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 22Victorian 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,…
Keep reading for free
Create a free CaseChat account to read Little and Victorian Bar Inc and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2024] AATA 2852
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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.