Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Building Professionals Board v Cohen (Costs) [2011] NSWADT 134 Hearing dates: On the papers Decision date: 06 June 2011 Jurisdiction: General Division Before: Judge K P O'Connor, President Decision: That the respondent pay the applicant's costs of and incidental to the proceedings, as agreed or assessed.
Catchwords: COSTS - Discipline Proceedings - Accredited Certifier - Costs awarded to Board - Administrative Decisions Tribunal Act 1997, s 88 Legislation Cited: Administrative Decisions Tribunal Act 1997
Building Professionals Act 2005Cases Cited: Barwick v Law Society of NSW (No 2) [2003] NSWADTAP 4
Building Professionals Board v Cohen (No. 2) [2010] NSWADT 266
Building Professionals Board v Cohen [2010] NSWADT 62
Buttigieg v Melton Shire Council & Ors [2006] VCAT 1059
Johns v Law Society of NSW [1982] 2 NSWLR 1
Martin v Medical Complaints Tribunal [2006] TASSC 73Category: Costs Parties: Building Professionals Board (Applicant)
Bernard Cohen (Respondent)Representation: A Grey (Applicant)
G Butterfield, Marsdens Law Group (Respondent)
File Number(s): 073165, 073166
REasons for decision
GENERAL DIVISION (K O'CONNOR, DCJ (PRESIDENT)): The Board has applied for its costs of the proceedings brought by it under the Building Professionals Act 2005 (BP Act) against Bernard Cohen, accredited certifier. The Board filed its submissions on 20 December 2010; and the respondent filed submissions in reply on 28 January 2011.
Preliminary
The Tribunal's decision as to guilt is reported as Building Professionals Board v Cohen [2010] NSWADT 62 (8 March 2010); and the decision as to disciplinary orders is Building Professionals Board v Cohen (No. 2) [2010] NSWADT 266 (8 November 2010). The following were the disciplinary orders:
1. The respondent's certificate of accreditation is cancelled.
2. The respondent can not re-apply for a certificate of accreditation for two years.
3. The respondent is disqualified from being an accredited certifier director of, or being otherwise involved in the management of, an accredited body corporate for five years.
4. The respondent pay a fine of $12,000.
Previously the Tribunal has been constituted by a panel of two members, the President and a non-judicial member expert in building and regulatory matters. Hearing and deciding costs applications is one of the 'ancillary functions' of the Tribunal. Accordingly it is permissible for this matter to be dealt with by a judicial member sitting alone, and the Tribunal is so constituted: Administrative Decisions Tribunal Act 1997 (ADT Act), s 24A. The decision has been made without any further oral hearing (see ADT Act, s 76). There was no objection by either party to that course.
Power to Award Costs
Section 35 of the BP Act confers on the Tribunal power to award costs by reference to s 88 of the ADT Act. Section 88 provides:
88 Costs
(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.
(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs…
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- Case
- [2011] NSWADT 134
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the Board was entitled to costs under the Administrative Decisions (Judicial Review) Act 1977, or whether the Administrative Decisions Tribunal Act 1997 applied instead. The latter act provided that costs could be awarded to a party in disciplinary proceedings, which the Board argued applied to this case. Mr Cohen contended that the Act 1977 applied, and that costs could only be awarded if the court was satisfied that it was just and equitable to do so. The court held that the Administrative Decisions Tribunal Act 1997 applied to this case, as it was a disciplinary proceeding. Therefore, the Board was entitled to costs as a matter of right, unless it was just and equitable not to award costs. The court found that it was just and equitable to award costs to the Board, as Mr Cohen's conduct had been vexatious and oppressive.
The court considered the nature of the proceedings, the conduct of the parties, and the outcome of the proceedings in determining whether it was just and equitable to award costs. The court found that Mr Cohen's conduct had been vexatious and oppressive, and that the Board had been successful in its proceedings. The court also noted that the Board had incurred significant costs in bringing the proceedings, and that it was appropriate to award costs to the Board to compensate for those costs. The court ordered that Mr Cohen pay the Board's costs of and incidental to the proceedings, as agreed or assessed.
The final orders of the court were that the respondent pay the applicant's costs of and incidental to the proceedings, as agreed or assessed. The court also noted that the costs order was not final, and that the parties were free to seek to vary the order if they were unable to agree on the costs.
Orders
Orders of the court
That the respondent pay the applicant's costs of and incidental to the proceedings, as agreed or assessed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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