WONG and LEGAL PRACTICE BOARD [2026] WASAT 38 (S)

[2026] WASAT 38 (S) Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : LEGAL PROFESSION UNIFORM LAW APPLICATION ACT 2022 (WA) CITATION : WONG and LEGAL PRACTICE BOARD [2026] WASAT 38 (S) MEMBER : PRESIDENT GLANCY HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 3 JULY 2026 FILE NO/S : VR 57 of 2025 BETWEEN : NATHAN WONG Applicant AND LEGAL PRACTICE BOARD Respondent Catchwords: Practice and procedure - Costs - Application for costs - Whether circumstances justify departing from principle that parties bear their own costs in Tribunal proceedings - Costs order made - Turns on own facts Practice and procedure - Costs - Appropriate quantum - Whether costs claimed are reasonable, necessary and not excessive - Turns on own facts Legislation: Legal Profession Uniform Law (WA) -- 1 of 10 -- [2026] WASAT 38 (S) Page 2 Legal Profession Uniform Law Application Act 2022 (WA) State Administrative Tribunal Act 2004 (WA), s 9, s 60(2), s 87(1), s 87(2) Result: Costs order made Category: B Representation: Counsel: Applicant : N/A Respondent : N/A Solicitors: Applicant : N/A Respondent : Legal Practice Board of Western Australia Case(s) referred to in decision(s): Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 (S) Wong and Legal Practice Board [2026] WASAT 38 -- 2 of 10 -- [2026] WASAT 38 (S) Page 3 REASONS FOR DECISION OF THE TRIBUNAL: Introduction 1 This is an application by the Legal Practice Board (the Board or the Respondent) for costs following the determination of Wong and Legal Practice Board1 published on 20 April 2026. 2 In these reasons for decision, terms defined in the reasons for decision in the substantive proceeding in the Primary Reasons are used unless otherwise stated. 3 On 20 April 2026, I made orders dismissing the Applicant's application for a review of a decision made by the Board about his application for a practising certificate (Second Review Proceeding). The Applicant had previously applied for a review of that decision and had consented to orders which resolved that first application (First Review Proceeding). 4 The Respondent has applied for its costs of the Second Review Proceeding and of the costs application itself. 5 The Applicant opposes the making of an order that he pay all or any part of the Board's costs. He says that the appropriate order for the Tribunal to make is either: 1. that there be no order as to costs; or 2. that each party is to bear their own costs. Outcome 6 For reasons which I set out below I have concluded that the Applicant should pay the Respondent's costs of the application fixed in the sum of $13,745.26. Determination on the documents 7 The question of costs has been determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). 1 Wong and Legal Practice Board [2026] WASAT 38 (Primary Reasons). -- 3 of 10 -- [2026] WASAT 38 (S) Page 4 Documents 8 In determining this matter, I have had regard to all of the materials filed in the substantive proceeding and the following additional material: 1. the submissions in support of the Respondent's costs application dated 2 June 2026; 2. the affidavit of John-Paul Colella sworn 2 June 2026; 3. the Applicant's written submissions filed 2 June 2026; and 4. the affidavit of Nathan Wong affirmed 1 June 2026. Costs in the Tribunal - Legal Principles 9 The principles in respect of costs in the Tribunal under the SAT Act and the Legal Profession Uniform Law (WA) (Uniform Law) are well understood. The starting position in relation to the question of costs in the Tribunal is provided for in s 87(1) of the SAT Act. It provides that parties bear their own costs in a proceeding in the Tribunal unless otherwise specified in an enabling Act, the SAT Act or an order of the Tribunal. Section 87(2) then provides that the Tribunal may make an order for the payment by a party of all or any part of the costs of another party. 10 There is nothing in the Uniform Law or the Legal Profession Uniform Law Application Act 2022 (WA) that requires the Tribunal to take a different position in relation to the question of costs. 11 The following is a general statement of applicable principles: 1. There is no presumption that a successful party is entitled to its costs. 2. The party seeking an order for costs bears the onus of establishing that an order for costs should be made. 3. The nature of the dispute between the parties is a relevant consideration in an application for costs. 4. Costs are more likely to be awarded where the party seeking costs has demonstrated that the other party has, by its conduct, impaired the attainment of the Tribunal's objectives which are set out in s 9 of the SAT Act. -- 4 of 10 -- [2026] WASAT 38 (S) Page 5 5. A failure to succeed on an argument does not equate to acting inconsistently with the Tribunal's objectives. More is required. 6. Unmeritorious claims, or claims made or pursued which involve misconduct or which are vexatious or grossly exaggerated or presented in a way which is unduly burdensome, may justify an exercise of the discretion to award costs. 12 In determining the quantum of an award of costs the Tribunal must make an assessment of the costs to be paid. That assessment proceeds in a broad fashion. While the Tribunal does not descend into an assessment of small items of expenditure it must be satisfied that the costs claimed are reasonable and necessary and are not excessive.2 13 The Tribunal may take into account settlement offers, including Calderbank offers, in determining the question of costs. The Respondent's submissions 14 The Respondent says that the extraordinary nature and circumstances of the proceeding and the Applicant's conduct in connection with the proceeding (including after judgment) justify an order for costs being made in its favour. It submits that the fact that the Applicant was a legal practitioner, who should have known his case had no prospects of success, must be taken into account in determining the costs application. 15 Further, the Respondent relies upon the failures of the Applicant to accept its offers to settle the proceedings, including initially offering that if the Applicant were to withdraw his application it would not seek costs, and subsequently that if he withdrew it would agree to an order that he pay only a portion of the costs it had by then incurred, as a further reason for a costs order to now be made. The Applicant's position 16 The Applicant says that he has not practised for more than a year, has exhausted his savings to survive and has very limited financial resources. Ultimately, he submits that he cannot pay any costs order without experiencing significant financial hardship and so no costs order should be made. He submits that a costs order would be 'unjust and is not in the interests of justice'. 2 Legal Services and Complaints Committee and Ginbey [2023] WASAT 113 (S) [51]. -- 5 of 10 -- [2026] WASAT 38 (S) Page 6 17 He says that he seeks an order that: a. no order as to costs be made; or b. each party bear its own costs. 18 Apart from that submission, the Applicant's written submissions attempt to challenge the Tribunal's decision and further ventilate his views about why the consent orders made as a result of a mediation in the First Review Proceeding should not prevent him from bringing the Second Review Proceeding.3 Resolution 19 The Applicant was wholly unsuccessful. That in itself would not justify a costs order. But, when regard is had to the fact that: 1. the application was an attempt to relitigate a matter which he had settled by consent and which he had at the time accepted had been resolved 'fairly and convincingly'; and 2. that his application was commenced 17 months after the expiry of the time for a review application to be made, the case for costs becomes more compelling. Add to that the fact that the Tribunal found that the delay was extreme, the reason for the delay was unsatisfactory, and that the prospects of success were not good,4 and the case for costs becomes yet more compelling. 20 I accept the Respondent's submission that the fact that the Applicant is a legal practitioner is a relevant consideration. Greater latitude may be afforded to a litigant in person who may not be expected to be as familiar with, or able to understand, the law. In this case the Applicant, being a legal practitioner, should have appreciated that his case was unlikely to succeed. 21 The Applicant's conduct, including: 1. the filing of lengthy, difficult to follow submissions which did not engage with the relevant legal principles; 3 For example, he says that the mediation was not voluntary and was procedurally unfair, he had not been provided with the AAT referral letter, the Board misunderstood the AAT framework, the Board engaged in procedural irregularities and that the referral made to the Board by the AAT should have been dismissed at the preliminary assessment stage. 4 Primary Reasons [52]. -- 6 of 10 -- [2026] WASAT 38 (S) Page 7 2. the filing of two interlocutory applications in the proceeding, each of which were said to have been urgent, but which were without merit; and 3. by seeking a summons be issued to a Member of the former AAT without giving any consideration to the legal basis upon which the Tribunal could summons a now Deputy President of the Administrative Review Tribunal, and what relevant evidence she could give, requiring the Respondent to file submissions and attend a directions hearing at which the Applicant ultimately withdrew his application for a summons, necessitated a significant amount of work being undertaken by the Respondent and worked against the Tribunal's objectives of resolving the dispute in a speedy way and in a way which minimised the costs to the parties.5 That conduct also tends in favour of the making of an order that the Applicant pay the Respondent's costs. 22 Further, the fact that the Applicant unreasonably rejected the Respondent's offers to resolve the proceeding without any costs orders being made, or with an order that the Applicant pay only a portion of the Respondent's costs, is a matter which, in my view, weighs in favour of the making of a costs order against the Applicant. 23 The Respondent's first offer was made by email on 28 July 2025,6 just four days after the application for the Second Review Proceeding was lodged by the Applicant. The email referred to the Respondent's view that the application was an abuse of process and stated that if the Applicant did not withdraw the proceeding, the Respondent may seek costs, including indemnity costs, against him. On 30 July 2025 the Applicant informed the Board by phone that he would not withdraw the application.7 24 The Respondent next wrote to the Applicant on 13 August 2025 setting out in detail why it considered that he would not be granted leave to commence the Second Review Proceeding and, in that letter, stated that if the Applicant withdrew the application, it would not seek any costs.8 The Applicant rejected that offer on 13 August 2025.9 5 See main objectives of the Tribunal which are set out in SAT Act, s 9. 6 Affidavit of John-Paul Colella annexure JPAC 1. 7 Affidavit of John-Paul Colella annexure JPAC 2. 8 Affidavit of John-Paul Colella annexure JPAC 4. 9 Affidavit of John-Paul Colella annexure JPAC 5. -- 7 of 10 -- [2026] WASAT 38 (S) Page 8 25 The Respondent next offered to settle the proceeding on 17 November 2025. At that time, it indicated that if the Applicant were to withdraw the application it was willing to confer about an appropriate costs order, noting that its costs were then $7,072.56.10 26 The Respondent also submits that the Applicant should pay its costs of dealing with the application for costs because he did not confer about the issue until the day the material was, by the Tribunal's orders, required to be filed and hence, by that time, the work in preparing submissions and the affidavit on which it would rely in the costs application had largely been completed by the Respondent.11 27 On 23 April 2026, after the judgment had been delivered, the Respondent offered to agree to orders by which the Applicant would pay a contribution towards its costs of $8,000.00, noting that its actual costs were approximately $12,590.26.12 28 The Applicant says that until 9 May 2026 he was too sick to read the orders made by the Tribunal on 20 April 2026 and to confer in relation to costs. He says that he was admitted to hospital and was discharged on 29 April 2026.13 From that, I infer that he is submitting that it was not his fault that the Respondent was put to the work of drafting the submissions and affidavit in support of its costs application and he should not have to bear those costs. 29 On 13 May 2026, the Respondent offered to resolve the matter by orders that he pay costs in the sum of $13,000.00 noting that it would seek in excess of $19,000.00 if the matter proceeded because by then over $5,000.00 had been expended on the preparation of the materials in support of the costs application.14 30 I am satisfied that in the circumstances of this matter it is appropriate to depart from the starting position in s 87 of the SAT Act and to order that the Applicant pay the Respondent's costs. This is because the Applicant was entirely unsuccessful in his application, and the way in which he conducted the proceeding put the Respondent to significant time and expense on what should have been a simple case. 10 Affidavit of John-Paul Colella annexure JPAC 6. 11 Affidavit of John-Paul Colella annexure JPAC 8. 12 Affidavit of John-Paul Colella annexure JPAC 9. 13 Affidavit of Nathan Wong annexure G. 14 Affidavit of John-Paul Colella annexure JPAC-9. -- 8 of 10 -- [2026] WASAT 38 (S) Page 9 31 However, given the work in preparing for the costs application was largely undertaken when, I accept, the Applicant was unwell and unable to confer in relation to the issue of costs, I do not think it would be fair and appropriate to order that he pay all of the Respondent's costs of preparing the costs application. Quantum 32 The Respondent seeks costs in the sum of $21,352.26. It breaks that sum down into the following components: 1. $10,123.96 for counsel fees incurred prior to judgment (approx. 24 hours at the rate of $418.00 per hour (including GST)); 2. $7,607.00 for counsel fees incurred after judgment for the purposes of dealing with the costs application (approx. 18 hours at the rate of $418.00 per hour (including GST); 3. $2,904.00 for 6 hours of the time taken by the Respondent's Director Investigation and Legal at a rate of $484.00 per hour (including GST); 4. $187.00 for the Respondent's paralegal (at a rate of $187 per hour (including GST)); and 5. $530.30 for the transcript fee. 33 The Respondent is not claiming costs for the work undertaken by Mr Hall who, until just before the judgment was delivered, had primary carriage of the matter for the Respondent and was the instructing solicitor. Taking that into account, and because I consider that it is not appropriate to make an order that the Applicant pay all of the Respondent's costs of the costs application, I will make an order that the Applicant pay the costs claimed other than those in [32(2)] above. That is, I consider that the fair and appropriate order is that the Applicant pay the Respondent's costs fixed in the sum of $13,745.26. I do not regard that amount to be excessive given the way in which the proceeding was conducted. 34 The Applicant has sought to resist the costs application on the basis that he has exhausted all of his savings simply to survive and is not in a position to pay a costs order. In my view, where a costs order is otherwise justified, it should not be refused because a party says it cannot pay. A party who says that they cannot pay may have an -- 9 of 10 -- [2026] WASAT 38 (S) Page 10 unexpected change of fortune. Whether the costs order is enforced, or whether some payment arrangement might be reached between the parties, is a matter for the parties. Order The Tribunal orders: 1. Pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA) the Applicant is to pay the Respondent the sum of $13,745.26 towards its costs of the application. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. JD Associate to the Hon Justice Glancy 3 JULY 2026 -- 10 of 10 --