//
[2021] SACAT 100
General information, not legal advice.
SA Civil and Administrative Tribunal
2021-09-29
Original judgment source is linked above.
Clarke v Veterinary Surgeons Board of South Australia (No 2) [2021] SACAT 100
The applicant, Dr Clarke, sought internal review of a Tribunal decision made on 9 November 2020. The Tribunal affirmed the original decision on internal review and the respondent, the Veterinary Surgeons Board of South Australia, sought its costs of the internal review. The Tribunal received written submissions on costs from both parties.
The applicant submitted that she was dissatisfied with the proceedings and asserted her overall conduct had minimal detrimental effect. The respondent submitted that the applicant had conducted herself in a manner inconsistent with the objectives of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act) such that it should be awarded costs.
Administrative Tribunals - Procedure - Statutory Powers - Order for Costs - Presumption that parties are to bear their own costs - Effect of party conduct on entitlement to costs
South Australian Civil and Administrative Tribunal Rules 2014 rr 4, 27
Re HWS [2018] SACAT 39
South Australian Housing Trust v Brady & Milera [2018] SACAT 2
Tronnolone v Edwards and Bryan [2016] SACAT 27
Made under the South Australian Civil and Administrative Tribunal Act 2013 s 57
1. In a decision made on 16 August 2021 (in matter 2020/SIR000349) the Tribunal affirmed an earlier decision of the Tribunal (the original order, 2020/SA001313) following an internal review of that decision.
2. In the original order of 9 November 2020, the Tribunal ordered (in addition to the order addressing the substantive issues in the matter) that Dr Clarke, the respondent in that matter, pay the costs of the Veterinary Surgeons Board of South Australia (the Board), the successful applicant in that matter. Dr Clarke then applied for an internal review of the original decision, and the original decision was affirmed on internal review.
3. On 23 December 2020 the Tribunal placed a stay on the orders of 9 November 2020, including in relation to the order that Dr Clarke pay the Board's costs. On 24 August 2021 this stay order was revoked by the Tribunal.
4. On 2 September 2021 the Board made an application to the Tribunal for Dr Clarke to pay its costs relating to the internal review.
5. On 3 September 2021 the Tribunal directed that the parties provide written submissions concerning the application for costs, and that the application would then be dealt with on the basis of those written submissions. A written submission was provided by Dr Clarke on 13 September 2021, and from the Board on 20 September 2021, and I take these into account.
6. There are no provisions in the Veterinary Practice Act 2003 empowering the Tribunal to award costs in relation to proceedings taken pursuant to that Act. This application accordingly must be addressed pursuant to the provisions in the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act) concerning costs, namely ss 57 and 58 of the SACAT Act. Those provisions make it clear that the conventional position, that costs follow the event (that is, that a successful litigant is entitled to recover their costs from the other party), is not the starting point in relation to matters heard and determined by the Tribunal.
7. Rather, s 57 of the SACAT Act provides that parties are to bear their own costs, unless the Tribunal orders otherwise or there is some other legislative provision governing the award of costs in the particular matter. Section 57(1) of the SACAT Act provides as follows:
Unless otherwise specified in the Act, a relevant Act, or an order of the Tribunal under this section, parties bear their own costs in any proceedings before the Tribunal.
8. In considering the principles to be applied to this application for costs I have reference to two earlier decisions of the Tribunal, namely South Australian Housing Trust v Brady & Milera [2018] SACAT 2 ('Brady & Milera'), and Re HWS [2018] SACAT 39. These decisions consider in detail the general principles concerning the award of costs under the SACAT Act, and I adopt the analyses in those decisions.
General principles concerning the award of costs by the Tribunal
9. Section 57(2) of the SACAT Act provides that the Tribunal may make an order for costs against a party if the Tribunal thinks it is appropriate to do so, after taking into account the following factors:
(a) the main objectives of the Act that are relevant to simplifying proceedings and issues before the Tribunal and to keeping costs to parties in proceedings before the Tribunal to a minimum insofar as it is just and appropriate; and
(b) the need to ensure that proceedings are fair and that parties are not disadvantaged by proceedings that have little or no merit; and
(c) provisions made by the rules; and
(d) any other matter considered relevant by the Tribunal.
In Brady & Milera President Hughes emphasised that these factors are all subservient to the overarching proposition set out in s 57(1) of the SACAT Act for the operation of the Tribunal, that parties bear their own costs.
10. The main objectives of the Tribunal are set out in s 8 of the SACAT Act, and these objectives must inform any order for costs made by the Tribunal, and consideration must be given to how any costs order reflects or furthers these objectives.
11. President Hughes in Brady & Milera points out that the need to ensure proceedings are fair and parties are not disadvantaged by proceedings that have little or no merit, recognises that legal proceedings can be used as a tool by one party to achieve ends other than to resolve a legal dispute.
12. In Tronnolone v Edwards and Bryan [2016] SACAT 27 Justice Parker (then President of the Tribunal) made the following comment on the operation and application of s 57 of the SACAT Act:
The clear effect of s 57 of the SACAT Act is that SACAT is generally a no costs jurisdiction, and costs will rarely be awarded. In particular, s 57(2)(b) indicates that costs should only be awarded where a party has been disadvantaged by proceedings that have little or no merit. I do not consider that to be the situation with the present matter. The proceedings were no more or less meritorious than most of the cases that come before the Tribunal. There was clearly a dispute that required adjudication. [at para. 35].
13. Rule 27 of the South Australian Civil and Administrative Tribunal Rules 2014 (the SACAT Rules) addresses the details required in making an application for costs, but does not add to the factors the Tribunal needs to consider in relation to an application for costs. Rule 4 of the SACAT Rules requires that Tribunal proceedings be conducted efficiently and in a manner proportionate to the matter in dispute. Proportionality includes ensuring that legal and other costs incurred are reasonable and proportionate to the importance and complexity of the matter in dispute, and parties, including legal practitioners representing parties, must make their best endeavours to facilitate the just, quick and cheap resolution of the real issues in proceedings before the Tribunal.
14. Section 57(3) of the SACAT Act provides that where the Tribunal dismisses or strikes out an application in prescribed circumstances the Tribunal should make an order for costs. However this matter was not dismissed in the circumstances prescribed in the Act, and there was no application for it to be struck out.
15. Section 58 of the SACAT Act sets out some additional considerations relevant to a costs order. This matter arose in the Tribunal's review jurisdiction, and accordingly s 58(2), which requires the Tribunal in those circumstances to have regard to whether the party genuinely attempted to enable and assist the decision-maker to make a decision on its merits, and whether the party (being the decision-maker) genuinely attempted to make a decision on its merits, should also be considered_._
16. Pursuant to s 57(2)(d) of the SACAT Act, the Tribunal may also take into account any other relevant matter, and this gives the Tribunal a wide discretion to consider a wide range of facts, circumstances and conduct in determining if it is appropriate to make an order for costs.
Application of these principles to the present application
17. Section 57(1) is very clear concerning the default position of the Tribunal: parties bear their own cost in relation to proceedings before the Tribunal.
18. Section 57 permits the Tribunal to make orders as to costs, but any order for costs must be consistent with and promote the purposes of the SACAT Act. The main objectives of the Tribunal are set out in s 8 of the SACAT Act, and the most significant in terms of costs orders are to be found in the following provisions:
(b) to be accessible by being easy ... to access, and to be responsive to parties...
(d) to keep costs to parties involved in proceedings before the Tribunal to a minimum insofar as is just and appropriate.
19. Dr Clarke in her submissions essentially raised her general disgruntlement concerning the overall proceedings in the Tribunal, namely disciplinary proceedings arising from allegations concerning her conduct as a veterinary surgeon. Dr Clarke refers to the "highly challenging profession" of veterinary science practice, and asserts that the dog in question "suffered Zero ill effects" as a consequence of her failure to provide the dog's treatment records, and appears (in these submissions) to regard the treatment of the dog as a trivial matter, stating the dog "was already elderly at the time", and was by now "most probably ... replaced ... with a beloved new pet".
20. Dr Clarke also refers to the proceedings against her by the Board as having had a significant effect on her both personally and professionally, and asserts that "the vast majority of members of my profession in South Australia do not feel in any way supported by the Veterinary Surgeons Board", but then states "I personally am not and never have been a member of this group". She characterises advice to her from the Board that this application for costs would be made, as an expression by the Board of its intention "to strip me bear [sic] financially after having ruined me psychologically". Dr Clarke's final submission was that any order for her to pay costs to the Board "will be used to persecute others, like me, who are just wanting to make an honest living under very challenging circumstances".
21. The Board submitted that Dr Clarke had conducted these proceedings in a manner inconsistent with the objectives of the Tribunal with respect to simplifying proceedings and keeping costs to a minimum (see s 57(2)(a) of the SACAT Act), and in particular referred to the fact that Dr Clarke was not represented before the Tribunal until 17 March 2021 despite urgings from the Tribunal to seek legal representation. Having obtained legal representation she then failed to provide her amended grounds for review until June 2021; when she did so the amended grounds bore little resemblance to the original grounds for review filed on 15 December 2021; and two of those grounds of appeal were abandoned at the hearing of the matter.
22. The Board submits that these delays and changes exposed it to significant additional work and costs, as the Board was required to file a comprehensive outline of argument addressing Dr Clarke's amended grounds of review addressing all grounds of appeal raised by Dr Clarke, and then two of the four grounds were abandoned at the hearing.
23. In addition, the Board notes that the time, complexity and costs of the review proceedings cannot be reconciled with the decision under review, which imposed a reprimand and a $1000 fine on Dr Clarke.
24. The Board also submitted that the proceedings in relation to the review had little or no merit. The Board refers to the comments of the Tribunal at first instance that Dr Clarke had engaged in "regrettable conduct" with respect to a matter she could easily have addressed, and had exhibited at the original hearing a lack of understanding of her professional obligations in her attitude to the Board and the Code of Conduct, and had exhibited no remorse in relation to her conduct. In addition, the Board submitted that the two grounds of appeal abandoned at the review hearing were without any merit and bound to fail; and the two grounds pursued at the review hearing were of little merit and the decision of the Tribunal at first instance was upheld as the correct and preferable decision.
25. With reference to s 57(2)(d) of the SACAT Act, which permits the Tribunal to have regard to any other matter it considers relevant in determining the question of costs, the Board submitted that it is funded by fees and charges paid by members of the profession and proceedings are brought when necessary to protect animal health, safety and welfare, and the public interest in achieving and maintaining professional standards and conduct in the provision of veterinary treatment in South Australia. It was submitted it is in the public interest that the broader profession does not bear the costs of the review proceedings.
26. I accept Dr Clarke's assertion that the practice of a veterinary surgeon is stressful and challenging, and that these proceedings have had a significant personal and professional impact on her. However, these are not the only considerations I should take into account. Her view in this submission that the processes before the Tribunal represent a "persecution" of her by the Board is not helpful.
27. It is my view that costs should be awarded in favour of the Board in this matter.
28. Although my consideration of the application for costs commences from the default position of the Tribunal that parties bear their own cost in relation to proceedings before the Tribunal, I must also take into consideration any particular features of this matter which remove it from this default position. The particular features I note in this matter are the following:
I shall deal with each of these considerations in turn.
29. Section 57 of the SACAT Act reflects the nature of the general jurisdictions of the Tribunal. Essentially the Tribunal deals with applications relating to housing, where in relative terms the claims are low, and need to be addressed quickly and at minimal cost to both parties, so it is appropriate parties bear their own costs; it exercises protective jurisdictions, including mental health, guardianship, and administration matters, where it would be inappropriate for parties to bear costs on a "win/lose" basis, since this is not the nature of the process before the Tribunal; and in its review jurisdiction, where the Tribunal principally hears applications concerning whether a decision of a government agency is "correct or preferable", and the Tribunal's role is generally in the nature of administrative review, rather than the resolution of an inter partes dispute between individuals.
30. However, when the Tribunal exercises its disciplinary jurisdiction in considering a complaint such as that of the Board against Dr Clarke, the matter before the Tribunal is much more akin to an inter partes proceeding, that is, a dispute specifically between parties with interests to assert, in this case, between the Board and Dr Clarke. In inter partes proceedings the award of costs is usual, on the basis that the unsuccessful party bears the costs of the successful party, as well as their own. The costs are either agreed or assessed by a court or tribunal.
31. In my view this consideration is relevant to the matter presently before the Tribunal, as a relevant consideration pursuant to s 57(2)(d) of the SACAT Act.
32. Section 57(2) of the SACAT Act indicates that one of the considerations the Tribunal should take into account is how the Tribunal is enabled by the parties to achieve its objectives, including (in s 57(2)(a)), simplifying the proceedings and issues before the Tribunal, and keeping costs to a minimum. I am of the view that Dr Clarke did not conduct her role in the review proceedings in a manner that assisted in keeping the costs to a minimum or simplifying the proceedings and issues in her matter. After very significant delay she very substantially amended her grounds of appeal, so the new grounds bore little resemblance to the original filed grounds, and then on the morning of the review hearing she abandoned two out of the four grounds of appeal. The delay, the extensive nature of the amendment, and then the abandonment of two grounds of review at the last moment, unnecessarily exposed the Board to considerable additional cost, as it was obliged to prepare its case on the basis of the various grounds notified by Dr Clarke, many of which were then abandoned. This is not consistent with identifying the issues clearly and keeping costs to a minimum, and in my view Dr Clarke's unhelpful conduct in relation to these matters is relevant to the consideration of whether costs should be awarded against her.
33. I note that the Board is funded, for all its activities, by its members, the veterinary profession of South Australia. The Board is not a public government funded agency. The Board exercises statutory functions including its disciplinary role for the benefit of all members and the general public, and in doing so expends the funding provided by its members. In my view it is not appropriate that the cost of the review of the disciplinary action in relation to Dr Clarke should be borne by the members of the veterinary profession, especially given it was unsuccessful. This was a review initiated by Dr Clarke; she abandoned two of the four grounds of her notified review; and was comprehensively unsuccessful in relation to the other two grounds. It is, in my view, appropriate and in the public interest, that she, not her colleagues, bear the cost of her own choices and actions.
34. This is not to suggest that because an application for review is unsuccessful that is sufficient basis in itself for costs to be awarded against the unsuccessful party: but where the application to review is essentially part of an inter partes action, and the review has been comprehensively dismissed, the consideration takes on relevance. In this matter there are a number of other relevant considerations I have identified that in my view direct the conclusion that costs should be awarded against Dr Clarke.
35. Dr Clarke did not provide any substantive or relevant submission concerning the award of costs. Her submission reflected the position and sentiments she presented at the original hearing of this matter: implying that the Board was persecuting her, that the particular issue concerning the treatment of the dog was trivial, and that her actions did not cause any harm to the dog. Those views (as the Tribunal commented in its reasons in the original decision) indicate that Dr Clarke has a lack of understanding of her professional obligations, and a lack of remorse. In my view these continued assertions do not reflect well on Dr Clarke's professionalism. I also note that exposure of an animal to harm, as the failure to provide treatment records to the new veterinary doctor may do, is as serious a consideration as whether actual harm was caused, when considering the actions of the veterinary surgeon. This is a consideration relevant to the award of costs in this matter because it indicates Dr Clarke was prepared to proceed with the review regardless of any reflection on its merits, and suggests she did not act in this matter in good faith.
36. In this context I also refer to r 4 of the SACAT Rules, which requires that Tribunal proceedings be conducted efficiently and in a manner proportionate to the matter in dispute. Proportionality includes ensuring that costs incurred are reasonable and proportionate to the importance and complexity of the matter in dispute, and parties must make their best endeavours to facilitate the just, quick and economical resolution of the real issues in proceedings. It is my view the pursuit of this matter by Dr Clarke took on disproportionate dimensions: the disciplinary sanction imposed on Dr Clarke was, in relative terms, minimal, constituted by a reprimand and a $1000 fine; and I am satisfied Dr Clarke's actions significantly extended the costs of hearing the matter.
37. The possible award of costs on an unsuccessful party will always represent a burden to access to the Tribunal, and access is a primary objective of the SACAT Act. The Tribunal in considering whether to award costs must take into account the impact the possibility of a costs order may have on the objective of accessibility. This is equally the case in relation to the exercise of the Tribunal's review jurisdiction. Nevertheless, the Tribunal must weigh the issue of access against the issues of fairness and public interest, and the pursuit of the Tribunal's other objectives.
38. In Brady & Milera President Hughes referred to the need to ensure proceedings are fair and parties are not disadvantaged by proceedings that have little or no merit. Costs may be awarded where appropriate to redress such unfairness where it has arisen. In my view none of the grounds of review filed by Dr Clarke in either December 2020 or June 2021 were of significant merit, and indeed, a number of those contained in the December 2020 application to review were discarded in the June amendments, and of the 4 grounds filed in June 2021 two were abandoned on the morning of the hearing. In my view Dr Clarke's actions exposed the Board to significant unfairness in the review proceedings. In Tronnolone v Edwards and Bryan, then President Parker commented that "section 57(2)(b) indicates that costs should only be awarded where a party has been disadvantaged by proceedings that have little or no merit". Lack of merit is not measured, in the Tribunal, merely by lack of success where there is a legitimate dispute requiring adjudication: however, this matter has raised the additional considerations which I have addressed, including the late withdrawal of half of the review grounds (a concession they were of no merit).
39. Finally, additional considerations are relevant to costs in the review jurisdiction, as set out in s 58(2) of the SACAT Act, which requires the Tribunal to have regard to "whether the party genuinely attempted to enable and assist the decision-maker to make a decision on its merits". Dr Clarke did not acknowledge the observations and findings set out in the Tribunal's original order and the processes she undertook in relation to the review by the Tribunal did not enable and assist either the Board or the Tribunal to make a decision on the merits.
40. Having considered these matters, I am satisfied that Dr Clarke should pay the Board's costs for the internal review in this matter.
41. The Board indicated that in the event costs were ordered and not by way of a lump sum, it would apply r 101(1)(a) of the SACAT Rules, that 75% of the Supreme Court Scale would be applied.
42. Pursuant to s 57(2) of the SACAT Act, I order the applicant in the review proceedings, Dr Clarke, to pay the Respondent Board's costs of and incidental to the proceedings as agreed, or, failing agreement, as determined by the Tribunal.
Clarke
Veterinary Surgeons Board of South Australia