de Zubicaray v Horsten (No 2)
[2012] QCATA 198
•11 October 2012
| CITATION: | de Zubicaray and Anor v Horsten (No 2) [2012] QCATA 198 |
| PARTIES: | Helen de Zubicaray Angel de Zubicaray (Appellants) |
| v | |
| Anna Horsten (Respondent) |
| APPLICATION NUMBER: | APL129-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 11 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for costs dismissed. |
| CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNAL – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application for leave to appeal – where application unsuccessful – whether costs should be awarded to successful respondent Queensland Civil and Administrative Tribunal Act 2009, ss 32, 47, 100, 102 Belmed Pty Ltd v Nichols Constructions Pty Ltd [2012] QCAT 452 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
This application to leave to appeal was heard on the papers, pursuant to the order of Senior Member Oliver, made on 3 May 2012.
The substantive application was adjudicated on 18 September 2012 and was decided in favour of the Respondent.
In paragraph 29(b) of her submissions dated 25 July 2012 the Respondent sought an order for costs, in the amount of $5,000. In the substantive decision that ancillary application was not adjudicated. Therefore it is res integra and no question of a formal reopening arises.
The relevant submission does not offer any reason why an order for costs should be made. However, on a liberal reading it may be related to paragraph 28(i), which asserts that there was “no reasonably arguable case that the learned Adjudicator was in error”. That is tantamount to a plea that the application for leave to appeal was frivolous and misconceived (if not vexatious[1]), unnecessarily disadvantaging[2] the Respondent.
[1] QCAT Act, s 47(1)(a).
[2] QCAT Act, s 102(3)(a).
Furthermore, there are no particulars of the $5,000 claimed, beyond a note that it includes “the cost of the audio recording of $17”.
It is trite law that costs in this Tribunal do not follow the event.[3] Exceptions to that mandatory rule are not to be made unless the interests of justice “point so compellingly to a costs award that they overcome the strong contra-indication[4] against costs orders in s 100.”[5]
[3] QCAT Act, s 100.
[4] Belmed Pty Ltd v Nichols Constructions Pty Ltd [2012] QCAT 452 at [17].
[5]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [29] per Wilson P.
I do not consider that a bare assertion of “no reasonably arguable case” is a sufficiently compelling reason to warrant an application of section 102. This case involved nice questions of fact and law in relation to the Dividing Fences Act 1953, a venerable statute, with a litigious history belying its mundane objects. The proceedings at first instance, albeit (with respect) correctly decided, were necessarily subject to severe time constraints, and in my view the de Zubicarays were entitled to seek a review without falling within the shadow of s 102.
The Respondent’s application for costs is dismissed.
ORDER
Application for costs dismissed.
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