Maurita Italian Bakery and Patisserie Pty Ltd v Gold Coast City Council
[2011] QCAT 70
•7 March 2011
| CITATION: | Maurita Italian Bakery and Patisserie Pty Ltd v Gold Coast City Council [2011] QCAT 70 |
| PARTIES: | Maurita Italian Bakery and Patisserie Pty Ltd |
| v | |
| Gold Coast City Council |
| APPLICATION NUMBER: | GAR158-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms S Gardiner, Member |
| DELIVERED ON: | 7 March 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for costs is dismissed. |
| CATCHWORDS: | PROCEDURE – COSTS – DISCRETION TO ORDER COSTS – Reviewable decision – Application for costs after matter withdrawn by consent – Withdrawn after conciliation conference but before hearing – Prima facie position that each party bear own costs not displaced by submissions Queensland Civil and Administrative Tribunal Act 2009 Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364, applied |
APPEARANCES and REPRESENTATION (if any):
Determined on the papers.
REASONS FOR DECISION
History
On 28 May 2010 Maurita Italian Bakery and Patisserie Pty Ltd filed an application to review a decision of the Gold Coast City Council to cancel a license to carry on a licensable food business. The Company also applied for a stay of the decision of the Council.
On 1 June 2010 the stay application was dismissed by this Tribunal after a hearing on the papers. At directions hearings before this Tribunal on 19 July 2010 and 29 July 2010, both parties were granted leave to be legally represented in the proceedings and a date was set for a compulsory conference.
At the conclusion of the compulsory conference on 18 August 2010 (conducted by a member of this Tribunal), the matter was listed for a hearing on 15 November 2010 at a venue to be advised. Further substantive directions were made to Maurita Italian Bakery and Patisserie Pty Ltd.
On 27 October 2010 further procedural directions were made setting the hearing date for 10 December 2010 with consequential procedural directions for the filing of material.
On 6 December 2010 by consent of the parties, the application for review was withdrawn and the hearing date vacated. Also by consent, directions for the filing of any costs application were made and a timetable set for submissions. The matter of costs was set to be determined on the papers.
Costs Application
An application for costs by the Gold Coast City Council was filed in this Tribunal on 21 December 2010. No submissions in response to this application were received from Maurita Italian Bakery and Patisserie Pty Ltd.
To enable the determination of the application, on 25 February 2011 the Tribunal requested a letter to be sent to the applicant seeking clarification of the scale used for the claimed professional hourly rate and evidence of the photocopying costs claimed. On 28 February 2010 a response was received to the request addressing both issues.
The starting point concerning costs in QCAT is that each party must bear its own[1]. This presumption may, however, be displaced if the Tribunal considers it in the interests of justice, to order a party to pay all or part of the costs of another party[2].
[1]Section 100 Queensland Civil and Administrative Act 2000; Tamawood Ltd v Paans [2005] QCA 111 at p 23; see also Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364.
[2] Ibid s 102(1).
In determining whether it is in the interests of justice to award costs against another party, the Tribunal may have regard to matters in the ACAT Act[3]: the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; whether a party has acted in a way that unnecessarily disadvantages another party; and the financial circumstances of the parties. For a review of a decision, the Tribunal may also consider whether the applicant was afforded natural justice by the decision-maker and whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits.
[3] Ibid s 102(3).
10. These considerations are factors to which the Tribunal may have regard, not grounds for making an award[4]. They are also not exclusive[5]. The phrase “in the interests of justice” is not defined in the Act but is to be construed according to its ordinary and plain meaning, which confers a broad discretionary power on the decision-maker[6].
[4] See Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 at para 9.
[5] See the general nature of s 102(3)(f).
[6]Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601 at 613 (per Kirby P).
11. However, guidance concerning the phrase “the interests of justice” has been provided by the President of this Tribunal in the decision Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)[7]. His Honour comments[8]:
“Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.”
[7] [2010] QCAT 412.
[8] Ibid para 29.
12. The submissions of the Gold Coast City Council in this matter (after reciting the history of the matter) refer only to “the interests of justice” requirements of section 102 of the QCAT Act. No explanation is given or submissions provided to show why the “strong contra-indication” referred to above in section 100 of the QCAT Act should be displaced in the “interests of justice”.
13. The remainder of the submissions of the Gold Coast Council go to the quantum of the costs sought.
14. In the absence of any submissions to show why the general rule contained in section 100 should not be applied, the Tribunal on the evidence is satisfied that the general requirement under section 100 of the QCAT Act is not displaced.
15. Each party will bear their own costs.
ORDER:
The application for costs is dismissed.
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