Thomas v Chief Planning Executive
[2016] ACAT 45
•17 May 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
THOMAS v CHIEF PLANNING EXECUTIVE
(Occupational Discipline) [2016] ACAT 45
OR 46/2013
Catchwords: OCCUPATIONAL DISCIPLINE – application for costs – whether respondent caused unreasonable delay or obstruction – whether an award of costs is in the interests of justice due to contravention of a tribunal order
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 48, 49
Gas Safety Act 2000 ss 9, 13, 69
Law Officers Act 2011 ss 12 (3)
Subordinate
Legislation:Gas Safety (Appliance Worker Accreditation Code) Approval 2007 (ACT) ss 17
Gas Safety Regulation 2001 s 17A
Cases cited: CIC Australia Ltd v Australian Capital Territory Planning and
Land Authority [2013] ACTSC 96
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
Re Minister for Immigration & Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Tribunal: Senior Member P Spender
Date of Orders: 17 May 2016
Date of Reasons for Decision: 17 May 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 46/2013
BETWEEN:
RODNEY THOMAS
Applicant
AND:
CHIEF PLANNING EXECUTIVE
Respondent
TRIBUNAL: Senior Member P Spender
DATE: 17 May 2016
ORDER
The application for review of a decision about occupational regulation is dismissed.
The applicant’s application for interim or other orders filed on 17 April 2014 seeking the costs of the application for review is dismissed.
………………………………..
General President L Crebbin
for and on behalf of the Tribunal
REASONS FOR DECISION
The applicant filed an application for review of a decision about occupational regulation on 10 December 2013. On 17 April 2014 the applicant applied for the proceedings to be dismissed and sought an order that his costs be payable by the respondent. The respondent did not oppose the dismissal of application for review. The Tribunal has dismissed the application for review and the following reasons explain why the Tribunal has also dismissed the applicant’s application for costs.
In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the current member.
Background
This proceeding was an application made by the applicant on 10 December 2013 in the occupational regulation division of the tribunal challenging a decision that was made by a delegate of the respondent regarding the applicant’s eligibility for an Advanced Type B Gas Workers Accreditation. The respondent made a decision about the applicant’s eligibility on 18 November 2013.
The respondent’s decision was made under the Gas Safety Act 2000 (ACT) (Gas Safety Act) and its subordinate legislation, the Gas Safety Regulation 2001 (ACT) (the Gas Safety Regulation) and the Gas Safety (Appliance Worker Accreditation Code) Approval 2007 (ACT) (the Code).
Although it is not clear whether the respondent was obliged to do so,[1] she nevertheless provided reasons for decision in a letter from a delegate dated 18 November 2013. The letter said in part as follows:
I … hereby ISSUE the Type A accreditation applied for and hereby REFUSE to issue the Type B accreditation applied for.[2]
The second page of the notice of decision stated as follows:
Type B accreditation
The delegate is not satisfied the applicant is fit and proper to undertake Type B gas appliance work. I refer to the matters raised in the show cause notice dated 17 May 2013 and issued to the applicant in relation to type B appliance work that has been undertaken by the applicant which was outside the scope of his restricted type B accreditation.[3]
[1] Respondent's submission dated 30 April 2014 at [32] citing Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
[2] Tribunal documents at T8
[3] Tribunal documents at T9
A Show Cause Notice dated 17 May 2013 was attached to the notice of decision. The Show Cause Notice indicated that the applicant at that stage held a Type A and Restricted Type B Gas Appliance Accreditations which was due to expire on 16 July 2013.[4] The Show Cause Notice further indicated that, due to an administrative error, the applicant had been incorrectly issued with a Type A Accreditation and he should have only been issued with a Type A Trainee Accreditation and Restricted Type B Accreditation.[5] The Show Cause Notice also provided details of some investigations that were being undertaken by the respondent where the respondent alleged that the applicant had approved appliances which were unapproved or unsafe or where the work might not have been in compliance with the Gas Safety Act. The Show Cause Notice referred to approximately six such investigations where it was alleged that the standard of work was not in accordance with the Australian standards and therefore the delegate of the respondent was considering suspension or cancellation of the accreditation of the respondent.[6]
[4] Tribunal documents at T12
[5] Tribunal documents at T12
[6] Tribunal documents at T12 – T 22
The applicant argued that he commenced proceedings in the tribunal to challenge the decision made by the respondent and in doing so he relied upon the grounds stated in the letter of 18 November 2013 i.e. that he was not fit and proper person to undertake Type B appliance work. After some preliminary directions hearings, the respondent filed a statement of facts and contentions on 18 March 2014 and it became apparent to the applicant that he was also ineligible to apply for an Advanced Type B Accreditation allegedly because the training course he had completed was not approved under the Code.[7]
[7] Applicant's submissions dated 15 April 2014 at [5]
As stated above, the applicant made an application to discontinue his application for occupational regulation on 17 April 2014 and applied for an order that the respondent pay the costs of the application pursuant to section 48(2)(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act). The basis of this application for costs was that the respondent’s failure to advise that the applicant’s eligibility for accreditation was an issue at an earlier stage and indeed that the respondent’s advice to the applicant that he would be eligible if he performed a particular training course:
(a)constituted a denial of natural justice;
(b)caused the applicant to believe that if he had performed a training course recommended by the respondent that he would be eligible for accreditation under the Code;
(c)caused the applicant to assume the dispute between him and the respondent was limited to the to the issue of whether he was fit and proper person to undertake Type B appliance work;
(d)precipitated the commencement of these proceedings and delayed their final determination; and
(e)constituted unreasonable delay and a reasonable obstruction which caused the applicant to incur the costs of these proceedings.
In the alternative, the applicant applied for an order that the respondent pays the applicant’s costs of the application for review pursuant to section 48(2)(c) of the ACAT Act on the basis that the respondent had failed to comply an order of the tribunal dated 11 December 2013 for the filing of a statement of reasons and documents relevant to the decision. The applicant’s position was that this failure caused the applicant to incur costs unnecessarily because the preparation of a proper statement of reasons at an early stage of the proceedings would have clarified the eligibility issue and would have prevented the applicant from incurring costs that he incurred in prosecuting the application for review. The applicant also argued that it was in the interests of justice that the tribunal make the costs order against respondent in the circumstances of this matter.
Legislative framework
ACAT’s power to award costs
The relevant provisions of the ACAT act which deal with costs are as follows:
48Costs of proceedings
(1)The parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders.
(2)However—
(a)if the tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant––
(i)the filing fee for the application; and
(ii)any other fee incurred by the applicant that the tribunal considers necessary for the application; or
Examples––subpar (ii)
a fee for a business name or company search
a filing fee for a subpoena
hearing fees
(b)if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application—the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction; or
(c)subject to section 49, if a party to the application contravenes an order of the tribunal—the tribunal may order the party to pay the costs or part of the costs of the application to the other party; or
49Costs for contravening an order
(1)The tribunal may award costs against a party for contravening an order under section 48 (2) (c) only if satisfied that it is in the interests of justice to do so.
(2)In deciding whether it is in the interests of justice to award costs, the tribunal must consider the following:
(a)whether the contravention was deliberate or could easily have been avoided;
(b)whether (and if so, the extent to which) the contravention has affected the tribunal’s ability to hear the application promptly;
(c)the importance to the community of people being able to afford to bring applications to the tribunal.
(3)The tribunal may consider any other relevant matter.
(4)Costs are payable in accordance with the scale of costs in the rules under the Court Procedures Act 2004 applying in relation to the Supreme Court.
The tribunal does not have power to make costs orders under the ACAT Act apart from the power to make costs orders of the kind specified in section 48(2) in the circumstances specified in section 48(2). As stated by Penfold J in CIC Australia Ltd v Australian Capital Territory Planning and Land Authority[8] (the CIC Case):
...s 48 confers a narrow costs power on ACAT, being the power to make only the orders specified in section 48 (2) and only in the circumstances specified in that provision.
It is important to note the opening words of section 48 which is the primary statement by the legislature regarding the operation of costs in the tribunal: each party “must bear their own costs” subject to the exceptions stated in that provision.
The Gas Safety Act Accreditation Scheme
[8] [2013] ACTSC 96
Section 13 of the Gas Safety Act prohibits people from performing gas appliance work unless they have been accredited to perform that kind of work. Section 9 of the same Act contains a general power to make regulations for the Gas Safety Act. The Gas Safety Regulation was made under section 69 of the Gas Safety Act and regulation 17A of the Gas Safety Regulation obliges the ACT Planning and Land Authority (ACTPLA) to approve a code in relation to the accreditation of people to do appliance work. The Code was approved and sets out the types of accreditation for which persons can apply, the test for eligibility for accreditation and the discretionary matters that the respondent is to consider when deciding whether or not to accredit a person.[9]
[9] Applicant's outline of submission on costs 15 April 2014 at [12] – [15]
Section 5 of the Code sets out the appliance work that a person who holds an unrestricted (also known as an Advanced) Type B accreditation may undertake. It states as follows:
Type B Accreditation – Type B accreditation allows the accredited person to perform installation, service, design, modification and commissioning work on the components between the gas isolation valve adjacent to the appliance and the flue spigot of Type B gas appliances in accordance with the gas safety legislation.
Section 17 of the Code sets out the test that the respondent must apply when deciding whether to accredit people. It states as follows:
Accreditation approved by the chief planning executive
On receiving an application, the chief planning executive must accredit the appellant, or renew the applicant’s accreditation if, after considering all the documents admitted by the applicant, the chief planning executive is satisfied that the applicant is eligible for accreditation and is fit and proper to undertake appliance work.
For restricted type B accreditation, the chief planning executive may, as he or she thinks fit, stipulate restrictions under the accreditation.
The applicant submitted that the respondent must be satisfied of a two-part test under section 17. If the applicant is satisfied of the two elements of the test, then the respondent is obliged to issue the accreditation. The two-part test is as follows:
(a)whether the applicant is ‘eligible for accreditation’; and
(b)whether an applicant is ‘fit and proper to undertake appliance work’.
The Tribunal agrees with this interpretation of section 17.
In relation to the eligibility criteria for Advanced Type B accreditation, section 11 of the Code states that a person is eligible to apply for Type B accreditation and renewal of such accreditation if the person:
(a)is accredited in the ACT or under an approved scheme; or
(b)has satisfactorily completed an approved training course; and
(c)has two or more years of proven work experience in Type B appliance work.
Background
There was considerable uncertainty about which courses were eligible for accreditation under the Code and a system had been in operation over some time,[10] where the respondent allowed persons who were seeking accreditation to complete an examination offered by the Environmental and Sustainable Development Directive (the ESDD Examination). The respondent undertook this examination on two occasions, first on 3 November 2011 and again on 27 November 2012, but failed both examinations.
The applicant’s submissions
[10] Probably about 5 to 6 years - respondent's facts and contentions dated 18 March 2014 at [31]
The applicant alleged that after the applicant had failed the second examination, he was told by Mr Vincent Nassar, a representative of the respondent, that he needed to obtain further training. The applicant alleged that Mr Nassar advised him to contact Bizmatrix Pty Ltd and to complete their course about Type B appliances and said to the applicant that if he completed the Type B course he would be eligible for Advanced Type B accreditation.[11] The applicant then contended that he completed the only course that was offered by Bizmatrix Pty Ltd in respect of Type B appliance work which was “CPCSGS4003A – Install, Commission and Service Type B Gas Appliances” (the Bizmatrix Course). On 7 March 2013 Bizmatrix issued a Statement of Attainment to the applicant certifying that he had completed the Bizmatrix Course.[12] The applicant advised ACTPLA by email on 12 April 2013 that he had completed the Bizmatrix Course[13] and there was some further correspondence regarding the date of the Statement of Attainment which was followed shortly afterwards by the Show Cause Notice on 17 May 2013. The applicant’s solicitors requested further particulars of the Show Cause Notice on 30 May 2013.[14]
[11] Witness statement of Rodney Thomas dated 11 April 2014 at [16]
[12] Witness statement of Rodney Thomas dated 11 April 2014 Annexure RT –5
[13] Witness statement of Rodney Thomas dated 11 April 2014 Annexure RT – 7
[14] Witness statement of Rodney Thomas dated 11 April 2014 Annexure RT -11
The applicant argued that the respondent represented to him that he would be eligible for accreditation if he completed the Bizmatrix Course and that it had failed to afford him natural justice during decision-making process and did not provide him with proper reasons for the decision under review until the filing of the respondent’s facts and contentions in the tribunal proceedings on 18 March 2014.[15] The applicant submitted that it would not be reasonable to expect a lay person (such as the applicant) to understand the intricacies of the scheme established by the Gas Safety Act and the various legislative instruments made under it, nor to seek legal advice in relation to the same.[16]
[15] Applicant's outline of submissions on costs dated 15 April 2014 at [20]
[16] Applicant's outline of submissions on costs dated 15 April 2014 at [27]
The applicant asserted it was clear that the respondent’s conduct caused the applicant to believe he was eligible for accreditation when in fact he was not.[17] The applicant said that the relevant decision was made on 18 November 2013, three months after the applicant had provided relevant information about the Bizmatrix Course and his relevant experience in the industry.[18] The applicant submitted that it was reasonable for him to assume that his eligibility was not in issue because it was not referred to in the statement of reasons given on 18 November 2013, rather it was his fitness for accreditation that was in issue.
[17] Applicant's outline a submission on costs dated 15 April 2014 at [32]
[18] Witness statement of Rodney Thomas dated 11 April 2014 at [19]
The applicant therefore alleged that the respondent had acted unreasonably in failing to identify eligibility as an issue before the decision of 18 November 2013 was made, which caused the applicant to commence the proceedings. The applicant alleged that he would not have commenced proceedings had he known that the training courses he had completed did not make him eligible for accreditation.[19] The applicant therefore submitted that, pursuant to section 48(2)(b) of the ACAT Act, the respondent had caused unreasonable delay or obstruction before or while the tribunal was dealing with the application, because the failure to raise the applicant’s eligibility for proper consideration of the issue meant that the applicant’s eligibility for accreditation was delayed by the respondent’s conduct. Further, the applicant argued that the failure to raise the eligibility issue at an earlier stage constituted unreasonable obstruction. The applicant contended that as the decision maker with the task of administering the Gas Safety Act and the accreditation scheme, the respondent ought to have known the eligibility requirements. The applicant argued that by failing to advise the applicant until 18 March 2014 that he did not meet the eligibility requirements the respondent not only breached its natural justice obligations, it also obstructed proper consideration of the eligibility issue.
[19] Witness statement of Rodney Thomas dated 11 April 2014 at [38]
As a further issue, the applicant argued that the respondent’s failure to comply with the directions of the tribunal made on 11 December 2013 was a ground for the award of costs under section 48(2)(c) because the respondent contravened an order of the tribunal. In this respect the respondent was ordered on 11 December 2013 to file and serve within 28 days:
(a)a statement setting out the findings of material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons for the decision; and
(b)every other document or part of the document that is in the respondent’s possession or under its control and is considered by [the respondent] to be relevant to the review of the decision by the tribunal.
The 28 day deadline for compliance with the orders was extended by the consent of the parties until 15 January 2014. On 16 January 2014 the respondent filed a set of tribunal documents and a covering letter. These documents were not received by the applicant’s solicitors until 20 January 2014, two days before the next directions hearing in the matter.
On 22 January 2014 orders were made by consent that the respondent file and serve a statement of reasons and to give the tribunal and applicant supplementary ‘T documents’ (i.e. Tribunal documents) by 5 February 2014.
On 5 February 2014 the respondent filed and served a statement of reasons. However the statement of reasons did not state the applicant had not completed a training course approved under the Code. Rather, the applicant alleged that the statement of reasons only referred to the applicant’s eligibility for accreditation in an “oblique manner” by suggesting the course completed by the applicant did not cover the design and modification Type B gas appliances.[20] The applicant alleged that the respondent did not completely comprehensively set out its position with respect to the applicant’s eligibility for accreditation until the respondent’s statement of facts and contentions was filed on 18 March 2014 which is close to 10 months after the applicant applied the Type B accreditation.
The respondent’s submissions
[20] Applicant's outline of submissions on costs dated 15 April 2014 at [65] referring to respondent's facts and contentions dated 18 March 2014 and witness statement of Rodney Thomas dated 11 April 2014 at [43] – [44]
The respondent submitted that there is a factual dispute about the relevant exchanges between the applicant on one hand and Mr Nassar on behalf the respondent on the other. Mr Nassar did not agree with the applicant about the precise terms of the relevant conversations.[21] The respondent rejected the allegation that Mr Nassar told the applicant if he successfully completed the Bizmatrix Course he would be eligible to apply for Type B accreditation[22] and further alleged that even if Mr Nassar had told the applicant he would be eligible for Type B accreditation upon completion of the course, which was denied, it would be unreasonable for the applicant to rely on this.[23] Further, the respondent argued that the material produced by the applicant did not provide evidence of two or more years of relevant work experience in Type B appliance work and that the respondent by its email and attachments dated 24 June 2013[24] squarely raised with the applicant that evidence would be required of additional competency-based assessment if the applicant were to seek unrestricted Type B accreditation. The respondent alleges that this fact was acknowledged in the applicant’s letter dated 28 March 2014.[25] Further, the respondent argued that the applicant sought to be accredited as a gas appliance worker under the very legislative scheme he claims he did not and should not be expected to understand. The respondent alleged that as an accredited gas appliance worker the applicant must be expected to properly understand the regime.[26]
[21] Witness statement of Vincent Nassar dated 30 April 2014 at [5] – [8]
[22] Respondent’s outline of submissions on costs dated 30 April 2014 at [10]
[23] Respondent's outline of submission on costs dated 30 April 2014 at [11]
[24] Tribunal documents at T41 – T43
[25] Witness statement of Rodney Thomas at RT 22
[26] Respondent's outline of submission on costs dated 30 April 2014 at [26]
As regards the applicant’s alternative submissions about breach of section 48(2)(c) of the ACAT Act, the respondent admitted that she filed her supplementary and second supplementary sets of tribunal documents late. She conceded that supplementary tribunal documents were filed on 6 February 2014 (the tribunal having ordered the respondent to file the documents by 15 January 2014). The respondent also conceded that her facts and contentions were filed on 18 March 2014 after the tribunal had ordered her to file them by 11 March 2014.
By way of justification for the breach of the tribunal’s order, the respondent submitted that the factual background to this matter is extremely complex, as demonstrated by the tribunal documents which comprise over 1000 pages of documents and which took longer to compile than anticipated. Additionally, the respondent’s statement of facts and contentions is 76 pages long and contains a very detailed analysis of the extensive facts and the law in issue in the proceedings. Again, this document took longer than anticipated to compile. The respondent argued that the filing of these documents clearly indicates the thoroughness with which the respondent approached this matter in an effort to assist the tribunal which was a good faith attempt to comply with the tribunal orders as to filing.[27] The respondent stated that an agreed timetable for the filing of documents and the hearing of the matter was made on 10 February 2014 and at no stage was there any suggestion that the dates that had been fixed for the mediation or hearing of this matter would be vacated as result of the time the respondent had taken to file the relevant documents. Accordingly, the contention that the respondent’s delay affected the tribunal’s ability to hear the application promptly cannot be sustained.[28]
[27] Respondent's outline of submissions on costs dated 30 April 2014 at [29]
[28] Respondent's outline of submissions on costs dated 30 April 2014 at [30]
The respondent further submitted that there is no obligation under the gas safety legislation, at common law or pursuant to the principle of natural justice which required the respondent to provide a statement of reasons for the decision made on 18 November 2013 under section 17 of the Code.[29] Accordingly the requirement to provide a statement of reasons first arose when the respondent was ordered by the tribunal to provide one on 15 January 2014. The respondent contended that it did not fail to comply with the tribunal orders because the material filed on 5 February 2014 clearly stated that the applicant’s eligibility for the Type B accreditation was in issue, in particular that the applicant had provided no satisfactory evidence that he had completed a training course which covered the design and modification of gas appliances.[30]
[29] Respondent's outline of submissions on costs dated 30 April 2014 at [32]
[30] Tribunal document at T802 at [16] – [19]
The respondent further submitted that the applicant had substantially failed in his application for review, which necessitated the discontinuance and therefore it is improper to seek costs, following the common law concept expressed in Re Minister for Immigration & Ethnic Affairs; Ex Parte Lai Qin.[31] The respondent also argued that the applicant did not in fact rely upon any statements about his eligibility for accreditation by the respondent, but even if he did it would not be reasonable to do so.
[31] (1997) 186 CLR 622 at pages 624 - 625
Finally, the respondent argued that as a matter of course, the Tribunal stands in the shoes of the primary decision maker during merits review proceedings and the tribunal is not restricted to considering the case put forward by either party or the material before the primary decision maker.[32] Therefore any complaint by the applicant that he was not aware and could not have been aware that his eligibility to apply the Type B accreditation was in issue in these proceedings cannot be sustained.[33]
Consideration by the Tribunal
[32] Relying upon Shi v Migration Agents Registration Authority (2008) 235 CLR 286
[33] Respondent's outline of submissions on costs dated 30 April 2014 at [37]
The Tribunal notes that the applicant accepted that he must satisfy the tribunal of all the relevant elements of section 48, including proof that the respondent caused unreasonable delay or obstruction under section 48(2)(b) and that it was in the interests of justice that the Tribunal to make the order under section 48(2)(c).[34] The Tribunal notes the respondent’s submissions based on Re: Minister for Immigration and Ethnic Affairs; ex parte Lai Quinn[35] that where the proceedings have settled the proper exercise of the cost discretion will usually mean that the court will make no order as to the costs of the proceedings. The Tribunal further notes the comments of McHugh J that where there has been no hearing on the merits a court is necessarily deprived of the fact that usually determines whether or how it will make a costs order. However, the Tribunal also notes the qualification made by McHugh J that in an appropriate case the court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. McHugh J notes by way of example that in administrative law matters it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence litigation.[36]
[34] Transcript of proceedings 8 May 2014 page 93, lines 14 – 19
[35] (1997) 186 CLR 622
[36] (1997) 186 CLR 622 at 624 – 625
The Tribunal further notes that the applicant’s submissions regarding section 48(2)(b) would mean that the Tribunal would be making orders about conduct that preceded the filing of the application for occupational review by the applicant on 17 April 2014. The applicant argued that the conduct which may be the subject of a costs order extends back to May 2013 when Mr Nassar wrote to the applicant and raised an issue about the date of the Statement of Attainment that the applicant had provided in relation to the Bizmatrix Course.[37] When the Tribunal queried whether its jurisdiction extended to such an early point in time, Mr Erskine on behalf of the applicant argued that such an analysis was based on the clear wording of section 48(2)(b) which expressly states that the power extends to “unreasonable delay or obstruction before or while the tribunal was dealing with the application.” Mr Clynes, on behalf of the respondent, conversely argued this provision should be interpreted as consistent with a letter before action which would form part of the conduct which would be taxable under a costs order made by a court.[38]
Unreasonable delay or obstruction
[37] Applicant's outline of submissions on costs dated 15 April 2014 at [41], [56]
[38] Transcript of proceedings 8 May 2014 page 84
The Tribunal had the benefit of extensive witness statements provided by Mr Thomas and Mr Nasser. Both witnesses gave evidence and were cross examined. The Tribunal is not satisfied that the conversations and communications that occurred between Mr Nasser and Mr Thomas can be interpreted as a representation by the respondent that there would be no issue about the eligibility limb of his accreditation, as opposed to whether he was fit and proper person. The communications reveal considerable confusion about Mr Thomas’s application for accreditation which was intermingled with the investigation of the events which led to the Show Cause Notice. There was considerable confusion about whether Mr Thomas be sitting for a further ESDD Examination and, if so, whether he was obliged to pay a fee after having failed the examination twice and there was considerable confusion about the approval and content of courses for the purposes of accreditation.
In particular, the Tribunal is not satisfied that Mr Nasser told Mr Thomas that if he did the Bizmatrix Course his eligibility for accreditation would no longer be an issue or that Mr Nasser’s conduct caused the applicant to believe he was eligible for accreditation when in fact he was not.
The Tribunal is therefore not satisfied that the respondent is liable for the applicant’s costs on the basis of unreasonable delay or obstruction.
Contravention of a tribunal order
The respondent has admitted that it contravened the tribunal’s order for filing of the supplementary and second supplementary tribunal documents and the facts and contentions. There are some discrepancies in the dates which make it appear that the documents were served on the respondent prior to the date they were filed. The respondent contended that it did comply with the tribunal’s orders to provide a statement of reasons by its statement of facts and reasons dated 5 February 2014.[39] The respondent submitted that it did not fail to comply with the tribunal’s order or, if it did, the failure was not significant and did not cause the applicant to incur costs that he would not otherwise have incurred. Although the applicant alleged that it “pressed for an order requiring the respondent to file proper reasons” the respondent argued that the applicant made no approach to the respondent prior to the directions hearing on 22 January 2014 to determine whether the respondent would consent to an order which in any case was not resisted by the respondent. The briefing of counsel to attend the directions hearing on 22 January 2014 was not reasonable in the circumstances.
[39] Tribunal documents at T798 at [16] – [19]
The Tribunal notes that the respondent failed to comply with the tribunal order to provide a statement of reasons until at least 5 February 2014 and perhaps did not fully comply with the order of the tribunal until 18 March 2014 when its statement of facts and contentions was filed. It is clear that the early iterations of the statement of reasons were unsatisfactory because the tribunal required the filing and service of a further statement of reasons in its directions dated 22 January 2014.
The Tribunal further notes the respondent’s argument that it clearly stated in paragraphs 16 to 19 of its statement of facts and reasons dated 5 February 2014[40] that the applicant had not produced evidence of satisfactorily completing an approved training course that covers the performing of design and modification work on Type B gas appliances and that the applicant had on two previous occasions failed the examination which tests competence of the design and modification components and that the applicant had not re-sat the examination for a third time, noting that the decision maker had raised significant allegations of non-compliance in the Show Cause Notice.[41]
[40] Tribunal documents at T798 – T802
[41] Tribunal documents at T802
The Tribunal agrees that there is no general obligation under the gas safety legislation or at common law or a principle of natural justice which required the respondent to provide a statement of reasons for her decision under section 17 of the Code. Although the applicant placed considerable weight upon the characterisation of this application for review as an application for ‘administrative review’ it is in fact an application for ‘occupational regulation’ which means the different conventions operate about the provision of documents and reasons by the decision maker. Contrary to the assertions of the applicant, it does not flow as a matter of course in occupational regulation matter that the decision maker will disclose all documents which are considered to be relevant to the decision, nor a statement of facts setting out the material questions of fact and giving reasons for the decision.
However the tribunal will consider whether such a direction is appropriate as part of its case management strategy in particular cases involving occupational regulation. The tribunal decided that such a direction was appropriate in this case and therefore an express direction was made on 11 December 2013 requiring the respondent to provide a statement of reasons and the equivalent of the Tribunal documents within 28 days.
The Tribunal is satisfied that the respondent contravened the order made by the tribunal on 11 December 2013. However the Tribunal may make a costs order under section 48(2)(c) of the ACAT Act only if it is satisfied it is in the interests of justice to do so. Section 49 of the ACAT Act stipulates this and states that in deciding if it is the interests of justice to award costs the Tribunal must consider the following matters in section 49(2):
(a) whether the contravention was deliberate or could easily have been avoided;
(b) whether the contravention has affected the tribunal’s ability to hear the application promptly; and
(c) the importance to the community of people being able to afford to bring applications to the tribunal.
As regards criterion in section 49(2)(a), the applicant conceded that the contravention was not deliberate and the respondent has made submissions regarding the onerous nature of the collection of the material required for the statement of reasons and for the provision of the tribunal documents in January – February 2014. The failure to provide timely and adequate reasons is a significant matter and therefore the contravention of the tribunal’s order must be given weight. However the Tribunal is not satisfied that the contravention could easily have been avoided. The Tribunal is persuaded by the respondent’s argument that there was a significant volume of material that needed to be collated for the tribunal documents to be filed and served and the statement of facts and contentions (where the proper analysis of the respondent’s reasons was made clear) required detailed consideration. Certainly the statement of facts and contentions was slightly more detailed and lengthy than is customary in the tribunal. The tribunal documents were substantial and the compilation of material was occurring at a time when many of the relevant people might have been away. The respondent was required to make several supplementary disclosures involving the collation of approximately 1200 pages of material. The reasoning adopted in the final statement of reasons which was provided in the respondent’s statement of facts and contentions was perhaps more detailed than in comparable cases.
The Tribunal is not persuaded that the preparation of the statement of reasons or the compilation of the tribunal documents was unusually onerous, however that is not the test that is set out in section 49(2). The test in section 49(2)(a) requires the Tribunal to decide whether the contravention could ‘easily’ have been avoided. The Tribunal finds that it would not have been easily avoided.
The next question is whether the contravention has affected the Tribunal’s ability to hear the application promptly. The Tribunal notes the respondent’s submissions that there was no contention that the contravention of the tribunal’s order of 11 December 2013 would lead to any disturbance of the dates set down by the tribunal on 10 February 2014, for example the mediation or the hearing. The Tribunal therefore finds that the contravention did not affect the tribunal’s ability to hear the application promptly.
Finally, section 49(2)(c) points to the importance of people being able to afford to bring applications to the tribunal. This normally would have applied to the applicant. The Tribunal considers that proper performance by government officials of their responsibilities to the tribunal is a significant matter that indirectly affects the affordability of applications. The Tribunal notes that although it was raised in argument, the applicant did not press the question of the respondent’s obligations under the Model Litigant Guidelines. The respondent rejected an allegation that it had failed to comply with the Model Litigant Guidelines and in any case stated that non-compliance with a Legal Services Direction under section 12(3) of the Law Officers Act 2011 (the Law Officers Act) cannot be raised in proceeding and therefore is not a matter properly before the Tribunal. The Tribunal makes no further comment in relation to this question, except to note that it is satisfied that, having considered the affordability of applications by applicants in the tribunal, it is nevertheless not persuaded that the interests of justice require the award of costs in these proceedings.
Conclusion
This is an application for costs by the applicant alleged to be payable by the respondent because a delegate of the respondent allegedly made certain representations to the applicant which led to an unreasonable delay or obstruction before or while the tribunal was dealing with an application or, in the alternative, that the respondent is liable for the applicant’s costs because it contravened an order of the tribunal. The Tribunal has concluded that that it is not satisfied that there was conduct which amounted to unreasonable delay or obstruction by the respondent before or while the tribunal was dealing with the application. The Tribunal has found that the respondent contravened the order of the tribunal made on 11 December 2013 however the Tribunal is not satisfied that it is in the interests of justice to make an award of costs against the respondent for contravening that order.
Therefore in relation to the applicant’s application for interim and other orders dated 17 April 2014, the Tribunal orders that the application to review a decision about occupational regulation filed on 10 December 2013 is dismissed. Further, the Tribunal dismisses the application for interim and other orders regarding the applicant’s costs from May 2013 pursuant to section 48(2)(b) of the ACAT Act and also dismisses the alternative ground in the application pursuant to section 48(2)(c) of the ACAT Act.
………………………………..
General President L Crebbin
for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | OR 46/2013 |
PARTIES, APPLICANT: | Rodney Thomas |
PARTIES, RESPONDENT: | Chief Planning Executive |
COUNSEL APPEARING, APPLICANT | Mr C Erskine |
COUNSEL APPEARING, RESPONDENT | Mr R Clynes |
SOLICITORS FOR APPLICANT | Colquhoun Murphy |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Senior Member P Spender |
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