Tracey v Olinderidge Pty Ltd & Wagner

[2015] QCAT 7

CITATION: Tracey v Olinderidge Pty Ltd & Wagner [2015] QCAT 7

PARTIES:	Martha-Lee Tracey (Applicant)
v
Olinderidge Pty Ltd Rodney Wagner (Respondents)

APPLICATION NUMBER: BDL136-11

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Hughes

DELIVERED ON: 9 January 2015

DELIVERED AT: Brisbane

ORDERS MADE: The Application for miscellaneous matters dated 5 November 2014 is dismissed.

CATCHWORDS:

COSTS – LEGAL REPRESENTATIVE – whether conduct unnecessarily disadvantaged applicant – where Consent Orders made in full and final discharge of the application and included no order as to costs – whether “the proceeding” in section 103 of the Queensland Civil and Administrative Tribunal Act 2009 extends to conduct outside the current proceedings – where alleged conduct included conduct relating to other proceedings – whether conduct “unnecessarily disadvantaged” party – where mere error insufficient to establish unnecessary disadvantage – where failure to serve did not demonstrate bad faith – where late filing and incorrect ground of appeal are disadvantages in usual course of litigation

Queensland Civil and Administrative Tribunal Act 2009 ss 88, 103, 126(1), Schedule 3

Airstrike Industrial Pty Ltd v Robertson & Anor [2014] QCATA 209
Campbell v Kerry M Ryan Pty Ltd [2014] QCATA 58
Clarke & Anor v Foster & Ors [2012] QCATA 252
Crusty Devil Bakehouses Pty Ltd v W.A.W. Developments Pty Ltd [2013] QCAT 159
Deputy Commissioner of Taxation v Levick [1999] FCA 1580
Gardener & Ors v Office of Liquor and Gaming Regulation & Anor [2012] QCAT 62
Hallden Pty Ltd & Ors v Body Corporate For LA Promenade CTS 9770 [2012] QCAT 109
Joanne Baxter and Fifties Food Pty Ltd atf The Ninja Bear Trust t/as Subway Wynnum Central v Subway Realty Pty Ltd & Anor [2013] QCAT 316
Pearce & Anor v Body Corporate for Riparian Plaza Apartments CTS 34655 [2012] QCAT 72
Pierpont v Zanetti & Ors [2012] QCAT 171
Queensland Building Services Authority v Johnston [2011] QCATA 265
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412

APPEARANCES:

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

What is the Application about?

1. This has been a protracted and costly dispute for everyone. For almost four years, Martha-Lee Tracey, Olinderidge Pty Ltd and Rodney Wagner have been embroiled in applications (initiating and interlocutory), hearings and appeals.

2. Commendably, on 24 October 2014 they consented to Orders ‘in full and final discharge of the Application’.[1] The Orders included ‘No order as to costs’.[2]    

   [1]Decision dated 29 October 2014 at paragraph 3.

   [2]Decision dated 29 October 2014 at paragraph 2.

3. However, Mrs Tracey does not see this ending the issues in dispute. She now wants Craig Hall, the lawyer who formerly represented Olinderidge and Mr Wagner to pay her costs of $46,283.30.

Why does Mrs Tracey say Mr Hall should pay her costs?

1. Mrs Tracey claims that Mr Hall protracted proceedings and caused her significant loss by providing false and misleading information.

2. She claims that Mr Hall did this by late filing of the respondents’ application to set aside judgement in her favour and sending it to her without including a hearing date.

3. Mrs Tracey asserts that Mr Hall’s failure to properly serve her with the application prejudiced her. This is because it denied her the chance to attend Court to dispute the award that she ‘enforced in the Bundaberg Magistrates Court’.

4. She also claims Mr Hall caused her significant loss by incorrectly referring to a report quantifying damage at $9,689.82 as a ground of appeal.

What is the effect of the Consent Orders?

1. To her credit, Mrs Tracey previously agreed to orders by consent during the hearing on 24 October 2014. Mrs Tracey agreed to ‘No order as to costs’ and that the orders were ‘in full and final discharge of the Application’.

2. A decision of the Tribunal in a proceeding is binding on all parties to the proceeding.[3] A decision of the Tribunal includes an order made by the Tribunal.[4] An order giving effect to a settlement has the same effect if it were an order made by the Tribunal after deciding the proceeding.[5]

   [3]Queensland Civil and Administrative Tribunal Act 2009 s 126(1).

   [4]Ibid Schedule 3 definition of “decision”.

   [5]Ibid s 88(1).

3. This means the consent orders finalise these matters.[6] The term ‘No order as to costs’ means that each party is liable to pay its own costs. Mrs Tracey therefore agreed to final orders that she would pay her own costs. She cannot now seek to recover those costs. That would be contrary to the Tribunal’s orders. The proceeding has ended.

   [6]Pearce & Anor v Body Corporate for Riparian Plaza Apartments CTS 34655 [2012] QCAT 72 at [43], followed in Hallden Pty Ltd & Ors v Body Corporate For LA Promenade CTS 9770 [2012] QCAT 109 and Clarke & Anor v Foster & Ors [2012] QCATA 252.

4. This alone is sufficient to dismiss Mrs Tracey’s application for costs. However, for completeness and noting that Mrs Tracey is self-represented, I will continue to address her application for costs even if the Tribunal had not made the consent orders.     

What is the Tribunal’s jurisdiction to award costs without the Consent Orders?

What is the Tribunal’s discretion to award costs?

1. The Tribunal has a discretion to order costs against a party’s representative as compensation for unnecessary costs.[7] The discretion arises if the representative unnecessarily disadvantages another party to the proceeding.[8] 

   [7]Ibid s 103(1).

   [8]Ibid.

Is the alleged conduct part of the current proceeding?

1. The phrase “the proceeding” refers to conduct in the current proceeding before the Tribunal.[9] Late filing or failing to serve the application to set aside the judgement is conduct related to enforcement proceedings in the Magistrates Court at Bundaberg. It does not relate to conduct in this building application before the Tribunal. 

   [9]Pierpont v Zanetti & Ors [2012] QCAT 171 at [44].

2. Similarly, the alleged incorrect ground of appeal is conduct related to Mrs Tracey’s appeal (APL379-13) for which she has separately applied for costs against Mr Hall. It does not relate to conduct in this building application before the Tribunal (BDL136-11).

3. This also is sufficient to dismiss Mrs Tracey’s application for costs.

Did the alleged conduct “unnecessarily disadvantage” Mrs Tracey?

1. In any event, the Tribunal exercises the discretion carefully.[10] Any disadvantage must be “unnecessary” as distinct from a disadvantage experienced in the usual course of litigation.[11]

   [10]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 at [48], citing with approval Deputy Commissioner of Taxation v Levick [1999] FCA 1580 at [11] per Hill J.

   [11]Queensland Building Services Authority v Johnston [2011] QCATA 265 at [31]; Crusty Devil Bakehouses Pty Ltd v W.A.W. Developments Pty Ltd [2013] QCAT 159 at [14]; Joanne Baxter and Fifties Food Pty Ltd atf The Ninja Bear Trust t/as Subway Wynnum Central v Subway Realty Pty Ltd & Anor [2013] QCAT 316 at [12]; Campbell v Kerry M Ryan Pty Ltd [2014] QCATA 58 at [8]; Airstrike Industrial Pty Ltd v Robertson & Anor [2014] QCATA 209 at [7].

2. Mere error by a representative is not sufficient to establish unnecessary disadvantage to another party. Rather, evidence of bad faith, misconduct or an improper purpose by the representative is usually required.[12] Examples are representatives acting without proper authority in commencing proceedings[13] or continuing with a manifestly untenable action.[14]

   [12]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 at [39].

   [13]Ibid at [48].

   [14]Ibid at [56].

3. Conversely, the Tribunal has previously determined procedural irregularities and deficiencies to be disadvantages experienced in the usual course of litigation. These include a failure to comply with directions,[15] applications made out of time,[16] affidavits containing material alleged to be misleading and offensive,[17] late amendment of an application,[18] seeking an urgent hearing then requesting an adjournment,[19] making objections and raising issues without putting the other parties on notice,[20] referring to evidence not previously provided,[21] and failing to progress proceedings in a timely manner.[22]

   [15]Campbell v Kerry M Ryan Pty Ltd [2014] QCATA 58 at [9].

   [16]Gardener and Ors v Office of Liquor and Gaming Regulation and Anor [2012] QCAT 62 at [12] to [14].

   [17]Ibid.

   [18]Ibid.

   [19]Joanne Baxter and Fifties Food Pty Ltd atf The Ninja Bear Trust t/as Subway Wynnum Central v Subway Realty Pty Ltd & Anor [2013] QCAT 316 at [9] to [11].

   [20]Ibid.

   [21]Ibid.

   [22]Gardener & Ors v Office of Liquor and Gaming Regulation & Anor [2012] QCAT 62 at [12]; Airstrike Industrial Pty Ltd v Robertson & Anor [2014] QCATA 209 at [7] to [11].

4. Failing to serve an application to set aside judgement does not demonstrate bad faith, misconduct or an improper purpose. Indeed, that Mr Hall sent Mrs Tracey a courtesy copy of the application prior to filing[23] suggests a desire to keep Mrs Tracey informed, as is common practice within the legal profession.

   [23]Letter Hall Lawyers to Martha-Lee Tracey and Todd Tracey dated 1 November 2013.

5. Moreover, Mr Hall notified Mrs Tracey of the pending application by sending her a copy concomitantly with its filing. Mrs Tracey could therefore have taken steps to protect her own interests and ensure she attended any hearing by contacting the Court registry. Mrs Tracey also could have appealed the decision to set aside the judgement if denied the opportunity to present her case and sought her costs in that appeal. Mrs Tracey was therefore not “unnecessarily disadvantaged” to warrant an order of costs in her favour.

6. Late filing is a disadvantage experienced in the usual course of litigation and does not justify ordering costs.[24]  

   [24]Airstrike Industrial Pty Ltd v Robertson & Anor [2014] QCATA 209 at [8].

7. Including an incorrect ground of appeal is also a disadvantage experienced in the usual course of litigation and does not justify ordering costs.[25] Olinderidge and Mr Wagner subsequently abandoned this ground during the appeal in any event, thereby minimising any disadvantage to Mrs Tracey.

   [25]Gardener & Ors v Office of Liquor and Gaming Regulation & Anor [2012] QCAT 62 at [12].

8. I am therefore not satisfied Mrs Tracey has adduced evidence to support conduct by Mr Hall that unnecessarily disadvantaged her.

What is the appropriate Order?

1. The appropriate Order is that the Application for miscellaneous matters dated 5 November 2014 is dismissed.