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 & M Dawson Pty Ltd [2006] NSWCA 81 at [60]; Brooks Maher v Cheung [2001] NSWADT 18 at [14]). They are (a) that ‘special circumstances’ are circumstances that are ‘out of the ordinary, without having to be extraordinary or exceptional’; (b) that the circumstances must not only be ‘special’ but must also ‘warrant’ an order for costs; and (c) that where the unsuccessful party’s conduct can be characterised as ‘grossly unreasonable’, with the consequence that ‘serious unfairness’ is apparent, this is a ‘highly relevant consideration’.

37 The Tribunal’s Practice Note on costs (Practice Note No. 12, reissued on 11 May 2005) provides in clause 2 a non-exhaustive list of examples of what might constitute special circumstances warranting a costs order. The first three items in the list are of general application:-

- whether a party has conducted the proceeding in a way that disadvantaged another party to the proceeding by conduct such as -

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

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(iv) causing an adjournment;

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

(vi) vexatiously conducting the proceeding;

- whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

- 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; ...

The parties’ submissions

4 The Board’s application for costs was based on the submission that Ms Colville was responsible for prolonging unreasonably the time taken to complete the proceedings and that her application had no tenable basis in law. The evidence in support of that submission was as follows:

(a) the Tribunal did not have jurisdiction to review a decision to caution Ms Colville because that decision was made under s 37(4) of the Architects Act and the Act does not give the Tribunal power to review such a decision;

(b) the Board expressed this view to the Tribunal, Ms Colville and her solicitor at the first directions hearing on 13 February 2007;

(c) Ms Colville persisted in her view that the Tribunal did have jurisdiction and agreed to a timetable for the filing and service of submissions on the jurisdiction point;

(d) the Board filed and served its submissions on 12 March 2007 in compliance with the timetable;

(e) on 11 April 2007, the day after her submissions were due to be filed, Ms Colville withdrew her application;

(f) the Board incurred unnecessary legal fees by engaging counsel to prepare written submissions in relation to jurisdiction.

5 Ms Colville’s response to these submissions was that she did not unreasonably prolong the time taken to complete the proceedings because the reason she withdrew the application was not because of any doubt about the Tribunal’s jurisdiction, but because her personal and commercial interests would be better served by doing so.

6 In assessing whether there are special circumstances warranting an award of costs, it is necessary for us to assess the strength of the Board’s submission that the Tribunal did not have jurisdiction to entertain Ms Colville’s application. While it is not our role to determine that issue, the reasonableness or otherwise of Ms Colville’s conduct will depend, to some extent, on that question.

7 When advising Ms Colville of its decision to dismiss the complaint against her because it lacked merit, but nevertheless to issue a caution, the Board identified s 37(1) and s 37(4) of the Architects Act respectively as the source of its power.

(1) The Board may dismiss a complaint if the Board is satisfied that the complaint:
(a) is frivolous or vexatious or otherwise lacking in merit, or

(b) is a complaint in respect of a matter that has already been dealt with as a complaint under this Part, or

(c) is trivial in nature.

(2) The Board may dismiss a complaint under this section without having investigated the complaint under this Part, or following an investigation of the complaint under this Part. The Board is not required to investigate a complaint that has been dismissed under this section.

(3) The Board is to notify the architect and complainant concerned of the dismissal of a complaint under this section.

(4) If the Board dismisses a complaint under this section, the Board may also issue a caution to the architect against whom the complaint was made in respect of the matter complained of.

8 The Board also advised Ms Colville that pursuant to s 37(5) she was entitled to apply to the Tribunal for a review of a decision to dismiss the complaint. Section 37(5) states that:
A person who makes a complaint or the architect against whom a complaint is made may apply to the Tribunal for a review of a decision of the Board to dismiss the complaint under this section.
9 According to the Board, s 37(5) gives the Tribunal jurisdiction to review a decision to dismiss a complaint but not to review a decision to caution an architect. Ms Colville’s solicitor said that the Board was wrong to assume that Ms Colville was applying for a review of the Board’s decision to issue a caution under s 37(4). Rather, their submission was that the Board should have dealt with the complaint in accordance with s 43 of the Architects Act which allows the Board to caution or reprimand an architect after it has completed an investigation into the complaint but only if it is satisfied that the architect is guilty of unsatisfactory professional conduct.

10 Ms Colville’s alternative submission was that she was not merely seeking a review of the decision to administer a caution, she was also seeking review on the basis of procedural unfairness. Ms Colville also appeared to submit, again in the alternative, that the Board’s decision to caution her was inextricably linked to its decision to dismiss the complaint.

Appeal Panel’s conclusion

11 With respect, it is clear from the Board’s correspondence with Ms Colville that it dealt with the complaint under s 37 as it was undoubtedly entitled to do. The Board also correctly advised Ms Colville of her entitlement to apply to the Tribunal for a review of the decision to dismiss the complaint. Ms Colville’s submission that she was also challenging certain procedural aspects of the Board’s decision does not assist her case. An applicant must first identify the reviewable decision. The only decisions that could possibly be the subject of review are the decisions to dismiss the complaint and the decision to administer a caution. The issue of procedural fairness only arises once a decision is identified which the Tribunal has jurisdiction to review. Finally, Ms Colville’s submission that the caution was inextricably linked with the decision to dismiss the complaint arises from the wording of s 37(4) which empowers the Board to administer a caution if it dismisses a complaint under s 37. However, s 37(5) refers only to the decision to dismiss. If Ms Colville’s submission were accepted, the Tribunal would need to read words into s 37(5) extending the right to review to a decision to administer a caution.

12 Ms Colville also asserted that her decision to withdraw her application was that her personal and commercial interests would be better served by withdrawing, notwithstanding her disappointment with the Board’s decision to issue her with a caution. She says that that decision failed to recognise her good repute as a practicing architect. Ms Colville did not specify what the personal or commercial reasons were for her withdrawing the application. She had the benefit of legal advice when she made her application and when she was alerted to the Board’s view that the Tribunal had no jurisdiction. Regardless of her reasons for withdrawing the application, it was unreasonable and out of the ordinary for her to delay that decision until the Board had been put to the expense of filing its submissions as to jurisdiction. In our view, the Board’s submission that the Tribunal had no jurisdiction to review a decision under s 37(4) had reasonable prospects of success. It follows that Ms Colville’s application was unlikely to succeed. That is a further reason for ordering that she pay the Board’s costs.

13 Ms Colville sought costs against the Board in relation to its costs application. There are no special circumstances justifying such an order.

14 In our view the Board is entitled to its costs of preparing written submissions as to jurisdiction and in relation to the application for costs, but not for the costs of attendance at the directions hearing.

Order

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 .