AX & AY v Wesley Dalmar and ors

[2008] NSWADT 231

CITATION:

AX & AY v Wesley Dalmar and ors [2008] NSWADT 231

DIVISION:

Community Services Division

PARTIES:

APPLICANT
AX & AY

FIRST RESPONDENT
Wesley Dalmar

SECOND RESPONDENT
Director General, Department of Community Services

FILE NUMBER:

074019

HEARING DATES:

25 March 2008

SUBMISSIONS CLOSED:

19 June 2008

 
DATE OF DECISION: 

20 August 2008

BEFORE:

Britton A - Deputy President; Foreman P - Non Judicial Member; Goodman-Delahunty J Dr - Non Judicial Member

LEGISLATION CITED:

Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997
Community Services (Complaints, Reviews and Monitoring) Act 1993

CASES CITED:

Sebastian v Rail Infrastructure Corporation & anor (EOD) [2006] NSWADTAP 44
McGuirk v University of New South Wales (GD) [2006] NSWADTAP 39
Raethel v Director-General, Department of Education and Training [2000] NSWADT 56

REPRESENTATION:

APPLICANT
H Muggenthaler, solicitor
B Bulger, agent

FIRST RESPONDENT
E Crawford, solicitor
R Patterson, solicitor

SECOND RESPONDENT
D Wells, solicitor

ORDERS:

Wesley Dalmar is to pay one half of the applicants’ costs up to and including 25 March 2008, in a sum agreed or assessed on a party and party basis.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,


(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,


(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983


(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(a) who appears as a witness before the Tribunal in any proceedings, or


(b) to whom any proceedings before the Tribunal relate, or


(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1 In June 2007, the applicants, a married couple, applied to the Administrative Decisions Tribunal for review of a decision made by Wesley Dalmar to remove from their care a 12-year-old boy who had lived with them for approximately seven years. After numerous directions hearings and two mediation sessions, the applicants ultimately decided to withdraw their application.

2 The Minster for Community Services has parental responsibility for the child, who is the subject of the substantive application, until he reaches 18 years of age. He has been assessed as having a severe to profound developmental delay. Wesley Dalmar is the designated agency charged with responsibility for supervising his placement in out-of-home care (see ss 139 and 140 of the Children and Young Persons (Care and Protection) Act 1998 (‘Care and Protection Act’). The applicants were ‘authorised carers’ responsible for the day-to day-care of the subject child until he left the placement in early 2007 (see s 137 of the Care and Protection Act).

3 These reasons address an application for costs made by the applicants against the first respondent, Wesley Dalmar. Wesley Dalmar opposes the application. The other parties to these proceedings, namely the Minister for Community Services and the child, made no submissions about the application.

4 In these reasons, to protect the privacy of the applicants and the child, the applicants will be referred to by the pseudonyms, AX and AY. As an added precaution we have omitted any information that might inadvertently identify the applicants or the child.

Relevant legislative provisions

5 The power to award costs in proceedings that relate to the review of a decision to remove a child from the care of authorised carers is contained in s 34 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (‘the Review Act’), which provides:

34 Costs

(1) The Tribunal may, if in the particular circumstances of the case it is of the opinion that it is appropriate to do so, make orders with respect to the payment of costs of proceedings before it.

(2) Any such costs may be recovered as a debt.

(3) A certificate purporting to be signed by the Registrar of the Tribunal and containing a statement as to any matters relating to the award of costs under this section is admissible as evidence of those matters.

(4) This section applies despite the provisions of section 88 (Costs) of the Administrative Decisions Tribunal Act 1997.

6 We are unaware of any reported cases which have considered this provision.

7 Section 34 is in similar terms to the costs provision contained in the Administrative Decisions Tribunal Act 1997 (Tribunal Act). Under that Act ‘special circumstances’ must be established before costs can be awarded. Section 88(1) states,

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 there are special circumstances warranting an award of costs.

8 The Tribunal’s Practice Note No. 12 (October 2006), provides the following examples of ‘special circumstances’ that may justify a costs order under s 88 of the Tribunal Act:

whether a party has conducted the proceeding in a way that disadvantaged another party to the proceeding by conduct such as:

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

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(iv) causing an adjournment;

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

(vi) vexatiously conducting the proceeding;

whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding.

9 A similar provision to that contained in the Review Act is to be found in the Anti-Discrimination Act 1977:

110 Costs

(1) Each party to an inquiry is to pay his or her own costs, except as provided by this section.

(2) If the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit.

10 Of these two provisions, that contained in the Anti-Discrimination Act is the closest to the corresponding provision in the Review Act. Both give the Tribunal the discretion to award costs where the Tribunal believes that the circumstances warrant it doing so. Given the similarities, it is useful to look at those decisions which have examined the costs provisions in the Anti-Discrimination Act.

11 In Sebastian v Rail Infrastructure Corporation & anor (EOD) [2006] NSWADTAP 44 at [42] an Appeal Panel of the Tribunal set out the principles governing the cost provision contained in the Anti-Discrimination Act:

(1) section 110 creates a presumption that each party will pay his or her own costs and a discretion to award costs: Cleary Bros (Bombo) Pty Ltd -v Cvetkovski (EOD) [2001] NSWADTAP 10 at paragraphs 63-65;

(2) this discretion must be exercised judicially, and no authority or rule can determine whether in any particular case an order should be made;

(3) previous cases relating to costs can only provide an indication of the kinds of circumstances that may attract a costs order;

(4) as a general proposition, a combination of circumstances is required in order to justify an award of costs. See, for example, Russell v The Commissioner of Police, NSW Police Service and Others [2002] (No.2) NSWADT 252; Peck v Commissioner of Corrective Services (No. 2) [2002] NSWADT 244; V v Y & Anor; X v Y & Anor [2002] NSWADT 7; Duggan v Shore Inn Pty Limited (1993) EOC 92-483; Willis v State Rail Authority of New South Wales (No. 3) (1992) EOC 92-456; Holdaway v Qantas Airways Limited (1992) EOC 92-430; Squires v Qantas Airways Ltd (1985) EOC 92-135. In combination with other factors, the kinds of circumstances which have been regarded in previous cases as justifying an award of costs against an applicant include:

(i) the manner in which the applicant has conducted the proceedings, in particular whether the proceedings were vexatious;

(ii) whether the proceedings determine or clarify an important question of law;

(iii) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding; and

(iv) where an appeal is lodged and the Appeal Panel considers the appeal was without any real prospect of success.

12 To put the cost application in context, it is necessary to sketch in the history to the substantive proceedings.

13 The trigger for the decision to remove the child was a meeting at the applicants’ home in May 2007. At that meeting Wesley Dalmar caseworkers observed AY treat the child in a manner they considered inappropriate. They made a report to their manager who in turn made a report to DoCS. The child was removed the following day. AY disputes the account given by the caseworkers and strenuously denies any suggestion that he mistreated the child.

14 Shortly after that incident the child was removed and the applicants applied to the ADT for a review and stay of that decision.

15 The stay application was listed for determination on 2 July 2007. At that hearing all parties, including the applicants, were represented. The stay was granted and subsequently the child returned to live with the applicants. Following that hearing, the parties agreed that the child should be referred to an independent psychologist for assessment.

16 When Dr Christopher Lennings, the psychologist appointed to conduct the assessment, arrived at the applicants’ home they refused to meet with him, acting on legal advice. Apparently at that stage, the terms of that referral had not been settled.

17 In a directions hearing held on 13 September 2007, all parties agreed to participate in mediation. Following directions made on that day, Wesley Dalmar provided the applicants with a statement of reasons on 3 October 2007.

18 At a mediation held on 22 October 2007, it was agreed that the child would be referred to Associate Professor Susan Hayes for assessment and the terms of that referral were broadly settled. The parties also agreed to participate in a further mediation once Associate Professor Hayes’ report was available.

19 At a directions hearing on 10 December 2007, the applicants and the Guardian ad litem asserted that Wesley Dalmar had not complied with its obligations under the Tribunal Act. Wesley Dalmar’s representatives undertook to obtain further instructions on this issue. (Section 58 of the Tribunal Act requires an administrator whose reviewable decision is the subject of an application to the Tribunal for review, to lodge with the Tribunal, within 28 days of receiving notice of that application, a copy of every document in their possession, or under their control, that they consider to be relevant to the determination of that application.)

20 At a subsequent directions hearing held on 18 December 2007, Wesley Dalmar was directed to lodge all section 58 documents by 31 December 2007. Various other directions were made including the scope of documents to be provided to Associate Professor Hayes.

21 At a directions hearing on 25 March 2007, the Solicitor representing the applicants, Ms Muggenthaler, advised that she would no longer be doing so and made an application for costs and brief submissions in support. Wesley Dalmar opposed that submission and its Solicitor made brief submissions in reply. The Tribunal constituted by Deputy President Britton, sitting alone, reserved any decision on costs until the finalisation of the application. The parties nonetheless agreed that they were willing to attempt to settle the matter and a mediation was held that afternoon. Agreement was reached and consent orders entered in the following terms:

The decision made by the Tribunal on 2 July 2007 [to stay the removal of the child] is vacated subject to all parties agreeing to continue to participate in good faith discussions about the proposed transition plan for [the child].

The parties note that this does not prevent the applicants requesting the Tribunal to determine their application for review of the original decision made by Wesley Dalmar to remove [the child] from their care.

22 Shortly after the mediation, the child was moved to an alternative placement.

23 On 1 April 2008, the applicants wrote to the Tribunal and requested that their application for review be listed for determination.

24 A directions hearing was held on 17 April 2008 at which the matter was listed for hearing and a timetable set for the exchange of documents. All parties except the applicants were legally represented. The Tribunal made various directions and noted that Wesley Dalmar had undertaken to provide all s 58 documents by the end of that week. The matter was listed for a three-day hearing.

25 At the commencement of that hearing, Wesley Dalmar moved for the proceedings to be dismissed on the ground that it was now not open to the Tribunal to revoke the original decision and return the child to the care of the applicants, as their carers’ authorisation had been revoked. (Wesley Dalmar revoked the applicants’ carer authority a few days before the commencement of the hearing.) It is unlawful for a person who is not an authorised carer to care for a child in out-of-home care: s 136 of the Care and Protection Act. Wesley Dalmar’s dismissal application was opposed by the Minister and Guardian ad litem and ultimately dismissed.

26 Shortly after Wesley Dalmar’s strike out application was determined, the applicants announced that they had decided to withdraw their application for review of the decision to remove the child.

The costs application

27 Ms Muggenthaler submitted that the Tribunal should exercise its discretion to award costs against Wesley Dalmar, because, among other things, the applicants had incurred significant and unnecessary costs as a consequence of its conduct of the proceedings. She contended that had Wesley Dalmar complied in a timely fashion with its obligations under the Tribunal Act to provide the applicants with written reasons for its decision and to lodge with the Tribunal all documents relevant to that decision, much of the work she had been obliged to undertake on their behalf, in the way of repeated requests for documents and particulars, could have been avoided. By way of example, she pointed to her personal attendance at the office of Wesley Dalmar to obtain a number of section 58 documents. She asserted that the numerous direction hearings were necessitated largely because of Wesley Dalmar’s failure to comply with directions and its obligation under the Tribunal Act.

28 She claimed that Wesley Dalmar’s conduct in relation to the referral to Dr Lennings had also contributed to an increase in the applicants’ costs. She claimed that despite a great deal of time spent discussing the terms of the referral, Wesley Dalmar failed to disclose them or the scope of documents provided to Dr Lennings, despite undertaking to do so.

29 She pointed out that her clients were low-income earners and without the means to fund protracted proceedings. She contended that as a consequence of Wesley Dalmar’s conduct they had exhausted their funds and were unable to retain legal representation. This, she contended, placed the applicants at a disadvantage as, in her opinion, they were not sophisticated people and would have great difficulty in understanding or participating in the proceedings.

30 Ms Crawford for Wesley Dalmar conceded that there had been a delay in providing documents but argued that this was in part the consequence of the office responsible for the supervision of the child being damaged by flood in the first week of June 2007. As a consequence, the office was forced to operate out of the homes of staff members for a couple of months.

31 On the final day of the hearing, Wesley Dalmar was invited to notify the Tribunal within seven days if it stood by its earlier position in respect to costs. Wesley Dalmar notified the Tribunal that its position in respect to costs remained unchanged and provided written submissions in support. We will return to address those submissions.

Obligations of administrators under the Tribunal Act

32 Given the applicants’ claim that Wesley Dalmar failed to comply with its statutory obligations, it is necessary to set out the provisions that apply once an application for review of a reviewable decision has been made.

33 Part 2 of Chapter 5 of the Tribunal Act imposes a number of obligations on a person who makes a reviewable decision, such as a decision to remove a child from the care of authorised carers. The Tribunal Act refers to the person who makes the reviewable decision as ‘the administrator’. An administrator who makes a reviewable decision is required to give any interested person notice, in writing of that decision.

48 Notice of decision and review rights to be given by administrators

(1) An administrator who makes a reviewable decision must take such steps as are reasonable in the circumstances to give any interested person notice, in writing, of the following:

(a) the decision, and

(b) the right of the person to have the decision reviewed.

34 Section 49 provides that if an administrator makes a reviewable decision, an interested person may make a written request to the administrator for the reasons for the decision. As soon as practicable, but no later than 28 days after receiving such a request, the administrator must prepare a written statement of reasons for the decision and provide it to the person who requested the reasons. Section 49(3) provides that the statement must contain:

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the administrator’s understanding of the applicable law,

(c) the reasoning processes that led the administrator to the conclusions the administrator made.

35 If an interested person has requested a statement of reasons under section 49 but not received it within the period specified by or under that section, the Tribunal may (on the application of the person) order the administrator concerned to provide the statement of reasons within such time as may be specified in the order: s 52(1).

36 Once an interested person has applied to the Tribunal for review of a reviewable decision, the administrator is required to lodge various documents with the Tribunal. Section 58 provides:

58 Duty of administrator to lodge material documents with Tribunal where decision reviewed

(1) An administrator whose reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal:

(a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and

(b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.

(2) If the applicant has not been given a statement of reasons under section 49, the Tribunal may direct that a copy of the statement of reasons lodged with the Tribunal under subsection (1) (a) be given to the applicant within such period or periods as the Tribunal directs.

(3) If the Tribunal or President considers that a party to the proceedings would or might suffer hardship if the period of 28 days provided by subsection (1) is not shortened or extended, the Tribunal or President may, at the request of the party, make an order directing that the copies referred to in that subsection be lodged with the Tribunal within such shorter or extended period as is specified in the order.

(4) If the Tribunal or President considers that other particular documents (or that other documents included in a particular class of documents) may be relevant to the determination of the application, it may cause a notice in writing to be served on the administrator:

(a) stating that the Tribunal or President is of that opinion, and

(b) directing the administrator concerned to lodge with the Tribunal, before a date specified in the notice, a copy of each of those other documents that is in the possession, or under the control, of the administrator.

(5) the Registrar of the Tribunal is to grant reasonable access to the applicant in the proceedings to any copy of a document lodged under this section by an administrator. Reasonable access includes, but is not limited to, enabling the applicant to make a photocopy of a document during ordinary business hours.

37 The objects of the Tribunal Act (s 3) include:

(e) to require administrators making reviewable decisions to notify persons of decisions affecting them and of any review rights they might have and to provide reasons for their decisions on request,

(f) to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs,

(g) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales.

38 The issue to be determined is whether the circumstances of these proceedings warrant a departure from the presumption that each party will bear its own costs. The main argument advanced by the applicants is that because of the conduct of Wesley Dalmar the proceedings became protracted and they incurred additional costs they could ill afford to meet.

39 It is submitted for Wesley Dalmar that the costs application should be refused for the following reasons:

Wesley Dalmar is part of a public benevolent institution;

Had the applicants allowed there to be a full investigation of the 2007 allegations the need for an application to the Tribunal would have been obviated;

Had the applicants accepted the findings of Associate Professor Hayes’ there would have been no need for the application to go to hearing;

Wesley Dalmar had to bear the costs of one failed assessment and half the costs of Professor Hayes’ report, together with their own legal costs only to have the applicants withdraw their application on the day of the hearing;

There is no evidence that Wesley Dalmar’s conduct contributed to any unnecessary escalation in the applicants’ costs.

40 That Wesley Dalmar is a benevolent institution dependent on donations and public funding does not, of itself, shield it from a costs order. The ultimate question is one of fairness and the dictates of justice in all the circumstances.

(ii) Investigation of the 2007 allegations

41 Wesley Dalmar, in its written submissions, impliedly criticise the applicants for the timing of their application to the Tribunal and suggest that had they awaited the outcome of a ‘full investigation’ into the 2007 allegations, the need for a hearing would have been obviated. The decision to remove the child is characterised as ‘interim’.

42 The Tribunal Act, read together with the Care and Protection Act, gives authorised carers an unfettered right to apply for external review of the decision to remove a child who has been placed in their care. The applicants exercised that right in an environment where they were unclear about the status of the decision and concerned that the child with whom they had formed a deep attachment might not be returned to their care. They sought and were granted leave for the application to be determined notwithstanding that an internal review had not been conducted (s 55(2)(c) of the Tribunal Act).

43 While officers of Wesley Dalmar might have considered the offending decision to have been interim in nature that did not deprive the applicants of their review rights. The Tribunal has power to review a decision ‘to remove from an authorised carer the responsibility for the daily care and control of a child’: s 245(1)(c) of the Care and Protection Act. It has not been suggested that the decision to remove the child was not caught by that provision.

44 The legislative context is one where administrative review is designed to promote openness and transparency in decision-making. One of the objects of the Tribunal Act is to ‘foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs’ (s 3(f)). We do not accept, as Wesley Dalmar suggests in its written submissions, that the applicants in promptly exercising their right to have the offending decisions reviewed, acted inappropriately.

45 In our view, the timing of the initiating application to the Tribunal is not relevant to the determination of the applicants’ costs application.

(iii) Withdrawal of application

46 Wesley Dalmar contends that if the applicants had accepted the recommendations of Associate Professor Hayes and withdrawn from the proceedings when her opinion became available, the additional costs it incurred after the second mediation could have been avoided.

47 It is to be noted that there is no application for costs beyond the period following the second mediation when Associate Professor Hayes’ report was available. Nonetheless we accept, as we understand Wesley Dalmar to contend, that all of the circumstances including the applicants’ conduct in the period not the subject of their costs application should be taken into account in determining the costs application.

48 The parties were not obliged to accept the opinion of Associate Professor Hayes. The question of whether Wesley Dalmar made the correct and preferable decision in removing the child was one for the Tribunal to determine having regard to all the evidence including any expert opinion the parties elected to rely on.

49 In those jurisdictions where the usual rule as to costs apply, when a party discontinues an action against another party, it can expect that a costs order will be made against it (unless terms of settlement dictate otherwise). However in an administrative review jurisdiction, the act of discontinuance of itself does not rebut the presumption against costs.

50 There can be no argument that all parties would have been spared additional costs had the applicants given notice of their intention to withdraw from the proceedings. However, this is but one of the factors to be taken into account in the exercise of our power to award costs.

(iv) Aborted assessment

51 While it was on legal advice, the applicants’ decision to back out of the appointment with Dr Lennings meant that Wesley Dalmar incurred unnecessary costs.

52 The parties vigorously contest who was responsible for Dr Lennings being turned away on the day of the proposed assessment. Both assert that the other failed to comply with undertakings previously given. On what is before us, it is not possible to determine who was responsible for the unfortunate circumstances that led to Dr Lennings being unable to complete the assessment and Wesley Dalmar in turn incurring unnecessary costs.

(v) Delay

53 It is conceded for Wesley Dalmar that some of the delay in the matter ultimately reaching hearing can be attributed to its actions in relation to the provision of the statement of reasons and s 58 documents. It is argued that its conduct was not unreasonable in the circumstances and that the applicants have failed to demonstrate how its action which contributed to the delay contributed to any increase in their costs.

54 That Wesley Dalmar failed to comply with some of its statutory obligations is uncontested. First, it did not notify the applicants in writing of either the decision itself or their right to have it reviewed. Second, it did not lodge all relevant documents within the timeframe mandated by the legislation. Third, it did not provide a statement of reasons until four months after the decision was made.

55 The parties agree that the proceedings were protracted but disagree on the causes. It seems to us that a combination of factors was responsible. While it is debateable whether the delay in providing the s 58 documents and reasons for decision contributed to the length of the proceedings, it is apparent that it became the subject of numerous discussions between the parties and occupied a great deal of time in the many direction hearings held after the stay was granted.

56 Had those obligations been met in a timely fashion, it might well be that the matter would have resolved far more cheaply and quickly.

57 A costs order is compensatory, not punitive: McGuirk v University of New South Wales (GD) [2006] NSWADTAP 39 at [13]. It is not a form of damages. It cannot be used as a ‘sanction to punish agencies for poor administration’: Raethel v-Director-General, Department of Education and Training [2000] NSWADT 56 at [57]. However where one party seeks or obtains an indulgence from the Tribunal and, in obtaining it, forces its opponent to incur costs that would otherwise not have been necessary or reasonable, it may well be appropriate, regardless of any other circumstances, to award costs against the indulged party.

58 Here, although Wesley Dalmar was not deliberate or negligent in delaying meeting its obligations under the Tribunal Act, it obtained an indulgence to which it was not entitled by statute, namely, time. Wesley Dalmar contends that the applicants have not demonstrated that the delay added to their costs. In our view, that submission cannot be given great weight. It is, unfortunately, notorious – and indeed a matter of commonsense – that whenever proceedings are delayed, costs are added to, because of the double-handling effect of lawyers having to refresh their memories of files, of having to take further instructions (sometimes in a repetitious fashion), of having to write further letters and so on.

59 That one party caused another to incur additional costs, of itself, does not rebut the presumption against costs enshrined in s 34 of the Review Act. Nonetheless, it is a relevant factor to take into account in the exercise of our discretion to award costs.

60 The difficult situation that confronted Wesley Dalmar in the second half of 2007, namely operating out of an office partly destroyed by flood, is relevant to determining whether a costs order is appropriate. We have also had regard to Wesley Dalmar’s status as a public benevolent institution. Many deserving calls are made on its services and its resources are limited. Against this we must have regard to the fact that the applicants are persons of limited means and capacity to represent themselves.

61 In our view, taking into account all the circumstances, it would be fair and reasonable to order Wesley Dalmar to pay some of the applicants’ costs incurred up to 25 March 2008. It is difficult to apportion with any precision what additional costs were incurred as a result of Wesley Dalmar’s conduct in these proceedings. Having regard to all relevant circumstances including the conduct of the applicants themselves we have decided that Wesley Dalmar should pay half of the applicants’ costs for the period claimed.

Order

Wesley Dalmar is to pay half of the applicants’ costs, up to and including 25 March 2008, in a sum agreed or assessed on a party and party basis.