Held, awarding costs in favour of the applicant in the sum of $13,000:

• It is appropriate, fair and reasonable to make an order for lump sum costs in favour of the applicant.
• The respondent had multiple opportunities to reconsider the merits of the decision and other options available, but did not do so.
• The respondent's submissions amount to a submission that the decision maker should not be required to review its decisions. A party holding such a view may be subject to potential adverse costs orders.
• The respondent's application for costs is dismissed. The Tribunal does not have jurisdiction to make the orders sought by the respondent as it cannot make a recovery order under section 64E of the Dog and Cat Management Act 1995.

Administrative Review - Dog and Cat Management Act 1995 - Review a decision of a council or board to issue a destruction order - Unduly Dangerous

Administrative Tribunals - Procedure - Jurisdiction - Generally

Administrative Tribunals - Procedure - Statutory Powers - Order for costs - Presumption that parties are to bear their own costs - Entitlement to costs - Effect of party conduct on entitlement to costs

South Australian Civil and Administrative Tribunal Act 2013 s 8, s 50, s 57, s 58

South Australian Civil and Administration Tribunal Rules 2014 r 4, r 101

GKZ v Department for Child Protection [2022] SACAT 29

Tronnolone v Edwards & Bryan [2016] SACAT 27

Aldridge v Whyalla City Council [2020] SACAT 13

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 8, s 50, s 57 and s 58 ('the SACAT Act') and South Australian Civil and Administrative Tribunal Rules 2014 r4 and r 101 ('the SACAT Rules').

Made under the Dog and Cat Management Act 1995 s 64E

1. I refer to the Tribunal's order dated 7 February 2022 following a hearing on 15 and 22 December 2021.
2. I refer to the Directions made on 24 March 2022 and 13 May 2022 relating to both the Applicant's application seeking the Respondent to pay costs and the Respondent seeking the Applicant to pay costs associated with Watchman (Dog) and his removal from the Applicant's residential premises on 1 July 2021 to RSPCA Lonsdale.
3. Both parties have now submitted the submissions that they rely on with respect to these two applications. I have carefully considered all such submissions and the authorities there referred to.
4. The Applicant seeks costs in the lump sum of $15,000 or for costs to be assessed and settled in accordance with the SACAT Rules (paragraph 36 of the Applicant's submissions dated 7 April 2022).
5. The Respondent submits that the Respondent has incurred detention costs of $12,250.00 as a result of the application for review of the Destruction Order (paragraph 30 of the Respondent's submissions dated 21 April 2022).
6. There is a dispute between the parties on both applications.
7. This order is the Tribunal's consideration and determination of both applications now before the Tribunal.

Legislative provisions relating to costs and nature of the parties dispute on costs

1. I agree with the parties that consideration must be given to s 57(1) and (2) of the SACAT Act and Rule 101 of the SACAT Rules. I am also of the view consideration must also be given to s 8, s 50, ands 58 of the SACAT Act and Rule 4 of the SACAT Rules.
2. The parties do not agree with the effect or meaning of s 57(2) to the Applicant's application.
3. In the context of s 57(2), the Applicant (in paragraph 13 and 14 of the Applicant's submissions dated 7 April 2022) states,

"In particular, provision exist for SACAT to make an order for costs where (a) the Applicant genuinely attempted to enable and assist the decision maker to make a decision on its merits and (b) the Respondent did not give genuine consideration to the merits of the case." Further in paragraph 14, > > "It is submitted that the latter does not apply only to the time of the decision under review, but rather places an onus on the decision maker to reconsider the ongoing merits of a case before the Tribunal." [my emphasis].

4. The Applicant further submits that the Respondent did not take opportunities to review new information (in paragraph 8 of the Applicant's submissions in Reply dated 28 April 2022).
5. In contrast the Respondent says (in paragraph 16 of the Respondent's Outline of Submissions dated 21 April 2022), "It is submitted that the Applicant did not genuinely attempt to enable and assist the Respondent to make a decision on the merits. The Applicant and Mr Tester did not provide to the Respondent significant information known to them at the time of, or prior to, the Respondent making the decision to issue the Destruction Order." [my emphasis].
6. The Applicant in her submissions is focussing on new information after the Destruction order was made and submitting the Respondent should have reviewed that new information.
7. In contrast the Respondent (paragraph 2 of the Supplementary Closing Submissions of the Respondent dated 27 May 2022), says, "The Respondent wishes to emphasise its point that if decision makers are left in a position where they risk an adverse award of costs should their decision be set aside then this will undermine their ability to confidently make decisions about the imposition of orders. The Respondent submits that if this was to occur, public safety would be adversely affected."
8. It is acknowledged that when giving evidence the Applicant did dispute accuracy of certain sections of her statements and that comment was made regarding this in the Tribunal order of 7 February 2022.

1. The starting point on the question costs in proceedings in this Tribunal by s 57 is the words of subsection 1, "unless otherwise specified in this Act, a relevant Act, or an order of the Tribunal under this section parties bear their own costs in any proceedings before the Tribunal."
2. I am mindful of the observations made by the Tribunal (comprised by Senior Member Rugless, Ms Gursansky and Mr Croser) in a review of a decision regarding the placement of a child, namely proceedings in the Tribunal's review jurisdiction in the unreported Statement of Reasons dated 15 September 2020 in case number 2020/SA001185.[1] I refer to the Statement of Reasons in paragraphs 18-23, 26, 27, 29, 30 43 and 44 below.
3. I adopt paragraph 38 from the Statement of Reasons, "it is clear that the usual position regarding costs, namely, that costs follow the event (i.e., is not the starting point in relation to matters heard and determined by the Tribunal)."
4. I also adopt paragraph 39 from the Statement of Reasons, "section 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."
5. I adopt paragraph 43 from the Statement of Reasons, "it is important to note that there may be a difference in approach to the question of costs depending on the nature of the application before the Tribunal (i.e., whether it is an 'inquiry' in one of the Tribunal's protective jurisdictions, a tenancy matter under the Residential Tenancies Act 1995, or an inter partes dispute such as a disciplinary complaint or a complaint under the Equal Opportunity Act 1984). It is also important to differentiate between matters which fall within the Tribunal's ordinary jurisdiction, its review jurisdiction and its internal review jurisdiction."
6. Paragraph 44 from the Statement of Reasons notes and emphasises that by s 57(2) 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 factors specified in (a)-(d).
7. I adopt paragraph 45 from the Statement of Reasons, which states in part, "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. The Tribunal's consideration about costs in this matter must reflect on how any costs order will further these objectives."
8. At paragraph 47 of the Statement of Reasons there is reference to the then President of the Tribunal, President Parker, in Tronnolone v Edwards & Bryan [2016] SACAT 27.
9. The Respondent's submission at paragraph 1 of the Supplementary Closing Submissions of the Respondent also relies on Tronnolone v Edwards & Bryan.
10. I note that the then President of the Tribunal, President Parker, in Tronnolone v Edwards & Bryan was referring to a dispute that required adjudication as does the dispute before this Tribunal. Further that the dispute before the then President of the Tribunal was not within the review jurisdiction but a tenancy matter.
11. Further, I adopt paragraph 48 of the Statement of Reasons, "Pursuant to section 57 (2)(d) of the SACAT Act the Tribunal may also take into account any other relevant matter, and this gives the Tribunal a very wide discretion to consider a wide range of facts, circumstances and conduct in determining if it is appropriate to make an order for costs."
12. I also adopt paragraph 50 of the Statement of Reasons, "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."
13. In summary, s 57(1) sets out the default position of the Tribunal that parties bear their own costs in relation to proceedings before the Tribunal. However, s 57(2) permits the Tribunal to make orders as to costs. Discretion is given and in the exercise of that discretion the considerations in s 57(2) (a)-(d) must be taken into account and if the proceedings are in the review jurisdiction regard must also be had to s 58(2)(a) and (b). In exercising the discretion, the Tribunal should also be mindful of the main objectives of the Tribunal as set out in s 8 of the SACAT Act.

1. I also adopt paragraph 54 of the Statement of Reasons which sets out in part, "section 58 of the SACAT Act sets out some additional considerations relevant to a costs order in the Tribunal 's review jurisdiction, and accordingly section 58(2) should also be considered." The matter now before the Tribunal is in the Tribunal 's review jurisdiction.
2. Finally, paragraph 55 of the Statement of Reasons, "This will be a question of fact in the circumstances of each matter."
3. It is my view that s 58 does encompass the concept of the decision maker to reconsider. I note s 58(3) deals with the effect of certain offers to settle and the response, if any.
4. Section 58(3) does not specify that the offer must be put before the decision maker makes a decision.
5. Section 58(3) does not specify that the offer must be a monetary offer.
6. Section 58(3) does refer to rules and in this regard, I note rule 4 and rule 101. I also note rule 101(a) refers to an offer and like s 58(3) does not specify that the offer must be put before the decision maker makes a decision or specify that the offer must be a monetary offer.
7. By paragraph 7 of the Applicant's submissions dated 7 April 2022 it is stated at a preliminary conference at the Tribunal on 12 August 2021 there was the detailing of the specifications of the enclosure being built for the Dog and "confirmed her willingness to comply with all conditions included in a Control (Dangerous Dog) order." Further, by paragraph 29 of the Applicant's submissions dated 7 April 2022, it is put that a formal monetary offer was put to the Respondent on 8 November 2021, but this was not responded to.
8. I consider an offer was put on 12 August 2021 and on 8 November 2021. There was potentially another offer being the invitation to inspect the enclosure being built. It would appear by the Applicant's submissions (paragraph 7) this was raised by the convenor of the conference on 12 August 2021 and taken up by the Respondent on 11 October 2021. By going to the property the Respondent was able to obtain of new information.
9. I note the Statement of Agreed Facts and in particular under the heading "Behaviour". For the Statement of Agreed Facts to become such a document, the Respondent on the face of it could be thought to have considered the Dog's behaviour after the attack. It is also noted that the Respondent Inspector, Dion van Nunen, as described in the document at Fact 19 was at the assessment at RSPCA Lonsdale on 8 September 2021. I also note Fact 22, "Mr and Mrs Tester are not aware of any other relevant incidents involving Watchman". This is in contrast with paragraph 23 of the Respondents outline where it is stated, "Statements of the son-in-law given to the Respondent that the Dog had attacked Mr Tester in the past, inflicting injuries, were not appropriately and adequately rebutted until Mr Tester gave evidence at the hearing."
10. The statement of the Respondent in paragraph 11 of the Respondent's submissions dated 21 April 2022, is "at all times the Respondent was acting on the basis of a very serious, life-threatening attack on a person by the Dog." This statement does not suggest that there had been a review after the decision for a Destruction Order of whether a Dangerous Dog order with various safeguards was appropriate.
11. If the Respondent had genuine doubt over information given by the Applicant or Mr Tester, the Respondent had the benefit of an inspector at the RSPCA assessment on 8 September 2021, the expert report subsequently provided with that report including the assessment and at the property inspection of the enclosure. It is my view that these were other opportunities for the Respondent to reconsider. The Respondent also had the benefit of being in attendance at the conferences convened at the Tribunal.
12. I refer to s 50 of the SACAT Act. By subsection 4, "The purpose of a compulsory conference is to identify and clarify the issues in the proceedings and to promote the resolution of the matters by a settlement between the parties."
13. The Respondent's submission at paragraph 27 is effectively a submission that the decision maker should not be required to review their decisions. If that is a party's view then as a result there is the potential of a cost order being made against that party, especially in the Tribunal's review jurisdiction and after the Tribunal considers both s 57 and s 58 of the SACAT Act.
14. Section 58(2) commences "Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party, where the matter that is the subject of any proceedings within the Tribunal's review jurisdiction" and then sets out what the Tribunal is to have regard to. This is a proceeding within the review jurisdiction. What the Tribunal is to have regard to limits the circumstances where there may be a cost order.
15. I refer again to the observations made by the Tribunal (comprised by Senior Member Rugless, Ms Gursansky and Mr Croser) in proceedings in the Tribunal's review jurisdiction in the unreported Statement of Reasons dated 15 September 2020 in case number 2020/SA001185. In the context of s 8 objectives, I note paragraph 83, "Apart from the accessibility argument, is the focus in SACAT on keeping costs in proceedings to a minimum. This extends to a government agency involved in a review process ensuring that it keeps costs to an applicant to a minimum."
16. Then paragraph 84 of the Statement of Reasons, "We are of the view that that obligation extends, in some situations, to the government agency reconsidering the merits of its decision even once a review has been filed with SACAT. This is particularly pertinent when the subject matter of the relevant decision relates to fluid or evolving circumstances." [my emphasis]. In the matter before the Tribunal there was more than one instance of new information. Closer to the hearing three affidavits were provided to the Respondent. The affidavits were sworn by the Applicant, Mr Tester and their grandson. On 15 December 2021 the Respondent had the opportunity to hear the Applicant's sworn evidence, the expert she called and to cross examine the expert.
17. Taking into account all the submissions and authorities there referred to and taking into account the relevant legislative framework and I refer to paragraph 8 above, I am satisfied that in all the circumstances that a cost order in favour of the Applicant should be made.
18. I turn to the quantum of that cost order. The Applicant claimed $15,000 but outlined the Applicant's costs including disbursements and counsel fees at $33,658.17. Tax invoices have been provided to the Tribunal. The invoices are itemised.
19. I refer to Rule 101. In all the circumstances I am satisfied it is appropriate and fair and reasonable to make an order for a lump sum and further that lump sum be fixed in the sum of $13,000.

1. I refer to paragraph 5 above.
2. The Applicant opposes the Respondent's application and relies on the Dog and Cat Management At 1995 s 64E (paragraph 15-18 of the Reply to Respondent's Submissions dated 28 April 2022).
3. I refer to and adopt paragraph 140 in the matter of Aldridge v Whyalla City Council [2020] SACAT 13, where Senior Member Stevens says, "The respondent sought an order that the applicant pay the costs of the detention of the dogs. However, counsel was unable to direct me to any provision that empowers this Tribunal to make such an order. Section 64E of the Act refers to a recovery in a court of competent jurisdiction."
4. I do not allow the Respondent's application as the Tribunal does not have jurisdiction and I make an order accordingly. This does not mean there cannot be a recovery action brought relying on the Dog and Cat Management At 1995 s 64E.

1. The Tribunal makes the following orders:
   1. The Tribunal grants the Applicant's application in so far that a cost order is made in favour of the Applicant.
   2. The Tribunal fixes the Applicant's costs as a lump sum to be paid by the Respondent in the sum of $13,000.00 and to be paid to the Applicant by her solicitor by Tuesday 19 July 2022. Failing payment this order can be enforced in the Magistrates Court.
   3. On the Respondent's application as the Tribunal does not have jurisdiction, the application is dismissed for want of jurisdiction.

[1] GKZ v Department for Child Protection [2022] SACAT 29.