Leo v Queensland Building Services Authority (No 2) - [2013] QCAT 195

CITATION:

Leo v Queensland Building Services Authority & Anor (No 2) [2013] QCAT 195

PARTIES:

Michael Gregory Leo
(Applicant/Appellant)

Queensland Building Services Authority
(First Respondent)

Joseph Meznaric
(Second Respondent)

APPLICATION NUMBER:

GAR052-11

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Michelle Howard, Member

DELIVERED ON:

21 March 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application by QBSA for a costs order is dismissed.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW –COSTS – whether it is in the interests of justice for a costs order to be made – where original decision-maker failed to accord natural justice to the applicant

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102

McEwen v Barker Builders Pty Ltd [2010] QCATA 49
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412

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

An application for costs is made by the Queensland Building Services Authority (QBSA). It arises from a decision handed down by me on 12 December 2012 which confirmed a decision of the QBSA to issue a direction to rectify to Mr Leo. For the sake of completeness, I note that the decision has been appealed by Mr Leo, but a stay order has not been made.
Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) provides for a general rule that each party bear its own costs. The President of the Tribunal has said, s 100 amounts to an active bias against costs.[1]
[1] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412; McEwen v Barker Builders Pty Ltd [2010] QCATA 49.
That said, s 102 provides for the Tribunal to make an order requiring a party to a proceeding to pay all or part of the costs of another party to the proceeding if the interests of justice require it. It makes provision for some factors which may be relevant in deciding whether to award costs.[2]
[2] QCAT Act, s 102(3).
These factors include whether a party acted in a way that unnecessarily disadvantages another party;[3] the nature and complexity of the dispute;[4] the relative strengths of the claims of the parties;[5] in a review proceeding, whether the applicant was afforded natural justice by the decision-maker and whether the applicant genuinely attempted to enable the decision-maker to make a decision on the merits;[6] and the financial circumstances of the parties.[7] Any other relevant matters may also be considered by the Tribunal.[8] If these factors point compellingly to a costs award in a particular case, the interests of justice may require the departure from the usual position by the making of an order.
[3] QCAT Act, s 102(3)(a).
[4] QCAT Act, s 102(3)(b).
[5] QCAT Act, s 102(3)(c).
[6] QCAT Act, s 102(3)(d).

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] QCAT 195
Decision Date

CaseChat Overview and Summary

Michael Gregory Leo applied to the Queensland Civil and Administrative Tribunal for a review of a decision by the Queensland Building Services Authority (QBSA) to issue a direction to rectify in respect of certain building work. The QBSA sought an order for costs, claiming that it was in the interests of justice for such an order to be made. Mr Leo opposed the costs application, arguing that the QBSA had failed to afford him natural justice and that he had limited financial capacity to pay any costs order. The Tribunal considered the matter on the papers and dismissed the QBSA's application for costs.

The Tribunal noted that the QBSA's application for costs arose from a decision confirming the QBSA's direction to rectify, which had been appealed by Mr Leo. The QCAT Act provides for each party to bear its own costs, but also allows for a costs order if the interests of justice require it. The Tribunal considered the factors relevant to determining whether to award costs, including whether a party acted in a way that unnecessarily disadvantaged another party, the nature and complexity of the dispute, the relative strengths of the claims of the parties, whether the applicant was afforded natural justice, and the financial circumstances of the parties.

The Tribunal found that while many of these factors weighed in favour of awarding costs to the QBSA, the QBSA's failure to afford natural justice to Mr Leo was a critical factor that weighed against making a costs order. The QBSA had conceded that it did not give Mr Leo an opportunity to be heard before making the direction to rectify against his interests. The Tribunal was not satisfied that it was in the interests of justice to make a costs order in favour of the QBSA.

The Tribunal dismissed the QBSA's application for costs, finding that the QBSA's failure to afford natural justice to Mr Leo was a critical factor that weighed against making a costs order. The Tribunal also noted that Mr Leo had limited financial capacity to pay any costs order. The QBSA's application for costs was dismissed.

Orders