Tyler v Queensland Building Services Authority (No 2)

[2010] QCAT 589

CITATION:		Tyler v Queensland Building Services Authority (No 2) [2010] QCAT 589
PARTIES:	Mr Stuart Tyler
v
Queensland Building Services Authority

APPLICATION NUMBER:   GAR151-10  

MATTER TYPE: General administrative review matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 24 November 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The applicant is to pay the respondent’s costs thrown away by the hearing of 15 October 2010 on the District Court Scale.

CATCHWORDS : 

COSTS – whether in interests of justice – where applicant failed to attend hearing – where no reasonable excuse for failure

Queensland Civil and Administrative Tribunal Act 2009 ss 48(1), 100, 102,

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. On 17 November 2010, I determined the substantive matters in this proceeding.  On 15 October 2010, Senior Member Oliver directed that the costs of the hearing conducted on 15 October 2010 were to be reserved and determined on the papers. This is the decision in relation to costs.

2. Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) provides that, other than as provided by this Act or an enabling Act, each party to a proceeding must bear the party’s own costs. The tribunal can order a party to pay costs if the interest of justice require it: s102(2). In deciding whether to award costs, the tribunal must consider whether a party is acting in a way that unnecessarily disadvantages another party to the proceeding: s102(3)(a) of the QCAT Act. In considering s102(3)(a) of the QCAT Act, the tribunal is to have regard to s48(1) of the QCAT Act.

3. The proceeding was listed for hearing in Townsville for one day on 15 October 2010. The registry sent notices of the hearing to the parties on or about 13 September 2010. By letter of 22 September 2010, Mr Tyler informed the tribunal that he would not be able to attend the hearing as he intended to be interstate and at sea. He asked for an adjournment until November.

4. The Authority opposed the adjournment, the tribunal did not grant it, and the hearing proceeded on 15 October 2010. Mr Tyler did not attend.

5. The Authority contends that Mr Tyler:

a)Deliberately took himself out of the jurisdiction so that he could not attend the hearing when Mr Tyler had the onus of prosecuting the action: s48(1)(g) of the QCAT Act.

b)Filed a substantial volume of material that was vexatious, defamatory, without substance and often nonsensical: s48(1)(f) of the QCAT Act.

c)Repeatedly and without foundation alleged that members of the tribunal have been biased, and engaged in criminal conduct.

d)Deliberately recorded the parties to the proceeding without knowledge or consent.

e)Failed to comply with tribunal orders: s48(1)(a) of the QCAT Act.

1. Voluminous, vexatious and nonsensical material is common for a tribunal where much of the business of the day is conducted by self-represented parties. Despite the tribunal’s best endeavours,  parties also commonly fail to comply with directions for the filing of material. These defaults should not give rise to a costs order except in extreme circumstances.

2. The tribunal must accept that not every party will be satisfied with its decisions and that criticism may well follow. A party should not be punished for expressing his dissatisfaction with a tribunal member, even if strongly worded and perhaps hyperbolic, except in extreme circumstances. That four different members had to deal with Mr Tyler’s claims may be inconvenient for the tribunal but it did not affect the Authority.

3. What is of concern is the disruption to the scheduled hearing. Mr Tyler’s “request” for an adjournment was in these terms:

   “I am unable to attend the hearing in Townsville…as I will be both interstate and at sea at this time.

   I have been experiencing extreme financial difficulties as a direct result of the on-going campaign of discrimination and victimisation by the BSA with the result that I am unable to gain any work in Townsville. A yacht owner has offered me a paid job transporting his yacht south for him and desperation has led me to feel that I have no other reasonable alternative but to accept this job.”

4. Mr Tyler had a choice as to whether to set sail or attend the hearing. He chose wrongly. While the tribunal schedule can be changed to accommodate genuine reasons for non-attendance, and pre-planned events, there are significant resources involved in scheduling a hearing and in ensuring the hearing room, member and hearing support officer are available. Similarly, the Authority incurred expenses in attending the hearing in Townsville. It is not acceptable to disrupt those arrangements simply because Mr Tyler received a better offer.

10. Mr Tyler caused an adjournment without grounds. He should pay the Authority’s costs thrown away by the aborted hearing of 15 October, the costs to be assessed on the District Court Scale.

11. The Authority has brought to my attention that the works the subject of the review proceeding have been rectified or completed by others. That means that paragraphs 4 and 5 of my decision of 17 November 2010 cannot be implemented. Given the number of opportunities Mr Tyler had available to produce the material referred to in my earlier decision, and that he failed to do so, paragraphs 4 and 5 of the scope of works should stand and a fresh decision to that effect will issue.