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Fuge v Queensland Building and Construction Commission

Fuge v Queensland Building and Construction Commission

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Case Copied 4 August 2014 9 min read

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CITATION:

Fuge v Queensland Building and Construction Commission [2014] QCAT 383

PARTIES:	Paul Joseph Fuge (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

OCR390-12; OCR130-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Oliver

DELIVERED ON:

4 August 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for costs is dismissed.

CATCHWORDS:

COSTS – PERMITTED INDIVIDUAL APPLICATION – where applicant wholly successful in the application for review – where applicant applied for costs – where considerations of public policy – where the respondent has to balance the interests of consumers and building contractors – whether hearing necessary – where respondent model litigant

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

Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
McEwen v Barker Builders Pty Ltd [2010] QCAT 49
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412

APPEARANCES and REPRESENTATION (if any):

The application for costs was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

In 2012, Mr Fuge was categorised as an excluded individual under the Queensland Building and Construction Commission Act 1991 (Qld). He applied to the Queensland Building and Construction Commission (‘the Commission’) to be categorised as a permitted individual but that application was not successful. He then applied to the Queensland Civil and Administrative Tribunal to review the Commission’s decision. On 9 April 2014 the Tribunal set aside the Commission’s decision and categorised him as a permitted individual.
Mr Fuge has now applied for an order that the Commission pay his costs of the review application fixed at $23,122. The application for costs is opposed by the Commission.
Unlike the Courts, in the Tribunal costs do not follow the event because s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that ‘other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding’. That does not mean to say that the Tribunal cannot award costs. It can, because s 102 of the QCAT Act provides that the Tribunal can make an order for costs if it ‘is in the interests of justice’ to do so.
Section 102 sets out certain matters that might be taken into account in deciding whether it is appropriate to make an order for costs they include:
a)    Whether a party to a proceeding is acting to the disadvantage of the other;
b)    The nature and complexity of the dispute;
c)    The relative strengths of the claims made by the parties;
d)    Whether an applicant for a decision has been afforded natural justice or there was a genuine attempt to help the decision-maker;
e)    The financial circumstances of the parties and anything else the Tribunal considers relevant.
However, 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.

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Details

Case: [2014] QCAT 383
Decision Date

CaseChat Overview and Summary

In the case of Fuge v Queensland Building and Construction Commission, Paul Joseph Fuge, the applicant, sought to be categorised as a permitted individual under the Queensland Building and Construction Commission Act 1991. Fuge’s initial application to the Queensland Building and Construction Commission was unsuccessful, and he subsequently applied to the Queensland Civil and Administrative Tribunal for a review of the decision. On 9 April 2014, the Tribunal set aside the Commission’s decision and categorised Fuge as a permitted individual. Fuge then applied for an order that the Commission pay his costs of the review application fixed at $23,122. The Commission opposed the application for costs.

The legal issues before the court were whether the Tribunal could award costs against the Commission under the Queensland Civil and Administrative Tribunal Act 2009 and whether, in the interests of justice, it should do so. The court considered the statutory provisions governing costs and the relevant considerations under section 102 of the QCAT Act. The court also considered whether the Commission had acted in a way that was disadvantageous to Fuge, the nature and complexity of the dispute, the relative strengths of the claims made by the parties, whether Fuge had genuinely attempted to help the Commission make the decision, and whether there were any other relevant factors.

The court found that, while the Tribunal had the discretion to award costs under section 102 of the QCAT Act, the statutory mandate that parties must bear their own costs was strong. The court also found that there was no conduct on the part of the Commission that would justify, in the interests of justice, an order for costs against it. The Commission had a dual function in administering the Act, to protect the public interest and the interests of building contractors, and it must not be reticent in discharging its obligations for fear of adverse costs orders against it unless there was some specific conduct that would overcome the strong contra-indication against costs orders in section 100 of the QCAT Act. The court was not satisfied that this was the case here.

The court dismissed Fuge’s application for costs, and no order was made as to costs.

Orders