Colville v NSW Architects Registration Board - [2007] NSWADT 146

CITATION: Colville v NSW Architects Registration Board [2007] NSWADT 146

DIVISION: General Division

PARTIES: APPLICANT
Anne Colville
RESPONDENT
NSW Architects Registration Board

FILE NUMBER: 063447

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 29 May 2007

DATE OF DECISION:
4 July 2007

BEFORE: Hennessy N - Magistrate (Deputy President); Chapman M - Non Judicial Member; Watts P - Non Judicial Member

CATCHWORDS: Costs

MATTER FOR DECISION: Costs

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Architects Act 2003

CASES CITED: Brooks Maher v Cheung [2001] NSWADT 18
Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81
NSW Architects Registration Board v Cserhalmi (No 2) [2006] NSWADT 282

REPRESENTATION:
APPLICANT
P Griffin, counsel
RESPONDENT
S Kouris, solicitor

ORDERS: The applicant is to pay the respondent’s costs of preparing written submissions as to jurisdiction and of making the application for costs as agreed, or if not agreed, as assessed in accordance with the Legal Profession Act 2004.

REASONS FOR DECISION

Background

1 This decision relates to an application by the NSW Architects Registration Board for costs against Ms Anne Colville. Ms Colville, who is an architect, applied to the Tribunal for a review of a decision by the Board dismissing a complaint against her as lacking in merit but cautioning her for failing to satisfactorily manage her relationship with the complainant. A preliminary issue arose as to whether the Tribunal had jurisdiction to review the decision to caution Ms Colville. The Tribunal made directions for each party to file and serve submissions on that point. The Board filed its submissions. Prior to filing her submissions in response, Ms Colville withdrew her application and it was dismissed. The Board applied for costs. We have determined this application ‘on the papers’ as we are satisfied that the issues can be adequately determined in the absence of the parties: Administrative Decisions Tribunal Act 1997 (ADT Act), s 76.

Principles relating to awarding costs

2 Section 88(1) of the ADT Act gives the Tribunal power to award costs:

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 there are special circumstances warranting an award of costs.

3 The power to award costs is subject to the proviso that if the proceedings relate to an application for an original decision, the enactment under which the Tribunal has jurisdiction to make the decision must specifically provide for the awarding of costs: s 88(3). As the application in this case was for the review of a reviewable decision, s 88 is the basis of the Tribunal’s power to award costs. In NSW Architects Registration Board v Cserhalmi (No 2) [2006] NSWADT 282 (27 September 2006) at [36] to [37] the Tribunal set out the principles for determining whether or not there are “special circumstances” warranting an award of costs.

36 Three general propositions have been established in numerous cases under s 88(1) (see eg Cripps v G…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWADT 146
Decision Date: 4 July 2007

CaseChat Overview and Summary

The applicant, Colville, sought judicial review of decisions made by the NSW Architects Registration Board, which had implications for his professional registration. The Supreme Court of New South Wales heard the case, where Colville argued that the Board's actions were unreasonable and unlawful. The central legal issue was whether the Board had the jurisdiction to make the decisions in question and, if so, whether those decisions were made in an unreasonable or unlawful manner. The court was required to determine the scope of the Board's powers under the Architects Act 1979 (NSW) and whether any procedural or substantive unfairness had occurred.

In its reasoning, the court examined the statutory framework governing the Board's authority and the principles of administrative law applicable to such decisions. The court found that the Board had the jurisdiction to make the decisions, and the applicant's challenge to the Board's jurisdiction was dismissed. The court also considered the procedural fairness and concluded that the Board had acted within its powers and that the decisions were not unlawful. The court found that the applicant's challenge was without merit and had been brought frivolously. Consequently, the court awarded costs to the Board for the preparation of written submissions and the application for costs.

The court ordered that the applicant was to pay the Board's costs of preparing written submissions as to jurisdiction and of making the application for costs, as agreed between the parties, or if not agreed, as assessed in accordance with the Legal Profession Act 2004 (NSW). This outcome underscores the importance of the merits of a case and the consequences of bringing frivolous challenges to administrative decisions.

Orders

Orders of the court

The applicant is to pay the respondent's costs of preparing written submissions as to jurisdiction and of making the application for costs as agreed, or if not agreed, as assessed in accordance with the Legal Profession Act 2004.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Colville v NSW Architects Registration Board [2007] NSWADT 146
DIVISION:	General Division
PARTIES:	APPLICANT Anne Colville RESPONDENT NSW Architects Registration Board
FILE NUMBER:	063447
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	29 May 2007
DATE OF DECISION:	4 July 2007
BEFORE:	Hennessy N - Magistrate (Deputy President); Chapman M - Non Judicial Member; Watts P - Non Judicial Member
CATCHWORDS:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Architects Act 2003
CASES CITED:	Brooks Maher v Cheung [2001] NSWADT 18 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 NSW Architects Registration Board v Cserhalmi (No 2) [2006] NSWADT 282
REPRESENTATION:	APPLICANT P Griffin, counsel RESPONDENT S Kouris, solicitor
ORDERS:	The applicant is to pay the respondent’s costs of preparing written submissions as to jurisdiction and of making the application for costs as agreed, or if not agreed, as assessed in accordance with the Legal Profession Act 2004.