Godbold v Queensland Building Services Authority (No 2)
[2012] QCAT 547
•9 November 2012
| CITATION: | Godbold and Anor v Queensland Building Services Authority and Anor (No 2) [2012] QCAT 547 |
| PARTIES: | Grant Allan Godbold Julianne Jennifer Godbold (Applicants) |
| v | |
| Queensland Building Services Authority (First Respondent) John Camilleri (Second Respondent) |
| APPLICATION NUMBER: | GAR154-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peter Walker, Member |
| DELIVERED ON: | 9 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That the Applicants' application for costs be dismissed. |
| CATCHWORDS: | Where Applicants successful at hearing – where application for costs against First Respondent – matters relevant to exercise of discretion Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102(1), 103(3) Tamawood Ltd & Anor v Paans [2005] 2 Qd R 101 |
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
Background
This Application relates to a decision made by me dated 31 May, 2012 in respect of which the Applicant was successful.
The Applicants now seek an Order that the Respondent, the Queensland Building Services Authority pay the Applicants' legal costs fixed at $72,750.16 or such proportion of that amount as is considered reasonable in relation to the proceedings.
Legislation
Costs in this jurisdiction are governed by the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act). Section 100 of the QCAT Act provides as follows:
Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the parties own costs of the proceeding.
This provision, however, must be read in conjunction with section 102 of the QCAT Act, particularly subsections (1) and (3).
Section 102 (1) provides:
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.
Section 102 (3) provides:
In deciding whether to award costs under subsection 1 or 2, the Tribunal may have regard to the following:
(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
(b) the nature and complexity of the dispute the subject of the proceeding;
(c) the relative strengths of the claims made by each of the parties to the proceeding;
(d) for a proceeding for the review of a reviewable decision—
(i)whether the applicant was afforded natural justice by the decision-maker for the decision; and
(ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
(e) the financial circumstances of the parties to the proceeding;
(f) anything else the tribunal considers relevant.
General Approach
I am referred to a number of decisions by the parties that I should take into consideration in respect of this matter. For the Applicants the decision that is primarily relied upon is that of Keane JA in Tamawood Ltd & Anor v Paans[1] (Tamawood).
[1] [2005] 2 Qd R 101.
That decision concerned an Appeal of the Commercial and Consumer Tribunal in respect of costs under section 71(4)(c) of the now repealed Commercial and Consumer Tribunal Act 2003 (CCT Act) which allowed the CCT to have regard to the “nature and complexity of the proceeding"[2] in deciding whether to award costs. Importantly it was stated as follows:
"in the absence of countervailing considerations where a party has reasonably incurred the cost of legal representation and has been successful before the Tribunal, it could not rationally be said to be in the interests of Justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome. Finally, in this regard, it should also be borne in mind Section 71 (4) (a) of the Act expressly recognises that “the outcome of the proceeding” is a consideration which is relevant to the exercise of the discretion conferred by Section 71 (1) of the Act”.[3]
[2] See CCT Act section 71(4)(c).
[3] Tamawood at [33].
I accept that it is within my power to exercise any discretion to award costs if I consider it appropriate particularly having regard to the provisions of section 102(3) of the QCAT Act.
Whilst I accept that the decision in Tamawood provides some guidance for the approach I should take, I consider that the decision needs to considered in the light of Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)[4] (Ralacom). In that decision the President referred to distinctions between the legislative provisions in the CCT Act and the QCAT Act[5] and concludes:
Under the QCAT Act, the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase “the interests of justice” point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s100.[6]
[4] [2010] QCAT 412.
[5] See paragraphs 24 to 29.
[6] Paragraph 29.
The question that I therefore need to consider in my view is in the circumstances of this matter is whether the Applicants are able to demonstrate that the interests of justice point so compellingly to a costs award that they overcome the commencing point as set in section 100 namely that each party would ordinarily bear their own costs.
The starting point for this analysis is the provisions of s 102 (3).
Section 102(3)(a)
So far as ss (a) is concerned, I am not convinced that the First Respondent acted in a way that unnecessarily disadvantaged the Applicants[7]. Whilst there are aspects of the way in which the matter had been conducted, that with the benefit of hindsight could perhaps have been handled differently, it is my general experience that it always easier to judge the actions of a party in hindsight. There does not appear to be anything in the way this matter was conducted, in my opinion that places it outside the “norm”. Clearly the Applicant pursued issues of quantum that were not relevant to the hearing that was conducted[8]. However it seems to me that it was done in response to a letter from the First Respondent that was unsurprising in its content and was never likely to be a live issue in the present proceedings which were to review a decision.
[7]See Applicants' submissions on costs at paragraph 7.15 summarising the basis of this submission.
[8] See Applicants' submissions at paragraphs 6.36 to 6.39.
Section 102(3)(d)
Combined with this submission by the Applicant is one based on ss (d)(i) and (ii). It is asserted effectively that the fact that the First Respondent made a decision to reject the claim, despite the information in its possession, leads to a conclusion that there has been a denial of natural justice.[9] With due respect I do not agree with this submission. There clearly was considerable discourse, both oral and written, between the First Respondent and the Applicant.[10] I am of the view that the Applicant was given every opportunity to present its case to the Respondent and did so. Procedurally the matter was clearly pursued appropriately.
[9] See Applicants' submissions at paragraph 7.6.
[10]The details of this in the period prior to commencement of the proceedings are contained in the First Respondent’s submissions at paragraphs 20 to 29.
So far as s 102(3)(d)(ii) is concerned it seems to me that this provision is more relevant to potential costs orders against Applicants that are not co-operative rather than to this situation. However to the extent that it is relevant, I am satisfied that the Applicants genuinely attempted to assist the decision making process. This is only one factor, however, and in the circumstances of this case, a small one.
Section 102(3)(b)
It is further submitted on behalf of the Applicants that the proceedings were both factually and legally complex, involving issues of construction of documents and termination.[11]
[11] See Applicants' submissions at paragraphs 7.1 to 7.9.
It is certainly true that these were issues involved in these proceedings. But more than anything, it seems to me, the case was about facts. The issue of termination was entirely dependent on facts surrounding the Second Respondent’s financial circumstances. In the final analysis this came down to findings about what I accepted Mr Camilleri had said.
It is outside my knowledge as to why the parties were granted leave to be legally represented and I don’t believe it is appropriate for me to make any assumptions based on this fact alone.
Overall there is nothing about this matter which places it outside the usual case, in terms of its complexity, that would justify the displacing of the ordinary position as expressed in s 100 of the QCAT Act.
Section 102(3)(e)
I do not have any real information before me that would permit me to take account of the Applicants' financial circumstances, despite the Applicants' submissions[12]. Certainly it would be unusual for individuals to have the same level of financial resources as the First Respondent. However in my view it would be inappropriate to make a costs order based on this general impression. If it was the case that this should occur the First Respondent would be liable for costs orders almost every time it was unsuccessful. That would create an unfortunate and inappropriate precedent.
[12] See Applicants' submissions at paragraphs 17.17 to 17.21.
Section 102(3)(f)
The Applicants' submissions in this respect are really to the effect that this was such a clear case that the First Respondent should never have made the decision that it did and was always bound to be unsuccessful in these proceedings.
I must say that I did not find that to be the case. While it was apparent, and would at all material times have been apparent to the First Respondent that the Second Respondent was experiencing financial difficulties it was not the clear case where an external administrator or trustee was ever appointed. Further the Second Respondent did adduce evidence that he had financial resources available to him that would have permitted him to complete the contract. All this evidence needed to be weighed up and considered in the context of cross examination for an appropriate conclusion to be reached. The only appropriate way to test this competing evidence was to proceed to a hearing.
Order
Overall, it does not seem to me that any of the factors alluded to section 102(3) of the QCAT Act are relative or sufficient to overthrow the basic presumption provided by section 100 of the QCAT Act. In those circumstances, it seems to me that the Application for costs should be dismissed.
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