Doyle v Registrar, NSW Architects Registration Board (No 2) [2006] NSWADT 251

CITATION: Doyle v Registrar, NSW Architects Registration Board (No 2) [2006] NSWADT 251

DIVISION: General Division

APPLICANT PARTIES: John Hamilton Doyle RESPONDENT Registrar, NSW Architects Registration Board

FILE NUMBER: 043410

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 06/02/2006

DATE OF DECISION: 08/22/2006

BEFORE: O'Connor K - DCJ (President); Chapman M - Non Judicial Member; Jose J - Non Judicial Member

CATCHWORDS: Costs

MATTER FOR DECISION: Costs

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Architects Act 1921 Architects Act 2003 Legal Profession Act 2004

Doyle v Registrar, NSW Architects Registration Board [2006] NSWADT 154 CASES CITED: Brooks Maher v Cheung [2001] NSWADT 18 Murphy v David Jones Limited [2002] NSWADTAP 42 Charteris v General Manager, Leichhardt Municipal Council (No. 2) (GD) [2001] NSWADTAP 39

APPLICANT P Bruckner of counsel instructed by De Finegan, Hartmann and Associates REPRESENTATION: RESPONDENT P Griffin of counsel instructed by K Doyle, NSW Architects Registration Board

ORDERS: 1. That the applicant pay the respondent's reasonable costs of attendance on 17 August 2005 and 11 October 2005; and any costs reasonably incurred in respect of the vacated date, 22 August 2005.

REASONS FOR DECISION 1 In a decision delivered 25 May 2006 the Tribunal dealt with an application for review of disciplinary orders made by the Board of Architects of New South Wales: see Doyle v Registrar, NSW Architects Registration Board [2006] NSWADT 154. The respondent in these proceedings is the successor to the Registrar of the Board of Architects. 2 That Board derived its powers from s 17 of the Architects Act 1921 (the 1921 Act) (since repealed), and the applicant derived his right to apply for review from s 21 of that Act. 3 The Tribunal affirmed the Board's decision in the following terms: 1. Finding affirmed that applicant guilty of misconduct in a professional respect. 2. Disciplinary orders made only in respect of contravention of s 17(2)(g). 3. The applicant is reprimanded; and fined 2 penalty units (the maximum penalty). 4 Point 2 represented a variation of the decision reached by the Board insofar as it had imposed penalties in relation to contraventions of both s 17(2)(g) and s 17(2)(i). The Tribunal found the contravention of s 17(2)(i) proven, but considered it a minor matter not warranting a disciplinary order. On the other hand, we saw the contravention of s 17(2)(g) as serious, and that the disciplinary orders were appropriate for the misconduct identified. 5 The present decision deals with the respondent's application for costs of some events that occurred in the course of the proceedings. There is no general application for costs. The events which are the subject of the application all occurred after the principal hearing, which took place on 6 July 2005. 6 The respondent complains, essentially, that her office was put to extra effort and cost by reason of conduct of the applicant subsequent to what she had understood to be the final event in the matter. The three events were: (a) 17 August 2005 – a directions hearing (b) 22 August 2005 – vacated date (c) 11 October 2005 – attendance at a directions hearing. 7 In the course of the hearing on 6 July 2005, the question of whether the applicant had misrepresented his status by describing himself in his letterhead as 'ARAIA' (i.e. Associate of the Royal Australian Institute of Architects) was in issue (the basis for the charge under s 17(2)(i)). The applicant submitted that he had a constitutional right to use that professional description based on the terms of the constitution of the RAIA as it applied to him at the time he first was awarded the status. The applicant's counsel sought the leave of the Tribunal to put on additional evidence. The respondent saw herself as disadvantaged and exposed to cost by that course. Her contention was simple: that had the directions given by the Tribunal in advance of the hearing been complied with properly, the applicant should have put on his case including this argument, and evidence in support. 8 The Tribunal, over the objection of the respondent, allowed the applicant to put on additional evidence and submissions going to this point. The applicant was given 21 days, with the respondent given 21 days to reply. Liberty to apply was granted to either party on 2 days' notice. The Registrar was directed to fix a further day for hearing to deal with this matter, of not more than half a day. 9 The respondent exercised the leave to apply, and a directions hearing was convened before the President on 17 August 2005. The respondent expressed concern that no evidence or submissions had been filed by the applicant, and the date fixed by Registry for the further hearing – only 5 days' hence – 22 August 2005 would be wasted. 10 The applicant's counsel gave an explanation for his client's delay. In essence it had proved more difficult than first expected to trace the administrative history of the RAIA's constitution, in particular the provisions that applied as at 1966. 11 The date of 22 August 2005 was vacated. The applicant was directed to issue a summons to the RAIA. The return of summons was to be listed before the President, with any further directions to be made at that time. The question of the costs of today and any costs relating to the vacation of the matter were reserved. 12 There proved to be no need to hold a hearing on the return of the summons. The new directions date was fixed at 11 October 2005. On that day, counsel for both parties appeared. The position was that the applicant had just complied on that day with the direction to put on any further evidence and submissions. The respondent needed additional time, and the parties by consent agreed that the respondent file any submissions or evidence in reply by 8 November 2005. The respondent applied for costs of the day. The submissions were filed on 25 November 2005. There was no further hearing. 13 The additional evidence produced by the applicant proved to be of assistance to the Tribunal. The internet search information (showing widespread use among architects of the now inaccurate designation, ARAIA) proved to be influential in the Tribunal's conclusion that the misrepresentation as to status was minor in the circumstances. On the other hand, the constitutional history information did not cause the Tribunal to doubt the conclusion of the Board's committee as to the interpretation to be given to the RAIA's constitution (that the applicant's membership ceased while he was unfinancial). 14 The Tribunal's order-making powers in relation to costs are dealt with in s 88 of the Administrative Decisions Tribunal Act 1997 (the ADT Act), s 88: ' 88 Costs (1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.' 15 There was some confusion in the submissions of both parties as to the statutory provisions that apply to the present costs application. 16 The Tribunal has two business streams: applications for review of reviewable decisions and applications for original decisions (see ADT Act, ss 36-38, Part 4 and Part 5). The 1921 Act is silent on the question of the power of the Tribunal to award costs in proceedings arising before the Tribunal under that Act. The decision under notice in this case, that of the Board of Architects, was a reviewable decision within the meaning of the ADT Act: see ss 8, 38. Accordingly it is not surprising that the 1921 Act contains no reference to the Tribunal's power to award costs. This is because the general power given by s 88(1) is not qualified in the case of applications for review of reviewable decisions, in contrast to the position governing applications for original decisions (see s 88(3)). 17 The applicant noted that the new Architects Act 2003, s 48 provides: 'The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application under this Division.' 18 This was the first point in an argument that the Tribunal should apply a costs-follow-the-event rule. This provision is of no relevance as the present proceedings were brought under the 1921 Act. Moreover, the new provision is necessitated because it has as its context a different procedure – an application for an original decision. Section 46 of the new Act permits the new Board to apply to the Tribunal for a disciplinary finding. The Tribunal now has an original jurisdiction under the new Act, whereas under the 1921 Act it only had a review jurisdiction. 19 For an award of costs to be made in the present case, the Tribunal must be satisfied under s 88(1) of the ADT Act that there are 'special circumstances' justifying that course. 20 In our view, some recompense for the additional costs should be made to the Board. It, reasonably we think, thought that it would be closing its case on 6 July 2005. Instead, because of the late defence mounted by the applicant, the respondent was put to the extra costs entailed by the attendances listed above, and in responding to and making further submissions. The applicant had had considerable time between the date of the adverse decision and the hearing in the Tribunal to put on a full case. 21 Had the case subsequently mounted been put on it a timely way, there would have been some extra effort required of the Board to meet it. As we understand the position, it would not have made any claim in that regard as its general stance was that it would not be applying for the costs of the proceedings to the extent that they were conducted in an orderly way. 22 It has been recognised frequently in Tribunal decisions in other classes of matter that an order under s 88 is warranted to recompense the innocent party for events of the kind that occurred in this case. In Brooks Maher v Cheung [2001] NSWADT 18 at [14], the Tribunal stated that: 'where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications, an award of costs may be warranted.'. 23 This statement was cited with approval in Murphy v David Jones Limited [2002] NSWADTAP 42 at [15] and Charteris v General Manager, Leichhardt Municipal Council (No. 2) (GD) [2001] NSWADTAP 39 at [14]. In Charteris, the Appeal Panel stated that: 'Party conduct which results in avoidable costs being incurred by the other party is a special circumstance that may give rise to a costs award against the non-compliant party.' 24 This principle is now reflected also in the Practice Note 12 reissued in May 2005 by the Tribunal. It contains a non-exhaustive list of examples of special circumstances that might justify a costs order, including: • whether a party has conducted the proceeding in a way that disadvantaged another party to the proceeding by conduct such as - (i) failing to comply with an order or direction of the Tribunal without reasonable excuse; (ii) failing to comply with this Act, the regulations, the rules or an enabling enactment; (iii) asking for an adjournment as a result of (i) or (ii); (iv) causing an adjournment; • whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding. 25 In our view there should be an order that the applicant pay the respondent's reasonable costs of attendance on 17 August 2005 and 11 October 2005. In the case of the 17 August 2005 attendance, we note that the matters raised could easily have been dealt with by a telephone conference, so as to minimise the costs of attendance. Costs should be assessed on the basis of a telephone attendance. 26 Our understanding of the respondent's application is that it does not extend to a claim in respect of the further submissions. If we are wrong, we are of the view that there should be no claim for costs in respect of the preparation of submissions, as these would have been provided within the orderly stage of the proceedings had the point been notified in a timely way by the applicant. 27 As to the vacated date, 22 August 2005, these costs should be paid if any were reasonably incurred by the Board. 28 The order below should be read in light of the above comments. Order 1. That the applicant pay the respondent's reasonable costs of attendance on 17 August 2005 and 11 October 2005; and any costs reasonably incurred in respect of the vacated date, 22 August 2005.