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.
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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, 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.
Section 19 provides the entitlement to registration:
Entitlement to registration and continued registration
(1)A person who lodges a notice under section 18 with a local registration authority of an Australian jurisdiction is entitled to be registered in the equivalent occupation, as if the law of the jurisdiction that deals with registration expressly provided that registration in New Zealand is a sufficient ground of entitlement to registration.
(2)The local registration authority may grant registration on that ground and may grant renewals of such registration.
(3)Once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in New Zealand.
(4)Continuance of registration is otherwise subject to the laws of the jurisdiction, to the extent to which those laws:
(a)apply equally to all persons carrying on or seeking to carry on the occupation under the law of the jurisdiction; and
(b)are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
(5)The local registration authority may impose conditions on registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person's registration in New Zealand or that are necessary to achieve equivalence of occupations.
(6)This section has effect subject to this Part.
Section 20 provides that the local registration authority must make a decision within one month of notice otherwise the person is automatically entitled to registration:
Action following notice
(1) Registration must be granted within one month after the notice is lodged with the local registration authority under section 18.
(2) When granted, registration takes effect as from the date the notice was lodged.
(3) However, the local registration authority may, subject to this Part and within one month after the notice was lodged, postpone or refuse the grant of registration.
(4) If the local registration authority neither grants the registration nor takes action under subsection (3) within the period of one month after the notice is lodged, the person is entitled to registration immediately at the end of that period and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved.
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.
The applicant contended in the Tribunal Proceedings that the fact that he was no longer registered to practise as a barrister in New Zealand was not relevant on a proper interpretation of the TTMRA which only provides for a requirement to be registered in New Zealand at the time of the notification under s 18 to the local registration authority. The question for determination by the Tribunal was whether there was an ongoing requirement to be registered up until the date of a decision.
The applicant contended in the Tribunal Proceedings that he was entitled to be registered as a barrister in Victoria and to receive a practising certificate because he satisfied the “Entitlement to registration” in Division 2 of Part 3 of the TTMRA for the following reasons:
(a)He has lodged a written notice pursuant to s 18(1) which complies with the requirements in s 18(2) of the TTMRA. Under s 19(1) a person who lodges a notice under s 18 with a local registration authority is entitled to be registered in the equivalent occupation. Registration must be granted within one month after the notice is lodged and, if not, the person is entitled under s 20(4) of the TTMRA to registration immediately at the end of that period.
(b)None of the grounds for refusal in s 22(1) are made out.
(c)There was nothing materially false or misleading in the applicant’s s 18 notice or in his practising certificate provided under s 18(3).
(d)The relevant occupations are equivalent because the activities carried out under each registration are substantially the same or would be substantially the same upon the imposition of appropriate conditions: see s 28(1).
With respect to the applicant’s contentions, the Tribunal made the following findings:[5]
[68] The applicant claims an entitlement to registration in Australia because he lodged a s 18 notice and he would therefore appear to satisfy s 19(1). A prerequisite for the exercise of power to grant, refuse or postpone registration is that the applicant has lodged a s 18 notice. A s 18 notice may only be lodged by “A person who is registered in New Zealand for an occupation”, which in this case is the occupation of a barrister. The s 18 notice must, inter alia, state that the person is registered for the occupation in New Zealand. In other words, before the original decision maker can exercise a power to grant or refuse registration under ss 19(2) or 20(3), it must receive a written notice from a currently registered barrister. The applicant satisfied that requirement when he lodged his s 18 notices. The lapsing of the certificate does not alter the fact that the applicant lodged notices in the form required by s 18.
[69] Further, the applicant contends that his registration should not be refused pursuant to ss 22(1)(a) or (b) because there was nothing misleading or false in his s 18 notice and accompanying documents. … we will proceed on the basis that the applicant provided no false or misleading statements, information or documentation in his s 18 notices and therefore there was no basis to refuse registration pursuant to ss 22(1)(a) or (b) on their own.[6]
[70] Division 2 of Part 3 of the TTMRA does not provide for the situation where the New Zealand registration ceases before a decision is made to grant registration under s 19(2) or to postpone or refuse registration under s 20(3). …
[5] Little and The Council of the New South Wales Bar Association [2024] AATA 497
Whilst many of the applicant’s contentions were accepted, he ultimately failed because the Tribunal interpreted Part 3 of the TTMRA as providing for an ongoing requirement of registration after lodgement of the s 18 notice if an applicant wishes to remain entitled to a grant of registration. The Tribunal considered that the applicant’s contentions adopted a literal approach to s 19(1) which would result in an interpretation contrary to the purpose of the TTMRA. Those contentions focused exclusively on the procedure outlined in Division 2 of Part 3 of the TTMRA and paid insufficient regard to the Trans-Tasman mutual recognition principle in Division 1 of Part 3 of the TTMRA. The Tribunal found:[7]
[82] The applicant’s claim to be entitled to registration does not take into account the requirement in the Trans-Tasman mutual recognition principle that the entitlement to registration in Australia is only bestowed upon a person who is registered in New Zealand. Because of the primacy of registration in New Zealand to any entitlement to registration in Australia, the fact that the applicant has lodged a s 18 notice is not a sufficient basis for registration in Australia. The ‘person’ referred to in s 19(1) is not entitled to registration because he has not satisfied the Trans-Tasman recognition principle by not being registered in New Zealand.
[7] Little and The Council of the New South Wales Bar Association [2024] AATA 497
The Tribunal concluded that the applicant was not entitled to be registered as a barrister in Victoria and therefore that the decision by Vic Bar to not register the applicant would be affirmed. This finding was determinative of the application for review lodged by the applicant but the Tribunal considered the further issue as to equivalency of occupations.
The Tribunal’s findings on the Issue of Equivalency of Occupations
The issue of equivalency required some analysis of the regimes that apply for barristers in New Zealand and in the relevant jurisdictions in Australia.
The applicant contended in the Tribunal Proceedings that there is equivalency of the occupations of an employed barrister in New Zealand and a barrister in the Australian jurisdictions and that:
(a)his status as an employee and his obligation to be supervised; and
(b)the status of a barrister in the Australian jurisdictions to be a sole practitioner and not an employee
did not impact upon the required analysis of the occupational activities which are substantially the same in New Zealand as they are in the Australian jurisdictions. The applicant contended that in New Zealand the occupational activities of the supervising barrister acting on their own account are the same activities carried out by the employed barrister, albeit carried out under supervision.
The Tribunal considered the legislative regime that regulated the legal profession in New Zealand including with respect to employed barristers. The Tribunal accepted the respondents’ contention that the occupation of an “employed barrister” in New Zealand is not equivalent to that of a “barrister” in the Australian jurisdictions.
The Tribunal further concluded that equivalence cannot be achieved by imposing conditions because it is a fundamental requirement of the legislative schemes regulating barristers that they are independent sole practitioners who do not act under supervision and are prohibited from being an employee.
Has the applicant acted unreasonably?
The reason for setting out the applicant’s contentions made in the Tribunal Proceedings and the Tribunal’s findings above was to illustrate that some of those contentions were made out and others were at least arguable. It could not be said that the applicant’s case was bound to fail or that it was unreasonable for the applicant to bring or maintain the proceedings.
It follows that it was not unreasonable for the applicant to reject the offers made for the proceedings to be withdrawn or dismissed with no order as to costs. The only benefit being offered to the applicant was to avoid the risk of paying costs if unsuccessful, but there is no rule or expectation in the Tribunal that costs of the successful party are paid by the unsuccessful party. Indeed, the usual position of parties in the Tribunal is that they bear their own costs and have no entitlement to recover their costs from the other side. In Re Wearne and NSW Police Service (1994) 34 ALD 315 the power to award costs under s 35 of the Mutual Recognition Act 1992 (Cth)[8] was described by Deputy President McMahon as an unusual power and not one to be exercised lightly. We respectfully agree. If it had been found that the applicant was acting unreasonably then we would have given more weight to the offer made by Vic Bar. But no such finding has been made and consequently, we give very little weight to the offers and consider that their rejection was not unreasonable for the purposes of s 34 of the TTMRA.
[8] s 35 of the Mutual Recognition Act 1992 (Cth) is in similar terms to s 34 of the TTMRA
As to how the applicant conducted the Tribunal Proceedings, we accept that the applicant often provided lengthy written submissions to the Tribunal which ultimately were not very helpful and that consequently the respondents were put to unnecessary expense in dealing with them, but we consider that the applicant’s conduct fell short of what would be considered unreasonable. It is apparent from the authorities that the Tribunal was referred to that the principles of mutual recognition are complex and have given rise to much litigation – for example, the cases involving the Victorian Building Authority which have gone to the Full Court and the High Court.[9] The fact that the applicant was ultimately unsuccessful should not lead necessarily to a finding that he acted unreasonably.
[9] Victorian Building Authority v Andriotis; (2019) 268 CLR 168, [2019] HCA 22
Victorian Building Authority v Cau [2023] FCAFC 120

We have also considered Vic Bar’s contention that it was unreasonable for the applicant to pursue his registration in four separate jurisdictions. It is difficult to see how that has added to the costs of Vic Bar. The applicant was entitled to seek registration in each of the four jurisdictions. It was considered efficient for the Tribunal to hear the four separate applications to the Tribunal together. There was no oral evidence or cross examination in the Tribunal Proceedings and the hearing proceeded by way of submissions only. In so far as there were overlapping issues, each respondent did not repeat them but rather relied on the submissions of the other parties. We do not consider it was unreasonable for the applicant to seek to set aside the decision of each of the four registering authorities as opposed to only proceeding against one registering authority. Whilst there was overlap, the facts and the legislative regimes on the applications varied and different issues arose.
The issue of standing
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.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones and Grant Pearson, Chairperson of the New Zealand Trans-Tasman Occupations Tribunal

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Associate
Dated: 2 August 2024