SIMONSEN and REAL ESTATE AND BUSINESS AGENTS BOARD
[2006] WASAT 307 (S)
•12 OCTOBER 2006
SIMONSEN and REAL ESTATE AND BUSINESS AGENTS BOARD [2006] WASAT 307 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 307 (S) | |
| REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA) | |||
| Case No: | VR:73/2006 | 22 SEPTEMBER 2006 | |
| Coram: | HON R VIOL (SUPPLEMENTARY DEPUTY PRESIDENT) MR A MACRI (SESSIONAL MEMBER) MR C ELIEFF (SESSIONAL MEMBER) | 12/10/06 | |
| 14/12/06 | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | The application for costs to be awarded to the respondent is dismissed. The parties shall bear their own costs. | ||
| B | |||
| PDF Version |
| Parties: | MARK SIMONSEN REAL ESTATE AND BUSINESS AGENTS BOARD |
Catchwords: | Vocational regulation Real estate sales representative Application for registration under Real Estate and Business Agents Act 1978(WA) and regulations Application for review of Board's decision refused Whether applicant should pay respondent's costs |
Legislation: | Real Estate and Business Agents Act 1978 (WA) State Administrative Tribunal Act 2004 (WA), s 87, s 87(4), s 88 |
Case References: | Bilek and Vata Investments Pty Ltd [2005] WASAT 153 Medical Board of Western Australia and Roberman [2005] WASAT 81 Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206 Simonsen & Real Estate and Business Agents Board [2006] WASAT 307 |
Orders | 1. The application for costs to be awarded to the respondent is dismissed.,2. The parties shall bear their own costs. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA) CITATION : SIMONSEN and REAL ESTATE AND BUSINESS AGENTS BOARD [2006] WASAT 307 (S) MEMBER : HON R VIOL (SUPPLEMENTARY DEPUTY PRESIDENT)
- MR A MACRI (SESSIONAL MEMBER)
MR C ELIEFF (SESSIONAL MEMBER)
DECISION : 15 DECEMBER 2006 FILE NO/S : VR 73 of 2006 BETWEEN : MARK SIMONSEN
- Applicant
AND
REAL ESTATE AND BUSINESS AGENTS BOARD
Respondent
Catchwords:
Vocational regulation - Real estate sales representative - Application for registration under Real Estate and Business AgentsAct 1978(WA) and regulations - Application for review of Board's decision refused - Whether applicant should pay respondent's costs
(Page 2)
Legislation:
Real Estate and Business Agents Act 1978 (WA)
State Administrative Tribunal Act 2004 (WA), s 87, s 87(4), s 88
Result:
The application for costs to be awarded to the respondent is dismissed.
The parties shall bear their own costs.
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Jeremy Allanson
Solicitors:
Applicant : Self-represented
Respondent : Jeremy Allanson
Case(s) referred to in decision(s):
Bilek and Vata Investments Pty Ltd [2005] WASAT 153
Medical Board of Western Australia and Roberman [2005] WASAT 81
Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206
Case(s) also cited:
Simonsen & Real Estate and Business Agents Board [2006] WASAT 307
(Page 3)
Summary of Tribunal's decision
1 The applicant had sought registration as a real estate sales representative with the Real Estate and Business Agents Board (the Board).
2 The Board refused to hear the applicant's application on the basis that it had not been filed within the time specified by the Real Estate and Business Agents Act 1978 (WA), and the regulations made pursuant thereto.
3 The applicant sought to have the Board's decision reviewed by the Tribunal.
4 The Tribunal affirmed the decision of the Board.
5 An order was sought by the Board that the unsuccessful applicant should pay the costs of the Board.
6 The Tribunal refused to make such order for costs and ordered that each party pay their own costs.
Statutory background
7 The relevant section of the State Administrative Tribunal Act 2004 (WA) (SAT Act) is s 87 which provides as follows:
"87. Costs of parties and others
(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(3) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the
- payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
- (4) Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to ¾
(a) whether the party (in bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits;
(b) whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.
(5) The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.
(6) The Tribunal may order that the representative of a party, rather than the party, in the representative's own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, the proceeding in a way that resulted in unnecessary costs."
The applicant's contentions
8 In addition to s 87 of the Act, the applicant referred to s 88 of the SAT Act – this section is not relevant to the present application. The applicant submitted that he genuinely attempted to obtain a decision on its merits and disputed the respondent's submission that his (the applicant's) application was without merit and submitted that his application was a
(Page 5)
- genuine and sincere attempt by him to seek registration as a sales representative. The applicant opposed the making of an order for costs against him on the basis of his age and the limited employment opportunities open to him, together with the effect that an order for costs would have on him financially.
Respondent's contentions
9 The respondent referred to s 87(4) of the SAT Act and accepted that the applicant had genuinely attempted to enable and assist the Tribunal to make a decision on its merits; no submission was made that there should be a finding adverse to the applicant under s 87.
10 The respondent submitted that the application in this case was completely without merit, the Tribunal having found against the applicant on all the matters submitted by him. Accordingly, the respondent submitted an order for costs should be made against the applicant in favour of the respondent.
Findings and relevant authorities
11 It is accepted that the starting point in applications for costs in the Tribunal is that each party should bear their own costs (see Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA)[2005] WASAT 206 at par 36 where the Tribunal stated:
"... the State Administrative Tribunal has been established by the Parliament of the State with its review jurisdiction as part of the system of public administration of the State to ensure that the citizens and other entities may seek administrative justice in relation to decisions that affect their personal, proprietary and financial interests. The starting out position is that, absent other relevant factors, an applicant should be able to obtain review without being obliged to meet the decision-maker's costs if they do not succeed; and, similarly, the decision-maker is not ordinarily entitled to recover costs from the applicant in the event the review application is unsuccessful."
12 In Bilek and Vata Investments Pty Ltd [2005] WASAT 153 the Tribunal, in a commercial tenancy matter in its original jurisdiction, declined to award costs in favour of the respondent. The Tribunal suggested that great care should be taken in exercising any power to award costs in order to ensure that the Tribunal is readily accessible to the public and is of relatively low cost, particularly having regard to the
(Page 6)
- Tribunal's obligations to act fairly and according to the substantial merits of the dispute and to conduct proceedings with as little formality and technicality as possible.
13 In relation to awards of costs against a vocational body, the Tribunal has proceeded on the basis that although the starting point is that parties must bear their own costs unless specifically provided in the SAT Act or the enabling Act, it is able, in appropriate cases, to award costs in favour of a successful regulatory authority (see Medical Board of Western Australia and Roberman [2005] WASAT 81).
14 In general, the Tribunal considers all relevant matters in determining whether or not to make an order for costs in favour of a successful vocational body, including cases in which an applicant is unsuccessful in seeking a review of a decision of a vocational body.
15 In the present case, the applicant was self-represented but nevertheless prepared and argued his case well, and as accepted by the respondent, genuinely attempted to enable and assist the Tribunal to make its decision. In the course of argument, the applicant raised a number of matters which, although not accepted as valid by the Tribunal in its decision, were not of a frivolous or inordinately irrelevant nature. In the end, the Tribunal found that the provisions of the SAT Act were such that the applicant was "out of time" for the lodging of his application for registration. On the basis of the Tribunal's decision in Bilek's case, to order costs against the applicant in this matter would in the view of the Tribunal be to limit the accessibility of people in the position of the applicant to the Tribunal and would run counter to the Tribunal's obligation to act fairly and according to the substantial merits of the dispute. In this particular case, the applicant exercised a right available to him under the SAT Act and, notwithstanding what could be termed perhaps a valiant attempt to overturn the decision of the respondent, was unsuccessful.
16 In these particular circumstances, and bearing in mind the personal circumstances of the applicant, the Tribunal is of the view that there should not be an order for costs made against the applicant and that there should be an order that each party pay their own costs.
Orders
1. The application for costs to be awarded to the respondent is dismissed.
(Page 7)
- 2. The parties shall bear their own costs.
I certify that this and the preceding [16] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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HON R VIOL, SUPPLEMENTARY DEPUTY PRESIDENT
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