Mair v Queensland Building Services Authority
[2010] QCAT 74
•24 March 2010
CITATION:Mair v Queensland Building Services Authority [2010] QCAT 74
PARTIES: DUNCAN SCOTT MAIR (Applicant)
v
QUEENSLAND BUILDING SERVICES AUTHORITY (Respondent)
APPLICATION NUMBER: QR044-08
MATTER TYPE: General administrative review matters
HEARING DATE: Submission on the papers
HEARD AT: Brisbane
DECISION OF: Elizabeth Benson-Stott, Member.
DELIVERED ON: 24 March 2010
DELIVERED AT: Brisbane
ORDERS MADE: Applicant is awarded costs at the District Court Scale.
CATCHWORDS: Application for costs; consideration of sections 70 and 71 of the Commercial and Consumer Tribunal Act and discretionary factors
APPEARANCES and REPRESENTATION (if any):
Decision on the papers.
INTRODUCTION
This is a long drawn out and unfortunate history between two parties, Mr Duncan Scott Mair (‘Applicant’) and the Queensland Building Services Authority (QBSA) (‘Respondent’) who have felt they have undertaken appropriate steps in the course of this event. It is a story of disagreement between two parties that could have been prevented from coming to the attention of the Commercial & Consumer Tribunal (CCT) and then eventually the Queensland Civil and Administrative Tribunal (QCAT), had both parties been equipped to negotiate, hence saving a considerable amount of costing and resources to all parties.
It is also unfortunate that the QBSA did not negotiate with Mr Mair his Offer to Settle which was for a period of 14 days after the date of service of the offer which was calculated as up to and including the Friday 18 September 2009 and was allowed to lapse.
This is the costs decision in relation to application QR044-08. Mr Mair sought to have the decision of the QBSA of refusing to categorise the Applicant as a permitted individual for two ‘relevant events’ reviewed in February 2008 set aside. Both parties were granted leave to be legally represented.
In a final submission to the QCAT, Mr Duncan Scott Mair (‘Applicant’), applied for costs of and incidental to the proceedings, to be awarded in his favour on and (sic. An) indemnity basis.
At a Callover held with Judge Fleur Kingham on the 5 February 2010 at the QCAT, orders were made for the parties that the application regarding costs would be dealt with by the Tribunal on the papers.
FACTUAL BACKGROUND
On the 27 February 2008, Mr Mair requested that the QBSA review their decision made on the 12 February 2008 of refusing to categorise Mr Mair as a permitted individual.
On approximately the 8 July 2008, the QBSA filed and delivered its statement of reasons for their decision.
On 5 August 2008, Mr Mair submitted to the QBSA statements of evidence.
On the 16 September 2008, the QBSA filed affidavits on their behalf.
On the 21 October 2008, the QBSA Lawyers sent a facsimile to the CCT requesting the matter be set down for a directions hearing.
On the 16 January 2009, signed statements were received from Mr Mair.
On the 23 January 2009 a Directions Hearing occurred before the CCT during which orders were made for the future conduct of proceedings, including permitting both parties to be legally represented, and it was to be listed for a three day hearing with a date to be advised by the Registry.
In approximately February 2009, the legal representation for QBSA ceased acting on their behalf in the proceedings.
In approximately June 2009, the legal representation for Mr Mair ceased acting on his behalf in the proceedings, and a new Lawyer was appointed to act on the Mr Mair’s behalf.
On approximately 4 September 2009, the QBSA received correspondence from Mr Mair including a document titled ‘Offer to Settle’ (dated 2 September 2009) made in these proceedings which was for a period of 14 days after the date of service of the offer which was calculated as up to and including the Friday 18 September 2009. Mr Mair offered to settle the proceeding on the basis of the QBSA consenting to allowing of the application including costs to be calculated according to the District Court scale. It was stated that costs were to be assessed in either short or long form as required by the QBSA.
On 22 September 2009 an email was sent by the QBSA to Mr Mair informing Mr Mair that further instructions would be received in respect of the Offers of Settlement on or by 30 September 2009.
On approximately 24 September 2009 the QBSA received correspondence from Mr Mair including a ‘Form 4 – Application in a Proceeding’ dated 22 September 2009.
In a letter dated 30 September 2009, the QBSA made an offer to Mr Mair including without admission the QBSA would change its decision to refuse to categorize Mr Mair as a permitted individual in respect of the appointment of Administrators within 7 days of receiving written confirmation from Mr Mair of his acceptance of offer, and that each party were to bear their own costs.
On approximately 1 November 2009 the QBSA received correspondence from Mr Mair that included a document titled ‘Amendment of Application for Review’ dated 30 October 2009.
By a letter dated 10 November 2009, the QBSA sent to Mr Mair a letter which included a consent notice and a licence search undertaken on the 10 November 2009.
On the 13 November 2009 a consent notice was filed with the CCT including requesting that the QBSA’s decision be set aside and substituted with the decision to categorize Mr Mair as a permitted individual in relation to these events, and the issue of costing was to be determined by the Tribunal on papers.
On 16 November 2009 orders were made by the CCT giving affect to the orders in the consent notice.
Mr Mair is now seeking costs of his application, with the QBSA opposing Mr Mair’s claim for costs.
On the 5 February 2010, the Tribunal decided that the question of costs would be determined on the papers.
SUBMISSION OF THE APPLICANT
In a submission dated 4 December 2009 (response to the QBSA’s submission in reply to Mr Mair’s submission on costs), Mr Mair raises concerns of certain matters of the QBSA’s submission of paragraph 4, paragraph 26, paragraph 28, paragraph 37 to 40, paragraph 45, paragraph 48, and paragraph 54 to 55. Mr Mair challenges the QBSA’s submission regarding history of events and has detailed his evidence in relation to these matters.
Mr Mair states that the QBSA has incorrectly applied Engels v. QBSA [2009] CCT QRO 14-09.
Mr Mair concurs with the QBSA that the provisions of Sub-Section 71(4) of the CCT Act are important considerations for the determination of whether costs should be awarded.
Mr Mair states that the QBSA has disregarded the application of Section 142 of the CCT Act.
Mr Mair contends that it made an Offer to Settle by correspondence to the QBSA of 4 September 2009.
Mr Mair’s grounds for claiming costs are:
a. The QBSA reviewed decision was clearly wrong;
b. The QBSA was in possession of the exculpatory evidence prior to furnishing the QBSA’s Statement of Reasons for the Decision, because that evidence had already been provided by the QBSA to Mr Mair;
c. Mr Mair made an offer to settle in accordance with Division 7 of Part 7 of the CCT Act;
d. The Offer to Settle was for a 14 day period after the date of service of the offer in which time it was allowed to lapse by the QBSA. The Offer to Settle was reasonable and supported by a fifty page document titled ‘Case for the Applicant’;
e. Even though Mr Mair provided strong evidence, the QBSA sought a three day hearing for this matter;
f. The QBSA consented to an order which determined the principle matter in dispute in favour of Mr Mair;
g. The QBSA opposes Mr Mair’s costs which were initially sought to be calculated according to District Court scale;
h. The Appellate and Tribunal authorities have always supported that Mr Mair was entitle to costs to be calculated according to the District Court scale;
i. Mr Mair has incurred continuing legal expenses as a result of the QBSA failure to accept the Offer to Settle;
j. Section 142 of the CCT Act provides that the Tribunal must order a party to pay costs if certain offers to settle are rejected; and
k. Given the respective conduct of the parties, it would be unjust for indemnity costs not to be awarded.
Mr Mair is seeking the following orders:
a. Pursuant to Section 71 of the CCT Act 2003, the QBSA is to pay Mr Mair the costs of and incidental to this application, filed on the 10 April 2008; and
b. The costs are to be assessed in taxable form on an indemnity basis (including the costs of the assessment).
SUBMISSIONS OF THE RESPONDENT
In a submission dated 30th November 2009, the QBSA stated Mr Mair bears the onus of proof in his application for costs and that the material before the Tribunal indicates that the BSA had acted reasonably in refusing to categorise Mr Mair as a permitted individual for two ‘relevant events.
QBSA stated that Mr Mair had not demonstrated that there should be a departure from the CCT Act under Section 70.
In a letter dated 30 September 2009, the QBSA made an offer to Mr Mair including without admission the QBSA would change its decision to refuse to categorize Mr Mair as a permitted individual in respect of the appointment of Administrators within 7 days of receiving written confirmation from Mr Mair of his acceptance of offer, and that each party were to bear their own costs.
The QBSA stated that there were no grounds for the making of a costs order based on the following:
a. QBSA’s decision to refuse to categorise Mr Mair as a permitted individual for the relevant events was a decision that was open on the basis of the permitted individual application and was a reasonable decision to make in the circumstances;
b. Section 70 of the CCT Act enacts that ‘the main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise’;
c. Section 71 of the CCT Act enacts that the tribunal may have regard to a number of factors as to whether to award costs;
d. Justice Alan Wilson in the matter of Nortask Pty Ltd v Rodriguez [2009] QDC 318 has said ‘It is plain that the power to award costs under s 71(1) (“…the Tribunal may award costs it considers appropriate…”) is to be read subject to the overriding principle in s70 that parties will ordinarily pay their own costs unless the interests of justice require otherwise’.
e. Mr Mair was afforded natural justice before, and throughout, the proceedings;
f. Mr Mair’s submissions on costs are silent about the express statutory provisions upon which Mr Mair seeks to rely in seeking the order of costs;
g. The QBSA does not accept or concede that the fact that the parties consented to an order permitting the parties to be legally represented, of itself, warrants the exercise of the discretion to award costs;
h. Mr Mair did not demonstrate that there were ‘special or unusual’ features of this case that justifies the making of indemnity costs; and
i. that each party should bear their own costs.
The QBSA is seeking the following orders:
a. That there be no order as to costs, or, alternatively that each party bear their own costs; or
b. That should the Tribunal be satisfied that it is appropriate to award Mr Mair his costs, that costs are awarded at the District Court Scale as the appropriate scale for costs.
APPLICABLE LEGISLATION
This is not like other jurisdictions where the general rule is that costs follow the event. For an application for costs to be successful by any party, the criteria in section 71 of the Commercial and Consumer Tribunal Act 2003 (“the CCT Act”) has to be satisfied. The overriding principal in section 70 is that the purpose of the Act is that the parties pay their own legal costs. Success is only one factor which is to be taken into account. The ability to award costs is governed by the provisions of the Commercial and Consumer Tribunal Act, not the QCAT legislation.
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; and
g. anything else the tribunal considers relevant.
REASONS FOR DECISION
The Tribunal’s jurisdiction in respect of costs is 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.
The Tribunal is grateful for the submissions by both parties.
It is unfortunate that Mr Mair and the QBSA had not settled the awarding of costs outside of this Tribunal jurisdiction.
Section 161 of the Act states as follows:
“Tribunal must order party to pay costs if certain offers to settle are rejected”
This section applies if –
a. a party to a proceeding serves another party to the proceeding with a written offer to settle the matters in dispute between the parties;
b. the other party does not accept the offer within the time the offer is open;
c. the offer complies with this division;
d. in the opinion of the tribunal, the decision of the tribunal on the matters in dispute is not more favourable to the other party than the offer.
On approximately 4 September 2009, the QBSA received correspondence from Mr Mair including a document titled ‘Offer to Settle’ (dated 2 September 2009) made in these proceedings which was for a period of 14 days after the date of service of the offer which was calculated as up to and including the Friday 18 September 2009. However, QBSA did not respond to this correspondence until the 22 September 2009.
Section 71 implements the purpose by empowering the Tribunal to award the costs it considers appropriate. The tribunal had regard to the outcome of the proceeding, the nature and complexity of the proceeding, and the relative strengths of the claims made by each of the parties.
It is ordered that Mr Mair (‘Applicant’) is awarded costs at the District Court Scale of costs of and incidental to the application filed 10 April 2008 pursuant to Section 71 of the Commercial and Consumer Tribunal Act 2003.
The QBSA is to pay Mr Mair the costs within 60 days of the date of this decision, namely by 4.00pm on 24 May 2010.
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