Appeal - Whether grounds of appeal had any reasonable prospect of succeeding - No point of principle

1 REASONS OF THE COURT: The appellant was required by registrar's notice to attend court on 19 March 2013 to show cause why the appeal should not be dismissed on grounds that none of the grounds of appeal had any reasonable prospect of succeeding. The appellant did not make an appearance.

2 The background is that the appellant applied to the Plumbers Licensing Board (Board) for a plumbing contractor's licence. The application was dealt with by the Board on 30 January 2013. A plumbing contractor's licence was not issued. Instead, the appellant was granted a tradesperson's licence which meant that he had to work under the general direction and control of a licensed plumbing contractor.

3 The appellant then issued a notice of originating motion seeking a writ of certiorari quashing the Board's decision, and a writ of mandamus requiring the board to issue the plumbing contractor's licence.

4 The originating motion did not seek an order nisi. It sought the immediate issue of the writs. Furthermore, the grounds on which the application was made were drawn on the basis that the appellant sought a merits review in the Supreme Court. There was no allegation of want of jurisdiction or relevant error of law.

5 The matter came on for hearing before the Chief Justice on 12 February 2013. The Chief Justice dismissed the originating motion for reasons that:

(a) the State Administrative Tribunal was the only authority with jurisdiction to review the Board's decision on the merits (ts 4);

(b) the grounds were not grounds which would support the grant of prerogative relief (ts 4); and

(c) the application was in the wrong form, in that it sought the immediate issue of writs rather than an order nisi (ts 2).

6 The appellant appealed to this court against the order dismissing the originating motion.

7 Speaking generally, the grounds of appeal attempt to attribute to the Chief Justice statements he did not make, contain grounds that were not advanced before the Chief Justice, raise irrelevant matters and raise arguments about the merits of the appellant's application before the Board.

8 More particularly and by way of example, grounds 1 and 2 assert that the Chief Justice stated that the General Division of the Supreme Court did not have jurisdiction to grant prerogative relief. The Chief Justice made no such statement. Ground 3 asserts that the Chief Justice did not treat the application as an application for prerogative relief. The transcript of the hearing reveals that the Chief Justice well understood that it was an application for prerogative relief. Ground 4 contends that the Chief Justice stated that the grant of prerogative relief would 'undermine the respondent'. The Chief Justice made no such statement.

9 Other grounds raise points not raised in the application before the Chief Justice, allege error by the Board on the merits, and raise points which do not allege error by the Chief Justice.

10 None of the grounds has any reasonable prospect of succeeding. The appeal must be dismissed.

11 The respondent applied for an order for costs against the appellant. The application sought an order in the amount of $720. The respondent prepared a notice of respondent's intention and ticked the box indicating that the respondent 'does not intend to take part in the appeal and will accept any order made by the court in the appeal other than as to costs'. On 13 March 2013, the respondent received the registrar's notice to attend the court on 19 March 2013.

12 The legal officer employed by the Department of Commerce (Building Commission Division), which provides administrative support to the respondent, including legal services, deposed in an affidavit dated 19 March 2013 that he spent one hour considering the respondent's position, preparing the notice of intention, filing it with the court via facsimile and personally serving it on the respondent; one hour reviewing the materials provided by the appellant and preparing for the hearing, including preparing the respondent's application for costs and supporting affidavit; and one hour attending court on 19 March 2013.

13 Counsel claimed $180 per hour for his services. At the rate claimed, the costs for the three hours work to which he deposed would be $540, although in the schedule to the minute of proposed orders he claimed for four hours work, totalling $720.

14 Even though the claimed hourly rate is well below the maximum hourly rate of $319 per hour allowed for a junior practitioner under the Legal Practitioners (Supreme Court) (Contentious Business) Costs Determination 2012 (the scale), costs should be determined by reference to the hourly rate claimed and the evidence as to the actual time spent. Having regard to those matters, there should be an order that the appellant pay the respondent's costs of the appeal fixed at $540 and such an order is made accordingly.