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 622

Shi 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

1. The application for review of a decision about occupational regulation is

dismissed.

2. 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

2

REASONS FOR DECISION

1. 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.

2. 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

3. 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.

4. 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).

5. 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:

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

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

6. 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

7. 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

3 Tribunal documents at T9 4 Tribunal documents at T12 5 Tribunal documents at T12 6 Tribunal documents at T12 – T 22 7 Applicant's submissions dated 15 April 2014 at [5]

4

8. 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.

9. 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.

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Legislative framework

ACAT’s power to award costs

10. The relevant provisions of the ACAT act which deal with costs are as follows:

48 Costs 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

49 Costs 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.

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11. 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 Authority8 (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

12. 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

13. 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.

8 [2013] ACTSC 96 9 Applicant's outline of submission on costs 15 April 2014 at [12] – [15]

7

14. 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.

15. 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.

16. 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

17. 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

10 Probably about 5 to 6 years - respondent's facts and contentions dated 18 March 2014 at [31]

8

this examination on two occasions, first on 3 November 2011 and again on

27 November 2012, but failed both examinations.

The applicant’s submissions

18. 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

Course13

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

19. 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

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 15 Applicant's outline of submissions on costs dated 15 April 2014 at [20]

9

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

20. 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.

21. 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.

16 Applicant's outline of submissions on costs dated 15 April 2014 at [27] 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] 19 Witness statement of Rodney Thomas dated 11 April 2014 at [38]

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22. 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.

23. 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.

24. 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.

25. 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.

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]

11

The respondent’s submissions

26. 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 accreditation22

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 201324

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

27. 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.

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]

12

28. 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

29. 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

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] 29 Respondent's outline of submissions on costs dated 30 April 2014 at [32] 30 Tribunal document at T802 at [16] – [19]

13

30. 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. 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. 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 Quinn35

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

31 (1997) 186 CLR 622 at pages 624 - 625 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] 34 Transcript of proceedings 8 May 2014 page 93, lines 14 – 19 35 (1997) 186 CLR 622

14

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

33. 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

34. 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

36 (1997) 186 CLR 622 at 624 – 625 37 Applicant's outline of submissions on costs dated 15 April 2014 at [41], [56] 38 Transcript of proceedings 8 May 2014 page 84

15

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.

35. 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.

36. 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

37. 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.

38. 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

39 Tribunal documents at T798 at [16] – [19]

16

filing and service of a further statement of reasons in its directions dated

22 January 2014.

39. 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

201440

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. 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.

41. 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.

40 Tribunal documents at T798 – T802 41 Tribunal documents at T802

17

42. 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.

43. 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.

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44. 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.

45. 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.

46. 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

47. 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

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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.

48. 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

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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