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) |
| v | |
| Queensland Building Services Authority Joseph Meznaric |
| 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 |
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).
[7] QCAT Act, s 102(3)(e).
[8] QCAT Act, s 102(3)(f).
QBSA submits that it is in the interests of justice for a costs order to be made for the following reasons:
(a)The direction was confirmed and therefore it was wholly successful;
(b)The relative strength of its case, especially because Mr Leo conceded many items of work were incomplete, thereby enlivening the power to direct; Mr Leo had been paid for the items; Mr Leo’s case was not supported by engineering evidence; and there were few discretionary factors in favour of setting aside the direction;
(c)It submits that QBSA conducted itself in an appropriate manner by ensuring all relevant parties were before the Tribunal and made no complaint about the content and format of Mr Leo’s evidence despite the difficulties it caused in understanding and preparing its case;
(d)In contrast, it submits that Mr Leo made complaints which he did not then properly pursue about termination of the contract; he provided material in a format which caused disadvantage because his complaints were difficult to distil; although an experienced builder, Mr Leo did not appreciate the difference between building and engineering evidence; and he was recognised by the Tribunal in its decision as an unreliable and evasive witness.
All of these matters, the QBSA submits, added time and cost. Although it is a state agency and has means available to it, it submits that it would be unjust for this factor to prevent it from having an order for costs.[9] It acknowledges that it did not give Mr Leo an opportunity to be heard before making the direction to rectify. However, it submits that there is nothing which suggests that had it done so, a different decision would have resulted.
[9] Reliance is placed on Scerri v QBSA [2008] CCTB 264.
Mr Leo opposes the making of a costs order. He says that the QBSA’s failure to invite him to the second inspection at the premises prior to making the direction to rectify and behaviour in cross-examining him for so long at the hearing limited his prospects of success. Also, he attaches an affidavit which suggests he has few assets and significantly greater liabilities resulting in limited capacity to pay any costs order. Noting my conclusions about the evasive and unreliable nature of his evidence, he submits that he was sincerely trying to assist the Tribunal ‘make a decision on the nature and complexity of this subject.’ Further he suggests that lengthy cross-examination of him by the QBSA limited his opportunity to cross-examine the QBSA’s key witnesses.
He further submits that the involvement of the homeowner Mr Meznaric has avoided parallel litigation. He appears to deny that he conceded a ‘majority’ of items were incomplete. Also, he appears to submit that the engineering evidence was unreliable.
My reasons for decision on the review explained why I found Mr Leo’s evidence unreliable and evasive.[10] I also explained the difficulties arising from the complex and convoluted manner in which his written statement was presented.[11] If Mr Leo had not raised, and then not properly pursued, issues about termination of the contract,[12] Mr Meznaric’s involvement in the proceedings could have been minimal. These matters tend to suggest that Mr Leo acted in a way which unnecessarily disadvantaged the QBSA in the proceeding and added to time and cost.
[10] Leo v QBSA [2012] QCAT 640, [32-38].
[11] Leo v QBSA [2012] QCAT 640, [39-40].
[12] Leo v QBSA [2012] QCAT 640, [[113-114].
Also, I accepted that Mr Leo, despite seeking to set aside the direction to rectify, did concede that many items were incomplete despite having been paid for them.[13] In considering the relative strengths of the claims, as far as that expression can be applied in review matters involving an administrative decision-maker, I accept that this, as the QBSA submits, increased the likelihood that the decision would ultimately be confirmed.
[13] Leo v QBSA [2012] QCAT 640, [45- 84].
These factors weigh in favour of overcoming the active bias against the making of a costs order contained in the QCAT Act.
Against this, on the available evidence, Mr Leo has limited capacity to pay a costs order. Several of Mr Leo’s other submissions are unhelpful on the costs application, because this is not an opportunity to revisit my conclusions on the evidence or my decision about the review application.
However, I am satisfied that one critical factor militates against the making of a costs order in favour of the QBSA. QBSA did not invite Mr Leo to the second inspection and did not give him an opportunity to be heard before making the direction to rectify. The QBSA as an administrative decision-maker had a responsibility to afford natural justice to Mr Leo. In this case it concedes that it did not do so, because it did not give him an opportunity to be heard before making the direction to rectify against Mr Leo’s interests.
Although I accept that there is no basis to conclude that the QBSA’s decision would have been different if Mr Leo was afforded the opportunity by QBSA to make submissions, the failure to afford him this opportunity persuades me against making a costs order. If Mr Leo considered he was more fairly dealt with by the QBSA, the subsequent course of events may have been different.
I am not satisfied that it is in the interests of justice to make a costs order in favour of the QBSA. The QBSA’s application for costs is dismissed.
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