Beck v Rowan - [2018] QCAT 142

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Beck v Rowan [2018] QCAT 142

PARTIES:

JENNIFER BECK
(applicant)

v

BLAIR ROWAN

(respondent)

APPLICATION NO/S:

ADL085-16

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

21 May 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

The application made by Recreational Aviation Australia Inc for an order for reimbursement of its legal fees and internal administrative costs is dismissed for want of jurisdiction.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – PARTIES AND NON-PARTIES – NON-PARTIES GENERALLY – where tribunal required a non-party to produce documents – where after the order was made the non-party applied for its costs of complying with the order – whether the notice to produce was issued under section 63 or section 97 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether under section 63 the tribunal has jurisdiction to decide on costs after making such an order

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 63, s 97
Queensland Civil and Administrative Tribunal Regulation 2009 (Qld), s 11, s 12, s 14, s 15, s 16

AGS [2015] QCATA 189
Barns v Commissioner, Queensland Fire & Emergency Services [2017] QCAT 460
Campaigntrack Victoria Pty Ltd v Gannon [2017] QCAT 272
Coral Homes QLD Pty Ltd t/as Coral Homes Pty Ltd v Queensland Building Services Authority (now the Queensland Building and Construction Commission) [2014] QCAT 93
Jebral Nominees Pty Ltd v The Chief Executive, Department of Justice and Attorney-General and others [2016] QCAT 118
Kljaic v Queensland Building Services Authority [2011] QCAT 87
McNab Constructions Australia Pty Ltd v Donovan Hill Pty Ltd & Ors [2014] QCATA 172

Smith v Queensland Building Services Authority [2011] QCAT 66

REPRESENTATION:

Applicant:

Hall Payne Lawyers

Respondent:

Recreational Aviation Australia Inc:

Self-represented

Ferrier & Associates Lawyers

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

In this matter, a non-party, Recreational Aviation Australia Inc (RAAus), applies to the tribunal for an order to be made against one or more of the parties to the proceedings for reimbursement of legal fees and internal administrative costs that it incurred in complying with a notice to produce documents issued by the tribunal.
In complying with the notice, RAAus incurred internal administrative costs of $5,729.65 and legal costs of $5,532.07, largely it seems, because it objected to some of the disclosure on the grounds of legal professional privilege and public interest immunity.
Since there are two provisions in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the ‘QCAT Act’) empowering the tribunal to issue a notice to produce to a third party, with different criteria on the question of costs, it is necessary to decide under which provision the notice to produce was issued. Then it is necessary to consider whether there is any jurisdiction to make the order sought.
The relevant statutory provisions for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Beck v Rowan

Details

AGLC: Beck v Rowan [2018] QCAT 142
Case: [2018] QCAT 142
Decision Date: 21 May 2018

CaseChat Overview and Summary

Beck and Rowan were the parties in a case before the Queensland Civil and Administrative Tribunal (QCAT). Rowan, a non-party, was required to produce documents pursuant to an order, and subsequently sought reimbursement for the costs incurred in complying with the order. The dispute centred around whether QCAT had jurisdiction to decide on costs after issuing such an order, particularly if the order was made under section 63 or section 97 of the Queensland Civil and Administrative Tribunal Act 2009. The central issue was whether QCAT had the authority to determine the costs incurred by a non-party in complying with a document production order.

The court considered the presumption of regularity, which suggests that QCAT should be presumed to have considered costs when making the order unless proven otherwise. Given that no costs order was made at the time of the document production order on 18 April 2017, the court concluded that QCAT was functus officio (had no further jurisdiction) on the matter of costs. This conclusion was reinforced by the precedent in AGS, where Justice Carmody discussed the presumption of regularity.

The tribunal was found to lack jurisdiction to hear and determine Rowan's application for reimbursement of legal fees and internal administrative costs. The court ruled that the tribunal's decision to not address costs when making the document production order was final and could not be revisited.

The tribunal's decision was upheld, and the application by Recreational Aviation Australia Inc for reimbursement of its costs was dismissed for want of jurisdiction.

Orders

Orders of the court

The application made by Recreational Aviation Australia Inc for an order for reimbursement of its legal fees and internal administrative costs is dismissed for want of jurisdiction.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This also means, as Hall Payne have submitted, that the tribunal should be regarded as having already considered the question of the costs of RAAus when the order was made on 18 April 2017 because section 63(4) requires this to happen. Under the presumption of regularity it may be assumed that this was done, unless the contrary is proved.[9] On that day, unlike in Campaigntrack, no costs order was made. That is the determination of the tribunal on the matter. I agree therefore that the tribunal is functus officio on the question of costs. [9]The presumption of regularity was discussed in another context by Justice Carmody in AGS [2015] QCATA 189, [91].Conclusion I conclude therefore that the tribunal has no jurisdiction to hear and determine the application by RAAus that one or more party reimburses it for its outlay in complying with the notice to produce.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Beck v Rowan [2018] QCAT 142
PARTIES:	JENNIFER BECK (applicant)
v
BLAIR ROWAN (respondent)
APPLICATION NO/S:	ADL085-16
MATTER TYPE:	Anti-discrimination matters
DELIVERED ON:	21 May 2018
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Gordon
ORDERS:	The application made by Recreational Aviation Australia Inc for an order for reimbursement of its legal fees and internal administrative costs is dismissed for want of jurisdiction.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – PARTIES AND NON-PARTIES – NON-PARTIES GENERALLY – where tribunal required a non-party to produce documents – where after the order was made the non-party applied for its costs of complying with the order – whether the notice to produce was issued under section 63 or section 97 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether under section 63 the tribunal has jurisdiction to decide on costs after making such an order Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 63, s 97 Queensland Civil and Administrative Tribunal Regulation 2009 (Qld), s 11, s 12, s 14, s 15, s 16 AGS [2015] QCATA 189 Barns v Commissioner, Queensland Fire & Emergency Services [2017] QCAT 460 Campaigntrack Victoria Pty Ltd v Gannon [2017] QCAT 272 Coral Homes QLD Pty Ltd t/as Coral Homes Pty Ltd v Queensland Building Services Authority (now the Queensland Building and Construction Commission) [2014] QCAT 93 Jebral Nominees Pty Ltd v The Chief Executive, Department of Justice and Attorney-General and others [2016] QCAT 118 Kljaic v Queensland Building Services Authority [2011] QCAT 87 McNab Constructions Australia Pty Ltd v Donovan Hill Pty Ltd & Ors [2014] QCATA 172 Smith v Queensland Building Services Authority [2011] QCAT 66
REPRESENTATION:
Applicant:	Hall Payne Lawyers
Respondent: Recreational Aviation Australia Inc:	Self-represented Ferrier & Associates Lawyers
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).