The applicant applied for costs pursuant to section 57(2) of the South Australian Civil and Administrative Tribunal Act 2013.

The applicant requested the Tribunal make an order that the Council pay his vet costs, dog behaviourist costs, travel costs and costs of his time and lost wages in dealing with the proceedings.

The applicant submitted that the respondent had not had grounds on which to issue the control order to begin with and that the Council had dragged out the proceedings.

The Tribunal considered its powers to award costs in light of the relevant factors and the presumption that parties are to bear their own costs.

• the Council had sufficient evidence on which to conclude that the dog was responsible for an attack on livestock;
• the Council had a responsibility to take appropriate action;
• the Council had genuinely attempted to make a decision on its merits;
• the Council had legitimate reasons subsequently to change its position.

1. The applicant's application for costs is dismissed

1. As the respondent has revoked the decision under review, the review proceedings will be closed without further order.

Administrative tribunals - Procedure - Jurisdiction, powers and generally - Statutory powers - Order for costs - Presumption that parties are to bear their own costs - Relevant factors for determining costs - Entitlement to costs where proceedings withdrawn by applicant - Effect of party conduct on entitlement to costs

South Australian Civil and Administrative Tribunal Act 2013 ss 8, 57, 58

South Australian Civil and Administrative Tribunal Rules 2014 r 27

South Australian Housing Trust v Brady & Milera [2018] SACAT 2

1. I refer to my Direction in this matter on 14 April 2020.
2. Mr Stratford's application for costs was heard on 12 May 2020.
3. I have considered all documentary material lodged throughout these proceedings, and the parties submissions made on 12 May 2020.
4. For the reasons set out below, Mr Stratford's application for costs is dismissed.

1. These proceedings initially sought review of a Destruction Order issued by the Council in October 2019 in respect of Mr Stratford's dog Lucy.
2. When the Council revoked that order and issued a Control (Dangerous Dog) Order, the Tribunal allowed Mr Stratford's application to be amended accordingly.
3. The decision under review, therefore, was the decision to issue the Control (Dangerous Dog) Order dated 26 February 2020.
4. After the conference on 4 March 2020, the Council proposed a Control (Menacing Dog) Order, on conditions, and sought Mr Stratford's agreement. He did not agree.
5. The Council subsequently revoked the Control (Dangerous Dog) Order and issued a formal warning, for reasons set out in a letter dated 7 April 2020 from the Council's solicitor to Mr Stratford.
6. The revocation of the decision under review concludes the proceedings, except for the costs application.

(d) payment for his own time in these proceedings; and

(e) payment of wages to cover his absences from work to deal with these proceedings.

1. Mr Stratford quantified the amounts claimed in an email dated 10 April 2020, which includes the following statements:

I have had to pay Vets on Eyre, Sussanne Eckert (dog behaviorist), Rex Air flights and wages to cover my absence from my work. These costs have come to $2088.06.

I also have been forced to attend interviews, do countless emails, drive to Lincoln to pick up Lucy, phone conferences with SACAT, phone calls to lawyer and research on council evidence, plus travel to Adelaide for hearing. I have been conservative with my time which comes to 24 hours, which at the hourly rate recommended by Trevor Smith at the District Council of $65 per hour comes to $1560.

...

Since the council has no case on Lucy I am requesting that SACAT place an order on the council to reimburse me $3648.06.

1. The vet costs and behaviourist costs were not incurred in these proceedings, but were incurred in response to the Council seizing Lucy and her proposed destruction.
2. Mr Stratford agreed to pay the vet costs that had been incurred by the Council, as one of the conditions of the Council agreeing to release Lucy and her pups to him until the pups were weaned. This agreement is set out in email correspondence between his solicitor (at the time) and the Council's solicitor dated 29 October 2019.
3. Although Mr Stratford agreed to pay the vet costs (and did pay them), he says he had no choice if Lucy and her pups were to be released, and he says that the Council had no grounds for seizing Lucy to start with.
4. Mr Stratford incurred the behaviourist costs for a behavioural assessment of Lucy in response to her proposed destruction.
5. The behavioural assessment evidently played a part in the Council's decision to revoke the Destruction Order, as set out in the Council's letters dated 11 and 26 February 2020 to Mr Stratford. Nevertheless, as those letters make clear, the Council accepted the behavioural assessment only in part. The Council remained satisfied that Lucy had attacked sheep in June 2019.
6. As with the vet costs, Mr Stratford says that he should never have had to incur the cost of the behavioural assessment, because the Council had no grounds for any order against Lucy.
7. The other costs Mr Stratford claims are related to the proceedings as such.
8. Typically, a party's costs of proceedings are representation costs, i.e. costs incurred to have legal representation. Mr Stratford has not claimed any such costs. (If he had claimed such costs, I would have rejected the claim, for the same reasons set out in this determination). Instead, he claims for his own time in dealing with the proceedings and for his travel costs, and for wages to cover his absences from work.

1. The Tribunal's power to order one party to proceedings to pay the costs of another party to the proceedings is set out in ss 57-58 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act).
2. The starting point is that in any proceedings before the Tribunal, parties bear their own costs: s 57(1). This is the general rule in Tribunal proceedings.
3. As Justice Hughes said in South Australian Housing Trust v Brady & Milera [2018] SACAT 2 (at [12]):

The 'traditional formula' is that costs follow the event i.e. a successful litigant is entitled to recover their costs. The legislature has established a statutory regime for costs in this Tribunal that takes a different starting point.

1. From this starting point, the Tribunal may order one party to pay all or any of the costs of another party if the Tribunal thinks it is appropriate to do so after taking into account:

(a) the main objectives of the Tribunal in relation to simplifying proceedings and keeping costs of proceedings to a minimum;

(b) the need to ensure that proceedings are fair and that parties are not disadvantaged by proceedings that have little or no merit;

(d) anything else the Tribunal considers relevant: s 57(2).

1. In Brady & Milera, Justice Hughes also said (at [18-22]):

It must be borne in mind that the overarching principles are that parties bear their own costs unless it is appropriate for the Tribunal to make an order. None of the factors that must be considered overrides the general proposition.

The main objectives of the Tribunal are set out in s 8 of the SACAT Act. Whether a costs order is made is to be informed by these objectives and how a costs order will reflect or further those objectives.

The need to ensure that proceedings are fair and that 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 the legal dispute.

Whilst the South Australian Civil and Administrative Tribunal Rules 2014 (SA) do not add to the factors to be considered, rule 27 provides that an application to determine the costs payable to a party must also include:

a schedule giving details of the date and nature of the work performed and costs claimed for that work; and

a copy of receipts for, or other evidence of, claimable expenses incurred by that party in the proceedings.

The Tribunal's ability to take into account any other relevant matter connotes the wide discretion in the Tribunal to consider a wide range of facts, circumstances and behaviours when determining what is appropriate in making an order.

1. The Tribunal's power to make an order for one party to pay the costs of another includes the power to order the payment of compensation "for any expenses or loss resulting from any proceedings or matter": s 58(1). In my view, this is wide enough to cover the expenses claimed by Mr Stratford that do not relate directly to the Tribunal proceedings, i.e. the vet costs and the behaviourist costs.
2. In the review jurisdiction, the Tribunal is also to have regard to whether the original decision-maker genuinely attempted to make a decision on its merits (and whether the other party genuinely attempted to enable and assist them to do so): s 58(2).
3. Any order I make as sought by Mr Stratford must be made under the above costs provisions; there is nothing in the statute under which the Council's decisions were made (the Dog and Cat Management Act) about recovery of costs or compensation from the Council.

Why Mr Stratford says the Council should pay his costs

1. The starting point (per s 57(1)) is that Mr Stratford must bear his own costs.
2. However, he says that he should never have incurred costs and expenses in this matter, because the Council had no grounds on which to take action in respect of Lucy.
3. This brings s 58(2) into play in particular, and whether the Council genuinely attempted to make a decision on its merits.
4. Therefore, I have had regard to the information on which the Council acted and to how the Council went about taking the action that it took.
5. Mr Stratford also says that the Council dragged out proceedings, by revoking the Destruction Order and imposing the Control (Dangerous Dog) Order and then by proposing another, different order.
6. Therefore, I have considered whether the Council's conduct of proceedings unnecessarily added to the costs.
7. Because I must consider all relevant factors, I have also considered how Mr Stratford has gone about these proceedings, and the circumstances in which he incurred the costs and expenses for which he claims reimbursement.

The submission that the Council had no grounds for its action

1. The following information was before the Council.

(a) In November 2018, Council had picked up Lucy and another dog owned by Mr Stratford while the dogs were 'wandering at large'.

(b) In February 2019, Council received information that Lucy had been seen chasing and pulling down a sheep on the property of a neighbour, Mr Campbell.

(c) In June 2019, Mr Campbell found 13 of his lambs and 1 of his ewes mauled and dead on his property - he discussed the matter with Mr Stratford, and Mr Stratford accepted responsibility and made an insurance claim.

(d) In July 2019, Mr Campbell found 18 of his ewes mauled and dead on his property - he discussed the matter with Mr Stratford, who did not accept responsibility.

1. Mr Campbell informed the Council of the June and July incidents after the July incident.
2. The Council then spoke to Mr Stratford.

(a) On 15 August 2019, a Council officer went to Mr Stratford's place and had a conversation with him about the incidents that had been reported - Mr Stratford is recorded (pages 39 and 51 of the Book of Documents) as saying he had knowledge of Lucy being involved in the June attack and that he had made a claim with his insurance regarding the attack.

(b) On 3 September 2019, Mr Stratford went to the investigator's office and signed a written statement (page 55 of the Book of Documents).

1. Mr Stratford says that the conduct of the interview on 15 August 2019 was unfair. Even if that is so, he had a subsequent opportunity, on 3 September 2019, to put his version of events. His signature on the written statement shows that he agreed with its contents.
2. That signed statement includes the following:

Unfortunately one night Lucy made an error and attacked some of Kevin Campbell's lambs. He rang me on the Monday morning while I was down Lincoln doing deliveries and said he had some lambs that had been mauled and was wondering if it could have been my dog, I said I would investigate when I got back and catch up with him later on that day to see what I had worked out. When I got home I thought it was possible that Lucy was responsible so when we caught up I was honest enough to let him know I would expect [accept] responsibility for his insurance.

1. The first line, above, is an admission that Lucy "attacked some of Kevin Campbell's lambs". Even if that is put aside, Mr Stratford nevertheless "thought it was possible that Lucy was responsible" for the June attack, and so had accepted responsibility.
2. On 23 September 2019, the Council notified Mr Stratford of the proposed destruction order in respect of Lucy. The Council set out its reasons and gave Mr Stratford an opportunity to respond "before making any decision on how to proceed".
3. The proposed destruction order referred to the June attack, and to Lucy having been seen on other occasions wandering at large.
4. The same day, apparently in response, Mr Stratford sent an email to the Council in which he strenuously refuted that Lucy was a threat or a danger. He particularly challenged Lucy being blamed for the July attack.
5. In fact, the proposed destruction order did not refer to the July attack at all. The Council's letter did - the Council said in the letter that it was satisfied Lucy was responsible for both attacks - but the June attack in particular was the basis for the proposed destruction order.
6. Mr Stratford's email challenging the proposed destruction order actually confirms his earlier signed statement that he thought it was possible Lucy was responsible for the June attack; his email includes the following:

Even though I am not 100% sure if Lucy was responsible for the attack on Kevin Campbell's lambs I [k]new there was a possibility because she ran loose at nights. I decided to accept responsibility and inform my insurance company to tidy matters up and move on.

1. Later in the email Mr Stratford repeats that "I am not 100% sure" if Lucy was responsible for the June attack but that "I have accepted responsibility".
2. Even if I disregard that Mr Stratford accepted responsibility - if I accept that he did so purely to resolve the matter - he nevertheless says to the Council, quite clearly, that it is possible Lucy was responsible for the June attack.
3. Mr Stratford makes numerous statements in this email about the "lies" and "incompetence" of others, but at the same time he accepts that Lucy possibly killed 13 lambs and a ewe in June 2019.
4. The Council therefore had numerous pieces of information, including from Mr Stratford himself, from which it could conclude on the balance of probabilities that Lucy was responsible for the June attack.
5. As set out in the Council's next letter to Mr Stratford, on 2 October 2019, the Council took all information into account. This was not just information from Mr Campbell; it was information from him, from another source, from the Council's own records and from the information provided by Mr Stratford himself.
6. I reject Mr Stratford's submission that the Council lacked grounds on which to conclude that Lucy was responsible for the June attack. In my view, the Council had sufficient evidence from which to reach that conclusion.
7. The Council then had a responsibility to take appropriate action.
8. Whether or not the Destruction Order was appropriate became a moot point when it was revoked.
9. In all of this, in my view the Council genuinely attempted to make a decision on its merits.

(a) The Council was aware that Lucy had been wandering at large, and the Council had received information about her chasing sheep.

(b) The Council had received information about two attacks on livestock, including information that Lucy was responsible for at least the first attack.

(c) The Council investigated the matter, including speaking to Mr Stratford twice and taking a written statement from him.

(d) The Council gave Mr Stratford the opportunity to respond to the proposed destruction order, which he did, and the Council considered his response.

(e) The Council also had regard to the submission received from Mr Stratford's solicitor (he was represented at the time) and to the behavioural assessment Mr Stratford had obtained.

(f) While the Council did not accept the behavioural assessment in its entirety, nevertheless the Council was satisfied, at least partly because of the assessment, that the order should be changed from a destruction order to a control order.

1. Mr Stratford considers that even a control order was unnecessary; that is his view. The Council had a different view, and I am satisfied that in coming to that view, the Council genuinely attempted to make the appropriate decision based on all of the information available.
2. As for the Council's offer of a proposed amended control order, this came after the 4 March 2020 conference and was evidently an attempt to resolve the proceedings by agreement. I do not regard it as in any way undermining the Council's formal position.
3. Nor do I regard the Council's ultimate decision to revoke the Control (Dangerous Dog) Order and issue a formal warning to Mr Stratford as in any way indicating that the control order was not warranted. The Council's reasons are clearly set out in the 7 April 2020 letter, and they include the avoidance of further public expenditure.

The submission that the Council dragged out proceedings

1. In his 10 April 2020 email, in which he sets out his claim for costs, Mr Stratford says:

I believe the council has never had any plans to go to a hearing and it has been a disgrace that they are disappointed in me for not accepting some responsibility for their mistake....

(a) the Council's decision to revoke the Destruction Order and issue the Control (Dangerous Dog) Order;

(b) the Council's settlement offer of a Control (Menacing Dog) Order; and

(c) the Council's decision to revoke the Control (Dangerous Dog) Order and issue a formal warning.

1. Mr Stratford's reference to the Council being 'disappointed' is plainly to the statement in the 7 April 2020 letter from the Council's solicitor that the Council is 'disappointed' by Mr Stratford's apparent unwillingness to reach a compromise solution.
2. Mr Stratford clearly believes that no order should ever have been issued in respect of Lucy; therefore, he believes that the Council's final position, above, should have been their position at the start, or at least much earlier.
3. He apparently believes, therefore, that the Council has been trying to get him to accept an order against Lucy, rather than 'admit' their 'mistake' in issuing an order, and that this has unnecessarily drawn out the proceedings.
4. This assumes that the Council had no grounds on which to issue an order in respect of Lucy. For the reasons set out above, I disagree.
5. The submission also overlooks the following.

(a) The Council had legitimate reasons to revise its original position from a destruction order to a control order. This was not a spontaneous or random decision, nor did it indicate that the original decision was wrong; the decision about Lucy was revised after the Council considered the further information that Mr Stratford provided. This indicates genuine, not capricious, decision-making.

(b) The Council had legitimate reasons to propose a lesser control order, after the 4 March 2020 conference. This was a settlement offer, which indicates a willingness to try to avoid further time and expense, and does not say anything about the strength or weakness of the Council's case.

(c) The Council had legitimate reasons to revoke the control order and issue a warning. Again, this indicates a desire to avoid further time and expense, and does not suggest a lack of belief in the Council's case.

1. In other words, the Council's later decisions do not indicate that its original decision was wrong. Nor, in my view, do they indicate any lack of genuine intent to deal with this matter in an appropriate way.
2. The Council's final position does not indicate that Mr Stratford would have succeeded in his application for review, nor is that the point; even if the proceedings had continued and Mr Stratford had succeeded, the starting point would have been that he bear his own costs.

1. For all of the above reasons, I do not consider it appropriate to order the Council to pay Mr Stratford's costs. There is no reason in this case, in my view, to depart from the position that he bear his own costs.

1. The Tribunal ordered that:
   1. The applicant's application for costs is dismissed.
   2. As the respondent has revoked the decision under review, the review proceedings will be closed without further order.