Drane v Taylor (No 2)

[2022] QCATA 157

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Drane v Taylor (No 2) [2022] QCATA 157

PARTIES:

matthew neville drane

(applicant/appellant)

v

lauren maree taylor

(respondent)

APPLICATION NO/S:

APL104-21

ORIGINATING APPLICATION NO/S:

MCDO5/20

MATTER TYPE:

Appeals

DELIVERED ON:

6 October 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

The appellant pay to the respondent as costs of the application for leave to appeal fixed in the sum of $5,500.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – costs – appeal jurisdiction - application for leave to appeal from decision in minor civil dispute – whether costs limited by Rules – leave to be represented refused – effect of refusal – lawyer assisting party by preparing submissions in writing – whether bar to order or discretionary consideration – whether application for leave to appeal vexatious – significance of weakness of case – costs ordered

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 43, s 100, s 102

Australian Competition and Consumer Commission v IBM Group Pty Ltd (in liquidation) [2004] FCA 1592
Cachia v Hanes (1994) 179 CLR 403
Cowen v Queensland Building and Construction Commission  [2021] QCATA 103
Crowdey v Townsville City Council [2014] QCATA 190
Davey v Dessco Pty Ltd [2019] FCA 1735
Dobree v Hoffman [1995] WASC 689
Malloch v Aberdeen Corporation (No 2) [1973] 1 WLR 71
Maszlik v Palmer [2016] QCATA 94
Martin v Gosdchan [2011] QCATA 71
Marzini v Health Ombudsman (No 4) [2020] QCAT 365
Meiklejohn’s Accountants (Qld) Pty Ltd v Chen [2016] QCATA 1
Oatley v Pertzel [2011] QCATA 92
Port Kennedy Resorts Pty Ltd v Freehills (a firm) [2000] WASC 217
Sommers v Bycroft [2020] QCATA 55
State of Queensland v Rushton [2011] QCATA 117

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

1. In this matter I refused leave to appeal from the decision of a Member in a minor civil dispute – minor debt claim, for reasons which I published on 3 February 2022.[1]  In that decision I made provision for the appellant to make submissions as to why no order for costs should be made against him, and for the respondent to make submissions in response.  Those submissions were made promptly, but the file was not referred back to me until recently.  The submissions for the appellant raised a number of issues. 

   [1][2022] QCATA 12.

Minor civil dispute issue

1. The appellant relied on the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 102(2), on the basis that it confined the costs which could be awarded to those provided under the rules for minor civil disputes. He relied on the decision in Maszlik v Palmer [2016] QCATA 94 that the effect of that provision was that no costs could be awarded at all in an application for leave to appeal from the decision in a minor civil dispute, as the rules made no provision for such costs.

2. The decision in Maszlik was considered by a differently constituted Appeal Tribunal in Sommers v Bycroft [2020] QCATA 55, and not followed.[2]  I agree with the analysis of the situation in Sommers, which I need not repeat. I would add that the QCAT Act s 9, and the rest of Chapter 2 Part 1, make it clear that there is a difference between the Tribunal’s jurisdiction for minor civil disputes and the Tribunal’s appeal jurisdiction. An application for leave to appeal is a different proceeding from the proceeding for the minor civil dispute, not a continuation of the same proceeding,[3] and it follows that a party to an application for leave to appeal from the decision in a minor civil dispute is not at that point a party to a minor civil dispute. I therefore respectfully differ from the view expressed in Maszlik, and consider that the QCAT Act s 102(2) is not a bar to an order for costs against the appellant.

   [2]In those circumstances, there is no consideration of comity which would otherwise support my following the decision in Maszlik. 

   [3]Martin v Gosdchan [2011] QCATA 71 at [11], per Wilson J.

No leave to be legally represented

1. The QCAT Act s 43(1) provides that parties are to represent themselves in a proceeding unless the interests of justice require otherwise. There are exceptions, but none of them are applicable. The Tribunal may give leave for a party to be represented: s 43(2)(b)(4). Section 43 applies in all aspects of the Tribunal’s jurisdiction, including the appeal jurisdiction, where the function of a representative is to present submissions, to comply with directions and to deal with any interlocutory issues.[4] As a general proposition, the representative must be a lawyer, although the Tribunal has power in an appropriate case to allow a non-lawyer to represent a party: the QCAT Act s 43(4). Generally when leave is given it is on the basis of the complexity of the matter.

   [4]Cello Court Pty Ltd v Body Corporate for Cello Court CTS 42339 [2021] QCATA 62 at [35].

2. In this application for leave to appeal, the respondent did apply for leave to be legally represented, but the Tribunal refused leave, unless there was an oral hearing, which did not occur.[5]  In Sommers (supra) the Appeal Tribunal considered that legal costs could be awarded to a party who did not have leave to be represented where there was no oral hearing.  The point was made that a party could arrange for a lawyer to draft written submissions for the party to sign, which is true, and unless a lawyer appears at a hearing the Tribunal has no means of detecting legal assistance in that form.[6]  It may be however that the advantage in obtaining leave is that, if successful, it may allow costs to be awarded.

   [5]Directions of 9 August 2021. 

   [6]Indeed, a party who has not obtained leave is still entitled to have the assistance of a lawyer in preparing submissions and other documents: Callil v Kosonen [2018] QCATA 62 at [8].

3. Although the QCAT Act does not say so expressly, it has always been understood that when the QCAT Act deals with costs in Part 6 of Division 6 of Chapter 2, it is referring to legal costs.[7] There is a close relationship between s 102 and s 43: both make the test that the order is required by the interests of justice. The fact that it is in the interests of justice for a party to be represented means that it may well be in the interests of justice for there to be an order for costs.[8]  Conversely, if it is not in the interests of justice for a party to be represented, it becomes difficult to say that the interests of justice require that that party receive an order for costs. 

   [7]See Cachia v Hanes (1994) 179 CLR 403 at 409. It may be that in the QCAT Act the term could have a wider meaning, but that does not arise here: see Northern Territory v Lands and Mining Tribunal (2002) 12 NTLR 139 at [40]; Aussie Invest Corporation Pty Ltd v Hobson’s Bay City Council (2004) 22 VAR 212, [2004] VCAT 2188 at [18]. [19].

   [8]Tamawood Ltd v Paans [2005] 2 Qd R 101 at [25], [30].

4. The reasons in Sommers (supra) referred to the proposition that it was unnecessary for there to be an application for leave to be legally represented if the appeal was to be dealt with on the papers, and referred to earlier decisions of the Tribunal where the question arose whether costs orders could be made in favour of parties who had not received leave to be legally represented.  In Oatley v Pertzel [2011] QCATA 92 Wilson J, the first President of the Tribunal, seems to have regarded the absence of leave under s 43 as meaning that it would not be appropriate to make an order for costs. That was a matter dealt with on the papers, but in Meiklejohn’s Accountants (Qld) Pty Ltd v Chen [2016] QCATA 1 a Senior Member said that, because there was no oral hearing, the party seeking costs did not need the Tribunal’s leave, and later that the QCAT Act speaks against representation at hearings.[9] 

   [9]Reasons [15], [2]. 

5. Section 43, although it uses the word “appear” in s 43(2)(a), speaks of “representation in a proceeding”, not representation at a hearing. Section 43 is in Part 4 of Chapter 2, dealing with parties to a proceeding, rather than Part 6 Division 5, dealing with hearings. I note that the QCAT Rules, in Division 1 of Part 7, provide for “appearance by” parties who are not individuals, although rule 52 distinguishes between how a party “may appear in a proceeding” and how a party “may be represented in a proceeding”. That reflects the distinction between acting generally in a matter, and speaking at a hearing, whether in person or by electronic communication. I therefore conclude that the QCAT Act s 43 is concerned with a situation where one person acts generally in a proceeding on behalf of another, and not just with who speaks at a hearing.

6. That appears to be consistent with the initial view taken by the Tribunal about the operation of s 43. A comment by Wilson J in Ash Industries Pty Ltd v Plumb [2010] QCATA 53 at [7] suggested that he considered that a party required leave under s 43 to place written submissions before the Appeal Tribunal, although the proposition was not clearly stated. In Martin v Gosdchan [2011] QCATA 71 Wilson J granted leave to be represented under s 43 to both parties,[10] although the matter was to be dealt with on the papers, as appears from another direction he gave.[11]  The approach was not always consistent: in State of Queensland v Rushton [2011] QCATA 117 there was an unsuccessful application for leave to appeal against the refusal to give leave for representation, where it is clear that the application was made and advanced (in writing) by a lawyer for the appellants, but this was not the subject of comment. The decision points up the difficulty in the operation of s 43 in the context of an appeal or application for leave to appeal dealt with on the papers.

   [10]Somewhat reluctantly, because the lawyers were already involved and extensive submissions in writing involving a number of legal issues had already been filed in the Tribunal.  He seemed to consider that the legal issues had arisen because of the involvement of the lawyers, but presumably they were always there, and without the lawyers would have been overlooked or ignored. 

   [11]My impression is that in the early days the Tribunal was quite reluctant to grant leave to be represented, even to Government departments or agencies, at least unless there would otherwise be a significant imbalance in ability. 

7. The impracticality of this was also referred to in Sommers (supra).  There is the additional complication that a party who has been given leave to be represented at first instance needs to apply again for leave in any appeal or application for leave to appeal, because, as discussed above, it is a separate proceeding.  In Crowdey v Townsville City Council [2014] QCATA 190 the Tribunal said that, if legal representation were refused, a lawyer could still assist a party in the formulation of the party’s case; but assisting the party at a hearing was going too far: [5], [6].

8. I do not accept the reasoning in Meiklejohn’s Accountants (supra). Section 43 is not just about who can speak at an oral hearing, and is concerned with who can act on behalf of another in a proceeding. This would include speaking at an oral hearing, but would extend to making submissions, signing, filing and serving documents, and being the channel of communications for the party for the proceeding. Leave was required for a lawyer to represent the respondent in the proceeding, whether or not there was an oral hearing.

9. It does not follow that there is some implied prohibition on a party obtaining legal assistance in connection with a proceeding, but that lawyer will not represent the respondent in the proceeding. The next issue which arises, for present purposes, is whether the provisions of the QCAT Act and Rules dealing with costs apply to legal costs only where such costs were incurred in connection with a lawyer representing the party in the proceeding.

10. The provisions of the QCAT Act are general as to the costs which may be ordered under Division 6 of Part 6. Section 100 speaks of “the party’s own costs for the proceeding”, while s 102(1) is more general, permitting an order to pay “the costs of another party to the proceeding.”[12]  The fact that a party is not represented in a proceeding does not mean that no costs can be recovered by that party; filing fees and out of pocket expenses can be awarded, as shown by the QCAT Rules, r 84(1).  A litigant in person can recover various costs, generally out of pocket expenses, but not compensation for the litigant’s own time, or compensation for services provided gratuitously by another.[13]  There is some authority that this does not extend to professional functions for which a fee could be charged. 

    [12]Obviously the words “to the proceeding” govern “party”, not “costs”.

    [13]Dal Pont “Law of Costs” (4^th Ed 2018) p 185. 

11. In Australian Competition and Consumer Commission v IBM Group Pty Ltd (in liquidation) [2004] FCA 1592 Kiefel J as her Honour then was said at [11], speaking about a charge made by two litigants in person to other litigants in person for preparing and presenting their case:

    Moreover they do not seem to me to come within the meaning of ‘out of pocket’ expenses which, in the context of claims for costs, refer to those expenses paid or incurred other than those for the actual preparation and presentation of the case. Out of pocket expenses may extend to an agent performing some functions, for example attending to file documents in Court, but they could not extend to the performance of professional functions for which a fee is then required to be paid.

12. This decision was based on the decision of the High Court in Cachia v Hanes (supra), which rejected the proposition that an engineer could charge as “costs” an allowance for his own time in preparing the case he ran himself, successfully.  The majority said at [6]: 

    The "costs" provided for in the Rules do not include time spent by a litigant who is not a lawyer in preparing and conducting his case. They are confined to money paid or liabilities incurred for professional legal services. It is only in that sense that the Rules speak of "costs". 

13. There was little reference in that case to disbursements or “out of pocket” expenses, but the majority disallowed travelling expenses (claimed in addition to a witness fee, which they said was recoverable) and travelling expenses to receive reserved judgment: [25]. They also rejected the idea of allowing the litigant in person earnings lost in preparation or conduct of his case: [24]. The majority was critical of the exception for a solicitor litigant, but did not then reject it; that occurred more recently, in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29, (2019) 93 ALJR 1007. It does not appear to me that the majority in Cachia (supra) rejected the idea of a litigant in person recovering as costs amounts paid to a lawyer for specific assistance in preparing the case, although they would have regarded that as professional legal work rather than as a disbursement. 

14. Consider a case where a litigant in person obtains the assistance of a barrister, on a direct brief, to settle a pleading or to advise on evidence.  The barrister’s fee would be recoverable on assessment if the barrister were briefed by a solicitor acting for the person, and there are decisions that say that it should be recoverable if a costs order is made in favour of the litigant in person, subject to the usual considerations on assessment of meeting the test for party and party costs, and as to quantum.  With respect, I do not think that is the sort of thing her Honour was speaking about in IBM Group (supra), where the issues were different. 

15. It has been said that fees for a solicitor to assist a litigant in person to prepare documents or to prepare to present a case have always been regarded as recoverable.[14]  In Malloch v Aberdeen Corporation (No 2) [1973] 1 WLR 71 the House of Lords allowed as part of the costs of a litigant in person the fees for a solicitor to assist in preparing submissions in writing, and to help the litigant prepare for presenting the case to the House. It has been held that fees to counsel are recoverable by a litigant in person.[15]  In Davey v Dessco Pty Ltd [2019] FCA 1735 it was held that Bell Lawyers (supra) did not have the consequence that a costs order in favour of a solicitor litigant should be expressly confined to “out of pocket” expenses.  It was said that all that was decided was that the litigant was not entitled to recompense for his own time, but that otherwise he could recover all costs properly recoverable.[16] 

    [14]Quick on Costs, at [210.720]. 

    [15]Dobree v Hoffman [1995] WASC 689; Port Kennedy Resorts Pty Ltd v Freehills (a firm) [2000] WASC 217 at [61]. Both of these decisions involved solicitor litigants, but each court, anticipating Bell Lawyers (supra), treated them like any litigants in person. 

    [16]This was before any assessment had occurred, and just involved a dispute over the appropriate form of the order for costs. 

16. In view of these decisions, I consider that a litigant in person who does obtain some assistance from a lawyer in the preparation of his or her case and obtains an order for costs can ordinarily recover amounts for the work done by the lawyer, subject to the usual considerations on assessment. In those circumstances, I consider that the “costs” referred to in the QCAT Act s 102 includes legal costs as well as out of pocket expenses of a litigant in person, which can (but will not necessarily) include amounts paid to a lawyer for advice and assistance in connection with the proceeding.

17. On the other hand, it is still necessary to satisfy the test in s 102, and the fact that the person did not obtain leave to be represented in the proceeding is a factor relevant to the exercise of the discretion as to costs. In Oatley (supra) Wilson J did not clarify whether the costs order was refused on the basis that the absence of leave to be represented was a bar to an order, or whether that matter was a discretionary consideration against making such an order.  In view of his Honour’s attitude to costs in the Tribunal, the existence of that as a discretionary consideration could well have been enough to refuse an order for costs to the successful party. 

18. I consider that the true position is that the absence of leave to be represented (where that is required) does not mean that no legal costs can be allowed to a party. Rather the absence of leave to be represented is a discretionary factor relevant to deciding whether the interests of justice require that an order for costs be made. The QCAT Act does not require leave to be represented as a pre-requisite for an order for costs, or for the recovery under an order for costs of fees for a lawyer recoverable in a court. It appears to be established that a person who is not represented by a lawyer under s 43 can still obtain legal assistance, and the cost of the lawyer would be recoverable under an order for costs, subject to discretionary considerations.

19. In the present case, an application for leave was made and refused. Ordinarily that would be a significant factor, but I am concerned about the qualification to the order, that if there were to be an oral hearing, the possibility of leave remained open.  That suggests to me that the Senior Member was approaching the matter on the basis that leave might be appropriate if there was an oral hearing but was otherwise unnecessary, consistent with the decision in Meiklejohn’s Accountants (supra), rather than a conclusion that the issues were not sufficiently complex to warrant leave to be represented at all.  Further, there is a note on the file, apparently made by the Senior Member, about that application: “No oral hearing [requested].  No need for rep[resentation] unless Appeal Tribunal otherwise orders oral hearing.”  That supports such a conclusion. 

1. If the refusal of leave was based on an approach to s 43 different from the one I would accept as correct, I consider it follows that the significance of this factor as a discretionary consideration is greatly diminished. It remains necessary to consider whether the interests of justice require an order for costs: the QCAT Act s 102(1).

Approach to s 102(1)

1. The appellant in submissions also adopted the reasoning in Sommers (supra) as to the significance of the costs provisions of the QCAT Act, and in particular that there was a “strong contra-indication against the making of an order for costs”: [26]. This expression was presumably based on what was said by Wilson J in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [28]. In Marzini v Health Ombudsman (No 4) [2020] QCAT 365 and in Cowen v Queensland Building and Construction Commission [2021] QCATA 103 I discussed this comment, and concluded that it did not confine the discretion under s 102(1), which was to be applied according to its terms. I remain of those views as to the operation of the provisions.

2. That section indicates that the starting point is that the parties are to bear their own costs, and that an order for costs will not be made unless the interests of justice require one.  The use of the word “require” means that such an order should not be made too readily, but I do not consider that the applicable sections contain any strong contra-indication against the making of an order for costs.  It depends on whether, in the circumstances, the interests of justice require one.  It follows that I do not accept this part of the reasoning in Sommers (supra).   

3. I also do not agree with the proposition that a person filing an application for leave to appeal or appeal will have a reasonable expectation that no order for costs will be made in respect of the proceeding so initiated.  The appropriate expectation would be that there will be no order for costs unless the interests of justice require one, but a conclusion may well be open that they do require one.  It is one thing to say that a litigant in person should not have to pay the costs of a hopeless case run in the Tribunal, where that may be a matter of ignorance or incompetence by the applicant, and another to say that an applicant whose case has failed for objectively good reasons should be entitled to run an appeal (or an application for leave to appeal) as well without being exposed to an order for costs. 

Consideration

1. In the present case, the respondent submitted that the appeal was vexatious, something I did not have to decide when refusing leave to appeal, but the submission was repeated in relation to costs.  A conclusion that the application for leave to appeal was vexatious would provide strong grounds for making an order for costs.  Vexatious proceedings are not in the interests of justice. 

2. In support of this proposition, the respondent referred to proceedings taken in New South Wales, where the appellant applied unsuccessfully for an apprehended violence order against the respondent, then appealed that decision to the District Court, also unsuccessfully.  An order for costs was made against the appellant following the failure of the initial application, and a further order for costs was made on the failure of the appeal.[17]  As I mentioned in the earlier reasons, the parties were at one time in a relationship which the respondent ended, against the wishes of the appellant.  As will be apparent from those reasons, there was compelling evidence available to the respondent inconsistent with the appellant’s claim, but the appellant persisted to a hearing at first instance, and pursued the application for leave to appeal. 

   [17]This appears from the copy of the Order of the District Court of 4 November 2021, attached to the submissions for the respondent.  The Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 99 gives courts a general discretion to order professional costs in such matters. This was relied on as evidence of a pattern of the use of court proceedings to harass the respondent.

3. All of the matters raised in the application for leave to appeal were without substance.  It ought to have been apparent to the appellant, in view of the decision at first instance, that any application for leave to appeal had no real prospects of succeeding.  In the circumstances, I consider that it is appropriate to draw the inference that the application for leave to appeal was vexatious.  Even if it were not, it had so little prospect of success that a litigant in the position of the appellant who chose to pursue it was exposed to a finding that the interests of justice required an order for costs against him when it failed. 

4. On the basis that the application for leave to appeal was vexatious, s 102(3)(a) applies. In any case, s 102(3)(c) applies. The material indicates that the respondent is in quite modest financial circumstances; she alleges that the appellant is well off, but there is no independent confirmation of this. Some of the issues raised in the application for leave to appeal had some technical complexity, as did the matters raised by the appellant in relation to the question of costs. The other matters which I consider relevant are:

   (a)this was an application for leave to appeal rather than a proceeding at first instance, as discussed above; and

   (b)the outcome of the application for leave to be represented.  As I have said, in the circumstances I consider that that outcome lacks the significant weight it might otherwise have had. 

5. Overall therefore I consider that the interests of justice do require that an order for costs be made against the appellant in relation to the appeal.  The appellant claimed two items, a charge of $3,000 plus GST for preparing the submissions in writing for the substantive appeal, and a charge of $2,000 plus GST for preparing the submissions as to costs.  This is in effect a claim for indemnity costs.  Given the lack of substance in the appellant’s submissions on appeal, the charge for preparing a response to it seems high; but there was a transcript and other material to read, which takes time, and the appellant raised a number of issues which required at least some investigation.  I will not reduce it. 

6. The QCAT Act s 107(1) encourages the Tribunal to fix costs if it concludes that a costs order should be made. The QCAT Act s 107(3) permits but does not require the costs to be on any particular scale under the rules applying to a court. I consider that that permits costs to be awarded on a standard basis, under a court scale, or on an indemnity basis, or for the Tribunal simply to fix costs at a particular figure taking into account the Tribunal’s assessment of the reasonable requirements of the interests of justice in the particular case. In the present case, I consider it appropriate to fix the costs at $5,500.

7. The decision of the Appeal Tribunal is that the appellant pay to the respondent as costs of the application for leave to appeal the sum of $5,500.