QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
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Details
- Case
- [2023] QCAT 298
- Decision Date
CaseChat Overview and Summary
In the Queensland Civil and Administrative Tribunal (QCAT), Pound v Queensland Building and Construction Commission involved a review of disciplinary decisions made by the respondent regarding the applicant's unsatisfactory conduct in granting building approvals for two properties in St Lucia. The respondent initially imposed multiple penalties, including a reprimand, mandatory educational courses, and conditions on the applicant's licence. After reconsideration, the respondent reduced the penalties to a single reprimand, finding the applicant had already complied with the other requirements. The applicant subsequently withdrew the review applications and sought costs.
The primary legal issue before the tribunal was whether the applicant was entitled to an order for costs against the respondent. This required consideration of the provisions of the QCAT Act, specifically sections 100 and 102. Section 100 provides that each party generally bears its own costs, while section 102 allows the tribunal to order one party to pay the other’s costs if the interests of justice require it. The tribunal had to determine whether the circumstances of the case were compelling enough to justify departing from the general rule.
The tribunal examined the nature and complexity of the dispute, the relative strengths of the claims, and whether the applicant had genuinely attempted to help the decision-maker on the merits. It also considered the financial circumstances of the parties and other relevant factors. The tribunal concluded that the interests of justice did not point compellingly to a costs order against the respondent, as the applicant had already withdrawn the review applications and the dispute was not overly complex or financially burdensome. The tribunal preferred the approach that a stronger foundation than the 'interests of justice' was required to override the default position under section 100.
The tribunal decided against making a costs order against the respondent, adhering to the principle that each party should bear its own costs unless compelling circumstances exist. The tribunal noted the applicant's compliance with the educational and peer review requirements and the respondent's reconsideration and reduction of penalties, finding that these factors did not warrant a costs order.
The primary legal issue before the tribunal was whether the applicant was entitled to an order for costs against the respondent. This required consideration of the provisions of the QCAT Act, specifically sections 100 and 102. Section 100 provides that each party generally bears its own costs, while section 102 allows the tribunal to order one party to pay the other’s costs if the interests of justice require it. The tribunal had to determine whether the circumstances of the case were compelling enough to justify departing from the general rule.
The tribunal examined the nature and complexity of the dispute, the relative strengths of the claims, and whether the applicant had genuinely attempted to help the decision-maker on the merits. It also considered the financial circumstances of the parties and other relevant factors. The tribunal concluded that the interests of justice did not point compellingly to a costs order against the respondent, as the applicant had already withdrawn the review applications and the dispute was not overly complex or financially burdensome. The tribunal preferred the approach that a stronger foundation than the 'interests of justice' was required to override the default position under section 100.
The tribunal decided against making a costs order against the respondent, adhering to the principle that each party should bear its own costs unless compelling circumstances exist. The tribunal noted the applicant's compliance with the educational and peer review requirements and the respondent's reconsideration and reduction of penalties, finding that these factors did not warrant a costs order.
Orders
Orders of the court
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Background
Background to the litigation
Consistent with the right under s 43(2)(b)(ii) of the QCAT Act, the applicant was legally represented in the proceedings, while the respondent was represented by in-house counsel. Background On 16 March 2021, the applicant filed two applications to review disciplinary decisions made by the respondent. The decisions related to separate properties in St Lucia. In each case the respondent found that the applicant had engaged in four counts of unsatisfactory conduct when granting the Building Approval. In accordance with s 204(4) of the Building Act 1975 (Qld), in each case it was decided to reprimand the applicant on each count, direct her to complete a stated educational course, impose conditions on her licence (which in essence required peer review of specified building applications until completion of the educational course), and the provision to the respondent on a monthly basis of a list of all building development approvals given which had been peer reviewed. By directions issued on 25 January 2022, the respondent was invited to reconsider its decisions. On 22 February 2022, in reconsidering the decisions, the respondent decided that, in relation to certification of the buildings on each of the two properties, the applicant had engaged in one count of unsatisfactory conduct for which the appropriate penalty was reprimand only. It was noted that on 17 and 18 June 2021 the applicant had completed the prescribed educational course, which was notified to the respondent on 17 August 2021, and that between 9 June 2021 and 22 July 2021 an appropriately qualified person had peer reviewed specified building approvals issued by the applicant. It was further noted that the respondent was satisfied that the applicant had complied with the earlier education and peer review requirements and, accordingly, it was no longer appropriate to impose those penalties ‘as part of the correct and preferable decision’. As to the latter, see ss 20(1) and 21(1) of the QCAT Act. On 11 April 2023 the applicant filed notices of withdrawal of the review applications and on the same day filed submissions in support of an application for costs. On 26 May 2023, the respondent filed submissions in response, opposing a costs order. The QCAT Act Section 100 of the QCAT Act is headed ‘Each party usually bears own costs’ and provides:Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding. Section 102 is headed ‘Costs against party in interests of justice’ and provides:(1) The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order. (2) However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following— (a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g); (b) the nature and complexity of the dispute the subject of the proceeding; (c) the relative strengths of the claims made by each of the parties to the proceeding; (d) for a proceeding for the review of a reviewable decision—(i) whether the applicant was afforded natural justice by the decision-maker for the decision; and (ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits; (e) the financial circumstances of the parties to the proceeding; (f) anything else the tribunal considers relevant.Costs decisions
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Section 102 is headed ‘Costs against party in interests of justice’ and provides:(1) The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order. (2) However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following— (a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g); (b) the nature and complexity of the dispute the subject of the proceeding; (c) the relative strengths of the claims made by each of the parties to the proceeding; (d) for a proceeding for the review of a reviewable decision—(i) whether the applicant was afforded natural justice by the decision-maker for the decision; and (ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits; (e) the financial circumstances of the parties to the proceeding; (f) anything else the tribunal considers relevant.Costs decisions There have been ongoing divergent views expressed in the decisions of the Tribunal as to the effect of those provisions. In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2),[1] the then President of the Tribunal, Justice Alan Wilson, referred to s 100 of the QCAT Act and said that the ‘starting point concerning costs in QCAT is that each party must bear its own’, before adding, at [29]: 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.[1][2010] QCAT 412, [4]. That decision has been followed in a considerable number of cases, including more recently in Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs),[2] Valuers Registration Board of Queensland v Murphy,[3] and Campbell v Queensland Building and Construction Commission (No 2).[4] [2][2022] QCAT 225.[3][2022] QCAT 295.[4][2023] QCAT 54. In that case extensive consideration was given to the opposing views, including what is meant by the term ‘require’ in s 102(1) of the QCAT Act, before it was concluded that a stronger foundation than the ‘interests of justice’ is required and that: ‘I consider that I am bound to follow one or other of the respective approaches to s 102. In that event, I prefer the conclusion that the interests of justice must point “so compellingly” to the making of a costs order as to override the default position in s 100’.
Ratio Decidendi
Legal Principle Established
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