Bignell v Queensland Building and Construction Commission - [2023] QCAT 364

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Bignell v Queensland Building and Construction Commission [2023] QCAT 364

PARTIES:

DREW BIGNELL

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

OCR065-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

6 September 2023

HEARING DATE:

On the papers

DECISION OF:

Senior Member Aughterson

ORDERS:

1. There be no order as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where review of decision by respondent to refuse the applicant a Builder-Open licence – where in the course of the proceedings before the Tribunal the respondent reconsidered its decision and issued licence – where application for review subsequently dismissed – whether an order for costs should be made in favour of applicant

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 100, s 102

Bignell v Queensland Building and Construction

Commission (Queensland Civil and Administrative Tribunal, Senior Member Aughterson, 25 May 2023)

Pound v Queensland Building and Construction Commission [2023] QCAT 298

APPEARANCES & REPRESENTATION:

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

The present question for determination is whether the applicant should be awarded costs in this matter. On 24 March 2022, he filed an application to review a decision of the respondent to refuse the issue of a licence in the class of ‘Builder-Open’. In essence, the given reason for the decision was that the applicant had refused to provide additional information required by the respondent to support the application. It was said that on that basis the respondent could not be satisfied that the applicant met the technical and experience requirements for the licence.
On 10 October 2022, in the course of the proceedings before the Tribunal, the respondent stated that it had received further information that satisfied it that the technical requirements had been met. On 18 December 2022, the applicant provided the respondent with further reports addressing the applicant’s relevant experience, as a consequence of which the respondent stated that it was now also satisfied as to the prescribed practical experience. On 24 January 2023, the respondent advised the applicant that having regard to the new information provided in the course of the Tribunal proceedings it had decided to approve the licence application.
In accordance with directions made by the Tribunal, on 23 February 2023 the respondent filed its reconsideration decision in the Tribunal, approving the licence application (with effect from 23 January 2023) on the basis of the new material.
On 27 February 2023, the applicant advised the Tribunal that he did not wish to withdraw his application to review and that he wished the matter to proceed to a final hearing. He submitted that it was in the public interest for the matter to be heard by the Tribunal as the respondent had adopted improper processes and had not…

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.

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Details

Case: [2023] QCAT 364
Decision Date

CaseChat Overview and Summary

In this matter, Drew Bignell sought to challenge a decision by the Queensland Building and Construction Commission to refuse him a Builder-Open licence. After filing an application for review, the Commission reconsidered the application and approved it, providing further information in the course of the proceedings. The Tribunal subsequently dismissed the application for review, finding that it lacked jurisdiction to hear the matter as there was no existing decision to refuse the licence application. The issue before the Tribunal was whether the applicant should be awarded costs in this matter. The applicant sought an order for costs, including the initial licence application fee, and a fee of $23,800 for consulting services provided by Dr Jackie Campbell.

The Tribunal considered the relevant provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and the applicable principles in determining whether to make an order for costs. Section 100 of the Act provides that each party must bear their own costs, unless otherwise provided by the Act or an enabling Act. Section 102 of the Act provides that the Tribunal may order a party to pay all or part of the costs of another party if it considers the interests of justice require it. The Tribunal must have regard to various factors when deciding whether to award costs, including whether a party acted in a way that unnecessarily disadvantaged another party, the nature and complexity of the dispute, and the financial circumstances of the parties.

In this case, the Tribunal found that the applicant's submissions relied on the alleged failures in the processes of the respondent and its initial decision, which could not be tested in the proceedings before the Tribunal. The Tribunal also noted that the applicant's claims of a significant miscarriage of justice and unmeritorious arguments were not supported by any other factors or available material. The Tribunal further found that the costs incurred by the applicant arose from his failure to provide the required information prior to the making of the respondent's initial decision. In light of these considerations, the Tribunal decided not to make an order for costs in favour of the applicant.

In conclusion, the Queensland Civil and Administrative Tribunal found that the applicant was not entitled to an order for costs in this matter. The Tribunal considered the relevant provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and the applicable principles in making its decision. The Tribunal found that the applicant's claims of a significant miscarriage of justice and unmeritorious arguments were not supported by any other factors or available material, and that the costs incurred by the applicant arose from his failure to provide the required information prior to the making of the respondent's initial decision. The Tribunal also noted that the impact of a costs order on access to justice and other considerations arising under the objects of the Act may vary, depending on the nature of the proceedings. In the context of proceedings to review the decision of a regulatory body, as in the present case, it was stated that a regulatory body should not generally be burdened with a costs order when acting to protect professional or industry standards in the public interest.

Orders