Henley v Queensland Building Services Authority (No 2)
[2010] QCAT 670
•20 December 2010
| CITATION: | Henley v Queensland Building Services Authority (No 2) [2010] QCAT 670 |
| PARTIES: | Mr Robert James Henley |
| v | |
| Queensland Building Services Authority |
| APPLICATION NUMBER: | QR113-09 |
| MATTER TYPE: | Occupational Regulation Matters |
| DECISION ON THE PAPERS OF: | Mr Mark Johnston |
| DELIVERED ON: | 20 December 2010 |
| DELIVERED AT: | Cairns |
ORDERS MADE: | The Applicant will pay the Respondent’s costs of the proceedings to be assessed on the standard basis using the District Court Scale relating to judgments of less than $50,000.00. The Respondent’s costs will be assessed as follows: (a) the Respondent shall deliver to the Applicant an itemized claim for costs referring to the relevant items contained in the scale; (b) if within 14 days of that delivery, the parties have not agreed to an amount for costs, the costs shall be assessed by Hickey and Garrett, costs assessors. The Applicant shall pay the Respondent’s costs (as agreed or assessed) within 21 days of such agreement or assessment. |
| CATCHWORDS: | Refusal to categorise as permitted person - Queensland Building Services Act s56D; costs against an unsuccessful applicant - Consumer and Commercial Act ss70 -71 applied. Tamawood Ltd & Anor v Paans [2005]QCA 111 applied. Horsburgh v Queensland Building Services Authority [2008] regard QCCTB 131 considered. Oshlack v Richmond River Council {1998} HCA 11 (1998) 193 CLR 72considered. |
REASONS FOR DECISION
Costs
The Tribunal found in favour of the Respondent on 3 June 2010. The Applicant had sought to Review the decision of the Queensland Building Services Authority to refuse to categorise the Applicant as a permitted individual. The Tribunal directed the parties to provide written submissions in relation to the awarding of costs. These have been received and considered by the Tribunal.
Relevantly, the provisions of the Queensland Civil and Administrative Tribunal 2009 (the “QCAT Act”)provide as follows:
268 Proceeding started
(1)This section applies if, before the commencement, a person has, under an enabling Act, or another Act as in force before the commencement (the former Act), started a proceeding before the continuing entity for a QCAT matter.
(2)The continuing entity must hear, or continue to hear, and decide the matter under the former Act, and the former Act and other relevant laws apply as if the QCAT Amendment Act had not been enacted.
Conduct of proceedings generally
(1)QCAT must deal with the matter the subject of the existing proceeding under this Act or 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 only can, make a decision the former entity could have made in relation to the matter under the former Act.
The Tribunal accepts the submissions of the Applicant and Respondent that, as this matter was commenced in a former entity, that being the Commercial and Consumer Tribunal, the provisions of the Commercial and Consumer Tribunal Act 2003 (the “CCT Act 2003 Act”) applies to the matter of costs in the proceedings.
The Tribunal’s jurisdiction in respect of costs is accordingly dealt with in Part 5 Division 7 of the Commercial & Consumer Tribunal Act 2003. Section 70 provides that the purpose of the division is to have “parties pay their own costs unless the interest of justice requires otherwise”. Further, subsection 71(5) provides that a party is not entitled to costs merely because that party was the beneficiary of an order of the Tribunal, or the party was legally represented at the proceeding.
These provisions have been considered by the Court of Appeal in Tamawood Ltd & Anor v Paans.[1] In that case Keane JA held that:[2]
[1] [2005] QCA 111
[2] At [23], see also [16]
“… the language of s 70 and s 71(5)(a) is sufficiently clear to negate the proposition that costs should, prima facie, follow the event unless the Tribunal considers that another order is more appropriate. In this regard, it is clear that the power of a court or tribunal to award costs to a party is now the creature of statute. The nature and extent of that power can only be discerned by close consideration of the terms of the statute which creates the power and prescribes the occasions for, and conditions of, its exercise. In the performance of this task, observations of the courts in relation to the operation of other statutory regimes relating to costs may afford general assistance but they cannot be allowed to distract attention from the terms of the particular statute in question.”
It seems to the Tribunal that the provisions impose a general rule that the parties should pay their own costs, unless good reason is shown in terms of the interests of justice for making an award of costs in the proceedings.[3]
[3] Tamawood Ltd & Anor v Paans [2005] QCA 111 per Keane JA at [24] (Williams JA and Philippedes J Agreed)
Section 71 implements the purpose by empowering the Tribunal to award the costs it considers appropriate. In deciding whether to award costs, and the amount of the costs, the Tribunal may have regard to the following matters listed in Sub-section 71(4):
(a)the outcome of the proceeding;
(b)the conduct of the parties to the proceeding before and during the proceeding;
(c)the nature and complexity of the proceeding;
(d)the relative strengths of the claims made by each of the parties to the proceeding;
(e)any contravention of an Act by a party to the proceeding;
(f)for a proceeding to which a State agency is a party, whether the other party to the proceeding was afforded natural justice by the State agency;
(g)anything else the tribunal considers relevant.
The Tribunal’s findings and the outcome of the proceedings have fallen generally in favor of the Respondent. The Respondent has successfully defended the claim. Both parties have conducted themselves appropriately during the proceeding. Regretfully the differences between the parties reached a stalemate and were irreconcilable. The nature of the dispute and the complexity of the legal and factual issues required a hearing by the Tribunal.
The Applicant failed to produce many of the documents he referred to in his evidence. This was despite the requests of the Respondent to produce supporting documents prior to the hearing. This was a significant factor in the decision against the Applicant.
While there is no presumption in section 71 of the CCT Act that costs will follow the event, there is a considerable body of case law that suggests such is the general rule. With reference to of the High Court decision of Oshlack v Richmond River Council {1998} HCA 11 ; (1998) 193 CLR 72 and in particular the judgment of McHugh J (with whom Brennan CJ agreed:
“…by far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. A successful litigant is generally entitled to award for costs”.
The Tribunal notes that costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party.
The Tribunal agrees with the reasoning of Member Lohrisch in the matter of Horsburgh v Queensland Building Services Authority [2008] QCCTB 131 (5 August 2008) at paragraph 7:
“What is against, in this instance, any such countervailing circumstances prevailing over such an exercise of a discretion in the favor of the [BSA] is that, in applications such as this, the [BSA] is fulfilling its role as a regulator of the building industry, in doing so, the [BSA] is charged with acting in the interests of consumers and the building industry. If, in fulfilling its obligations as a regulator, the [BSA] incurs costs towards upholding its decisions, it would appear to me, in a general sense, inappropriate and inequitable that such costs be borne by the [BSA], and hence to be a charge against the industry and the stakeholders, rather than be borne by the person who unsuccessfully sought to review the [BSA] decision”.
The Tribunal has carefully considered the Applicant’s submissions however the Tribunal is of the view that this is a set of circumstances where the exercise of the Tribunal’s discretion to award the Respondent its costs is appropriate.
Accordingly the Tribunal will order that the Applicant pay the Respondent’s costs of the proceedings. The Tribunal is of the view that those costs should be assessed using the scale of costs in the District Court relating to judgments of less than $50,000.00.
Orders
The Applicant will pay the Respondent’s costs of the proceedings to be assessed on the standard basis using the District Court Scale relating to judgments of less than $50,000.00.
The Respondent’s costs will be assessed as follows:
(a) the Respondent shall deliver to the Applicant an itemized claim for costs referring to the relevant items contained in the scale;
(b) if within 14 days of that delivery, the parties have not agreed to an amount for costs, the costs shall be assessed by Hickey and Garrett, costs assessors.
The Applicant shall pay the Respondent’s costs (as agreed or assessed) within 21 days of such agreement or assessment.
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