Neller v Queensland Building and Construction Commission [No 2] - [2023] QCATA 170

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Neller & Anor v Queensland Building and Construction Commission [No 2] [2023] QCATA 170

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:

15 June 2023

HEARING DATE:

14 April 2023

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

1. The application for costs by both applicants 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 interest 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 Construction Commission [2021] QCAT 426
Pound v Queensland Building and Construction Commission [2023] QCAT 298
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)

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: [2023] QCATA 170
Decision Date: 15 June 2023

CaseChat Overview and Summary

In the matter of Neller v Queensland Building and Construction Commission [No 2], the applicants sought to have costs awarded to them following a successful appeal. The Queensland Civil and Administrative Tribunal (QCAT) had to decide whether the interests of justice required the respondent to pay costs of one or both applicants, and if so, whether those costs were reasonable. The first applicant engaged an external lawyer for advice and document preparation, and the second applicant used an in-house legal officer, with costs sought on an indemnity basis. The tribunal considered whether the first applicant was entitled to recover legal costs as an outlay, whether the second applicant’s in-house legal officer’s costs should reflect internal costs rather than external legal fees, and whether any order for costs would be in the interest of justice.

The tribunal held that the first applicant was not entitled to recover the costs of engaging an external lawyer as an outlay, as they had not been necessary to the proceedings. Regarding the second applicant, the tribunal found that the costs of the in-house legal officer should reflect the costs to the employer rather than the external legal firm rate, thus deeming the costs excessive. The tribunal concluded that making any order for costs would not be in the interest of justice, given the applicants' success and the unreasonable nature of the costs claimed.

Consequently, the tribunal dismissed the application for costs by both applicants. The tribunal found no basis to award costs to either party, highlighting the need for reasonable and justifiable costs in legal proceedings. This decision underscores the importance of proportionality and fairness in cost awards, particularly in administrative tribunal contexts.

Orders

Orders of the court

1. The application for costs by both applicants 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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