Gardener v Office of Liquor and Gaming Regulation
[2012] QCAT 62
•15 February 2012
| CITATION: | Gardener and Ors v Office of Liquor and Gaming Regulation and Anor [2012] QCAT 62 |
| PARTIES: | Howard Mark Gardener Steve Rudlin Kevin Miller Pamela Lawson |
| v | |
| Office of Liquor & Gaming Regulation (First Respondent) Piervale Pty Ltd (Second Respondent) |
| APPLICATION NUMBERS: | GAR206-11 / GAR279-11 / GAR280-11 / GAR281-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra G Deane, Member |
| DELIVERED ON: | 15 February 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for costs is dismissed. |
| CATCHWORDS: | COSTS – application dismissed Queensland Civil and Administrative Tribunal Act 2009, ss 48(1)(a)-(g), 100, 102, 103, 107 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This is an application for costs by Piervale.
Mr Gardener, Mr Rudlin, Mr Miller and Ms Lawson were all unsuccessful in their applications for extension of time and therefore their applications for review of a decision of the Chief Executive of the Office of Liquor and Gaming Regulation were also dismissed.
Piervale seeks costs against the applicants or their representative, Mr Steele.[1]
[1] Section 102 and 103 QCAT Act.
Piervale seeks an order that Piervale’s direct costs be paid or such of those costs as the Tribunal regards as being within its power to order be paid. Piervale has provided evidence of its costs.[2] These costs consist of Barrister’s fees in the sum of $15,785 (incl GST) and Liquor & Gaming Specialists’ costs in the sum of $9,435.70 (incl GST), a total of $25,220.70 (incl GST).
[2] Affidavit Matthew Jones sworn 13 December 2011.
The QCAT Act provides ‘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 proceedings.’[3]
[3] Queensland Civil and Administrative Tribunal Act 2009, s 100.
The Liquor Act 1992 is the relevant enabling Act. Sections 21 and 29A-34 of the Liquor Act 1992 set out the powers of QCAT to review certain decisions. There is no express provision in relation to the awarding of costs. Therefore the relevant provisions governing this application are those contained in the QCAT Act.
Section 102(1) states ‘The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.’
Piervale was represented by Liquor & Gaming Specialists and by counsel.
It is necessary to consider the matters referred to in section 102(3) of the QCAT Act, to the extent they are relevant to a particular case, to determine if the interests of justice point so compellingly to a costs award to overcome the starting position that each party bear their own costs.[4]
[4]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412.
[10] Written submissions made by Piervale through its representatives, Liquor & Gaming Specialists, assert that the applications relied upon speculative and superficial matters. The submissions contain serious accusations and use terminology such as “sinister” and “unethical” to describe Mr Steele’s and his clients’ behaviour and ironically rely upon speculation to support such assertions. The tone of the submissions is somewhat emotive and not what one would expect from a representative as distinct from a party. Matters which the Tribunal is required to consider in determining whether a costs order ought to be made are not addressed in much detail and many are not addressed at all by either Piervale or the Applicants.
Whether a party is acting in a way that unnecessarily disadvantages another party[5]
[5] Queensland Civil and Administrative Tribunal Act 2009 ss 48(1)(a)-(g), 102(3)(a).
[11] Piervale contends that the applicants or their representative, Mr Steele:
(a)acted in a way which unnecessarily disadvantaged it;
(b)attempted to deceive another party or the Tribunal;
(c)vexatiously conducted the proceeding.
[12] In support of these contentions Piervale relies upon:
(a)a chronology of events and correspondence by Mr Steele in which he does not particularise the clients for whom he is acting;
(b)the fact that these undisclosed clients were not the Applicants in these proceedings and did not bring an application for review;
(c)Mr Gardener’s initial application was substantially amended, apparently in response to Piervale’s strike out application;
(d)the applications were made considerably out of time;
(e)the doubtful nature of Mr Gardener’s standing;
(f)Piervale’s attempts to seek details of Mr Gardener’s standing;
(g)the subsequent commencement of proceedings by Mr Rudlin, Mr Miller and Ms Lawson said to be in response to the standing challenge;
(h)Mr Gardener’s affidavit sworn 16 August 2011 which it is said is evidence of Mr Gardener’s or Mr Steele’s attempt to deceive another party or the Tribunal as it is said that it:
(i)includes submissions and statements of opinion rather than matters of fact;
(ii)contains matters said to be unlikely to have been within his personal knowledge and does not disclose the source of knowledge;
(iii)contains matters which are misleading and offensive;
The fact that the applications did not address the merits of the decision subject of the review applications.
[13] As regards the submissions regarding Mr Gardener’s affidavit:
(a)I note that these objections were not taken at the hearing of the extension of time applications.
(b)The only objections made were in respect of paragraphs 6-11 of Mr Steele’s Affidavit of 7 October 2011 on the grounds of relevancy.
(c)The Tribunal is not governed by the strict rules of evidence and is required to act with as little formality as possible.
[14] A claim is not vexatious simply because it is not a strong case or the claim wholly fails[6]. It is to be remembered that the merits of the review applications have not been determined because the applications for extension of time failed.
The nature and complexity of the dispute[7]
[6] Civic Steel Homes v Mitra [2006] QDC 322; Leo v Paulsen [2010] QCAT 122.
[7] Queensland Civil and Administrative Tribunal Act 2009, s 102(3)(b).
[15] The extension of time and review applications involved complex matters. The extension of time application was not determined on the papers but rather required an oral hearing.
[16] This is a factor in favour of an award of costs.
Relative Strengths of the claims[8]
[8] Queensland Civil and Administrative Tribunal Act 2009, s 102(3)(c).
[17] Piervale contends that the applications did not address the merits of the decision to grant Piervale’s application for an Adult Entertainment Permit.
[18] As noted earlier in these reasons the merits of the review applications were not determined because time was not extended.
[19] Whether an extension of time would be granted was an exercise of discretion and required a consideration of whether Piervale would be prejudiced and whether that prejudice could be compensated.
Whether natural justice was afforded
[20] No submissions were made in relation to this matter.
Whether there were genuine attempts to enable and help the decision-maker to make the decision on the merits
[21] No submissions were made in relation to this matter.
The financial circumstances of the parties[9]
[9] Queensland Civil and Administrative Tribunal Act 2009, s 102(3)(e).
[22] There is no evidence of either Piervale’s or any of the Applicants’ financial circumstances.
Anything else that the Tribunal considers relevant[10]
[10] Queensland Civil and Administrative Tribunal Act 2009, s 102(3)(f).
[23] Piervale was successful in opposing the applications. This is a factor in favour of an award of costs but not in itself sufficient.
[24] The applications were dismissed at a relatively early stage of the proceedings.
[25] Setting aside the standing issue, the Applicants had all objected to Piervale’s application and were seeking external review in circumstances where there appears to be a number of events which occurred which seem unusual or irregular.[11] The awarding of costs against such parties may act as a deterrent to objectors exercising their rights of review. Such an outcome is not desirable and is a factor against awarding costs.
[11] [2011] QCAT 542 at [39].
Conclusion
[26] In my view having regard to the above factors most of which are not in favour of an award of costs, the interests of justice do not point so compellingly to a costs award such as to overcome the starting position that each party bear their own costs.
[27] I am also not satisfied that sufficient grounds have been established to justify an order for costs against Mr Steele. The allegations are serious and require more than speculation and inference to sustain them to my satisfaction.
Orders
The application for costs is dismissed.
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