| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : VOCATIONAL REGULATION | ||
| ACT |
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| CITATION |
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| MEMBER |
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| HEARD |
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| DELIVERED |
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| SUPPLEMENTARY | |||
| DECISION |
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| FILE NO/S |
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| BETWEEN |
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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…
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- Case
- [2008] WASAT 27 (S)
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: JUDGE J
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