Stakeholders in Methyl Bromide Reduction Incorpoated v Environmental Protection Authority
[2019] NZHC 3482
•20 December 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-571
[2019] NZHC 3482
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
controls imposed by the Environmental Risk Management Authority under section 77A of the Hazardous Substances and New Organisms Act 1996
BETWEEN
STAKEHOLDERS IN METHYL BROMIDE REDUCTION INCORPORATED
Applicant
AND
ENVIRONMENTAL PROTECTION AUTHORITY
Respondent
Hearing: 10 December 2019 Appearances:
M T Scholtens QC and D W Ballinger for Applicant M S Smith for Respondent
Judgment:
20 December 2019
Reissued:
31 January 2020
JUDGMENT OF COOKE J
(Interim relief)
[1] The applicant is an incorporated body representing companies involved in the export of logs. The logs need to be treated before they can be exported to ensure that they do not harbour unwanted organisms. To do so a hazardous substance called methyl bromide is currently used. That substance is potentially harmful to the environment, and to workers and other persons who are in and around the logs so treated. A decision has been made that requires a level of “recapture” of methyl bromide gasses released on treatment which will take effect in October next year. The
STAKEHOLDERS IN METHYL BROMIDE REDUCTION INCORPORATED v ENVIRONMENTAL PROTECTION AUTHORITY [2019] NZHC 3482 [20 December 2019]
applicant seeks interim relief that effectively prevents this requirement taking effect until this judicial review challenge is determined.
Background
[2] Under the Hazardous Substances and New Organisms Act 1996 (the Act) the Environmental Protection Authority (the EPA) and its statutory predecessor are responsible for approving the use of hazardous substances such as methyl bromide within the environment.
[3] From the mid-2000s there has been increasing public concern about the use of methyl bromide. A petition was presented to Parliament in 2005, and the position was considered by the Local Government and Environment Select Committee which recommended the EPA’s predecessor to reassess methyl bromide as soon as possible.1 By a decision dated 18 July 2008 EPA’s predecessor found there were grounds for such a reassessment.
[4] On 4 November 2009 the Chief Executive of EPA’s predecessor then submitted an application for reassessment. By decision dated 28 October 2010 a decision- making committee of the EPA’s predecessor decided that fumigators would need to recapture the methyl bromide, which takes gaseous form, within a fumigation enclosure before the enclosure is opened to the atmosphere. This requires the level of methyl bromide to be reduced inside the enclosure to less than five parts per million on a time weighted average. This new recapture control requirement was not to be implemented immediately. In effect the industry was given 10 years to develop technologies that would enable this new requirement to be satisfied. The recapture control requirement takes effect on 28 October 2020.
[5] Two steps have been taken by the industry to deal with this. In 2017 an application was submitted to the EPA to approve an alternative substance called ethanedinitrile (EDN). Unfortunately the determination of this application has been delayed. By a minute dated 28 January 2019 the decision-making committee hearing
1 Local Government and Environment Committee Petition 2002/182 of Claire Gulman and 1,452 others (27 October 2006).
that application adjourned it in order to receive further information and engage with Worksafe. At the hearing before me I was further advised that such information is still presently being sought and evaluated, with the application still adjourned.
[6] In October 2017 the applicant also made a further application for reassessment of the original decision made in relation to methyl bromide in light of what had been achieved in terms of recapture technology. On 5 April 2018 it was determined that there were grounds for such a reassessment. A modified reassessment application was then made in March 2019. This was applied for as a precaution given that the outcome of the EDN application was not known. In this application alternatives are proposed in terms of the level of reduction of methyl bromide in the atmosphere of the enclosure prior to release. Hearings in relation to this application are to commence early next year. The decision-making committee hearing that application decided in October 2019 to delay the start of the hearing process. The applicant opposed that course because of its concern in relation to the looming date of October next year.
[7] It is against that background that the applicant has sought interim relief under s 15 of the Judicial Review Procedure Act 2016. The judicial review proceedings it has filed challenge the original decision of October 2010, and the applicant now seeks an order:
… preserving the present position for the use of methyl bromide for quarantine and pre-shipment purposes without recapture until further order of the Court, notwithstanding the effect of clauses 13(1) and 13(2) in the controls in Table C2 of the methyl bromide approval dated 28 October 2010, the validity of which are subject to this application for judicial review.
[8] The application is supported by an affidavit of the Chair of the applicant, Mr Donald Hammond, dated 26 June 2019 and two affidavits from a consultant working in the area, Mr Ian Gear, dated 7 and 28 November 2019. The order is opposed by the EPA, with that opposition supported by an affidavit of Ms Gayle Holmes the Acting General Manager of the EPA’s Hazardous Substances and New Organisms Group sworn 25 November 2019.
Test for interim relief
[9]Section 15 of the Judicial Review Procedure Act 2016 provides:
(1)At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.
(2)The interim orders referred to in subsection (1) are interim orders—
(a) prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power:
(b) prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application relates:
(c) declaring that any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by the passing of time before the final determination of the application, continues and, where necessary, that it be deemed to have continued in force.
…
(4)An order under subsection (2) or (3) may—
(a) be made subject to such terms and conditions as the court thinks fit; and
(b) be expressed to continue in force until the application is finally determined or until such other date, or the happening of such other event, as the court may specify.
[10] The general approach to interim relief under the predecessor of this section, s 8 of the Judicature Amendment Act 1972, was set out by the Supreme Court in Minister of Fisheries v Antons Trawling Company Ltd,2 by reference to the judgment of the Court of Appeal in Carlton & United Breweries Ltd v Minister of Customs.3 The Supreme Court held:
[3] Before a Court can make an interim order under s 8 of the Judicature Amendment Act 1972 it must be satisfied that the order sought is reasonably necessary to preserve the position of the applicant. If that condition is satisfied the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant’s claim for review and all the repercussions, public and private, of granting interim relief.
2 Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101, (2007) 18 PRNZ 754. See also [9].
3 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).
[11] It is possible to further break down the test into a number of more discrete steps.4 For myself I prefer the two-stage approach set out above as it puts greater emphasis on the question of overall evaluation emphasised by the Court of Appeal in Carton & United Breweries and adopted by the Supreme Court in Antons. As Richardson J said:5
[The section] does not mandate any particular approach to the statutory test of whether an interim order is necessary for the purpose of preserving the position of the applicant. The legal answer must depend on an assessment by the Judge of all the circumstances of the particular case. Clearly the nature of the review proceedings will be material. So will the character, scheme and purpose of the legislation under which the impugned decision was made. And appropriate weight must of course be given to all the factual circumstances including the nature and prima facie strength of the applicant's challenge and the expected duration of an interim order. Nor should the residual discretion
… be circumscribed by reading qualifications into the broad language of the section.
The statutory scheme
[12] As indicated the scheme and purpose of the relevant legislation, and the nature and strength of the challenge are relevant considerations.
[13]The purpose of the Act is described in the following terms:
4 Purpose of Act
The purpose of this Act is to protect the environment, and the health and safety of people and communities, by preventing or managing the adverse effects of hazardous substances and new organisms.
[14]Section 6 then provides:
6 Matters relevant to purpose of Act
All persons exercising functions, powers, and duties under this Act shall, to achieve the purpose of this Act, take into account the following matters:
(a) the sustainability of all native and valued introduced flora and fauna:
(b) the intrinsic value of ecosystems:
4 See The Friends of Onekawa Aquatic Centre Society Inc v Napier City Council [2019] NZHC 1977 at [12].
5 Carlton & United Breweries Ltd v Minister of Customs, above n 3, at 430.
(c) public health:
(d) the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, valued flora and fauna, and other taonga:
(e) the economic and related benefits and costs of using a particular hazardous substance or new organism:
(f) New Zealand’s international obligations.
[15] As can be seen from s 6(e) the economic benefits of using the particular hazardous substance is relevant to the achievement of the Act’s purposes. The purpose of the Act is not just to prevent the adverse effects, but also to “manage” them which is where the economic benefits will become relevant. Mr Hammond has explained that in the period 2010 to 2018 the value of log exports has increased from $1.2 billion to $3.4 billion, so it is a very significant export industry.
[16] An application made to the EPA is considered by a decision-making committee appointed to hear an application. Under s 29 of the Act that committee exercises a discretion to approve or decline the application, including on the basis of any controls imposed. It is obliged to take into account a number of matters under that section and may approve it if “the positive effects of the substance outweigh the adverse effects”. It is clear, therefore, that an overall balancing approach is involved.
[17] It is also relevant that methyl bromide has been addressed internationally. New Zealand has ratified the Montreal Protocol on Substances that Deplete the Ozone Layer, which is a protocol to the Vienna Convention for the Protection of the Ozone Layer.6 Section 6(f) of the Act requires the decision-making committee to take into account New Zealand’s international obligations, and under the Montreal Protocol certain commitments were made in relation to the reduced use of certain substances, including methyl bromide.
[18] In its decision of 28 October 2010 the decision-making committee sought to balance the relevant considerations in reaching the decision it did. It reached the
6 Montreal Protocol on Substances that Deplete the Ozone Layer 1522 UNTS 3 (signed 16 September 1987, entered into force 1 January 1989); and Vienna Convention for the Protection of the Ozone Layer 1513 UNTS 293 (signed 21 March 1986, entered into force 22 September 1988).
following conclusions that are relevant to the imposition of the control which takes effect next year:
Conclusion
16.11.48The Committee notes the responses from the submitters and stakeholders and concludes that:
•while the recapture of methyl bromide used in shipping container fumigations is technically proven and is operational in some circumstances, its mandatory introduction in places where large numbers of containers are fumigated will have significant logistical and economic impacts;
•it will be some time before equipment is available to recapture methyl bromide used in ship hold fumigations; and
•the technology for recapture of methyl bromide from fumigations under sheets is still being developed.
16.11.49Taking these conclusions into account, the Committee remains of the view that the use of recapture technology is a desirable outcome and decides that all methyl bromide used in fumigation activities in New Zealand should be subject to recapture technology within 10 years from the date of this decision.
16.11.50A 10-year timeframe has been chosen to allow for development, acquisition and installation of suitable equipment.
16.11.51The Committee has given consideration to setting out transitional steps which would see recapture technology progressively introduced over the next 10 years but acknowledges that such transitional provisions would be difficult to manage.
16.11.52However, the Committee is requiring fumigators to report to ERMA New Zealand on an annual basis on progress in introducing recapture technology.
[19] The circumstances leading to the current application are described by Mr Hammond in the following terms:
The research and development that [the applicant] has co-ordinated, supported and funded is the only concerted effort of this sort being undertaken anywhere in the world, yet the inescapable conclusion of [the applicant’s] work is that there is presently no technology that can achieve the 5ppm WES level required by the Recapture Control by October 2020 other than for shipping container fumigations. The highest performing recapture technology that could potentially be implemented on tarpaulin fumigations by October 2020 has the potential to consistently recapture 80% of the methyl bromide remaining in the headspace, but that falls some orders of magnitude short of the 5ppm standard. And at the present time, it has not been confirmed that similar
technology can be effectively scaled up to achieve the same or similar recapture levels from ship hold fumigations.
Is there jurisdiction to make the order?
[20] In opposing interim relief Mr Smith relied on two matters which he argued meant the Court had no jurisdiction to grant the relief sought.
[21] First he argued that the orders sought by the applicant here would enhance rather than preserve the applicant’s position.7 Mr Smith particularly emphasised that the 2010 decision contained no provision within it for extending the period of the licence without the controls beyond October 2020. I do not accept this argument. For the reasons set out in greater detail in Greer v Department of Corrections a technical or formulistic approach should not be applied to the interpretation and application of s 15 and the Court’s interim relief powers.8 The powers should be interpreted and applied in light of their purpose. Two evident purposes are to preserve the ability of the Court to grant effective relief should a challenge be successful, and to relieve an applicant from the adverse effects of a challenged decision until that challenge is heard and determined. Both of those purposes are potentially engaged in the present case. The applicant seeks orders allowing the current terms of the authority to use methyl bromide to continue until its challenge is determined. This involves preserving the current position. If the challenged control requirement took effect before the judicial review challenge was heard and determined adverse effects could arise, potentially to the point of threatening the export businesses represented by the applicant. This is precisely the type of circumstance s 15 is directed to. Whether the Court should grant the orders following consideration of the merits of such matters as part of the overall evaluation is a separate question.
[22] Secondly Mr Smith argued that the interim relief sought was not within the wording of s 15, and in particular s 15(2)(c). That was because the licence in issue was not due to “expire by the passing of time”, and in fact will continue after October 2020. I also reject that argument for similar reasons. It is based on a literal interpretation of s 15. The Court should not adopt an interpretation that involves
7 See, for example, Forster v NZ Chiropractic Education Trust [2010] NZAR 361 (HC) at [33]– [42].
8 Greer v Chief Executive, Department of Corrections [2018] NZHC 1240 at [21]–[25].
jurisdictional limitations as a matter of the wording of the section. A licence that becomes more limited as a consequence of a challenged decision is contemplated by the concepts of revocation, suspension or expiration referred to in s 15(2)(c). The licence to operate without the controls is revoked. Equally the licence to operate without those controls will “expire by the passing of time” as set out by the challenged decision. The section is intended to capture situations where it is appropriate to prevent the challenged decision taking effect before the challenge is determined. A narrow approach has not been previously applied in such cases. For example in Minister of Fisheries v Antons Trawling Company Ltd itself the interim order allowed a fishing company to continue with the higher annual quantities of catch under its licence which had been reduced by the challenged decision.9
[23] For these reasons I conclude that the Court has jurisdiction to make the orders sought. This brings me to the more important question, which is whether interim orders should be granted in the present circumstances.
Assessment in the present case
[24] The essence of the argument advanced by Ms Scholtens QC is that the exporters are now being placed in an impossible position from a practical point of view. That is because of the need for lead time before the industry was able to make effective changes to their business practices for what is a substantial export industry. The new control takes effect in October next year, but as things presently stand the exporters have no way of knowing what the requirements will be at that time in order to plan for any required changes. The application for EDN has now stalled. If the EDN application fails, then much will then hinge on the reconsideration application. But the EPA has delayed commencing the reassessment application hearings. The concern is that a decision will not be made until mid-next year (or later) and the industry will be expected to apply whatever is determined by October 2020. From a practical point of view this will be extremely difficult.
[25] I understand the significance of this point from a practical point of view. It is, however, very unusual for the High Court to be asked to grant interim orders in relation
9 Minister of Fisheries v Antons Trawling Company Ltd, above n 2.
to something that is not due to take effect for some 10 months. That is considerably in advance of the usual timeframe for the Court to be asked to make such orders. Put another way, as things presently stand the orders do not appear reasonably necessary to preserve the position of the applicant because the current position will exist for at least another 10 months.
[26] There are two decisions of decision-making committees yet to be made. Any decision of a decision-making committee may be appealed to the High Court on a question of law.10 If any appeal is so brought, this Court has jurisdiction to grant interim orders, a power which is expressed in broad terms.11 This means that the applicant has the right to appeal the decisions of the decision-making committees, both in relation to EDN and in relation to the reassessment application, and if it does so it has the right to apply to the Court for interim orders. The ability to make such an application seems to me to mean that the applicant has the appropriate avenue to obtain interim relief should this truly become necessary.
[27] That is not to deny the significance of the point in terms of the need for lead time. In recognition of its significance, during the hearing I asked Mr Smith to confirm two matters, and asked that he take instructions from the EPA during an adjournment for that purpose. In particular:
(a)First, I asked him to confirm whether the decision-making committee that is hearing the reassessment application early next year has jurisdiction to extend the time for implementation of the control that is presently to take effect at the end of October 2020. I asked that because, as I understand the reassessment application the only request the applicant had made for further time is with respect to a more specific aspect (in relation to the recapture conditions within the cargo holds of ships), rather than the timing of the recapture control more broadly. After taking instructions Mr Smith confirmed that irrespective of the precise terms of the application, the decision-making committee had full jurisdiction to reconsider the matter in a more general sense, and
10 Hazardous Substances and New Organisms Act 1996, s 126.
11 High Court Rules 2016, r 20.10.
could extend the period of time more generally if it thought that appropriate. That being the case, interim orders would only be necessary if the committee decided not to grant such an extension, or was not able to release its decision within a reasonable period before October 2020.
(b)Secondly I asked Mr Smith to confirm that the EPA recognised the significance of the lead time issue for the industry. Again he was able to take instructions on that matter. He was not able to identify any aspects of a decision of the decision-making committee, or even correspondence from the EPA in its executive functions recognising this point. But Mr Smith nevertheless acknowledged that the point was well understood. I take from that the EPA recognises it may be reasonable to give parties represented by the applicant appropriate lead time to deal with any decision requiring a significant change to business practices. Indeed to some extent this is already reflected in the 10 year period initially provided for in the original decision.
[28] In those circumstances it seems to me that the orders are not necessary to protect the position of the applicant at present. In particular:
(a)There will be an ability to grant interim relief in relation to any appeals brought in relation to the decision on EDN or the reassessment application. The Court would be able to fully assess the circumstances if and when such an application were made closer to the October 2020 date.
(b)If the decisions concerning EDN and the reassessment have not been released within a timeframe that gives the applicant a reasonable opportunity to approach the Court and obtain interim relief before October 2020, the applicant could then challenge the relevant interlocutory decisions, and particularly the adjournment decisions, that have been made by the decision making bodies that had led to that state of affairs. Such a challenge could be by way of judicial review, and
could contend these decisions were unreasonable given the looming date. Again the Court would be able to fully assess the circumstances of that application if and when it was made.
[29] So it seems to me that the applicant’s position is covered, particularly in light of the acknowledgements given by EPA.
[30] Moreover the Court should assess an application for interim relief in the particular circumstances. Whilst the applicants are very worried about what may happen in 10 months’ time, the picture may well be very different at that stage. I do not think it advisable for me to presently make orders based on a prediction on what the circumstances might be then. The Court would be able to assess the case closer to that time, including by assessing whether orders were reasonably necessary to preserve the position of the applicant, and in light of all the circumstances then apparent, including the strength of the challenge(s) then brought.
[31] More importantly it may be that such a proceeding, and applications for interim relief become unnecessary. It may be that as a consequence of decisions made by the relevant decision-making committees that applications are granted, or the October 2020 date is varied in a way that avoids the need for an application for interim relief.
Other considerations
[32] There are three other significant considerations that count against the grant interim relief.
[33] First the applicants underlying judicial review challenge is to the original decision made in October 2010, some nine years ago. Not only is there a significant issue in relation to the delay in advancing such a challenge at this stage, but there was a right of appeal on a question of law to the High Court against that decision.12 Such an appeal was required to be commenced within 20 working days, although there is an ability for the Court to grant special leave for an appeal to be brought out of time under r 20.4(3) of the High Court Rules 2016.
12 Hazardous Substances and New Organisms Act 1996, s 126; and High Court Rules 2016, r 20.3.
[34] Ms Scholtens was not able to identify any meaningful difference between the judicial review challenge, and what could have been advanced by way of an appeal on a question of law. They seem to me to cover the same territory. Whilst judicial review challenges can be brought irrespective of the existence of a right of appeal, the existence of a right of appeal can be relevant to the exercise of the Court’s discretion in judicial review.13 Here it would appear that judicial review challenge has been brought in a way that has the effect of avoiding the time limit prescribed for bringing an appeal. More precisely, it has been brought in a manner that avoids the applicant making an application for bringing an appeal out of time, and obtaining the Court’s leave to do so. Indeed Mr Smith argued that this was a further jurisdiction barrier to the grant of relief. Whilst I do not accept this, I do accept that it is highly relevant to the exercise of the discretion. There may have been justification for granting leave to appeal out of time given the practicalities associated with the 10 year period of time. But the judicial review challenge sidesteps that in a way that counts against the applicant in terms of the discretion that is exercised in judicial review, including the discretion in relation to interim relief.
[35] The second point is closely related. The reality is that the applicant does not genuinely wish to pursue the judicial review challenge to the October 2010 decision. Indeed Ms Scholtens asked for something in the nature of an adjournment of the judicial review proceedings once the interim order had been granted. By contrast Mr Smith on behalf of the EPA argued that interim relief was unnecessary given that an urgent fixture could be given to the substantial judicial review challenge. I do not propose to adopt that course precisely because there is no genuine desire to challenge the October 2010 decision, at least not at this stage. The reality is that the judicial review challenge is a mechanism by which the applicant has brought its concern before the Court relating to the looming uncertainty confronting the industry. Again that lack of commitment to the existing judicial review challenge counts against the grant of interim relief at this stage.
[36] The final relevant factor is that none of the interested parties/submitters involved in the October 2010 decision, or the present reconsideration application (or
13 See Judicial Review Procedure Act 2016 s 16(3)(a); and Fraser v State Services Commission
[1984] 1 NZLR 116 (CA) at 123.
the application in relation to EDN) have been named as a respondents, or served with these proceedings. Mr Smith argued that this was necessary. Ms Scholtens sought to say that naming all such persons as respondents, or serving them, was not the applicant’s responsibility, but that if the EPA wanted directions to this effect it could seek them, and that it was better placed to do so given it has administrative mechanisms for dealing with all such parties.
[37] With respect I do not think the applicant’s position on this matter is tenable. I accept that s 9(1)(b) of the Judicial Review Procedure Act, which requires parties to underlying proceedings to be named as respondents, only applies to parties to a particular type of proceedings in the nature of a Court proceedings or analogous quasi judicial proceedings.14 But it is well established that an application for judicial review cannot proceed without the position of such interested parties being addressed.15 This will usually mean that those interested parties will need to be served in some way. The Court then exercises a discretion as to how such parties might participate in the judicial review proceedings, either as a respondent, or as an interested party. If they are joined as a respondent, this involvement may also be subject to control. The appropriate approach has been addressed in a number of decisions.16 But the position of such parties cannot be ignored. Had there been an appeal such parties would have had a right to be served and to participate.17 In the present case it would clearly have been appropriate for the applicant to seek directions as to service. Given the circumstances of this case, the likely outcome would have been a requirement for the parties to be served as a first step.
[38] I am not sure whether this factor alone would necessarily have been fatal to the application for interim relief, but it could have been. Perhaps the Court may still have
14 See Rabson v Judicial Conduct Commissioner [2019] NZHC 2279 at [21].
15 Minister of Education v De Luxe Motor Services (1972) Ltd [1990] 1 NZLR 27 (CA) at 34.
16 Westhaven Shellfish Ltd v Chief Executive of Ministry for Fisheries (2002) 16 PRNZ 501 (HC) at [14]; Motor Industry Association v Minister of Transport HC Wellington CIV-2008-485-585, 23 May 2008; Wellington International Airport Ltd v Commerce Commission HC Wellington CP151/02, 19 July 2002 at [28]; Diagnostic Medlab Ltd v Auckland District Health Board HC Auckland CIV-2006-404-4724, 18 October 2006 at [23]–[25]; Wilson v Attorney-General (Judicial Conduct) (No 2) [2010] NZAR 509 (HC); Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2012] NZHC 1177 at [15]; Independent Fisheries Ltd v The Minister for Canterbury Earthquake Recovery [2014] NZHC 959 at [26]–[32]; and Deliu v Connell [2015] NZHC 2242 at [5]–[12].
17 Hazardous Substances and New Organisms Act 1996, ss 127–129.
made interim orders on condition that they be served on all such interested parties, with those parties then having a right to apply to have the orders discharged. But given I have determined that the application for interim relief should be declined on other grounds, I do not need to decide this point.
Conclusion
[39]For these reasons the application for interim relief is dismissed.
[40] For the avoidance of doubt, dismissing the application is without prejudice to the applicant’s right to apply for interim relief closer to October 2020. My expectation would be that if such an application were made it would be in a different proceeding, and one that may not involve a judicial review challenge to the October 2010 decision. Having said that it is possible to imagine proceedings involving appeals against both the EDN and reassessment decisions, together with an application to appeal against the October 2010 decision out of time.
[41] The respondent is entitled to costs. My preliminary view is that costs should be awarded on a 2B basis. If this cannot be agreed the respondent may file and serve a memorandum (no more than five pages) within 20 working days, which is to be responded to by the applicant (no more than five pages) within a period of 20 working days after the first memorandum is served. I also invite the applicant to advise what its intended approach to these proceedings now is by way of a memorandum filed and served at the same time.
Cooke J
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