Baker and Bovie (SSAT Appeal)

[2009] FMCAfam 569

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BAKER & BOVIE (SSAT Appeal) [2009] FMCAfam 569

CHILD SUPPORT – Appeal from SSAT– determining income amounts – meaning of ‘just and equitable’ – relevant considerations.

Child Support (Assessment) Act 1989, ss.117(4)(g), 117(7B)
Family Law Act 1975

Bennett v Bennett (1991) FLC ¶92-191; (1990) 14 Fam LR 397; (1990) 102 FLR 370
Conway v Child Support Registrar& Clivery (SSAT Appeal) (No.2) [2008] FMCAfam 985
Minister for Immigration  v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 9 Leg Rep 2; (1996) 41 ALD 1

Applicant: MR BAKER

Respondent: MS BOVIE

File Number: MLC 11672 of 2008

Judgment of: Riethmuller FM

Hearing date: 24 April 2009

Date of Last Submission: 24 April 2009

Delivered at: Melbourne

Delivered on: 24 April 2009

REPRESENTATION

Counsel for the Applicant: Mr N. Sciola

Solicitors for the Applicant: NJS Legal

Counsel for the Respondent: Mr T.J. Puckey

Solicitors for the Respondent: Pearsons Barristers & Solicitors

ORDERS

1. The appeal be dismissed.

2. The appellant pay the respondent's costs fixed at $6125.

IT IS NOTED that publication of this judgment under the pseudonym Baker & Bovie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 11672 of 2008

MR BAKER

Applicant

And

MS BOVIE

Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

1. This is an appeal against a decision of the Social Security Appeals Tribunal handed down on 1 December 2008.  The matter before the tribunal is a long-running dispute with respect to the appropriate rates of child support through various periods from 2005 to 2008. 

2. The matter has had a lengthy history before various officers of the Child Support Agency.  The initial departure process, departing from a formula assessment issued under Part V, concluded on 3 November 2006 with an objection decision, setting the annual rate of child support through the period of mid-2006 to the end of 2008 at a sum that was in the vicinity of $20,000 per annum.  This was a sum reflected in a formula assessment based on income findings made by the objections officer, together with an adjustment for school fees for a moderately expensive private school that the child attends.

3. The appellant then sought a departure, utilising the procedures under Part VIA from the administrative assessment that had issued. That application was made on 25 January 2007.  In my view it is important at this point to identify that the departure application by the applicant pursuant to Part VIA, lodged on 25 January 2007, was seeking a departure from the then administrative assessment. The administrative assessment that was then in force was the assessment issued by the Agency as amended pursuant to s.75 as a result of the decision of

   
   3 November 2006

   .

4. The decision-maker under Part VIA declined to alter that administrative assessment.  I note that at this point the assessment was no longer a formula assessment under Part V but remained an administrative assessment as a result of previous decisions under Part VIA and Part VIB.

5. On 17 May 2007 the Part VIA application to depart from the administrative assessment was dismissed and on 20 December 2007, an objection by the appellant to the refusal to alter the administrative assessment was disallowed under Part VIB. 

6. On 7 January 2008 an application was lodged for review with the Social Security Appeals Tribunal. 

7. The significant issue before the tribunal related to the income-earning capacity, property and financial resources of the parties.  Whilst there was no issue between the parties that the child was attending a private school (there had been an enrolment by arrangement between the parties some years earlier), nor any dispute as to the actual costs of the private school, it remained a significant and relevant consideration for any decision as to the ultimate annual rate of child support.

8. The tribunal proceeded to embark upon a consideration of the issues in the matter. It seems from reading the decision that the tribunal have looked at the matter from two perspectives. One perspective is a review of the decision of the objections officer made 3 November 2006. The other perspective is a decision as to whether or not the administrative assessment that issued about 3 November was one with respect to which the appellant had shown a special circumstance.

9. The different methods of approaching the matter are significant for this reason: if the tribunal were properly embarking upon a reconsideration of the decision made on 3 November, they would then need to make the relevant findings that ultimately the particular rate of child support as assessed was just and equitable and otherwise proper under s.117. If however the tribunal were hearing an application to review the Part VIA application lodged 25 January, they needed only to determine, at least initially, whether the appellant had shown a special circumstance relating to income-earning capacity, property and financial resources, that demonstrated the existing administrative assessment (that issued pursuant to the decision of 3 November 2006) was unjust and inequitable. The difference is about the extent of the findings that the tribunal needed to make in order to determine the matter.

10. As it transpires, the tribunal did not find any error in the decision of 3 November 2006 and went on to make a decision as to whether or not the appellant had shown a special circumstance with respect to the then existing regime of child support.

11. It appears to me that a careful review of the Act demonstrates that it is the second perspective of the case that is the one that the tribunal were required to undertake according to the Act. To the extent the Tribunal may have purported to review the decision of 3 November 2006, it did not have jurisdiction to do so as it was not the subject of the application to the SSAT; the appellant was out of time to bring such an application to the SSAT.

12. It is argued that the tribunal have embarked upon an examination of the matter beyond what they were required to do under the Act.  Had the tribunal only reviewed the decision of 3 November 2006, then the appellant would have had a good ground of appeal.  However, it is not a proper basis for a successful appeal that a tribunal has examined and perhaps even made findings with respect to an issue that they did not have to decide, if it does not materially affect their consideration and findings on the issue that they did have to decide.  That is what appears to have been done in this case.

13. An understanding of the substance of the findings of the tribunal can be gained from reading a number of paragraphs of the tribunal decision.  The tribunal made its substantive findings following a detailed examination of the evidence and submissions put to the tribunal.  These findings are as follows:

    73. The Tribunal had evidence of [the respondent’s] income in past years.  As noted above, however, the information gathering the Tribunal has undertaken does not detract from the requirement for both [the respondent] and [the appellant] to present their own financial information accurately, fully and in a comprehensive and clear manner.  In the circumstances, the Tribunal is prepared to make adverse inferences regarding the reasons for [the respondent’s] desistance from providing the information requested by the Tribunal, and for [the appellant’s] failure to give full and frank disclosure of the [C] property development.

    74. The Tribunal is satisfied that, on the basis of the evidence presented, both [the respondent] and [the appellant] have income, property and financial resources available to them which is not accurately reflected in a child support assessment calculated upon their respective taxable incomes.  [The appellant] has unsuccessfully asserted he derives only minimal income from work as a mere [tradesman], that he does not have any interests in real estate and that he does not have access to financial resources generated from a business plan of successive real estate purchases, capital improvement and sales, either as a sole trader or in partnership with his parents and/or Mr N.  The Tribunal is also satisfied that [the respondent’s] taxable income, upon which the child support assessment was also in part based, does not accurately reflect the full extent of her financial resources.

    …

    96. For reasons outlined in detail when considering reason 8, the Tribunal has serious reservations as to the accuracy of the income evidence provided by both of the parties in this instance.

    …

    100. After consideration of all of the factors in subsection 117(4) of the Assessment Act, the Tribunal is satisfied that it is just and equitable to depart from the formula based administrative assessment contained in Part 5 of the Assessment Act.  This is consistent with the Agency’s departure decision made on 3 November 2006 which has set the child support amount for the periods 1 October 2005 to 30 June 2006 and 1 July 2006 to 31 December 2008, being the assessment [the appellant] seeks to have changed.  The Tribunal is satisfied that both [the appellant] and [the respondent] have a duty to provide financial support for [the child], and that in this case, however, both parties have been less than forthcoming about their financial circumstances.  Because of this, the Tribunal is unable to determine with a high degree of accuracy the true extent of their financial resources.

    …

    104. However, [the appellant] has failed to establish, in respect of the assessment determined by the Agency on 3 November 2006, that because of his and [the respondent’s] income, property and financial resources, there are special circumstances in this case which result in an unjust and inequitable determination of the level of financial support he is to provide to [the respondent] for [the child].

    105. In addition, irrespective of whether [the respondent] has additional financial resources she could put towards providing for [the child], the Tribunal is not persuaded that it would be just or equitable to change the assessment as determined on 3 November 2006.  This is because [the appellant’s] income, property and financial resources cannot be readily ascertained but are clearly of such a nature as to be able to support his established business activities as a real estate developer under various formal and informal arrangements over the past decade or more.

14. It is apparent from these reasons that the core finding of the tribunal was that they were unable to be satisfied as to the financial circumstances of the applicant and as a result, would not have been able to be satisfied that the assessment then in force was ‘unjust and inequitable’ for any particular reason.

15. I pause here to note that even if one steps back from the case and looks at it from a very broad-brush perspective, it is a case where there are significant school fees, somewhere in the vicinity of $12,000 per annum, a child support assessment in the vicinity of $20,000 per annum and evidence before the tribunal (see page B10) that the costs of caring for the child were somewhere in the vicinity of $30,000 per annum in the mother's household.

Ground 1

1. Turning then to the specific grounds of appeal, ground 1 alleges that the tribunal erred in failing to properly construe the applicable legislative provisions. It was argued that regard should be had to s.117(7B) of the Child Support Assessment Act 1989. Particular reference was made to paragraph 62 of the decision, where the tribunal said:

   62. The Tribunal has considered 117(7B) of the Assessment Act but does not find that this is a case to which section 117(7B) of the Assessment Act applies.  [The Appellant] had already changed his working pattern to one of property development prior to the separation and thereby minimizing his taxable income.  [The respondent] changed her working pattern following the parties’ separation but has stated and the Tribunal accepts, this was due to her sole parent caring responsibilities for [the child] who at the time of separation was aged 4 years old.  The Tribunal is not satisfied that a major purpose of that decision was to affect the administrative assessment of child support in relation to [the child], particularly as the relevant disregarded income component means there is negligible difference to the child support which may have been payable if [the respondent] continued earning about $48,000 (2004/2005 taxable income) or $10,000.

2. This is not a case where the capacity of the appellant was at issue.  That is, not a case where it was suggested he ought to go out and work harder or engage in different employment or engage in further employment.  Rather, it was a case which focused on what his actual earnings and financial resources were, based on the activities that he was undertaking.  In these circumstances, s.117(7B) does not appear to me to be engaged.  In this respect, I find that the tribunal has not erred in its considerations.

3. It was also put that the tribunal failed to have proper regard to s.117(4)(g) when considering whether the assessment was ‘just and equitable’. The first answer to this proposition is that in the ultimate findings of the tribunal, they did not need to turn to determinations of what was ‘just and equitable’ in this case, as the appellant had not succeeded in establishing a ‘special circumstance’. To the extent that the tribunal were examining the ‘just and equitable’ considerations, it appears to have been as part of its consideration of the case from what I described earlier as the alternative perspective.

4. In any event, it is clear that the tribunal have nonetheless, even in examining the case from an alternative perspective, considered the questions of hardship in s.117(4)(g), in that:

   a)there is a separate heading in the decision;

   b)there is discussion of the case that each party has put; and

   c)a finding that the tribunal was unable to determine with ‘a high degree of accuracy the true extent of [the parties'] financial resources’. 

5. I pause here to note that whilst the specific words of the tribunal were ‘a high degree of accuracy’, clearly the tribunal was referring to the fact that it could not make proper determinations about financial resources of the parties and not simply saying that it could make general findings without specific accuracy to the nearest dollar.  To the extent there could be any argument about the looseness of language in this respect, the answer lies in the comments of the High Court in Minister for Immigration  v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 9 Leg Rep 2; (1996) 41 ALD 1, that the process is not one designed to pick over the specific words of the tribunal if its meaning appears apparent on the face of the document when read as a whole.

Ground 2

1. The second ground of appeal was to the effect that the tribunal ignored relevant material or relied upon irrelevant material.  The appellant took issue at findings of the tribunal that he had been working in the development of buildings or redevelopment of building sites, either with his parents or another person.  The tribunal rejected his evidence that he was working only as a [tradesman], referring to specific items of evidence that were against that proposition. For example, the tribunal specifically referred to the fact that the appellant was the applicant in a planning appeal at VCAT with respect to a property that was registered in his parents' names.  It also had regard to the evidence that he had an established pattern of purchasing a property and developing it whilst residing at the property for a period, during the course of the marriage.  This pattern appeared to be continuing with his parents. The tribunal also referred to evidence from family law proceedings that his parents had retired in their 70’s and were both pensioners.

2. During the course of the appeal, counsel for the respondent referred to a number of passages in the transcript where these issues were raised with respect to the past conduct of the appellant (page T15), some coyness by the appellant as to the friend he had referred to as being involved in some of these developments (page T16.40 of the transcript), the ownership of a particular property and its consistency with the previous business model that the appellant had utilised (see pages T27 to T28 of the transcript) and the fact that the appellant had been allowing, on his case, his building licence to be used for the project (see page T29 of the transcript).

3. The course of the building development conduct was again referred to later in the transcript at page T53.  The extent of his parents' assets or income was discussed at page T61 of the transcript.  Further evidence appeared in the transcript at page T74 of transfers of significant sums to the husband in Turkey from his parents.

4. In light of all of this material, it appears to me to have been plainly open to the tribunal to reject his evidence.  In addition, he had failed to produce documents that had been sought by the tribunal and the tribunal had regard to a number of cases which discussed the inferences that can be drawn by a tribunal or trial judge in the absence of the production of relevant material, particularly once it is specifically requested.  In this regard, the tribunal referred specifically to the decision of Conway v Child Support Registrar& Clivery(SSAT Appeal) (No 2) [2008] FMCAfam 985, where Slack FM discussed these principles.

5. I find no appealable error on the part of the tribunal with respect to its findings with respect to whether or not it accepted or rejected the appellant's evidence.  Ultimately it was a question of fact.  There was a large amount of factual material before the tribunal.  It was open to the tribunal, on this material, to make the findings that it did.  The appeal to this court is an appeal on a question of law.  The judgment clearly demonstrates that the tribunal has traversed in considerable detail the material before it.  To the extent that it is said that there are individual items of evidence that may not have been specifically referred to in the judgment, none of them are of such significance as to indicate that the tribunal has failed to consider the material as a whole.

6. I note that it is not incumbent upon a decision‑maker to refer to every single item of evidence that is led in a hearing when giving a judgment, but rather, significant items of evidence which are not referred to may demonstrate that the tribunal has erred.  In this case, nothing that has been referred to in the course of argument appears to me to be of such significance in this case.

Ground 3

1. The third ground of appeal alleges that the tribunal failed to give adequate reasons for its decision.  Counsel for the respondent refers to Bennett v Bennett (1991) FLC ¶92-191; (1990) 14 Fam LR 397; (1990) 102 FLR 370 , where the Full Court said:

   In general, the appellate court should be able to discern, either expressly or by implication, the path by which the result has been reached.  We stress that we are not suggesting that reasons must be extensive.  Their adequacy must most frequently be judged by reference to the issues raised by the parties at trial.

2. The Full Court later stated:

   The important thing is that the appellate court must be placed in the position of being able to follow the trial judge's line of reasoning, as must the parties, if they are to be satisfied that justice has been done.

3. It is quite apparent on the face of the decision of the tribunal that after traversing facts in this case, in the circumstances that were presented to the tribunal, the tribunal ultimately rejected the appellant's evidence and found that it was not satisfied as to his financial circumstances.  Coming to such a conclusion was open to them to the Tribunal.  Indeed, the very purpose of the hearing was to make such findings for or against the appellant.  It is apparent from the face of the decision why the tribunal rejected the appellant in this case.  I therefore find that this ground does not show an appellable error.

Ground 4

1. It is alleged that the tribunal made an error in paragraph 45 of their decision in concluding that BAS statements were deliberately altered as soon as the Child Support Agency indicated it would rely upon them.  The Tribunal said:

   45. Immediately after the change of assessment application, [the business] showed a loss.  For the quarter to March 2008 [the business] showed a $76,000 loss.  For the quarter to December 2007, it showed a $32,000 loss.  For the quarter ending September 2007 the loss was $10,000.  The records show a year to date loss of $120,000.  It was submitted that this was not a proper figure.  He reports actual expenditure and must have a cash flow, but he is not reporting sales or receipts.  The BAS’ were delivery altered as soon as the Agency said it would rely on them.

2. A careful reading of the decision shows that a large part of the decision recounted the evidence and submissions that were made to the tribunal by the parties.  Whilst there were not headings, which may have made this more apparent, it does appear clear that the tribunal was recounting submissions that were made to them by counsel for the mother.  This section of the judgment commenced at paragraph 42 with the words:

   42. [The respondent's] representative submitted that [the appellant] had accurately described the business plan prior to the separation ... 

3. Paragraph 43 goes on to discuss evidence that was before the tribunal and the case of the appellant was discussed.  Ultimately, at paragraph 66, specific findings were made with respect to the appellant, including a finding that:

   66. The tribunal finds the evidence that [the appellant] gave to the tribunal about the [C] property deliberately misleading and false.

4. It is clear that during the course of the hearing, the respondent invited findings of this type on the circumstantial evidence before the tribunal: this was raised in the transcript at pages 42 and 44.

5. In any event, in the course of this case, even if this were a finding of fact by the tribunal, it does not seem to me that it is one that was not open to the tribunal, having regard to the circumstantial evidence about the appellant’s conduct. 

Grounds 5 & 10

1. Grounds of appeal 5 and 10 both refer to evidence that was given before the tribunal and whether or not the tribunal ought to have made the findings it did with respect to the evidence.

2. Ground 5 refers to the tribunal’s finding that it was extremely unlikely that a legal practitioner would willingly forgo payment of legal fees (which in the material are indicated to be in the vicinity of $30,000 for the appellant).  The appellant says that he gave evidence about the amount of his debt to his lawyers, but there is nothing in the material to show letters of demand sent by them to him.

3. It is not suggested that the tribunal led the appellant into believing that it would necessarily accept this evidence on the material before it.  Ultimately, the tribunal did not accept this part of the appellant's evidence, along with substantially all of his evidence.  I do not see that the appellant can demonstrate an error of law on the part of the tribunal with respect to the finding of fact that they made with respect to this relatively minor part of the case, where they have rejected his evidence generally.

4. With respect to ground 10, the tribunal made findings with respect the source of funds that the appellant used to meet a property settlement that was entered into between him and the respondent.  It is apparent from the transcript (at T61) that his parents assisted him by providing a large amount of money to meet the property orders that were made by the courts.  The property orders were clearly made on the basis that there was more relevant property than the modest amount in trust from the sale of a property in the names of the parties.

5. The appellant seeks to rely on some earlier references to this issue by the tribunal at paragraphs 24 and 25 of their decision, alleging inconsistencies.  It appears to me to be clear that those paragraphs were recounting evidence that he had given to the tribunal and not findings per se.  As a result, this ground must fail.

Ground 6

1. With respect to ground 6 of the grounds of appeal, it appears to me that this ground really repeats the earlier ground 2 and fails for the same reasons.

Ground 7

1. With respect to ground 7, it is alleged that the tribunal failed to make specific findings regarding the income-earning capacity or the property and financial resources of the respondent.  It is clear that the tribunal ultimately did not accept the respondent's evidence with respect to her finances and was left in a similar position to that that they found themselves in with respect to the appellant.  However, they were not required to make a specific finding, in the circumstances of this case, as the appellant had not been able to establish his financial position and therefore ultimately was not able to succeed in the application before the tribunal in any event.

2. In these circumstances the result could be no different, in that an essential factor in any decision was the income and earning capacity of the appellant.  He had not satisfied the tribunal as to what that was for the purpose of the tribunal determining whether he had established a ‘special circumstance’.  This ground must therefore fail.

Ground 8

1. With respect to ground 8, the appellant says that the tribunal failed to have regard to his expenses to support his own wife and another child.  It is clear that the tribunal were aware of his personal circumstances, as it referred to his wife and child at paragraphs 35 to 36 and, in a general way, made reference to these issues in paragraphs 95 and 96.  Ultimately, however, because the appellant had not established a ‘special circumstance’, and was not able to do so because of the findings with respect to his credibility and financial circumstances, the tribunal ultimately did not need to make specific findings in this regard.

Ground 9

1. Ground 9 of the notice of appeal complains that the tribunal erred in making findings with respect to the extent of the appellant's control over a property and his association with one Mr N and/or his parents as owners and developers of the property.  Specific reference was made to paragraph 46 of the tribunal’s decision, which says:

   46. Financial statements for [the business] show year to date expenses of $247,143, which, annualised, equates to expenses for 2007/2008 totalling $340,000.  If [the appellant] is spending this amount, he must have income from an undisclosed source.  The 2007/2008 financial statements are self-reporting, and thus self-serving.  In the quarter to the end of March 2008, the revenue was $151,000, materials, inventory $107,000 owed to company.  Balance sheet shows $107,000 and offsetting liability is an unsecured loan.  It was submitted that [the business] was a $1 company, but was owned and operated by [the appellant].  The unsecured loan could be the final payment owed to him for the project.  No overdraft was shown.  If the information can be relied on then it has made a huge profit as the expenditure used to generate the income in 2008/2009 was claimed in the 2007/2008 tax return.  The [M] project works as follows.  [Mr N] buys [H] Street and [the appellant] and his parents control two of the four units.  [The appellant’s] parents also brought the [C] property in January 2008 for $425,000 without a mortgage.  [The appellant] always uses either [Mr N] or his parents as the owners of his developments.  This is consistent with his history.  The sworn evidence of his parents in the family law proceedings was that they were pensioners since the 1970’s with no income and no assets, but they paid $540,000 to [the respondent].  If they had done that they would have been bankrupt.  They nevertheless were able to buy the [C] property unencumbered.

2. It is clear that paragraph 46 forms part of the description of the case for the wife. Indeed, part of the paragraph uses the words ‘it was submitted’ and the paragraphs before and after also use that phrase.  Ultimately, the tribunal did not make specific findings with respect to the precise relationships of Mr N, the parents and the appellant.  The tribunal ultimately found that it was unable to be satisfied about the financial circumstances of the appellant.

3. In these circumstances, I am not persuaded that this paragraph shows any error of law on the part of the tribunal.

Conclusion

1. In the circumstances of this case, I find that no error of law has been established by the appellant in these proceedings and therefore dismiss the appeal. 

Costs

1. In this matter, the appellant was entirely unsuccessful on an appeal from the Social Security Appeals Tribunal where the tribunal member, in substance, rejected his case on the question of credit.  The appellant was assisted pro bono in conducting the appeal. The respondent incurred the costs of a solicitor and counsel.

2. The relevant considerations for cost applications are set out in s.117 of the Family Law Act 1975.  As is apparent from the tribunal documents, it is very difficult to ascertain the true financial position of the parties and both seem to have had, at the very least, indirect involvement in property purchases and sales and, in one form or another, businesses.

3. The respondent has conducted the proceedings properly and attended with counsel with a brief outline, well prepared to answer the appeal.  The proceedings were not necessitated by the failure of a party to comply with previous orders of the court.  The appellant was entirely unsuccessful.  No offers were made in this matter.

4. The appeal was on a point of law in substance and substantially the case was a challenge to the findings of fact of the tribunal.

5. The respondent has the primary care of the child in her household. 

6. In the circumstances of the case, I am persuaded that a costs order ought to be made and that the appellant ought to pay the respondent's costs of the appeal.

7. I turn to assess the costs.  The parties don't seek to have the costs assessed under the Family Law scale which I can understand, given the costs of preparing bills for assessment and attending for the assessment before a registrar, particularly in matters that have relatively modest costs in comparison to the cost of that process. 

8. It appears to me that given that this is an appeal and no further affidavit material had to be prepared by the respondent, stage 1A is an appropriate indication of the costs of obtaining instructions, preparing the relevant material and completing the first day of court to obtain the relevant procedural orders, that is $1875.  Costs of counsel today were $2250 and costs of the instructing solicitor attending today were $1500.  The costs of photocopying sought are $500 which comes to a total of $6125. 

9. Counsel's fees are on scale.  It could not be suggested that counsel was not required to be here today, nor that he had not come fully prepared.  Indeed, during the course of the appeal, counsel was asked to identity specific parts of the transcript that would be relevant to some of the matters that were discussed in the submissions for the appellant, and was able to make extensive pinpoint references to the transcript.  It appears to me that this demonstrates a good deal of preparation both by him and his instructing solicitor. 

10. Given the volume of the material and the way in which the appeal ran, it could not be suggested that it was not appropriate for the instructing solicitor to be here to assist counsel in the running of the appeal.

11. In respect to the photocopying, I note that the number of pages involved in the tribunal documents and transcript was over 1300 pages.  A brief had to be sent to counsel with all of this material.  If one has regard to the sheer volume of copying that would be involved in this case, it seems that the overall photocopying costs claimed are not as high as that allowed for on the scale and would appear to me to be a reasonable figure.

12. In the circumstances, I fix costs at $6125.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Deputy Associate:  Katherine Sudholz

Date:  12 June 2009