| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA) CITATION : REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD and MORGAN REALTY PTY LTD [2011] WASAT 131 MEMBER : JUSTICE J A CHANEY (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 17 AUGUST 2011 FILE NO/S : VR 18 of 2010 BETWEEN : REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD Applicant
AND
MORGAN REALTY PTY LTD
First Respondent
PHILLIP DAVIES-MORGAN
Second Respondent
SALVATORE MESSINA
Third Respondent
Catchwords: Costs - Disciplinary proceedings - Real estate agent - Matter resolved by consent - Whether costs should be awarded
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Legislation: Nil Result: Costs to be paid by respondents Category: B
Representation: Counsel:
Applicant : Ms A Simons
First Respondent : Self-represented
Second Respondent : Self-represented
Third Respondent : Self-represented
Solicitors:
Applicant : Real Estate and Business Agents Supervisory Board
First Respondent : Self-represented
Second Respondent : Self-represented
Third Respondent : Self-represented
Case(s) referred to in decision(s):
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The Tribunal was called upon to determine whether costs should be ordered to be paid by the respondents following a resolution of the proceedings at mediation whereby each of the respondents had their Real Estate Agent's licence or Real Estate Sales Representative's Certificate of Registration cancelled. 2 The respondents opposed the making of an order on the basis of personal hardship. 3 The Tribunal determined that there was no reason to depart from the usual order in relation to costs in disciplinary proceedings, and ordered that the respondent's pay the costs as assessed by the Tribunal.
The issue for determination 4 By a series of consent orders following mediation, the proceedings against each of the three respondents were resolved by consent. The resolution involved the first respondent and third respondent having their Real Estate Agent's licences cancelled with a disqualification from holding a further licence or Triennial Certificate for a period of two years from the date of the order. 5 The second respondent had been employed as a Real Estate and Business Agent's Sales Representative by the third respondent. Pursuant to the consent orders, the second respondent's certificate of registration was also cancelled and he was disqualified from holding such a certificate for a period of two years from the date of the order. 6 The question of costs was not agreed at mediation, and the mediator made an order that any application for costs was to be made by letter to the Tribunal within 14 days of the order being made. The applicant then wrote to the Tribunal seeking an order that each respondent pay the sum of $3,300 by way of costs. The letter was supported by a schedule identifying the manner by which those costs had been calculated. That schedule reads as follows: (Page 4)
Applicants In-House Legal Fees
| DATE | EVENT | PRACTITIONER | PREPARATION & HEARING
TIME | Fee | | 09.02.10 | Directions | Junior | P - 10 minutes H - 10 minutes T - 20 minutes | $84 | | 20.04.10 | Directions | Junior | P - 10 minutes H - 10 minutes T - 20 minutes | $84 | | 20.07.10 | Directions | Junior | P - 10 minutes H - 10 minutes T - 20 minutes | $84 | | 28.09.10 | Directions | Junior | P - 10 minutes H - 10 minutes T - 20 minutes | $84 | | 30.11.10 | Directions | Junior | P - 10 minutes H - 10 minutes T - 20 minutes | $84 | | 07.12.10 | Mediation | Junior | P - 1 hour H - 1 1/2 | $632.50 | | 15.12.10 | Mediation | Junior | P - 30 minutes H - 45 minutes | $316.25 | | 07.01.11 | Mediation | Junior | P - 30 minutes H - 2 hours | $632.50 | (Page 5)
Applicants Counsel's Fees
| DATE | EVENT | PRACTITIONER | PREPARATION & HEARING
TIME | Fees charged | | 16.03.10 | Drafting and Settling Statement Of Issues Facts and Contentions | Counsel | 1 day | $2,750 | | 02.08.10 to 04.08.10 | Amending Statement of Issues, Facts and Contentions | Counsel | 4 hours | $1,237.50 | | 13.09.10 | Settling the Agreed Statement of Facts | Counsel | 1 1/2 hours | $412.50 | | 02.11.10 | Preparation for Hearing | Counsel | 1 day | $2,750 | | 03.11.10 | Preparation for and attendance at hearing | Counsel | 4 hours | $1,100 | 7 In response to the application, the second respondent, Mr DaviesMorgan, sought to have the Tribunal not make an order for costs against him or the other two respondents. He submitted that the findings which had been made against him in earlier proceedings, VR 153 of 2009, which also led to disqualification of all three parties, had deprived him of income, and had also had severe personal consequences. He submitted that he had no ability to meet a costs order. He also submitted that the proceedings had had a significant impact on the third respondent's welfare, he being an 82 year old pensioner.
The Tribunal's approach to costs in disciplinary matters 8 The Tribunal has adopted a consistent approach to the question of costs of proceeding where a vocational regulatory board successfully brings an application against a practitioner. That approach was set out by the Tribunal in Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman) at [30] where the Tribunal said: (Page 6)
Section 87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party. 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 9 It will commonly be the case that, where the Tribunal imposes a penalty which deprives a respondent of their capacity to work in a particular field, the added burden of a costs order will create an additional degree of hardship. That is not a reason to depart from the general approach to costs which is described in the passage from Roberman set out above. The hardship which results is simply a consequence of the conduct which led to the substantive penalty being imposed. 10 In this case, the proceedings were defended and would have been the subject of a full hearing but for the fact that a decision in a related matter of the Tribunal was shortly to be delivered. For that reason the hearing was adjourned, and after delivery of the decision in VR 153 of 2009, settlement was reached in these proceedings. In the meantime, the Board had incurred substantial cost in the conduct of the matter. In my view, it is appropriate that the respondents be ordered to meet those costs.
Quantum 11 It will be noted that the apparent hourly rate charged in relation to the work by a junior solicitor effectively doubled in relation to the mediations from the rate charged in relation to the directions. No explanation for that discrepancy was provided. In the absence of an explanation, and having regard to the fact that the solicitor concerned is an employee of the applicant, it is appropriate to apply a consistent hourly rate being that applied in relation to the directions hearings. That has the result of reducing the fees charged in relation to the mediations by $790. 12 I would not allow the sum of $1,237.50 claimed in relation to the amendment to the statement of issues, facts and contentions. A (Page 7)
substantial allowance was made for the original drafting of that document, and the need to amend it should not be attributed to the respondents. Nor would I allow the full amount claimed for the hearing on 3 November 2010, which, according to Tribunal's records, lasted only a few minutes and consisted of an adjournment by consent to await the delivery of the reasons in relation to the earlier hearing in VR 153 of 2009. An allowance of $100 is sufficient for that day, resulting in a reduction of the amount claimed to $1000. Those reductions have the effect of reducing the amount claimed by $3,027. That reduces the claim from $9,910 to $6883. The applicant seeks to have the costs apportioned between each of the respondents. That results in an order that each respondent pay the sum of $2,294. 13 There will be orders in those terms.
Orders 1. Morgan Realty Pty Ltd, Phillip Davies-Morgan and Salvatore Messina are each to pay to the Real Estate and Business Agents Supervisory Board costs fixed at $2,294. |