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
Stanley-Clarke v Medical Board of Australia [2012] QCAT 29

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…

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: [2012] QCAT 700
Decision Date

CaseChat Overview and Summary

Wayne Turner applied to the Queensland Civil and Administrative Tribunal (QCAT) for a review of a decision made by the Queensland Building Services Authority (QBSA). The QBSA was successful in the hearing and sought an order for costs against Mr. Turner. The tribunal had to determine whether to award costs to the QBSA and if so, the appropriate amount. The tribunal considered the legislative provisions under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), which provide that generally, each party bears their own costs. However, section 102 of the QCAT Act allows for an order to be made if the interests of justice require it. The tribunal also considered the Respondent's offer to settle made late in the proceedings, and the Applicant's approach to the hearing, which did not offer much prospect of success.

The tribunal concluded that the interests of justice did require an award of costs in favour of the QBSA. The tribunal took into account the Applicant's actions, such as refusing the builder access to the site and carrying out rectification work without authority, and the lack of steps taken to ensure the attendance of an expert witness. The tribunal also considered the offer to settle and the late stage at which it was made. As a result, the tribunal found that the normal position under section 100 of the QCAT Act was appropriately displaced, and a costs order was appropriate. The tribunal fixed the costs at $1,850, considering the late offer to settle and the need to make only a small allowance for preparation time.

In conclusion, the tribunal ordered that the Applicant, Wayne Turner, pay the Respondent's costs in the sum of $1,850 within 28 days. The tribunal based its decision on the provisions of the QCAT Act, the circumstances of the case, and the factors relevant to the exercise of the tribunal's discretion in awarding costs.

Orders