SIVATHASAN and MEDICAL BOARD OF AUSTRALIA

[2024] WASAT 67 (S2)

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)

CITATION:   SIVATHASAN and MEDICAL BOARD OF AUSTRALIA [2024] WASAT 67 (S2)

MEMBER:   JUDGE F VERNON, DEPUTY PRESIDENT

MR D AITKEN, SENIOR MEMBER

DR H HANKEY, SENIOR SESSIONAL MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   22 MAY 2025

FILE NO/S:   VR 23 of 2023

BETWEEN:   NIROSHAN SIVATHASAN

Applicant

AND

MEDICAL BOARD OF AUSTRALIA

Respondent

Catchwords:

Whether costs are reasonably and necessarily incurred - Costs fixed pursuant to costs order under s 201 of the Health Practitioner Regulation National Law (Western Australia) (WA) and s 87(2) of the State Administrative Tribunal Act 2004 (WA)

Legislation:

Health Practitioner Regulation National Law (Western Australia) (WA), s 201
Legal Profession (State Administrative Tribunal) Determination 2024
Legal Profession (State Administrative Tribunal) Determination 2022
State Administrative Tribunal Act 2004 (WA), s 87(2)

Result:

Costs fixed in the sum of $60,000.000

Category:    B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Gardner Legal & Regulatory Pty Ltd
Respondent	:	Clayton Utz

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

Dental Board of Australia and Nairn [2022] WASAT 86; (2022) 106 SR (WA) 359

Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S)

Medical Board of Australia and Costley [2013] WASAT 2

Sivathasan and Medical Board of Australia [2024] WASAT 67

Sivathasan and Medical Board of Australia [2024] WASAT 67 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary

1. On 10 April 2024, on an application for review by Niroshan Sivathasan (Practitioner), we decided to set aside a decision by the respondent Board to grant the Practitioner general registration as a medical practitioner with conditions and ordered that the Practitioner be granted registration without conditions. Our reasons are set out in Sivathasan and Medical Board of Australia [2024] WASAT 67.

2. On 4 April 2025, pursuant to s 201 of the Health Practitioner Regulation National Law (Western Australia) (WA) and s 87(2) of the State Administrative Tribunal Act 2004 (WA) we ordered that the Board pay the Practitioner's costs of the proceedings from and including 5 February 2024, in an amount to be fixed. Our reasons for that decision are set out in Sivathasan and Medical Board of Australia [2024] WASAT 67 (S).

3. The parties filed submissions in relation to the appropriate quantum of the applicant's costs on 24 April and 6 May 2025. 

4. We have determined that costs be fixed in the sum of $60,000.00.  Our reasons are set out below.

Consideration

1. The Practitioner submits that costs should be fixed at $65,884.36, comprising $28,362.40 for the Practitioner's solicitor's fees, $34,619.20 for Senior Counsel's fees, and $2,902.76 for disbursements.[1]

   [1] Practitioner's submissions filed 24 April 2025 at [20].

2. The Board submits the costs should be fixed at $52,486.14.[2]  The Board does not dispute the amount claimed for disbursements but says that the appropriate amounts are $18,398.38 for the Practitioner's solicitor's fees and $31,185.00 for Senior Counsel's fees.[3] 

   [2] Board's submissions filed 6 May 2025 at [8].

   [3] Board's submissions filed 6 May 2025 at [3].

3. It has been said that the preferable approach in fixing costs is that the Tribunal determine what a reasonable allowance would be, taking a robust and broad brush approach, rather than looking at what has actually been charged to the client.  This has involved an assessment of the time the Tribunal has considered to have been reasonable in bringing the proceedings to a conclusion.[4]

   [4] See for example Medical Board of Australia and Costley [2013] WASAT 2 at [66].

4. In this case, other than the specific matters raised below, the Board accepts that 'on a robust broad brush basis' the costs and disbursements claimed by the applicant were reasonably and necessarily incurred and were not otherwise excessive.[5]  The Board does not submit that this matter did not warrant the engagement of senior counsel.[6]  In our view, the matter was sufficiently complex to do so.

   [5] Board's submissions filed 6 May 2025 at [7].

   [6] Board's submissions filed 6 May 2025 at [18].

5. In those circumstances, it is appropriate to have reference to the accounts the Practitioner has supplied with its submissions. 

6. The Practitioner's costs were calculated at the rates applicable under the Legal Profession (State Administrative Tribunal) Determination 2024 (2024 Determination).  The Board submits that from 5 February to 30 June 2024, the Practitioner's costs should be calculated at the rate applicable under the Legal Profession (State Administrative Tribunal) Determination 2022 (2022 Determination).[7]  We accept that the 2022 Determination applied to 30 June 2024 and the 2024 Determination applied thereafter.

   [7] Board's submissions filed 6 May 2025 at [11].

7. The 2024 Determination and the 2022 Determination determine a scale of fees to apply on a legal practitioner/client basis, rather than a party/party basis, in recognition of the fact that parties appearing before the Tribunal generally bear their own costs of proceedings.[8]  However, such determinations have been found to be a useful guide to the maximum rates that might be allowed on a party/party basis.[9]

   [8] Legal Costs Committee, Legal Profession (State Administrative Tribunal) Report 2024 (2024) at [3(b)] and Legal Costs Committee, Legal Profession (State Administrative Tribunal) Report 2022 (2022) at [3(b)].

   [9] Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S) at [53]

8. We accept the Board's submission that it is appropriate to have reference to hourly rates set out in the 2022 Determination for work done to 30 June 2024, and to the 2024 Determination thereafter. 

9. The relevant rates under the 2022 Determination are $5,500 per day or $550 per hour for senior counsel, and $429 per hour for a senior practitioner.  The relevant rates under the 2024 Determination are $6,160 per day or $616 per hour for senior counsel, and $484 per hour for a senior practitioner.  There is no dispute that the Practitioner's solicitor is a senior practitioner within the meaning of those determinations.

10. We also accept the Board's submission that there is a mathematical error in the calculation of the hours of work claimed for Senior Counsel, in that the hours referred to in the Practitioner's submissions exceed the hours actually billed by Senior Counsel by one hour.[10] 

    [10] See the Board's submissions filed 6 May 2025 at [13].

11. Applying the hourly rates for a senior practitioner in the 2022 Determination until 30 June 2024, and in the 2024 Determination thereafter, reduces the amount the Practitioner has claimed for solicitor costs to $26,283.40 as follows:

Invoice No.	Time spent	Hourly rate	Total
2835	37.6 hours	$429	$16,130.40
2882	0.2 hours	$429	$85.80
2882	2.6 hours	$484	$1,258.40
2903	11 hours	$484	$5,324.00
2932	7.2 hours	$484	$3,484.80
Total	58.6 hours	$26,283.40

1. Applying the rates for Senior Counsel in those determinations to the hours billed by Senior Counsel reduces the amount claimed to $31,185 as follows:

Invoice No.	Time spent	Hourly rate	Total
2024/140	42.7 hours	$550	$23,485.00
2023/118	12.5 hours	$616	$7,700.00
Total	$31,185.00

1. Taking these reductions into account, the total amount of the Practitioner's costs would be $60,371.16, including the claimed disbursements. 

2. The Board also submits that the amount claimed for the Practitioner's solicitor's fees should be reduced by 30% 'to reflect the ordinary and expected rate of recovery of a solicitor's professional fees following taxation'.[11] 

   [11] Board's submissions filed 6 May 2025 at [17].

3. No authority for this proposition is cited.  This may reflect an expectation within law firms of an average difference between the amount that is usually recoverable on a taxation of party/party costs (in a jurisdiction where costs are taxed) and the amount the firm's client is billed.  However, there is no evidence about this.

4. Whilst costs orders are not meant to provide a complete indemnity, that is not to say that, in every case, there will be a deduction in the costs awarded from those billed.  The issue, in each case, is whether the costs are reasonable and necessarily incurred.[12] Whilst the costs ordered will usually be less than the costs incurred, that is not inevitable. In any event, we note that the costs billed to the Practitioner do exceed the costs referred to at [17] above by nearly $12,000.

   [12] Dental Board of Australia and Nairn [2022] WASAT 86; (2022) 106 SR (WA) 359 at [196].

5. The Board submits that a 30% reduction is reasonable and appropriate when regard is had to the following;

   (a)the Board claims, in effect, that the Practitioner's costs have been increased by his non-compliance with 'various directions' made by the Tribunal.  There is no evidence before us of any such non-compliance.  It is a matter that ought to have been raised when the issue of costs was being determined, in opposition to the order for costs. 

   (b)what the Board describes as the Practitioner's limited degree of success in the costs application.  However, in our view, this is not a reason to decrease the costs sought by the Practitioner.  It cannot be said, in our view, that the arguments raised by the Practitioner did not have any reasonable prospect of success, and the Board was unsuccessful in its opposition to any costs order being made.

   (c)what the Board describes as 'the apparent degree of duplication of work or other inefficiencies' arising from the Practitioner's solicitor preparing submissions for settling by Senior Counsel.  However, it is not unusual for senior counsel to settle submissions prepared by solicitors, including senior solicitors. Such practice may result in less cost to a party, given the higher hourly rates for senior counsel in the determinations; and

   (d)the unparticularised manner in which the Practitioner's solicitor has claimed the cost of travel, which under the determinations is to be charged to a client at half the applicable hourly rate.  As far as we can identify, the only travel time claimed related to the cost of attending the hearing on 27 and 28 March 2024.  It seems likely that the amount of travel would be limited.  However, we consider this can be adequately taken into account by rounding down the amount referred to in [17] above to $60,000.00.[13]

   [13] Board's submissions filed 6 May 2025 at [18].

6. In our view, subject to what we have said above, the Practitioner's costs appear to be reasonable and necessary having regard to the nature and complexity of the matter. 

Conclusion

1. For the reasons we have given we will fix the Practitioner's costs in the sum of $60,000.00. 

2. The Board's submissions do not seek time to pay the costs amount when fixed.  However, we consider that some short time should be specified, and that seven days is appropriate.

Orders

The Tribunal orders:

1.Within seven days of the date of this order, the respondent pay the applicant's costs of the proceedings from and including 5 February 2024, fixed in the amount of $60,000.00. 

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

FB

Associate to the Deputy President Judge Vernon

22 MAY 2025