Stephenson and the Legal Practice Board
[2007] WASAT 259
•11 OCTOBER 2007
STEPHENSON and THE LEGAL PRACTICE BOARD [2007] WASAT 259
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 259 | |
| LEGAL PRACTICE ACT 2003 (WA) | |||
| Case No: | VR:4/2006 | 30 MAY 2007 | |
| Coram: | JUDGE J ECKERT (DEPUTY PRESIDENT) MR D R PARRY (SENIOR MEMBER) MR R ANDERSON (SESSIONAL MEMBER) | 11/10/07 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Respondent's decision set aside Decision substituted that the practitioner's practice certificate for 2005-2006 took effect on 1 July 2005 Surcharge of $300 for late lodgement of practice certificate application must be refunded | ||
| A | |||
| PDF Version |
| Parties: | TIMOTHY RICHARD STEPHENSON THE LEGAL PRACTICE BOARD |
Catchwords: | Vocational regulation Practice certificate Date from which practice certificate takes effect Practitioner's proposal for professional indemnity insurance posted to insurer in sufficient time for acceptance prior to practice certificate renewal year Proposal not delivered to insurer WA Bar Association advised practitioner on last day of currency of practice certificate that confirmation of insurance for renewal year had not been received Practitioner faxed copy of application for insurance to insurer and obtained insurance next day Insurer advised WA Bar Association by telephone that practitioner was insured and confirmed insurance by email next working day Confirmation of insurance not received by the Legal Practice Board for several days because of illness of WA Bar Association employee Practice certificate issued with prospective effect when confirmation of insurance received by the Legal Practice Board Whether practice certificate was issued "on the application by a certificated legal practitioner" Whether practice certificate should take effect from beginning of renewal year Whether exceptional or extenuating circumstances exist Whether surcharge for late lodgement of practice certificate application should be refunded |
Legislation: | Legal Practice Act 2003 (WA), s 35(1), s 37, s 37(2), s 37(2)(a), s 37(2)(b), s 37(4), s 37(5), s 37(6), s 38(1), s 38(3), s 42, s 42(a), s 42(b), s 42(b)(i), s 44(a), s 44(b), s 247 Legal Practice Board Rules 2004 (WA), r 44, r 44(2), r 44(4) State Administrative Tribunal Act 2004 (WA), s 87(1), S 87(2) |
Case References: | Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53 Clive Elliot Jennings & Co Pty Ltd and Western Australian Planning Commission [2002] 122 LGERA 433 Clive Elliot Jennings & Co Pty Ltd and Western Australian Planning Commission [2002] WASCA 276 Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206 Wilson & Anor v Western Australian Planning Commission [2007] WASC 39 |
Orders | 1. The application for review is allowed in part.,2. The decision of the Legal Practice Board that the practice certificate issued by it to Timothy Richard Stephenson on 7 July 2005 took effect on 7 July 2005 and not on 1 July 2005 is set aside and decisions are substituted that the practice certificate took effect on 1 July 2005 and that the Legal Practice Board must refund to Timothy Richard Stephenson the sum of $300.,3. Each party is to pay its own costs of the proceedings. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PRACTICE ACT 2003 (WA) CITATION : STEPHENSON and THE LEGAL PRACTICE BOARD [2007] WASAT 259 MEMBER : JUDGE J E ECKERT (DEPUTY PRESIDENT)
- MR D R PARRY (SENIOR MEMBER)
MR M ANDERSON (SESSIONAL MEMBER)
- Applicant
AND
THE LEGAL PRACTICE BOARD
Respondent
Catchwords:
Vocational regulation - Practice certificate - Date from which practice certificate takes effect - Practitioner's proposal for professional indemnity insurance posted to insurer in sufficient time for acceptance prior to practice certificate renewal year - Proposal not delivered to insurer - WA Bar Association advised practitioner on last day of currency of practice certificate that confirmation of insurance for renewal year had not been received - Practitioner faxed copy of application for insurance to insurer and obtained insurance next day - Insurer advised WA Bar Association by telephone that practitioner was insured and confirmed insurance by email next working day - Confirmation of insurance not received by the Legal Practice Board
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for several days because of illness of WA Bar Association employee - Practice certificate issued with prospective effect when confirmation of insurance received by the Legal Practice Board - Whether practice certificate was issued "on the application by a certificated legal practitioner" - Whether practice certificate should take effect from beginning of renewal year - Whether exceptional or extenuating circumstances exist - Whether surcharge for late lodgement of practice certificate application should be refunded
Legislation:
Legal Practice Act 2003 (WA), s 35(1), s 37, s 37(2), s 37(2)(a), s 37(2)(b), s 37(4), s 37(5), s 37(6), s 38(1), s 38(3), s 42, s 42(a), s 42(b), s 42(b)(i), s 44(a), s 44(b), s 247
Legal Practice Board Rules 2004 (WA), r 44, r 44(2), r 44(4)
State Administrative Tribunal Act 2004 (WA), s 87(1), S 87(2)
Result:
Respondent's decision set aside
Decision substituted that the practitioner's practice certificate for 2005-2006 took effect on 1 July 2005
Surcharge of $300 for late lodgement of practice certificate application must be refunded
Category: A
Representation:
Counsel:
Applicant : Mr MJ McCusker QC
Respondent : Mr DR Williams QC with Ms KJ Levy
Solicitors:
Applicant : Self-represented
Respondent : Freehills
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Case(s) referred to in decision(s):
Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246
Clive Elliot Jennings & Co Pty Ltd and Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA
Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206
Wilson & Anor v Western Australian Planning Commission [2007] WASC 39
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Summary of Tribunal's decision
1 A legal practitioner applied to the Legal Practice Board for renewal of his practice certificate for the period 1 July 2005 to 30 June 2006. The practitioner posted a proposal for professional indemnity insurance together with a cheque for the premium to his insurer, but the proposal and cheque were not received by the relevant officer of the insurer. On 30 June 2005, the practitioner was advised by the WA Bar Association that it had not received confirmation of insurance from the insurer. The practitioner was unable to fax a copy of the proposal to the insurer on 30 June 2005, but faxed it to the insurer on 1 July 2005 and obtained insurance on that day with effect from 30 June 2005. The Legal Practice Board was only advised that the practitioner had insurance on 7 July 2005, because of the illness of an employee of the WA Bar Association.
2 The Legal Practice Board issued a practice certificate to the practitioner with effect from 7 July 2005, rather than with effect from 1 July 2005.
3 The issues for determination by the Tribunal were whether the practice certificate took effect, or should be determined to have taken effect, from 1 July 2005, and whether a surcharge for late lodgement of the practice certificate application should be refunded.
4 The Tribunal determined that the practice certificate did not take effect from 1 July 2005, as the practitioner was not a certificated practitioner at the date of issue of the practice certificate.
5 However, the Tribunal also determined that there were relevantly exceptional or extenuating circumstances on account of which the practice certificate should be determined to have taken effect on 1 July 2005. This was on the basis that the practitioner forwarded his insurance proposal to the insurer in sufficient time for its acceptance and confirmation of acceptance, the insurance proposal was not delivered, and the practitioner obtained insurance on 1 July 2005 with effect from 30 June 2005.
6 Finally, the Tribunal determined that the surcharge should be refunded, because the application was lodged on or before 30 June 2005. While a practice certificate would not be issued prior to receipt of confirmation of professional indemnity insurance, confirmation of insurance was not required in order for the application to be lodged.
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Introduction
7 This case concerns whether the practice certificate issued by the Legal Practice Board (Board) to Mr Timothy Richard Stephenson (practitioner) on 7 July 2005 for the period until 30 June 2006 took effect, or should be determined to have taken effect, from 1 July 2005.
8 The application for review identified the enabling Act which confers jurisdiction on the Tribunal as s 44(a) of the Legal Practice Act 2003 (WA) (LP Act) which enables a legal practitioner to apply to the Tribunal for a review of a decision of the Board to refuse to issue a practice certificate. However, as the Board issued a practice certificate to the practitioner, the application for review is, in effect, brought under s 44(b) of the LP Act, which enables a legal practitioner to apply for review of a decision to issue a practice certificate subject to conditions. The condition in dispute is, in effect, that the practice certificate took effect on 7 July 2005, rather than on 1 July 2005.
Background
9 The practitioner was admitted to legal practice in December 1984 and has practiced as a barrister since 1996. The practitioner held practice certificates continuously from his admission in 1984 until 30 June 2005. He has been a member of the WA Bar Association (WABA) since 1996.
10 On or about 11 May 2005, the practitioner forwarded a completed and signed application dated 10 May 2005 for a practice certificate for the year from 1 July 2005 to 30 June 2006 in the prescribed form to the Board together with a cheque for the prescribed fee of $1000. By letter dated 25 July 2005, the Board acknowledged receipt of the application on 12 May 2005.
11 The prescribed application form includes a section concerning professional indemnity insurance as follows:
"I*hold my own/am covered by my employer's professional indemnity insurance in accordance with the Legal Practice Act 2003.
I*have/have not complied with Law Mutual's requirements."
12 The prescribed application form requires an applicant to "delete whichever is not applicable". The practitioner circled the words "hold my own" and "have" on the form, indicating that he held his own professional indemnity insurance and had complied with Law Mutual's requirements.
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- Law Mutual administers the professional indemnity insurance scheme on behalf of the Law Society of Western Australia.
13 The explanatory notes at the end of the practice certificate application form include the following:
"Notification that practitioners have complied with the requirements of Professional Indemnity Insurance will be forwarded directly to the Board by Law Mutual.
Please note, if the Board does not receive advice from Law Mutual that a practitioner has obtained the appropriate insurance or is exempt, then the practice certificate application WILL NOT issue."
14 In 2004-2005 and 2005-2006, Suncorp Metway Insurance Ltd (Suncorp) was the only insurer which was approved by the Council of the WABA to provide professional indemnity insurance for its members. The practitioner held professional indemnity insurance with Suncorp for 20042005. On Thursday, 16 June 2005, the practitioner completed a proposal for professional indemnity insurance from Suncorp for the period 30 June 2005 to 30 June 2006. On 16 June 2005, the practitioner also wrote a cheque to Suncorp for the premium of $1675 and dictated a covering letter. The covering letter was then typed by the practitioner's chambers clerk and was sent by post to Suncorp on Monday, 20 June 2005.
15 Based on his experience of obtaining insurance from Suncorp and the renewal of his practice certificate the previous year, the practitioner understood and expected that Suncorp would notify the WABA of the acceptance of his proposal, the WABA would in turn notify Law Mutual, and the practice certificate for the forthcoming practice year would be issued by the Board. However, the practitioner's covering letter, insurance proposal and cheque were not received by Mr Ross Kildey who was an underriding manager working for Steele Financial Consulting Pty Ltd which, acting under authority from Suncorp, was responsible for professional indemnity insurance for barristers across Australia, including members of the WABA.
16 On 30 June 2005, Ms Melissa Coates, the administrative assistant employed by the WABA, telephoned the practitioner and advised him that the Association had not received confirmation from Suncorp of the practitioner's insurance for 2005-2006. The practitioner informed Ms Coates that he had forwarded the completed insurance proposal and his cheque to Suncorp about 10 days earlier. Ms Coates offered to contact Suncorp on the
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- practitioner's behalf to see what had occurred. The practitioner agreed that Ms Coates should do so. Ms Coates then telephoned Mr Kildey who told her that he did not have any record of receiving the practitioner's proposal and cheque. Mr Kildey told Ms Coates that the practitioner should fax a copy of his proposal immediately to Mr Kildey and he "would arrange coverage in 10 minutes". Ms Coates telephoned the practitioner and related this information.
17 As the practitioner had taken his copy of the proposal and covering letter home to place in his tax records on 20 June 2005, and owing to the time difference between Perth and Brisbane where Suncorp is located, the practitioner was unable to fax Mr Kildey a copy of the proposal on 30 June 2005. However, he did so on Friday, 1 July 2005. Mr Kildey processed the practitioner's insurance proposal and formally accepted it on behalf of Suncorp. As it was late Queensland time by the time Mr Kildey had finalised this, he was not able to send a letter confirming that the proposal had been accepted until Monday, 4 July 2005. However, on 1 July 2005, Mr Kildey telephoned Ms Coates and informed her that the practitioner's completed proposal had been received and that the practitioner was now covered by Suncorp "as from 30 June 2005". On that day, Ms Coates telephoned Law Mutual to discuss what had occurred with the practitioner's insurance arrangements and informed Law Mutual that the practitioner now had insurance, although she was waiting for written confirmation as to that fact from Suncorp.
18 Mr Kildey gave evidence to the Tribunal, which was not questioned, that the practitioner "was, as at 1 July 2005, insured by Suncorp for the period 30/06/2005 to 30/06/2006 pursuant to the terms of a policy and for a limit of indemnity of at least the minimum limit of indemnity required in order to obtain a Practicing Certificate".
19 On Monday, 4 July 2005, Mr Kildey emailed an updated spreadsheet from Suncorp to Ms Coates confirming that the practitioner was insured from 30 June 2005 to 30 June 2006. However, Ms Coates was absent from work due to illness on 4, 5 and 6 July 2005. When she returned to work on Thursday, 7 July 2005, she noticed that the updated spreadsheet that had been emailed to her on 4 July 2005. Ms Coates forwarded the spreadsheet to Law Mutual on 7 July 2005.
20 On 7 July 2005, Law Mutual sent a facsimile transmission to the Board advising that it had received an email from the WABA confirming the practitioner's insurance. Law Mutual indicated that, in accordance with its normal
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- procedure, the practitioner's exemption from its insurance scheme was processed from the date it received notification of his insurance with Suncorp. Law Mutual also indicated that the WABA had advised it that the practitioner held insurance from 30 June 2005 "and the delay in processing his insurance was due to the renewal forms and cheque being 'lost in the post'". Law Mutual then stated as follows:
"Given the circumstances, if the Board makes the decision to revise the date of issue of Mr Stephenson's practice certificate, please notify Law Mutual (WA) and we will amend the period of compliance accordingly."
22 The practitioner subsequently requested the Board to determine that his practice certificate for 2005-2006 took effect on 1 July 2005. By letter dated 22 December 2005, the Board advised the practitioner that it had resolved to decline to exercise the power conferred upon it by s 42(b)(i) of the LP Act to determine that the practitioner's practice certificate take effect from a day earlier than the day on which it was issued. The practitioner then commenced these proceedings.
Issues for determination
23 The following three principal issues arise for determination in this review:
1) Was the practice certificate issued to the practitioner on 7 July 2005 issued "on the application by a certificated legal practitioner" for the purposes of s 42(a) of the LP Act?
2) If the answer to 1 is "no", should there be an exercise of discretion under s 42(b) of the LP Act to determine that the practice certificate issued to the practitioner on 7 July 2005 take effect from 1 July 2005?
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- 3) In any case, should there be a refund of the surcharge of $300 for the late lodgement of the application for the renewal of the practitioner's practice certificate for 20052006?
24 We will address each of these issues in turn.
Was the practice certificate issued "on the application by a certificated legal practitioner"?
25 Section 35(1) of the LP Act states relevantly that a practice certificate is required to be held by every legal practitioner who is engaged in legal practice in the State. Section 37(2) of the LP Act states that an application for a practice certificate must:
"(a) be made to the Board in a form approved by the Board; [and]
(b) contain, or be accompanied by, such information as is prescribed by the rules;".
26 Section 37(4) of the LP Act states that, subject to subsections (5) and (6), a legal practitioner who holds a practice certificate must apply for a further practice certificate by the earlier of any date prescribed by the rules or the date of expiry of the current certificate. Section 37(6) states that, despite subsection (4), the Board may, in its discretion, accept an application for a practice certificate from a legal practitioner whose practice certificate has expired and who has paid the late fee (if any) prescribed by the rules.
27 Section 38(1) of the LP Act provides that the Board must refuse to issue a practice certificate if the application is not made in accordance with s 37. Section 38(3) provides that the Board may refuse to issue a practice certificate under regulations made under s 247 as to professional indemnity insurance.
28 Rule 44 of the Legal Practice Board Rules 2004 (WA) (Rules) prescribes Form 17 as the approved form for an application for a practice certificate under s 37(2)(a) of the LP Act and the information required to complete that Form as the information required by s 37(2)(b). We have set out the part of the prescribed Form concerning professional indemnity insurance and the relevant explanatory notes at [11] and [13] above.
29 It is apparent from the Form that an application for a practice certificate does not have to contain, or be accompanied by, confirmation
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- of professional indemnity insurance for the period for which the practice certificate is sought. Indeed, the explanatory notes indicate that "notification that practitioners have complied with the requirements of Professional Indemnity Insurance will be forwarded directly to the Board by Law Mutual", although the Board will not issue a practice certificate unless it receives confirmation that a practitioner has appropriate insurance or is exempt.
30 This latter explanatory note is consistent with r 44(2) of the Rules which states:
"An application for a practice certificate is subject to confirmation from the insurer with whom the applicant, or the applicant's employer, holds professional indemnity insurance confirming that the insurance is current and setting out any restrictions or limitations to which the insurance is subject."
31 Section 42 of the LP Act concerns the duration of a practice certificate. The section states as follows:
"A practice certificate –
(a) if issued on application by a certificated practitioner –
(i) takes effect on the day next succeeding the expiry of the current certificate held by that practitioner; and
(ii) subject to this Act, remains in force for 12 months or such shorter period as is specified in the practice certificate;
(b) if issued on application by a legal practitioner other than a certificated practitioner –
(i) takes effect on the day on which it is issued, or on such earlier day as is determined by the Board; and
(ii) subject to this Act, remains in force until 30 June next succeeding."
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33 The Board contends that once the date of expiry of a practice certificate has passed, then an applicant is no longer a certificated practitioner and any application for a practice certificate falls to be dealt with under s 42(b), rather than s 42(a). The Board submits that the application in this case was not made by a certificated practitioner and therefore the applicable provision is s 42(b).
34 In contrast, the practitioner contends that the practice certificate for 2005-2006 was issued "on application by a certificated practitioner", because he made a valid application for a practice certificate while he was a certificated practitioner prior to 30 June 2005. According to the practitioner, "on application by a certificated practitioner" means "as a result of an application by a certificated practitioner". Although he was no longer a certificated practitioner on the date the practice certificate was issued, because it was issued as a result of an application that he made as a certificated practitioner, the duration of the practice certificate is determined by s 42(a) and therefore took effect on 1 July 2005, which was the day next succeeding the expiry of the former certificate.
35 We do not consider that the practice certificate issued to the practitioner on 7 July 2005 was issued "on the application by a certificated legal practitioner" for the purposes of s 42(a) of the LP Act. It is apparent from the terms of par (a) of s 42 that this paragraph is only applicable prior to the expiry of a legal practitioner's current practice certificate. The words "if issued" indicate that the relevant point in time at which a legal practitioner must be a certificated practitioner is the date of issue of the practice certificate. Furthermore, the words "the current certificate held by that practitioner" in subpar (i) plainly contemplate that the practitioner must hold a current practice certificate at the date of issue of the renewal certificate and must therefore be a certificated practitioner as at that date. The practitioner's argument could only be correct if we were to insert the words "or former" between "current" and "certificate". We do not consider that the purpose or object of the provision warrants the insertion of these words.
36 As noted earlier, s 37 of the LP Act and r 44 of the Rules do not require that an application for a practice certificate contain, or be accompanied by, confirmation of professional indemnity insurance for the renewal year. However, as also noted earlier, r 44(2) provides that an application for a practice certificate "is subject to confirmation from the insurer with whom the applicant … holds professional indemnity insurance". It is a proper exercise of discretion on the part of the Board not to issue a practice certificate to a legal practitioner where confirmation
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- of professional indemnity insurance has not been received. Where a certificated legal practitioner makes an application for a practice certificate under s 37, but ceases to be certificated prior to the confirmation from the insurer that the practitioner holds professional indemnity insurance for the renewal year, a practice certificate issued by the Board to the practitioner is not the subject of par (a) of s 42, but rather is the subject of par (b) of the section. The practitioner, therefore, requires an exercise of discretion under s 42(b) in order for the practice certificate to take effect from 1 July 2005.
Should there be an exercise of discretion?
37 On 11 February 2003, the Board resolved to adopt the policy "that unless there are exceptional circumstances and or applications for renewal of practice certificates are made prior to 30 June each year, then the Board will not retrospectively issue practice certificates". On 27 October 2005, the Board resolved that it "will continue to exercise its discretion in relation to the retrospective issue of practice certificates but only in exceptional or extenuating circumstances". It is common ground that there is no relevant distinction between "exceptional circumstances" and "exceptional or extenuating circumstances".
38 Decision-makers may have regard to a relevant policy, but may not treat it as a fixed, determinative rule: Wilson & Anor v Western Australian Planning Commission [2007] WASC 39 at [50] per Le Miere J. A policy cannot be inflexibly applied without regard to the merits of the particular case, although the relevant consideration in many cases will be why a relevant policy should not be applied: Clive Elliot Jennings & Co Pty Ltd and Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24] per Barker J.
39 It is unnecessary in this case to explore whether the Board's policy should be departed from in the circumstances, because we are satisfied that there are relevantly exceptional or extenuating circumstances which warrant a determination that the practice certificate took effect from 1 July 2005. The exceptional or extenuating circumstances are that:
• the practitioner completed and posted his insurance proposal and cheque to the insurer in sufficient time for it to be accepted and the acceptance communicated to the WABA before the expiry of the 2004-2005 practice certificate;
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- • the insurance proposal and cheque were not received by the relevant officer of the insurer; and
• the practitioner obtained professional indemnity insurance on 1 July 2005 with effect from 30 June 2005 with the consequence that he was never uninsured.
Should the surcharge be refunded?
40 At the relevant time, r 44(4) of the Rules stated, in part, as follows:
"Any application for a practice certificate that is not lodged with the secretary on or before 30 June is subject to the following surcharge –
(a) if the completed application is lodged on or before 31 July, 25% of the application fee;"
41 It appears that the Board charged the practitioner a surcharge of $300 on the basis that the completed application was lodged on 7 July 2005 when Law Mutual confirmed that the practitioner had insurance for 20052006.
42 For reasons set out earlier, s 37(2) of the LP Act and r 44 of the Rules do not require that an application for a practice certificate contain, or be accompanied by, confirmation of professional indemnity insurance for the period in respect of which the application is made. Although r 44(2) provides that an application for a practice certificate is subject to confirmation of professional indemnity insurance from the insurer, and consequently the Board will not issue a practice certificate unless confirmation from the insurer is received, insurance confirmation is not required for an application for a practice certificate to be "lodged" with the secretary on or before 30 June.
43 In this case, the practitioner's application lodged on 12 May 2005 complied with the requirements of s 37 and r 44. It was not, therefore, open to the Board to impose a surcharge under r 44(4). It follows that the surcharge should be refunded.
Conclusion
44 The Tribunal has determined that the practice certificate issued by the Board to the practitioner on 7 July 2005 was not issued "on the application by a certificated legal practitioner" for the purposes of s 42(a) of the LP Act. In order for par (a) of s 42 to have application, a practice certificate must be issued before the expiry of the
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- practitioner's former certificate.
45 However, the Tribunal has also determined that the discretion conferred on the Board and on the Tribunal on review under s 42(b) of the LP Act should be exercised in the circumstances of this case to determine that the practice certificate took effect on 1 July 2005. The Tribunal is satisfied that there are relevantly exceptional or extenuating circumstances, because the practitioner forwarded his insurance proposal to the insurer in sufficient time for its acceptance and communication of acceptance to the WABA before expiry of the 2004-2005 practice certificate, the insurance proposal was not delivered, and the practitioner obtained insurance on 1 July 2005 with effect from 30 June 2005.
46 Finally, the Tribunal has determined that the surcharge for the late lodgement of a practice certificate should be refunded to the practitioner, because the application was lodged on or before 30 June 2005 notwithstanding the fact that it did not include, and was not accompanied by, confirmation of professional indemnity insurance for the practice year in respect of which the application was made.
Costs
47 In his application to the Tribunal, the practitioner sought an award of costs against the Board.
48 The starting proposition in the Tribunal is that parties bear their own costs in proceedings (see State Administrative Tribunal Act 2004 (WA) (SAT Act) s 87(1)), although the Tribunal has a discretion to make an order for the payment by a party of all or any of the costs of another party unless otherwise specified in an enabling Act (see SAT Act s 87(2)). The Tribunal's established practice in relation to the exercise of its discretion as to costs in review proceedings is that normally each party should bear its own costs of the proceedings: Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246; Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206.
49 This matter involves review proceedings although of a vocational nature. We see no reason why the usual practice in review proceedings should be departed from in the circumstances of this case. Each party should bear its own costs of the proceedings.
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Orders
50 The Tribunal makes the following orders:
1. The application for review is allowed in part.
2. The decision of the Legal Practice Board that the practice certificate issued by it to Timothy Richard Stephenson on 7 July 2005 took effect on 7 July 2005 and not on 1 July 2005 is set aside and decisions are substituted that the practice certificate took effect on 1 July 2005 and that the Legal Practice Board must refund to Timothy Richard Stephenson the sum of $300.
3. Each party is to pay its own costs of the proceedings.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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