Northpine (Aust) Pty Ltd v Queensland Building and Construction Commission
[2014] QCAT 579
•13 November 2014
| CITATION: | Northpine (Aust) Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 579 |
| PARTIES: | Northpine (Aust) Pty Ltd (Applicant/Appellant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR357-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Oliver |
| DELIVERED ON: | 13 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The respondent pay the applicant the sum of $1,203.00 within 30 days of the date of this order. |
| CATCHWORDS: | COSTS – where applicant self represented – whether costs recoverable – where certain outlays recoverable. Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 100, 102 Chiropractic Board of Australia v Jamieson [2013] QSC 17; |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
On 6 September 2013 the Queensland Building and Construction Commission issued a Direction to Rectify and/or Complete (“DTR”) to Northpine (Aust) Pty Ltd under s 72 of the Queensland Building and Construction Commission Act 1991 (Qld). The DTR related to “stairwell pressurisation that does not comply with AS/NZ 1668.1 – 1998…….”.
Northpine filed an application to review the Commission’s decision. The usual directions were made to progress the application including a requirement that the parties attend a compulsory conference on 6 May 2014. Subsequent to the compulsory conference the parties came to an agreement whereby the Tribunal made an order that the review application be dismissed. Although this order was made “by consent” it was subject to the Tribunal considering Northpine’s application for the costs of and incidental to the bringing the review application. Directions were made for the filing of submissions in respect of costs and that the decision on costs be decided on the papers.
It seems from reading Northpine’s submission that the reason the application for review as dismissed, was because the Commission voluntary withdrew the DTR.
Further relevant facts contained in the applicant’s submission are:
·Northpine was a subcontractor for the fire safety installation
·The Queensland Fire Service inspected, passed and certified the installation
·The building was completed in January 2009 with no maintenance carried out on the building
·After a complaint the Commission carried out an assessment and advised Northpine that it was not responsible for any subject matter of the complaint
·On 6 September 2013 the DTR issued
·On 2 September 2014 the DTR was withdrawn
Northpine says that in the circumstances the DTR should never have issued, it has been put to expense in filing the review application and considerable time and effort has been put into addressing the DTR.
Northpine has claimed costs in the sum of $35,108. Particulars are contained in the submission and include:
·Research by staff - 10hrs @ $45/hr, 8 hrs/day $ 3,600
·Research by management – 10 days @ $250/hr,
8 hrs/day $20,000
·Documentation costs $ 156
·Administration costs $ 6,800
·Meetings etc and outlays $ 4,552
What is evident from the costs claimed is that they do not include legal fees or costs, or for that matter the filing fee for the application for review.
Northpine has relied on two cases in support of its application for costs. Chiropractic Board of Australia v Jamieson [2013] QSC 17 and Swindells v Hosking (No 2) [2012] QDC 17. I can say at the outset that Swindells is not particularly helpful to the applicant’s position. It simply recites what the High Court had to say about costs in respect of self-represented litigants and that costs did not include a non-lawyer’s own time expended in preparing and conducting litigation. The court simply referred the costs for assessment by a costs assessor. It was for the cost assessor to decide what costs were payable in accordance with the authorities.
However, in Jamieson Jackson J did address particular items of outlays claimed by the applicant. His Honour followed the Court of Appeal in TheCommissioner of Police v Merrin[1] (Merrin No 2). The cost claimed in that case, and not allowed were expenses incurred by a self represented litigant in travelling to appear at the trial and pre-hearing mentions by the court. The Court of Appeal, in doing so, applied Cachia v Haines[2] and Worchild v Petersen[3]. Although, recognising he was bound by Merrin No 2 His Honour took the view this did not prevent him from considering the applicant’s out of pocket expenses “actually, necessarily and reasonably incurred” in the litigation.
[1][2012] QCA 181.
[2](1994) 179 CLR 403.
[3][2008] QCA 26.
In particular, and as an example to make the point, he said it was reasonable for a self-represented litigant to incur the cost of a transcript to ensure, inter alia, accuracy in the conduct of the proceeding. He said there was nothing the ratio of Merrin No 2 to prohibit the recovery of this cost. He made similar comment with respect to “printing and copying expenses” and also “costs of filing and other court fees”. Some travelling and parking expenses directly related to the conduct of the proceeding might also be allowed depending on the circumstances.
Therefore, on the strength of this authority, the applicant here contends it is entitled to recover its costs in this litigation.
However, before any decision can be made about the amount of costs payable, I have to decide whether having regard to the mandate under s 100 of the QCAT Act that each party should bear their own costs, the interest of justice require another order.
As I have already indicated, Northpine says that the DTR should never have issued to it. The Commission failed to have regard to the history of the complaint, Northpine’s involvement (or lack thereof) in work, and the fact that the Commission had earlier decided that Northpine was not responsible. Had it done so it would have taken a different course.
The Commission opposes the application for costs on the basis that:-
· The substance of the complaint involved complex issues;
· The work complained about was in fact defective despite the applicant’s contention to the contrary;
· The DTR was withdrawn because it came to light during the review process in QCAT that the defective work was carried out by another contractor;
· The information concerning the work being carried out by an independent contractor came from the applicant after the review application was filed.
· The Commission “effectively found the Applicant’s legal argument for them”;
· The applicant was afforded natural justice by the Commission before making the decision to issue the DTR and it was only after the applicant commenced proceedings was the information provided.
· The Commission has assisted the Tribunal in its role as a model litigant by “reviewing the material, proactively identifying areas where more information and/or documents are required, and reconsidering the decision prior to: any further Compulsory Conference; the Applicant’s Expert being engaged; and the Hearing”.
However, the Commission’s submission does not address why the DTR issued to the applicant in the first place. Also, it does not address the applicant’s contention that in May 2013 it was told, by an officer from the Commission, that Northpine was not responsible and that the file would be closed. Nor does the submission address the certifications included in the review application supporting the applicant’s position.
In view of what had transpired between Northpine and the Commission prior to the issuing of the DTR, it would be reasonable to expect the Commission to seek further information or clarification before issuing the DTR on 6 September 2013. In other words the history of this matter would suggest the need for further dialogue between the parties. There is no explanation as to why this did not occur. Once a DTR is issued by the Commission there is a notation on the licensee’s licence, which has adverse consequences to the licensee.
I am mindful of what I said in Fuge v Queensland Building and Construction Commission[4] that:
under the QBCC Act, the Commission has a dual function in administrating the Act. That is, to protect the public interest and also the interests of building contractors. In doing so it must not be reticent in discharging its obligations for fear of adverse costs orders against it if it is unsuccessful in responding to an application for review of its decisions unless it can be demonstrated, there is some specific conduct on the part of the Commission, that would ‘so compellingly’ overcome the strong contra-indication against costs orders in s 100 of the QCAT Act.
[4][2014] QCAT 383 at paragraph 28.
This is, in my view, one of those cases where had the Commission consulted with the applicant before issuing the DTR the true situation would have become clear and the consequences of the DTR may well have been avoided. This of course, includes the application for review and the costs associated with it. The result is that I am satisfied that the Commission should bear some of the applicant’s costs in line with what was said in Jamieson.
Turning then to the assessment, bearing in mind I should fix costs if I can,[5] it is immediately apparent on the authorities that the applicant cannot recover the research costs. This would also include the Administration fees for the secretary and the Director to review documents. I am not able to allow the time for attendance at meetings because these are not out of pocket expenses. The only recoverable items are:
· Folders, paper and printing costs of $176
· Parking costs of $350
· Fuel of $392
· Filing fee of $285
[5]QCAT Act s 107.
Therefore the total recoverable costs are $1,203.00. I will therefore order that these costs be paid within 30 days of the date of this order
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