YOUNG and DEPARTMENT OF TRANSPORT
[2013] WASAT 15
•31 JANUARY 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: ROAD TRAFFIC (AUTHORISATION TO DRIVE) REGULATIONS 2008
CITATION: YOUNG and DEPARTMENT OF TRANSPORT [2013] WASAT 15
MEMBER: MR D AITKEN (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 21 JANUARY 2013
PUBLISHED : 31 JANUARY 2013
FILE NO/S: CC 1457 of 2012
BETWEEN: GEOFFREY LAWRENCE YOUNG
Applicant
AND
DEPARTMENT OF TRANSPORT
Respondent
Catchwords:
Costs Application for review of refusal to issue a motor vehicle driver's licence Application for costs order against respondent Whether respondent genuinely attempted to make a decision on its merits
Legislation:
Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 14, reg 14(2), reg 14(3), reg 42(4)
State Administrative Tribunal Act 2004 (WA), s 87
Result:
Order for costs made
Summary of Tribunal's decision:
This was an application for the review of a decision by the Department of Transport to refuse to issue a motor vehicle driver's licence to Mr Geoffrey Lawrence Young on the basis that reg 14 of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) applied. The application was made after the Department had ignored the arguments Mr Young's lawyer had submitted to it that reg 14 did not apply to Mr Young. A directions hearing was held at which the Department maintained that reg 14 applied. The matter was therefore listed for final hearing and an order was made requiring firstly the Department and then Mr Young to file and serve submissions. The Department then obtained legal advice and decided to vary its decision and allow Mr Young to proceed with his application for a driver's licence.
Mr Young applied for an order that the Department pay his legal costs and contended that the Department had not acted reasonably and, having regard to the provisions of s 87(4)(b) of the State Administrative Tribunal Act 2004 (WA), a costs order should be made against the Department. The Department contended that due to the volume of applications for a driver's licence which it processes and its limited financial resources, it is not feasible to obtain legal advice in every case where a person or their lawyer challenges the decision of the Department. The Department also contended that it had it had a genuine, albeit mistaken, belief that reg 14 of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) applied to Mr Young, and it took steps to obtain legal advice after the proceedings were commenced and that it did not act unreasonably in its handling of the matter.
The Tribunal decided that the volume of applications processed and financial resources of the Department were not relevant, nor was the fact that the Department may have genuinely held a mistaken belief that reg 14 applied to Mr Young. The issue to be considered under s 87(4)(b) of the State Administrative Tribunal Act 2004 (WA) was whether the Department had made a genuine effort to consider the substance of the arguments raised by Mr Young at each stage of its decisionmaking.
The Tribunal decided that the Department's initial response to Mr Young's application was a genuine attempt to make a decision on its merits. However, Mr Young's lawyer then wrote to the Department setting out the arguments as to why reg 14 of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) did not apply. The Tribunal decided that when the Department ignored those arguments and the lawyer's subsequent request that the Department seek legal advice it did not make a genuine attempt to make a decision on its merits.
The Tribunal decided that it was appropriate to exercise its discretion to make an order that the Department pay Mr Young's legal costs of the proceeding.
Category: B
Representation:
Counsel:
Applicant: Mr M Owens
Respondent: Mr P Busby (Acting as Agent)
Solicitors:
Applicant: Max Owens & Co
Respondent: Self-represented
Case(s) referred to in decision(s):
Aydogan and Town of Cambridge & Anor [2007] WASAT 19
Boulter and Shire of AugustaMargaret River [2006] WASAT 334
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
An oral decision was delivered on 21 January 2013. These reasons for decision have been prepared from the transcript and have been subject only to minor editing to improve the clarity of expression.
The applicant, Mr Geoffrey Lawrence Young, applied to the Tribunal under reg 42(4) of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (Regulations) for a review of the decision of the Department of Transport (Department) to refuse to process his application for a motor vehicle driver's licence. The proceeding was listed for a final hearing, but the Department changed its position prior to the date of the hearing and decided to allow Mr Young's application for a driver's licence to proceed. Mr Young has applied for an order that the Department pay his legal costs.
The issue to be determined
The issue to be determined by the Tribunal is whether an order should be made for the payment by the Department of Mr Young's legal costs, and if an order is to be made, what should the Tribunal fix as the amount of those costs.
Background
Mr Young was convicted in the Melbourne Magistrates Court on 21 October 1991 of the offence of driving with a blood alcohol content in excess of the prescribed concentration (offence). The penalty imposed was a fine of $750 and being disqualified from driving in the State of Victoria for a period of five years from that date.
The record issued by the licensing authority in Victoria, VicRoads (VicRoads record) includes a notation underneath the details of the offence and penalty, which states 'not to be relicensed except by order of a magistrate' (notation). However, the notice of order made and issued by the Melbourne Magistrates Court (the Court notice of order) does not contain the notation or make any reference to it.
On 1 February 2012, Mr Young, who is a disability pensioner who resides in Bunbury, applied to the Department for a driver's licence. On 8 May 2012, the Department sent a letter to Mr Young stating that he needed to make arrangements with the Melbourne Magistrates Court to be confirmed as being eligible to apply for a driver's licence. In that letter, the Department referred to reg 14(2) and reg 14(3) of the Regulations as the basis for the Department not being able to process Mr Young's application until it had received that confirmation.
Regulation 14(2) provides that if under the law of another jurisdiction a person is disqualified from holding or obtaining a driver's licence, that fact is recognised, and consequently the person is disqualified from holding or obtaining a driver's licence in this State.
Regulation 14(3) provides that if under the law of another jurisdiction the driver's licence that a person may hold or obtain is restricted, that fact is recognised, and consequently that restriction applies to a driver's licence held by that person in this State.
On 30 May 2012, Mr Max Owens of Max Owens & Co, Barristers & Solicitors, sent a facsimile to the Department stating that he was acting for Mr Young, and referring to the Department's letter of 8 May 2012. Mr Owens enclosed a copy of the Court notice of order and pointed out that the notation on the VicRoads record does not appear on the Court notice of order. Mr Owens argued that reg 14(2) and reg 14(3) of the Regulations do not apply for the following reasons.
Firstly, Mr Young's disqualification from holding or obtaining a driver's licence in Victoria finished in 1996. Secondly, even if the notation on the VicRoads record is correct, that merely means that there is a 'petition' to be fulfilled before he can apply for a driver's licence in Victoria. Thirdly, there is no restriction on any licence Mr Young may hold in another State, and there is therefore nothing restricting his driver's licence should he obtain one in this State.
On 10 August 2012, the Department sent a letter to Mr Owens which reiterated the position stated in its letter to Mr Young of 8 May 2012.
On 20 August 2012, Mr Owens sent a letter to the Department requesting that it obtain advice from the State Solicitors Office on the issue.
On 24 August 2012, an officer of the Department telephoned Mr Owens and again reiterated the Department's view that Mr Young would have to have the 'relicensing condition' in Victoria revoked or satisfied before his application for a driver's licence in this State could proceed.
On 7 September 2012, Mr Owens filed the application for review with the Tribunal on the basis that the position adopted by the Department constituted a refusal of Mr Young's application for a driver's licence.
The matter was listed for a directions hearing on 20 September 2012 which was attended by Mr Owens, on behalf of Mr Young, and Mr Peter Busby, on behalf of the Department. Mr Busby conceded that reg 14(3) did not apply to Mr Young, but maintained the Department's position that reg 14(2) did apply and that Mr Young could not apply for a driver's licence in this State until the 'relicensing condition' in Victoria was revoked or satisfied. The Tribunal listed the matter for a final hearing on 7 November 2012 and ordered that the Department file and serve its submissions by 11 October 2012 and that Mr Young file and serve his submissions in response by 1 November 2012.
The Department did not file any submissions.
On 22 October 2012, Mr Owens sent a letter to the Tribunal (with a copy to the Department) stating that the Department had advised him that it would now allow Mr Young to proceed to apply for a driver's licence.
On 25 October 2012, Mr Busby sent a facsimile to the Tribunal stating that the Department had decided to vary its decision to refuse the issue of a driver's licence to Mr Young and that Mr Young had consented to that change of decision. Mr Busby asked whether the hearing listed for 7 November 2012 could be vacated. However, on 29 October 2012, Mr Owens sent a letter to the Tribunal enclosing submissions that a costs order should be made in favour of Mr Young. The hearing on 7 November 2012 dealt with that issue and the Tribunal made an order which gave Mr Young liberty to apply for costs, allowed the Department to file submissions in opposition and provided that the Tribunal would determine the application on the documents.
Mr Young filed an application for costs on 8 November 2012 seeking an order for the amount of $1,625 plus GST, and the Department filed submissions in opposition on 20 November 2012.
Mr Young's submissions
Mr Owens, on behalf of Mr Young, accepts that the general rule under s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) is that each party should bear its own costs, but makes the point that the Tribunal has a very general discretion to award costs under s 87 of the Act.
Mr Owens states that he pointed out the correct position regarding Mr Young's application for a driver's licence in his facsimile to the Department on 30 May 2012, and that he subsequently suggested that the Department obtain legal advice. Mr Owens points out that the Department did not take up that suggestion until sometime in October after the proceedings had been commenced and the directions hearing had been held, and that, upon obtaining that advice, the Department agreed with the arguments he had put to the Department on 30 May 2012.
Mr Owens submits that s 87(4)(b) of the SAT Act is relevant, that the Department's position in the circumstances was not reasonable and that a costs order should be made in favour of Mr Young.
Section 87(4)(b) of the SAT Act provides that without limiting anything else that may be considered in making an order for the payment of costs, in a review proceeding, the Tribunal is to have regard to whether the decisionmaker genuinely attempted to make a decision on its merits.
The Department's submission
Mr Busby, on behalf of the Department, submits that in considering whether the Department genuinely attempted to make a decision on its merits in respect of Mr Young's application for a driver's licence, the Tribunal should have regard to the following matters:
•The Department processes over 122,000 applications for a driver's licence and 5.78 million licensing transactions per year.
•The volume of transactions and limited financial resources of the Department mean that it is not practicable or feasible for the Department to obtain legal advice in every case where a party or its solicitor disputes or questions the decision of the Department.
•The Department had a genuine, albeit mistaken, belief that the notation on the VicRoads record constituted a disqualification or restriction for the purpose of reg 14(2) and reg 14(3) of the Regulations that was recognised in this State and prevented Mr Young making an application to the Department for a driver's licence.
•The Department erroneously believed that the effect of the notation on the VicRoads record was that Mr Young was subject to an order recognised in this State that effectively disqualified him from obtaining a driver's licence except by order of a magistrate.
•The belief by the Department concerning the relevance or application of reg 14(2) and reg 14(3) of the Regulations to the facts of this case was not so manifestly absurd as to indicate that the Department did not hold, or was indifferent to, the correctness of that belief.
•The Department took steps to obtain legal advice soon after Mr Young commenced proceedings in the Tribunal and promptly acted on that advice.
The Department also contends that whilst it incorrectly applied reg 14(2) and reg 14(3) of the Regulations to Mr Young's application for a driver's licence, it did not act unreasonably in its handling of that application.
Consideration
The broad principles to be applied by the Tribunal in relation to an application for costs are well established and there is no issue between the parties regarding those principles. The issue is the application of those principles to the circumstances in this matter.
The starting proposition is that parties bear their own costs in a proceeding, and normally in review proceedings, each party should bear its own costs: see s 87(1) of the SAT Act and Aydogan and Town of Cambridge & Anor [2007] WASAT 19.
However, the Tribunal has a broad discretion to make an order for payment of all or any of the costs of another party and, in dealing with an application for costs on a matter in its review jurisdiction, the Tribunal is required to have regard to whether the decisionmaker genuinely attempted to make a decision on its merits: see s 87(2) and s 87(4)(b) of the SAT Act and Boulter and Shire of AugustaMargaret River [2006] WASAT 334.
The Macquarie Concise Dictionary (Third Edition, 1998) defines 'genuine' to mean 'real or authentic', and 'attempt' to mean 'make an effort', and 'merits' to mean 'the substantial right and wrong of a matter'.
To have regard to whether the Department genuinely attempted to make a decision on its merits, I need to examine whether the Department made a real or authentic effort to consider the substance of the issue of whether or not reg 14(2) or reg 14(3) of the Regulations prevented Mr Young from obtaining a driver's licence in this State.
I do not accept the submission of the Department that the volume of applications and transactions which it processes, and the limited financial resources which it says it has, is relevant to the issue of whether or not the Department made a genuine attempt to make a decision on its merits in respect of Mr Young's application for a driver's licence. Those matters are management and administrative issues. My task under s 87(4)(b) of the SAT Act is to consider whether or not the Department made a real or authentic effort to consider the substance of whether or not reg 14(2) or reg 14(3) of the Regulations prevented Mr Young from obtaining a driver's licence.
The issue is not whether the Department held a genuine belief that reg 14(2) or reg 14(3) of the Regulations applied to Mr Young's situation, but whether or not the Department made a genuine effort to consider the substance of that question at each stage of its decisionmaking.
I accept that the Department's initial response to Mr Young's application on 8 May 2012 was a genuine attempt to make a decision on the merits, albeit that it was based on a mistaken belief or understanding by the Department of the application of reg 14(2) and reg 14(3) of the Regulations to Mr Young's situation.
However, when Mr Owens wrote to the Department on 30 May 2012 setting out his arguments as to why reg 14(2) and reg 14(3) of the Regulations did not apply, in my view, the Department did not make an authentic effort or a genuine attempt to consider the substance or merits of the issue. The letter of 10 August 2012 from the Department to Mr Owens totally ignored the arguments raised in his facsimile of 30 May 2012, and simply reiterated the position which the Department had adopted before Mr Owens wrote to it. The letter of 20 August 2012 from Mr Owens to the Department specifically requested the Department to seek legal advice, but the Department continued to maintain its position without seeking legal advice or addressing the arguments raised by Mr Owens. The response of the Department was simply for one of its officers to telephone Mr Owens and tell him that the Department had not changed its view. In my opinion, that was not a reasonable or responsible way for the Department to deal with the matter. Mr Young had incurred legal costs at that stage to argue that reg 14(2) and reg 14(3) of the Regulations did not prevent the Department from issuing a driver's licence to him. If the Department had genuinely attempted to consider the merits or substance of those arguments, it should have obtained legal advice at that time, as Mr Owens urged it to do.
In those circumstances, the only avenue open to Mr Young to pursue his application for a driver's licence was to make the application to the Tribunal for a review of the decision of the Department.
Even when Mr Young made his application to the Tribunal, the Department did not seek legal advice on what was clearly a legal issue. At the directions hearing on 20 September 2012, Mr Busby properly conceded that reg 14(3) did not apply, but he maintained that under reg 14(2), Mr Young was disqualified from obtaining a driver's licence in this State because of the notation on the VicRoads record, notwithstanding the arguments which had been put to the Department by Mr Owens.
It was only after the Tribunal listed the proceeding for a final hearing and ordered the Department to file submissions that the Department finally sought legal advice and upon receiving that advice, the Department told Mr Owens that it accepted his arguments.
It is disappointing that once the Department received its legal advice and decided to allow Mr Young to proceed with his application for a driver's licence, the Department did not advise the Tribunal of that fact and explain that this was why the Department had not complied with the order to file submissions by 11 October 2012. It was only after Mr Owens informed the Tribunal by letter on 22 October 2012, and copied that letter to the Department, that the Department then advised the Tribunal that it had varied its decision.
Conclusion
The failure of the Department to genuinely attempt to consider the merits of Mr Owens' arguments from 30 May 2012 until the Department finally sought and received legal advice in October 2012 necessitated Mr Young having to incur the cost of Mr Owens taking instructions, preparing and filing the application with the Tribunal, and preparing for and attending the directions hearing on 20 September 2012. I have therefore decided that it is appropriate for the Tribunal to exercise its discretion to make an order that the Department pay those legal costs of Mr Young.
Since the Department opposed costs being awarded to Mr Young, I have decided that it is also appropriate to include an amount in the costs to be awarded for the cost of Mr Owens preparing and filing the application for costs and attending the final hearing.
The schedule of costs filed by Mr Owens on behalf of Mr Young, which covers the period from 30 May 2012 to 7 November 2012, contains amounts for work done prior to the application to the Tribunal being prepared and amounts for work done after that, which I do not consider to be in the nature of party/party costs. The amounts which I consider are in respect of preparing and filing the application, preparing for and attending the directions hearing, notifying the Tribunal of the change of decision by the Department, preparing and filing the application for costs, and attending the final hearing is in the vicinity of $1,000 inclusive of GST. I have therefore decided to fix the amount of $1,000 as the amount which I will order the Department to pay to Mr Young and I have decided that the Department should pay that amount within 28 days.
Order
The Tribunal therefore makes the following order:
1.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), by 18 February 2013, the respondent must pay the applicant's costs of this proceeding fixed at the amount of $1,000.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D AITKEN, MEMBER
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