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Stuart v Queensland Building and Construction Commission

Stuart v Queensland Building and Construction Commission

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CITATION:

Stuart v Queensland Building and Construction Commission [2016] QCATA 135

PARTIES:	Andrew John Stuart (Applicant/Appellant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

APL316-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member O’Callaghan
Member Deane

DELIVERED ON:

22 September 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for costs is dismissed.

CATCHWORDS:

APPEAL – COSTS – whether in the interests of justice to order costs – where wholly successful on appeal – whether Commission acted ‘ultra vires’ in collecting evidence, which was not in its possession at the time of its decision

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s20, s21, s40(b), s43, s100, s102, s106, s107
Queensland Building and Construction Commission Act 1991 (Qld), s3, s7, s71, s77

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
Tamawood Ltd & Anor v Paans [2005] 2 Qd R 101
Lyons v Dreamstarter Pty Ltd [2012] QCATA 71
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
R v Hardimann (1980) 144 CLR 13
Crime and Misconduct Commission v Deputy Commissioner Stewart and Anor (No 2) [2012] QCAT 382
Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (2008) 19 VR 422
Kehl v Board of Engineers [2010] QCATA 58
Fuge v Queensland Building and Construction Commission [2014] QCAT 383
Queensland Building Services Authority v Fox [2005] QDC129
AX v Commissioner for Children and Young People and Child Guardian [2012] QCATA 227

APPEARANCES:

APPLICANT:

Andrew John Stuart

RESPONDENT:

Queensland Building and Construction Commission

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

REPRESENTATIVES:

APPLICANT:

represented by B.E. Codd of Counsel instructed by Murdoch Lawyers

RESPONDENT:

represented by G.I. Thomson and K.McAulifffe-Lake of Counsel instructed by Holding Redlich

REASONS FOR DECISION

On 16 June 2015, we allowed Mr Stuart’s appeal. On 10 December 2015, Mr Stuart filed a miscellaneous matters application seeking costs of the appeal and the review proceedings.[1]
[1]GAR327-13.
The Tribunal may award costs after the proceeding has ended.[2]
[2]QCAT Act s 106.
Mr Stuart contends that the Appeal Tribunal:
a) has jurisdiction to make appropriate awards in respect of both the review and appeal proceedings; and
b) should fix the costs having regard to an assessment, on a standard basis in accordance with the District Court scale, by Mr Ryan, Legal Costs Assessor,[3] at $88,807.95 in respect of the review proceedings and $36,494.55 in respect of the appeal proceedings.[4]
[3]Affidavit of Gregory Ryan filed 9 February 2016. The assessment on this basis is for the professional costs of the solicitors. Counsel’s fees are treated as outlays.
[4]Affidavit of Kymberley Grant Flehr filed 21 March 2016, paragraph 9.
The review proceedings and this appeal arise out of a decision by the Queensland Building and Construction Commission (the Commission), as it is now known, in relation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QCATA 135
Decision Date: 22 September 2016

CaseChat Overview and Summary

In the matter of Stuart v Queensland Building and Construction Commission, the Queensland Civil and Administrative Tribunal (QCAT) considered whether the Commission should pay the costs of the proceedings to Mr Stuart, who was wholly successful on appeal. The Commission had collected evidence after the time of its decision, and Mr Stuart argued that this was beyond its powers and that costs should follow the event. The appeal tribunal examined several factors in deciding whether to award costs, including whether the Commission genuinely attempted to enable the decision-maker to make the decision on the merits, the financial circumstances of both parties, and any other relevant factors.

The tribunal noted that section 100 of the QCAT Act generally prevents costs from being awarded against the Commission unless specific conduct justifies it. The tribunal concluded that the Commission had not acted in a manner that would compel an order for costs against it, and that Mr Stuart had not demonstrated any significant financial hardship as a result of the proceedings. While the Commission may have a better financial position, it has budgetary constraints and many demands on its resources. The tribunal also found that there was insufficient evidence regarding any settlement offer made in the proceedings, which could have been a relevant factor.

In light of these considerations, the tribunal dismissed Mr Stuart's application for costs. The tribunal emphasized that the Commission must not be hesitant to discharge its obligations for fear of adverse costs orders unless there is specific conduct that justifies such an order. In this case, the tribunal was not satisfied that any such conduct was present.

The tribunal's final order was that the application for costs be dismissed. This means that the Commission is not required to pay Mr Stuart's costs for the review or appeal proceedings.

Orders

Orders of the court

1. The application for costs is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Stuart’s submissions on this point are substantively, that costs should follow the event i.e. the Commission made an incorrect decision, the decision was overturned and therefore it ought to pay Mr Stuart’s costs. This principle has been displaced by section 100 of the QCAT Act.Whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits[44] [44]QCAT Act s 102(3)(d)(ii). This is a factor that may be relevant to the exercise of the discretion for costs in the review proceeding. The Commission contends and Mr Stuart accepts that this is not a significant factor.The financial circumstances of the parties[45][45] Ibid, s 102(3)(e). We are not satisfied that this is a factor in favour of an award of costs in either the review or the appeal proceeding. Mr Stuart has given evidence of the significant legal expenses incurred by him in these proceedings, in excess of $130,000. There is no specific evidence of the financial hardship pursuing the review and appeal proceedings have caused. There is limited evidence that around the time of the 12 September 2012 decision his net tangible assets were $106,395, which is of a similar order as the costs incurred in these proceedings. There is no evidence before us as to his current net tangible asset position. The Commission is a statutory body funded from fees paid by licensees. It has a number of statutory obligations including to achieve a reasonable balance between building contractors and building owners.[46] [46]QBCC Act s 3 and s 7. There is no specific evidence before the Tribunal of the Commission’s financial position. We accept that the Commission may have a better net asset position than Mr Stuart but it does not have unlimited funds, has budgetary constraints and many demands on its resources. The Appeal Tribunal has previously accepted that the relative financial position should not be ‘the sole determinant’[47] of a costs application. [47]AX v Commissioner for Children and Young People and Child Guardian [2012] QCATA 227 at [16]. In view of the Commission’s statutory role the Tribunal has previously accepted that 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.[48][48]Fuge v Queensland Building and Construction Commission [2014] QCAT 383 at [28]. We are not satisfied that any such specific conduct applies in either the review or the appeal proceeding. Anything else the Tribunal considers relevant[49][49]QCAT Act s 102(3)(e). A relevant factor is often whether a settlement offer was made and that the decision of the Tribunal is not more favourable to the other party than the offer.[50] There is evidence before the Appeal Tribunal, in the itemised accounts, that a settlement offer was made.[51] There is no evidence before the Appeal Tribunal as to the terms of the offer. This is not, therefore, a matter, which we are able to take into account.[50]Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 86.[51]Exhibit KGF2 to the affidavit of Kymberley Grant Flehr filed 10 December 2015.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.