisdictions in which costs follow the event, offers expressed pursuant to Calderbank letters and similar instruments can be of pivotal importance in determining both whether an order for costs ought be made, and on what basis. This is not a jurisdiction in which costs generally follow the event. A Calderbank letter may be taken into account, but the discretion provided by section 110 is broadly based, and the Tribunal must exercise it having regard to all the circumstances before it.'

1. Those observations, though made before the amendments of 1 January 2009, apply equally to the current legislation, save that the Tribunal must now exercise its discretion having regard to all the factors enumerated in section 88. The Tribunal continued [at 29]:

'Generally speaking, invitations to capitulate do not entitle the party making them to a more generous costs order than they would otherwise receive, even in jurisdictions where costs follow the event: Tickell v Trifleska Pty Limited (1990) 25 NSWLR 353; Hobartville Stud Pty Limited v. Union Insurance Co Limited (1991) 25 NSWLR 358.'

1. In this case, the respondent's offer was, in effect, an invitation to capitulate. It sought to obtain the best result it could possibly have obtained, had it succeeded at the hearing, save as to costs. We are not satisfied that the offer was a genuine offer of compromise, or that its rejection was necessarily unreasonable, even though in the result, the applicant did not succeed.

Other discretionary factors

1. It remains to consider the balance of the discretionary factors listed in section 88.

1. Subsection 88(1A)(a) is attracted where a party has 'conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings' in certain ways, including failures to comply with orders of the Tribunal.

1. The applicant accepts that there was some delay when the matter was first referred to the Tribunal by the President of the Anti-Discrimination Board. During the first three case conferences, the applicant was unrepresented and, the Tribunal infers, experienced some difficulty in representing herself adequately without the benefit of legal advice. It is not suggested by either party that she had the means to afford representation.

1. By the case conference on 13 August 2008, however, she was represented. Before any further step in the proceedings, her solicitor sought counsel's advice on the claim, as was proper.

1. Points of Claim were filed on 13 November 2008, and a case conference occurred on 17 December 2008. By consent, a timetable was set, with which the applicant complied, subject to what follows. An application to amend the complaint was made, and granted in part, as detailed in the Tribunal's published reasons. There was a delay of just over a week in serving the applicant's affidavits. There is no evidence that this circumstance unduly hampered the respondent's conduct of the proceedings.

1. Neither that circumstance, nor the delays which occurred while the applicant was unrepresented at the commencement of proceedings in the Tribunal, were serious enough to justify a finding that the respondent was 'unnecessarily disadvantaged' in terms of section 88(1A)(a), or that the applicant was 'responsible for prolonging unreasonably the time taken to complete the proceedings' in terms of subclause (b).

1. Subsection 88(1A)(d) requires consideration as to whether the proceedings were complex. They were, by reason of the extensive facts adduced, and of the complexity of the applicable statutory provisions and arguments in respect of their application. However, in the absence of any conduct unnecessarily disadvantaging the respondent by way of delay or otherwise, the mere fact that proceedings were complex is not a circumstance which would weigh in favour of making an order for costs against the applicant.

1. Subsection 88(1A)(e) empowers the Tribunal to consider any other relevant matter. The respondent says that the applicant's attempt to deceive it during the complaint period, by implying that she was capable of work, is relevant. We are not persuaded that that is so.

1. Generally speaking, 'the purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made': Ohn v Walton (195) 36 NSWLR 77, per Gleeson CJ at 79, applying Latoudis v Casey (1990) 170 CLR 534. To interpret subsection 88(1A)(e) as justifying punishment for conduct committed before the commencement of proceedings would be to imbue section 88 with punitive intent. Such an intent would run contrary to general jurisprudence on costs, in this Tribunal and in the Courts. It would require clear language to change the law in that fashion. No such clear intent is evinced by the terms of clause (v). In our view, consistent with the received learning on costs, the purpose of section 88 is compensatory, not punitive.

Consideration

1. It remains to consider the meaning of section 88, and the legislative intention which informs it. Prior to 1 January 2009, when section 110 of the Anti-Discrimination Act 1977 in its current form was substituted, costs orders against a complainant in the Equal Opportunity Division tended to be:

'reserved for cases where an abuse of process is seen as having been involved, i.e. those cases where the conduct of the complainant was frivolous, vexatious or lacking in good faith': Tu v University of Sydney (No. 2) [2002] NSWADTAP 25 at [42].

1. The amendments of 1 January 2009 were considered by Deputy President Chesterman, sitting in the Equal Opportunity Division, in O'Sullivan v NSW Medical Board (No 2) [2010] NSWADT 188 [at 26-27]:

'26 The current version of section 88, in which the criterion of 'fairness' stated in subsection (1A) has replaced a rule that in the absence of 'special circumstances' no costs might be awarded, became operative on 1 January 2009. In Salon Today Pty Ltd v M M I R Pty Ltd [2009] NSWADT 71 at [72], the Tribunal stated:-

What the Parliament has done, in its 1 January 2009 amendments, is recognise that there is a need for this Tribunal to be more flexible and widen the scope of a litigant's entitlement to costs. ... [T]he result of this re-assessment by the Parliament is a different test, a test of fairness, having regard to a number of parameters/factors.

27 The foregoing dicta may be contrasted with the following observations made in a case ( Dowsett v Fitness First Australia Pty Ltd [2008] NSWADT 226 at [15]) decided in the Equal Opportunity Division under the 'old' section 88:-

'15 Costs orders are rarely made against unsuccessful applicants in anti-discrimination matters. The Appeal Panel observed in Tu v University of Sydney (No 2) [2002] NSWADT 22 at [42] that:

. . . the sanction of a full costs order against the complainant tends to be reserved for cases where an abuse of process is seen as having been involved.'

They were also considered by the Appeal Panel in MT v AA (no 2) EOD [2010] NSWADTAP 28 . The Panel observed [at 4-5]:

'4 .... There is no issue of statutory construction in these proceedings which would give rise to a beneficial interpretation [of section 110] being preferred. The test is plain. The Appeal Panel must be satisfied that it is 'fair' to award costs having regard to the matters listed in s 88(1A) of the ADT Act which includes any matter that the Appeal Panel considers relevant. While one of those considerations is whether proceedings have been conducted vexatiously, that is not the only relevant matter.

5 Nevertheless, ... it is relevant that these proceedings are in the Equal Opportunity Division rather than, for example, in the Retail Leases Division where parties are in a commercial relationship: Gizah Pty Limited v AXA Trustees Limited (No 2) NSWADT 164 at [16]. We accept that the Tribunal has been more inclined to make costs orders in cases in the Retail Leases Division given the commercial nature of those proceedings: Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1 at [37].'

1. In AT v Commissioner of Police [2010] NSWCA 131, the Court of Appeal considered the provisions of section 88, in relation to proceedings which had been conducted at first instance in the Tribunal's General Division. In that case, the Court of Appeal ordered that the Commissioner of Police pay the appellant's costs on appeal, and his costs as applicant at first instance before the Tribunal. Basten JA said [at 33]:

'33 That approach [of ordering the Commissioner of Police to bear the applicant's costs of a successful application for review] does not diminish the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel. Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act .'

1. His Honour also observed [at 30]:

'30 There will, as the Chief Justice [in Thaina Town (On Goulburn) Pty Ltd v Sydney City Council [2007] NSWCA 300; 156 LGERA 150] recognised ... be cases in which it may be appropriate for this Court to defer to the specialist court or tribunal, on the basis that it will have a better understanding of the possible consequences, within its own jurisdiction, of the exercise of the power to award costs.'

1. His Honour was not specifically referring to the Equal Opportunity Division of this Tribunal. Nevertheless, his remarks are consistent with the view that specialist jurisdictions like the Equal Opportunity Division are often well placed, within the confines of their statutory powers and discretions, to identify factors relevant to the award of costs.

1. In proceedings in the Equal Opportunity Division, section 88(1A)(e) is wide enough to encompass, and to authorise, consideration of the fact that the proceedings were brought in that Division, and that they are not of a commercial character.

1. As the Appeal Panel observed in Tu's case [at 39]:

'Equal opportunity tribunals have referred to the special character of the jurisdiction, which seeks to protect and promote the observance of fundamental human rights. For example in Anon v Anon (No 1) [1997] NSWEOT (18 July 1997) it was said that the human rights protection objective 'might be thwarted if complainants were to be discouraged from pursuing claims before the Tribunal due to fear of the amounts that may be awarded against them for inter alia legal costs if unsuccessful on those claims'.'

1. In Murtough v NSW Bar Association [2008] NSWADT 166, Deputy President Britton, sitting in the Equal Opportunity Division, observed at [27]:

'A determination of the question whether costs should be awarded requires a balance to be struck between the "chilling effect" of too readily ordering costs against complainants (see Maylor (No.2) v Mid North Coast Area Health Service [2001] NSWADT 118 at [23]) and the need to ensure that parties conduct their cases in such a way that costs are not unnecessarily incurred or forced on others. The real questions to be determined are whether, due to a combination of factors, circumstances have arisen that displace the general presumption against an order for costs and, if so, whether the order ought be an order for costs of the entire proceedings or an order for the costs in relation to part of the proceedings.'

1. In exercising its discretion under section 88(1A)(e) to take into account 'any other matter that the Tribunal considers relevant', it is proper for the Tribunal to take into account the fact that proceedings are bought in its Equal Opportunity Division, that it is a human rights jurisdiction, the public benefit that such a jurisdiction provides, and the potential 'chilling effect' of too readily making costs orders against an unsuccessful complainant.

1. Those considerations, of course, may not be entertained in isolation. They must be weighed together with the factors listed in section 88(1A). The aim of the weighing process is to determine whether the imposition of a costs order would be 'fair'. The previous practice of refraining from making costs orders except where there has been an abuse of process - in the sense that the complainant acted frivolously, vexatiously or without good faith ( Tu's case [at 42]) - or where special circumstances are demonstrated ( O'Sullivan [at 26]) has been displaced by the provisions of section 88 as they now stand.

1. The relative weakness of the applicant's case, and the fact that she was found to be untruthful on one occasion, are factors weighing in favour of a costs order. However, the fact that she did not conduct the proceedings generally in a way so as to disadvantage the respondent, that such delays as occurred were not grave and were explicable by the circumstances she faced as an unrepresented litigant, that the proceedings were not unreasonably prolonged by her conduct, and that this is a human rights jurisdiction with the considerations that such a jurisdiction brings to bear on applications for costs, are all factors which weigh against a costs order. Weighing all those factors together, we are not satisfied that it would be fair to order the applicant to pay the respondent's costs of the proceedings or of this application, in whole or in part.

Orders

1. The respondent's application for costs is dismissed.

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Decision last updated: 27 June 2011