Bramwell v Superannuation Complaints Tribunal
[2005] FMCA 1026
•22 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRAMWELL v SUPERANNUATION COMPLAINTS TRIBUNAL & ANOR | [2005] FMCA 1026 |
| ADMINISTRATIVE LAW – Appeal of decisions by Superannuation Complaints Tribunal – superannuation benefit “rolled over” – entitlements – review of Superannuation Complaints Tribunal – no jurisdictional error. |
| Administrative Decisions (Judicial Review) Act1977, ss.5, 13, 16(1) Superannuation (Resolution of Complaints) Act1993 Superannuation Industry (Supervision) Act1993 (Cth), s.101 Financial Services Reform Act2001 |
| The Queen v Australian Broadcasting Tribunal: Ex Parte Hardiman (1980) 144 CLR 13 Chan Yee Kin v MIEA (1989) 169 CLR 379 Khan v MIEA (1987) 14 ALD Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 |
| Applicant: | RAYMOND BRAMWELL |
| First Respondent: | SUPERANNUATION COMPLAINTS TRIBUNAL |
| Second Respondent: | CAROL FOLEY |
| File Number: | BRG466 of 2003 |
| Judgment of: | Baumann FM |
| Hearing date: | 24 May 2004 |
| Date of Last Submission: | 16 June 2004 |
| Delivered at: | Brisbane |
| Delivered on: | 22 July 2005 |
REPRESENTATION
| Applicant Self Represented |
| First and Second Respondents self represented |
ORDERS
That the Application be dismissed.
That any Application for Costs by the First Respondent be made by written submissions within 21 days. The Applicant shall have liberty to respond by written submission within 21 days after service of the Application for Costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG466 of 2003
| RAYMOND BRAMWELL |
Applicant
And
| SUPERANNUATION COMPLAINTS TRIBUNAL |
First Respondent
CAROL FOLEY
Second Respondent
REASONS FOR JUDGMENT
The Applicant is 56 years old and commenced employment with Deloitte Touche Tohmatsu (“DTT”) and joined the Deloitte Touche Tohmatsu National Staff Superannuation Fund (“the Fund”) on
5 November 1997. He ceased work with DTT after almost 8 months on 30 June 1998. The benefits which he had accrued in the fund during his employment remained.
On 26 November 2001, the Trustee of the Fund gave notice to the Applicant that, as he had ceased employment with DTT, his benefit would be automatically “rolled over” to the AMP Eligible Rollover Fund (“AMP”) if he did not give instructions within one month of the letter to transfer his benefit to another Fund. The Applicant does not dispute that he gave no instructions to otherwise deal with his accrued benefits. As a result on 7 February 2003, the Applicant was advised that his benefit had been transferred to AMP.
Since 2000 the Applicant has been has been in constant contact with the Fund’s Trustee, the Fund’s Administration, the First Respondent and other Commonwealth agencies. He has revealed increasing unhappiness and expressed concerns about his entitlements and the treatment of the same. A summary of over 50 such letters is given at paragraph 2.5 of the First Respondent’s submissions. It is apparent his major concern relates to his eligibility to claim disability benefits, and if so, his entitlements.
Application
On 25 August 2003, the Applicant filed an Application in this Court, pursuant to the Administrative Decisions (Judicial Review) Act1977 (“AD(JR) Act”) seeking the following orders:-
“1.Orders under subsection 16(1) of the Administrative Decisions (Judicial Review)Act 1977 quashing or setting aside the 4 decisions of the respondents dated 24 July 2003 to treat as withdrawn complaints made by the applicant.
2. Orders under subsection 16(1) of the Administrative Decisions (Judicial Review) Act 1977 quashing or setting aside the 2 decisions of the respondents dated 24 July 2003 to not report to ASIC alleged breaches of the law by the Trustee named in the above complaints.
3. Orders that the respondents provide the applicant with adequate statements of reasons for each of the above referred to decisions.
4. Such further orders as the court considers appropriate.
5. Costs of and incidental to this application."
The primary grounds for the relief sought were expressed as follows:-
“The orders are sought on the basis that:
1. Each decision of the respondents has deprived the application of his right to have his complaint dealt with in accordance with the Superannuation (Resolution of Complaints) Act 1993 and thereby adversely affected his interests.
2. The respondents have not provided an adequate statement of reasons in a single document in relation to each decision as required by subsection 22(4) of the Superannuation (Resolution of Complaints) Act 1993 and/or section 13 of the Administrative Decisions (Judicial Review) Act 1977. Alternatively, further and better particulars are necessary to do justice between the parties.”
On 9 March 2004 I determined an application for a Statement of Reasons pursuant to s.3(7) of the AD(JR) Act. I gave oral reasons at the time and do not repeat them now, suffice to say I was satisfied reasons had been given.
The matter was heard on 25 May 2004. Written submissions were delivered by both the Applicant and First Respondent. The submissions from the First Respondent go to some length in providing a reply to the numerous concerns of the Applicant. In this case the Tribunal appears to have elected to depart from the usual position of a Tribunal on a Review of its decision, that is that statutory bodies submit to the orders of the Court and do not present substantive argument (The Queen v Australian Broadcasting Tribunal: Ex Parte Hardiman (1980) 144 CLR 13 at 36).
After the hearing, I received further written submissions from the Applicant dated 22 June 2004. I have also considered those submissions.
Legislative framework
Section 5 of the AD(JR) Act provides:-
“Applications for review of decisions
(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c) that the person who purported to make the decision did not have jurisdiction to make the decision;
(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g) that the decision was induced or affected by fraud;
(h) that there was no evidence or other material to justify the making of the decision;
(j) that the decision was otherwise contrary to law.
(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a) taking an irrelevant consideration into account in the exercise of a power;
(b) failing to take a relevant consideration into account in the exercise of a power;
(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d) an exercise of a discretionary power in bad faith;
(e) an exercise of a personal discretionary power at the direction or behest of another person;
(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(j) any other exercise of a power in a way that constitutes abuse of the power.
(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”
I adopt as accurate the following statement of relevant further legislation which appears at paragraphs 3.1 to 3.5 of the submissions of the First Respondent (called in those submissions “this document”) and dated 1 March 2004:-
“3.1 The Tribunal was established under the Superannuation (Resolution of Complaints) Act 1993(Cth) (‘SRC Act”). Section 22(3) of the SRC Act provides:
The Tribunal may also decide to treat a complaint as if it had been withdrawn under section 21, in the following cases:
(a) [not applicable]
(b) if the complaint has been made to the Tribunal – the Tribunal thinks that the complaint is trivial, vexatious, misconceived or lacking in substance;
(c) [not applicable]
(d) if the subject matter of the complaint has already been dealt with by the Tribunal or by another statutory authority – the Tribunal thinks that the subject matter of the complaint has been adequately dealt with;
(e) [not applicable]
3.2 Section 64 of the SRC Act provides:-
If, in connection with a complaint made to the Tribunal under this Act, a Tribunal member becomes aware that a contravention of any law or of the governing rules of a fund may have occurred, he or she must, as soon as practicable:
(f) if he or she is a Tribunal member other than the Tribunal Chairperson – give particulars of the contravention to the Tribunal Chairperson; or
(g) If he or she is a Tribunal member other than the Tribunal Chairperson – give particulars of the contravention to ASIC.
3.2 The Applicant’s complaints raised the following statutory provisions in the Superannuation Industry (Supervision) Act 1993 (Cth) and Regulations (‘SIS’) and the Corporations Act. However, some of repealed SIS Regulations are listed in Corporations Regulation 10.2.120B(2) and these continue to apply until either:
·A regulated superannuation fund opts into the new Financial Services regime; or
·2 years pass after the commencement of the Financial Services Reform Act (‘FSR Act’) (ie 11 March 2002).
(whichever is the first to occur).
3.5A search of the ASIC website indicates that the Fund has not yet opted into the new Financial Services regime. Therefore some of the SIS regulations referred to in this application continue to apply to the Fund at the date of this document and others do not, depending on:
·Whether they come within the list in the Corporations Regulation 10.2.120B(2); and
·Whether the date relevant to the complaint was before or after the commencement of the FSR Act (ie 11 March 2002).”
Furthermore, the Tribunal is established by the SRC Act, inter alia, to review the decisions or conduct of Trustees of regulated superannuation funds concerning members in relation to which a complaint to the Tribunal has been made. In particular s.14 of the SRC Act relevantly provides:-
“(1)This section applies if the trustee of a fund has made a decision (whether before or after the commencement of this Act) in relation to:
(a)a particular member or a particular former member of a regulated superannuation fund; or
(b)a particular beneficiary or a particular former beneficiary of an approved deposit fund.
…
(2)Subject to subsection (3) and section 15, a person may make a complaint (other than an excluded complaint) to the Tribunal, that the decision is or was unfair or unreasonable.
…”
I am satisfied that the prohibition imposed by s.19 of the SRC Act against the Tribunal dealing with a complaint under s.14 does not apply, where, as in this case the Fund had previously been the subject of complaints about the same subject matter which had been dealt with under s.101 of the SIS Act, albeit “not to the satisfaction of the complainant.”
Submissions generally
As already identified, the First Respondent has filed 23 pages of written submissions (dated 1 March 2004) and the Applicant responded with an initial written submission of some 26 pages (dated 4 May 2004), supplemented by oral submissions and the further written submission.
I do not propose, in these reasons of judgment to recite large proportions of those submissions. They form part of the Court record in these proceedings. I intend to deal with each of the relevant reviewable decisions and will summarise the eventual substance of the competing submission.
In so doing, I am conscious that a Court exercising judicial review of an administrative decision has a limited role (see Chan Yee Kin v MIEA (1989) 169 CLR 379, Mason CJ at 391) and that the Court’s function on judicial review has been described as confined to deciding whether a decision maker has given proper, genuine and realistic consideration to the merits of the case (see Khan v MIEA (1987) 14 ALD at 292). Simply stated, it is not the role of this Court to conduct a merits review of the decision.
The relevant decisions
The decisions of the SCT which the Applicant seeks to quash or set aside are the decisions to withdraw the complaints. The text of the 2 relevant letters are reproduced in these reasons as follows:-
Letter of 24 July 2003 (relates to Complaint “B” below)
“Mr Raymond Bramwell
Unit 3, 63 Oxford Terrace
TARINGA QLD 4068
SUPERANNUATION (RESOLUTION OF COMPLAINTS) ACT 1993
NOTICE UNDER SECTION 22(4)
OF COMPLAINT HAVING BEEN WITHDRAWN
Dear Mr Bramwell
Raymond Bramwell & Deloitte Touche Tohmatsu National Staff Superannuation Plan Member No. 14450
I refer to the Tribunal’s letter of 6 June 2003 concerning your complaint about the actions of the above Fund and your letter of 22 June 2003.
In relation to the matters you raised in your letter, the figures you have provided to demonstrate the Fund’s alleged miscalculation of your account balance do not, in our view support your contention. As such, your complaint is considered to be lacking in substance.
Furthermore, subsection 22(3)(d) of the Superannuation (Resolution of Complaints) Act 1993 (SRC Act) allows the Tribunal to treat a complain as withdrawn if it feels that the subject matter of the complain has already been dealt with by the Tribunal or another statutory body. Having read your letter of 22 June 2003, the Tribunal is of the opinion that the matters you have raised have already been adequately dealt with by the Tribunal in a previous complaint made by you (ref.02-01484). As such, the Tribunal is also withdrawing your complain in accordance with subsection 22(3)(d) of the SRC Act.
Finally, in accordance with subsection 22(3)(b) of the SRC Act, the Tribunal has the power to withdraw a complaint if it considers it to be vexatious. For the purposes of subsection 22(3)(b), the Tribunal is of the opinion that the term ‘vexatious’ is to be interpreted as a common, ordinary word in accordance with Australian common law principles. Essentially, a complaint is regarded as vexatious if it clearly and objectively constitutes an abuse of process necessary that there by any subjective element of a ‘mala fides’ (bad faith) on the part of the Complainant; however, if this is present, the complaint will more readily be able to be characterised as ‘vexatious’.
Consequently, for the reasons above and those outlined in the earlier letter (a copy of which is enclosed), the Tribunal is treating the complaint as withdrawn under subsections 22(3)(b) and 22(3)(d) of the SRC Act, on the basis that it is both lacking in substance and vexatious; and the subject matter has already been adequately dealt with by the Tribunal.
We regret that in this matter a more satisfactory resolution could not be achieved for you.
Yours faithfully
Carol A Foley
Senior Lawyer
24 July 2003”Letter of 24 July 2003 (relates to Complaint “D” below)
“Mr Raymond Bramwell
Unit 3, 63 Oxford Terrace
TARINGA QLD 4068SUPERANNUATION (RESOLUTION OF COMPLAINTS)ACT 1993
NOTICE UNDER SECTION 22(4)
OF COMPLAINT HAVING BEEN WITHDRAWNDear Mr Bramwell
Raymond Bramwell & Deloitte Touche Tohmatsu National Staff Superannuation Plan Member No. 14450
I refer to the Tribunal’s letter of 12 June 2003 concerning your complaint about the actions of the above Fund and your letter of 29 June 2003.
In relation to the matters you raised in your letter, the Tribunal does not believe that it has misunderstood the subject matter of your complaint as, according to your Registration of Complaint Form and your e-mail dated 14 February 2003, your complaint is “about the Trustee’s deliberate failure” to keep you “fully informed” with regard to your total disablement claim. You go on to say that the Trustee has “repeatedly and deliberately” denied you information and documentation in relation to the said claim. As such, the Tribunal rejects your assertion that its understanding of your complaint is “misconceived”.
Please also note that the Tribunal remains of the opinion that you have not provided sufficient probative evidence to support your complaint. Nor does your letter of 29 June 2003 add anything to your claim.
The Tribunal notes your request to “specify precisely the essential fact whose existence [you] must prove” to establish your case. Clearly the Tribunal has no way of knowing the facts of a matter, essential or otherwise, unless they are provided to it. It can say, however, that based on the evidence provided, it is of the view that you have not made out your case.
Consequently, for the reasons above and those outlined in the earlier letter (a copy of which is enclosed), the Tribunal is treating the complain as withdrawn under subsection 22(3)(b) of the Superannuation (Resolution of Complaints) Act 1993, on the basis that it is lacking in substance.
In relation to your request that the Tribunal report the Trustee to the Australian Securities and Investments Commission (ASIC) for its alleged breach of the Superannuation Industry (Supervision) Act 1993 (Cth) and the Superannuation Industry (Supervision) Regulations 1994, the Tribunal is of the view that the Trustee has taken reasonable steps to provide you with the required information. As such, the Tribunal declines your request to report the Trustee to ASIC as it does not believe that any breach has occurred.
We regret that in this matter a more satisfactory resolution could not be achieved for you.
Yours faithfully
Carol A Foley
Senior Lawyer
24 July 2003”
The letters, on their face, do not precisely set out the originating complaints to the Tribunal, about which the decision to withdraw has been made. I am satisfied from the documents produced by the Tribunal under section 48(a) of the SRC Act, that the complaints may be conveniently summarised as follows:-
A) Complaint lodged 19 October 2001
The Applicant alleged that the Trustee had failed to provide him with information requested in an email dated 1 April 2001 for:
(i)a full print out of his account
(ii)details of how insurance costs of $503.80 were calculated
(iii)details of how the contributions tax of $289.15 was calculated for the year ending 30 June 1998
(iv)details of the date the transfer benefit of $22,514 was received by the Fund
(v)details of how his investment earnings of $559.04 were calculated for the year ending 30 June 1998
(vi)details of how insurance costs of $1,065.70 were calculated for the year ending 30 June 19993
(vii)the date that the Fund paid the surcharge levy of $614.75 for the year ending 30 June 2000.
This Complaint (described in submissions as being file 01-01484), during the period of investigation and processing was the apparent vehicle for a range of similar requests to the Trustee for information and details by letters from the Applicant dated 13 October 2001;
2 December 2001; 5 December 2001; 28 December 2001 and
19 January 2002.
On 26 March 2003 the SCT informed the Applicant that it was considering “declining to proceed with this complaint”. That letter provided details as to why they had the view that the Trustee had provided all reasonable information. It identified, quite properly in my view, that since the original complaint, the Applicant had “introduced new issues” but that the SCT had not “acknowledged any other ‘additional’ complaint”. The Applicant was given 14 days to “make any comment on why you consider that your complaint should not be withdrawn” under s.22(3)(b).
The Applicant did not respond to that invitation – rather it appears that he chose to write a further letter to the Trustee on 6 April 2003 (a copy of which was received by the SCT on 9 April 2003) seeking further information.
Consequently on 9 April 2003, the SCT gave notice to the Applicant that it was “treating the complaint as withdrawn” under section 22(3)(b) “on the basis that it is lacking in substance”. It is clear that the SCT had considered the letter to the Trustee of 6 April 2003 because it says that:
“Furthermore the information you requested, in your letter under ‘Further Action’ is information that was not requested by you in your original complaint”.
I have dealt at some length with this history because, as will be seen, this first complaint is the foundation for some of the actions which follow.
This decision of 9 April 2003 is not the subject of the Application before me, which specifically relates to the decisions made and communicated by letters dated 24 July 2003.
B) Complaint lodged 23 February 2003
The Applicant alleged 6 errors of the Trustee in his letter dated 6 April 2002. Whilst the Applicant described his complaint as being concerned about the “understated account balance as at 30 June 2001”, it is clear that the alleged error at 30 June 2001 was the culmination of 7 identified alleged errors for the years ended 30 June 1998, 1999, 2000 and 2001. As a result there is a degree of duplication with some of the issues “added” to the first Complaint A above. This complaint is file 03-00333 and, in accordance with the process adopted for the first complaint, was the subject of a letter to the Applicant of 6 June 2003 indicating a current consideration to decline to proceed with the complaint. The 2 primary components of the complaint were identified as the alleged understatement at 30 June 2001 and “the Fund’s failure to provide you with sufficient information for you to verify your account balance”.
The SCT expressed the view that the Applicant had “not provided any information or evidence to support your allegation that the fund has, in fact, miscalculated your benefit to your detriment”.
Notwithstanding a further letter written on 22 June 2003, which I am satisfied was considered by the SCT, the Complaint was withdrawn for the reasons expressed in the letter dated 24 June 2003 at least on the basis that it was “lacking in substance” and/or had “already been dealt with by the Tribunal”.
C) Complaint lodged 5 May 2003
Similarly to Complaint A above, this complaint is not he subject of these proceedings. The decision of the SCT to withdraw this complaint was made on 12 August 2003. The complaint alleged the failure by the Trustee to provide the Applicant with an Annual Report and Member Benefit Statement for the year ended 30 June 2002. After noting (in its letter to the Applicant on 15 July 2003) that the Fund had sent the documents to the Applicant on 13 June 2003, the SCT gave notice of its view that the complaint should be withdrawn under s.22(3)(d) “as it appears to have been satisfactorily resolved by the Trustee”.
D) Complaint lodged 5 June 2003
This complaint asserted a failure to provide information “of the kind referred to in my e-mail to the Trustee’s agent dated 14 February 2003 and/or required by SIS Regulation 2.35”.
The SCT gave an immediate Notice under s.17 of the SRC Act on
12 June 2003 in which it claimed that it was currently considering declining to proceed with the complaint “as lacking in substance”. The SCT explained that, in this complaint, the expression “lacking in substance” means “that the complaint brought before the Tribunal is unsupported by the evidence”. The SCT alleged specifically that:-
“While you claim that the Fund has repeatedly and deliberately withheld information from you in relation to your TPD claim, you have not provided any probative evidence to support this claim.”
Subsequently Complaint letter “D” was sent, and forms the foundation of the proceedings before me.
Submissions of the applicant
In response to the detailed submissions made by the First Respondent, the Applicant’s submissions contained a mixture of alleged facts to support the complaints and facts which support grounds for relief under s.5(1) of the AD(JR) Act.
I detail the primary areas of contention as follows (dealing sequentially with his submissions):-
(a)That the “Senior Lawyer Foley was not authorised to make the decision”. In an Affidavit filed 11 September 2003, Carol Foley deposed to the delegations under s.59(1) of the SRC Act which the Chairperson was authorised to bestow upon her. I am satisfied Carol Foley had the power to make the decisions the subject of this Application.
(b)Decision on file 03-003363 (Complaint B) should be quashed because :-
(i)the decision maker gave no real and genuine consideration to the additional information contained in the letter of 22 June 2003. The letter of withdrawal says the SCT did, and no compelling evidence is offered to rebut this presumption so stated.
(ii)The decision maker took into account an irrelevant consideration – namely the conduct of “the Trustee’s powerful agent” who “resented inquiries or complaints” and “repeatedly attempted to fob off the Applicant.” Further that the Applicant “was not as easily fobbed off as the SCT would have liked”. There is no evidence to support these assertions, which orally the Applicant said amounted to “prejudice against me”.
(iii)The decision maker failed to take a relevant consideration into account – namely the failure, it seems to accept the Applicant’s factual assertions as to calculations (even allowing for the reversal of $1965.70 wrongly debited but subsequently credited to the members account) where they differed from the calculations and explanations offered by the Trustee. These are all findings of fact which I am satisfied were open to the SCT. There is, of course, a presumption that all relevant considerations were taken into account (see Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 at 576-577). None of the evidence on the file (or the other files) persuades me that I should infer otherwise.
(iv)The decision was so unreasonable no reasonable person could have made it. The decision of Foley was open to her on the whole of the evidence.
(v)I find no basis in the above arguments for setting aside the decision. Furthermore, in my view, the view taken that the complaint was lacking in substance was open to the decision maker. I detect no error of law as asserted at paragraph 57 of the Applicant’s submission. I am satisfied that some of the matters referred to in this complaint had been dealt with by the Tribunal in connection with the complaint filed 19 October 2001 and withdrawn by letter on 9 April 2003.
(vi)Decision of file 03-00962 (Complaint “D”)
I am satisfied, on the whole of the evidence produced to the SCT, that it was open to the decision-maker to form the view that there was a lack of “any probative evidence to support” his claim. It is not said there was no evidence, just no probative or, in effect, convincing evidence to persuade the decision maker. This is a question of fact – and despite the best attempts of the Applicant to argue otherwise at paragraphs 59-70 of his submissions, I see no reason to disturb that factual finding. In that regard I have considered the additional correspondence sent to me by the Applicant in the form of the supplementary submission dated 22 June 2004.
The Applicant asserts other grounds for review including Breach of Natural Justice – particularly an opportunity to “respond to highly prejudicial false allegations by the Trustee in a letter dated
20 December 2001”. I am satisfied that through the course of numerous letters the Applicant took every opportunity to state his case – at times repeatedly (as can be clearly seen by the “overlapping” of complaints).
Conclusions
In respect of the Application before me, the Applicant has failed to make out any ground for relief under AD(JR) Act. The Application must therefore be dismissed.
I am not satisfied that will be the last that the SCT hears about matters which the Applicant says continue to concern him about the conduct of the Trustee. However my careful reading of the Tribunal files demonstrates an orderly, thorough and diligent consideration of the complaints (the subject of this Application) by the SCT.
The SCT indicated it may wish to be heard on the question of costs of this Application. In circumstances where the SCT acted for itself it is a little unclear, on the usual principles applied, how a claim for professional costs by using house counsel could arise.
Nonetheless, I will direct that any Application for costs be made by written submission within 21 days. The Applicant shall have an opportunity to respond in writing within 21 days after service.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date: 22 July 2005
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