BEKELE and ETHIOPIAN ORTHODOX TEWAHDO CHURCH OF TSIRHA ARIYAM KIDIST SELASSIE INCORPORATED

[2025] WASAT 70

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: ASSOCIATIONS INCORPORATION ACT 2015 (WA)

CITATION:   BEKELE and ETHIOPIAN ORTHODOX TEWAHDO CHURCH OF TSIRHA ARIYAM KIDIST SELASSIE INCORPORATED [2025] WASAT 70

MEMBER:   MS C CONLEY, MEMBER

MR M BENTER, MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   10 JULY 2025

FILE NO/S:   CC 293 of 2024

BETWEEN:   SOLOMON BEKELE

First Applicant

RIBKA ALEMAYEHU

Second Applicant

AKILEW ADANE

Third Applicant

KEFYALEW ALENE

Fourth Applicant

GIZACHEW TESSEMA

Fifth Applicant

BERIHUN ASSEFA DACHEW

Sixth Applicant

ALEMKEN JEGINE

Seventh Applicant

FELEKE GEDIBEW

Eighth Applicant

WORKE SORECHA

Ninth Applicant

RAHEL YOHANNIS

Tenth Applicant

GENET GEBREHIWOT

Eleventh Applicant

EMEBET ABAYNEH

Twelfth Applicant

TAFESSE ESTIFANOS

Thirteenth Applicant

TIRSIT GEBREEGZIABHAIR

Fourteenth Applicant

ALMAZ WUBE

Fifteenth Applicant

ABADIT ASSEFA

Sixteenth Applicant

WOSENYELESH MERETU 

Seventeenth Applicant

FIREHIWOT GISMIE

Eighteenth Applicant

MESERET AKAL

Nineteenth Applicant

MESERET WASSIE 

Twentieth Applicant

ELSABETH ADDISSIE

Twenty First Applicant

MILLION TEWELDE

Twenty Second Applicant

YONAS SHAREW

Twenty Third Applicant

MULU KEBBIE

Twenty Fourth Applicant

TIBLET MAMO

Twenty Fifth Applicant

AND

ETHIOPIAN ORTHODOX TEWAHDO CHURCH OF TSIRHA ARIYAM KIDIST SELASSIE INCORPORATED

Respondent

Catchwords:

Application for costs by Respondent in matter arising under Associations Incorporation Act 2015 (WA) where application withdrawn prior to hearing of dismissal application - Whether appropriate to award costs - Applicants to pay Respondent a portion of costs claimed

Legislation:

Associations Incorporation Act 2015 (WA), s 32(1)(a), s 45, s 56, s 182, s 182(1), s 182(2), s 182(3)(b)
Commonwealth of Australia Constitution Act 1901 (Cth), s 109
Equal Opportunity Act 1984 (WA)
Legal Profession (State Administrative Tribunal) Determination 2022 (WA), s 299
Legal Profession (State Administrative Tribunal) Determination 2024 (WA)
Legal Profession Act 2008 (WA)
Legal Profession Uniform Law Application Act 2022 (WA), s 133
Racial Discrimination Act 1975 (Cth)
Racial Discrimination Act 1975 (Cth), s 9
State Administrative Tribunal Act 2004 (WA), s 9, s 9(b), s 46(1), s 87, s 87(1), s 87(2), s 87(4)

Result:

Application allowed in part

Category:    B

Representation:

Counsel:

First Applicant	:	N/A
Second Applicant	:	N/A
Third Applicant	:	N/A
Fourth Applicant	:	N/A
Fifth Applicant	:	N/A
Sixth Applicant	:	N/A
Seventh Applicant	:	N/A
Eighth Applicant	:	N/A
Ninth Applicant	:	N/A
Tenth Applicant	:	N/A
Eleventh Applicant	:	N/A
Twelfth Applicant	:	N/A
Thirteenth Applicant	:	N/A
Fourteenth Applicant	:	N/A
Fifteenth Applicant	:	N/A
Sixteenth Applicant	:	N/A
Seventeenth Applicant	:	N/A
Eighteenth Applicant	:	N/A
Nineteenth Applicant	:	N/A
Twentieth Applicant	:	N/A
Twenty First Applicant	:	N/A
Twenty Second Applicant	:	N/A
Twenty Third Applicant	:	N/A
Twenty Fourth Applicant	:	N/A
Twenty Fifth Applicant	:	N/A
Respondent	:	N/A

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Third Applicant	:	N/A
Fourth Applicant	:	N/A
Fifth Applicant	:	N/A
Sixth Applicant	:	N/A
Seventh Applicant	:	N/A
Eighth Applicant	:	N/A
Ninth Applicant	:	N/A
Tenth Applicant	:	N/A
Eleventh Applicant	:	N/A
Twelfth Applicant	:	N/A
Thirteenth Applicant	:	N/A
Fourteenth Applicant	:	N/A
Fifteenth Applicant	:	N/A
Sixteenth Applicant	:	N/A
Seventeenth Applicant	:	N/A
Eighteenth Applicant	:	N/A
Nineteenth Applicant	:	N/A
Twentieth Applicant	:	N/A
Twenty First Applicant	:	N/A
Twenty Second Applicant	:	N/A
Twenty Third Applicant	:	N/A
Twenty Fourth Applicant	:	N/A
Twenty Fifth Applicant	:	N/A
Respondent	:	Williams & Hughes

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

Blaszkiewicz and The Owners of 7 Henderson Street Fremantle (Strata Scheme 74918) [2021] WASAT 56

Chew and Director General of the Department of Education and Training [2006] WASAT 248

Grove v Grove [2022] WASCA 86

Keating and Champion Lakes Christian Church [2024] WASAT 78

Panegyres v Medical Board of Australia [2020] WASCA 58

Pearce & Anor and Germian [2007] WASAT 291

Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302

Ransberg Pty Ltd and City of Bayswater [2016] WASAT 43 (S)

Sivanpathakumar and The Management Council of Saiva Maha Sabai of WA Inc [2022] WASAT 96

Sivanpathakumar and The Management Council of Saiva Maha Sabai of WA Inc [2022] WASAT 96 (S)

Smith and Murray Districts Carriage Driving Club Incorporated [2021] WASAT 44 (S)

The Owners of 52 Mill Point Road Strata Plan 62152 and Hanssen Pty Ltd [2021] WASAT 102 (S)

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. The Applicants lodged an application with the Tribunal under s 182(2) of the Associations Incorporation Act 2015 (WA) (AI Act) seeking to have a number of disputes determined by the Tribunal (Application).

2. The Respondent (also referred to as the Church or the Association) sought the dismissal of the Application on the basis that the Application fell outside the scope of the Tribunal's jurisdiction (Dismissal Application). 

3. The Application was withdrawn the day before the hearing of the Dismissal Application (Hearing of the Dismissal Application).

4. The Respondent applied, in accordance with the orders made by the Tribunal on 19 March 2025, for costs fixed in the amount of $18,545 which they say represents 75% of the costs they have incurred (Costs Application).  The Costs Application was supported by written submissions[1] and an Affidavit affirmed by Ms Szalai on 9 April 2025.

   [1] Respondent's Submissions in Support of Application for Costs under Section 87 of the State Administrative Tribunal Act 2004 (WA) filed on 9 April 2025 (Respondent's Costs Submissions).

5. The Applicants filed submissions, prepared by the First Applicant, in opposition to the Costs Application[2] together with an Affidavit Sworn by the First Applicant on 30 April 2025.

   [2] Applicants' Submissions in Objection to the Respondent's Claim for Costs under Section 87 of the State Administrative Tribunal Act 2004 (WA) filed on 30 April 2025 (Applicant's Costs Submissions).

Issues for determination

1. The issues to be determined are:

   (a)whether the Tribunal should award costs to the Respondent; and

   (b)if so, the amount of those costs.

2. Although the Respondent has changed its name since the commencement of the proceeding in the Tribunal,[3] a change of name of an incorporated association does not affect any legal proceedings by or against it.[4]  Neither party raised the change of name of the Respondent as an issue relevant to the determination of the Costs Application. 

Evidence and findings of facts

[3] See para [8(s)].

[4] AI Act, s 32(1)(a).

1. For the purposes of the determination of the Costs Application, based on the documentary evidence and orders of the Tribunal, we find:

   (a)there is a dispute resolution procedure contained in Article 21 of the Parish Council Regulation (Church Rules) which applies to disputes under the Church Rules between a member and another member or between a member and the Parish (defined in Article 1 to mean 'All the Members and Attendants Collectively of the Parish known as Kidist Selassie Incorporated which has been established in Perth WA');

   (b)in their original Statement of Issues, Facts and Contentions (SIFC), the Applicants alleged:

   (i)Nineteen persons were prohibited from applying for membership of the Church;

   (ii)on 12 December 2023, a person applied for membership of the Church but their application was rejected;

   (iii)four of the Applicants had their membership suspended for outstanding membership fees;

   (iv)from 7 January 2024, a Priest at the Church started using Tigrinya over Amharic at the Church; and

   (v)on 13 September 2023, 7 October 2023, 8 October 2023 and 27 November 2023, four mediation conferences were held.

   (c)on 26 February 2024 members of the Church were given notice of a special general meeting of the Church to be held on 31 March 2024 (Notice) at which it was proposed to change the name of the Church and adopt a new Constitution;

   (d)the Notice stated that 'The principal purpose of the changes to the name and Constitution of the Church is to reflect the proposal that the Church will cease to be affiliated to the Ethiopian Orthodox Tewahdo Church and will instead be affiliated to the Tigray Membere Selam Kasate Berhan Orthodox Tehwado Church';

   (e)the minutes of the Special General Meeting held on 31 March 2024 record that the following special resolutions were passed:

   (i)that the name of the Association be changed to The Tigray Orthodox Tewahdo Church of Tsirha Ariyam Kidist Selassie in Perth Inc; and

   (ii)that the Regulations, Rules, and Constitution of the Association be changed by adopting the Constitution in the form accompanying the Notice of Meeting in place of the existing Regulations, Rules and Constitution

   (f)the Application was lodged in the Tribunal on 8 May 2024 together with a minute of proposed orders and a SIFC (at that time, the Applicants were unrepresented);

   (g)a directions hearing was held on 18 June 2024 at which time the Church was joined as the Respondent (the original Respondents having been removed as parties) and each party was required to file a SIFC and a book of documents;

   (h)the Applicants sought the issue of a summons to the Chairperson of the Administrative Council to produce documents on 15 August 2024, 16 September 2024, 25 September 2024 and 30 September 2024;

   (i)on 30 September 2024 the Respondent lodged an objection to the issue of a summons to the Chairperson;

   (j)a directions hearing was held on 10 September 2024 and the parties were given additional time to file their SIFCs and books of documents;

   (k)the Applicants lodged their book of documents on 25 September 2024;

   (l)the Applicants lodged a revised SFIC (Revised SIFC) on 1 October 2024;

   (m)on 4 November 2024 the Church lodged the Dismissal Application together with Submissions in Support of the Dismissal Application;

   (n)a directions hearing was held on 5 November 2024 and the matter referred to a mediation on the same date; the Applicant was also ordered to filed submissions in response to the Respondent's Dismissal Application;

   (o)the Hearing of the Dismissal Application was listed on 17 January 2025 but vacated and then relisted on 13 March 2025 and, subsequently, 20 March 2025;

   (p)on 29 November 2024, the Applicants were given additional time to lodge their response to the Dismissal Application;

   (q)on 20 December 2024 the Applicants lodged their submissions in response to the Dismissal Application;

   (r)on 9 January 2025 and 12 March 2025, the Australian Human Rights Commission (AHRC) notified the First Applicant of their acceptance of his and two other complaints respectively;

   (s)on 29 January 2025 the name of the Church was changed to 'The Tigray Orthodox Tewadho Church of Tsirha Ariyam Kidist Selassie in Perth Inc;[5] and

   (t)on 19 March 2025 the Applicants sought the leave of the Tribunal to withdraw the Application and the Tribunal ordered pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that the Applicants have leave to withdraw the proceeding and the proceeding is withdrawn.

Submissions of the Respondent

[5] Certificate of Incorporation on Change of Name issued by the Commissioner for Consumer Protection.

1. The Respondent's Costs Submissions may be summarised as follows:

   (a)the Application was misconceived and/or lacking in substance for the reasons set out in the Respondent's Submissions in support of the Dismissal Application;

   (b)it is to be inferred that the Applicants accepted that the Application was misconceived and/or lacking in substance when they sought leave to withdraw the Application;

   (c)the Respondent incurred unnecessary legal expenses because the Application was not withdrawn until the day before the date set for the Hearing of the Dismissal Application;

   (d)the Applicants have acted inconsistently with the objectives set out in s 9 of the SAT Act;

   (e)the Respondent has incurred significant legal costs of $24,727.94 in responding to the Application (as set out in Ms Szalai's Affidavit); and

   (f)the Tribunal should order the Applicants to pay the Respondent's legal costs fixed in the amount of $18,545.

Submissions of the Applicants

1. The Applicants' Costs Submissions may be summarised as follows:

   (a)the Application was within the Tribunal's jurisdiction;

   (b)they had standing to bring the Application;

   (c)the Application was withdrawn in good faith because the AHRC and the Federal Court jurisdiction would meet their needs and reverse the existing discriminatory practices in their entirety;

   (d)the Applicants have incurred considerable legal costs because of the deliberate discrimination of the Respondent;

   (e)the Applicants have acted consistently with the objectives set out in s 9 of the SAT Act; and

   (f)the Tribunal should not exercise its discretion to order the Applicants to pay the Respondent's costs and each party should bear their own costs.

General principles relating to cost in the Tribunal

1. The starting point for the consideration of the question of costs is s 87(1) of the SAT Act, namely that each party bears its own costs.

2. However, s 87(1) of the SAT is subject to any relevant provision of the enabling Act and the discretion of the Tribunal under s 87(2) of the SAT Act to make an order for the payment by a party of all or any of the costs of another party.

3. The relevant enabling Act in this case is the AI Act. There is nothing in the AI Act which precludes the Tribunal from making an award of costs in relation to a matter arising under the AI Act. Accordingly, the Tribunal may determine the respondent's application for costs in accordance with s 87 of the SAT Act.[6]

   [6] Sivanpathakumar and The Management Council of Saiva Maha Sabai of WA Inc [2022] WASAT 96 (S) at [12].

4. In Chew and Director General of the Department of Education and Training [2006] WASAT 248 (Chew), a proceeding falling within the Tribunal's review jurisdiction, the Tribunal said at [85]:

   … [T]he Tribunal should not generally make an award for costs unless a party has conducted itself in such a way as to unnecessarily prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious; or the proceedings in some other way constitute an abuse of process.  The Tribunal might also make an order as to costs where a matter has been brought vexatiously or for improper purpose.

5. In Pearce & Anor and Germian [2007] WASAT 291 at [24], a proceeding falling within the Tribunal's original jurisdiction, the Tribunal accepted that each party should expect to pay their own costs unless there are circumstances of the type identified in Chew or where costs are incurred in defending an obviously unmeritorious claim.

6. In Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale), the Court of Appeal considered the approach that should be taken to awards of costs by the Tribunal in light of s 87(1) and s 87(2) of the SAT Act. The principles articulated in Questdale were succinctly summarised in Blaszkiewicz and The Owners of 7 Henderson Street Fremantle (Strata Scheme 74918) [2021] WASAT 56 as follows:

   61…

   (a)the presumptive position or starting point under s 87(1) is that the Tribunal is a 'no costs' jurisdiction, and that each party will bear its own costs;

   (b)the discretion of the Tribunal to award costs under s 87(2):

   (i)is to be exercised 'judicially', in that it should not be exercised arbitrarily, capriciously or to frustrate the legislative intent;

   (ii)is directed to the question of whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred (the legal rationale is not to punish the person against whom the order is made);

   (iii)is broad, so that the considerations relevant to its exercise are unconfined, except that the Tribunal is bound to take account of the matters specified in s 87(4), and should have regard to subject matter, scope and purpose of the SAT Act;

   (c)factors that may be considered in the exercise of the Tribunal's discretion include (non-exhaustively):

   (i)the nature of the dispute, and the legislative scheme under which it arises; and

   (ii)whether a party has conducted itself in a manner that has impaired the attainment of the Tribunal's objectives under s 9 of the SAT Act (to determine proceedings fairly and in accordance with the substantial merits, with as little formality as possible, and in a way that minimises costs to the parties);

   (d)the fact that a party ultimately fails on its contentions does not of itself signify that it has acted inconsistently with the objectives in s 9 of the SAT Act; and

   (e)the party seeking costs bears the onus of satisfying the Tribunal in relation to the exercise of its discretion.

   62Circumstances in which costs might be awarded include where a party has conducted itself unreasonably or inappropriately, where the weakness of the case is such that it could be described as 'incredible' or 'implausible' or 'obviously unmeritorious', or where an application undermines the integrity of proceedings under the relevant legislative scheme: Pearce & Anor and Germain [2007] WASAT 291(S) at [22]-[24]; Gill & Ors and Wildnight Pty Ltd [No 2] [2008] WASAT 135 at [20].[7]

   [7] Blaszkiewicz at [61] - [62].

7. One of the objectives of the Tribunal is to 'act as speedily and with as little formality as practicable and minimise the costs to parties'.[8]  In The Owners of 52 Mill Point Road Strata Plan 62152 and Hanssen Pty Ltd [2021] WASAT 102 (S) (Hanssen), the Tribunal said at [25] - [26]:

   25The procedures of the Tribunal are designed to achieve the objectives prescribed by s 9 of the SAT Act. Where an order for costs is made by the Tribunal, the Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that parties will approach proceedings in a way that minimises costs of the proceeding: J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) at [38]. Therefore, an order for costs should be approached in a broad and relatively robust fashion: Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No.2] [2008] WASAT 302 at [67] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [49].

   26Even though fixing costs involves a relatively broadbrush approach, the Tribunal must nevertheless be satisfied that the costs claimed are reasonable and not excessive in nature: Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24 at [69].

   [8] SAT Act, s 9(b).

8. It is also important to reiterate that an award of costs made by the Tribunal is not intended to be a full indemnity or reimbursement for the actual expenses incurred by a party to proceedings in the Tribunal.[9]

   [9] Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302 at [67]; and Smith and Murray Districts Carriage Driving Club Incorporated [2021] WASAT 44 (S) at [18].

1. A party seeking costs in the Tribunal must ensure that 'the Tribunal is appropriately informed as to the work done and time taken as it claimed for and the rates which are said to apply to that work'.[10]

   [10] Panegyres v Medical Board of Australia [2020] WASCA 58 at [415].

2. There is no prescribed scale of party/party costs in relation to Tribunal proceedings.  However, where the Tribunal makes an order for costs and fixes or assesses the amount of costs, the Tribunal will have regard to the hourly rates set out in the applicable costs determinations made by the Legal Costs Committee.[11]

   [11] Ransberg Pty Ltd and City of Bayswater [2016] WASAT 43 (S) at [63].

3. There are two applicable determinations in relation to this matter.  First, the Legal Profession (State Administrative Tribunal) Determination 2022 (WA) (2022 Costs Determination) which came into operation on 1 July 2022 and, second, the Legal Profession (State Administrative Tribunal) Determination 2024 (WA) (2024 Costs Determination) which came into operation on 1 July 2024 (referred to collectively as Costs Determinations).  Although the 2022 Costs Determination was made under the now repealed Legal Profession Act 2008 (WA), it is taken to have been made under s 133 of the Legal Profession Uniform Law Application Act 2022 (WA) (LPULA Act).[12] The 2024 Costs Determination was made under s 133 of the LPULA Act.

   [12] Legal Profession Uniform Law Application Act 2022 (WA), s 299.

4. Under the Costs Determinations, the relevant maximum allowable hourly rates (inclusive of GST) are as follows:

Fee earner	2022 Costs Determination	2024 Costs Determination
Senior Practitioner	$429	$484
Junior Practitioner	$341	$385
Counsel fees (charged as a disbursement to practitioners)	$385	$429

Whether the Tribunal should exercise its discretion to make an order for the payment of costs by the Applicants

Nature of the dispute and the legislative scheme under which it arises

1. We turn first to the nature of the dispute and the legislative scheme.

2. In this proceeding, the Applicants, members of the Respondent, had a number of disputes with the Respondent.

3. In their initial application, the Applicants sought:

   (a)a direction that the management committee of the Church (Management Committee) allow new prospective membership applications that had been prohibited;

   (b)a declaration that the Management Committee's decision to suspend certain members is void;

   (c)a declaration that the Management Committee's special resolution held on 31 March 2024 and the ensuing determination is void and of no effect because it is contrary to s 9 of the Racial Discrimination Act 1975 (Cth) and, hence, void and of no effect, pursuant to s 109 of the Constitution of the Commonwealth;

   (d)Amharic be restored as the liturgical language of the Church;

   (e)all members of the Church be afforded, irrespective of ethnicity, the enjoyment or exercise, on an equal footing, of any human right or fundamental freedom within the Church regardless of their role;

   (f)the appointment of a statutory manager under s 182(3)(b) of the AI Act; and

   (g)any other order the Tribunal deems fit to promote equity amongst members of the Church.

4. Subsequently, in their SIFC filed on 1 October 2024 the Applicants clarified that the Application concerned the Respondent's alleged prohibition, suspension and cancellation of memberships and an alleged breach of s 45 of the AI Act.

5. The Tribunal is a creature of statute and does not have inherent jurisdiction to determine matters in respect of incorporated associations. However, s 182 of the AI Act gives the Tribunal jurisdiction to determine, inter alia, disputes between members of an incorporated association and the incorporated association itself under or relating to the rules of the incorporated association either between members, or between one or more members and the incorporated association.

6. It is clear that Parliament intended that the Tribunal be an option of last resort for the determination of such disputes. This is because the Tribunal cannot determine a dispute for the purposes of s 182(1) of the AI Act unless the dispute cannot be resolved under the dispute resolution procedure of the incorporated association.

7. It is also important to note that Parliament has conferred jurisdiction on a forum where the presumptive position is that each party bears its own costs.[13]

The merits of the matter

[13] Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 at [53].

1. We turn next to the merits of the matter.

2. In Grove v Grove [2022] WASCA 86 (Grove) at [41], the Court of Appeal held as follows:

   While, ordinarily, a successful party is entitled to an order for its costs, that general rule as to costs following the event is based on the identification of a successful party by a hearing on the merits.  Where a matter resolves without a determination on the merits the court is deprived of the factor that will usually determine how the discretion as to costs is to be exercised.  The court will not try a hypothetical action between the parties.  However, in some cases the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the litigation.  Alternatively, in a rare case, the court may feel confident that although both parties have acted reasonably, one party was almost certain to have succeeded if the matter was tried (for example, the court may be satisfied that one party capitulated in the face of probable defeat).  But, if it appears that both parties acted reasonably in commencing and defending the proceedings and their conduct continued to be reasonable until the litigation was resolved or its further prosecution became futile, the proper exercise of the costs discretion will usually mean that the court will make no order as to the costs of the proceedings. (footnotes omitted)

3. However, it is important to note that the decision in Grove is based on the presumptive position, applicable in the Supreme Court, that the successful party is entitled to their costs rather than, as in this case, the presumptive position that each party bears their own costs.

4. The Application was withdrawn before the Hearing of the Dismissal Application.  Accordingly, there was no determination on the merits as to whether or not the Application should be dismissed and no identification of a 'successful party'. 

5. To the extent that the Applicants sought relief under, or in respect of alleged breaches of, the AI Act, the Equal Opportunity Act 1984 (WA) and the Racial Discrimination Act1975 (Cth), these disputes clearly fell outside the Tribunal's jurisdiction because they are not disputes under or relating to the rules of an incorporated association.[14]  Accordingly, it was apparent from the outset that these claims were unmeritorious. 

   [14] Sivanpathakumar and The Management Council of Saiva Maha Sabai of WA Inc [2022] WASAT 96 at [27].

6. The Respondent's submissions in support of the Dismissal Application included submissions relating to the Tribunal's lack of jurisdiction in respect of s 45 and s 56 of the AI Act. However, given that the Applicants filed the Revised SIFC (which did not press all of the disputes in their Original SIFC) and the Respondent did not file a SIFC at all, we do not accept that significant costs were incurred in responding to this issue.

7. However, questions as to whether or not a party has standing to bring an application under the AI Act, whether the disputes are disputes under or relating to the rules of the association and whether the association's dispute resolution procedure has been complied with are generally determined as preliminary issues and, as such, involve a determination of the merits of those issues. See, for example, the preliminary issues determined in Keating and Champion Lakes Christian Church [2024] WASAT 78 and Sivanpathakumar and The Management Council of Saiva Maha Sabai of WA Inc [2022] WASAT 96. The determination of those preliminary issues requires evidence to be provided to the Tribunal.

8. Other than in respect of the matters identified at paragraph [34] above, we do not accept that the Application was, on its face, misconceived and lacking in substance.  This is because:

   (a)a person who is suspended from membership is still a member of an incorporated association and, therefore, has standing to commence proceedings under s 182 of the AI Act. It is not in dispute that four of the Applicants fell into this category;

   (b)there is, in our view, a question as to whether a person who is a member of an association can be said to be involved in a dispute with an incorporated association in circumstances where the incorporated association refuses a particular person membership.  Whilst the Tribunal did not have the benefit of argument on the matter, we consider that it is arguable that a member could be a participant in a dispute with an association which arises from that association's refusal to accept certain other persons as members in circumstances where the member alleges that the association has acted contrary to the rules in refusing an application for membership;

   (c)some of the disputes raised by the Applicants appear to be disputes under or relating to the Church Rules (namely, Articles 6, 8, 9 and 22);

   (d)notwithstanding that this issue was not raised by the parties and we did not have the benefit of argument on the matter, there appears to us to be an issue about which dispute resolution procedure applied, namely the dispute resolution procedure in the Church Rules or the Model Rules, given that the Church Rules appear only to apply to disputes between members and disputes between members and the Parish (rather than the Respondent); and

   (e)although the Respondent says that the Applicants have not complied with the dispute resolution procedure, there is insufficient evidence before the Tribunal in relation to compliance with the dispute resolution procedure of the Respondent by the parties; and

9. Accordingly, given the factual and legal issues in dispute between the parties and the presumptive position in relation to costs, it is not appropriate for the Tribunal to now make a determination on the merits about the preliminary issues in the context of the Costs Application. 

Conduct of the Applicants

1. I turn next to consider whether the Applicants have conducted themselves in a manner that has impaired the attainment of the Tribunal's objectives under s 9 of the SAT Act or whether they have conducted themselves in any of the circumstances identified in Chew.

2. The Applicants were required to file a fresh SIFC, however their original SIFC was filed prior to the Applicants being legally represented.  Further, although the Applicants sought two extensions of time to comply with the orders made by the Tribunal, the extensions of time sought were not unreasonable and compliance was achieved within the last extended time limit.  Accordingly, we do not find that the Applicants unduly delayed the proceedings in the Tribunal.

3. The Applicants sought leave to withdraw the Application 7 days after being notified of the acceptance of two additional complaints, in addition to the complaint of the First Applicant, by the AHRC.  Given that the jurisdiction of the Tribunal is different to the jurisdiction of the AHRC, we do not consider that it was unreasonable for the Applicants to elect to pursue complaints in the AHRC in preference to continuing with proceedings in the Tribunal.  We consider that it is consistent with the objectives of the Tribunal for parties to explore other avenues to resolve their disputes since this minimises the costs to the parties in the Tribunal.

4. However, given that the First Applicant was notified of the acceptance of his complaint by the AHRC on 9 January 2025 and the acceptance of the two additional complaints on 12 March 2025, we find that the Applicants could have withdrawn the Application earlier than the day before the Hearing of the Dismissal Application.  Alternatively, they could have sought an adjournment of the Hearing of the Dismissal Application to consider their options.  In either case, such action would have prevented further costs being incurred by the Respondent given that the Hearing of the Dismissal Application was imminent.  Accordingly, to that extent we find that the Applicants conducted themselves in a way which impaired the attainment of the objectives of the Tribunal, namely the objective to minimise costs to the parties. 

5. We also find that the Applicants did not behave in any of the circumstances identified in Chew.

6. We also note that s 87(4) of the SAT Act does not apply because the proceeding was not a review proceeding.

Exercise of discretion in relation to costs

1. Taking into account the statutory framework, the principles relating to awards of costs by the Tribunal, and all of the matters referred to above, we find that the Respondent is entitled to a portion of their reasonable costs in relation to the proceeding but only in respect of the costs incurred in preparing for the Dismissal Application following receipt of notification from the AHRC in relation to their acceptance of the complaints.

Quantum of costs

1. The Respondent provided the Tribunal with itemised invoices in relation to costs in the sum of $24,727.94 as follows:

Date of Invoice and relevant time period	Invoice No	Amount
26 June 2024 For the period from 10 May 2024 to 30 May 2024	202985	$6,070.79
29 July 2024 For the period from 17 June 2024 to 20 June 2024	203465	$1,124.20
31 October 2024 For the period from 24 July 2024 to 30 September 2024	204762	$2,200.00
29 November 2024 For the period from 1 October 2024 to 31 October 2024	205189	$6,092.24
19 December 2024 For the period from 1 November 2024 to 27 November 2024	205440	$5,296.94
8 April 2025 For the period from 14 March 2025 to 19 March 2025	206534	$3,943.77
Total	$24,727.94

1. We find that the Respondent has provided sufficient information to enable the Tribunal to consider and evaluate their claim for costs.

2. Invoice No. 206534 relates to costs incurred between 14 and 19 March 2025.  That invoice is in the amount of $3,943.77.  We find that the amount of costs of $3,943.77 is not reasonable for two reasons. First, because the hourly rates charged by the senior solicitor for the respondent exceeds the maximum allowable rates under the 2024 Costs Determination.  Second, because we do not consider that the Applicants should have to pay for the costs of obtaining a copy of the certificate relating to the Respondent's change of name (since this was requested by the Tribunal and should have been provided to the Tribunal by the Respondent in any event) or for printing (a total of $226.82 for disbursements).  However, we also note that the hourly rates charged by the junior solicitor are less than the maximum allowable rates under the 2024 Costs Determination.

3. Taking a broadbrush approach in a robust fashion and taking in account the Costs Determinations and the matters to which we have referred above, we are of the view that a total amount of $3,000 (including GST) ought to be recovered by the Respondent from the Applicants.

4. Whilst the amount of $3,000 has been fixed in a robust manner, it results in a total costs award which is, in our view, fair and reasonable and not excessive in nature.  Further, in our view, the amount of costs fixed accords with the nature of the proceeding, the stage which the proceeding had reached, the amount of work involved in preparing for the Dismissal Application, and the objectives of the Tribunal.

Conclusion

1. We have decided that the Applicants should pay a portion of the Respondent's costs, fixed in the sum of $3,000 including GST.  This is because the Applicants withdrew the Application the day before the Hearing of the Dismissal Application and the Respondent incurred costs which would not have been incurred had the Applicants withdrawn their application earlier or sought an adjournment of the Hearing of the Dismissal Application.

Orders

The Tribunal orders:

1.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the Applicants shall pay the Respondent's costs fixed at $3,000 (including GST).

2.The Respondent's application for costs is otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS C Conley, MEMBER

10 JULY 2025