| 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 [2010] WASAT 161 (S) MEMBER : JUSTICE J A CHANEY (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 4 NOVEMBER 2010 SUPPLEMENTARY
DECISION : 17 AUGUST 2011 FILE NO/S : VR 153 of 2009 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
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Catchwords: Costs - Disciplinary proceedings - Real Estate Agent - Findings against respondents after hearing - Whether costs should be awarded Legislation: State Admistrative Tribunal Act 2004 (WA), s 87(2) Result: Costs to be paid by the respondents Category: B
Representation: Counsel:
Applicant : Mr PN Bevilacqua
First Respondent : Mr MF Dwyer
Second Respondent : MR MF Dwyer
Third Respondent : Mr MF Dwyer
Solicitors:
Applicant : Ms J King
First Respondent : Mendelawitz Morton Commercial Lawyers
Second Respondent : Mendelawitz Morton Commercial Lawyers
Third Respondent : Mendelawitz Morton Commercial Lawyers
Case(s) referred to in decision(s):
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
Real Estate and Business Agents Supervisory Board and Morgan Realty & Ors [2010] WASAT 161
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Following a two day hearing, each of the three respondents to these proceedings had their registration under the Real Estate and Business Agents Act 1978 (WA) suspended for a period of two years. The Real Estate and Business Agents Supervisory Board sought an order that the respondents pay the Board's costs of the proceedings. 2 The Tribunal applied the general approach taken in relation to professional disciplinary matters where a complaint is upheld, and ordered that the respondents pay the costs sought by the applicant.
The issue for determination 3 After a hearing before the Tribunal over two days, the Tribunal delivered reasons for decision, and made orders suspending the registration of the first and second respondents as real estate agents, and the registration of the second respondent as a sales representative for a period of two years - see Real Estate and Business Agents Supervisory Board and Morgan Realty & Ors [2010] WASAT 161. The Tribunal also ordered that any application to the costs was to be made by letter within 14 days of the date of its order. 4 In accordance with that direction, the Real Estate and Business Agents Supervisory Board (Board) made an application for costs in the sum of $7,000. The question for determination is whether those costs should be ordered to be paid.
Should an order be made? 5 While the Tribunal is generally a no costs jurisdiction, it has the power to order a party to proceedings to pay the costs of another party under s 87(2) of the State Administrative Tribunal Act 2004 (WA). In the context of vocational regulatory proceedings, the Tribunal has generally followed an approach that, where a complaint is successfully made out by a regulatory authority, the respondent will generally be ordered to pay the reasonable costs of the regulatory authority. The reason for that approach was explained by the Tribunal in Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman) at [30] where the Tribunal said: 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 (Page 4)
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 6 There is no reason why that approach should not be taken in this case. It is appropriate that there be an order that the respondents pay the Board's costs.
Quantum 7 In its application, the Board sought costs in the sum of $7,000. No explanation was provided as to the breakdown of that amount. Notwithstanding that, in my view, the amount claimed is reasonable. 8 The hearing lasted two days. The documentation was substantial. The case involved the examination of a number of different but related transactions. The complaints were strenuously defended. The Board was represented by independent counsel. 9 In the circumstances, a claim for a lump sum of $7,000 is a relatively modest claim for the work done. It is appropriate that costs be awarded in that amount. Liability for the costs ought to be allocated equally between the three respondents.
Orders 1. Morgan Realty Pty Ltd, Phillip Davies-Morgan and Salvatore Messina are each to pay the Real Estate and Business Agents Supervisory Board costs fixed at $2,333. (Page 5)
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