Rainbow Pty Ltd and Hawkins & Anor
[2007] WASAT 216 (S)
•28 AUGUST 2007
RAINBOW PTY LTD and HAWKINS & ANOR [2007] WASAT 216 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 216 (S) | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | CC:1566/2006 | 30 MAY 2007 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) MS J HAWKINS (MEMBER) | 28/08/07 | |
| 17/12/07 | |||
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Costs assessed at $3036 | ||
| B | |||
| PDF Version |
| Parties: | RAINBOW PTY LTD GARRY HAWKINS SARAH-JANE HAWKINS |
Catchwords: | Costs Discretion as to costs Assessment of reasonable costs |
Legislation: | Builders' Registration Act 1939 (WA), s 34A, s 38(3) Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 State Administrative Tribunal Act 2004 (WA), s 87 |
Case References: | J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282(S) Lai & Anor and Costa [2006] WASAT 117(S) |
Orders | The applicant to pay the respondents' costs in the sum of $3036. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : RAINBOW PTY LTD and HAWKINS & ANOR [2007] WASAT 216 (S) MEMBER : MR C RAYMOND (SENIOR MEMBER)
- MS J HAWKINS (MEMBER)
DECISION : 18 DECEMBER 2007 FILE NO/S : CC 1566 of 2006 BETWEEN : RAINBOW PTY LTD
- Applicant
AND
GARRY HAWKINS
SARAH-JANE HAWKINS
Respondents
Catchwords:
Costs - Discretion as to costs - Assessment of reasonable costs
Legislation:
Builders' Registration Act 1939 (WA), s 34A, s 38(3)
(Page 2)
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006
State Administrative Tribunal Act 2004 (WA), s 87
Result:
Costs assessed at $3036
Category: B
Representation:
Counsel:
Applicant : Ms K Whitehead
Respondents : Mr G Maddy
Solicitors:
Applicant : Godfrey Virtue & Co
Respondents : Great Southern Legal Pty Ltd
Case(s) referred to in decision(s):
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282(S)
Lai & Anor and Costa [2006] WASAT 117(S)
(Page 3)
Summary of Tribunal's decision
1 This is a decision in relation to the respondents' application for costs following orders made by this Tribunal on 28 August 2007.
2 The Tribunal found that it was appropriate in this case to exercise its discretion under s 87(2) of the State Administrative Tribunal Act 2004 (WA) and make an award of costs to the respondents. The respondents sought costs in the sum of $16 159.55. Upon an assessment of costs and in the light of the Tribunal's obligation to minimise the costs to the parties, it assessed costs in the sum of $3036.
3 The Tribunal ordered the applicant to pay the respondents costs in the sum of $3036.
Background
4 On 28 August 2007, the State Administrative Tribunal (Tribunal) dismissed the applicant's application for review of a decision of the Building Disputes Tribunal (Disputes Tribunal). The decision of the Disputes Tribunal was affirmed and by order made on 28 August 2007, the parties were granted leave to apply for costs. There were further orders that unless the Tribunal directed otherwise, the amount of costs and expenses would be determined on the documents.
5 The parties have complied with the above directions. It is for the Tribunal now to determine the application for costs and, if granted, fix the sum of costs. The respondent has filed submissions seeking costs in this matter. The applicant has likewise filed submissions in opposition to the grant of costs to the respondent.
Findings in respect to an order for costs
6 Section 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides that unless otherwise specified in the SAT Act, the enabling Act, or an order of the Tribunal under this section, parties are to bear their owns costs in a proceeding of the Tribunal. A discretion however is granted to the Tribunal under s 87(2) and provides that unless otherwise specified in the enabling Act, the Tribunal can make an order for payment by a party of all or any costs of another party. Section 38(3) of the Builders' Registration Act 1939 (WA) (BR Act) empowers the Disputes Tribunal to make such order for costs, other than costs for the service of a legal practitioner, as it thinks fit. Bearing the above
(Page 4)
- provisions in mind, the starting point is made clear in s 87 of the SAT Act, that in any consideration of an application for costs, each party should bear their own costs. A discretion is, however, given to the Tribunal to make an order for costs. However, that discretion should be considered in light of the object of the Act expressed in s 9 of the SAT Act. The Tribunal is required to review discussions fairly to act speedily and with as little formality and technicality as is practicable, and minimise the cost to the parties.
7 It has been recognised, however, that there will be some cases in which an injustice could result, by not allowing costs to be recovered. In the matter of Lai & Anor and Costa [2006] WASAT 117(S) it was recognised that if the costs of legal representation and even expert witness fees could not be recovered in review proceedings, that this may impact on the use of the Disputes Tribunal which would not be in the public interest and would deny any review role by this Tribunal.
8 This matter involved an application for leave to review and review of a decision of the Disputes Tribunal. The application raised several technical legal arguments in relation to two issues:
a) whether s 34A of the BR Act required a complaint to the Disputes Tribunal to be accompanied at that time with the prescribed fee and if it was not, the application was not properly made; and
b) whether a preliminary notice had to be given at some reasonable time prior to the lodging of a complaint form with the Disputes Tribunal.
9 This Tribunal found that on a proper construction of the BR Act, the legislature did not intend that a failure to ensure that the prescribed fee accompanied an application or complaint before the Disputes Tribunal had the effect of invalidating the proceedings. In respect to the second issue, the Tribunal found that there was no requirement that a preliminary notice had to be given at a reasonable time prior to the lodging of the complaint form. As a result, the applicant's application for review was dismissed.
10 The applicant was legally represented and by this application, was raising issues concerning the interpretation of the BR Act. The application raised issues that had not previously been the subject of determination by this Tribunal.
(Page 5)
11 The Tribunal considers that it was therefore reasonable for the respondents to obtain their own legal representation, especially as the matters raised by the application were not matters which the Tribunal considers the respondents, unrepresented, could have easily dealt with.
12 Given the above findings, the Tribunal considers it is appropriate in this matter to move from the usual starting position that each party bear their own costs and finds that there should be an order that the applicant pay the respondents' costs.
Assessment of reasonable costs
13 The remaining issue then is the amount of costs that should be awarded. In relation to the costs sought, the respondents' solicitors have sought an order for costs in the amount of $16 159.55. In support, the respondents' solicitors have simply attached tax invoices relating to the solicitor client costs billed to the respondents. The amounts sought have not been provided in a form of a bill of costs as usually expected for taxation of costs.
14 There is no prescribed scale in relation to work done in relation to proceedings before this Tribunal. Assessing costs for the purposes of s 87 of the SAT Act will usually require a determination as to what costs are reasonable given the nature of the matter, its complexity, its importance, urgency, and the amount of time and effort required to properly prepare and present the case.
15 In J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282(S), the Tribunal stated at [9] as follows:
"There is no prescribed scale in relation to work done in relation to proceedings before this Tribunal. Assessing costs for the purposes of s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) will usually require a determination as to what costs are reasonable given the nature of the matter, its complexity, its importance, possibly its urgency, and the amount of time and effort required to properly prepare and present the case. Consideration of issues of that nature may be assisted by analogy with other legal work for which a statutory scale is applicable. Scales are, however, no more than an indication of what might be thought reasonable for certain categories of work. If a scale is to be used for that purpose, it will not always be the scale applicable to Supreme Court proceedings. There will be cases where the subject matter will
(Page 6)
- make the determination in relation to Magistrates Court civil proceedings more appropriate by way of analogy. The Tribunal will always strive to maintain proportionality between the subject matter of the proceedings and the costs associated with the proceedings."
16 The issues involved in this matter were of some complexity. Further, prior to the introduction of this Tribunal, the avenue of review from a decision of the Disputes Tribunal was to the District Court. The scale of costs used in that jurisdiction is under the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (the Supreme Court Scale). The Tribunal is satisfied therefore, that due to the degree of complexity of this matter, regard should be had to the amounts awarded under the Supreme Court Scale.
17 It should also be considered that in the unusual event that a costs order for costs award is made by the Tribunal, the Tribunal is obliged to minimise the costs to the parties, which should necessarily be reflected in any recoverable party and party costs assessed by the Tribunal. That approach reflects an expectation that representatives of parties before the Tribunal will approach the proceeding in way that minimises costs to their clients.
18 In this case, the applicant sought leave to review the decision of the Disputes Tribunal on eight grounds. The applicant was only partly successful in obtaining a grant of leave on four of those grounds. However, ultimately, the applicant was not successful on the limited grounds for which leave was granted. In those circumstances, the Tribunal considers that the respondent is entitled to an award of costs in respect to both the application for leave and the review hearing.
19 The application for review and leave to review was commenced in this Tribunal on 29 September 2006. Since the commencement of the application, the matter has been the subject of two directions hearings; one on 26 October 2006 and one on 23 November 2006. A hearing of the application of leave to review the decision of the Disputes Tribunal was held on 10 April 2007 and oral reasons for decision were delivered on 11 April 2007. The review hearing was the subject of a hearing on 29 May 2007. Following that hearing, reasons for decision were published on 28 August 2007. As a result of that decision, it was ordered that if any party wished to apply for costs that written submissions were required and the matter would be determined on the papers.
(Page 7)
20 As previously stated, the applicant was only partly successful in obtaining leave for review and the review hearing was limited to two specific issues referred to above. Both those issues required submissions on the interpretation of the relevant provisions of the BR Act which had not been the subject of determination in this Tribunal previously. The Tribunal considers the issues involved a reasonable degree of complexity on issues not previously determined by the Tribunal. These issues required a reasonable amount of work in preparing submissions in relation to both the application for leave to review and the review application. Further, both the application to leave for review and the review hearing required the respondents' legal representative to prepare and argue issues in dispute. In addition, as costs have not been agreed, the respondents' legal representative was required to prepare submissions in support of this costs application. Most of the work appears to have been undertaken by Mr Maddy who was admitted on 19 December 2003 and therefore is considered a junior practitioner under the Supreme Court Scale.
21 The type of work the Tribunal considers should be covered by an award of costs and the number of hours the Tribunal considers it should have taken a junior practitioner to complete that work is set out in the table below using the Supreme Court Scale for the hourly rate applicable to junior practitioners.
|
|
|
|
| $2150.50 |
|
| $126.50 |
|
| $253.00 |
(Page 8)
|
|
|
|
| $126.50 |
|
| $379.50 |
Total | $3036.00 |
22 In the circumstances, therefore, the Tribunal is prepared to make an award for costs in respect of the application for leave to review, the review, each of the directions hearings and in respect to this application, in the sum of $3036.
Order
23 For the foregoing reasons, the orders of the Tribunal are as follows:
1. The applicant to pay the respondents' costs in the sum of $3036.
I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J HAWKINS, MEMBER
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