Ord v Nursing & Midwifery Board of Australia
[2014] QCAT 68
| CITATION: | Forster & Anor v Body Corporate for 2nd Ave CTS 5755 [2014] QCAT 68 |
| PARTIES: | Helen Maree Forster and Robin James (Don) Forster (Applicant) |
| v | |
| Body Corporate for 2nd Ave CTS 5755 (Respondent) |
| APPLICATION NUMBER: | OCL045-13 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the Papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Quinlivan |
| DELIVERED ON: | 24 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Helen Maree Forster and Robin James Forster are to pay The Body Corporate for 2nd Avenue CTS 5755, $1,000 within 28 days of the date of this order. |
| CATCHWORDS: | Other Civil Dispute matters - Failure to substantiate a claim - costs |
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
What is this application about?
The Body Corporate for 2nd Avenue CTS 5755 wants Mrs Helen Maree Forster and Mr Robin James Forster to pay its costs arising from it having to respond to the application brought by Mr and Mrs Forster. In their application Mr and Mrs Forster sought the following:
1. … a legal injunction… be put in place against the Body Corporate Committee for 2nd Avenue Apartments preventing them from proceeding with the reversion process motion of 9.5.13 on the grounds of NATURAL JUSTICE DENIED to 50 other unit owners.
2. … a determination from QCAT that in view of the procedural irregularities and denial of NATURAL JUSTICE apparent throughout the approval process, the Body Corporate committee for 2nd Ave Apartments be directed to have the Leary Report of 2009 reviewed and made compliant with the current legislation by the inclusion of the RELATIVITY PRINCIPLE (Market Value) in the revised report.
The Tribunal dismissed Mr and Mrs Forster’s application on 3 January 2014 basically because it did not articulate a cause of action and it lacked substance.
Does the Tribunal have jurisdiction to award costs?
Mr and Mrs Forster are aggrieved by a decision of the Body Corporate to implement the recent amendments of the Body Corporate and Community Management Act 1997(Qld). They sought relief from the Tribunal as outlined above. The Body Corporate had to respond to their claims and were required to incur costs, having been granted leave by the Tribunal to obtain legal representation.
Section 100 of the Queensland Civil and Administrative Act 2009 (Qld) provides that each party to a proceeding must bear their own costs except as provided for in the Act. The considerations that the Tribunal must undertake when determining whether to award costs “in the interests of justice” are set out in section 102 of the Act.
The issue of costs has been addressed by the Tribunal President in his decision in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at paragraph 29 where he says:
“Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100”.
What are the relevant considerations?
The first issue to consider is whether any party has acted in a way that unnecessarily disadvantaged another party. The Body Corporate contend that Mr and Mrs Forster’s application was frivolous and vexatious because it raised issues that were completely obscure and erroneous.
Mr and Mrs Forster argue that QCAT offers a low cost Tribunal to the community and from their point of view it was an obvious platform to have their case heard. They say that the “appeal” was submitted in good faith as their only logical course of redress. They state that any assumption that their “appeal” was in any way vexatious, frivolous or an abuse of process is strongly denied.
The Body Corporate next submits that the proceedings brought by the Mr and Mrs Forster were an abuse of process. They claim that the Mr and Mrs Forster attempted to invoke the Tribunal’s powers for an illegitimate claim They argued that “the use of the Tribunal’s processes is unjustifiably oppressive to the respondent and the use of the Tribunal’s processes in such blatant disregard for truth and justice, make a mockery of the Tribunal and bring the administration of justice into disrepute”.
Further the Body Corporate claims that Mr and Mrs Forster’s actions have been burdensome, harsh and wrongful. They say that they had to meet the claim despite no cause of action existing. This has resulted in the respondent incurring costs. The Tribunal notes that the respondents were granted leave to be represented on 31 July 2013.
Mr and Mrs Forster sought to assure the Tribunal that their “appeal” was genuine and “was submitted with the intent to secure a just and fair outcome for unit holders”. They say that the unsubstantiated and emotional statements contained in the Body Corporate’s submissions are incorrect and inconsistent with the majority of unit holders.
Mr and Mrs Forster continued to assert that the current legislation is flawed and subject to further review by the Attorney General. As a result they decided that there had been a denial of Natural Justice and they based their claim on that principle. The Tribunal noted that they continued to seek to revisit the decisions and actions of the Body Corporate in their submissions regarding the costs application.
The Tribunal also noted that they attached two documents to their submissions, which appear to be an account from a firm of solicitors regarding a Lot entitlement Reversion Dispute in 2011-2012. Mr and Mrs Forster did not address the relevance of these documents in their submissions.
Finally Mr and Mrs Forster claim that in the interests of justice they believed they had a case to be heard by an independent authority and that they had a responsibility to explore all avenues of redress. They said that they now accept that they must await any new legislation. They request the Tribunal to reject the claim by the Body Corporate for costs.
The failure of Mr and Mrs Forster to properly present their case made it next to impossible to determine the actual nature and complexity of the dispute. Consequently the relative strengths of the claims could not be assessed.
The failure to adequately articulate their claim ultimately resulted in its dismissal. In Kehl v. Board of Professional Engineers of Queensland [2010] QCATA 77 at paragraph 10, Deputy President Kingham pointed out:
The factors listed in s 102 are a guide to the considerations the Tribunal may take into account in deciding whether this is an appropriate case in which to award costs. In any given case, the relative importance of each criterion will vary. Further, their significance may relate to what stage the proceedings have reached. For example, questions about the relative strengths of the parties’ cases may assume less significance upon an initial hearing, yet loom large when it comes to the costs of an application for leave to appeal.
In this instance the matter proceeded to a hearing on the papers. No attempt appears to have been made by the respondents to have the matter dismissed at an earlier stage. This is often an option when it is apparent that there is no substance to a claim.
The Tribunal was conscious of the submission by the Body Corporate that the Mr and Mrs Forster have consistently alleged that up until the determination of this matter every decision maker has acted unfairly, with bias and without detachment. The Body Corporate asserts that this was not the case and that at all times they, in particular, have complied with their legal obligations under the legislation.
What is the outcome?
The Body Corporate sought an order for costs. In order to ensure procedural fairness to Mr and Mrs Forster, both parties were allowed 28 days to make further submissions regarding costs. This matter was also heard on the papers.
In the substantive decision, the Tribunal found that the material provided by Mr and Mrs Forster was based solely on their own opinions about the issues that they claimed were in dispute. The Tribunal found that their material was vague, contained unsupported statements and lacked specific detail and context. The attachments to their application were largely irrelevant, dated, repetitious and self-serving.
The Tribunal accepted that they had not made any reference to the relevant provisions of the BCCM Act. As a result Mr and Mrs Forster had not provided any evidence to convince the Tribunal to grant the relief that they sought.
Mr and Mrs Forster continued to argue that “… (a)s a group we do not have the funds to engage legal representation”. There is no evidence to demonstrate that they represented a group. They refer to funds raised previously to fight a earlier action. They claim that the members of the Body Corporate have unlimited funds to meet their legal costs. They submit that if they had access to similar funds then they could provide “ a more professional submission with reference to BCCM Act”.
In the circumstances the Tribunal is satisfied that it is in the interests of justice that Mr and Mrs Forster pay at least part of the Body Corporate’s costs.
Section 107 of the QCAT Act states that if the Tribunal makes a costs order under the Act then it must fix costs if possible. This is not a situation where indemnity costs would be appropriate. The conduct of Mr and Mrs Forster does not justify such an outcome. The Tribunal is not satisfied that the application was vexatious.
However the Tribunal is satisfied that it was necessary for the respondents to incur a reasonable amount of costs to answer the application. This would have included obtaining initial advice, preparing a response and preparing submissions. Neither party has attempted to quantify the costs involved. The Tribunal has therefore have therefore determined that in order to finalise these matters it is appropriate to fix costs in the amount of $1,000.
Order
Helen Maree Forster and Robin James Forster are to pay The Body Corporate for 2nd Avenue CTS 5755, $1,000 within 28 days of the date of this order.
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