Samimi v Queensland Building Services Authority
[2012] QCAT 133
•23 March 2012
| CITATION: | Samimi v Queensland Building Services Authority [2012] QCAT 133 |
| PARTIES: | Mr Kamran Samimi |
| v | |
| Queensland Building Services Authority |
| APPLICATION NUMBER: | OCR089-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Ann Fitzpatrick, Member |
| DELIVERED ON: | 23 March 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The applicant’s application for costs is dismissed. |
| CATCHWORDS: | Costs Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102(3) Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 |
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
After a hearing in this matter it was ordered that the decision of this Tribunal be substituted for the decision of the Queensland Building Services Authority (QBSA), made on 26 March, 2010, so that the applicant Kamran Samimi be categorised as a permitted individual for a relevant event, being the winding up of Spectrum House and Land Pty Ltd ACN 115772426 on 24 February, 2010.
The applicant seeks costs of the proceedings.
Legal position
The application for costs falls to be considered under sections 100 and 102 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). Section 100 of the Act provides that other than as provided under the QCAT Act or an enabling Act, parties must bear their own costs for the proceeding.
In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2), Justice Wilson discussed the following relevant principles a Tribunal takes into account when determining a costs application under the QCAT Act:
(a)“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-indicator against costs orders in section 100”;[i]
(b)“..where the complexity of the matter justified legal representation, it would not be in the interests of justice to bar the successful party from recovering costs that were reasonably necessary to achieve a satisfactory outcome.”[ii]
Section 102 of the QCAT Act sets out relevant matters for the Tribunal to consider in determining whether there is a compelling reason to award costs in the interests of justice:
“Costs against party in interests of justice
(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)…
(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
(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.”
Submissions of the parties and findings
Whether a party is acting in a way that unnecessarily disadvantages another party to the proceeding
The disadvantageous conduct of the respondent pointed to by the applicant appears to be the following, although the applicant in his submissions did not group his submissions under the headings raised in section 102(3) of the QCAT Act:
(a) no reasons for the decision the subject of the review were provided by the respondent until after proceedings were commenced and those reasons were subsequently amended;
(b) the applicant had to deal with the issue of an exercise of discretion up until the commencement of the hearing when it was first conceded that the exercise of discretion favoured the applicant; and
(c) once discretion was no longer a consideration, the QBSA was in possession of all relevant material to determine that the principles in Younan v QBSA[iii] had been satisfied and there was no purpose served in causing this matter to proceed to a contested hearing.
There does not appear to be any complaint about conduct of the type referred to in section 48 of the QCAT Act.
The respondent submits that it did not act in a way that unfairly disadvantaged the applicant. It says that reasons were provided at an early stage in accordance with the Tribunal’s directions. It submits that up to that time and beyond the applicant was self-represented and incurred no legal costs.
I accept the respondent’s submissions. I find that the failure to provide reasons until after proceedings had commenced was not disadvantageous conduct which caused the applicant to incur legal costs, given that he was not represented at that time. Provision of reasons earlier may have been desirable and may have assisted the applicant in the preparation of his case however, reasons are unlikely to have avoided the litigation given the applicant’s desire to retain his licence.
[10] The applicant appears to be submitting that the respondent should have changed its decision before the hearing because it conceded that the discretion to should be exercised to classify the applicant as a permitted individual, if the threshold questions were satisfied. The applicant’s submission ignores the respondent’s views in relation to whether the applicant took all reasonable steps to avoid the coming into existence of the circumstances which lead to the happening of the event in question. I do not consider the respondent’s views on this issue to be so unreasonable that the respondent could be criticised for not changing its decision before the hearing.
[11] I find that the respondent has not acted in a way that unnecessarily disadvantaged the applicant.
The nature and complexity of the dispute the subject of the proceeding
[12] I am conscious that the application was necessary for the applicant to retain his licence in order to continue supporting his family. Although a very important matter, the matter was not factually complex. The legal principles to be applied to the facts are well settled.
[13] I find that the applicant perceived a complexity in the matter which compelled him to seek legal assistance. However, I do not think that just because it is reasonable to be legally represented, that costs must necessarily follow without some other compelling reason, such as a party being deprived of the benefit of an award by the need to pay legal costs, as discussed in Tamawood Limited & Anor v Paans[iv].
The relevant strengths of the claims made by each of the parties to the proceeding
[14] The applicant submits that he was successful and that his application was strong. He submits that the QBSA’s opposition to his application was relatively weak. The applicant made a number of submissions about the merits of the matter, including that it should have been apparent that he was not in a position to influence the company at the relevant time and that all relevant steps had been taken. The applicant submits that the respondent’s position remained fixed notwithstanding the evidence provided by him.
[15] I find that the decision made by the QBSA, the subject of the review, was not so unreasonable that it would be unjust not to award the applicant his costs for having to seek a review of the decision. This is particularly the case because further evidence was put before the Tribunal and the ultimate decision was aided by the all the evidence being given before it.
Whether the applicant was afforded natural justice
[16] I agree with the submissions of the respondent that the applicant was afforded natural justice.
[17] There is no suggestion that there was not a fair process associated with the applicant’s submission to the QBSA to be treated as a “permitted individual”. The applicant has not said that he did not have a full opportunity to put material before the QBSA on the issue and for that material to be given fair consideration.
Whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits
[18] The applicant asserts that he provided overwhelming and compelling evidence to the QBSA. Prior to the hearing the QBSA had all financial records and decisions of the company so that it could have consented to the application to save a hearing.
[19] The respondent has not submitted that the applicant was not genuine in his approach to the matter.
[20] The Tribunal found that the evidence provided for the hearing was more fulsome than that originally provided to the QBSA prior to making its decision. However I find that the difference in the material provided was not so marked as to suggest that the applicant was not genuine in his attempts to help the QBSA make the decision on the merits.
[21] I do not think the status of the applicant’s attempts to assist the QBSA, in this case, affects the question of whether the interests of justice are served by making a costs order in favour of the applicant.
The financial circumstances of the parties
[22] The applicant has made no submissions on this issue. I note the respondent says that the evidence is that the applicant is a man of substantial means. I make no finding in that regard and because there have been no submissions from the applicant, give the issue no weight.
Anything else the Tribunal considers relevant
[23] The applicant has also submitted that he was compelled to engage lawyers and to brief counsel to prosecute his review application because the QBSA was represented by lawyers and he would have been significantly disadvantaged had he not done so.
[24] The respondent says that it is required to act as a model litigant and the applicant would have suffered no disadvantage if not represented.
[25] I have read the applicant’s application for leave to be legally represented in this matter, filed 8 December, 2010. The applicant refers to the importance of the matter to him, the perceived complexity of the matter and the assistance that could be rendered to the Tribunal if the applicant were represented. The applicant also referred to the fact that the respondent as a State agency had been represented for some time by a legal representative.
[26] These reasons were considered sufficient for leave to be represented to be given in this matter. That does not mean however that just because there is good reason for legal representation that an order for costs of that representation should be made. This is not a case where a money order has been achieved which is likely to be seriously eroded by the need to pay costs to a successful party’s lawyers, thus diminishing the effect of the order.
[27] There is no other matter which the applicant has raised or which I consider to be relevant to the issue of costs.
Conclusion
[28] I find that there are no compelling reasons, in the interests of justice, why a costs order should be made in favour of the applicant, which overcome the mandate in section 100 of the QCAT Act that each party bear their own costs.
[29] The applicant’s application for costs is dismissed.
[i] [2010] QCAT 412.
[ii] Ibid; Tamawood Limited & Anor v Paans [2005] QCA 111.
[iii] [2010] QDC 158.
[iv] Tamawood Limited & Anor v Paans [2005] QCA 111.
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