| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : VETERINARY SURGEONS ACT 1960 (WA) CITATION : THE VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA and ALEXANDER [2011] WASAT 175 (S) MEMBER : DR B DE VILLIERS (MEMBER) DR A VIGANO (SENIOR SESSIONAL MEMBER)
MR G POTTER (SENIOR SESSIONAL MEMBER)
HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 28 NOVEMBER 2010 SUPPLEMENTARY
DECISION : 2 FEBRUARY 2012 FILE NO/S : VR 50 of 2009 BETWEEN : THE VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA Applicant
AND
KURT ALEXANDER
Respondent
Catchwords: Application for costs Principles applicable to awarding costs in disciplinary proceedings
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Legislation: State Administrative Tribunal Act 2004 (WA), s 87(1) Result: Application for costs dismissed
Each party is responsible for their own costs Category: B
Representation: Counsel:
Applicant : Mr G Abbott
Respondent : Mr K Bradford
Solicitors:
Applicant : Tottle Partners
Respondent : Bradford and Co
Case(s) referred to in decision(s):
Gill & Ors and Wildnight Pty Ltd [2008] WASAT 135
Medical Board of Western Australia and Graziotti [2009] WASAT 19
Motor Vehicle Industry Board and Dawson [2006] WASAT 8
Pearce and Anor and Germain [2007] WASAT 291 (S)
The Veterinary Surgeons' Board of Western Australia and Alexander [2011] WASAT 175
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The proceedings concern an application by Dr Kurt Alexander for the costs incurred in disciplinary proceedings. The disciplinary proceedings which were brought by the Veterinary Surgeons' Board of Western Australia, were dismissed. 2 Dr Alexander contended that he was entitled to have all the costs he had to incur to defend the application refunded. Dr Alexander said the Veterinary Surgeons' Board of Western Australia pursued an unmeritorious matter and that it acted unreasonably during and after mediation. 3 The Veterinary Surgeons' Board of Western Australia contended that each party should bear their own costs. The Veterinary Surgeons' Board of Western Australia said that it brought the proceedings in good faith; in the interest of the public; and it should not be penalised by being ordered to pay the costs of Dr Alexander. 4 The Tribunal concurred with the submissions of the Veterinary Surgeons' Board of Western Australia and ordered that each party should bear their own costs for the proceedings.
Issue 5 The issue in this proceeding is whether costs should be awarded to Dr Alexander after disciplinary proceedings against him were dismissed.
Background 6 On 28 November 2010 the Tribunal dismissed an application by the Veterinary Surgeons' Board of Western Australia (Board) for disciplinary proceedings to be taken against Dr Kurt Alexander (The Veterinary Surgeons' Board of Western Australia and Alexander [2011] WASAT 175). 7 Dr Alexander sought a cost order to be made according to which the costs incurred in defending the application should be borne by the Board. Programming orders were made for the parties to make submissions in regard to costs. (Page 4)
8 Mr Abbott, acting for the Board, made written submissions on 19 December 2011. Mr Bradford, acting for Dr Alexander, made written submissions dated 21 December 2011. 9 The Tribunal made its determination on the papers.
Contentions 10 The contentions of the Board can be summarised as follows. 11 The Board contends that each party should bear their own costs. This is consistent with s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and with previous decisions of the Tribunal in disciplinary proceedings initiated by vocational bodies. 12 The Board has acted reasonably and in good faith in seeking disciplinary action against Dr Alexander, and the fact that it has not been successful is not, by itself, a ground to award costs against it. 13 When the entire proceedings are considered, note must be taken of the observation by the Tribunal that the actions of Dr Alexander were not condoned by the Tribunal. The Board therefore had a proper, honest and reasonable basis for commencing disciplinary proceedings. 14 The contentions of Dr Alexander can be summarised as follows. 15 The Board should be ordered to pay the costs of Dr Alexander. 16 Dr Alexander contends that the Board acted unreasonably during the mediation and the hearing. 17 The Board recognised the need for better regulation of mobile veterinarian services by producing a draft guideline for future regulation. The Tribunal also observed the lack of regulations in Western Australia comparable to those in other states. 18 The nature of penalty sought by the Board was unreasonable, and made any attempt at mediation impossible. 19 Dr Alexander had no option but to oppose the allegations against him and he is entitled, in light of his success, for the cost incurred to be paid by the Board. 20 It is important for a vocational body to be aware that there are risks involved in commencing proceedings and to participate in mediation without making a serious attempt to settle a dispute. (Page 5)
Consideration 21 The point of departure for considering an application for costs is s 87(1) of the SAT Act which provided, in essence, that parties bear their own costs. 22 Section 87(1) of the SAT Act does not mean that a cost order is precluded. The Tribunal may award costs and has done so in many instances. 23 In the matter of Pearce [&] Anor and Germain[2007] WASAT 291 (S), an overview was given of the cost regime applied by the Tribunal and the criteria to be considered prior to the award of costs. In the matter of Gill & Ors and Wildnight Pty Ltd [2008] WASAT 135 at [18] [20], the criteria were summarised as follows: Since its inception, several decisions have been handed down by the Tribunal in regard to costs: refer, for example to the decisions of Bilek and Vata Investments Pty Ltd [2005] WASAT 153; Quah and AMP Life Limited[2005] WASAT 169; Chew and DirectorGeneral of the Department of Education and Training [2006] WASAT 248; Summerville and Department of Education and Training and Ors [2006] WASAT 368 (S) and Clifford and Shire of Busselton [2007] WASAT 89 (S). These and other decisions were recently analysed and discussed by the Tribunal's Deputy President, Judge Chaney, in the matter of Pearce [&] Anor and Germain[2007] WASAT 291 (S) (Pearce). The decision was handed down on 9 May 2008. In Pearce, his Honour set out the following principles for the consideration of costs applications by the Tribunal: (i) The starting point of the Tribunal is that it is a 'no cost' jurisdiction ([8]). (ii) The cost regime that was applicable to the previous Commercial Tribunal does not apply to the State Administrative Tribunal ([11]). (iii) The objectives of the State Administrative Tribunal are furthered by its being essentially a 'no cost' jurisdiction ([17]). (iv) Where there is a genuine dispute and the respective rights are unclear and parties seek a determination, the 'starting point remains that each party should expect to pay their own costs' ([24]). (v) The Tribunal does have the power to award costs, and it is not appropriate to 'delineate the particular circumstances' in which the discretion to award costs would be exercised favourably ([22]). (Page 6)
(vi) Some of the factors (not an exhaustive list) that may contribute to the Tribunal making a cost order are for example a. A party has conducted itself unreasonably, particularly where the conduct leads to unnecessary costs to the other party. b. A party has conducted itself inappropriately, particularly where the conduct leads to unnecessary costs to the other party. c. Where credibility of evidence is at the heart of a matter. d. Where the application undermine[s] the integrity of proceedings under the relevant Act. e. The relative weakness of a case, it being incredible or implausible or 'obviously unmeritorious'. f. If a party has to embark in proceedings to 'vindicate its clear contractual entitlements' ([22] [24]). 24 An assessment of the Tribunal's decisions regarding applications for costs shows that while costs may be awarded in areas where commercial interests are of concern, for example, in the fields of commercial tenancies and building disputes, it is only in exceptional instances that costs will be awarded against a vocational body in disciplinary proceedings. 25 In general, costs are not awarded against vocational bodies since such bodies represent the public interest and should not be discouraged to fulfil their statutory obligations. In the matter of Medical Board of Western Australia and Graziotti [2009] WASAT 19, the Tribunal found that, regardless of its general approach, it was satisfied that the conduct of the Medical Board was 'oppressive' and a cost order was justified (at [67]). 26 The Tribunal's approach to awards of costs in the context of vocational regulation matters is now relatively well established. That general approach was explained by the President of the Tribunal, Chaney J in Motor Vehicle Industry Board and Dawson [2006] WASAT 8 at [44] - [48] where he said: Where proceedings are commenced by a vocational regulatory body (such as the Board) against a person affected by a vocational Act (such as Mr Dawson), the Tribunal will usually make an order for costs in favour of the vocational regulatory body where it is successful in obtaining an order in the proceedings. In Medical Board of Western Australia and Roberman (Page 7)
[2005] WASAT 81 (S) at [30] the Tribunal (Judge John A Chaney SC, Deputy President, presiding member) observed in relation to s 87(2) that: 'Where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case.' With those observations the Tribunal concurs. In the Roberman case, however, the Medical Board of Western Australia was unsuccessful in relation to some of the allegations made against the medical practitioner. For that reason the Tribunal in its discretion considered it was appropriate that the practitioner only pay onethird of the costs of the Medical Board. In so doing the Tribunal implicitly recognised that a person affected by proceedings instituted by a vocational regulatory body should not have to bear the costs of the proceedings or contribute to the costs of those part[s] of the proceedings which were not successfully maintained. The decision in the Roberman case does not support the view, however, that an affected person in such proceedings is entitled to an award of costs for the portion of the proceedings in which they were successful. If this approach were to be adopted, vocational regulatory bodies may well feel inhibited in commencing proceedings that should be commenced and maintained in the public interest even though 'success' cannot be guaranteed. Consequently, the Tribunal considers that, ordinarily, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against a vocational regulatory body simply because the application was not successful. Of course, in every case the Tribunal retains the discretion under s 87(2) of the SAT Act to order costs in the circumstances of the case. 27 In these proceedings the Tribunal may have found against the Board and for Dr Alexander, but that is not to say that the proceedings were (Page 8)
without any merit or should not have been commenced. There was a reasonable basis for the Board to have commenced the proceedings and the Tribunal recognised in its reasons for decision the complexity of the matter. 28 The Tribunal does not accept the contention of Dr Alexander that the Board did not act in good faith during the mediation process. The mediation is a private, confidential and without prejudice process and the Tribunal is not able to make any qualitative assessment of the conduct of a party in those proceedings. 29 The Tribunal therefore does not accept the contentions of Dr Alexander that a cost order should be made against the Board. On the basis of all the information before it, the Tribunal finds that each party should bear their own costs.
Orders |