Setschnjak v Derek Geddes Pty Ltd (No 2)

CITATION:

Setschnjak v Derek Geddes Pty Ltd (No 2) [2017] QCAT 157

PARTIES:

Nicole Helen Setschnjak
Mitchell Peirre Setschnjak
(Applicant)

v

Derek Geddes Pty Ltd t/as Derek Geddes Lawyers, Derek & Dwyer Lawyers

(Respondent)

APPLICATION NUMBER:

OCR073-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President

DELIVERED ON:

23 May 2017

DELIVERED AT:

 Brisbane

ORDERS MADE:

1.    No order as to costs.

CATCHWORDS:

PROCEDURE – COSTS – DISCRETION TO ORDER COSTS – whether the position as to costs under section 100 QCAT Act is altered by operation of section 328(9A) Legal Profession Act 2007 (Qld) – whether an order for costs should be made in favour of the applicant, or respondent, or at all

Legal Profession Act 2007 (Qld) ss 308, 315, 328
Queensland Building and Construction Commission Act 1991 (Qld) s 77
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 100, 102,

Pivovarova v Michelsen [2016] QCATA 45
Turner v Macrossan & Amiet Pty Ltd (No 2) [2016] QCAT 255

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

1. The parties were allowed the opportunity to file submissions in relation to the question of costs.

2. Both parties have now filed submissions.

3. The applicant seeks an order for payment of the applicant’s costs fixed in the amount of $76,837.20.

4. The applicant submits that the starting point is section 100 QCAT Act, which provides that, other than as provided under the QCAT Act or an enabling Act, each party must bear the parties own costs for the proceedings.

5. Section 102(1) QCAT Act provides that an order for costs may be made if the Tribunal considers the interests of justice require it to make the order.

6. The applicant refers to section 328(9A) of the Legal Profession Act 2007 (Qld) (‘LPA’) which provides that the Tribunal may make a costs order under the QCAT Act in relation to a hearing such as the current proceedings.

7. The applicant submits that there is some conflict in the authorities as to how a section such as section 328(9A) impacts upon the determination of costs.

8. Reference was made to the decision in Turner v Macrossan & Amiet Pty Ltd (No 2),[1] where it was said:

   “Accordingly, s 328(9A) is declaratory in nature. It has the effect of declaring the existence of the power to order costs, and refers the reader to the costs system prescribed under the QCAT Act. Therefore, notwithstanding s 328(9A) of the Legal Profession Act 2007 (Qld), the starting point for any analysis of the power to order costs is the ordinary jurisdiction of QCAT.”

   [1][2016] QCAT 255.

9. Reference was also made, by the respondent, to the decision in Pivovarova v Michelsen[2] when considering the provision at section 77(3)(h) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) as follows:[3]

   “The Tribunal’s discretion to award costs…