Turner v Queensland Building Services Authority (No 2)
[2012] QCAT 700
| CITATION: | Turner v Queensland Building Services Authority (No 2) [2012] QCAT 700 |
| PARTIES: | Wayne Turner (Applicant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR376-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peter Walker, Member |
| DELIVERED ON: | 9 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That the Applicant pay the Respondent’s costs fixed in the sum of $1,850 within 28 days. |
| CATCHWORDS: | Where Respondent successful at hearing –where application for costs against Applicant – matters relevant to exercise of discretion Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102(1), 103(3), 105, 107 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
Background
This Application relates to a decision made by me in respect of which the Respondent was successful.
The Respondent now seeks an order that the Applicant pay its legal costs fixed in the sum of $2,304.00.
Legislation
Costs in this jurisdiction are governed by the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act). Section 100 of the QCAT Act provides as follows:
Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the parties own costs of the proceeding.
This provision, however, must be read in conjunction with section 102 of the QCAT Act, particularly subsections (1) and (3).
Section 102 (1) provides:
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.
Section 102 (3) provides:
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 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.
Section 105 provides:
The rules may authorise the tribunal to award costs in other circumstances, including, for example, the payment of costs in a proceeding if an offer to settle the dispute the subject of the proceeding has been made but not accepted.
Rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (the QCAT Rules) is a rule made under section 105. It provides as follows:
(a) This rule applies if—
i.party to a proceeding, other than a proceeding for a minor civil dispute, makes another party to the proceeding a written offer to settle the dispute the subject of the proceeding; and
ii.the other party does not accept the offer within the time the offer is open; and
iii.in the opinion of the tribunal, the decision of the tribunal in the proceeding is not more favourable to the other party than the offer.
(b) The tribunal may award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.
(c) If a proceeding involves more than 2 parties, this rule applies only if the acceptance of the offer would have resulted in the settlement of the matters in dispute between all the parties.
(d) In deciding whether a decision is or is not more favourable to a party than an offer, the tribunal must—
i.take into account any costs it would have awarded on the date the offer was given to the other party; and
ii.disregard any interest or costs it awarded relating to any period after the date the offer was given to the other party.
General Approach to Costs
The starting point for a consideration of costs in this jurisdiction is Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)[1] (Ralacom). In that decision the President referred to distinctions between the legislative provisions in the CCT Act and the QCAT Act[2] and concludes:
Under the QCAT Act, the question that will usually arise in each case is 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 orders in s 100.[3]
[1] [2010] QCAT 412.
[2] See paragraphs 24 to 29.
[3] Paragraph 29.
The question that I therefore need to consider in my view is in the circumstances of this matter is whether the Applicants are able to demonstrate that the interests of justice point so compellingly to costs award that they overcome the commencing point as set in section 100 namely that each party would ordinarily bear their own costs.
In this respect there are 2 aspects of this case that arguably place it outside the norm. The first of these is the offer to settle made by the Respondent, details of which are contained in the Authority's written submissions.[4]
[4] See Respondent's submissions at paragraph 7.
The second aspect of some importance in my view is the approach the Applicant took to the hearing itself. In the first instance he failed to attend the hearing in person, though I did manage to speak to him on the telephone. During the course of that conversation I asked him whether he wanted to proceed with the application and he indicated that he did but was content to rely on his written material.
This approach needs to be considered in the light of the following:
a) The Applicant had refused the builder access to the site to carry out rectification;
b) The Applicant had carried out rectification work himself without authority;
c) The success of the Applicant’s case depended to a very large extent upon the report of Jason Lenac. The Authority had given the Applicant notice that it wished to cross-examine Mr Lenac, but despite this notification the Applicant took no steps to ensure Mr Lenac’s attendance.[5]
[5] See Authority's submissions at paragraph 23.
In view of this approach I have formed the view that at least by the time of the hearing the Applicant had virtually no prospect of success.
I therefore consider that the comments of the Deputy President In Stanley-Clarke v Medical Board of Australia[6] when awarding costs upon the striking out of a claim under section 47 of the QCAT Act are apposite to this matter. She remarked:
A consideration is that limited public funds should not be wasted on a case that has no prospect of succeeding. In this case, it is also worth noting that the Board derives its resources, at least in part, from the registration fees paid by members of the profession. They, too, should not be thrown away[7].
[6] [2012] QCAT 29.
[7] See Stanley-Clarke at 31.
For these reasons the normal position as stated in s 100 of the QCAT Act is, in this case, appropriately displaced and a costs order is appropriate having regard to both the provisions of s 102(3) and s 105 of the QCAT Act.
Having made that determination I am required to take account of s 107 of the QCAT Act which is in the following terms:
(a) If the tribunal makes a costs order under this Act or an enabling Act, the tribunal must fix the costs if possible.
(b) 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.
(c) The rules may provide that costs must be assessed by reference to a scale under the rules applying to a court.
Order
While I take account of the Respondent's submissions as to the quantum I also take into account that the offer to settle was made at a very late point in the proceeding and the Respondent was, in my view, really entitled to take virtually all the intervening period to consider that offer. Accordingly only a small allowance should be made for preparation.
Applying my general experience to this calculation I allow a total sum of $1,850 and I order that the Applicant pay that sum to the Respondent within 28 days.