Hyndman v Queensland Building Services Authority

[2010] QCAT 338

CITATION: Hyndman v Queensland Building Services Authority [2010] QCAT 338

PARTIES:	Mr David James Hyndman
v
Queensland Building Services Authority

APPLICATION NUMBER:   QR221-08     

MATTER TYPE: General administrative review matters

DECISION ON THE PAPERS OF: A Forbes

DELIVERED ON: 12 July 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

(a)      (a) The Applicant pay the Authority’s costs of these proceedings on a standard basis to be assessed on the District Court scale of costs.

(b)       

(b) The Authority shall deliver to the Applicant an itemised claim for costs referring to the relevant items contained in the District Court scale of costs.

(c) If within 14 days of that delivery, the parties have not agreed to an amount of costs, the costs shall be assessed by Hickey and Garrett, Legal Costs Assessors, Level 21, 141 Queen Street Brisbane 4000.

(c)   The Applicant shall pay the Authority’s costs (as agreed or assessed) within 14 days of such agreement or assessment.

CATCHWORDS : 

COSTS – application to QCAT for costs of completed proceedings in former Commercial and Consumer Tribunal – Sec 252 QCAT Act – final decision of former tribunal dealt with as final decision of QCAT – Sec 102 QCAT Act –costs may be awarded at any time- - Sec 102(3) QCAT Act and Sec 71(4) CCT Act – factors in awarding costs – interests of justice- Tamawood Limited v Paans [2005] QCA 111 applied

COSTS – offer to settle –Sec 142 CCT Act- offer rejected  - final decision not more favourable to applicant than offer

APPEARANCES and REPRESENTATION (if any):

Decision on the papers.

REASONS FOR DECISION

1. On 1 October 2008 the Applicant filed an application with the former Commercial and Consumer Tribunal [“the CCT”] for review of a decision made by the Respondent [“the Authority”] to refuse to categorise the applicant as a “permitted individual” under section 56AD of the Queensland Building Services Authority Act 1991. The hearing was conducted by Member Lohrisch who, after an oral hearing, dismissed the application on 5 October 2009.

1. The Authority, who was legally represented, now applies for its costs of and incidental to that application. Specifically it seeks costs on the District Court Scale to 18 February 2009; and indemnity costs after that date on a “reasonable basis” to be assessed.

1. Sections 252, and 106 of the Queensland Civil and Administrative Tribunal Act 2009 [“the QCAT Act”] supply the necessary jurisdiction for this tribunal to deal with the application as a “proceeding.” A final decision of the former CCT is taken to be a final decision of QCAT: section 252. QCAT‘s authority is limited to dealing with the final decision in a way that is not inconsistent with the former Act: section 252(2).

1. Costs may be awarded at any stage of the proceeding or after the proceeding has ended: Section 106 QCAT Act and 71(2) of the Commercial and Consumer Tribunal Act (2003) [“the CCT Act”]. Under both Acts the starting point is that both parties pay their own costs unless the interests of justice require otherwise.

1. Both Acts specify a number of factors to guide the tribunal in considering the interests of justice: sections 102(3) QCAT Act and 71(4) CCT Act. Each casts a wide net which overlaps the other. Here it is appropriate to apply the provisions of the latter statute which, in summary include:

   ·     The decision in the claim;

   ·     The parties’ conduct insofar as it unreasonably disadvantages the other party;

   ·     Whether the claim is frivolous or vexatious;

   ·     The nature and complexity of issues raised; and

   ·     The relative strength of the claims.

2. Additionally, section 142 of the CCT Act imposes a mandatory obligation  on a tribunal  to award costs if an offer to settle which complies with the requirements of the Act is rejected and the final decision is not more favourable to the offeree than the offer.

1. Guidance in the application of the wide discretion in costs is provided by the decision of His Honour Justice Keane in Tamawood Limited v Paans [2005] QCA 111. Propositions distilled from his leading judgement relevantly include:

·     A key principle is the emphasis on self representation and the starting point that each party is responsible for their own costs;

·     The interests of justice is the primary consideration which must guide any departure from this principle;

·     The discretion may only be exercised upon close consideration of the statutory provisions;

·     There exists no prima facie entitlement to costs by the successful party;

·     There exists no prima facie entitlement to costs merely because the party was legally represented;

·     A finding that the proceedings are complex may justify the parties obtaining legal representation, which may be sufficient to lead to the further finding that the interests of justice enlivens the discretion to award costs;

·     There is a distinction to be drawn between, on the one hand, the mere fact of having legal representation and on the other, reasonably having obtained  representation in view of the complexity of the issues;

·     Where the successful party has reasonably obtained legal representation, and absent any countervailing issues, justice is not served by denying that party the fruits of its success.

1. The Authority has supplied comprehensive submissions on several grounds.  No submissions have been received from the Applicant.

Consideration of the Submissions

Section 71(4)(a):The Outcome of the proceeding, section 71(4)(c) the nature and complexity of the proceeding and section 71(4)(d) the relative strengths of the claims:

1. The company of which the Applicant is or was a director was placed into voluntary administration when it became unable to pay its creditors.  The company had incurred a number of bad debts, including a substantial one to the Commissioner of Taxation, and its financial management had been less than adequate. In dismissing the review application the Member found that the Applicant had not taken all reasonable steps to avoid the circumstances that led to the plight of the company.

1. The Authority now submits that the decision in its favour should be taken into account, and further that the proceeding raised complex issues justifying the engagement of a lawyer.  It appears that the Authority was required to analyse the company’s financial records and present evidence in order to obtain the decision in its favour.  I accept and find that there were complex issues and that it was reasonable for the parties to obtain legal assistance.

1. However, it is difficult to cast an ex post facto glance at the proceeding and conclude under section 71(4)(d) that the Applicant’s claim was manifestly lacking in merit.  It was, after all a claim brought in an attempt to preserve the livelihood of what appears to be a small tradesperson.

Section 71(4)(b): The conduct of the parties before and during the proceeding:

1. The Authority devotes 12 pages of its 26 page submission to a blow by blow account of its diligent efforts to move the application to a hearing, despite the dilatory approach taken by the Applicant.  The Authority provided the Applicant with ample information to encourage the latter to prepare his claim. The tribunal made clear directions for the filing and delivery of documents.  The Applicant failed to comply and on two occasions the tribunal made guillotine orders.  The Applicant just avoided the metaphorical axe by producing incomplete statements and documents shortly before deadlines, and finally produced relevant documents at the commencement of the hearing, thereby wasting hearing time.  The delay between the initial application and the hearing exceeded twelve months, caused largely by the Applicant’s failure to comply with directions.

1. I find that the conduct of the Applicant is a relevant consideration in costs. The Authority was obliged to incur costs to obtain evidence from the Applicant to defend the review application.

Section 142: Offers to Settle:

1. Relatively early in the proceedings on 19 February 2009 the Authority forwarded to the Applicant a written offer to settle on terms that the application be withdrawn and for each party to bear their own costs.  It went further and explained the effect to the Applicant of accepting the offer.  Although the offer was expressed to remain open for a fortnight, the Applicant did not respond and the offer lapsed.

1. The claim was dismissed on 20 October 2009 after a hearing.  I find that the offer made on 19 February was a compliant offer under Part 7, division 7 of the CCT Act and that it was more favourable to the Applicant than the ultimate decision, in that the Authority was prepared to waive costs.

1. This finding together with the finding of the serial disregard by the Applicant of the tribunal’s directions, is sufficient to justify an order for reasonable costs in favour of the Authority.

1. The Authority has sought costs from the commencement of the substantive application to the date of its offer (18 February 2009) and costs on an indemnity basis from that date.  I am required to take into account any costs that would have been awarded on 18 February: section 142(4)(a).  As on that date the Applicant had already failed to comply with directions made on 23 October 2008 to file his material by 22 January 2009.  On 6 February 2009 he had been given an extension of time on pain of dismissal provided he filed material by 16 February.  He filed on 18 February 2009.  Had an application for costs been made by the Authority on that date the probabilities are that it would have been successful.

1. I am not satisfied that the Authority has shown grounds for costs on an indemnity basis and so dismiss that head of claim.

1. Accordingly I order that the Applicant pay the Authority’s costs of these proceedings on a standard basis to be assessed on the District Court scale of costs.

1. The Authority’s costs will be assessed as follows:

   (a)The Authority shall deliver to the Applicant an itemised claim for costs referring to the relevant items contained in the District Court scale of costs;

   (b)If within 14 days of that delivery, the parties have not agreed to an amount of costs, the costs shall be assessed by Hickey and Garrett, Legal Costs Assessors, Level 21, 141 Queen Street, Brisbane 4000.

   (c)The Applicant shall pay the Authority’s costs (as agreed or assessed) within 14 days of such agreement or assessment.