Neller v Queensland Building and Construction Commission [No 2]

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Neller & Anor v Queensland Building and Construction Commission [No 2] [2024] QCATA 46

PARTIES:
LUKE EDWARD NELLER AND LEEWARD MANAGEMENT PTY LTD ATF LE TRUST T/AS PROJECT BA

(appellants)

v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

APL009-22

MATTER TYPE:

Appeals

DELIVERED ON:

21 March 2024

HEARING DATE:

14 April 2023

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

1.   The application for costs by both applicants filed on 15 September 2023 in respect of APL009-22 is dismissed.

2.   The application for costs filed on 15 September 2023 in respect of OCR207-21 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – WHEN APPEAL LIES – where applicants were successful on an appeal – where applicants have applied for costs – where second applicant joined in the proceeding for the appeal – where second applicant utilised the services of an in-house legal officer – where costs sought on an indemnity basis – where costs of in-house legal officer based on charge out rate of an external lawyer – where first applicant engaged external lawyer for advice and preparation of documents – whether interests of justice require the respondent to pay costs of one or both applicants – whether costs of first applicant reasonable – whether self-represented litigant entitled to recover legal costs as an outlay – whether costs of using an in-house legal officer should be reflective of the costs to the employer rather than akin to using an external legal firm – whether in the interests of justice to make any order for costs.

Building Act1975 (Qld), s 190(2A)

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 100, s 102
State Administrative Tribunal Act 2004 (WA), s 87(1)
South Australian Civil and Administrative Tribunal Act 2013 (SA), s 57(1)

Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 109(1)

Aussie Invest Corporation Pty Ltd v Hobsons Bay City Council (2004) VCAT 2188

Baker v Dubickas & Ors. [2021] QDC 236
Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors [2022] QCAT 225
Brading v Suskova [2017] QCAT 373
Environmental Protection Authority v Taylor Woodrow (Aust) Pty Ltd (1997) 97 LGERA 368
Cachia v Hanes (1994) 179 CLR 403
CH v Queensland Police Service [2021] QCATA 137
Crime and Corruption Commission v NDZ [2024] QCAT 21
Cowen v Queensland Building and Construction Commission [2021] QCATA 103
Chiropractic Board of Australia v Jamieson [2013] QSC 77
Dansur Pty Ltd v Body Corporate for Cairns Aquarius & Anor [2023] QCATA 14
Drane v Taylor No 2 [2022] QCATA 157
Fuge v Queensland Building and Construction Commission [2014] QCAT 383
Legal Services Commissioner v Cooper [2017] QCAT 151
Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327
Marzini v Health Ombudsman (No 4) [2020] QCAT 365
Merrin v Commissioner of Police [2012] QCA 181
Neller v Queensland Building and…

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Details
Case
[2024] QCATA 46
Decision Date

CaseChat Overview and Summary

The case of Neller v Queensland Building and Construction Commission [No 2] involved two applicants, Neller and another individual, who sought costs following their successful appeal against decisions of the Queensland Building and Construction Commission. The applicants had appealed to the Queensland Civil and Administrative Tribunal (QCAT), where they sought costs on an indemnity basis. The second applicant, who had joined the proceeding for the appeal, had utilized the services of an in-house legal officer, and the costs sought were based on the charge-out rate of an external lawyer. The first applicant had engaged an external lawyer for advice and the preparation of documents. The court was required to determine whether the interests of justice required the respondent to pay costs for one or both applicants, whether the costs of the first applicant were reasonable, whether a self-represented litigant was entitled to recover legal costs as an outlay, and whether the costs of using an in-house legal officer should be reflective of the costs to the employer rather than akin to using an external legal firm.

The court considered whether it was in the interests of justice to make any order for costs. It found that the first applicant, who had engaged an external lawyer, was not entitled to recover legal costs as an outlay. The court noted that the first applicant's costs were excessive and not in line with the usual charges for such services. Regarding the second applicant, the court held that the costs of using an in-house legal officer should be reflective of the costs to the employer rather than akin to using an external legal firm. The court found that the costs claimed were not reasonable, and the second applicant was not entitled to recover the costs of the in-house legal officer. The court ultimately concluded that it was not in the interests of justice to make any order for costs in favour of either applicant.

In summary, the court dismissed the application for costs filed by both applicants in respect of the proceedings. The court found that neither applicant was entitled to recover the legal costs they sought, as the costs were either excessive or not reflective of the true costs to the employer. The court's decision was based on the principle that costs should only be awarded where it is in the interests of justice to do so. The orders made by the court were that the application for costs by both applicants filed on 15 September 2023 in respect of APL009-22 and OCR207-21 be dismissed.

Orders

Orders of the court

1. The application for costs by both applicants filed on 15 September 2023 in respect of APL009-22 is dismissed.

2. The application for costs filed on 15 September 2023 in respect of OCR207-21 is dismissed.

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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