Motor Vehicle Industry Board v Dawson

[2006] WASAT 8

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   VOCATIONAL REGULATION

ACT: MOTOR VEHICLE DEALERS ACT 1973 (WA)

CITATION:   MOTOR VEHICLE INDUSTRY BOARD and DAWSON [2006] WASAT 8

MEMBER:   JUSTICE M L BARKER (PRESIDENT)

MR M ALLEN (SENIOR MEMBER)
MR A TOWNSEND (SESSIONAL MEMBER)

HEARD:   6 DECEMBER 2005

DELIVERED          :   18 JANUARY 2006

FILE NO/S:   VR 344 of 2005

BETWEEN:   MOTOR VEHICLE INDUSTRY BOARD

Applicant

AND

CHRISTOPHER PETER DAWSON
Respondent

Catchwords:

Professions and trades – Motor vehicle dealer licensing – Application for disqualification of respondent from holding or obtaining any authorisation under the Motor Vehicle Dealers Act 1973 (WA) on grounds of previous conviction for unlicensed dealing in motor vehicles – Consideration of nature of power to disqualify – Whether a residual discretion to not disqualify exists – Consideration of relevant matters to take into account when considering whether to exercise discretion – Application for disqualification dismissed – Whether costs payable by Motor Vehicle Industry Board on dismissal of application

Legislation:

Motor Vehicle Dealers Act 1973 (WA), s 5(1), s 15, s 16, s 17, s 17B, s 20(1), s 20(2), s 20(3), s 20A(1), s 20A(2), s 20A(3), s 20A(4), s 20A(5), s 20A(6), s 20A(7), s 20D(2), s 30(1)

Interpretation Act 1984 (WA), s 3(1), s 56(1)
Sentencing Act 1995 (WA), Part 15

State Administrative Tribunal Act 2004 (WA), s 11(1), s 11(4), s 87(1), s 87(2)

Result:

Application for order for disqualification dismissed.  No order as to costs.

Category:    B

Representation:

Counsel:

Applicant:     Mr S L Dworcan

Respondent:     Mr S J Blyth

Solicitors:

Applicant:     Department of Consumer and Employment Protection

Respondent:     Lewis Blyth & Hooper

Case(s) referred to in decision(s):

Australian Securities and Investments Commission v Vizard (with summary) [2005] FCA 1037

Binns v Gardiner [2002] WASCA 337

Coulthard v Henneker [2003] WASCA 187

Medical Board of Western Australia and Roberman [2005] WASAT 81(S)

Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24

Rich v Australian Securities and Investments Commission [2004] HCA 42

Samad v District Court of New South Wales (2002) 209 CLR 140

Schamotta v The Queen [2002] WASCA 262

Tavelli v Johnson unreported; Supreme Court of WA Library No 960693; 25 November 1996

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The Motor Vehicle Industry Board applied for orders that Mr Christopher Dawson be disqualified from holding or obtaining any authorisation under the Motor Vehicle Dealers Act 1973 (WA) because in 2004 Mr Dawson had been convicted of an offence of dealing in motor vehicles without the necessary licence.

2. Although there was no dispute about Mr Dawson's conviction, the State Administrative Tribunal concluded that it had a discretion as to whether or not Mr Dawson should be disqualified, and that, having regard to the circumstances of the offence and Mr Dawson's efforts to rehabilitate himself, the protection of the public did not require such a disqualification order. 

3. The Tribunal decided that each party should bear its own costs of the proceedings.

The application and background

1. By application filed in the State Administrative Tribunal on 31 August 2005 the Motor Vehicle Industry Board (the Board) alleged that Christopher Peter Dawson (Mr Dawson) had contravened a provision of the Motor Vehicle Dealers Act 1973 (WA) (the MVD Act), and sought orders that he be disqualified from holding or obtaining any authorisation under the MVD Act and that he pay the Board's costs of the application.

2. The basis of the Board's application to the Tribunal was that Mr Dawson had, on 16 July 2004, been convicted of engaging in unlicensed dealing in contravention of s 30(1) of the MVD Act.

3. When the matter came on for hearing the Tribunal was constituted in accordance with s 11(1) and s 11(4) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act). At the conclusion of the hearing the Tribunal dismissed the application and heard submissions as to whether the Board should pay Mr Dawson's legal costs. The Tribunal then made the following orders:

   1.The application is dismissed.

   2.The decision on the costs application is reserved.

   3.The reasons for decision are to be published in due course.

4. The following paragraphs constitute the Tribunal's decision in relation to the issue of costs and the reasons for the decisions made by the Tribunal.

Statutory framework

1. The MVD Act provides a regime for the regulation of persons involved in motor vehicle dealing and motor vehicle repair work, and the regulation of dealing in motor vehicles: see the long title. The Board is established by the MVD Act and has conferred on it various functions and powers in relation to the regulation of motor vehicle dealing and repair work, and the persons engaged in those activities. Central to the operation of the MVD Act is a regime for the licensing and registration of varying categories of persons who wish to engage in those activities. The MVD Act refers to the various types of licences or registrations as "authorisations": see s 5(1) and s 15 ‑ s 17B.

2. The MVD Act creates a number of offences, one of which is to be found in s 30(1), which provides that "a person shall not engage in unlicensed dealing" in motor vehicles with a penalty of $50 000 and a daily penalty of $1000 for contraventions of that provision. It was this provision that Mr Dawson was charged and convicted of contravening in July 2004. It was alleged that Mr Dawson had contravened the provision between August 2002 and March 2004 by entering into 42 transactions involving the purchase or sale of motor vehicles. The transcript of proceedings in the Court of Petty Sessions on 16 July 2004 and the complaint against Mr Dawson, both of which form exhibits to Exhibit 1 in these proceedings, reveal that Mr Dawson pleaded guilty to the charge, was fined $8000 and ordered to pay $250 in costs.

3. Section 20(1) of the MVD Act relevantly provides that the Board may allege to the Tribunal that a person

   "(a)has contravened or failed to comply with —

   (i)a provision of this Act; or

   (ii)an authorisation or a condition or restriction attached to an authorisation; or

   (b)has done or omitted to do any thing, or engaged in any conduct, that renders the person unfit —

   (i)to be the holder, or a joint holder, of an authorisation; or

   (ii)to be concerned in the management or conduct of a body corporate that is the holder or a joint holder of an authorisation."

4. Section 20(2) also enables the Board to allege that a person, or persons constituting a firm, should be disqualified from holding certain authorisations if they lack sufficient material and financial resources to be able to comply with the requirements of the MVD Act, or have already ceased to carry on the relevant business.

5. Section 20(3) permits an allegation that the authorisation of premises should be revoked if the premises no longer comply with applicable planning laws.

6. Section 20A(1) of the MVD Act provides that in a proceeding commenced by an allegation under s 20(1) the Tribunal may, if the matter alleged is established, make any order provided for by s 20A. The succeeding relevant provisions of s 20A are as follows:

   "(2)An order may be made disqualifying a person from holding or obtaining, whether solely or jointly, any authorisation or any specified kind of authorisation, whether or not at the time when the order is made that person is the holder of an authorisation.

   (3)An order may be made disqualifying a person from being concerned in the management or conduct of a body corporate that is the holder, or a joint holder, of an authorisation, whether or not at the time when the order is made the person is so concerned.

   (4)Subject to section 20B, an order may be made that a person pay a penalty not exceeding —

   (a)$1 500 in the case of a person who is or was the holder of a yard manager’s licence or a salesperson’s licence; or

   (b)$5 000 in the case of a person who is or was the holder of a dealer’s licence or registered as a car market operator.

   (5)An order may be made —

   (a)attaching conditions or restrictions to an authorisation; or

   (b)amending a condition or restriction attached to an authorisation.

   (6)An order may be made reprimanding or cautioning a person.

   (7)An order under subsection (2) or (3) may be made to have effect —

   (a)for a period named in the order; or

   (b)until a further order is made by the … Tribunal."

7. Section 20D(2) relevantly provides that a dealer or a car market operator shall not, during the period when a person is disqualified under an order described in s 20A(2) or (3):

   "(a)employ the person in any capacity on authorised premises; or

   (b)allow the person to frequent such premises,

   without the prior consent of the Board."

8. There was no dispute in the proceedings before the Tribunal that Mr Dawson had contravened s 30(1) of the MVD Act and that, accordingly, the allegation made by the Board to the Tribunal was established. The Tribunal's power to make any of the orders provided for by s 20A, including the power to disqualify as sought by the Board, was therefore activated.

9. That conclusion, however, leaves open the questions of whether the Tribunal retains a residual discretion in relation to the making of any orders and, if so, how the Tribunal should exercise that discretion in this case.

Whether s 20A creates discretion or obligation

1. The starting point for any investigation as to the existence of a discretion is s 56(1) of the Interpretation Act 1984 (WA) (the Interpretation Act), which provides that where the word "may" is used in a written law in conferring a power, the word " … shall be interpreted to imply that the power so conferred may be exercised or not, at discretion". By virtue of s 3(1) of the Interpretation Act, s 56(1) is applicable to s 20A of the MVD Act unless express provision is made to the contrary (which is not the case here) or "… the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application …". In other words, although the use of the word "may" is presumptive, it is not conclusive of the existence of a discretion and reference must be made to the context of the statute, the particular provisions and the general scope and object of the statute conferring the power in order to determine whether a public officer or body is under an obligation to exercise the power.

2. Gleeson CJ and McHugh J in Samad v District Court of New South Wales (2002) 209 CLR 140 at [37] identified two aspects of the regulatory scheme in question in that case that suggested there was no obligation to exercise a power to cancel a licence. The first was that an obligation to cancel would require cancellation even if the contravention that provided the ground was "… technical, or trivial, or accidental, or readily excusable". No legislative purpose would be served by depriving the decision maker of the capacity to excuse such a contravention or failure, or to seek to deal with it by some means short of suspension or cancellation. The second factor identified was that a more appropriate remedy in any particular case might be the imposition or variation of licence conditions. The capacity to deal with the situation in that way suggested that a discretion was not in narrow terms. In the same case, Gaudron, Gummow and Callinan JJ, at [76], also considered that the power to impose further conditions [and to vary or revoke them] was indicative of a wider discretion rather than an obligation to exercise the power to cancel.

3. The Tribunal has the power to make any of the orders specified in s 20A of the MVD Act, including the power to disqualify, to reprimand or caution, to attach conditions or restrictions to an authorisation or to amend such a condition or restriction, or to impose a monetary penalty on a person who has, or had, an authorisation. Such provisions indicate that, in any particular case, disqualification is not an inevitable result if one of the grounds specified in s 20(1) is made out. Equally, because the ground for disqualification relied on by the Board can be activated by a contravention of the MVD Act, however "technical, trivial, accidental or readily excusable", little legislative purpose would be served by depriving a body such as the Tribunal of the capacity to decide, at discretion, not to disqualify or to impose any other form of sanction on the person concerned.

4. For these reasons we consider that, although the allegation made against Mr Dawson is made out and the power to disqualify arises, the Tribunal retains a discretion to decide not to deal with the situation by disqualifying Mr Dawson in the manner sought by the Board.  The issue then arises as to what matters should be regarded as relevant to the consideration of how the Tribunal's discretion should be exercised.

Relevant considerations on exercise of discretion under s 20A

1. In Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) CLR 24 at 39 – 40 Mason J (as he then was) said:

   "What factors a decision‑maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.  If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive.  If the relevant factors … are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act … [W]here a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject‑matter, scope and purpose of the statute some implied limitation on the factors to which the decision‑maker may legitimately have regard …".

2. At 41 his Honour went on to say that:

   "… in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision‑maker and not the court to determine the appropriate weight to be given to the matters that are required to be taken into account when exercising the statutory power …"

3. Section 20(1) of the MVD Act specifies the grounds that the Board may allege to the Tribunal and to that extent identifies not only the events that activate the power to disqualify but also provides some guide as to the kinds of matters that may be relevant when considering whether to disqualify or not. It is to be noted that s 20(1) identifies as grounds for applying to the Tribunal not only contraventions of the MVD Act but also actions, omissions or conduct that render a person unfit to be the holder of an authorisation under the MVD Act. It is not difficult to imagine circumstances in which a contravention of the MVD Act could also constitute conduct that renders a person unfit. To that extent there may often be considerable overlap between the various grounds for taking action.

4. A decision whether to cancel a person's licence or other authorisation to engage in a particular activity because of offences will usually be made in one of two types of circumstances. The first situation involves consideration by a court of what sentence to impose on a person convicted of certain types of offences for the purposes of Part 15 of the Sentencing Act 1995 (WA) – which deals with licences in relation to motor vehicles, firearms and marine vessels – or comparable legislation. In such cases the disqualification or cancellation becomes part of the sentence for the offence. The principles relevant to the exercise of the discretion to disqualify a person in such circumstances are examined in cases such as Schamotta v The Queen [2002] WASCA 262 at [7] – [13] and Binns v Gardiner [2002] WASCA 337 at [54] – [63]. In such cases it is necessary to consider both a punishment factor and a protective purpose.

5. The second context in which consideration of disqualification may arise is when a decision‑maker must take into account previous conduct or convictions (but in a context unrelated to the sentencing for such convictions) in order to decide whether to disqualify a person from undertaking certain types of activities.  Examples included banning a person from being a director of a company or, as in the present case, disqualifying a person from holding, or obtaining, certain types of occupational licences.  It is well recognised in this context that the power should be exercised for the purpose of protecting the public and the maintenance of appropriate professional standards, although its exercise may have a punitive effect: see generally Rich v Australian Securities and Investments Commission [2004] HCA 42 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [34] and [35] and the authorities referred to therein.

6. In exercising the power, regard is ordinarily paid to the kinds of factors identified by Wheeler J in Tavelli v Johnson unreported; Supreme Court of WA Library No 960693; 25 November 1996 at pages 6 ‑ 7 and Barker J in Coulthard v Henneker [2003] WASCA 187 at [44] ‑ [50]. This involves consideration of matters such as the nature of the offence, the circumstances in which it occurred, whether the offence reflects adversely on the character of the offender, relevant changes in the person's circumstances, and character generally since the time the offence occurred.

7. However, we would also observe that s 20 and s 20A of the MVD Act operate together to permit not only an application for an order that an existing holder of an authorisation be disqualified from holding the authorisation (or another authorisation), but also an application that a person who does not currently hold any form of authorisation be disqualified from obtaining an authorisation. In this case the Board seeks an order that Mr Dawson, who does not currently hold any authorisation under the MVD Act, be disqualified from obtaining any authorisation.

8. While the Board relies on the 2004 conviction against Mr Dawson to support its application, in effect its contention before the Tribunal was that the seriousness of the conviction rendered him unfit to hold any authorisation.

9. Ordinarily a person's fitness to hold an authorisation would be addressed at the time they apply for an authorisation or, where they are currently the holder of an authorisation, an application is made to cancel the authorisation because of conduct said to render them unfit. While a person's fitness to hold an authorisation may be considered on an application for disqualification where the person does not currently hold an authorisation, it may be thought that it will be an unusual case where such an application will succeed. This is because, where a person does not currently hold an authorisation, the MVD Act provides an alternative mechanism for assessing the person's fitness to hold an authorisation; namely, at the time the person applies to the Board for an authorisation.

10. Nonetheless, we would not discount the possibility that circumstances may arise to justify the making of an order disqualifying a person who is not currently the holder of an authorisation under the MVD Act from obtaining an authorisation in the future by reason of conduct demonstrating their lack of fitness.

The exercise of discretion in this case

1. At the hearing of this application in the Tribunal, it quickly became apparent that the Board wished to argue that the 2004 conviction of Mr Dawson and the circumstances surrounding that conviction rendered him unfit to obtain an authorisation under the MVD Act. This approach tended to put Mr Dawson in the position where he was required to establish his fitness to hold an authorisation. Of course he had never held one and he had not, at the time of the hearing of this application, applied under the MVD Act for an authorisation. Nonetheless, Mr Dawson sought to demonstrate to the Tribunal that he was not unfit to hold an authorisation and by reason thereof no order disqualifying him from obtaining an authorisation should be made.

1. Oral evidence was then given by Mr Dawson, his wife, and by Mr Robert Jameson, who is a counsellor with a support group associated with a church of which Mr Dawson is a member.  It is not necessary to set out in detail the evidence given by the three witnesses.  It was not in substance challenged by the Board and we accept the evidence given.  It was to the effect that the events giving rise to the conviction of Mr Dawson occurred over a period of time when he was affected by alcohol and illicit substance addictions and also a gambling addiction.  Mr Dawson has limited education and no formal qualifications, but has for most of his adult life had an interest in working on and owning motor vehicles.  Throughout the relevant period his family's financial position was precarious and Mr Dawson would frequently buy a motor vehicle when he was in funds (usually as a result of a gambling win) and would be forced to sell the vehicle when the family's financial situation became critical.  At least some of the vehicle transactions involved Mr Dawson assisting friends to buy or sell.

2. We accept that, following his conviction, Mr Dawson has taken considerable steps to rehabilitate his health and emotional well‑being. He has undertaken a drug rehabilitation program and has apparently succeeded in overcoming his various addictions. He is an active member of a local church community. For approximately the last 12 months he has been working at a motor vehicle wrecking business owned by a friend as part of his rehabilitation efforts. He has not been paid for this work but he and Mrs Dawson have reached an informal agreement with the owner of the business that they will be able to acquire a 50% share in the business. Mrs Dawson is involved in the motor vehicle dealing industry and currently holds a yard manager's licence under the MVD Act in connection with her employment at another (unrelated) dealer business.

3. The work undertaken by Mr Dawson at the wrecking business does not require any authorisation under the MVD Act but, if he were disqualified in the manner sought by the Board, then the effect of s 20D would be that he could not be employed in any capacity in the business; nor could he frequent the premises from which that business operates. It is apparent from [14] of Exhibit 2 (a statement by Mr Chad Prout, a senior compliance officer employed by the Department of Consumer and Employment Protection) that the application for disqualification of Mr Dawson is motivated primarily by a desire to ensure that he does not frequent such business environments where he would have "… the opportunity to re‑offend."

4. Because at the present time Mr Dawson holds no authorisation under the MVD Act he has no capacity to undertake any of the activities that would require an authorisation. Should Mr Dawson and his wife proceed with their desire to acquire a 50% interest in the wrecking business and to become involved in its management, then it would be necessary for Mr Dawson to make an application to the Board pursuant to s 15 of the MVD Act for a dealer's licence. At such a time he would need to satisfy the Board that he is "… a person of good character and repute and a fit and proper person to hold such a licence …". That would, no doubt, be a substantial hurdle for Mr Dawson to overcome, but we consider that would be the appropriate time and place in which Mr Dawson's fitness to hold a licence could be examined. Bearing that requirement in mind, on the evidence before us we consider that there is nothing about the circumstances in which the relevant offence occurred or about Mr Dawson's current involvement in the wrecking business that requires disqualification in the present circumstances. In forming that view we have not overlooked the seriousness of the offence (as evidenced by the substantially increased penalties imposed by Parliament in amendments to the MVD Act in 2002), the importance identified at that time of protecting consumers who purchase vehicles from "backyard dealers", and the unfair adverse affects of the activities of such people on those dealers who comply with the requirements of the MVD Act: see the Second Reading speech of the responsible Minister, Mr Kobelke, Hansard Legislative Assembly, 7 November 2001 at page 5168.

5. We have briefly outlined already the circumstances in which the offence occurred.  There is no evidence that any person who entered into transactions with Mr Dawson suffered as a consequence.  In addition, the particular offence can, in our opinion, be regarded as being "regulatory" in nature rather than a "true crime".  It is an offence which is not criminal in essence, but involves acts which in the public interest are prohibited under a penalty.  Such offences are enacted for the regulation of individual conduct in the interests of health, convenience, safety and the general welfare of the public: see generally the discussion in Australian Securities and Investments Commission v Vizard (with summary) [2005] FCA 1037 per Finkelstein J at [26] and the authorities referred to therein.

6. We are satisfied that Mr Dawson has made creditable efforts to rehabilitate himself from and overcome the adverse affects of his addictions to which we have referred, which seem in large part to have been the cause of his 2004 offence.  Mr Dawson has other convictions that pre‑date the 2004 offence and are unrelated to that offence.  We are in no doubt, as Mrs Dawson said in her evidence, that his life was somewhat out of control at the relevant time.  He has, however, taken great steps to improve his position in life, and that of his family.  He has managed to work recently in a position of authority involving the management of money.

7. In the circumstances, and in the exercise of our discretion, we do not consider that a disqualification of Mr Dawson from holding any authorisation under the MVD Act at the present time would be appropriate or necessary to protect the public. We emphasise, however, that this decision should not be seen as predetermining the outcome of any application that Mr Dawson may make to the Board for an authorisation under the MVD Act.

Costs

1. In its application the Board not only sought a disqualification order against Mr Dawson, but also the costs of bringing the proceedings against him.  Because the Board has not succeeded in obtaining the order sought it is not appropriate to make any order for costs in favour of the Board.

2. However, because the application of the Board was dismissed, counsel for Mr Dawson submitted that the Board should pay Mr Dawson's legal costs in responding to the proceedings and being legally represented at the hearing.

3. There is a general question whether in circumstances such as these, where a vocational regulatory body such as the Board brings proceedings but fails to make out a case for the order it seeks, it should automatically be considered an "unsuccessful" party who should pay the legal costs of the "successful" party.

4. Counsel for the Board submitted that, even if the Tribunal considered that ordinarily in such a case the vocational regulatory body should be liable for the costs of the proceedings, in the particular circumstances of this case the Board did not have any advance notice, prior to the hearing, of the circumstances and evidence upon which Mr Dawson relied at the hearing and that this should be taken into account when assessing costs.  If the Board had known about Mr Dawson's position it may have been able to consider the position further. 

5. So far as the general question of costs is concerned, s 87(1) of the SAT Act provides the starting out rule that parties to proceedings should bear their own costs in the absence of an order of the Tribunal to the contrary. However, s 87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party.

6. Where proceedings are commenced by a vocational regulatory body (such as the Board) against a person affected by a vocational Act (such as Mr Dawson), the Tribunal will usually make an order for costs in favour of the vocational regulatory body where it is successful in obtaining an order in the proceedings.  In Medical Board of Western Australia and Roberman [2005] WASAT 81(S) at [30] the Tribunal (Judge John A Chaney SC, Deputy President, presiding member) observed in relation to s 87(2) that:

   "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.  The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case."

7. With those observations the Tribunal concurs. 

8. In the Roberman case, however, the Medical Board of Western Australia was unsuccessful in relation to some of the allegations made against the medical practitioner.  For that reason the Tribunal in its discretion considered it was appropriate that the practitioner only pay one-third of the costs of the Medical Board.  In so doing the Tribunal implicitly recognised that a person affected by proceedings instituted by a vocational regulatory body should not have to bear the costs of the proceedings or contribute to the costs of those part of the proceedings which were not successfully maintained.

9. The decision in the  Roberman case does not support the view, however, that an affected person in such proceedings is entitled to an award of costs for the portion of the proceedings in which they were successful.  If this approach were to be adopted, vocational regulatory bodies may well feel inhibited in commencing proceedings that should be commenced and maintained in the public interest even though "success" cannot be guaranteed.  Consequently, the Tribunal considers that, ordinarily, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against a vocational regulatory body simply because the application was not successful.

10. Of course, in every case the Tribunal retains the discretion under s 87(2) of the SAT Act to order costs in the circumstances of the case.

11. In the present case, the Board considered it was important in the public interest to make an application for a disqualification order on the basis of the 2004 conviction of Mr Dawson and its concern that he was not a proper person to hold an authorisation. The Board was also concerned he might engage in conduct for which he had previously been convicted. The burden of the Board's argument in the Tribunal was that Mr Dawson's 2004 conviction demonstrated he was not a fit person to hold an authorisation under the MVD Act. As we have explained earlier, we have formed the view that the disqualification order is not necessary on account of the 2004 conviction. Whether or not Mr Dawson is a fit person to hold any relevant authorisation under the MVD Act is an issue that may arise in the future should he apply for an authorisation.

12. In the circumstances of this case in which the Board has not been successful in obtaining a disqualification order we do not think it can be said that the application of the Board lacked any reasonable basis or was not made in good faith. For that reason we do not consider this to be an appropriate case in which to order the Board to contribute to Mr Dawson's costs in responding to the application. As a result, the Tribunal declines to exercise its discretion under s 87(2) of the SAT Act and each party should therefore bear its own costs as the SAT Act contemplates by s 87(1).

Final order

1. In these circumstances, the final order of the Tribunal in these proceedings is as follows:

   (1) The application is dismissed.

   I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

   ___________________________________

   JUSTICE M L BARKER, PRESIDENT