AHJ v NSW Trustee and Guardian (No 2)
[2012] NSWADT 14
•02 February 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: AHJ v NSW Trustee and Guardian (No 2) [2012] NSWADT 14 Hearing dates: 6 December 2011 Decision date: 02 February 2012 Jurisdiction: General Division Before: Magistrate N Hennessy, Deputy President Decision: (1) The application is dismissed.
(2) The applicants are to pay the second and third respondents' costs of the application for dismissal as agreed or assessed.
Catchwords: Application for dismissal and for costs - whether application for merits review should be adjourned pending outcome of Supreme Court proceedings - application lacks merit and is an abuse of process - costs - whether costs justified because of lack of merit of application or an attempt to deceive the Tribunal Legislation Cited: Administrative Decisions Tribunal Act 1997
NSW Trustee and Guardian Act 2009Cases Cited: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Category: Interlocutory applications Parties: AHJ (Applicant 1)
AHK (Applicant 2)
AHL (Applicant 3)
AHM (Applicant 4)
NSW Trustee and Guardian (Respondent 1)
AIG (Second Respondent)
AIH (Third Respondent)Representation: Counsel
S Adair (Applicants - AHJ, AHK, AHL and AHM)
G Mahony (Second respondent - AIG)
J O'Sullivan (Third respondent - AIH)
JP Gould, Solicitors (Applicants)
Tudehope Lawyers (Second Respondent)
Streeterlaw (Third Respondent)
File Number(s): 113323
REASONS FOR DECISION
Introduction
AIG and AIH, who are the second and third respondents, have applied for the applicants' application to review a decision of the NSW Trustee and Guardian (NSW Trustee) to be dismissed. The ground for dismissal is that the proceedings are frivolous, vexatious or otherwise misconceived and lacking in substance. They have also applied for their costs.
The applicants oppose the application for dismissal and have applied for the proceedings to be adjourned until the outcome of proceedings in the Supreme Court is known. Depending on the outcome of those proceedings, they may or may not proceed with the current application. They say that any costs application should also be deferred until the conclusion of the Supreme Court proceedings.
The decision that is the subject of these proceedings is a decision to authorise a private financial manager, AIH, to exercise the voting rights of an incapacitated woman (Mrs X) in respect of her shareholding in a family company which is the trustee for three family trusts.
I have decided to dismiss the proceedings and make an order that the applicants pay the second and third respondents' costs but only in respect of the application for dismissal.
Background
Mrs X is a 100 year old woman who has dementia. On 9 June 2011 the Guardianship Tribunal made a financial management order in relation to her and appointed an independent accountant, AIH, as her private financial manager. AIH is subject to the direction of the NSW Trustee: NSW Trustee and Guardianship Act 2009, s 66. References to statutory provisions in this decision are references to provisions in that Act unless otherwise stated.
The need for the appointment of a financial manager came about because of a dispute between Mrs X's daughter, AIG, on the one hand, and the wife (AHM) and three adult children (AHJ, AHK and AHL) of her deceased son on the other. A family company, which I shall refer to as X Holdings Pty Ltd is the trustee of three discretionary trusts, Trust No 1, Trust No 2 and Trust No 3. The Directors of X Holdings Pty Ltd at the time of the Guardianship Tribunal proceedings were Mrs X, her daughter AIG and one of her deceased son's children, AHJ.
The three trusts derive income from the rent paid by the tenants and licensees of three properties in New South Wales. The living beneficiaries of each of the trusts are Mrs X, AIG, AHJ, AHK and AHL and their mother, AHM, as well as any religious, scientific, charitable or public institution. The trust deeds confer X Holdings Pty Ltd with the power to distribute income from the trust property among one or more of the beneficiaries as it deems fit and to raise or apply the whole or any part of the trust fund for the maintenance, education, advancement or benefit of any one or more of the beneficiaries.
Mrs X has six shares in X Holdings Pty Limited. The other shareholders are her daughter AIG, who has three shares, and her adult grandchildren, AHJ, AHK and AHL all of whom have one share, giving a total of twelve.
On 4 July 2011, following an order of the Guardianship Tribunal appointing AIH as the private financial manager of Mrs X's estate, the NSW Trustee made directions and authorities pursuant to the NSW Trustee and Guardian Act 2009 to enable AIH to manage Mrs X's financial affairs. On 11 October 2011 the NSW Trustee made an additional direction and authority. That direction and authority authorised AIH to exercise Mrs X's voting rights in respect of her shareholding in X Holdings Pty Ltd. The terms of the additional direction and authority were as follows:
"The Guardianship Tribunal made a financial management order on 9 June 2011 appointing [AIH], referred to as 'the Manager' throughout this document, manager of the Estate of [Mrs X]. The New South Wales Trustee & Guardian gives the following additional direction and authority to the Manager to enable him to manage the Estate. The New South Wales Trustee and Guardian is empowered to issues these directions and authorities under ss 64, 65 and 66 and the New South Wales Trustee & Guardian Act 2009.
16 MISCELLANEOUS
The Manager is authorised to exercise the managed person's voting rights in respect of her shareholdings in [X] Holdings Pty Limited, [X] Holdings Trust No 1, [X] Holdings Trust No 2, and/or [X] Holdings Trust No 3, including but not limited to voting at extraordinary general meetings, voting in favour of a resolution for the appointment of a provisional liquidator and the winding up of the companies."
On 17 November 2011, three of Mrs X's grandchildren, AHJ, AHK and AHL, and their mother, AHM, applied to the Tribunal for the decision of the NSW Trustee to give AIH the additional direction and authority to be reviewed and for a stay of the decision. Mrs X's daughter, AIG, and the private financial manager, AIH, were joined as respondents to those proceedings. The purpose of the stay was to prevent an Extraordinary General Meeting (EGM) of X Holdings Pty Ltd going ahead the following day at which AIH had indicated his intention to exercise his authority to vote as outlined in the additional direction and authority.
The matter was listed for 22 November 2011 but was adjourned to the following day to allow the representatives of AIG and AIH to prepare for the hearing. That fact is relevant to the question of costs. After a hearing on 23 November 2011, the Tribunal refused to stay the decision and gave oral reasons for that decision: AHJ v NSW Trustee and Guardian [2011] NSWADT 311.
The following day, 24 November 2011, an EGM of X Holdings Pty Ltd was held. At that meeting a resolution was passed removing AHJ as a director of X Holdings Pty Ltd and appointing the family accountant, RJ, to the Board. Following the EGM, the Board met and the majority passed resolutions vesting X Holdings Pty Ltd Trusts Nos 1 and 2. It was resolved to distribute the accumulated income of X Holdings Trust No 1 equally among AHJ, AHK and AHM and to sell real property and to distribute the capital as follows:
(1) $500 to Mrs X
(2) $1,115 to AIG
(3) any residue to be divided between AHK, AHJ and AHM.
It was also resolved to distribute the capital and accumulated income of X Holdings No 2 to AIG.
On 25 November 2011 the applicants lodged a caveat over the three properties which comprise the substantial proportion of the assets of the Trusts.
Supreme Court proceedings
On 24 November 2011, the applicants commenced proceedings in the Supreme Court against the same respondents to these proceedings as well as against X Holdings Pty Ltd. Those proceedings have not been resolved. The summons seeks declarations, orders and directions designed to have the effect of setting aside the resolutions made at the EGM and preventing any steps being taken to implement those resolutions. The most significant of the remedies sought in the Supreme Court proceedings can be summarised as follows:
(1) A declaration that X Holdings Pty Ltd has no power as trustee of X Holdings Trust No 1, X Holdings Trust No 2, X Holdings Trust No 3 or any of those Trusts (collectively called the X Trusts) without the consent of all persons named as beneficiaries in the Trust Deeds . . . or an order of the Court . . to adopt or give effect to the . . Asset Distribution Proposal or any similar proposal.
(2) A declaration that the private manager, AIH, has no power:
(a) to vote in favour of the resolutions proposed in the Notice of Extraordinary General Meeting ("the Notice of Meeting") of the members of X Holdings Pty Ltd dated 27 October 2011 in respect of a meeting convened on 24 November 2011; or
(b) to authorise or consent to any distribution of assets of the X Trusts or any of them designed to adopt, or to give effect to, or having the effect of adopting or implementing the proposal for distribution of assets set out in the Asset Distribution Proposal or a similar proposal.
(3) An order that the private manager, AIH, and AIG, by themselves, their servants and agents be restrained from taking any steps for the purpose of:
(a) acting upon any resolution purportedly passed by the EGM of the members of X Holdings Pty Ltd convened pursuant to the Notice of Meeting
(b) authorising or purporting to authorise, X Holdings Pty Ltd to adopt or give effect to the Asset Distribution Proposal or a similar proposal without the consent of all persons named as beneficiaries in the Trust Deeds by which the X Trusts are respectively constituted or an order of the Court conferring upon X Holdings Pty Ltd authority so to do.
(4) An order for the removal of AIH as the manager of the estate of Mrs X and regulation of management of that Estate having regard to the interests of Mrs X as one of several persons named as beneficiaries in the constituent trust deeds of the X Trusts and the legitimate expectations of persons other than Mrs X that management of her Estate will not interfere unduly in administration of those Trusts.
(5) A direction to the NSW Trustee, pursuant to s 61 of the NSW Trustee and Guardian Act for the due management of the estate of Mrs X in relation to:
(a) her interests as a person named as a beneficiary in the constituent Trust Deeds of the X Trusts; and
(b) the Asset Distribution Proposal and any similar proposal.
Prayer 10 seeks "Such further or other relief as the nature of the case may require. . "
Dismissal application
Power to dismiss
The Tribunal has power to dismiss an application in certain circumstances. In particular, pursuant to s 73(5)(g) of the ADT Act :
The Tribunal:
(g) may dismiss at any stage any proceedings before it in any of the following circumstances:
(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
Jurisdiction and standing
The applicants applied to the Tribunal for a merits review of the decision to give AIH the additional direction and authority. The Tribunal has jurisdiction to review that decision: s 70.
(1) An application may be made to the ADT for a review of a decision by the NSW Trustee under this Part in relation to the functions of a person appointed as a manager.
(2) Subsection (1) does not apply if the decision by the NSW Trustee was made in accordance with a direction given by the Supreme Court to the NSW Trustee.
(3) An application under this section may be made by:
(a) the person appointed as manager, or
(b) any other person who, in the opinion of the ADT, has a genuine interest in the matter to which the NSW Trustee's decision relates.
I am satisfied that the applicants have a genuine interest in the matter to which the NSW Trustee's decision relates. If this matter were to proceed to a hearing, the issue would be whether or not the NSW Trustee made the "correct and preferable" decision when giving the additional direction and authority: ADT Act , s 63.
The additional direction and authority authorised AIH to vote at the EGM and any other meeting of X Holdings Pty Ltd. The powers of the NSW Trustee to give directions to managers are set out in the Act. Sections 64, 65 and 66 are the provisions that the NSW Trustee relied on in making the additional direction and authority. The NSW Trustee has power, pursuant to s 66(2) of the Act, to authorise a manager to vote or act by proxy at meetings of creditors or shareholders, whether the company is in liquidation or not: s 66(2) and s 16. As the NSW Trustee's representative, Ms Phang, pointed out, that was the kind of authority and direction that the NSW Trustee gave to AIH. The NSW Trustee had the power to give the additional direction and authority. Consequently it cannot be said that the decision was "incorrect" in the sense that it was unlawful. The only other basis on which it could be impugned is that it was not the "preferable" decision.
Need for additional direction and authority
The Guardianship Tribunal recognised the need for a manager to make substitute decisions for Mrs X when its said in its reasons for decision:
The Tribunal was clear that someone needs the explicit role of watching out for [Mrs X's] interests and exercising her rights in relation to the [X] Holdings Trusts and [X] Holdings Pty Ltd.
The additional direction and authority was necessary because there was a deadlock in the negotiations between AIH and the applicants in relation to the management of the X Holdings Pty Ltd. It is apparent from the statements of AHJ and AHM that AIH had been trying to resolve the situation by negotiating with the parties but that agreement could not be reached.
Failure to consult
Section 72 requires that the NSW Trustee determine whether to consult with relatives of the subject person before taking any action in respect of the estate:
(1) The NSW Trustee must take the following steps before taking any action in respect of the estate of a managed person:
(a) the NSW Trustee must determine whether the action is of such a nature that the person or a relative or relatives of the person should be consulted about the action,
(b) if the NSW Trustee determines that consultation should take place, the NSW Trustee must cause to be taken all steps that are reasonably practicable in the circumstances to give notice to the person or the relative or relatives of the person of the action,
(c) the NSW Trustee must consider any submissions made in response to the notice within the time specified in the notice.
(2) In determining whether consultation is required in relation to the action, the NSW Trustee must consider all relevant circumstances and matters, including (without limitation) the following:
(a) the value of the estate,
(b) the value and nature of any particular property proposed to be affected,
(c) the consequences of the proposed action,
(d) the necessity or practicality of the proposed action,
(e) the extent (if any) to which the estate may be prejudiced by any delay in the proposed action being taken.
The applicants submitted that the NSW Trustee's decision was flawed because of the failure to consult with them before giving the additional direction and authority. Ms Phang, representing the NSW Trustee, conceded during the course of the stay application that there had been no consultation with any of the applicants prior to the additional authority and direction being given. The inference is that the NSW Trustee took the view that the nature of the decision was such that no consultation was required.
It was inevitable that the applicants would have opposed the NSW Trustee giving the additional direction and authority to AIH had they been consulted because the efforts of AIH to resolve the conflict had not been successful.
Misconceived application
As submitted by the second and third respondents in the proceedings relating to the stay application, the NSW Trustee did not dictate the way in which AIH should exercise Mrs X's voting rights. The Tribunal held, when rejecting the application for a stay of the decision, that the application had been brought for an improper purpose, namely to restrain the majority of shareholders of X Holdings Pty Ltd from exercising their rights to vote at meetings including voting to remove and replace directors. The applicants attempted to restrict AIH's capacity to exercise that decision making authority through these proceedings.
If the applicants disagreed with how AIH intended to vote, the appropriate course was not to seek a review of the NSW Trustee's decision to give the additional direction and authority. The applicants should either have appealed against the Guardianship Tribunal's decision or sought a remedy in the Supreme Court.
At the stay hearing, the Tribunal also rejected a submission by the applicants that AIH had no power to vote at the meetings of X Holdings Pty Ltd, and particularly at the EGM, because his role was limited to making decisions on behalf of Mrs X which affected her, and her alone. In the stay decision at [27], the Tribunal found that that proposition was untenable.
Abuse of process
Apart from the lack of merit to the application, the second and third respondents submitted that another reason for dismissal was that since the applicants have commenced proceedings in the Supreme Court, the continuation of the application in the Tribunal is an abuse of process.
The applicants conceded that the Supreme Court proceedings involve the same matters that are the subject of their application for review, that is the decision of the NSW Trustee to give AIH the additional direction and authority. In particular the applicants have asked the Supreme Court to give directions to the NSW Trustee for the due management of Mrs X's estate pursuant to s 61 of the NSW Trustee and Guardian Act. According to the applicants, the outcome of the Supreme Court proceedings will affect the result of the review application and vice versa.
AIH's representative submitted that by attempting to keep the Tribunal proceedings on foot, the applicants are engaged in forum shopping. He said that there is no utility in the Tribunal proceedings being adjourned in circumstances where proceedings have been commenced in the Supreme Court and the remedies available will, if successful, undo the effect of the NSW Trustee's additional direction and authority. That is the same outcome as the applicants are seeking to achieve in these proceedings.
AIH's representative also submitted that any order of the Supreme Court could amount to res judicata or give rise to an Anshun estoppel: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. The principles relating to Anshun estoppel do not apply to this case because the applicants have put their whole case to the Supreme Court. This is not a situation where the applicants have brought part of their case in the Supreme Court and part of their case in the Tribunal. They have sought all available remedies in the Supreme Court.
Nor do the principles of res judicata strictly apply. I accept the applicants' submission that this Tribunal has exclusive jurisdiction to conduct a merits review of the NSW Trustee's decision to give AIH the additional direction and authority. The Supreme Court cannot rule on that precise issue. However, the nature and breadth of the remedies sought in the Supreme Court, including any "other relief as the nature of the case may require" means that the Supreme Court is in a position to comprehensively consider and adjudicate upon the applicants' grievances. In those circumstances, the continuation of these proceedings is, in effect, an abuse of process.
Because the application lacks substance and continuation of the proceedings is an abuse of process the application should be dismissed.
Costs application
Principles
The second and third respondents sought their costs of the adjournment on 23 November 2011, of the stay application on 24 November and of the dismissal application on 6 December 2012. The applicants submitted that the question of costs should be deferred until the conclusion of the Supreme Court proceedings. Since I have decided to dismiss the proceedings before this Tribunal it is appropriate to determine the application for costs at this stage.
In proceedings before the Tribunal, the general rule is that each party bears their own costs: ADT Act , s 88. A party may be ordered to pay costs if satisfied that it is fair to do so.
88 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.
Costs of the adjournment
The second and third respondents seek their costs of the proceedings being adjourned for one day to 24 November 2011. The respondents applied for and were granted an adjournment because they had received notice of the hearing the previous day and had not had sufficient time to prepare.
The applicants filed their substantive application and the stay application naming the NSW Trustee as the respondent on 17 November 2011. On 18 November the Tribunal wrote to the applicants' solicitor advising that the stay application was listed for hearing on 22 November. The Tribunal also contacted the NSW Trustee's office and requested that they contact other parties who may have a genuine interest in the application. The NSW Trustee's office agreed to do so.
Given the fact that an EGM had been set down for 25 November, the application filed on 17 November had to be listed urgently. The second and third respondent submitted that the applicants should have named them as parties and served them with the application.
The parties to an application for a reviewable decision are the person who has applied for the decision to be reviewed, the administrator who made the decision and any person who has been made a party by order of the Tribunal: ADT Act , s 67(2). An applicant for review cannot join a party without an order from the Tribunal. Consequently, the applicants cannot be criticized for failing to advise the second and third respondents of the application. I make no costs order in relation to the adjournment.
Costs of the stay application
Basis for application
The second respondent relied, in particular, on s 88(1A)(a)(v) or (vi) (attempting to deceive another party or the Tribunal or vexatiously conducting the proceedings) and s 88(1A)(c) (the relative strengths of the claims including whether a party has made a claim that has no tenable basis in fact or law). The second respondent sought costs on an indemnity basis saying that the underlying application was totally devoid of merit, the applicants failed to bring relevant documentation to the attention of the Tribunal and the real purpose of the application was self-interest not the interests of Mrs X.
Attempting to deceive
In relation to the assertion that the applicants attempted to deceive another party or the Tribunal, the second respondent said that the applicants filed evidence which did not include information about a resolution of X Holdings Pty Ltd which purported to forgive a debt owed to the applicants. The background to that submission is contained in the Tribunal's decision on the stay application at [28] - [31]:
The evidence discloses that there has been a long history of dispute between AIG on the one hand and the three siblings who are three of the applicants in these proceedings on the other. There was evidence led of a resolution that the directors had made attached to AHK's statement dated 23 November 2011. At a director's meeting on 21 November 2011, two days ago, it was resolved
1. "That the company release the family members of [AHM's deceased husband] (including but not limited to AHK, AHJ and AHL) and the Estate of [AHM's deceased husband] from any loans made to such entities by the company in its capacity as Trustee for the [X] Holdings Pty Limited Trust No 1, [X] Holdings Pty Limited Trust No 2 and [X] Holdings Pty Limited Trust No 3.
2. That the company executed the deed of release."
29 A deed of release has been executed on 21 November 2011 and is signed by AHK and AHJ.
30 Mr Muddle, representing AIG, pointed out that these debts have now been waived and despite Mr McGrath giving an undertaking to the Tribunal that that the first resolution would not be acted on, I accept Mr Muddle's submission that it remains the case that the debts are forgiven in law and there can be no effect to any undertaking that Mr McGrath gives in that regard.
31 The situation is that the applicants currently have control of the Board's decision making. Given the recent resolution which favours their interests, the balance of convenience appears to me to rest with the respondent in particular AIG as well as with Mrs X that her voting rights be exercised in a way which accords with her welfare and interests.
The second respondent's representative also submitted that the failure to provide a copy of the Guardianship Tribunal's reasons as well as the resolution referred to above, " may he be suggestive of an attempt to deceive the Tribunal."
I do not accept that the failure of the applicants to provide evidence of the resolution referred to above was an attempt to deceive the Tribunal. The onus was on the applicants to establish that a stay was justified. They adduced evidence in support of that application. There was nothing dishonest about the applicants' failure to adduce evidence in relation to the resolution. The same observation applies to the failure to provide the Tribunal with a copy of the Guardianship Tribunal's decision.
Relative strengths
It was said that the applicants filed an application that was designed to protect their interests only. They neglected to consider or accept the clear reasons and concerns expressed by the Guardianship Tribunal being to ensure that someone had "the explicit role of watching out for [Mrs X's] interests and exercising her rights in relation to the X Holdings Trusts and X Holdings Pty Ltd." On that basis it was said that the applicants' claim had no tenable basis in fact or law.
The Tribunal concluded in the decision relating to the stay application, that the applicants had not made out a prima facie case. The Tribunal also concluded that the application had been made for an improper purpose, namely to circumvent the effect of the Guardianship Tribunal's decision. The proper course would have been to appeal against that decision. Alternatively, the applicants should have applied to the Supreme Court, rather than this Tribunal, for both substantive and interim relief.
Given the Tribunal's findings and decision in relation to the stay application, it is clear that its view was that the application lacked merit. The Tribunal also found at [27] that the submission by the applicants that the private financial manager had no power to make substitute decisions which affected parties other than Mrs X was untenable.
The relative strength 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 is a factor that the Tribunal may take into account when deciding whether to award costs: ADT Act , s 88(1A)(c). That is not to say that a party with a weak, or even an untenable, case must necessarily bear the costs of the other party. The Tribunal has discretion to award or not to award costs if it is satisfied that it is fair to do so taking into account various matters. In this case, the applicants applied to the Tribunal for a stay of a decision which the Tribunal had jurisdiction to review. The Tribunal decided not to grant a stay but the application was not so obviously unmeritorious that a costs order should be made.
Costs of the dismissal application
The dismissal application is in a different category. After the Tribunal made its decision and gave oral reasons for not granting a stay, the applicants applied to the Supreme Court for relief. Nevertheless, they submitted to the Tribunal that the proceedings should remain on foot pending resolution of the Supreme Court proceedings. That application, in my view, was untenable and an abuse of process. It was untenable because a decision had been made that the respondent's had not made out a prima facie case. It was an abuse of process because the Supreme Court is in a position to comprehensively consider and adjudicate upon the applicants' grievances. Those circumstances justify a standard costs order in relation to the dismissal application. There is no justification for costs to be awarded on an indemnity basis.
Orders
(1) The application is dismissed.
(2) The applicants are to pay the costs of the second and third respondents of the application for dismissal as agreed or assessed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
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Decision last updated: 02 February 2012
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