Roberts v Queensland Building and Construction Commission

[2014] QCAT 396

CITATION: Roberts v Queensland Building and Construction Commission [2014] QCAT 396

PARTIES:	Anthony Mark Roberts (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER: GAR120-13

MATTER TYPE: General administrative review matters

HEARING DATE: On the Papers

HEARD AT: Brisbane

DECISION OF: Member Gardiner

DELIVERED ON: 11 August 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.     The application for costs is dismissed.

CATCHWORDS:

BUILDING – REVIEW – COSTS – Decision of Commission to exclude claim under statutory insurance scheme – WHERE deck falling into river – WHERE two experts have different views as to cause of movement – WHERE homeowner’s  expert preferred – WHERE costs application made by homeowner – WHERE application of type normally seen by Tribunal – WHETHER costs should be awarded

Queensland Civil and Administration Tribunal Act 2000 ss 100, 102, 105
Queensland Civil and Administrative Tribunal Rules 2009 r 86

Tucker v Queensland Building and Construction Commission (No. 2) [2014] QCAT 234
Wolfgram v Racing Queensland [2012] QCAT 44 distinguished

Fuge v Queensland Building and Construction Commission [2014] QCAT 383 followed

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 (QCAT Act).

REASONS FOR DECISION

1. On 11 June 2014 this Tribunal handed down a decision setting aside the decision of the Commission to disallow Mr Roberts’ claim under the statutory insurance scheme.

2. Mr Roberts had made a costs application in the event of a successful outcome.  A timetable for submissions was directed and the application for costs was set to be heard on the papers.  This is a consideration of that application. 

3. Costs are considered under s 100 and s 102 of the Queensland Civil and Administration Tribunal Act 2009.

4. The starting point concerning costs in QCAT is that each party must bear its own[1].  This presumption may be displaced if the Tribunal considers, in the interests of justice, a party should pay all or part of the costs of another party[2].  The phrase ‘in the interests of justice’ is not defined in the Act but is to be construed according to its ordinary and plain meaning, which confers a broad discretionary power on the decision-maker[3].

   [1]QCAT Act s 100.

   [2]QCAT Act s 102(1).

   [3]Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601 at 613 (per Kirby P).

5. Section 102(3) sets out the matters the Tribunal may have regard to in making any costs award. In determining whether it is in the interests of justice to award costs against another party, the Tribunal may have regard to the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; and, whether a party has acted in a way that unnecessarily disadvantages another party.

6. Section 105 allows the rules to authorise the awarding of costs in other circumstances, including, for example, the payment of costs in a proceeding of an offer to settle the dispute has been made but not accepted.

7. Rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (QCAT Rules) sets out the circumstances of such an award after an offer has been made.

8. Mr Roberts submits the Tribunal should exercise its discretion to depart from the general rule under s 100 and award costs in the interests of justice because :

   a)    His claim has been restricted to the costs incurred wholly within the proceedings alone;

   b)    He was wholly successful in his claim so the costs are not superfluous;

   c)    The technical nature of the matter specifically required Mr Roberts to obtain legal representation and engage a geotechnical expert;

   d)    The decision to set aside the decision and allow the claim under the statutory warranty scheme is not more favourable to the Commission than the offer that was made by Mr Roberts;

   e)    All costs should be payable or all costs should be on an indemnity basis from the date of the offer.

9. The Commission counters saying:

   a) The circumstances of this case fall well short of pointing so compellingly to a costs award such as to overcome the strong contra-intention in s 100 of the QCAT Act;

   b)    The Tribunal was called upon to make findings of credit in circumstances of competing expert evidence;

   c)    Mr Roberts’ expert was accepted but mere success in a competitive environment is not sufficient as, if it were, every applicant who succeeds consistent with their statement of evidence would also succeed in recovering costs;

   d)    It was appropriate and necessary for the Commission to “test the case”;

   e)    The subsequent acceptance of the evidence for Mr Roberts does not mean the statutory obligations placed on the Commission should be compromised for fear of a costs order.

10. When considering section 102(3), the Commission says:

    a)    The Commission did not act in a way that disadvantaged Mr Roberts and the assertion that the Commission ignored attempts to resolve the matter is unfounded;

    b)    Proper management of the statutory insurance scheme is significant and should not be overlooked[4] ;

    c)    Mr Roberts was not required to engage representation;

    d)    The Commission made no claims in this matter but merely responded to the application having applied the insurance policy conditions;

    e)    The Commission is a statutory Authority obligated to assist the Tribunal to make the correct and preferable decision.

    [4]Holmes v Queensland Building Services Authority [2010] QCAT 197.

11. Concerning the offer of settlement, the Commission relied on the decision in Tucker v Queensland Building and Construction Commission[5] where the conclusion was that an offer to settle remains a discretionary matter under the Tribunal Rules[6].

    [5](No. 2) [2014] QCAT 234 (Tucker).

    [6]QCAT Rule r 86(2).

12. The Commission says the offer was made after the first day of the hearing and that no evidence had been presented on that first day which altered the position of either expert, so there was no proper basis for the Commission to accept the offer.

13. In reply, Mr Roberts submits:

    a)    He continues to rely on the decision in Wolfgram v Racing Queensland[7] where the learned Member held that a completely successful outcome is a factor in favour of an award of costs;

    b)    That the Commission could have engaged another expert once Mr Egen’s report was received by it.

    [7][2012] QCAT 44.

14. In relation to the offer, Mr Roberts submits in reply that s 105 of the QCAT Act and rule 86 of the QCAT Rules do not require an examination of the position of the parties at the time the offer was made, but rather whether in the opinion of the Tribunal, the decision is not more favourable to the other party than the offer.

15. Mr Roberts also relies specifically on the decision in Tucker decision, saying if it is clear that the decision of the Tribunal is not more favourable than the offer there would be a strong imperative to exercise the discretion of costs.

Discussion

1. The circumstances allowing the awarding of costs under s 100 of the QCAT Act were comprehensively discussed by the learned Senior Member in Fuge v Queensland Building and Construction Commission[8] and I respectfully adopt his analysis.  As is commented by the learned Senior Member in the Fuge v QBCC[9] decision, it is against this analysis of a strong contra-indication that this costs application is to be considered.

   [8][2014] QCAT 383 (Fuge v QBCC) beginning at [5].

   [9]Ibid [12].

2. Mr Roberts relies on the decision in Wolfgram v Racing Queensland.  In my view, this decision is distinguished.  This was the review of a disciplinary decision of Racing Queensland that Mrs Wolfgram had engaged in dishonest and fraudulent behaviour.  This is not the circumstances of the review brought by Mr Roberts and I am not satisfied this case had direct relevance to reviewing a building decision of the Commission.  The Wolfgram decision was a disciplinary hearing where serious personal allegations are being made, not only affecting reputation but also affecting the ability of a person to earn her living.  Mr Roberts’ review is not a disciplinary matter. 

3. Further in that matter the learned Member ‘struggled to understand why Racing Queensland persisted with the investigation and prosecution given the circumstances and the evidence before it’[10].  These circumstances do not exist in Mr Roberts’ matter.

   [10]Ibid [15].

4. I do not accept the submission that the Commission could have engaged another expert once Mr Egen’s report was received by it.  Once the competing evidence was identified, the Commission has the right to have the evidence tested by the Tribunal.  There is no responsibility to engage another expert simply because the evidence differs.  This is so where both experts have the necessary qualifications to give the evidence.  Here there was no finding that Mr Hughes was not qualified to give his opinion, just that Mr Egen’s evidence was preferred.

5. The Tribunal has all the functions of the original decision-maker. The original decision-maker must help the Tribunal[11] and provide a written statement of reasons for the decision and any documents relevant to the review of the decision.  In reviews of decisions of the Commission, the proceedings must be conducted in accordance with guidelines of a model litigant and the Commission must assist the Tribunal in coming to the correct and preferable decision.  The Commission is before the Tribunal on Mr Roberts’ application.  It seeks no orders itself.  As this is a review of its decision, it is entitled to have the evidence of its chosen expert witness tested.  I do not accept that in relying on Mr Hughes, the Commission did not give Mr Roberts natural justice.  

   [11]QCAT Act s 21.

6. I also do not accept Mr Roberts’ submission regarding the decision in Tucker.  The learned Senior Member in Fuge v QBCC[12] comments:

   I reiterate 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. I am not satisfied that this is the case here.

   [12]Fuge v QBCC [28].

7. I am not satisfied the Commission acted to the disadvantage of the Mr Roberts by allowing the evidence of the two experts to be tested. 

8. I am not satisfied the nature and complexity of the dispute necessitated legal representation but I acknowledge the presence of legal representatives on both sides assisted the deliberations of the Tribunal.  The relative strengths of the claims made by the parties was based primarily based on the expert evidence and I am satisfied it was appropriate to have that evidence tested before the Tribunal. 

9. I have dealt with the issue of natural justice.  After bringing the review application, Mr Roberts now has his claim covered by the statutory warranty scheme – a financial advantage to him.  

10. This is a review of the type the Tribunal would normally expect to have come before it.  I find no other relevant matters that require me to further consider in relation to costs. 

11. I am not satisfied, taking into account the matters set out in s 102(3) of the QCAT Act, that in the interests of justice a costs order should be made against the Commission.