Costs and Costs Orders

There is no definitive list of conduct that will cause SAT to make a costs order. However, conduct that may be relevant includes:

• where a party has contributed to costs being incurred unnecessarily, by it’s unreasonable or inappropriate conduct;
• where a party has been found to have been untruthful in its dealings with the other party or SAT;
• where a party’s case has been shown to be weak or without merit; and
• where a party has been required to commence the proceeding in order to establish an objectively clear entitlement.

SAT can also order that a party pay for the costs of the proceeding incurred by SAT itself. Section 88 of the State Administrative Tribunal Act 2004 allows SAT to make such an order when:

• the proceeding is vexatious or frivolous;
• a party did not genuinely participate in the original decision;
• a proceeding was dismissed for want of prosecution; or
• the proceedings were conducted in a way to disadvantage the other party.

There are also areas of SAT’s jurisdiction in which it is accepted that a costs order will generally be made. For example:

• vocational regulation matters – when a vocational regulation body succeeds in disciplinary action against a practitioner; and

Guardianship and Administration matters

The Guardianship and Administration Act 1990 includes a specific power for awarding costs, in addition to SAT’s general power. Section 16(4) allows SAT to award costs when a party has acted in the best interests of a proposed represented person. As with other costs applications at SAT, they are not commonly awarded and additional factors are needed. For example, costs may be awarded when there are:

• serious allegations of abuse, and legal advice and representation is required to present a reasoned case in a timely manner;
• parties in conflict, to such an extent it is unlikely the history and needs of the proposed represented person could be presented to SAT without legal assistance; or
• issues which make the application complex or unique.

SAT cannot retrospectively authorise the payment of costs when costs have already been paid by, or out of the assets of, the proposed represented person.

Parties are expected to assist SAT in achieving a fair and speedy resolution of the proceeding at a minimum cost to the parties, in accordance with the principles of SAT in section 9 of the State Administrative Tribunal Act 2004.

Parties and their representatives should approach proceedings in a manner calculated to minimise costs. The work performed by a legal representative should be proportionate to the value of the subject matter. When a costs order is made, any costs for work considered to have been unnecessary or disproportionate are unlikely to be recoverable.

SAT may order a party’s representative, rather than the party itself, pay for costs incurred if the representative acted in a way that resulted in unnecessary costs, or delayed the proceeding. SAT can order these costs are to be paid to any party, including the party who engaged the representative.

When SAT makes an order for costs, the amount may be ‘fixed’ or ‘assessed’.

Fixing costs

Costs are fixed when they are easily determined, and SAT does not need to examine the amount of the costs claim in detail. Consequently there is no application fee when costs are fixed.

Assessing costs

If the costs are not fixed, they are ‘assessed’ in accordance with the State Administrative Tribunal Rules 2004. The parties will be given an opportunity to reach agreement about the costs before they are assessed, as assessment of costs is a more structured procedure. A party applies for an assessment, which incurs an application fee, plus an assessment fee equal to 2.5% of the costs claimed in the application.

To facilitate SAT’s decision, costs applications should be accompanied by itemised lists of the costs being claimed.

SAT takes a ‘broad-brush’ approach to fixing or assessing costs, generally without descending to a detailed inquiry into individual items of claimed costs. It will have regard to factors which include the nature of the matter, importance of the matter, its complexity, and the time and effort required to present the party’s case.

SAT can make costs orders for legal costs, but also order compensation for expenses, loss, inconvenience or embarrassment resulting from a proceeding or subject matter (section 87(3) of the State Administrative Tribunal Act 2004).

When considering the hourly rates of legal practitioners, SAT’s usual practice is to consider the current SAT Costs Determination issued by the Legal Costs Committee. The Determination includes maximum rates applicable to Counsel, Legal Practitioners and Clerks.

In cases where the nature of the matter and its importance to the party warrant it, SAT may decide to refer instead to the Legal Costs Committee’s current Supreme Court (Contentious Business) Determination for guidance.

Whichever determination is used, SAT’s order will reflect its view of the reasonable work required in order for the party’s case to be fairly presented.