Mair v Queensland Building Services Authority - [2010] QCAT 74

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,…

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: [2010] QCAT 74
Decision Date: 24 March 2010

CaseChat Overview and Summary

In Mair v Queensland Building Services Authority, Duncan Scott Mair sought a review of the Queensland Building Services Authority's (QBSA) decision not to categorise him as a permitted individual. The case was eventually determined by the Queensland Civil and Administrative Tribunal (QCAT). The primary issue before the tribunal was whether Mair should be awarded costs for his successful application. Mair argued that the QBSA's decision was clearly wrong, that it had exculpatory evidence prior to making its decision, and that it had failed to accept a reasonable offer to settle. The QBSA contended that its decision was reasonable and that Mair had not demonstrated grounds for an award of costs.

The tribunal considered the provisions of the Commercial and Consumer Tribunal Act 2003, which state that parties should bear their own costs unless the interests of justice require otherwise. The tribunal also considered Section 161 of the Act, which mandates that a party must pay costs if certain offers to settle are rejected and the tribunal's decision is not more favourable to the other party than the offer. The tribunal noted that the QBSA had not responded to Mair's offer to settle within the specified time frame and that Mair had successfully argued the merits of his application. The tribunal awarded Mair costs at the District Court Scale, to be paid by the QBSA within 60 days of the decision.

The reasoning behind the tribunal's decision was grounded in the statutory provisions and the procedural history of the case. The tribunal emphasised the importance of settling disputes outside of the tribunal process where possible and highlighted the QBSA's failure to respond appropriately to Mair's offer to settle. The tribunal concluded that Mair's successful application and the QBSA's procedural missteps warranted an award of costs to Mair.

Orders