[2024] WASAT 67 (S2)
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JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)
CITATION : SIVATHASAN and MEDICAL BOARD OF AUSTRALIA [2024] WASAT 67 (S2)
MEMBER : JUDGE F VERNON, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
DR H HANKEY, SENIOR SESSIONAL MEMBER
HEARD : DETERMINED ON THE DOCUMENTS
DELIVERED : 22 MAY 2025
FILE NO/S : VR 23 of 2023
BETWEEN : NIROSHAN SIVATHASAN
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
Catchwords:
Whether costs are reasonably and necessarily incurred – Costs fixed pursuant to costs order under s 201 of the Health Practitioner Regulation National Law (Western Australia) (WA) and s 87(2) of the State Administrative Tribunal Act 2004 (WA)
Legislation:
Health Practitioner Regulation National Law (Western Australia) (WA), s 201
[2024] WASAT 67 (S2)
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Legal Profession (State Administrative Tribunal) Determination 2024
Legal Profession (State Administrative Tribunal) Determination 2022
State Administrative Tribunal Act 2004 (WA), s 87(2)
Result:
Costs fixed in the sum of $60,000.000
Category: B
Representation:
Counsel:
Applicant
:
N/A
Respondent
:
N/A
Solicitors:
Applicant
:
Gardner Legal & Regulatory Pty Ltd
Respondent
:
Clayton Utz
Case(s) referred to in decision(s):
Dental Board of Australia and Nairn [2022] WASAT 86; (2022) 106 SR (WA) 359
Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S)
Medical Board of Australia and Costley [2013] WASAT 2
Sivathasan and Medical Board of Australia [2024] WASAT 67
Sivathasan and Medical Board of Australia [2024] WASAT 67 (S)
[2024] WASAT 67 (S2)
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary
1
On 10 April 2024, on an application for review by Niroshan Sivathasan (Practitioner), we decided to set aside a decision by the respondent Board to grant the Practitioner general registration as a medical practitioner with conditions and ordered that the Practitioner be granted registration without conditions. Our reasons are set out in Sivathasan and Medical Board of Australia [2024] WASAT 67.
2
On 4 April 2025, pursuant to s 201 of the Health Practitioner Regulation National Law (Western Australia) (WA) and s 87(2) of the State Administrative Tribunal Act 2004 (WA) we ordered that the Board pay the Practitioner’s costs of the proceedings from and including 5 February 2024, in an amount to be fixed. Our reasons for that decision are set out in Sivathasan and Medical Board of Australia [2024] WASAT 67 (S).
3
The parties filed submissions in relation to the appropriate quantum of the applicant’s costs on 24 April and 6 May 2025.
4
We have determined that costs be fixed in the sum of $60,000.00. Our reasons are set out below.
Consideration
5
The Practitioner submits that costs should be fixed at $65,884.36, comprising $28,362.40 for the Practitioner’s solicitor’s fees, $34,619.20 for Senior Counsel’s fees, and $2,902.76 for disbursements.1
6
The Board submits the costs should be fixed at $52,486.14.2 The Board does not dispute the amount claimed for disbursements but says that the appropriate amounts are $18,398.38 for the Practitioner’s solicitor’s fees and $31,185.00 for Senior Counsel’s fees.3
7
It has been said that the preferable approach in fixing costs is that the Tribunal determine what a reasonable allowance would be, taking a robust and broad brush approach, rather than looking at what has actually been charged to the client. This has involved an assessment of the time
1 Practitioner’s submissions filed 24 April 2025 at [20].
2 Board’s submissions filed 6 May 2025 at [8].
3 Board’s submissions filed 6 May 2025 at [3].
[2024] WASAT 67 (S2)
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the Tribunal has considered to have been reasonable in bringing the
proceedings to a conclusion.4
8
In this case, other than the specific matters raised below, the Board accepts that ‘on a robust broad brush basis’ the costs and disbursements claimed by the applicant were reasonably and necessarily incurred and were not otherwise excessive.5 The Board does not submit that this matter did not warrant the engagement of senior counsel.6 In our view, the matter was sufficiently complex to do so.
9
In those circumstances, it is appropriate to have reference to the accounts the Practitioner has supplied with its submissions.
10
The Practitioner’s costs were calculated at the rates applicable under the Legal Profession (State Administrative Tribunal) Determination 2024 (2024 Determination). The Board submits that from 5 February to 30 June 2024, the Practitioner’s costs should be calculated at the rate applicable under the Legal Profession (State Administrative Tribunal) Determination 2022 (2022 Determination).7 We accept that the 2022 Determination applied to 30 June 2024 and the 2024 Determination applied thereafter.
11
The 2024 Determination and the 2022 Determination determine a scale of fees to apply on a legal practitioner/client basis, rather than a party/party basis, in recognition of the fact that parties appearing before the Tribunal generally bear their own costs of proceedings.8 However, such determinations have been found to be a useful guide to the maximum rates that might be allowed on a party/party basis.9
12
We accept the Board’s submission that it is appropriate to have reference to hourly rates set out in the 2022 Determination for work done to 30 June 2024, and to the 2024 Determination thereafter.
13
The relevant rates under the 2022 Determination are $5,500 per day or $550 per hour for senior counsel, and $429 per hour for a senior practitioner. The relevant rates under the 2024 Determination are $6,160 per day or $616 per hour for senior counsel, and $484 per hour for a
4 See for example Medical Board of Australia and Costley [2013] WASAT 2 at [66].
5 Board’s submissions filed 6 May 2025 at [7].
6 Board’s submissions filed 6 May 2025 at [18].
7 Board’s submissions filed 6 May 2025 at [11].
8 Legal Costs Committee, Legal Profession (State Administrative Tribunal) Report 2024 (2024) at [3(b)] and Legal Costs Committee, Legal Profession (State Administrative Tribunal) Report 2022 (2022) at [3(b)].
9 Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S) at [53]
[2024] WASAT 67 (S2)
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senior practitioner. There is no dispute that the Practitioner
‘s solicitor is a senior practitioner within the meaning of those determinations.
14
We also accept the Board’s submission that there is a mathematical error in the calculation of the hours of work claimed for Senior Counsel, in that the hours referred to in the Practitioner’s submissions exceed the hours actually billed by Senior Counsel by one hour.10
15
Applying the hourly rates for a senior practitioner in the 2022 Determination until 30 June 2024, and in the 2024 Determination thereafter, reduces the amount the Practitioner has claimed for solicitor costs to $26,283.40 as follows:
Invoice No.
Time spent
Hourly rate
Total
2835
37.6 hours
$429
$16,130.40
2882
0.2 hours
$429
$85.80
2882
2.6 hours
$484
$1,258.40
2903
11 hours
$484
$5,324.00
2932
7.2 hours
$484
$3,484.80
Total
58.6 hours
$26,283.40
16
Applying the rates for Senior Counsel in those determinations to the hours billed by Senior Counsel reduces the amount claimed to $31,185 as follows:
Invoice No.
Time spent
Hourly rate
Total
2024/140
42.7 hours
$550
$23,485.00
2023/118
12.5 hours
$616
$7,700.00
Total
$31,185.00
10 See the Board’s submissions filed 6 May 2025 at [13].
[2024] WASAT 67 (S2)
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17
Taking these reductions into account, the total amount of the Practitioner’s costs would be $60,371.16, including the claimed disbursements.
18
The Board also submits that the amount claimed for the Practitioner’s solicitor’s fees should be reduced by 30% ‘to reflect the ordinary and expected rate of recovery of a solicitor’s professional fees following taxation’.11
19
No authority for this proposition is cited. This may reflect an expectation within law firms of an average difference between the amount that is usually recoverable on a taxation of party/party costs (in a jurisdiction where costs are taxed) and the amount the firm’s client is billed. However, there is no evidence about this.
20
Whilst costs orders are not meant to provide a complete indemnity, that is not to say that, in every case, there will be a deduction in the costs awarded from those billed. The issue, in each case, is whether the costs are reasonable and necessarily incurred.12 Whilst the costs ordered will usually be less than the costs incurred, that is not inevitable. In any event, we note that the costs billed to the Practitioner do exceed the costs referred to at [17] above by nearly $12,000.
21
The Board submits that a 30% reduction is reasonable and appropriate when regard is had to the following;
(a) the Board claims, in effect, that the Practitioner’s costs have been increased by his non-compliance with ‘various directions’ made by the Tribunal. There is no evidence before us of any such non-compliance. It is a matter that ought to have been raised when the issue of costs was being determined, in opposition to the order for costs.
(b) what the Board describes as the Practitioner’s limited degree of success in the costs application. However, in our view, this is not a reason to decrease the costs sought by the Practitioner. It cannot be said, in our view, that the arguments raised by the Practitioner did not have any reasonable prospect of success, and the Board was unsuccessful in its opposition to any costs order being made.
11 Board’s submissions filed 6 May 2025 at [17].
12 Dental Board of Australia and Nairn [2022] WASAT 86; (2022) 106 SR (WA) 359 at [196].
[2024] WASAT 67 (S2)
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(c) what the Board describes as ‘the apparent degree of duplication of work or other inefficiencies’ arising from the Practitioner’s solicitor preparing submissions for settling by Senior Counsel. However, it is not unusual for senior counsel to settle submissions prepared by solicitors, including senior solicitors. Such practice may result in less cost to a party, given the higher hourly rates for senior counsel in the determinations; and
(d) the unparticularised manner in which the Practitioner’s solicitor has claimed the cost of travel, which under the determinations is to be charged to a client at half the applicable hourly rate. As far as we can identify, the only travel time claimed related to the cost of attending the hearing on 27 and 28 March 2024. It seems likely that the amount of travel would be limited. However, we consider this can be adequately taken into account by rounding down the amount referred to in [17] above to $60,000.00.13
22
In our view, subject to what we have said above, the Practitioner’s costs appear to be reasonable and necessary having regard to the nature and complexity of the matter.
Conclusion
23
For the reasons we have given we will fix the Practitioner’s costs in the sum of $60,000.00.
24
The Board’s submissions do not seek time to pay the costs amount when fixed. However, we consider that some short time should be specified, and that seven days is appropriate.
Orders
The Tribunal orders:
- Within seven days of the date of this order, the respondent pay the applicant’s costs of the proceedings from and including 5 February 2024, fixed in the amount of $60,000.00.
13 Board’s submissions filed 6 May 2025 at [18].
[2024] WASAT 67 (S2)
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I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
FB
Associate to the Deputy President Judge Vernon
22 MAY 2025