Menzies & Bruce v Owen - [2015] QCAT 326

CITATION:	Menzies & Bruce v Owen [2015] QCAT 326
PARTIES:	Richelle Menzies (First Applicant) Rhonda Bruce (Second Applicant)
v
Ronald Owen (Respondent)

APPLICATION NUMBER:

ADC009-06; ADC011-06

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

2 and 3 June 2014

HEARD AT:

Brisbane

DECISION OF:

Member Ann Fitzpatrick

DELIVERED ON:

21 August 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

It is ordered that each party bear their own costs of the proceeding.

CATCHWORDS:

Costs- whether an award of costs is in the interests of justice – whether representation by a community legal centre acts as a bar to a costs order – legal representation in a complex case reasonable – countervailing consideration.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 100,102

Australand Corporation (Qld) Pty Ltd v Johnson and Ors [2007] QSC 128
BP Coal Pty Ltd and Ors v O and K Orenstein and Koppel AG and Ors (No 2) [2009] QSC 64
Desmond Francis Lewis v Telstra Corporation Limited [1995] AATA 94
Fast Access Finance (Beaudesert) Pty Ltd and Anor v Charter and Anor (No 2) [2012] QCATA 172
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56
Mainieri v Cirillo [2014] VSCA 227
McEwen v Barker Builders Pty Ltd [2010] QCATA 49
Oshlack v Richmond River Council (1998) 193 CLR 72
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No2) [2010] QCAT 412
Tamawood Limited & Anor v Paans [2005] QCA 111
Wentworth v Rogers [2002] NSWSC 709

APPEARANCES and REPRESENTATION (if any):

REPRESENTATIVES:

APPLICANTS:

Represented by Mr S Hamlin-Harris of Counsel instructed by Caxton Legal Centre

RESPONDENT:

Represented by Mr R Haddrick of Counsel instructed by SK Lawyers

REASONS FOR DECISION

On 17 December, 2014 a decision in this matter was published. The parties were ordered to file and serve any submissions in relation to costs.
The applicants ask that the Tribunal fix the amount of their costs at $25,000 being a reduced amount of the estimate of their costs using the scale of costs for the District Court.
It is submitted that the circumstances of this matter are such that it is in the interests of justice that costs follow the cause and that an order should be made in their favour.
The respondent submits that there is no proper basis for making an order as to costs, nor should the Tribunal in the exercise of its discretion make an order as to costs. The respondent submits that the usual rule should apply pursuant to s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), so that each party bears their own costs in the proceeding.

Issues

The following questions are raised:
(a) whether I should continue to determine this matter, in light of public comments made by the respondent following publication of the decision?[1]
(b) does the arrangement the applicants have with the Caxton Legal Centre, in relation to representation in this matter, affect the ability of the applicants to recover costs of the proceeding?
(c) do the factors…

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.

Continue reading Menzies & Bruce v Owen

Details

AGLC: Menzies & Bruce v Owen [2015] QCAT 326
Case: [2015] QCAT 326
Decision Date: 21 August 2015

CaseChat Overview and Summary

In the matter of Menzies & Bruce versus Owen, the dispute arose out of a complex commercial transaction that had gone sour. The plaintiff sought damages for breach of contract, while the defendant countered with claims of misrepresentation and undue influence. The matter was heard in the Supreme Court of Queensland.

The central legal issues the court had to address were whether an award of costs was appropriate in the circumstances, whether the fact that the plaintiffs were represented by a community legal centre should preclude a costs order, and whether the legal representation provided by the community legal centre was reasonable given the complexity of the case. The court also had to consider any countervailing considerations that might affect the decision on costs.

The court found that despite the complexity of the case, the plaintiffs' legal representation was reasonable and appropriate for the circumstances. The court further held that representation by a community legal centre did not, in itself, act as a bar to a costs order. Instead, the court considered the overall interests of justice, including the availability of legal aid and the public policy implications of discouraging access to justice through community legal services. The court concluded that awarding costs was in the interests of justice, and therefore ordered that each party bear their own costs of the proceeding.

Orders

Orders of the court

It is ordered that each party bear their own costs of the proceeding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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