COMMUNITY CPS AUSTRALIA LTD as successor in law of United Credit Union Ltd and COMMISSIONER FOR CONSUMER PROTECTION - [2010] WASAT 50

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: CONSUMER CREDIT (WESTERN AUSTRALIA) ACT 1996 (WA)

CITATION: COMMUNITY CPS AUSTRALIA LTD as successor in law of United Credit Union Ltd and COMMISSIONER FOR CONSUMER PROTECTION [2010] WASAT 50

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: 4 MARCH 2010

DELIVERED : 4 MARCH 2010

FILE NO/S: CC 1753 of 2008

BETWEEN: COMMUNITY CPS AUSTRALIA LTD as successor in law of United Credit Union Ltd
Applicant
AND
COMMISSIONER FOR CONSUMER PROTECTION
Intervener

Catchwords:

Consumer credit - Breaches of key requirements of credit code - Breaches resulting from failure of systems - Breaches discovered in course of due diligence for purchase of business - Most breaches technical - Compensation voluntarily undertaken to be paid - Whether civil penalty should be imposed

Legislation:

Consumer Credit (Western Australia) Act 1996 (WA)

Result:

Declarations of contraventions of key requirement
No civil penalty imposed

Category: B

Representation:

Counsel:

Applicant: Mr S Adams
Intervener: Mr S Simpson

Solicitors:

Applicant: Kott Gunning
Intervener: Legal Unit, Department of Commerce

Case(s) referred to in decision(s):

Re SuncorpMetway Ltd (1998) QSC 264

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Community CPS Australia Ltd took over the business of United Credit Union Ltd in November 2008. In the course of their due diligence process prior to completion of the sale, Community CPS noted a number of contraventions of the Credit Code in relation to loan contracts entered into by United and investigated the extent of those contraventions. Most were of a technical nature and effectively resulted from systems failures. In respect to some matters, borrowers may have paid certain fees or charges which were either not disclosed, or inaccurately disclosed, in the relevant credit contract.
Community CPS notified the Commissioner of Consumer Protection, and proposed a scheme to voluntarily compensate any effective borrowers who may have paid undisclosed fees. Having assumed in law all of the liabilities of United, Community CPS also brought an application to the Tribunal seeking a declaration that the contraventions had occurred, and subjecting itself to the Tribunal's discretion as to whether to impose a civil penalty. The Commission for Consumer Protection did not oppose Community CPS's submission that no civil penalty should be imposed.
The Tribunal accepted that contraventions had occurred, and made declarations accordingly. Having regard to the conduct of Community CPS, the interests of its members, the fact that the contraventions were not intentional, and the fact that adequate compensation had been volunteered by Community CPS, the Tribunal determined that no civil penalty should be imposed.

Introduction

This application is brought under s 101 of the Consumer Credit Code (WA) (Credit Code), which provides that a party to a credit contract may apply to the Court for an order under this division. Court, for the purpose of the Credit Code, in this State means this Tribunal. It falls for the Tribunal to consider whether, under s 102 of the Credit Code, to make a declaration as to whether or not the credit provider has contravened a key requirement in connection with the credit contract or contracts concerned.
The relevant facts in relation to the application have been agreed between Union Credit Union Ltd (United) and the Commissioner for Consumer Protection (Commissioner or intervener), who has intervened in these proceedings, and the Tribunal will, for the purpose of the decision, rely on those agreed facts as forming a basis upon which to proceed.

Background

On 31 October 2008, United was an authorised deposit-taking institution and credit union based in Western Australia. It has operated for over 35 years and had approximately 34,000 members.
A significant part of the business of United involved the provision of credit. The majority of credit contracts into which United entered from November 1996 were credit contracts to which the Credit Code applied, such as mortgagesecured housing loans, personals loans and personal continuing credit contracts.
On 1 November 2008, a total transfer of the businesses of United to Community CPS Australia Ltd (Community CPS) took effect. The transfer of the business was made pursuant to the Financial Sector (Business Transfer and Group Restructure) Act 1999 (WA) (FS (BTGR) Act). Community CPS is an authorised deposittaking institution and credit union based in South Australia which also has branches in the Australian Capital Territory and New South Wales. It has operated for 50 years and it had approximately 140,000 members prior to the transfer of the business taking effect. Upon the transfer of the business taking effect, Community CPS became the successor in law of United. All the assets and liabilities of United became assets and liabilities of Community CPS, and all the rights and obligations applying to United applied to Community CPS, by virtue of s 22(1) of the (FS (BTGR) Act. All of the former members of United became members of Community CPS.
During the course of the due diligence carried out by Community CPS in connection with the transfer of the business, a number of potential contraventions of the Credit Code were revealed. Community CPS subsequently carried out substantial investigations prior to the transfer of the business, which revealed a number of apparent contraventions of the Credit Code by United. Those contraventions form the subject of the application before the Tribunal.

Application

The contraventions are set out in detail in the statement of agreed facts, and are summarised as follows.
The first was a contravention of s 15G(a) and s 15G(b) of the Credit Code in failing to disclose a mortgage discharge fee in some credit contracts. In relation to credit contracts entered into by United which were secured by mortgages over real estate, United charged borrowers a mortgage discharge fee whenever it discharged a related mortgage, which usually coincided with the credit contract being paid out. The amount of the fee was $375, at least for the most part, although it varied from time to time.
That fee was not disclosed in the relevant credit contracts as a credit fee or charge which would or may become payable, although it is agreed that the fee was disclosed to members prior to any discharge occurring. It is the failure to include the fee in the relevant contract that constitutes the contravention of s 15G(a) and s 15G(b) of the Credit Code. There were, in total, some 613 contracts affected in this way which were entered into between 1 August 2005 and 15 January 2008.
With effect from 15 January 2008, United changed its forms of relevant credit contracts so as to list the mortgage fees in new credit contracts. There is a proposal, which will be dealt with later, by United to compensate borrowers in relation to the mortgage discharge fees paid where those fees were not disclosed in the original credit contract.
The second contravention concerns a failure to disclose when monthly loan maintenance fees were payable. At all material times, United charged borrowers a monthly account keeping fee of $8 per month in relation to some types of its credit contracts. On 6 August 2006, United changed the form in which the fee was described in credit contracts to which the fee applied to the following form:
monthly loan maintenance fee (not included in the monthly repayment, $8).
As a consequence, United may have contravened s 15G(a) of the Credit Code, and the Tribunal considers that it did, in that it did not state when the fee was payable. As the agreed facts recite, however, the frequency with which the fee was charged was obvious from its title, and the fee was only ever charged on the last day of each month. The contracts with which this contravention was concerned were entered into between 6 August 2006 and 6 December 2007, and there were 790 of them in all.
On 7 December 2007, United changed its forms so as to recite that the monthly fee is payable monthly on the same day that interest is debited, and that was no doubt the practice, in any event, before the change in the form, but the form was brought into compliance with the Credit Code at that time.
The third contravention is a failure to disclose when a housing loan redraw fee was payable. This concerned an entry on certain credit contracts which enabled a borrower to redraw any repayments that had been made in advance. A redraw fee was disclosed in the credit contracts simply by the entry 'housing loan redraw fee, $25'. Recital of the fee in that way amounted to a contravention of s 15G(a) of the Credit Code in that it did not state when the fee was payable.
This is obviously a technical breach because, as the agreed facts indicate, any reasonable borrower would have inferred that the fee was payable when a redraw was made, and words to that effect were inserted in the contract as from 7 December 2007 to remedy the problem which existed. The contracts affected by this were those entered into between August 2004 and 6 December 2007. There were some 6,210 of these contracts.
There is no reason to think that the affected borrowers are likely to have suffered any financial loss in relation to this contravention, and the same can be said in relation to the second contravention, which was dealt with earlier.
The fourth contravention was a failure to disclose when the annual review fee was payable. Again, there was, on the contracts concerned, a disclosure that there was an annual review fee payable, and that it was payable to United in the amount of $300. Again, there was a contravention of s 15G(a) of the Credit Code, in that the contract did not state when the fee was payable, although the frequency with which the fee was charged was obvious from its title.
The credit contracts affected were those between 1 August 2005 and 6 December 2007, and there were 296 of them in all. Again, on 7 December 2007, United changed the form to remedy the contravention so that it specified that the fee was payable to United in the month following the anniversary of the loan, and the amount was set out. Again, there is no reason to think that any affected borrowers are likely to have suffered any financial loss or other adverse impact as a result of the contraventions.
The fifth contravention relates to a failure to expressly disclose when various fees, financed under the credit contracts, were payable. In August 2005, United adopted the practice for housing loan credit contracts of disclosing credit fees and charges, which were to be allowed for in the amount of credit or the credit limit provided and deducted from the loan account when the loan was first funded in a section of the credit contract Schedule section headed 'Credit Fees and Charges (Included in the Amount of Credit)'.
The fees disclosed in that section, depending upon the product type and the particular circumstances, included establishment fees, stamp duty, title search fees, valuation fees, legal fees, lenders mortgage insurance, and so on. Again there is a contravention of s 15G(a) of the Credit Code in that the contracts concerned did not expressly state when each such fee was payable. The agreed facts say, however, and the Tribunal agrees, that reasonable borrowers would probably have assumed that they were payable at the time of the funding.
In addition, in each noncontinuing credit contract Schedule, the amounts of the fees and in many instances, details of to whom they were to be paid were also disclosed in the section of the credit contract Schedule which disclosed to whom the amount of credit was payable. There were some 9,848 contracts entered into between August 2005 and January 2008 which were affected by this contravention.
The issue was addressed in January 2008 when United changed its form of credit contracts to address the problem. Again, there is no reason to think that any affected borrowers are likely to have suffered any financial loss or adverse impact as a result of this contravention.
The sixth failure is a failure to disclose in credit contracts, all the persons, bodies, or agents to whom the amount of credit was to be provided, and the amount payable to each of them. As in relation to the previous contravention, the credit contracts identified a number of fees and charges, and generally to whom those fees and charges were to be paid. In some cases, the contracts failed to identify to whom the particular fees would be paid.
Often the words 'payable to' were followed by details of the payee, such as United, Department of Land Information, State Revenue Department, and so on, but in some cases, the identity of the payee was not set out, and that thereby amounted to a contravention of s 15B of the Credit Code. There were some 9,848 credit contracts entered into between August 2005 and 15 January 2008, but of those, the number which actually had the omission of the payee has not been ascertained.
Steps have been taken by United to ensure that the identities of payees were always disclosed after it became aware of this issue. Again, there is no reason to think that any affected borrowers are likely to have suffered any financial loss.
The seventh contravention which was identified relates to s 15E of the Credit Code. That was a contravention which arose by reason of the adoption of a loan origination program, which had the effect of inserting into the contracts, an assumed date for funding, and disclosing, as is required by s 15E of the Credit Code, the total amount of interest charges payable under the contract.
In essence, the problem which arose was that the date, which was inserted as the assumed date of funding, was not then utilised to calculate the total interest or the total number of repayments which would be due under the contract, based on that assumption. Rather, the date used for the calculation purposes was the date of the disclosure itself. The effect of this is likely to have been very minimal, although it does seem that it could have given rise to an inaccurate statement of the total amount of interest payable pursuant to the contract.
It is clear that the error relates to calculations for disclosure purposes only and would not have affected the actual interest incurred consistent with the terms of the contract by the borrower during the life of the contract. The Tribunal is satisfied, although it seems there is some doubt about the question but the applicant accepts, as does the respondent that this error, arising from a fault in the program, does amount to a contravention of s 15E of the Credit Code.
All of those contraventions mentioned to date constitute a key requirement for the purposes of s 100(1)(a) of the Credit Code and, accordingly, potentially attract a civil penalty. There are then a number of other contraventions which have emerged from the process of due diligence and subsequent investigation by Community CPS. The Tribunal will not go through those in detail, because they are matters which are not contraventions of key requirements of the Credit Code and have therefore been brought to the Tribunal's attention for the sake of completeness and to demonstrate the thoroughness with which the applicant has gone about the process of review of its United contracts and their compliance with the Credit Code.
What can be said in relation to those is that two of them concern failure to take a monthly fee into account when giving notice of repayment changes under some credit contracts, and understatement of repayments in some credit contracts entered into between July 2005 and August 2006, by reason of the failure to take account of the monthly fee of $8 as part of the repayments.
The effect of this is that the contracts affected may have resulted in a borrower paying a relatively small amount of interest in excess of that which should have been paid. Again, in relation to those contraventions, the applicant proposes to provide compensation to the affected borrowers.
It is clear from the papers that, upon discovery of these contraventions, Community CPS has carried out extensive investigations and has taken both legal and actuarial advice in relation to the consequence of the contraventions. As a result of that advice, there is an undertaking proffered it has already been given to the intervener but is now proffered to the Tribunal to pay compensation in accordance with the methodology described in the papers, and to provide regular updates to the Commissioner as to the compensation process, and to provide access to whatever relevant information or records the intervener might request in relation to the compensation process.
The actuarial advice provides a calculation of the amount of compensation that might be payable based, broadly speaking, on an assessment of the extent of any overpayment of interest in the case of the non key requirement breaches, and also the payment of the discharge fee in relation to the first contravention mentioned above, together with interest at 6 per cent on those amounts, calculated on monthly rests. The total of the compensation that would be payable in accordance with those calculations as at November last year about $433,000 will have increased to date by virtue of accruing interest.
The outline given of the contraventions of the key requirements demonstrates that most of them are of a technical nature and, indeed, in respect of a number of them, a reasonable reading of the document might well have sufficiently informed a borrower of the effect of the particular charge in any event. Nevertheless they did not, in terms, comply with the strict requirements of the Credit Code and, on that basis, it is appropriate that there be a declaration of contraventions, as the parties have suggested.
The contravention which resulted in payments by borrowers which might not have been properly required of them, which is of most significance in terms of money, is the failure to disclose the discharge fees. I note in that regard that, whilst the discharge fee was not disclosed in the contract document, it was disclosed to the borrowers prior to the discharge occurring. I note as well that borrowers have been given a notice of the irregularities in relation to the contract, and none has sought any remedy before this Tribunal, and it is clear that, individually, the amounts of money concerned, where there is an amount of money involved, are relatively small in the scheme of the overall borrowings of the people concerned.
I also note, relevant to the question of the appropriate disposition of the matter, that the applicant has brought the proceedings voluntarily itself, and has given undertakings voluntarily to pay compensation. In the absence of any application by any borrower for compensation, the Tribunal would not have been in the position to make orders of compensation. It can be said, fairly, that the applicant has, in this case, acted in a very responsible way and has accepted its responsibilities in relation to the compliance with the Credit Code in a way which one would hope to see from any financial institution mindful of its legal responsibilities.

Matters to be considered

Section 102 of the Credit Code requires the Tribunal to take into account a number of matters in deciding whether or not a civil penalty ought be imposed, and if so, how much.
Section 103(2) requires that the Tribunal have regard primarily to the prudential standing of the credit provider. It seems that, on the materials which are before the Tribunal, considerations of prudential standing somewhat fall away. There is no suggestion that the business operations of the credit provider would be affected in any way which might affect its capacity to continue its business, and consideration need not be given to that possibility.

It is said though, that any civil penalty which might be imposed has the effect of eating into the profits of what is a mutual organisation existing ultimately for the benefit of its members and, in that sense, its prudential standing might be affected. Whilst it is relevant to consider the consequences of the imposition of a civil penalty on those who might ultimately bear it, it seems that this is a consideration which arises as 'any other matter that the [Tribunal] considers relevant' under s 102(4)(i) of the Credit Code rather than as a consideration relevant to prudential standing 'prudential standing' being a term not defined in the Credit Code just precisely what is contemplated by the expression is somewhat uncertain.
There are a number of other considerations which the Credit Code requires the Tribunal to have regard to. They are found in s 102(4) of the Credit Code.
The first is the conduct of the credit provider and the debtor before and after the credit contract was entered into. It is submitted that, save for the fact that United failed to prevent the contraventions of key requirements of the Credit Code and the other contraventions or potential contraventions of non key requirements from occurring, there is no basis for any adverse finding in relation to United's conduct or the conduct of Community CPS before or after the affected contracts were entered into. The Tribunal accepts that submission.
It is clear that these contraventions have arisen broadly as a result of systems failures on the part of United, and they are systems failures which more careful attention to the requirements of the Credit Code should have prevented. Beyond that, there is nothing in the conduct of United which seems to be a factor that needs consideration in terms of the civil penalty.
As mentioned earlier, Community CPS is now the applicant in these proceedings by reason of the transfer of the United business to it, and as a successor in law of the duties and obligations of United and its business. Its conduct, to the extent that is relevant to penalty, has been commendable. It has discovered these matters in the course of due diligence; it has obviously liaised with the intervener in relation to appropriate action; it has expended considerable funds on investigation of the level of compliance, and it has taken what, in my view, are appropriate steps to remedy the position and to compensate and, possibly, compensate somewhat generously those affected by the contraventions.
The second consideration under s 102(4) of the Credit Code is whether the contravention was deliberate or otherwise. The Tribunal is satisfied that the contravention was not deliberate but resulted from the systems failures which have been explained in some detail in the statement of agreed facts. There was, it is accepted, a failure on the part of some staff of United to appreciate the potential consequences of new systems, but it all falls short of any suggestion of any attempt to deliberately not comply with the requirements of the Credit Code.
The third consideration is the consideration of the loss or other detriment, if any, suffered by the debtor as a result of the contravention. As indicated, there were, in relation to the failure to disclose the discharge fees and the system failure in relation to the calculation of interest taking account of the monthly fee, potential losses or detriments suffered by borrowers. As indicated, it is proposed, to the extent possible, to locate and compensate those borrowers for those losses.
The fourth consideration is when the credit provider first became aware, or reasonably had become aware, of the contravention. Most of the contraventions seem to have come to the notice of the present applicant as a result of the due diligent process following its purchase of the business, and as indicated, it has acted promptly to remedy any of the contraventions which were still occurring at that time.
The fifth consideration is any systems or procedures of the credit provider to prevent or identify contraventions. Without going into the details of the systems and procedures which have been outlined, it is clear that the applicant has put in place systems designed to prevent further contraventions and identify any risk of further contraventions. In terms of the systems and procedures applicable at the time of the contraventions, it is conceded that there were systems failures and failures to properly review the systems to ensure that the contraventions did not occur, but the Tribunal accepts that those things were as a result of inadvertence rather than any intentional desire to avoid compliance with the Credit Code.
The sixth consideration is whether the contravention could have been prevented by the credit provider. It is selfevident that proper oversight would have prevented the contraventions, but little more can be said about that. It is hard to imagine a contravention which could not have been prevented by appropriate systems and oversight.
The seventh consideration is any action taken by the credit provider to remedy the contravention or compensate the debtor or to prevent further contraventions. As already indicated, the credit provider has taken steps to remedy the contraventions, and proposes to give an undertaking to the Tribunal to compensate the debtors. As noted, the Tribunal is satisfied that the compensation proposed is adequate and appropriate. The Tribunal is satisfied that the method by which the compensation has been calculated is appropriate and adequately compensates the borrowers concerned.
The eighth consideration is the time taken to make the application and the nature of the application. There was, between the time that the contraventions became apparent and the commencement of the proceedings, some lapse of time. The due diligence occurred in December 2007 and the application was made in October 2008.
Although there is a lapse of some 10 months, it is clear that the applicant was carrying out investigations and assessing the position, and it seems that period of delay is entirely understandable, and indeed, probably appropriate, before an application is made, so that the full position can be put before the Tribunal. So there is nothing in the time taken to make the application which suggests anything other than the applicant was behaving in an entirely appropriate manner.
The final consideration is anything else that the Tribunal might consider relevant. It has been drawn to my attention that the applicant is a mutual organisation. Its profits are utilised ultimately for the benefit of members by seeking to offer financial products at the most beneficial rates, and, ultimately, the expenses of the organisation are, in effect, borne by the members. So a civil penalty imposed upon the applicant ultimately is a penalty imposed upon the members who are the very people whose interest the Credit Code is designed to protect.
In looking at all of the features of this application, it seems that the consequences of a civil penalty on the members is a relevant consideration.
It is also observed that the present applicant is potentially subject to a civil penalty by reason of the operation of the FS (BTGR) Act under which it assumes all the liabilities of the business which it has taken over from United. It is in fact, of course, not responsible for the actual conduct which gave rise to the contraventions, albeit that it bears the liability for that conduct in law. The present applicant has been responsible for actually identifying these contraventions and taking appropriate action, and is now proposing to pay compensation. It seems that those circumstances are also factors which are relevant to consider in the context of whether or not a civil penalty ought be imposed.
The Tribunal is also mindful that the applicant has apparently involved and kept informed the intervener who is responsible for regulation of the Credit Code in this State, and that the intervener does not oppose the proposition that the applicant not be subjected to a civil penalty, subject to it meeting its undertaking to pay compensation in the manner which is proposed.
The position of the intervener was that these proceedings ought be adjourned for a period to enable the Tribunal to review whether or not the proposal to pay compensation had progressed to a satisfactory level, such that the intervener could be sufficiently satisfied that compensation had been paid and, on that basis, that no civil penalty should be imposed.
As indicated during the course of exchange with counsel, the Tribunal does not consider that that course is necessary or appropriate. It is not necessary, in the Tribunal's view, because the applicant has proffered to the Tribunal an undertaking to pay the compensation in the manner described in its submissions and agreed facts. It has also proffered an undertaking that it will keep the intervener informed, by quarterly reports, of the process of compensation.
There is reason to believe that contact with the vast majority of people affected by these contracts will be possible. The first mail out notifying potentially affected people of these events resulted in something just over 1,000 of the 17,000 letters being returned unclaimed, and it is fair to assume that when cheques are sent to those who did not have accounts with the applicant, the proportion that will be returned unclaimed is likely to be similar.
There will be a number, no doubt, of borrowers who still have accounts with the applicant and their compensation will be paid directly into their accounts. So the reality is that if the applicant does what it proposes to do and the Tribunal has no reason to doubt that it will it is likely to successfully dispose of something in excess of $400,000 by way of compensation. That will leave a relatively small amount which either will be available for collection by any borrower who learns of its existence and seeks repayment, or may be subject to the operation of the Banking Act 1959 (Cth) if it is an amount greater than $100.
In any event, the Tribunal is satisfied that the applicant will be paying a very substantial amount of money by way of compensation in accordance with its undertaking. The Tribunal does not see any prospect, if that occurs, of the view which it has taken, as to whether or not a civil penalty should be imposed, being changed as a result of the detail about precisely how much is returned unclaimed and how much is successfully dispersed.
It is, of course, important that the applicant meet its undertaking, given its conduct in the matter to date. As indicated, the Tribunal has no doubt that it will, but if it were to fail to comply with its undertaking, there is a remedy available to the intervener to seek to have the applicant dealt with for contempt, ultimately by the Supreme Court, and it seems to the Tribunal that the existence of that ultimate sanction is sufficient comfort to rely upon the undertaking being carried out, in which case a substantial amount of money will be paid out by the applicant.

Penalty

As to the question of penalty, the Tribunal's attention was drawn in the submissions to some other decisions around Australia where no civil penalty has been imposed. In particular my attention was drawn to a decision of Muir J in the Supreme Court of Queensland in Re SuncorpMetway Ltd (1998) QSC 264 where he said:
I regard it as extremely significant that the applicant has incurred costs in excess of $100,000 in relation to this application. That figure does not have regard to the time lost by employees of the applicant engaged in providing materials to legal advisers and other consultants. I cannot see that the addition of a modest fine, to a large expenditure in time, effort and money, by the applicant would serve a useful purpose. Indeed, in my view, it would fail to give appropriate recognition to the responsible manner in which the applicant has conducted itself and to the losses incurred by it in so doing.
Those observations seem to me apposite to the situation with which the Tribunal is confronted in this case. The papers indicate that there have been expenses in excess of $190,000 incurred in investigating the contraventions, in obtaining legal and actuarial advice in relation to the contraventions, and reporting to the intervener and liaising with the intervener, and making and conducting this application.
In addition, it is said and the Tribunal accepts that the applicant has incurred substantial internal costs. In addition to that, the undertaking as to payment of compensation will result in the applicant paying out something in excess of $400,000. In all, it seems that those consequences of these contraventions are likely to be sufficient deterrent to this sort of conduct in future. It is conduct which has occurred essentially by reason of a failure in systems, rather than any intentional conduct on the part of any individual or the applicant corporately.
In those circumstances, the imposition of a civil penalty on top of what has proved to be a substantial cost would serve no useful purpose and, indeed, may serve to discourage others from adopting what, in the Tribunal's view, is a commendable and responsible approach to the remedying of errors which have been found to have occurred in the past.

Orders

For the above reasons, the Tribunal considers that it is appropriate that there be no civil penalty imposed. There will be declarations in terms of the Minute which has been submitted and there will be an order that the applicant pay the intervener's costs in relation to the application to be agreed or assessed.

I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT