McLelland v Cooper as Trustee of Charles Cooper Lawyers Trust
[2010] QCAT 371
•30 July 2010
| CITATION: | McLelland v Cooper as Trustee of Charles Cooper Lawyers Trust [2010] QCAT 371 |
| APPLICANT | Robert Bruce McLelland |
| V | |
| FIRST RESPONDENT: SECOND RESPONDENT: | Charles Allan Cooper as Trustee of the Charles Cooper Lawyers Trust Trading as Charles Cooper Lawyers Stephen Kenneth Hartwell trading as Hartwell Legal Costs Consultants |
| APPLICATION NUMBER: | 0001459/10 |
| MATTER TYPE: | Other Minor civil dispute matters |
| HEARING DATE: | 29 June 2010 |
| HEARD AT: | Southport |
| DECISION OF: | C Trueman, Adjudicator |
| DELIVERED ON: | 30 July 2010 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | THAT there be no order as to costs |
| CATCHWORDS : | Costs – indemnity basis – Queensland Civil & Administrative Tribunal Act 2009, sections 47 and 102 - interests of justice – Applicant unsuccessful |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Robert Bruce McClelland |
| RESPONDENT: | Mr Charles Allan Cooper Mr Stephen Kenneth Hartwell |
REASONS FOR DECISION
Introduction
On the 29th June 2010 the tribunal heard and determined the claim of the Applicant seeking relief from payment of money by the Applicant of $3,728.70 to the First Respondent. An order was made to dismiss the claim. At the conclusion of the hearing the First Respondent made an application for costs. An order was made for the parties to file submissions in respect of costs within 7 days.
Both the Applicant and the First Respondent have now provided written submissions as to the question of whether costs ought to be awarded and upon what basis.
The First Respondent seeks costs to be paid by the Applicant in the amount of $4182.40. The First Respondent is a Solicitor and contends that he should be entitled to his legal fees and costs thrown away in dealing with the claim. The First Respondent particularises his claim for an order for costs calculated on the basis of $400 per hour plus GST pursuant to the costs retainer agreement previously executed by the Applicant when he retained the First Respondent to act for him regarding matrimonial property matters.
The First Respondent contends that he filed an Application to strike out the Applicants claim on the grounds that the Claim lacked merit and that the Tribunal did not have jurisdiction to hear the matter. The First Respondent communicated to the Applicant that if he was successful in his application he would purse his legal costs pursuant to Section 47(1) and Section 47 (2)(c) of the Queensland Civil & Administrative Tribunal Act 2009 (“QCAT Act”).
The First Respondent claims that despite advising the Applicant to withdraw his Claim the Applicant proceeded with the Claim. The First Respondent claims he has been put to time and cost appearing at the QCAT on the 9, 25 and 29 June 2010 in relation to the matter. The claim was dismissed on the 29 June 2010.
The First Respondent claims costs pursuant to section 47(1) of the QCAT Act. The First Respondent’s submissions state that the Applicants case was dismissed on all 3 bases under sections (a), (b) and (c) of Section 47(1) of the QCAT Act.
The First Respondent claims he has incurred costs thrown away as a result of time having been spent on dealing with the matter in the circumstances where:
(a)the relief sought is not a relief that is know to the Courts; and
(b)the Application was outside the jurisdiction of the Court because of the failure by the Applicant to comply with his obligations under the Uniform Civil Procedure Rules 1999 as identified in the written outline of argument of the Second Respondent and failure of the Applicant to understand and appreciate that the costs of the assessment process were completely at the discretion of the costs assessor ie. the Second Respondent
The First Respondent claims that the Applicant had legal advice regarding this matter and that he should have been advised that his claim did not have merit.
The Second Respondent did not file any submissions in relation to costs.
10. The Applicant filed submissions in respect to costs and claims that the Tribunal has no power to make an order for costs and in the circumstances, no order for costs should be made.
11. The Applicant states in his submissions that the only power a Tribunal has to make an order with respect to costs is constrained by S102(2) of the QCAT Act.
12. Further, the Applicant contends that in relation to a Minor Civil Dispute the only orders in relation to costs are those that are stated in the rules.
LEGISLATION
Costs
13. For matters that are commenced in this Tribunal it is the starting point that parties bear their own costs of the proceedings. The relevant section is:
s100 Each party usually bears own costs
Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party's own costs for the proceeding
14. The Respondent claims that as the Applicants claim was dismissed and that he was wholly successful that an obligation for the Applicant to be ordered to pay costs arises. The QCAT Act provides that when considering the issue of costs the tribunal must take into account s47 of the Act that states:
s47 Dismissing, striking out or deciding if unjustified proceeding or part
(1) This section applies if the tribunal considers a proceeding or a part of a proceeding is--
(a) frivolous, vexatious or misconceived; or
(b) lacking in substance; or
(c) otherwise an abuse of process.
(2) The tribunal may--
(a) if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or
(b) for a part of a proceeding brought before the tribunal by a party other than the applicant for the proceeding--
(i) make its final decision in the proceeding in the applicant's favour; or
(ii) order that the party who brought the part before the tribunal be removed from the proceeding; or
(c) make a costs order against the party who brought the proceeding or part before the tribunal to compensate another party for any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding or part.
Note--
See section 108 for the tribunal's power to order that the costs be paid before it continues with the proceeding.(3) The tribunal may act under subsection (2) on the application of a party to the proceeding or on the tribunal's own initiative.
(4) The tribunal's power to act under subsection (2) is exercisable only by--
(a) the tribunal as constituted for the proceeding; or
(b) if the tribunal has not been constituted for the proceeding--a legally qualified member or an adjudicator.
15. The respondent submits that the Applicants claim was dismissed pursuant to all three limbs of section 47. The First Respondent submits that claim was both frivolous, vexatious and misconceived and lacking in substance and otherwise was an abuse of process. The Applicant’s claim was dismissed.
16. Further, the First Respondent claims that costs should be awarded against the Applicant taking into account the relevant section of s102 (3)(c) in that the Applicants claim did not have merit, and the order for costs should be made as in the interest of justice it is appropriate. Consideration must be given to:
s102 Costs against party in interests of justice
(1) The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.
(2) However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.
(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following--
(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
(b) the nature and complexity of the dispute the subject of the proceeding;
(c) the relative strengths of the claims made by each of the parties to the proceeding;
(d) for a proceeding for the review of a reviewable decision--
(i) whether the applicant was afforded natural justice by the decision-maker for the decision; and
(ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
(e) the financial circumstances of the parties to the proceeding;
(f) anything else the tribunal considers relevant.
17. If the Tribunal considers that an order for costs should be made against the Applicant when assessing those costs s107 states that considerations must be given to:
s107 Fixing or assessing costs
(1) If the tribunal makes a costs order under this Act or an enabling Act, the tribunal must fix the costs if possible.
(2) If it is not possible to fix the costs having regard to the nature of the proceeding, the tribunal may make an order requiring that the costs be assessed under the rules.
(3) The rules may provide that costs must be assessed by reference to a scale under the rules applying to a court.
18. The Queensland Civil and Administrative Tribunal Rules 2009 (“QCAT Rules”) provides for costs that the Tribunal can make in relation to Minor Civil Debt matters which are limited to:
83 Costs that may be awarded for minor civil dispute other than minor debt claim
For section 102 of the Act, the tribunal may award costs against a party to a proceeding for a minor civil dispute other than a minor debt claim--
(a) only if the party is a respondent against whom the tribunal has made a final decision; and
(b) only to order the party to pay to the applicant the amount of any prescribed fee paid by the applicant on filing the application for the proceeding.
19. Costs that can be awarded if a matter is a minor debt claim are contained in rule 84. Those limitations are confined to subsection (1) of rule 84 being:
84 Costs that may be awarded for minor debt claim
(1) For section 102 of the Act, the tribunal may award costs against a party to a proceeding for a minor debt claim only to order the party to pay an amount for 1 or more of the following--
(a) the prescribed fee for filing the application for the claim;
(b) a fee charged by a service provider for electronically filing a document;
(c) a service fee and travelling allowance at the rate of the prescribed bailiff fees;
(d) a business name or company search fee.
(2) In this rule--
prescribed bailiff fees means the fees prescribed under the Uniform Civil Procedure (Fees) Regulation 2009, schedule 2, part 2.
20. The QCAT Rule 83 provides that the costs that may be awarded for a minor civil dispute other than minor debt claim is limited to an order against a Respondent if a final decision has been made. That is not the circumstances in this case as the costs are sought by the First Respondent against the Applicant.
CONCLUSION
21. Section 102(2) provides that the only orders that can be made for costs against a party are orders that are specifically provided for in the rules. Those costs that may be awarded for minor civil disputes under this section are specifically limited to those contained in rules 83 and 84.
22. This Tribunal usually requires parties to appear on their own behalf and parties are not usually represented by lawyers at hearings. Parties cannot be represented without leave from the Tribunal. For Minor Civil debt matters the parties are unlikely to be given leave to be represented by legal practitioners. In this case it is the fact that the First Respondent is a legal practitioner. That does not of itself provide any evidence that he be reimbursed by way of legal costs for his time and efforts in appearing and proceeding with his own personal matter.
23. The QCAT Rules govern the power of the Tribunal to order costs against a party in these proceedings. In the circumstances of this case the only order that can be made against the Applicant are costs pursuant to rule 84. Those costs that can be awarded are limited to one or more of the prescribed filing fee, a fee charged by a service provider for electronically filing a document, service fee and travelling allowance at the rate of the prescribed bailiffs fee and a business name or company search fee. In this rule the prescribed bailiff fees means the fees prescribed under the Uniform Civil Procedure (Fees) Regulation 2009, schedule 2, part 2.
24. The submissions from the Respondent do not seek orders for costs regarding filing fee, bailiff fee or a business or company search fee. The First Respondent did not pay a filing fee when he filed his Response on 7 June 2010. The First Respondent has not incurred any costs as contained in Rule 84.
25. I am satisfied that in this case the starting point is s100 of the QCAT Act. I find that each party should bear their own costs unless it is in the interests of justice to do otherwise. I am not satisfied that in this case it would be in the interests of justice to award costs against the Applicant in favour of the First named Respondent.
Order
THAT there be no order as to costs.
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