Hallett & Ors v Queensland Building Services Authority
[2011] QCAT 355
•2 August 2011
| CITATION: | Hallett & Ors v Queensland Building Services Authority [2011] QCAT 355 |
| PARTIES: | Mr Mark William Hallett Mr Noe Vicca Mr Gordon Fogg |
| V | |
| Queensland Building Services Authority |
| APPLICATION NUMBER: | QR119-09 QR095-09 QR092-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Kerrie O’Callaghan, Senior Member |
| DELIVERED ON: | 2 August 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | [1] Application for costs is dismissed |
| CATCHWORDS: | Application for costs – discretion to order costs – applicable legislation when application commenced in former Tribunal; whether in the interests of justice to award costs pursuant to s102 of the Queensland Civil and Administrative Tribunal Act 2009. Commercial and Consumer Tribunal Act 2003 Ss70, 71 Tamawood Ltd & Anor v Paans [2005] QCA 111 |
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
The applicants (Messrs Hallet, Fogg & Vicca) each commenced an application to the then Commercial and Consumer Tribunal (CCT) to review a decision made by the respondent Queensland Building Services authority (QBSA) which decision was to refuse their applications to be “permitted individuals”.
QCAT commenced prior to the application being heard.
I heard the three applications together and allowed all three applications ordering the Authority’s decision to refuse to categorise the applicants as permitted individuals be set aside and substituted with the decision that the applicants be categorised as permitted individuals for the relevant event.
The successful applicants have applied for an order that the respondent pay the costs of the application.
Relevant legislation
These applications were commenced in the CCT but had not been heard before the commencement of QCAT in December 2009.
I agree with the authority’s submission that upon the commencement of QCAT these applications became “pending proceedings” under section 245 of the QCAT Act.
Accordingly under section 256 of the QCAT Act:
(2) At the commencement, the proceeding is taken to be a proceeding before QCAT.
(3) QCAT has jurisdiction to deal with the matter the subject of the proceeding under this Act.
Section 271 of the QCAT Act provides that:
(1) QCAT must deal with the matter the subject of the existing proceeding under this Act or an enabling Act.
(2) However, in relation to the matter—
(a) QCAT has, and only has, the functions that the former entity had in relation to the matter under the former Act; and
(b) QCAT can, and can only, make a decision the former entity could have made in relation to the matter under the former Act.
Both CCT and QCAT Acts contain provisions allowing the respective Tribunals to award costs, however the sections are worded differently and have been interpreted differently.
[10] As such it makes a difference whether the application for costs is determined by reference to the relevant provisions of the CCT Act or the QCAT Act.
[11] The applicants in their submissions make reference to both Acts but make no submission as to which is the applicable provision.
[12] The Authority submits that as per section 271 of the QCAT Act QCAT must deal with the matter under the QCAT Act but only has the powers that the CCT had. The CCT had power to award costs.
[13] They argue that “this results in the position that QCAT has the power to award costs, but must deal with the matter under the QCAT Act that is by application of section 102 of the QCAT Act.”
[14] I accept this reasoning and find that the relevant legislation when considering whether to make an order of costs in this case is section 102 of the QCAT Act.
[15] This is a relevant determination.
[16] The two sections provide a different starting point in the determination of an application for costs.
[17] Section 70 of the CCT Act provides:
“the main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise”
[18] Section 71(4) sets out criteria that the CCT could have regard to in considering whether to award costs.
[19] Section 100 of 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 proceeding.”
[20] Section 102(1) states:
(1)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.
[21] Sub section (3) goes on to provide certain criteria that the Tribunal may have regard to in deciding whether or not it is in the interests of justice to make an order for costs.
[22] The difference between the provisions was articulated in the Appeal Tribunal decision of the QCAT President in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments [2] [2010] QCAT 412.
[23] The President analysed the applicability of the principals annunciated by Justice Keane in the Queensland Court of Appeal decision of Tamawood Ltd v Paams.
[24] The comments of Justice Keane in that case concerned section 70 of the CCT Act.
[25] The President commented as follows:
“In considering subsections 70 and 71 Keane JA (as His Honour then was) referred, however, to two matters relevant here. First, His Honour felt that the CCT provisions negated the traditional position that costs should prima facie follow the event (unless of course that the Tribunal considers that another order is more appropriate) and that the nature and extent of the power to award costs could only be discerned by close consideration of the terms of the statute which created and prescribed the occasions and conditions for its exercise. Section 100 and 102 of the QCAT Act attract the operation of the same principals.
Second, Keane JA was of the view that where the complexity of the matter justified legal representation, it would not be in the interests of justice to bar the successful party from recovering costs that were reasonably necessary to achieve a satisfactory outcome.
That conclusion must, here, be considered in the light of the difference between section 70 of the CCT Act and section 100 of the QCAT Act. Section 70 speaks of a “main purpose” but section 100 mandates that parties shall bear their own costs. Section 70 contains, within itself, a reference to the condition or circumstance in which the main purpose may be subsumed to the interests of justice; section 100 has no such proviso, although it appears later in section 102(1).”
[26] In their submissions the applicants refer to the Tamawood decision in support of their application and say:
“Under the previous statutory regime, Tribunal’s have adopted a practise of awarding costs in cases like the instant one. The terms of section 102 of the new Act are not relevantly different from the terms of the old Act, considered by the Court of Appeal in the Tamawood decision.”
[27] This submission does not take account of the inconsistencies in the provisions raised by the President in the Ralacom decision.
[28] On his analysis the sections are relevantly different. He went on in that decision to say:
“Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstance is 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 – indicator against costs orders in section 100.”
[29] The circumstances relevant to considering whether a costs order is in the interests of justice are set out in section 102(3).
[30] The parties made submissions in relation to some of those relevant circumstances.
[31] Dealing with the circumstances in section 102(3),
(a)whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding.
The applicants do not submit that the Authority acted in such a way
(b)the nature and complexity of the dispute the subject of the proceeding;
[32] The applicants submit that the case is complex in that it involved a “consideration of the demise of a company and an assessment of whether when a “rogue” director has taken control of that company, liquidation, administration or some other course is appropriate.”
[33] The QBSA suggest that the issues were not overly complex.
[34] I consider that neither the facts nor the law in this case were particularly complex. There was no complicated accounting evidence exercise to conduct which is sometimes the case in the permitted individual matters. It was a matter of analysing whether there were reasonable steps which should have been taken which weren’t.
[35] The QBSA said there were steps that could have been taken for example replacing the rogue director. I found on analysis that this was not a reasonable step which should have been taken.
(c)Strengths of the claim
[36] The applicants in the end had a stronger argument, however, in itself that does not warrant the costs order. It was not unreasonable for the QBSA to maintain its position. I accept the submission of the QBSA that the original decision maker of the Authority did not have the benefit of seeing and hearing the applicants in person which the Tribunal did when considering the matter afresh.
(d)For a proceeding for a 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.
[37] This was a review so it is relevant to consider these issues. The applicant does not suggest they were not afforded natural justice.
[38] As pointed out by the applicant the applicant did give the Authority advanced notice of their cases by virtue of their detailed affidavits and as such did genuinely help the decision maker to make the decision on the merits. However that in itself is not sufficient to make a finding that is in the interest of justice toward costs.
(e)The financial circumstances of the parties to the proceeding.
[39] The applicant makes no submissions on this point. The Authority says it does not have unlimited budgetary constraints and that it should be able to make independent and responsible decisions in respect of the licensing regime without having a cautionary eye to budgetary matters. They say that the applicants were professional men however no particular evidence was given on this point. I would assume that if this were an issue of importance to the applicants they would have raised it. I do not consider it to be a significant factor in consideration of the application for costs.
[40] In summary, I do not consider that this to be a case where the circumstances relevant to the exercise of discretion are such to override the primary position that each party bear their own costs.
[41] The application for costs is dismissed.
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