SETTLEMENT AGENTS SUPERVISORY BOARD and LJ HOOKER SETTLEMENTS PTY LTD - [2008] WASAT 27 (S)

JURISDICTION

STATE ADMINISTRATIVE TRIBUNAL

STREAM

: VOCATIONAL REGULATION

ACT

:	SETTLEMENT AGENTS ACT 1981 (WA)

CITATION

:	SETTLEMENT AGENTS SUPERVISORY BOARD and LJ HOOKER SETTLEMENTS PTY LTD [2008] WASAT 27 (S)

MEMBER

:	JUDGE J CHANEY (DEPUTY PRESIDENT) MR M ANDERSON (SENIOR SESSIONAL MEMBER) MS J TOOMER (SESSIONAL MEMBER)

HEARD

:	17 OCTOBER 2007

DELIVERED

:	8 FEBRUARY 2008

SUPPLEMENTARY

DECISION

:	24 APRIL 2008

FILE NO/S

:	VR 38 of 2007

BETWEEN

:	SETTLEMENT AGENTS SUPERVISORY BOARD Applicant

AND
LJ HOOKER SETTLEMENTS PTY LTD
Respondent

Catchwords:

Costs - Professional disciplinary proceedings - Settlement agents - Whether Tribunal's jurisdiction exhausted by making of substantive orders - Principles to be applied - Whether reasonable basis for proceedings - Whether proceedings brought in good faith

[2008] WASAT 27 (S)

Legislation:

Rules of the Supreme Court 1971 (WA), O 59 r 9
Settlement Agents Act 1981 (WA), s 44

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

Result:

The respondent's claim for costs is dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr S O'Sullivan
Respondent	:	Mr E Nielsen

Solicitors:

Applicant	:	Julia King
Respondent	:	Nielsen and Co

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

Lakes Action Group Association (Incorporated) and Shire of Northam & Anor

[2005] WASAT 185 (S)

Lewandowski & Ors v Lovell, unreported, FCt SCt of WA, Library No 960310;

14 June 1996

Motor Vehicle Industry Board and Dawson [2006] WASAT 8
Re Sanchez and Comcare (1997) 48 ALD 785

Settlement Agents Supervisory Board and LJ Hooker Settlements Pty Ltd [2008]

WASAT 27

Settlement Agents Supervisory Board and Strand Settlements Pty Ltd [2005]

WASAT 350

Telescourt v Commonwealth (1991) 29 FCR 227

Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd & Ors (2006) 33

WAR 1

[2008] WASAT 27 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 In February 2008, the Tribunal dismissed a number of complaints
against LJ Hooker Settlements in relation to alleged breaches of s 44 of the Settlement Agents Act 1981 (WA). Following delivery of the Tribunal's reasons for decision, LJ Hooker Settlements applied for an order that the Board pay its costs of the proceedings. LJ Hooker Settlements contended that the complaints lacked any reasonable basis, and were not brought in good faith so that circumstances existed which justified an unusual order that the regulatory body pay the costs of the unsuccessful proceedings.
2 The Board accepted that it had used the proceedings to test an
uncertain area of the law, but contended that it brought the proceedings in good faith and on the basis that it believed that the factual circumstances did give rise to a breach of the Act. It therefore contended that there was no basis to depart from the usual costs position in the Tribunal, namely that each party bears its own costs. The Tribunal expressed a degree of concern at the way in which the Board had instituted and maintained the proceedings, but did not consider that there was an absence of good…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] WASAT 27 (S)
Decision Date: 24 APRIL 2008

CaseChat Overview and Summary

In this matter, the Settlement Agents Supervisory Board, acting on behalf of the Minister for Commerce, sought an order for costs against LJ Hooker Settlements Pty Ltd. The dispute arose from professional disciplinary proceedings brought by the Board against the settlement agent, which resulted in various orders being made against the company. The application for costs was heard in the State Administrative Tribunal of Western Australia, Special Division. The central issue before the court was whether the Tribunal's jurisdiction was exhausted by the making of substantive orders in the disciplinary proceedings, or whether it retained the authority to make an order for costs. Additionally, the court needed to determine if there was a reasonable basis for the proceedings, and whether they were brought in good faith.

The court found that the Tribunal's jurisdiction to make orders for costs in professional disciplinary proceedings is not necessarily exhausted by the making of substantive orders. The court held that the Tribunal retains the authority to make such an order if the circumstances warrant it. In assessing whether there was a reasonable basis for the proceedings and whether they were brought in good faith, the court considered the evidence and submissions presented by both parties. The court concluded that the Board had acted reasonably and in good faith in bringing the proceedings, and that there was a reasonable basis for the action taken.

The court determined that the Tribunal's jurisdiction to award costs was not exhausted by the making of substantive orders, and that it was appropriate to exercise that jurisdiction in this case. The court found that the proceedings were brought in good faith and there was a reasonable basis for the action taken by the Board. Therefore, the court ordered that LJ Hooker Settlements Pty Ltd pay the costs of the proceedings.

Orders