Stevenson Group Investments Pty Ltd v Queensland Building Services Authority
[2013] QCAT 43
| CITATION: | Stevenson Group Investments Pty Ltd v Queensland Building Services Authority and Anor [2013] QCAT 43 |
| PARTIES: | Stevenson Group Investments Pty Ltd ACN 101112127, ABN 39101112127 (Applicant) v |
| Queensland Building Services Authority (First Respondent) Brian George Osborne (Second Respondent) |
| APPLICATION NUMBER: | QR028-07 / GAR036-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| DECISION OF: | S M Burke, Member |
| HEARD AT: | Brisbane |
| DELIVERED ON: | 22 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Applicant in application QR028-07 file and serve on each Respondent a document in the form of a Scott Schedule identifying the respect or respects in which it is alleged the decision of the Queensland Building Services Authority dated 9 October 2006 is reviewable by reference to: (a) each and every defect which it is alleged was the subject of complaint by the Applicant to the First Respondent on or before 9 October 2006 and which it is alleged should have formed part of the First Respondent’s decision dated 9 October 2006 identifying the basis for that allegation; (b) each and every defect identified in the First Respondent’s decision dated 9 October 2006 which it is alleged is to be the subject of review by the Tribunal and the basis for that allegation; (c) any material fact or document on which the Applicant relies in support of its application to review the First Respondent’s decision dated 9 October 2006. 2. The Applicant comply with Order 2 on or before 28 February 2013 3. The Applicant in application QR028-07 and application GAR036-12 pay to the Second Respondent seventy percent (70%) of the Second Respondent’s costs of the application to strike out both applications. 4. The costs referred to in Order 3 are to be assessed on the standard basis in accordance with the District Court Scale. |
| CATCHWORDS: | Procedure – Costs – where discretion to order costs Commercial and Consumer Tribunal Act 2003, ss 70, 71 Tamawood Ltd & Anor v Paans [2005] QCA 111 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr G I Thomson, Counsel instructed by Moray & Agnew Lawyers |
| RESPONDENT: | Mr M Johnston, Counsel instructed by Hopgood Ganim Lawyers for Second Respondent |
The issue of costs of the application by the Second Respondent to strike out application QR028-07 and application GAR036-12 is to be determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
The decision of the Tribunal regarding the application by the Second Respondent, Mr Osborne (“Osborne”), to strike out the Applicant’s review proceedings was delivered on 6 November 2012.
The decision related to an application by Osborne, dated 27 April 2012 and filed on 30 April 2012, to strike out the two review proceedings (“the strike out application”) which had been commenced by the Applicant, Stevenson Group Investments Pty Ltd (“Stevenson”):
(a)application number QR028-07 being a review proceeding commenced by Stevenson on 9 March 2007 (“Stevenson’s first review application”); and
(b)application number GAR036-12 being a review proceeding commenced by Stevenson on 31 January 2012 (“Stevenson’s second review application”).
The orders of the Tribunal provided as follows:
(a)The application to strike out application QR028-07 is dismissed.
(b)The items in the joint issues list:
(i)marked “new item” except items 16.6 and 26.1 be struck out;
(ii)which relate to work which is not tribunal work as defined in s 75 of the QBSA Act be struck out;
(iii)which relate to defects not the subject of complaint as at 9 October 2006 be struck out.
(c)The Applicant in application QR028-07 be granted leave to amend its application to include particulars which are properly the subject of the review proceedings being defect items identified as at 9 October 2006.
(d)The application to strike out application GAR036-12 is allowed.
(e)The parties provide written submissions in relation to the costs of the strike out application.
As a result of the order that the costs are to be determined, the parties have provided written submissions relating to the issue of costs of the strike out application.
Submissions in relation to costs on behalf Osborne
Osborne seeks the costs of the strike out application on the basis that he was the successful party and that, on a proper interpretation of s 100 and s 102 of the QCAT Act, the Tribunal should exercise its discretion in favour of the successful party.
It is submitted by Osborne that it is appropriate that the Tribunal make an order for costs in favour of Osborne because the interests of justice require such an order to be made based on the following factors:
(a)Osborne’s complete success in the strike out application of Stevenson’s second review application;
(b)Osborne’s success in striking out the majority of the document which supported Stevenson’s first review application;
(c)Osborne’s strong case in making the strike out application;
(d)the nature and complexity of the dispute which justified the engagement of legal representation;
(e)the appropriateness of the strike out application to narrow the issues in dispute and to ensure that irrelevant issues did not go to trial and result in excessive costs to both parties in the conduct of the proceedings.
Osborne submits that, as the successful party, the Tribunal should exercise its discretion pursuant to s 102(1) of the QCAT Act in favour of Osborne and that the costs should be assessed on the District Court scale.
Submissions in relation to costs on behalf of Stevenson
Stevenson submits that each party should bear its own costs for the following reasons:
(a)Osborne was not successful in striking out Stevenson’s first review application;
(b)the matters relied upon by Osborne in its interpretation of both s 72 and s 86(1)(e) of the QBSA Act as the basis for the strike out application were not accepted by the Tribunal;
(c)the position taken by Stevenson in relation to Stevenson’s second review application was fairly arguable;
(d)in the interests of justice, the Tribunal should take into account the history of the proceedings, the delay by Osborne in pursuing the strike out application and Osborne’s contribution to exacerbating the complexity of the proceedings.
The Relevant Act
Both Stevenson’s first review application and Stevenson’s second review application are review proceedings which purport to review decisions of the Queensland Building Services Authority (“the Authority”) pursuant to s 86(1)(e) of the Queensland Building Services Authority Act 1991 (“QBSA Act”).
Section 77(2)(h) of the QBSA Act specifically provides the Tribunal with the power to award costs with respect to a “building dispute”[1]. There is no express reference in the QBSA Act to any power to award costs in review proceedings.
[1]“Building dispute” is defined in Schedule 2 of the QBSA Act as: “(a) a domestic building dispute; (b) a minor commercial building dispute; (c) a major commercial building dispute if the parties to the dispute consent to the dispute being heard by the tribunal under section 79.”
Accordingly, it is necessary to refer to the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) to assess whether the Tribunal has any power to award costs in review proceedings.
Stevenson’s first review application is a review proceeding commenced by Stevenson on 9 March 2007 under the Commercial and Consumer Tribunal Act 2003 (“CCT Act”). The proceedings were commenced and were being managed by the predecessor of the present Tribunal, namely the Commercial and Consumer Tribunal (“CCT”).
Stevenson’s second review application is a review proceeding commenced by Stevenson on 31 January 2012 under the Queensland Civil and Administrative Tribunal Act 2009. These proceedings have been managed since that date by the present tribunal, the Queensland Civil and Administrative Tribunal (“QCAT”).
The QCAT Act at Chapter 7 provides for transitional provisions. Section 256 applies to an existing tribunal proceeding that is a “pending proceeding” as defined in s 245 of the QCAT Act.
Section 245 identifies a pending proceeding as follows:
“245 What is a pending proceeding
An existing proceeding in a court or former tribunal is a pending proceeding if, at the commencement, the court or former tribunal –
(a)has not started to hear a matter the subject of the proceeding; or
(b)has started to hear a matter the subject of the proceeding but has not started to consider evidence for the purpose of making its final decision in the proceeding.”
Section 256(2) and s 256(3) of the QCAT Act provide that, at the commencement, the pending proceeding is taken to be a proceeding before QCAT and QCAT has jurisdiction to deal with the matter the subject of the pending proceeding under the QCAT Act.
Part 4 of Chapter 7 of the QCAT Act addresses the conduct of proceedings from a former tribunal. Section 271 provides:
“271 Conduct of proceeding generally
(1)QCAT must deal with the matter the subject of the existing proceeding under this Act or an enabling Act.
(2)However, in relation to the matter –
(a)QCAT has, and only has, the functions that the former entity had in relation to the matter under the former Act; and
(b)QCAT can, and can only, make a decision the former entity could have made in relation to the matter under the former Act.”
Section 271(1) refers to QCAT dealing with “the matter” the subject of the existing proceeding under this Act. Section 271(2) also refers to “the matter” and confines the conduct of QCAT to the functions and decisions which the former entity had or could make under the former Act.
No definition of “matter” is provided in the QCAT Act. The term “proceeding” for the purpose of the transitional provisions is defined in s 244 of the QCAT Act and includes the following:
“(a) an action before a former tribunal or continuing entity without an application or referral being made; and
(b) a process under a former Act for the consideration of a matter, including for example, a review decision, by a former tribunal or continuing entity.”
The definition of “QCAT matter” in s 244 of the QCAT Act provides little assistance. It states:
“QCAT matter means a matter for which this Act or an enabling Act confers jurisdiction on QCAT at the commencement.”
On a proper interpretation of s 271(1) and s 271(2) of the QCAT Act, it would seem, given that the words “proceeding” and “matter” appear in the same section, that there was a legislative intent that the two words, “matter” and “proceeding”, were to be given different meanings, albeit their ordinary and accepted meaning.[2]
[2]DC Pearce & RS Geddes, Statutory Interpretation in Australia, 7th ed at [4.2] to [4.8]; Ricket v Metropolitan Railway Co. (1867) LR 2 HL 175, per Lord Westbury; R v Inhabitants of Great Bolton (1828) 8 B&C 71 at 74; Francis Bennion, Statutory Interpretation, 5th ed, Butterworths at pp 807-808.
For this reason, I adopt the approach taken in Potts v T & M Buckley Pty Ltd [2011] QCAT 469[3] and accept that the word “matter” does not encompass the consideration of the issue of costs which is, in substance, procedural.
[3] See also Hallett & Ors v Queensland Building Services Authority [2011] QCAT 355.
I will consider the question of costs in relation to the application to strike out both Stevenson’s first review application and Stevenson’s second review application under the QCAT Act.
Costs under the QCAT Act
For the purpose of the consideration of costs under the QCAT Act, s 100 provides:
“100 Each part usually bears own costs
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 of the QCAT Act provides:
“102 Costs against party in the 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.”
In considering the factors to be taken into account in determining whether the interests of justice warrant the award of costs of another party, the Tribunal may have regard to the following:[4]
[4] Section 102(3)(a) to (f) of the QCAT Act.
“102 Costs against party in interest of justice
(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 a 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.”
Whilst there is a difference in the starting point of the consideration of the power to award costs between s 70 of the CCT Act and s 100 of the QCAT Act in that the latter is couched in more mandatory terms, the factors which may be considered in the exercise of the discretion whether to order costs in the interests of justice are not dissimilar in the two Acts. The factors to be taken into account set out in s 71(4) of the CCT Act are not dissimilar to those set out in s 102 of the QCAT Act.[5]
[5]Section 71(4) of the CCT Act provides that in deciding whether to award costs, and the amount of the costs, the tribunal may have regard to:
(a) the outcome of the proceeding;
(b) the conduct of the parties to the proceeding before and during the proceeding;
(c) the nature and complexity of the proceeding;
(d) the relative strengths of the claims made by each of the parties to the proceeding;
(e) any contravention of an Act by a party to the proceeding;
(f) for a proceeding to which a State agency is a party, whether the other party to the proceeding was afforded natural justice by the State agency;
(g) anything else the tribunal considers relevant.
The principles considered by Keane JA (as His Honour then was) in Tamawood & Anor v Paans [2005] QCA 111, which considered s 71 of the CCT Act, are appropriate to the considerations to be taken into account in the exercise of the discretion under s 102 of the QCAT Act.
At paragraphs [23] to [25] his Honour stated[6]:
“[23] As I have already said, in my view, the language of s 70 and s 71(5)(a) is sufficiently clear to negate the proposition that costs should, prima facie, follow the event unless the Tribunal considers that another order is more appropriate. In this regard, it is clear that the power of a court or tribunal to award costs to a party is now a creature of statute. The nature and extent of that power can only be discerned by close consideration of the terms of the statute which creates the power and prescribes the occasions for, and conditions of, its exercise. In the performance of this task, observations of the courts in relation to the operation of other statutory regimes relating to costs may afford general assistance but they cannot be allowed to distract attention from the terms of the particular statute in question.
[24]The language of the provisions of the Act to which I have referred is sufficiently clear to negate the proposition that success in the proceedings is sufficient to establish a prima facie entitlement to the beneficial exercise of the discretion conferred by s 71(1) of the Act..................
[25]The Explanatory Memorandum to the Bill for the Act said that one of the key principles underpinning the operation of the Tribunal was to be an ‘emphasis on self-representation – provisions are made in the Bill for parties to represent themselves, thus ensuring that the [Tribunal] maintains informality’. It went on to provide that:
‘Clause 70 establishes beyond doubt that the purpose of this Division is that parties pay their own costs unless the interest [sic] of justice require otherwise. This provision is in keeping with the objective of the Bill to establish an informal and cost effective tribunal.’ ”
[6] [2005] QCA 111 at [23] to [25].
In Tamawood,[7] His Honour went on to conclude that s 70 and s 71(1) are intended to impose a general rule that good reason must be shown in terms of the interests of justice for making an award of costs in proceedings before the Tribunal.
[7] [2005] QCA 111 at [28].
To that end, in exercising the discretion whether an award of costs is justified “in the interests of justice” to override the prescription in both s 70 of the CCT Act and s 100 of the QCAT Act, similar principles and considerations are applicable. The terms of both statutes have created and prescribed the occasions and conditions which may be taken into account in the exercise of that discretion.
The decision of Wilson J, the President, in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, in addressing the differences between the terms of the two statutes in relation to costs, supports the principles outlined by Keane JA in Tamawood to the extent that a favourable consideration in the interests of justice, subject to countervailing considerations, will override the basic premise that parties will bear their own costs of proceedings.
In Ralacom, the President accepted that the principles considered by Keane JA in relation to the discretion provide guidance to the considerations to be taken into account in determining whether the interests of justice warrant an award of costs by the Tribunal.
At paragraphs [24] to [29] in Ralacom, the President identified the relevance of Tamawood in addressing the proper interpretation of s 100 and s 102 of the QCAT Act:
“[24] The similar QCAT Act provision to s 70 is, it might be said, in terms that more plainly indicate that the legislature had turned its face against awards of costs in the tribunal: s 100 says that ‘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.
[25]In considering ss 70 and 71 Keane JA (as his Honour then was) referred, however, to two matters relevant here. First, His Honour held that the CCT provisions negated the traditional proposition that costs should prima facie follow the even (unless of course that the Tribunal considers that another order is more appropriate) and that the nature and extent of the power to award costs could only be discerned by close consideration of the terms of the statute which created and prescribed the occasions and condition for its exercise. Sections 100 and 102 of the QCAT Act attract the operation of the same principles.
[26]Second, Keane JA was of the view that 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.
[27]That conclusion must, here, be considered in the light of the difference between s 70 of the CCT Act and s 100 of the QCAT Act: Section 70 speaks of a ‘main purpose’ but s 100 mandates that parties shall bear their own costs. Section 70 contains, within itself, a reference to the condition or circumstance in which the main purpose may be subsumed to the interests of justice; s 100 has no such proviso, although it appears later, in s 102(1).
[28]Under that subsection QCAT has a discretion to make a costs order ‘..if the tribunal considers the interests of justice require it...’ Section 102(3) says that, in deciding whether to award costs, the tribunal may have regard to matters not dissimilar to those set out in s 71 of the CCT Act including, in particular for present purposes, the nature and complexity of the dispute and the relative strength of each party’s claims.
[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 in s 100.”
The relevance of Tamawood is, therefore, particularly strong once a decision-maker has reached the stage of considering the issues relevant to the “interests of justice”.
If my interpretation of s 271 of the QCAT Act is incorrect and the functions and the making of a decision by this Tribunal are confined to those under the CCT Act in relation to Stevenson’s first review application which was commenced under the CCT Act, I have formed the view that the result of such a determination would not be any different under the CCT Act as the principles for consideration of the “interests of justice” are not dissimilar to those under the QCAT Act. In my view, therefore, in exercising a discretion whether to award costs in the interests of justice there is no need to consider the strike out application of Stevenson’s first review application separately from the application to strike out Stevenson’s second review application, as the same principles apply to the exercise of the discretion under both relevant statutes.
Interests of Justice under the QCAT Act
In Ralacom[8], the President has made it clear that in determining whether an award of costs is appropriate it is necessary to consider the circumstances relevant to the discretion inherent in the term ‘interests of justice’ which compellingly point to an award of costs being warranted so that the strong contra-indication against costs in s 100 of the QCAT Act is overcome.
[8] [2010] QCAT 412 at [29].
In Tamawood Ltd & Anor v Paans[9], Keane JA concluded that a finding that a successful party was justified in engaging the services of legal representatives to assist in conducting a complex case was a sufficient basis alone “to conclude that the interests of justice warranted the exercise of the discretion to award costs in favour of the successful party, at least in the absence of any countervailing consideration”.
[9] [2005] QCA 111 at [30].
The reasoning for such a conclusion was outlined by his Honour at paragraphs [32] and [33][10]:
“[32] If orders were not to be made in favour of successful parties in complex cases, then claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the Tribunal.
[33]..........In the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome.............”
[10] [2005] QCA 111 at [32]-[33].
The main issues therefore to address in exercising the discretion are:
(a)whether there was a successful party;
(b)whether it was reasonable that legal representation be engaged by the successful party;
(c)whether there were any countervailing considerations which could be treated as a disqualifying factor bearing upon the exercise of the discretion in favour of the successful party.
The Successful Party
In assessing whether an award of costs should be made the success of the party to whom the costs are to be awarded is a relevant matter.[11]
[11]It is noted that this is a factor expressly recognized in s 71(4)(a) of the CCT Act as a matter to take into consideration in the exercise of the discretion. Section 100 of the QCAT Act does not refer to this factor expressly.
Whether there has been a successful party is of course a question of fact to be determined by a consideration of the orders made by the Tribunal and an analysis of the Tribunal’s determination and any relevant factors relating to those orders.
Osborne was clearly successful in his application to strike out Stevenson’s second review application. There seems to be no opposition to that conclusion.
In relation to Stevenson’s first review application, whilst the application to strike out Stevenson’s first review application was dismissed the result does not mirror the degree of success of either party.
Osborne sought to strike out Stevenson’s first review application in its entirety on the basis that the only matters which could be the subject of review proceedings were those which were expressly contained in the October 2006 decision. It was submitted that there was no other decision to be reviewed other than the matters expressed in the October 2006 decision. The basis for this submission was that no opinion had been formed by the decision-maker under s 72 of the QBSA Act in relation to matters which were not referred to in the October 2006 decision under review and therefore any review was restricted to the matters expressed in the October 2006 decision.
The interpretation of s 72 and s 86(1)(e) of the QBSA Act relied upon by Osborne in support of the strike out application of Stevenson’s first review application was not accepted by the Tribunal. Rather, an alternative interpretation of the language of s 72 and s 86(1)(e) of the QBSA Act was relied upon by the Tribunal in reaching its conclusion to dismiss the strike out application.
To that extent, the success of the strike out application of Stevenson’s first review application was in favour of Stevenson.
Whilst the strike out application was dismissed by the Tribunal, an important aspect in assessing the success of either party is the state of the document relied upon by Stevenson in support of its first review application against the Authority.
A significant aspect of Osborne’s strike out application was the inadequacy of the particulars of Stevenson’s first review application. The particulars outlining Stevenson’s position were contained in a document identified as “the joint issues list”. This document was proved to be inadequate and substantially irrelevant to Stevenson’s first review application. The Tribunal determined that much of material in the joint issues list should be struck out and that it was necessary that an amended document be provided by Stevenson. The reasons for the inadequacies were varied and are irrelevant for present purposes.
Even though the strike out application was dismissed, an over-riding factor which reduced the benefit of that success for Stevenson was the finding that it was imperative for the continuance of the proceeding that Stevenson be compelled to re-formulate its case and provide full particulars of the facts upon which it relies so that all parties may fully appreciate the case to be met. To this end, the material on which Stevenson relied to support its first review application was in the majority struck out and Stevenson’s success in having the strike out application dismissed was eroded by the subsequent orders requiring Stevenson to address the inadequacies in its first review application.
Based on the factors above, in exercising my discretion in determining whether any party was successful, I have formed the view that a proper determination of success should be in Osborne’s favour to the extent of 70% in relation to both strike out applications.
Legal Representation and Complexity of the Application
There does not seem to be any contentious issue between the parties as to the necessity for legal representation being engaged by either party. It is conceded that the complexity of the application justified the engagement of legal representatives. There does not appear to be any objection to the engagement of both Senior and Junior Counsel for either party.
In exercising my discretion whether this is a factor which should be taken into account in assessing whether in the interests of justice an award of costs should be made to a successful party, I am persuaded by the reasoning of Keane JA in Tamawood that “in the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome”.[12]
[12] Tamawood & Anor v Paans [2005] QCA 111 at [33].
Countervailing Circumstances
Mr Thomson, Counsel on behalf of Stevenson, has referred to matters in his written submissions which may be considered in the exercise of the Tribunal’s discretion which it is submitted would make unjust any award of costs against Stevenson. It is in essence a submission that the conduct of Osborne was a contributing factor to the complexity of the strike out application and that Osborne’s delaying tactics have impacted on the state of the proceedings.
It is submitted that the following facts should be considered:
(a)proceedings QR028-07 were commenced in March 2007;
(b)the proceedings were adjourned on numerous occasions and over many directions hearings to allow Osborne to carry out rectification works;
(c)the Authority has taken the view that many of the defects are the most serious in the statutory system, being category 1 defects;
(d)the proceedings were further adjourned from November 2009 to October 2011 to allow Osborne to pursue a building application which was subsequently abandoned;
(e)the parties conducted the proceedings for many years on a consensual basis, with the assistance of the Tribunal, designed to identify the defects and have Osborne rectify them;
(f)the strike out application was brought more than 5 years after Stevenson commenced proceedings QR028-07;
(g)the conduct of the Authority in failing to respond adequately to Stevenson’s on-going complaints.
The thrust of Stevenson’s submission is that Osborne has delayed the proceedings and this has exacerbated the complexity of the proceedings, including the strike out application.
Whilst I have commented upon the disturbing nature of the long and complex history of this matter, I am of the view that the matters raised do not amount to countervailing circumstances which may be considered disqualifying factors which impact upon the exercise of my discretion to award costs in the interests of justice in favour of the successful party.
Assessment of Costs
Section 107(1) of the QCAT Act provides that if the Tribunal makes a costs order, the Tribunal must fix the costs if possible.
Section 107(2) of the QCAT Act further provides:
“(2) If it is not possible to fix the costs having regard to the nature of the proceeding, the tribunal may make an order requiring that the costs be assessed under the rules.”
Rule 87 of the Queensland Civil and Administrative Tribunal Rules 2009 (“QCAT Rules”) provides:
“87 Assessing Costs
(1)This rule provides for how costs are to be assessed under section 107 of the Act if the tribunal makes a costs order that requires the costs be assessed under the rules.
(2)The costs must be assessed –
(a)by an assessor appointed by the tribunal; and
(b)if the tribunal directs the costs be assessed by reference to the scale of costs applying to a court – by reference to the scale of costs directed by the tribunal.”
I accept the submission on behalf of Osborne that it is not possible to fix the costs given the complexity of the strike out application and the nature of the assessment required. I also accept that the quantification of costs is quintessentially a matter for the discretion of the Tribunal.[13]
[13] Tamawood & Anor v Paans [2005] QCA 111 at [37].
Having considered the nature of the application, the complexity of the issues in dispute between the parties and the likely quantification of defects involved in the review proceedings, I have formed the view that the appropriate scale under which the costs are to be assessed is the District Court scale.
Conclusion
Taking into account the unique circumstances of the result of Osborne’s strike-out application, it is necessary for me to exercise my discretion in awarding the successful party an award of costs commensurate with the degree of success in relation to both applications.
In exercising my discretion to reflect the proportion of Osborne’s success, I have formed the view that Osborne should be entitled to 70% of his costs on the basis that that percentage represents, on balance, Osborne’s success in the combined application.
Further Orders
Mr Johnston, Counsel on behalf of Osborne, has submitted in written submissions that directions be made in relation to the future conduct of the review proceedings. The reasoning behind this submission is that the practical effect of the orders made by the Tribunal on 6 November 2012 effectively renders the joint issues list redundant.
It is submitted that the most appropriate way to proceed in Stevenson’s first review application is for Stevenson to file and serve a Points of Claim which pleads the following:
“(a) each of the alleged defects it seeks to agitate in this proceeding:
(i)that were the subject of its complaint to the QBSA prior to 9 October 2006, with particularisation of the specific reference to the complaint document/s where the alleged defect was notified to the QBSA prior to 9 October 2006; and
(ii)which it contends were the subject of the QBSA decision on 9 October 2009;
(b)the decision or relief it contends that the Tribunal should make or order with respect to each pleaded defect along with the material facts and matters relied upon in support of seeking that decision or relief.”
Mr Thomson, Counsel on behalf of Stevenson, submitted that the Tribunal’s orders of 6 November 2012 identify the tasks which Stevenson is required to undertake and there is no necessity for further orthodox pleadings in a review proceeding. Stevenson has undertaken to comply with order 3 of the Tribunal’s decision dated 6 November 2012 by 28 February 2013.
The purpose of order 3 of my decision dated 6 November 2012 is to produce a document which properly identifies the aspects of the October 2006 decision which Stevenson alleges should be considered by the Tribunal in reviewing the decision of the Authority pursuant to s 86(1)(e) of the QBSA Act. In this respect, Stevenson is required to identify the defects which were the subject of complaint by Stevenson to the Authority as at 9 October 2006 which it is alleged by Stevenson were either not the subject of the October 2006 decision or were not adequately dealt with in the October 2006 decision.
For the reasons above, to ensure clarity, the following order will be made to supplement order 3 of my decision dated 6 November 2012:
“1.The Applicant in application QR028-07 file and serve on each Respondent a document in the form of a Scott Schedule identifying the respect or respects in which it is alleged the decision of the Queensland Building Services Authority dated 9 October 2006 is reviewable by reference to:
(a)each and every defect which it is alleged was the subject of complaint by the Applicant to the First Respondent on or before 9 October 2006 and which it is alleged should have formed part of the First Respondent’s decision dated 9 October 2006 identifying the basis for that allegation;
(b)each and every defect identified in the First Respondent’s decision dated 9 October 2006 which it is alleged is to be the subject of review by the Tribunal and the basis for that allegation;
(c)any material fact or document on which the Applicant relies in support of its application to review the First Respondent’s decision dated 9 October 2006.
0
4
0