Little and Victorian Bar Inc - [2024] AATA 2852

Little and Victorian Bar Inc [2024] AATA 2852 (2 August 2024)
Division:GENERAL DIVISION
File Numbers: 2023/3987 and 2023/8223
Re:Timothy Little
APPLICANT

AndVictorian Bar Inc
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones and Grant Pearson, Chairperson of the New Zealand Trans-Tasman Occupations Tribunal
Date:2 August 2024
Place:Melbourne

The Tribunal refuses the respondent’s application for costs.
...............................[sgd].........................................
Deputy President Britten-Jones and Grant Pearson, Chairperson of the New Zealand Trans-Tasman Occupations Tribunal
CATCHWORDS
Trans-Tasman Mutual Recognition Act 1997 (Cth) (TTMRA) – application by the respondent for costs pursuant to s 34 of the TTRMA applicant – application refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)

Trans-Tasman Mutual Recognition Act 1997 (Cth)
Cases
Abdou and Victorian Building Authority [2020] AATA 2637
Little and The Council of the New South Wales Bar Association [2024] AATA 497
Re Wearne and NSW Police Service (1994) 34 ALD 315
Victorian Building Authority v Andriotis; (2019) 268 CLR 168, [2019] HCA 22
Victorian Building Authority v Cau [2023] FCAFC 120
REASONS FOR DECISION
Deputy President Britten-Jones and Grant Pearson, Chairperson of the New Zealand Trans-Tasman Occupations Tribunal
2 August 2024

The Victorian Bar Incorporated (Vic Bar), who is the respondent in these actions, has applied for costs following the proceedings in the Tribunal (the Tribunal Proceedings) in which the applicant unsuccessfully applied to the Tribunal for a review of a decision by Vic Bar to refuse to register the applicant as a barrister in Victoria.[1] Vic Bar was one of four respondents in the Tribunal Proceedings who had refused to register the applicant as a barrister in their respective jurisdictions.
[1] Little and The Council of the New South Wales Bar Association [2024] AATA 497
Pursuant to s 34 of the Trans-Tasman Mutual Recognition Act 1997 (Cth) (TTMRA)[2] the Tribunal “may order a party in proceedings before it to pay costs if the party has acted unreasonably.”
[2] All references to legislation are to the TTMRA unless otherwise stated.
The applicant in the Tribunal Proceedings and Vic Bar provided written submissions which we have considered. For the reasons that follow, the application for costs is refused.
Background
We will not repeat the very extensive factual and legal background which we set out in the Tribunal’s decision of 21 March 2024 except so far as is necessary to deal with this application for costs.
Consideration
The Tribunal has a discretion to order costs to be paid by a party who has acted unreasonably. The discretion must be exercised in the context of the legislative framework provided by the TTMRA and the background facts.
The Legislative Framework
The principal purpose of the TTMRA is to enact legislation with the intention of recognising within Australia regulatory standards adopted in New Zealand regarding goods and occupations. The legislation was, as contemplated by the Trans-Tasman Mutual Recognition Arrangement, entered into on 9 July 1996 between the Commonwealth of Australia, New Zealand, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania,…

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: [2024] AATA 2852
Decision Date: 2 August 2024

CaseChat Overview and Summary

The New Zealand Trans-Tasman Occupations Tribunal, constituted by Deputy President Britten-Jones and Chairperson Grant Pearson, considered an application for costs brought by the Victorian Bar Inc. The application for costs arose from proceedings where the applicant sought registration as a barrister in Victoria under the *Trans-Tasman Mutual Recognition Act 1997* (Cth) (TTMRA). The Tribunal had previously made a decision on the merits of the applicant's registration, and this decision was now being considered in relation to the costs application.

The primary legal issues before the Tribunal were whether the Victorian Bar Inc. had standing to apply for costs after the substantive proceedings had concluded, and if so, whether the applicant had acted unreasonably in the course of those proceedings, thereby justifying an order for costs. The TTMRA's purpose is to facilitate the movement of goods and service providers between Australia and New Zealand by recognising regulatory standards. Part 3 of the TTMRA outlines the process for individuals registered in New Zealand to obtain registration for an equivalent occupation in Australia, with section 22 specifying grounds on which registration may be refused, including materially false or misleading information or the occupation not being equivalent.

The Tribunal reasoned that the Victorian Bar Inc. did have standing to apply for costs, interpreting "a party in proceedings before it" under section 34 of the TTMRA to include parties to proceedings that have been determined. This interpretation was supported by analogous reasoning in other administrative tribunal decisions. However, the Tribunal concluded that the applicant had not acted unreasonably. While acknowledging that the applicant's New Zealand practising certificate had lapsed by the time of the hearing, the Tribunal found that at the time of lodging the application, the applicant was registered and held a valid practising certificate. Therefore, the Tribunal refused the Victorian Bar Inc.'s application for costs.

Orders

Orders of the court

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Background

Background to the litigation

The applicant in the Tribunal Proceedings and Vic Bar provided written submissions which we have considered. For the reasons that follow, the application for costs is refused.Background We will not repeat the very extensive factual and legal background which we set out in the Tribunal’s decision of 21 March 2024 except so far as is necessary to deal with this application for costs.Consideration The Tribunal has a discretion to order costs to be paid by a party who has acted unreasonably. The discretion must be exercised in the context of the legislative framework provided by the TTMRA and the background facts.The Legislative Framework The principal purpose of the TTMRA is to enact legislation with the intention of recognising within Australia regulatory standards adopted in New Zealand regarding goods and occupations. The legislation was, as contemplated by the Trans-Tasman Mutual Recognition Arrangement, entered into on 9 July 1996 between the Commonwealth of Australia, New Zealand, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory.[3] [3] Trans-Tasman Mutual Recognition Act 1997 (Cth), s 3. The Explanatory Memorandum for the Trans-Tasman Mutual Recognition Bill 1996 (Cth) provided that:[4]The objective of the Arrangement is to remove regulatory barriers to the movement of goods and service providers between Australia and New Zealand, and to thereby facilitate trade between the two countries. This will enhance the international competitiveness of Australian and New Zealand enterprises, increase the level of transparency in trading arrangements, encourage innovation and reduce compliance costs for business.[4] Explanatory Memorandum, Trans-Tasman Mutual Recognition Bill 1996 (Cth). Part 3 of the TTMRA deals with the ability of a person who is registered in connection with an occupation in New Zealand to carry on an equivalent occupation in Australia. Section 16(1) outlines the Trans-Tasman mutual recognition principle:The Trans-Tasman mutual recognition principle is that, subject to this Part, a person who is registered in New Zealand for an occupation is, by virtue of this Act, entitled after notifying the local registration authority of an Australian jurisdiction for the equivalent occupation:(a)to be registered in the jurisdiction for the equivalent occupation; and(b)pending such registration, to carry on the equivalent occupation in the jurisdiction. Division 2 of Part 3 of the TTMRA deals with entitlement to registration. Section 18 requires the applicant to give notification to the local registration authority:Notification to local registration authority(1) A person who is registered in New Zealand for an occupation may lodge a written notice with the local registration authority of an Australian jurisdiction for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the Trans‑Tasman mutual recognition principle.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Finally, whilst unnecessary to deal with it, we would reject the applicant’s contention that Vic Bar has no standing because the proceedings have been determined. The applicant says that s 34 should be given a narrow interpretation to only allow a party in ongoing proceedings to be made to pay costs. The reference in s 34 to “a party in proceedings before it” should be understood as a reference to a party to a proceeding in the Tribunal because otherwise it precludes a party from making an application for costs as soon as a decision by the Tribunal is made. Vic Bar is a party to the proceedings and therefore has standing to apply for costs. This interpretation is consistent with the interpretation given by DP Forgie in Abdou and Victorian Building Authority [2020] AATA 2637:[58] On its face, s 35 of the MR Act does not state that the proceedings have concluded. Given the breadth of the definition of “proceeding” in the AAT Act and the reference to “proceedings” in s 35 of the MR Act, it is arguable that the Tribunal would not have to wait until the application has been determined but could be asked to make a costs order in relation to an incidental application made in the course of, or in connection with, an application made for review of a decision under the MR Act. When a matter has been finally determined, whether by decision of the Tribunal after hearing the merits of the application or with the consent of the parties under s 42C of the AAT Act, the Tribunal could clearly be asked to make a costs order under s 35.Decision of the Tribunal The Tribunal concludes that the applicant has not acted unreasonably and therefore the decision of the Tribunal is to refuse the respondent’s application for costs.

Ratio Decidendi

Legal Principle Established

Section 22 provides the reasons that an application may be refused:Refusal of registration(1) A local registration authority may refuse the grant of registration, if:(a)any of the statements or information in the notice as required by section 18 are materially false or misleading; or(b)any document or information as required by section 18(3) has not been provided or is materially false or misleading; or(c)the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.(2) A decision to refuse to grant registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Australian Tribunal, in which case the Tribunal may make whatever orders it considers appropriate.Some Background Facts On 2 May 2023 the applicant served a s 18 notice on Vic Bar seeking registration as a barrister in Victoria. On 29 May 2023, Vic Bar exercised its power to postpone its decision under s 21(1)(d) of the TTMRA, but expressed the view that the applicant’s status as an employed barrister in New Zealand was not an equivalent occupation to a barrister in Victoria for the purpose of the TTMRA. On 1 November 2023, Vic Bar made a final decision to refuse to grant registration. Issues in the Tribunal Proceedings There were two principal issues for the Tribunal to determine; namely, whether the decision to refuse registration should be affirmed because:(a)the applicant’s practising certificate entitling him to practise in New Zealand as a barrister lapsed on 30 June 2023 (the Issue of the Lapsed Practising Certificate); and(b)the occupation for which the applicant seeks registration is not equivalent to the occupation for which the applicant was registered in New Zealand (and equivalency cannot be achieved through the imposition of conditions) (the Issue of Equivalency of Occupations).Tribunal Findings on the Issue of the Lapsed Practising Certificate The Tribunal considered the impact of the applicant not renewing his New Zealand practising certificate which expired on 30 June 2023 and made the following findings. The applicant held a practising certificate which entitled him to practise as a barrister in New Zealand from 1 July 2022 to 30 June 2023. In his s 18 notice to Vic Bar, the applicant stated that “I am registered for the occupation of barrister in New Zealand” and he provided a copy of his “current New Zealand practising certificate evidencing [his] existing registration”. The practising certificate, issued by the New Zealand Law Society on 1 July 2022, confirmed that he was “enrolled as a Barrister and Solicitor of the High Court of New Zealand under the Lawyers and Conveyancers Act 2006 (NZ) and is entitled to practise as a Barrister until 30 June 2023”. There is no dispute that as at the date of the applicant’s s 18 notice he was registered as a barrister and held a New Zealand practising certificate. However, the position as at the time of the hearing in the Tribunal Proceedings, which had applied since 1 July 2023, was that the applicant did not hold a New Zealand practising certificate and was no longer registered to practise as a barrister in New Zealand.