Corrigan & Gibson v Watson
[2009] NSWADT 110
•18 May 2009
CITATION: Corrigan & Gibson v Watson [2009] NSWADT 110 DIVISION: General Division PARTIES: APPLICANTS
RESPONDENT
Mark Corrigan and Graeme Gibson
Greg WatsonFILE NUMBER: 083380 HEARING DATES: 2 April 2009 SUBMISSIONS CLOSED: 2 April 2009
DATE OF DECISION:
18 May 2009BEFORE: Hennessy N - Magistrate (Deputy President); Higgins S - Judicial Member; Antonios Z - Non-Judicial Member CATCHWORDS: Application for costs, fairness in the circumstances LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Local Government Act 1993
Victorian Civil and Administrative Tribunal Act 1998
Legal Profession Act 2004
Local Government (General) Regulation 2005CASES CITED: Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 157
R v Gray, ex parte Marsh (1985) 157 CLR 351
Bourne v Murphy & Ors (Unreported, NSWCA, 4 December 2006)
Jeffery & Ors v Roberts (2002) NSWADT 57
Roberts v Jeffery & Ors (Unreported, NSWSC, 11 April 2003)
Cheung v The Administrative Decisions Tribunal of New South Wales [2000] NSWSC 1062
Beasley v Department of Education and Training [2006] VCAT 2044
Re Public Transport Corporation and Boroondara CC [2000] VCAT 472
Mornington Peninsula SC v Fox (Unreported, VCAT, 24 October 2003)
Calderbank v Calderbank [1975] 3 All ER 333
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12
Irresistible Frocks Salon Pty Ltd v Sparbac Pty Ltd and Roche Group Pty Ltd (No 2) [2004] NSWADT 72
The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120
Shorten v David Hurst Constructions Pty Ltd [2008] NSWSC 609
Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353REPRESENTATION: APPLICANT
RESPONDENT
N Case, solicitor
R McCrudden, counselORDERS: The Respondent’s application for costs is refused.
Introduction
1 On 23 December 2008 Mr Gibson and Mr Corrigan (the Applicants) applied to the Tribunal for Mr Watson (the Respondent) to be dismissed from his position as a councillor with the Shoalhaven City Council. The Applicants withdrew the application approximately six weeks later, before a directions hearing had been held. The Respondent applied for the Applicants to pay his legal costs on an indemnity basis saying, among other things, that the application lacked merit and was an abuse of process. The Applicants say that the matter was discontinued because the critical witness withdrew her statement.
2 Although Mr Watson is applying for costs, for convenience we have continued to refer to him as the Respondent and to Messrs Gibson and Corrigan as the Applicants. Each party filed some evidence and made detailed written submissions. We have considered the costs application ‘on the papers’: Administrative Decisions Tribunal Act 1997 (ADT Act), s 76. We have done so because the facts are relatively clear and we are reluctant for the parties to incur further costs by attending a hearing when there has never been an appearance at the Tribunal. Our decision is to refuse the application for costs.
Background
3 Following local government elections on 13 September 2008, Mr Watson was elected as a councillor. The Applicants are not council members nor did they stand for election. The application to the Tribunal for the Respondent to be dismissed from public office was based on the following ground:
In the lead up to the New South Wales local government elections conducted on 13 September 2008, Mr Greg Watson, candidate in the Shoalhaven Council elections second ward, falsely claimed to be endorsed by Aboriginal Elder Ms Ethel Little, contrary to s 356B (b) of the Local Government (General) Regulation 2005.
4 Section 356B(b) of the Regulation relates to non-complying electoral material and states that:
For the purposes of this Division, electoral material contravenes this Subdivision if:
(b) the material contains an untrue or incorrect statement intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his or her vote
5 The allegedly untrue or incorrect statement appeared in a pamphlet distributed to potential electors. The pamphlet contained a letter of support for Mr Watson from Ms Little and from another Aboriginal elder, Ms McLeod. The Applicants alleged that Ms Little had not endorsed the Respondent in relation to the 2008 election.
6 The Tribunal set the matter down for a directions hearing on 16 January 2009. On 8 January the Respondent applied for the directions hearing to be delayed for a further two weeks. The Applicants also applied for the date to be vacated for reasons including that ‘several persons important to the preparation of the our client’s application have been on holidays both prior to the lodgement of the application and subsequently.’ The 16 January date was changed to 13 February. Because the Applicants’ solicitor was not available on that date, the directions hearing was re-scheduled to a day earlier, 12 February, over the Respondent’s objection. The application was withdrawn on 6 February 2009.
Relevant provisions and their meaning
7 The Tribunal has power to award costs in relation to proceedings brought under s 329 of the Local Government Act 1993 (LG Act): s 329(6). The provision in the ADT Act that governs the awarding of costs is s 88. When the application was lodged, s 88 was in a different form. It was amended with effect from 1 January 2009 but the amended provision applies to applications and proceedings that ‘were made on or commenced, but not finally determined’ before that date: ADT Act, Schedule 5, Part 11, cl 43(2)(i). As these proceedings were not finally determined before 1 January 2009, the amended provision applies. The old s 88, which required ‘special circumstances’ before an order for costs could be made, no longer applies and the jurisprudence relating to ‘special circumstances’ is no longer relevant. The new s 88 states that:
(1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.
(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:
(d) the nature and complexity of the proceedings,
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(iv) causing an adjournment, or
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or
(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or
(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(vi) vexatiously conducting the proceedings,
(v) attempting to deceive another party or the Tribunal, or
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(e) any other matter that the Tribunal considers relevant.
(2) The Tribunal may:
- (a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
(4) In this section, "costs" includes:
(a) costs of or incidental to proceedings in the Tribunal, and
- (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.
8 Section 88 is not specifically referred to in the Attorney General's second reading speech of the Administrative Decisions Tribunal Amendment Bill 2008 (Bill), which introduced it. However, the notes to the Bill state that:
Currently, section 88(1) provides that costs may be awarded only if the Tribunal is satisfied that there are special circumstances. The new provisions are based largely on the provisions of s 109 of the Victorian Civil and Administrative Tribunal Act 1998 ( VCAT Act ) of Victoria.
9 Section 88 begins with a general statement of principle that each party to proceedings is to bear his or her own costs. That principle is different from the principle that applies in courts. In the absence of special circumstances, courts generally exercise their discretion to award costs in favour of the successful party, that is ‘costs follow the event’: Thiess v TCN Channel Nine Pty Ltd(No 5) [1994] 1 Qd R 156 at 207-208. Section 88 gives the Tribunal a discretion to award costs ‘but only if it is satisfied that it is fair to do so’ having regard to certain matters which are listed at (a) to (e). Those matters include ‘any other matter that the Tribunal considers relevant’. Contrary to the Respondent’s submission, decisions of courts in relation to the circumstances in which it is appropriate to award costs on an indemnity basis, are of limited relevance to proceedings in the Tribunal.
10 The Tribunal is empowered by sub-section (2) to determine by whom and to what extent costs are paid. Costs are usually awarded on what is known as a ‘party/party’ basis, that is, the costs that are ‘fair and reasonable’ for the work: Legal Profession Act 2004, s 364(1). In this case the Respondent has applied for costs to be paid by the Applicants on an indemnity or full recovery basis: Legal Profession Act 2004, s 364(1).
11 Section 109 of the VCAT Act has been in operation for more than 10 years. Given the similarity of that provision to s 88, decisions of VCAT are relevant when interpreting s 88. Section 109 provides:
(1) Subject to this Division, each party is to bear their own costs in the proceeding.
(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.
(3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to-
(d) the nature and complexity of the proceeding;
(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as-
(iv) causing an adjournment;
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;
(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;
(iii) asking for an adjournment as a result of (i) or (ii);
(vi) vexatiously conducting the proceeding;
(v) attempting to deceive another party or the Tribunal;
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;
(e) any other matter the Tribunal considers relevant.
(4) If the Tribunal considers that the representative of a party, rather than the party, is responsible for conduct described in subsection (3)(a) or (b), the Tribunal may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily.
(5) Before making an order under subsection (4), the Tribunal must give the representative a reasonable opportunity to be heard.
(6) If the Tribunal makes an order for costs before the end of a proceeding, the Tribunal may require that the order be complied with before it continues with the proceeding.
Respondent’s submissions
12 In broad terms, the Respondent’s submissions relate to:
a) the merits of the application when it was made,
b) the motivation of the Applicants when the application was made, and
c) the manner in which the Applicants’ solicitors behaved after the application had been lodged.
13 In particular, the Respondent relied on s 88(1A)(a)(c) and (e).
Merits of the application
14 The Respondent submitted that the application had no tenable basis in fact or law because:
a) the action brought is not recognised under the Local Government Act ;
b) the application was brought against the wrong person;
c) the ground for the application was false and the Applicants knew when lodging the application that it was false; and
d) the application was lodged out of time and the Tribunal has no discretion to extend the time.
15 Action not recognised under the LG Act. The application cites ‘s 356B(b)’ of the Local Government (General) Regulation 2005 as the provision contrary to which Mr Watson was said to have ‘falsely claimed’ to be endorsed by Ms Little. The Respondent submitted that ‘s 356(b)’ does not exist. That may be so, but that is not the provision referred to in the application. The endorsement of Mr Watson by Ms Little appeared in a pamphlet circulated in support of Mr Watson's campaign for election in 2008. According to the Respondent, it is not a requirement that Mr Watson ‘falsely claimed’ but that he printed, published or distributed non-complying material.
16 An Applicant for orders dismissing a person from civic office must prove two things:
a) that there was a ‘departure from some rule, established practice or generally accepted principle governing the conduct of the election’: R v Gray, ex parte Marsh (1985) 157 CLR 351 at 368 per Gibbs J; and
b) that the irregularity was such that it rendered the outcome of the election uncertain: Bourne v Murphy & Ors (Unreported, NSWCA, Priestly, Cole and Beazley JJA, 4 December 2006).
17 The Respondent disputed that an ‘irregularity’ under s 329 could include an offence under s 356B of the Regulations. In making that submission, the Respondent does not appear to have been aware of the Tribunal’s decision in Jeffery & Ors v Roberts (2002) NSWADT 57 at [28] or the Supreme Court’s decision in Roberts v Jeffery & Ors (Unreported, NSWSC, 11 April 2003). The Tribunal found in Jeffery v Roberts (2002) that a potential breach of electoral regulations can comprise an ‘irregularity’ for the purposes of s 329 of the LG Act. In that case, a candidate for election to a local council was found to have falsely claimed, in various electoral materials, to be endorsed by a political party when the fact was that that party did not endorse him. On appeal, the Supreme Court said that the Tribunal:
. . . found that to state, wrongly, that an electoral advertisement is authorised by a named and prominent individual (and to fail to state by whose authority an electoral advertisement is published) constitute irregularities in the manner in which a person is elected to office. . . . I do not consider having regard to the language of s 329(2) that the Tribunal erred in law in so concluding.
18 It follows that the Respondent’s submission that the application is not recognised under the LG Act is, in our view, incorrect.
19 Wrong respondent? The Respondent submitted that because Mr Watson himself did not personally make a claim that he had been endorsed by Ms Little, the ‘offence’ was non-existent. According to the Respondent, an unnamed person who was the ‘agent’ of Mr Watson was responsible for the brochure which contained the assertion of support by Ms Little. The Respondent says that it was open for the Applicants to proceed against the unnamed agent. It is apparent from this submission that the Respondent has misunderstood the nature and effect of s 329 of the LG Act. It is not directed towards the perpetrator of the alleged irregularity, it is directed towards the process by which a councillor was elected. Despite the evidence provided by the Respondent, the application was brought against the only person it could have been brought against, that is the person who was elected to office as a result of the alleged irregularity. The application did not lack merit on that count.
20 Application was false and not supported by evidence. The cornerstone of the Respondent’s submission was that when the proceedings were commenced, the Applicants relied entirely on a report in the South Coast Register in September 2008, which quoted Ms Little as saying she had not signed any endorsement for Mr Watson. According to the Respondent, the Applicants had ‘never possessed even something as rudimentary as a signed statement by Ms Little.’
21 In her statement, Ms Case, the solicitor for the Applicants, attached a copy of a statement signed by Ms Little and witnessed on 19 December 2008, four days before the application was lodged. That statement says, among other things, that when a woman from the South Coast Register interviewed her, she told her that she had not given her endorsement to support Mr Watson. Ms Case also stated that she had spoken to Ms Little by phone on 5 February 2008, the day before the application was withdrawn, and that Ms Little had said to her words to the effect that:
I don’t want you to use my statement. I am too sick and I don’t want the stress of travelling to Sydney and going to court.
22 The Applicants rely on Ms Case’s statement in answer to all allegations made by the Respondent that they attempted to deceive and mislead the Tribunal or engaged in any abuse of process because they had made no inquiries and had no evidence in support of their claim and/or knew any evidence that they did have was false. The Respondent’s response to this evidence, and to Ms Case’s submission, was that it was open for the Applicants to assert that there was evidence to ground the application when the application was made but they did not do so and that the Tribunal should infer that Ms Case was unwilling to make such an assertion. Furthermore, the Respondent submitted in relation to Ms Little’s statement that ‘a short, one line, ambiguous statement merely carries the innuendo that she had been accurately reported in the paper.’
23 The Respondent was apparently not aware when he applied for costs, that Ms Little had signed a statement which supported the Applicants’ case. The production of that statement negates the Respondent’s submission that no such evidence existed. The Respondent’s attempt to question the strength of that evidence is unconvincing. Evidence supporting the Applicants’ claim existed at the time the application was lodged. It was not incumbent on the Applicants to disclose that evidence to the Respondent prior to any directions being made by the Tribunal.
24 Application out of time? The Respondent submitted that the application was lodged out of time and for that reason, among others, it was doomed to fail. Proceedings for dismissal ‘may not be commenced more than 3 months after the date of the person’s election or appointment to that office’: LG Act, s 329(3). The word ‘election’ in s 329(3) is not defined in the LG Act. The election was held on 13 September 2008. The Respondent submitted that that was the date that Mr Watson was elected and as the application was not lodged until 23 December, it was ten days late. Alternatively, the Respondent submitted that if the relevant date is the date the poll was declared, that date was 22 September and the application was still made one day late. The Applicants submitted that the relevant date is the date of the declaration of the result of the election by the Returning Officer which they say was 25 September 2008. If that is the relevant date, then the application was lodged within time.
25 Local Government elections are carried out by the Electoral Commissioner in accordance with the requirements of the LG Act and Regulations and otherwise as he or she determines: LG Act, s 296(1) and s 296(6)(c). The Electoral Commissioner appoints a Returning Officer who in turn appoints Electoral Officers to conduct the election. The LG Act and the Regulations require an initial count followed by a check: Regulations, Cl 348 and Cl 350. Counts are conducted by the electoral officials and checks are conducted by the Returning Officer, who must immediately notify the Electoral Commissioner and inform the candidates and others of the result of the count: Regulations, Cl 351. Clause 356 sets out the process by which the Returning Officer must declare the result of the election. It relevantly states:
(1) The Electoral Commission is to approve of the returning officer's declaring the election in writing as soon as practicable after the notification of the result of any recount or it becomes clear that no recount will be required.
(2) The declaration is to be signed by the returning officer and is to state the number of votes recorded for each candidate, the names of the candidates declared elected (being the names under which those candidates were nominated by the returning officer) and the ward or area for which they have been elected.
26 In Cheung v The Administrative Decisions Tribunal of New South Wales [2000] NSWSC 1062, the parties agreed that the relevant date for calculating the three month period is the date the poll is declared. Although the Supreme Court did not need to make a finding to that effect, we are satisfied, in accordance with the statutory scheme described above and the Applicants’ submission, that that is the relevant date.
27 The Respondent attached to his submissions a copy of a document referred to as ‘the declaration of the returning officer’. In the top left hand corner of that document, the date 22/09/08 appears. The document contains a heading ‘Results Report – count 1’. While the Respondent does not identify the origin of this document, it appears that it may be a record of the first count. It does not purport to be a declaration of the poll. The Applicants have not obtained a copy of the notices from the Returning Officer to the Electoral Commissioner or from the Commissioner to the Governor, which are required to be given by Clauses 351 and 356, respectively. According to the Applicants, these documents are not available electronically. The Applicants say that when they were preparing the application they relied on the document annexed to the statement of Ms Case and marked NFC4, which was downloaded from the NSW Electoral Commission website on about 1 October 2008. This document states that: ‘GREG WATSON was declared elected to position 2 on 25 September 2008’.
28 The Commission is required to place this information on its website pursuant to Cl 356(5) and keep it there for one month. While this document is not a copy of the notices required by Cl 351, the content reflects the content required to be notified in that regulation. We accept the Applicants’ submission that this document may be relied on as evidence that the result of the election conducted on 13 September 2008 was declared for the purposes of the Regulations, on 25 September 2008. That conclusion is supported by the Supreme Court decision in Roberts v Jeffery & Ors, where the Court said (at 49) that the conduct of an election includes ‘the whole proceeding from the first step taken by the returning officer [to] the declaration of the result’. Consequently, it is highly likely that the Applicants' application was filed within time. If that is the case, the Tribunal had jurisdiction.
29 Conclusion. None of the grounds on which the Respondent submitted that the Applicants’ case has no tenable basis in fact or law has been made out. When considering a costs application, the Tribunal may also have regard to the relative strengths of the claims made by each of the parties: ADT Act, s 88(1A)(c). The comparative strength of each party’s case has been said by the VCAT to mean ‘a substantial disparity between the strength of one claim and the weakness of its competitor’: Beasley v Department of Education and Training [2006] VCAT 2044 at [20]. In these circumstances it may be fair to make an award of costs to the stronger side. However, having a weak case does not, of itself, justify an order for costs. A high level of weakness is required: Re Public Transport Corporation and Boroondara CC [2000] VCAT 472 at [32] (See Jason Pizer, Pizer’s Annotated VCAT Act (2001) at p 250). The application was withdrawn at such an early stage in the proceedings that it is difficult for the Tribunal to assess the relative merits of the parties' cases. However, it is clear from the evidence before the Tribunal that there was a ‘genuine issue to be tried’: Mornington Peninsula SC v Fox (Unreported, VCAT, Judge Higgins VP and Byard SM, 24 October 2003). That issue became untenable when Ms Little withdrew her statement on or about 6 February 2009. The Applicants requested that the proceedings be withdrawn and discontinued on 6 February 2009.
Motivation of Applicants at time application was made
30 The Respondent alleged that the Applicants were unfairly targeting him on the basis that:
- a) Although it was alleged by the Shoalhaven Action Campaign that Mr Proudfoot was in clear breach of the Electoral Act , the Applicants did not take any action against him.
b) There had been a history of complaints by Mr Gibson against Mr Watson and his party.
c) Mr Corrigan had made frequent complaints against Mr Watson and his party in public meetings and in a submission to the NSW Upper House.
d) Both Applicants have appeared often on the ABC and local radio station, 2ST, and have attacked Mr Watson on many issues.
31 Even if there has been a history of disagreement or indeed acrimony between the Applicants and the Respondent, that does not establish that the proceedings lacked merit or were conducted vexatiously.
Manner in which proceedings conducted
32 . Three factors put forward by the Respondent can be dealt with under this heading: their so-called offer of compromise, the Applicants’ alleged refusal to particularise the claim and the Applicants’ request for an adjournment.
33 Offer of compromise. On 13 January 2009, the Respondent sent a letter to the Applicants which they have characterised in their submissions as a Calderbank offer. According to the Respondent, the Applicants refused to consider that offer or respond in any manner and ‘acted in defiance of attempts to settle’, contrary to law. In the letter the Respondent made an ‘offer’ that the Applicants withdraw the application and pay the Respondent’s costs to date on a party/party basis. In return, the Respondent agreed not to apply for indemnity costs in any court or tribunal nor make a claim for damages. The Applicants’ solicitors did not reply to this letter. The Respondent submitted that as a result of sending that letter he should be entitled to costs on an indemnity basis.
34 The principle in Calderbank v Calderbank [1975] 3 All ER 333 referred to by the Respondent is that where a party offers to settle a matter on terms as favourable or more favourable to the other party than are determined by the court or tribunal, the offering party may be entitled to costs on the higher solicitor-client basis instead of the usual, lower, party-party basis. The basis for this principle was recently enunciated by the Court of Appeal in Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 at [18]:
Parties to litigation are expected to act reasonably in the running, and the resolution by compromise, of litigation. Stubbornness, intransigence and unrealistic and unreasonable expectations and demands can lead to unnecessary and unreasonable demands on scarce public resources. Just as parties are obliged to exhibit co-operation and openness in the conduct of litigation . . . they are obliged not to act unreasonably in the consideration and dealing with settlement offers.
35 When applying the old s 88, the Tribunal considered the principles in Calderbank v Calderbank to be relevant in retail leases disputes when determining whether ‘special circumstances’ warranting an order for costs existed: Irresistible Frocks Salon Pty Ltd v Sparbac Pty Ltd and Roche Group Pty Ltd (No 2) [2004] NSWADT 72 at [16] – [19]. Similarly, those principles may be a relevant matter when the Tribunal is determining whether it is fair to make an order for costs. However, unlike the VCAT Act, the ADT Act does not contain a specific provision which creates a presumption that costs will be awarded if certain settlement offers are rejected and the Tribunal subsequently makes orders that are not more favourable to the other party than the offer: VCAT Act, s 112.
36 The question of whether we should exercise our discretion to award costs based on the Respondent’s letter does not arise in this case because the letter is not a Calderbank offer. A Calderbank offer must involve ‘a real and genuine element of compromise’: The Anderson Group Pty Ltd v Tynan Motors Pty Ltd(No 2) [2006] NSWCA 120 at [8]. An offer that merely involves dismissal of the proceedings and payment of costs lacks any element of compromise - it is a demand for capitulation designed solely to trigger an entitlement to indemnity costs: Shorten v David Hurst Constructions Pty Ltd [2008] NSWSC 609 at [6]; Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353 at 355. Secondly, the proceedings were withdrawn before the Tribunal made an order of any kind. As the Tribunal did not determine the matter, no comparison can be made between the so-called ‘offer’ and the Tribunal’s determination.
37 Refusal to particularise their claim. On 15 January 2009, the Respondent wrote to the Applicants requesting that they ‘kindly forward by return copies of such statements, letters, statutory declarations or affidavits of such witnesses as ground this matter which is extraordinarily serious and which so nearly (sic) affects our client’s reputation, honesty and integrity.’ On 21 January 2009, the Respondent wrote again requesting essentially the same documents. The Applicants did not respond. We agree with the Applicants’ submission that the Respondent’s request was not a request for particulars of their case. Rather, it was a demand that the Applicant serve on them the evidence that they currently had to hand. No directions hearing had been held at that stage and no reply had been filed. In those circumstances, the Applicants' failure or refusal to provide the requested evidence was not unreasonable.
38 Request for adjournment. The Applicants requested an adjournment on 9 January 2009. In that letter, the Applicants said:
Several persons important to the preparation of our clients’ application have been on holidays both prior to the lodgement of the application and subsequently. One witness is on holidays until about 20 January 2009.
The Applicants are concerned that, as a result, they will not be in a position to provide the Tribunal with an informed and accurate assessment of the further steps they need to take in preparation for a hearing by 16 January 2009 and that a directions hearing on that date would therefore not be the most efficient use of the Tribunal’s and the Respondent’s time.
39 The Respondent suggested that the Applicants’ request for an adjournment was for the purpose of obtaining evidence they did not have. The Respondent submitted that it was implicit in the request that the witness was an actual witness and that the Applicants were aware of the kind of evidence she would give from some declaration or statement or letter. Ms Case was aware of that evidence as her statement attaching a statement from Ms Little dated 18 December demonstrates. The Respondent has been unable to establish his assertion that Applicants misled the Tribunal when seeking the adjournment. The proceedings were not conducted vexatiously or in a way that disadvantaged the Respondent.
Conclusion
40 The Applicants commenced proceedings within the statutory time period armed with evidence to support that application. When it became clear that Ms Little was not prepared to give evidence, the application was discontinued in a timely fashion. Neither party ever attended the Tribunal even for a directions hearing. We are not satisfied on the basis of the Respondent’s submissions that it would be fair to make an order for costs in this case. As we have decided not to make an award of costs on a party/party basis, there is no need to consider whether an award should be made on an indemnity basis as submitted by the Respondent.
Order
The Respondent’s application for costs is refused.
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