Kehl v Board of Professional Engineers of Queensland

[2010] QCATA 77

CITATION: Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77

PARTIES:	Margaret Helen Kehl    (Applicant/Appellant)
v
Board of Professional Engineers of Queensland (Respondent)

APPLICATION NUMBER:             APL185-10 

MATTER TYPE: Appeal  

HEARING DATE:  On the papers

HEARD AT:   Brisbane

DECISION OF: Judge Fleur Kingham
Deputy President

DELIVERED ON:   24 November 2010

DELIVERED AT:   Brisbane

ORDERS MADE: 1.  The applicant must pay the respondent’s costs of the appeal fixed at $792.00. 

CATCHWORDS : 

APPEAL – APPLICATION FOR COSTS – APPEAL AGAINST INTERLOCUTORY DECISION – whether in the interests of justice to award costs in favour of the successful party

Queensland Civil and Administrative Tribunal Act 2009 ss 43(1)(c), 102(3)(a), 102(3)(b), 102(3)(c), 102(3)(d), 102(3)(e)

REASONS FOR DECISION

1. Mrs Kehl applied to QCAT to review a decision by the Board of Professional Engineers of Queensland not to take disciplinary action against an engineer. Before the hearing, Mrs Kehl applied for a notice to produce various documents. The learned member who dealt with that application refused it. Mrs Kehl appealed from that interlocutory decision. As that was not a final decision of the Tribunal, leave to appeal was required. Mrs Kehl was unsuccessful in her application for leave. The Board now seeks an order from the Tribunal that Mrs Kehl pay its costs of and incidental to her application for leave to appeal.

1. Unless an enabling Act provides otherwise, in proceedings in QCAT the parties bear their own costs. The Tribunal does have the power to award costs if it considers the interests of justice require it to do so. Various factors the Tribunal may have regard to in making that decision are set out in s 102(3) of the Queensland Civil and Administrative Tribunal Act 2009.

1. Neither party honed in on those or other relevant factors in their submissions. For the Board’s part, its submissions equated the conduct of Mrs Kehl in the review proceedings with her conduct in the application for leave to appeal. They are distinct processes. The request is for an order for costs in relation to the application for leave to appeal and what must be considered is Mrs Kehl’s conduct in and the merits of that application.

1. For Mrs Kehl’s part, her submissions ranged well beyond factors which are relevant to the issue of costs. It is evident she still asserts a right to obtain the documents in dispute and, evidently, does not understand or accept the reasons her applications for production of documents and for leave to appeal were declined. She, too, addressed many of her submissions to the merits of the underlying dispute.  Since the appeal was determined, her application to review the Board’s decision has been heard, although that decision has not yet been made.

1. In the application for leave to appeal, neither party conducted themselves in a way that unnecessarily disadvantaged the other[1]. The application was lodged on 31 August 2010. It was not appropriate to proceed with it until the learned member who heard the initial application had delivered his written reasons. They were delivered on 27 September 2010. On that day directions were issued about the conduct of this application. They required the applicant to file her submissions by 1 October 2010 and the respondent by 8 October 2010. Whilst Mrs Kehl’s submissions were a few days late, (received on 4 October 2010) the intervening period was the weekend and little turns on that. The respondent complied with the Tribunal’s directions. The decision on Mrs Kehl’s application was made on 11 October 2010. This application was dealt with in a timely way. The cooperation of both parties facilitated that.

   [1]        Queensland Civil and Administrative Tribunal Act 2009 s 102(3)(a)

1. There is nothing in the nature and complexity of the proceedings which would suggest that costs should be awarded[2]. The Board argued the matter was complex because the QCAT Act provides for a right to legal representation in a proceeding which relates to reviewing a decision about taking disciplinary action. It is true the substantive proceeding is that sort of matter and the Board did have a right to legal representation[3]. However, statutory recognition that legal representation is appropriate in certain proceedings does not necessarily establish that those proceedings will always be complex.

   [2]        Queensland Civil and Administrative Tribunal Act 2009 s 102(3)(b)

   [3]        Queensland Civil and Administrative Tribunal Act 2009 s 43(1)(c)

1. A much more persuasive factor in this case is the relative strengths of the parties’ cases[4]. This criterion undoubtedly favours the Board. Mrs Kehl’s application for leave to appeal was misconceived, primarily because she misunderstood the function of the Tribunal in a review proceeding. The documents she sought related to matters not relevant given the nature of administrative review in QCAT. That issue has been fully canvassed in the reasons given on the application for leave to appeal and will not be repeated here.

   [4]        Queensland Civil and Administrative Tribunal Act 2009 s 102(3)(c)

1. The next criterion, the conduct of parties in review proceedings[5], has no relevance to the application for leave to appeal. Whilst the substantive proceedings are review proceedings, this is an application for leave to appeal from an interlocutory procedural order.

   [5]        Queensland Civil and Administrative Tribunal Act 2009 s 102(3)(d)

1. There is no evidence about Mrs Kehl’s financial circumstances[6]. It is a relevant factor that the Board’s costs are funded from the registration fees paid by the members of its profession.

   [6]        Queensland Civil and Administrative Tribunal Act 2009 s 102(3)(e)

1. The factors listed in s 102 are a guide to the considerations the Tribunal may take into account in deciding whether this is an appropriate case in which to award costs. In any given case, the relative importance of each criterion will vary. Further, their significance may relate to what stage the proceedings have reached. For example, questions about the relative strengths of the parties’ cases may assume less significance upon an initial hearing, yet loom large when it comes to the costs of an application for leave to appeal.

1. In this case, Mrs Kehl did not have a right to appeal she had the right to apply for leave to appeal. She was unsuccessful. Given the nature of the Tribunal’s function, her application was always going to be unsuccessful. The learned member correctly questioned the relevance of the documents Mrs Kehl sought to rely upon. Those documents could only be relevant if the Tribunal’s task was to review the decision making process of the Board rather than to consider what decision should be made on the evidence placed before the Tribunal.

1. Mrs Kehl had already received written reasons which questioned the relevance of the documents she sought. The Board was, necessarily, put to some expense in responding to her application. In this case, I consider the interests of justice require an order that Mrs Kehl meet the Board’s costs.

1. The Board has sought an order for costs fixed at $3,432.00. It provided a table setting out its calculation of that sum.  Many of the costs relate to the original application for the notice to produce. That is not relevant to the application for costs of this application for leave to appeal.

1. When Mrs Kehl’s application for review has been determined, the parties will have the opportunity to make their case for an order for costs of that proceeding, including the application for the notice to produce. 

1. The only costs which post date Mrs Kehl applying for leave to appeal are those incurred on 22 September 2010 and 4 October 2010. The amount sought for the work done on those two dates is $792.00. Based on the description of the work done on those two dates the amount charged does not seem to be unreasonable. Costs will be fixed at $792.00.