Commissioner for Consumer Protection and Hawaii Pty Ltd and Anor
[2008] WASAT 22 (S)
•17 APRIL 2008
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : VOCATIONAL REGULATION | ||
| ACT |
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CITATION |
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| MEMBER |
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| HEARD |
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| DELIVERED |
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| SUPPLEMENTARY | |||
| DECISION |
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| FILE NO/S |
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| BETWEEN |
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AND
HAWAII PTY LTD TRACY BURLING Respondent
Catchwords:
Costs - Travel agents - Disciplinary proceedings - No factual issues in dispute -
Determination on question of penalty only
[2008] WASAT 22 (S)
Legislation:
Legal Practitioners (Magistrates Court) (Civil Jurisdiction) Determination 2006
(WA)
State Administrative Tribunal Act 2004 (WA), s 87(2)
Result:
Respondent ordered to pay applicant's costs
Category: B
Representation:
Counsel:
| Applicant | : | Mr S Dworcan |
| Respondent | : | Self-represented |
Solicitors:
| Applicant | : | Department for Consumer and Employment |
Protection
| Respondent | : | Self-represented |
Case(s) referred to in decision(s):
Commissioner for Consumer Protection and Hawaii Pty Ltd & Anor [2008]
WASAT 22
Medical Board of Western Australia and Roberman [2005] WASAT 118
[2008] WASAT 22 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 Proceedings brought by the Commissioner for Consumer Protection
against Ms Tracy Burling in relation to certain misconduct by her as a travel agent were resolved by a decision of the Tribunal delivered in February 2008. The Commissioner sought payment of his costs of the proceedings.
2 The Tribunal reviewed the history of the application and determined
that it should follow the usual approach to costs orders where successful vocational disciplinary proceedings are bought. Accordingly, it ordered that Ms Burling pay the Commissioner's costs of the proceedings, although it did not allow the full amount claimed.
Background
3 On 6 February 2008, the Tribunal delivered reasons for decision in
relation to proceedings bought by the applicant against Ms Tracy Burling, a former director of Hawaii Pty Ltd trading as Harvey World Travel (Scarborough) - see Commissioner for Consumer Protection and Hawaii Pty Ltd & Anor [2008] WASAT 22 .
4 The proceedings against Hawaii Pty Ltd had been resolved through
mediation. Mediation did not, however, resolve the proceedings so far as
they concern Ms Burling.5 A total of 23 allegations were made against Ms Burling. She
admitted all allegations. The issue that could not be resolved was the question of the appropriate penalty to be imposed. The Commissioner contended that Ms Burling should be disqualified from being involved in the business of a travel agent for a specified period, but Ms Burling sought only to have the Tribunal issue a reprimand and a fine not exceeding $1,000. The Tribunal took the view that the allegations admitted by Ms Burling were serious, and of a character which demanded a period of suspension from involvement in the travel industry. It made orders accordingly. The proceedings were dealt with on the papers.
The application for costs
Following delivery of the Tribunal's reasons, the applicant sought an order pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) that Ms Burling pay the applicant's costs of the proceedings. The costs sought are as follows:
[2008] WASAT 22 (S)
| Date | Person | Task | Amount |
| Various | Senior | Drafting application (50% for Ms | $594.00 |
| Practitioner | Burling) | (2 hours) | |
| 11/9/07 | Clerk/Paralegal | Attending at a directions hearing | $49.50 |
(50% for Ms Burling) (0.5 hours)
| 17/10/07 | Senior | Attending at a mediation conference | $297.00 |
| Practitioner | (50% for Ms Burling) | (1 hour) | |
| 02/11/07 | Senior | Attending at a directions hearing | $297.00 |
| Practitioner | (100% for Ms Burling) | (1 hour) | |
| Various | Senior | Drafting Applicant's submissions on | $3,564.00 |
| Practitioner | penalty | (12 hours) | |
| Various | Senior | Compiling Applicant's book of | $594.00 |
| Practitioner | documents | (2 hours) | |
| 03/12/07 | Senior | Reading Ms Burling's submissions | $148.50 |
| Practitioner | on penalty | (0.5 hours) | |
| 04/12/07 | Senior | Drafting Applicant's submissions in | $297.00 |
| Practitioner | reply | (1 hour) | |
| Subtotal | $5,841.00 |
Disbursements
| 03/09 | Process | Service of application on Ms Burling | $93.50 |
Servers (annexure)
| Total | $5934.50 |
7 When the substantive matter was dealt with, Ms Burling was
represented by a solicitor. However, by letter dated 28 February 2008, the solicitor notified the Tribunal that she was no longer acting, and directed all future correspondence to Ms Burling at a given address. The Tribunal
[2008] WASAT 22 (S)
directed the parties to file and serve written submissions on the question of costs. Despite numerous attempts to contact Ms Burling at the address provided by her solicitors, and through various other means, she did not avail herself of the opportunity to make submissions in response to the Commissioner's application.
8 The Tribunal's approach to the award of costs in successful
disciplinary proceedings was explained by the Tribunal in Medical Board of Western Australia and Roberman [2005] WASAT 118 at [30] where the Tribunal said:
"Where a regulatory authority successfully brings a complaint of conduct which if proved justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application."
9 Although the Commissioner for Consumer Protection may not have
the same limitation on resources as many vocational regulatory bodies, the considerations explained in Roberman remain applicable. In this case, the proceedings were successful in the sense that the Tribunal agreed that the disqualification was appropriate and rejected Ms Burling's contention that a lesser penalty was appropriate. There is no reason to depart from the approach explained in the Roberman decision.
Quantum of costs
10 With one exception, we consider that the costs set out in the table
above are reasonable. The charged rates claimed are those which apply under the Legal Practitioners (Magistrates Court) (Civil Jurisdiction) Determination 2006 (WA) which is an appropriate scale to adopt by way of analogy in relation to the work involved in this matter.
[2008] WASAT 22 (S)
11 The one item with which we do not agree is the claim for 12 hours
work in drafting the applicant's submissions on penalty. It is true that those submissions ran to some 32 pages and involved a reasonably substantial amount of work. The submissions largely recounted the 23 allegations and elaborated on the actual circumstances in relation to each. To the extent that each of the submissions dealt with matters of legal principle, the principles were uncontroversial and undisputed by Ms Burling. We consider that a reasonable allowance for the preparation of those submissions would be 8 hours work rather than 12. We would therefore allow $2,376 for that item. That reduces the total claim by $1,188. We would therefore allow costs in the total sum of $4,746.50.
| Orders |
1. The second respondent, Ms Tracy Burling, is ordered to pay the applicant's costs of the proceedings in the sum of $4,746.50.
I certify that this and the preceding [11] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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