Building Professionals Board v Cohen (Costs)

[2011] NSWADT 134

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 2005
Cases 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 73
Category:	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

1. 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

1. 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.

1. 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

1. 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 in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

1. It will be seen that the ordinary rule in proceedings in the Tribunal is that each party bears their own costs. Sub-section (1A) allows the Tribunal to award costs 'but only if it is satisfied that it is fair to do so'. Sub-section (1A) then sets out a non-exhaustive list of factors that might justify an award of costs. As can be seen, most of those factors focus on matters of process, such as unnecessarily prolonging the litigation or engaging in unreasonable tactics. Some focus on substance of the case, such as whether it had no strength in law or fact, or was complex.

1. It will be seen that the Tribunal's discretion is a reserve discretion, and takes the form of an exception to the general rule. That is why in this Tribunal it is rare to see costs addressed as part of the final substantive decision, in contrast to the position in courts. In most cases in the Tribunal there is no application for costs by the successful party. Consequently, as on this occasion, it has been the practice for costs to be dealt with after the final substantive orders are made; though the Tribunal's most recent practice guideline now seeks to encourage dealing with any application as part of the substantive judgment where practical.

1. In the ordinary jurisdictions of the Tribunal the costs discretion, being a reserve discretion, should be exercised, as I see it, with great circumspection. As the statement of the Tribunal's objects in s 3 reflects, a major reason for the creation of the Tribunal was to provide a forum in which the citizens of New South Wales could have an independent review of administrative decisions taken by Government agencies. The Tribunal was designed to offer informal, expeditious and just resolution in a low-cost way. Outside the sphere of administrative review, there are other jurisdictions in the Tribunal where similar values should apply. A vigorous exercise of the costs power against, for example, the complainant under equal opportunity laws or the small retail tenant who brings a claim under retail leases law might erode the confidence and sense of access that other similarly aggrieved people might have in bringing forward their complaints.

1. This Tribunal's costs rule is similar to the costs rule that applies in the Victorian Civil and Administrative Tribunal (VCAT). Morris J, then President of VCAT, sitting in that Tribunal's Planning List, noted in Buttigieg v Melton Shire Council & Ors [2006] VCAT 1059:

It is true that the tribunal has the power to make an order as to costs if it is fair to do so, but the propensity with which the tribunal decides that 'it is fair to do so' will influence the manner in which a particular jurisdiction operates. Hence it is necessary to have regard, not only to the immediate circumstances of the present case, but also the implications generally on cases before the Planning and Environment List of the tribunal.

1. The 'access' considerations to which I have alluded have however, in my view, little relevance to professional discipline proceedings. The privilege of being allowed to practise a profession, or in this case an accredited occupation of significance, carries with it the obligation to behave in a manner that upholds the standards of that profession. If the authority responsible for investigating complaints of failure to meet standards reaches the point that it feels compelled to bring professional misconduct proceedings, and then succeeds in its case, the practitioner should not expect, in my view, to walk away without being called to account as to why the authority should not be compensated for its professional costs properly incurred.

1. It is well understood in the codes of ethics of long-established professions, such as the legal profession, that a practitioner the subject of a disciplinary complaint or a disciplinary proceeding has, however galling it may be, a duty to co-operate with those processes, and be candid at all stages. The object of complaints and discipline processes is ultimately the protection of the public. Accordingly, at every point the practitioner should behave in a way which fosters the protection of the public. This is to be done, for example, by giving their explanations in reply to the complaint promptly and with all supporting material, and, if the matter proceeds to a formal disciplinary application, stating their defences clearly and consistently from the earliest point, and again furnishing all relevant material in a co-operative way.

1. In any formal disciplinary proceeding a practitioner's good name and reputation will be at stake, and in some their continued career and livelihood will be at stake. Nonetheless the duties of co-operation and candour to which I have referred remain in place, reflecting the fact that the bestowal on a person of the right to practise a profession (or an accredited occupation of the kind under notice in this case) flows from the public via statutes made by the Parliament. See, for example, Johns v Law Society of NSW [1982] 2 NSWLR 1 per Moffitt P at 6D; and also, Barwick v Law Society of NSW (No 2) [2003] NSWADTAP 4 at [177].

1. As recently noted by Evans J in Martin v Medical Complaints Tribunal [2006] TASSC 73 at [21]:

Proceedings before the Tribunal are not conducted as if the Council is the prosecutor in a criminal cause or as if the Tribunal is engaged in the trial of a civil cause. The jurisdiction is a special one and it is not open to a practitioner called upon to provide an explanation in relation to a complaint to lie by and engage in a battle of tactics; Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN NSW 136 at 142 - 143. The Act, s49E, details the circumstances in which the Council is "required to institute a formal inquiry into a complaint" by referring it to the Tribunal and the Act, s51, requires that "[t]he Tribunal is to hold a formal inquiry into each complaint referred to it". The characterisation of the proceedings as an inquiry places upon a practitioner the obligation to assist an inquiry into his or her conduct, rather than adopting a stance, as in adversary criminal litigation, that no obligation lies on the practitioner to assist the inquiry. The obligation to inform and assist has always been regarded as resting upon a practitioner in these circumstances; Johns v Law Society of New South Wales (1982) 2 NSWLR 1 at 6. In citing these authorities, I did not ignore the reality that in terms of the nature of the allegations that are often brought before bodies such as the Tribunal and the possible consequences for a respondent, in some ways the investigation is closer to a criminal proceeding than a civil proceeding; Fernando v Medical Complaints Tribunal [2004] TASSC 130; (2004) 12 Tas R 366 [67].

The Submissions

1. In its submissions, the Board referred to the considerations listed in s 88(1A). They note the following matters:

1. (1) The proceedings commenced with the filing of two applications on 29 May 2007 and only reached a conclusion with the decision of 8 November 2010. The submissions referred to a number of items of delay in compliance with directions and filing timetables. They referred to the lodgement by the respondent of replies to the formal applications that were 'devoid of meaning' and merely obfuscated the case being made in reply by the respondent, for example a reply that merely denies or does not admit allegations without giving any particulars or detail.

1. (2) The failure by the respondent to nominate whether witnesses upon which the Board's case relied would be required to attend. There were witnesses of fact and witnesses with expertise as to relevant professional standards, and the adequacy or otherwise of the respondent's compliance with those standards. The Board's submissions attached correspondence and documents in support of its submission.

1. They referred to the inconvenience suffered by the Board in having various witnesses in attendance on the first day of hearing, 9 February 2009, when ultimately only one of them was required for cross-examination on their affidavits. I note that the persons brought to the Tribunal on that day, as it transpired quite unnecessarily, were officers of the Board such as Mr Rupolo (investigator), Mr Wunsch (team leader) and former Board officers diverted from the work they now undertook, such as Mr Kumon and Mr Winn, and a Council officer, Mr Netting.

1. (3) Admissions of guilt as to certain allegations announced on the commencement of the hearing and not earlier. The submissions also referred to failures to respond promptly to matters put in the course of settlement discussions that occurred in the period November 2008 to February 2009.

1. (4) Alleged abuse of the summons process. The submissions referred to the history of the summonses sought on or about 25 March 2009 in relation to attendance by Mr Wynn-Jones, Mr Daintree and to the Board requiring production of documents, the outcome of objections (Tribunal set aside the summons to the Board, 6 April), and the later withdrawal of the summons that remained on foot (to Mr Wynn-Jones and Mr Daintree, 14 April).

1. (5) Further adjournment due to late service of documents. The Board's submission set out the impact that the respondent's late service of affidavit from his former colleague, Mr Chalmers, had on the ability of the Tribunal to proceed on 3 March 2009 and the adjournment that needed then to be given. It noted that ultimately Mr Chalmers was not called on the resumed date (22 April 2009).

1. (6) Incompleteness of the material in support presented by the respondent at the first day of the orders hearing (22 June 2010). The Board referred to the incompleteness of the affidavit material presented by Mr Cohen, and especially the failure to attach examples of check-lists said now to be in use in his practice, and then his production over the luncheon recess of such material, necessitating the grant of an adjournment to enable the Board to review the material and make submissions. Further the Board's expert then discovered that assertions made by Mr Cohen in evidence on 22 June 2010 as to the extent of his practice's use of check-lists and other compliance documentation was not borne out.

1. (7) Adjournments for purpose of proposed Supreme Court appeal. The Board noted that after the delivery of the substantive decision as to guilt (8 March 2010), the respondent sought an adjournment (granted) to pursue a Supreme Court appeal. No appeal ensued causing further delay.

1. (8) Technical objections taken without notice. The Board's submissions list several of these, such as the taking of objections to the contents of affidavits at the point of their reception at hearing when they had been in the hands of the respondent's legal representatives for many months, in one instance 14 months. Another instance was the taking of a technical objection to jurisdiction after the guilt finding had been made and on the first day of the hearing in relation to orders. The Board states that no prior notice was given, and that the objection itself was hidden away well into the body of the written submissions.

1. (9) Relative Strength of Board's case. The Board noted that the Tribunal made findings in favour of its case on every allegation that had been put in issue.

1. (10) Attempts to Mislead the Tribunal. The Board referred to observations made by the Tribunal at paras [68], [142], [148], [159] and [161] of its primary decision (that of 8 March 2010).

1. The respondent's submissions note that the primary rule is that each party is to bear their own costs. They refer to two instances of minor lateness on the part of the Board in filing material (evidence put on by 25 May 2010 rather than 12 May 2010, this is a reference to the orders phase of the proceedings not the primary findings phase), and a four day delay in the filing of the present costs submissions.

1. The submissions assert that the respondent complied with all rules and requirements, and acted honestly and truthfully throughout the proceedings. He denies that he conducted the proceedings vexatiously. I note that the Board does not go so far as to make any claim of that kind.

1. The submissions refer as an example of co-operation to the attempts made to settle the proceedings in the period November 2008 to February 2009. As to the criticisms of the respondent's decision not to call certain witnesses, the submission is that decisions of this kind are 'forensic decisions routinely made in such matters'.

1. The submissions deny that this is a case to which the 'relative strengths' consideration has any application. The submission is that it refers to a substantial disparity between the cases on either side. It is said that this was not a case of that kind. The submissions assert that the respondent's case was not one without merit.

1. The submissions invite the Tribunal to take into account as 'other matters' within the scope of sub-section (1a)(e) the following: no attempt by the Board to commence negotiations; disparity between the parties' financial circumstances; consequences to the respondent in financial stress if the subject of an order; and the 'zealous defence' mounted by the respondent must be understood in context, namely his livelihood and the livelihood and business of his employees.

1. The submissions request the Tribunal to make an order that each party bear its own costs, and if the Tribunal is against the respondent in that respect, that the order be a party/party one. The submissions also noted that the Board was represented by its employee, Mr Grey, legal officer, at the hearing and that should be taken into account.

1. Principles relevant to the bringing of litigation by litigants in person are cited. I do not understand that those principles apply where a government agency or for that matter a private corporation has its case presented by house lawyers as distinct from engaging private lawyers. That is an issue no doubt in which costs assessors are experienced.

Assessment

1. In my view each of the matters on which the Board relied is one reasonably drawn to attention. In particular I note the damning observations made by the Tribunal on the respondent in the paragraphs mentioned under the heading 'Attempts to mislead the Tribunal', particularly those where the respondent made seemingly absurd or implausible assertions and furnished no countervailing evidence or material of any probity (or in some instances no evidence at all).

1. In my view, the Board's case for costs was a strong one. This was a case where the Board succeeded on all the points where it pressed its application. It did withdraw or amend some allegations, and that was noted by the Tribunal in decision no. 1. But it succeeded in relation to all major particulars. In my view, the respondent's defence was particularly weak, and lacked any credibility on a number of points. The main examples are noted in the list given by the Board at item (10) of my summary.

1. As already noted, professional discipline proceedings have no real connection to the philosophy that is reflected in the goals set out at s 3 of the ADT Act, goals which should ordinarily be brought to the consideration of costs in most of the Tribunal's jurisdictions.

1. In my view, the respondent dealt with the proceedings at many points in a non co-operative way and in a way marked by a lack of candour, or without any real insight into the significance of the errors made by him in the way he went about the practice of certification. The complaints that gave rise to these proceedings caused local authorities to expend time and effort in undertaking inspections and enforcement action, generated a significant workload for the Board as the complaints investigation authority and gave rise to long proceedings in the Tribunal. These are all major strikes on the public purse. The Board's submissions as to the respondent's late taking of positions (such as the non-calling of the witnesses) were sound. In my view, the respondent's conduct of the proceedings was itself a manifestation of obstinacy and lack of preparedness to address the seriousness of the matters raised. The conduct also reflected little commitment to seeing the proceedings conducted in an economical and timely way.

1. In my view, the Board's application for an award of costs of the proceedings should be granted, and the respondent's counter application that each party bear their own costs be refused.

1. Contrary to what might be suggested by one of the respondent's submissions, there is no application by the Board for an indemnity award of costs. Accordingly, costs will fall to be assessed in accord with usual principles.

Order

That the respondent pay the applicant's costs of and incidental to the proceedings, as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar/Associate

Decision last updated: 06 June 2011