New South Wales Bar Association v de Robillard

[2004] NSWADT 45

CITATION:	New South Wales Bar Association v de Robillard [2004] NSWADT 45
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT Christian Roger de Robillard
FILE NUMBER:	032008
HEARING DATES:	13/08/2003, 15/10/2003, 12/12/2003 & 27/11/2003
SUBMISSIONS CLOSED:	01/30/2004
DATE OF DECISION:	03/05/2004
BEFORE:	Nader J QC - ADCJ (Deputy President)
APPLICATION:	Late application to Tribunal
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal (Interim) Rules 1998 Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987
CASES CITED:	Director-General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212
REPRESENTATION:	APPLICANT G Waugh, counsel RESPONDENT In Person
ORDERS:	1. Application under section 44 of the Administrative Decisions Tribunal Act 1997 for leave to make a late application is dismissed.; 2. Order dispensing with compliance with rule 14(3) of the Administrative Decisions Tribunal (Interim) Rules 1998 is vacated.

1 This is, in substance, an application by the Council of the Bar Association of New South Wales (“the Council”) for leave to lay an Information against Mr Christian Roger De Robillard (“the Barrister”) under section 167(1) of the Legal Profession Act 1987 (“the LP Act”) outside of the time limited by section 42 of the Administrative Decisions Act 1997 (“the AD Act”).

2 On 12 November 2003 I made an order dispensing with compliance with rule 14(3) of the Administrative Decisions Tribunal (Interim) Rules (“the A D T Rules) without considering the merits of the application or the effect of granting it. Rather than vacate that order and then proceed to consider the merits of the application, for administrative simplicity, I have let the order stand. I now proceed to consider the merits.

3 Although the application is procedural in form, its outcome will have substantive effects. The burden of persuading the Administrative Decisions Tribunal (“the Tribunal”) that an order extending time for the making of an application should be made would ordinarily be carried by an applicant. Therefore, if the Council does not discharge that onus, the order made on 12 November 2003 will be vacated.

4 As will later appear, I do not think that an order dispensing with compliance by the Council with rule 14(3) would achieve what the Council really seeks. It would not remove the effect of section 42.

CHRONOLOGY OF EVENTS

5 It may assist an understanding of these reasons if a chronology of the main events and alleged events is given, albeit with a minimum of comment at this stage.

1 July 2001 to 6 November 2001

The Barrister allegedly practised as a barrister in NSW without being the holder of a current barrister’s practising certificate. This is the basis of ground 1 of the Information.

Alleged appearance by the Barrister in the Full Federal Court.

Alleged preparation by the Barrister of application for special leave in a High Court matter.

Alleged preparation by the Barrister of an applicant’s summary of argument in the said High Court matter.

The Council decided to make a complaint to the Legal Services Commissioner against the Barrister in respect of 1, above.

Letter from Council officer to the Barrister informing him, inter alia , of Council meeting of 14 February 2002 and requesting information.

Indefinite suspension of the Barrister’s practising certificate under s38FH of the LP Act.

Letter from Council officer to Barrister noting that no reply to the letter of 27 February 2002 (above) had been received and drawing the Barrister’s attention to the provisions of section 152 of the LP Act.

The Barrister appeared before the High Court on the instructions of Diamond Peisah & Co., solicitors, when he knew that his practising certificate had been indefinitely suspended on 6 March 2002 under s38FH of the LP Act. This is ground 2 of the Information of 3 July 2003.

Letter from Council officer to Barrister noting that no reply to letters of 27 February and 20 March 2002 had been received and again reminding the Barrister of the provisions of section 152 of the LP Act. The Barrister’s attention was drawn to the matter of Graham Leonard Berry, Solicitor (No.13 of 1996) delivered 12 September 1996. The letter further asked the Barrister to reply to the letter of 27 February 2002 by 4pm on 10 April 2002.

The Barrister allegedly appeared before the High Court in the matter of Applicant S254-01- re MIMA & Ors. This is the basis of ground 2 of the Information.

Date of s152 (1) Notice under LP Act relating to complaints by Mr John Kaleb, to be answered 9 May 2002.

Notice under section 152(1) of the LP Act.

Council resolved to make a complaint against the Barrister in respect of his alleged High Court appearance on 2 April 2002 whilst his practising certificate was suspended, and for failure to provide answers to the Bar Council’s questions, on or before 23 April 2002, in relation to his alleged appearance in the High Court on 2 April 2002 as required by letters from Council of 12 April and 16 April 2002.

Letter from an officer of the Council to the Barrister advising him of the Council’s resolutions of 24 April 2002. The letter allowed the Barrister until 22 May 2002 to make submissions with respect to whether there was reasonable likelihood that he would be found guilty of professional misconduct, and to respond to the letter.

Further letter from an officer of the Council to the Barrister noting the complaints then pending against him. The letter included complaints not included in the Information. The substance of the complaints are summarised in the letter.

The date by which the s.152 (1) notice dated 19 April 2002 concerning complaints by Mr John Kaleb were required to be complied with.

The date specified in an s.152 (1) Notice under the LP Act, dated 19 April 2002, on or before which the Barrister was required to comply with the notice. Alleged failure to comply with the notice constituted ground 3 of the Information.

Letter from an officer of the professional conduct committee to the Barrister informing him that the investigation and report of “Complaint (No 1)” against him had been completed, and enclosing a copy. The letter advised that before forwarding the report to the Council for consideration the professional conduct committee wished to afford the Barrister the opportunity to be heard in relation to certain matters. The Barrister was to provide any reply by 4pm on 27 August 2002: i.e., within 14 days of the date of the letter. Apart from describing the complaint as “Complaint (No 1)”, the letter does not in its terms identify the subject matter of the complaint: the letter refers to an enclosed report not included in the affidavit. Complaint (No 1) is not to be identified with the subject matter of ground no.1 of the Information which relates to practising whilst suspended between 1 July 2001 and 6 November 2001: see entry for 21 August 2002, below.

Letter from an officer of the professional conduct committee to the Barrister informing him of the completion of the investigation and report of the complaint against the Barrister by the Council under s.134 (2) of the LP Act made 24 April 2002. I assume that this is the complaint relating to the alleged appearance by the Barrister in the High Court on 2 April 2002 (Information, ground 2). The letter advised that before forwarding the report to the Council for consideration the professional conduct committee wished to afford the Barrister the opportunity to be heard in relation to certain matters. The Barrister was to provide any reply by 4pm on 27 August 2002: i.e., within 14 days of the date of the letter.

Letter from an officer of the professional conduct committee to the Barrister advising him that the Council had resolved at its meeting on 15 August 2002 to initiate a complaint against him for practising without a practising certificate in the period 1 July 2001 to 6 November 2001. (This is the conduct alleged in ground 1 of the Information.) Again, an opportunity to make submissions to the Council was given to the Barrister. The letter also informed the Barrister that the Legal Services Commissioner had been informed of the making of the complaint in accordance with s.135 (3) of the LP Act.

Letter from an officer of the professional conduct committee relating to what was referred to as “Bar Council Complaint No.1”, noting that no submissions had been received from the Barrister in response to the invitation in the letter of 13 August 2002 and advising that the professional conduct committee intended to report to the Council in the terms of its draft report dated 1 August 2002, a copy of which was enclosed with the letter of 13 August 2002 and a further copy of which was enclosed with this letter.

The Council resolved to refer the complaints, the subject of grounds 1 & 2, to the Tribunal upon the basis that the Council was satisfied on the material then before it that there was a reasonable likelihood that the Barrister would be found guilty of professional misconduct. This was that date from which the time limited for laying the Information commenced to run in respect of those complaints.

The Council resolved to refer the complaint, the subject of grounds 3, to the Tribunal upon the basis that the Council was satisfied on the material then before it that there was a reasonable likelihood that the Barrister would be found guilty of professional misconduct. This was that date from which the 28 day period referred to in rule 14(3) of the ADT Rules commenced to run in respect of that complaint.

Letter from an officer of the professional conduct committee relating to the following complaints:
Bar Council Complaint No.1 made 27 February 2002 (relating to practising as a barrister between 1 July 2001 and 6 November 2001; resolved - a reasonable likelihood of a finding of either unsatisfactory professional conduct or professional misconduct: Information - ground 1.)

Bar Council Complaint No.2 made 24 April 2002 (relating to appearance in High Court on 2 April 2002; resolved - a reasonable likelihood of a finding of professional misconduct: Information - ground 2.)

Bar Council Complaint No.3 made 15 August 2002 (relating to failure to comply with a notice under section 152(1) of the LP Act; resolved - a reasonable likelihood of a finding of professional misconduct: Information – ground 3.)

The letter advised that the Council had resolved to institute proceedings in the Legal Services Division of this Tribunal in respect of each complaint referred to on the basis that in the case of complaint No.1 the Council was satisfied that there was a reasonable likelihood that the Barrister would be found guilty of either unsatisfactory professional conduct or professional misconduct, and, in the cases of complaints Nos 2 and 3, of professional misconduct.

The last day for the laying of an Information in respect of grounds 1 & 2.

The last day for the laying of an Information in respect of ground 3.

The date of the laying of the Information: roughly 8 months beyond the time limited by rule 14(3) of the ADT Rules.

First return date of the Information. The Council applied for dispensation from compliance with rule 14(3) of the ADT Rules. The application was opposed by the Barrister. The Tribunal ordered that the Council file evidence and submissions in support of the application by 27 August 2003, and that the Barrister file evidence and submissions in opposition to the application by 10 September 2003.

The Barrister, not having complied with the order of 13 August 2003, requested further time to prepare and lodge submissions and to file any affidavits wish to rely upon. The Council had complied with the order of 13 August 2003. Further time was allowed the Barrister: his documents to be lodged and served by 24 October 2003. Orders were made limiting the time for lodging and serving documents in reply.

The Barrister had not complied with the order of 15 October 2003. In the absence of written submissions from the Barrister, it was ordered that compliance with rule 14(3) of the Administrative Decisions Tribunal (Interim) Rules 1998 (“ADT Rules”) be dispensed with. (The power to grant such an application is conferred by rule 4 of the ADT Rules: see below) After somewhat impassioned oral submissions by the Barrister, it was decided to consider whether the order dispensing with compliance with rule 14(3) should be vacated. The proceedings were stood over part heard to 27 November 2003, the Barrister to prepare submissions and evidence to be served on the Council by 24 November 2003.

At a directions hearing on this date the Council applied under s44 of the ADT Act to extend the time for the laying of the Information in the proceedings. The Barrister handed up to the Tribunal written submissions dated 26 November 2003 which had been delivered to the Council’s solicitor on 26 November 2003. The Council filed a written application under section 44 of the ADT ACT. Directions for the further prosecution of the issue of extending time were given.

6 The application under s44 referred to above was handwritten on 27 November 2003 and lodged in the ADT registry when the provisions of s44, requiring the application to be in writing, were brought to my attention and to that of the Council by the Barrister in the course of the hearing on that date. The typed application now on file was substituted on 10 December 2003 for the handwritten one.

7 The decision on the issues raised in the proceedings for extending time was to be considered as reserved from 9 January 2004.

8 Rule 14 of the ADT Rules provides that:

“(1) For the purpose of section 42 (b) of the Act, an application to the Tribunal for an original decision must:

a) …

b) …

c) …

d) …

(2) …

(3) Unless the enactment under which the application is made provides otherwise, the application must be made to the Tribunal within 28 days from the day on which the applicant became untitled under the enactment to make the application.”

9 The Tribunal, the President or a Divisional Head may dispense with compliance with any requirement of the ADT Rules, either before or after the occasion for compliance arises: ADT Rule 4. I have already pointed out in the chronology that an application under rule 4 to dispense with compliance with rule 14(3) was made on 13 August 2003. I do not think that the granting of that application would do anything to advance the Council’s position in the matter of the extension of time because the obstacle to the Council is not only rule 14(3) but also section 42 of the ADT Act. The mere waiving the necessity for compliance with rule 14(3) does not remove rule 14(3) from the ADT Rules. The rule continues to exist and remains relevant by virtue of section 42 of the ADT Act which operates by reference to the terms of the ADT Rules whether or not direct compliance with the rules themselves is required. Removal of the need for compliance with rule 14(3) does not remove the need to comply with section 42 of the Act. As will be seen when the terms of the legislation are considered, the granting of an application under section 44 of the ADT Act, alone, would achieve the Council’s purpose, but the granting of an application under rule 4 of the ADT Rules to dispense with compliance with rule 14(3) would not.

10 Section 167 of the LP Act provides that proceedings may be instituted in the Tribunal with respect to a complaint against a legal practitioner by an Information laid by the appropriate Council … in accordance with Part 10 of the LP Act.

11 The LP Act makes no provision as to the time within which an Information must be laid. Accordingly, by virtue of section 42(b) of the ADT Act, operating by reference to rule 14(3) of the ADT Rules, an Information under section 167 of the LP Act must be made within 28 days from the day on which the applicant became entitled under the LP Act to make the application.

12 Section 42 of the ADT Act provides:

“A person may apply to the Tribunal for an original decision if:

a) …

b) the application is made in the manner and within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made).”

13 The day on which the Council became entitled under the LP Act to lay the Information, insofar as it concerned grounds 1 and 2 was 10 October 2002, the day on which the Council resolved that it was satisfied that there was a reasonable likelihood that the Barrister would be found guilty by the Tribunal of professional misconduct in respect of those matters.

14 Sub-section 155(2) of the LP Act provides:

“(2) The Council … must institute proceedings in the Tribunal with respect to the complaint against the legal practitioner if satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct.”

15 Therefore it became necessary for the Council to lay the Information in respect of grounds 1 and 2, before 7 November 2002. I express it that way because there are two obligations:

1. to lay the Information; and

2. to lay it within a limited time.

16 With respect to the ground 3, the Council became satisfied of the reasonable likelihood of a finding of guilt on 24 October 2002. Accordingly it became necessary to lay the Information relating to ground 3 by 15 November 2002.

17 The enactment under which the application is made in this case is the LP Act. The word “application”, in relation to Part 10 of the LP Act, refers to an Information under section 167(1) of that Act, and, in the context of this case, it refers to the Information laid on 4 July 2003.

18 To recapitulate, it is by application under section 44 of the ADT Act that a person must seek an extension of time to make a late application.

19 Section 44 of the ADT Act provides:

“(1) Despite section 42(b) [of the ADT Act, see above], the Tribunal may, on application in writing by an interested person seeking to make a late application, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application.

(2) The time for making an application for an original decision may be extended under subsection (1) although the time has expired.

(3) In this section, late application means an application not made within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made).”

20 If this had been the first case of its kind to come before the Tribunal, a question may arise whether the expression, “if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application”, states the only criterion to be applied by the Tribunal in determining whether an application under section 44 should be granted. Having regard to the way in which I intend to resolve this application, it is not necessary to answer that question.

21 In any event the reasonableness of the explanation for delay is, by statute, the threshold issue; if the threshold is not crossed, the application must fail.

22 As has been noted, the last days for the laying of Informations were 7 October 2002 (grounds 1 and 2) and 15 November 2002 (ground 3). The Information including all 3 grounds was in fact laid on 4 July 2003. The written application for extension of time for the laying of the Information was not made until 27 November 2003.

23 Argument was directed to the question whether a sub-section 44(1) application can be made after the Information has been laid in the registry of the Tribunal: whether the application can be made nunc pro tunc. Sub-section 44(2) provides: “The time for making an application for an original decision may be extended under subsection (1) although the time has expired.” The physical laying of the Information seems to me to have little bearing on the question. The laying of the Information, if it is invalid or even a nullity, cannot detract from the right of an applicant to have its application treated as one in which “the time has expired”. The most serious possible consequence to an Informant of laying a late Information before the grant of an extension of time, that I can imagine, might be a requirement to lay the Information again after the granting of an application: an unlikely and probably pointless consequence.

24 Having regard to the way in which this matter is resolved, the point does not have to be dealt with but I think that I would have found that the weight of authority is that applications for extension of time may be made nunc pro tunc.

THE EXPLANATION FOR THE DELAY

25 I now turn to examine the question whether the Councils has provided a reasonable explanation for the delay of about eight months in making the application.

26 By reason of the terms of section 44(1) of the ADT Act, if the Council has not provided a reasonable explanation for the delay, the s44 application must fail no matter how strongly other factors that may be taken into account may favour the applicant. The satisfaction of the threshold requirement is a condition sine qua non for the granting of the application.

27 The reasons for the delay, “put in a nutshell” by the Council in its written submissions, may be paraphrased:

“…, the explanation for the delay on the part of the solicitor with conduct of the matter, is that he was not aware of the time limit imposed by Rule 14(3) of the Tribunal Rules until 12 June 2003 when he was informed of that requirement by an officer of the Bar Association. By that time, the time limit under Rule 14(3) had well and truly expired.

The circumstances of this case are similar to those in Director-General, Department of Infrastructure, Planning and Natural Resources v Stapleton – a reasonable explanation for the delay was oversight on the part of the legal officer in the Department who looked at the wrong statute. When the Crown Solicitor identified the error the proceedings were filed in a relatively timely way.

To the extent that the delay was caused by “employees or agents” of the Council, there are three principal reasons for the delay:

1. There was a change of the personnel responsible for the day to day management of the files.

2. There was some doubt about the appropriateness of pursuing ground 3 of the Information, the position as to which was being clarified in other proceedings in the Tribunal.

3. It was considered to be unwise and unfair to open up another front, as it were, against the Barrister whilst he and the Association were at issue in the Supreme Court.

28 I will examine each of those components of the Council’s explanation.

The solicitor’s ignorance of the time limit.

29 The question arises, whether a solicitor’s ignorance of a statutory time limitation is a reasonable explanation for failure to comply with it. But, in this case, the solicitor’s admission that he did no know about rule 14(3) cannot alone explain his failure. It is almost certainly implicit in the admission that he was also unaware of sections 42 and 44 of the ADT Act. The terms of those section should have irresistibly compelled the solicitor to look for “the time prescribed by the rules of the Tribunal”, or for the time prescribed by “the enactment under which the application is made”. His discovery that there was no time prescribed by the LP Act should have caused him to turn to the ADT Rules: the rules of the Tribunal. It was not reasonable for the solicitor to remain in ignorance of the time limitation as he did.

30 The Council, itself and its staff in the Professional Conduct Dept, were well aware of the time limit, or ought to have been. That limit is a critical factor in all such cases. Therefore, it was clearly incumbent upon them either to ensure that the solicitor retained to conduct this matter knew of the time limitation, or to inform the solicitor of the limitation. For the Council to have retained a solicitor without ascertaining that s/he was well aware of such a fundamental matter was not reasonable.

31 The Bar Council, unlike a lay client with no legal knowledge knows that there are technicalities in the prosecution of professional misconduct cases and, one might reasonably expect, would either refer the matter to a solicitor experienced in such work, or exercise close supervision over his work. Not to do so was not reasonable and the consequences for failure to do so were not reasonably explained by that failure.

32 The circumstances of Director-General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212 were in some respects similar to the present case. However, there are two ways at least in which they differ. In that case, the time delay was five weeks; here it is about 8 months: that is a gross quantitative difference, so great as to be critically significant. In that case, unlike this, the Department was not the body charged with the duty of supervising the conduct of legal practitioners. The Council is the body who, par excellence, may be expected to ensure that its litigation in an exemplary manner.

33 The mere assertion that there was a change of personnel, without more, really explains very little. Was there no reasonable way of compensating for the problems that such a change might cause? What was it about the change of personnel that contributed to delay in the order of eight months? These and other questions would need to be answered before the mere assertion of a change of personnel could be regarded as a circumstance supporting an inference of reasonable explanation for such a long delay.

34 The Information asserts in a global and undifferentiated way that, by reason of the conduct alleged in the three complaints included in the information, the Barrister is guilty of “professional misconduct and/or unsatisfactory professional conduct”. The “grounds” supporting that allegation are three in number.

35 Ground 1 stems from Bar Council Complaint No.1 made 27 February 2002. It relates to practising as a barrister between 1 July 2001 and 6 November 2001. The Council resolution included a finding that there was a reasonable likelihood of a finding of either unsatisfactory professional conduct or professional misconduct.

36 Ground 2 originated with Bar Council Complaint No.2 made 24 April 2002. It relates to an appearance in High Court on 2 April 2002. The Council resolution included a finding that there was a reasonable likelihood of a finding of professional misconduct. The Information adds unsatisfactory professional conduct as a possible finding.

37 Ground 3 originates from Bar Council Complaint No.3 made 15 August 2002. It relates to failure to comply with a notice under section 152(1) of the LP Act. The Council resolved that there was a reasonable likelihood of a finding of professional misconduct. The Information adds unsatisfactory professional conduct as a possible finding.

38 The contention by the Council that there was some doubt about the appropriateness of pursuing ground 3 of the Information raises a question which was not debated at the hearing of this matter. I am unaware of any discretion on the part of the Professional Conduct Committee of the Council, or even the Council itself, once the conditions of s-s.155 (1) & (2) of the LP Act have been satisfied, not to proceed against the legal practitioner in the Tribunal. The terms of section 155(2) are unqualified. Where there is a reasonable likelihood of a finding of guilt of professional misconduct, the Council “must institute proceedings in the Tribunal”.

39 A resolution of the Council declaring its satisfaction within the meaning of s.155 (2) can be presumed to have been made only after the Council has had access to, and has considered, enough of the evidence relating to the guilt of the legal practitioner to say that it is relevantly satisfied. The very fact that a resolution of satisfaction “must” be followed by the institution of proceedings in the Tribunal carries with it the implication that the Council must have had access to sufficient material to justify the commencement of proceedings.

40 The short time limitation, after becoming satisfied of “a reasonable likelihood” under s.155 (2), for the commencement of proceedings is readily understood when it is seen that the state of satisfaction cannot be reached until sufficient evidence has been gathered to justify the prosecution.

41 Thereafter, the only need of the Council for time is what is required by its staff to draft and lay the Information. In this case, the Information is a short pleading, much of which is formal. There is no discretion not to commence the prosecution. There is no discretion as to what the information should, in substance, allege. In those circumstances, 28 days should ordinarily be sufficient time in which to prepare and lay an Information.

42 The time needed to get the case ready for hearing is a matter for determination at a directions hearing. After the laying of the Information, the progress of the matter is in the hands of the Tribunal assisted by the parties.

43 If an event arises or becomes apparent after the laying of the Information that may reduce the extent of the likelihood of a finding of guilty so as to warrant termination of the proceedings, that question can be raised with the Tribunal and the appropriate orders made. If the Tribunal is satisfied that discontinuance is appropriate, it may give leave to the Council to discontinue. Questions of costs may have to be decided.

44 But, it would be a clear circumvention of s.155 if the Council, bound by statute to commence the proceedings, were at liberty either not to commence them, or to discontinue them at will, however good the reasons for doing so may seem to the Council. It was never open to the Council not to proceed upon its own complaint with respect to ground 3.

45 A decision by a Court higher in the hierarchy of authority than the Tribunal, indicating that the commencement of the proceedings in the Tribunal was misconceived, might be a good reason for seeking the Tribunal’s leave to discontinue after commencement. But, the possibility of such a decision cannot, having regard to the statutory scheme justify delaying or holding back the institution of the proceedings.

46 The fact of a case pending in a Court may justify the Tribunal in delaying the hearing, but it would not justify a Council in delaying the institution of proceedings.

47 Many of the foregoing considerations were not argued before me. I have not had the benefit of the dialectic of opposing contentions.

48 However, on the assumption that the substance of what I have said is correct, there is no reasonable explanation for the lengthy delay of about eight months in making the application in this case. The institution of proceedings did not have to await the work required to be done to get the matter ready for trial. The possibility of a case being decided in the Supreme Court that might affect the matter did not justify the delay. Second thoughts on the part of Council staff about ground 3 should not have been permitted to prevail over the Council’s resolutions under s.55 (2).

49 Accordingly, the Council’s application under section 44 of the ADT Act for leave to make a late application is dismissed and the order dispensing with compliance with rule 14(3) of the ADT Rules is vacated..

50 This matter will be listed again to enable the parties to make submissions as to costs if they wish to.