Valuers Registration Board of Queensland v Conroy
[2014] QCATA 285
•8 October 2014
| CITATION: | Valuers Registration Board of Queensland v Conroy [2014] QCATA 285 |
| PARTIES: | Valuers Registration Board of Queensland (Appellant) |
| v | |
| Bevan Conroy (trading as Bevan Conroy Associates Valuers) (Respondent) |
| APPLICATION NUMBER: | APL021-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 8 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal, if required, is granted. 2. The appeal is allowed by adding to the orders made herein on 12 December 2013 an order that the respondent Conroy pay to the Valuers Registration Board of Queensland the sum of $8,000 for the Board’s professional costs of conducting in the Tribunal the application numbered OCR149-12. |
| CATCHWORDS: | APPEAL – COSTS – disciplinary proceedings – where Board successful – where Board seeks professional costs of tribunal proceedings – where enabling Act enables costs orders to be made – where application refused – whether absence of order for representation warrants refusal – whether hearing on papers precludes application for costs – where appeal as to costs allowed – whether full costs should be allowed – Queensland Building Services Authority Act 1991 (Qld), s 77 Chief Executive, Queensland Health v Jattan [2010] QCA 359 Lyons v Dreamstarter Pty Ltd [2012] QCATA 71 Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) WAR 361 Queensland Building Services Authority v Fenwick [2014] QCATA 093 Veterinary Services Board v McIntosh [2011] QCAT 417 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
This is an appeal against a refusal to award professional costs to the appellant (“the Board”) in a disciplinary proceeding[1] against the respondent (Conroy) under the Valuers Registration Act 1992 (Qld) (“the VRA”).
[1]VRA s 50 (Disciplinary proceedings).
The Board instituted these proceedings in the Tribunal,[2] charging Conroy with professional misconduct, incompetence or negligence as a registered valuer,[3] in that he grossly over-valued certain properties in Toowoomba.
[2]VRA s 59 (QCAT may order cancellation of registration, etc.)
[3]VRA s 50(1)(b).
On 12 December 2013 Conroy was found guilty of professional misconduct and negligence, but not incompetence. The Tribunal was satisfied that he dishonestly issued false certificates, and deliberately departed from the Board’s rules of professional conduct.[4] By way of sanction he was reprimanded,[5] and ordered to pay to the Board a penalty of $4,400 within 3 months of 12 December 2013.[6]
[4]Reasons for Decision 12 December 2013 (“Decision”), paragraph [73].
[5]VGA s 59(1)(a).
[6]VGA s 59(1)(c).
By way of ancillary relief, the Board sought orders that Conroy pay its costs of investigating his conduct[7] and its professional costs in the Tribunal proceedings.[8] The Tribunal allowed the former, but refused the latter.
[7]VGA s 59(2).
[8]Ibid.
The Board now appeals against that refusal.
In my view this is an appeal on a question of law, for which leave is not required.[9] It is not an appeal against a costs order,[10] because, on the material point, no such order was made. However, in case that is wrong, I shall grant contingent leave to appeal.
[9]Cf QCAT Act s 142(3)(b).
[10]Cf QCAT Act s 142(3)(a)(iii).
The application to appeal was not accompanied by particulars of the costs sought. However, in response to directions the Board filed and served some global figures, to which Conroy has not replied.
The Board seeks $25,639.23 for the costs of the original proceedings[11] (including investigation costs of $9,139.23[12]) and $3,911.70 for costs and outlays of this appeal. But an appeal predicates error in the primary tribunal, which cannot be accused of erroneously refusing the costs of a then non-existent appeal.
[11]OCR 149-12.
[12]As appears in paragraph 7 of the Board’s statement dated 15 September 2014.
The Board’s application for costs was summarily dismissed as follows:
I decline to order payment of any costs other than the costs of the investigation which led to the proceeding. No order granting leave for legal representation has been made. The hearing has been conducted on the papers and was not contested.[13]
[13]Decision paragraph [80].
No doubt the absence of a contest and a viva voce hearing were conducive to economy, and so tended to reduce the quantum of costs, but they would not, per se, warrant an outright refusal of costs. There is nothing in the QCAT Act, or in the VRA, to suggest that costs may only be awarded if proceedings are conducted orally. Subsection 59(2) of the VGA refers to a “proceeding” rather than a hearing. In legal parlance the term “proceeding” bears a wide meaning,[14] and in the QCAT Act itself, it is applied to hearings on the papers.[15] The gist of the challenged decision, then, appears in the simple sentence: “No order granting leave for legal representation has been made”.
[14]Chief Executive, Queensland Health v Jattan [2010] QCA 359 at [23].
[15]QCAT Act s 32(2).
However, the presumption that parties in the Tribunal will be self-represented[16] is rebuttable in some cases;[17] in others it simply does not apply. Pertinently the QCAT Act provides: “[A] party ... may be represented ... if ... the proceeding relates to taking disciplinary action ... against a person.”[18] This case is a disciplinary proceeding; consequently, the absence of an order for representation is not per se a proper ground for refusing professional costs.
[16]QCAT Act s 43(1).
[17]Described in QCAT Act s 43(3).
[18]QCAT Act s 43(2)(b)(ii).
The enabling Act, the VRA, provides:
QCAT may order the valuer to pay to the board, within a stated time, the costs or part of the costs of and incidental to the proceeding, including the costs or part of the costs of the investigation that led to the proceeding.[19]
[19]VRA s 59(2).
That modifying provision prevails over any inconsistent provision of the QCAT Act.[20] Indeed, the latter anticipates such a position.[21] I see no material difference between subsection 59(2) of the VRA and the legislation applied in Lyons v Dreamstarter Pty Ltd.[22] With respect, the learned Member erred in holding that the absence of an order for legal representation was a sufficient ground for refusing to award costs of the hearing.
[20]QCAT Act s 7(2); Lyons v Dreamstarter Pty Ltd [2012] QCATA 71 at [6]-[7]; Queensland Building Services Authority v Fenwick [2014] QCATA 093. In Lyons, costs of $30,660.60 were awarded.
[21]See the opening words of s 100 of the QCAT Act: “Other than as provided under this Act or an enabling Act ...”.
[22][2012] QCATA 71, where the Queensland Building Services Authority Act 1991 s 77(2)(h) provided: “Without limiting the tribunal’s powers ... the tribunal may ... award costs.”
However, the fact that a costs order may be made does not mean that one must be made. Nor does it assimilate the costs regime of the VRA to the traditional rule, whereby costs normally, though not inevitably,[23] follow the event. The VRA’s provision for costs confers a broad discretion, envisaging that an unsuccessful party who causes the Board to incur the costs of a disciplinary proceeding may be required to contribute, in some reasonable measure, to those expenses.[24]
[23]Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 at [26].
[24]Latoudis v Casey (1990) 170 CLR 534 at 557; Lyons (above) at [11].
The Tribunal recognises that various professional Boards, in taking disciplinary action, draw not upon Consolidated Revenue but upon the fees of their registrants.[25] Accordingly, it is in the public interest that, when disciplinary action is upheld, serious consideration should be given to a claim for costs, lest depletion of their funds may cause them to be less diligent in efforts to protect the public.
Where a regulatory authority successfully brings a complaint of [misconduct] ... there will usually be a strong case for [a costs order]. That is because such bodies perform a function that promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action, if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action ...[26]
[25]Nursing and Midwifery Board of Australia v Sanam [2011] QCAT 290 at [5]; Veterinary Services Board v McIntosh [2011] QCAT 417 at [37]; Pharmacy Board of Australia v Booy [2011] QCAT 522.
[26]Medical Board of Western Australia v Roberman [2005] WASAT 118; (2005) 39 SR (WA) 47 at [30]; see also Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) WAR 361 at [30]; Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161 at [39].
At the same time it must be borne in mind that a costs order is compensatory, not an additional sanction. Another relevant consideration is that the fine of $4,400 imposed in this case is payable to the Board, not to Consolidated Revenue.[27]
[27]VGA 1992 s 59(1)(c).
If the Tribunal makes a costs order under an enabling Act it must fix the costs if possible.[28] In Lyons v Dreamstarter Pty Ltd,[29] a decision of Alan Wilson J, the registrant was order to pay costs of $30,660.60, but the litigious conduct of Mr Conroy cannot be compared to that of the respondent in Dreamstarter. Conroy did not contest the Board’s application, and informed the Tribunal that he “would probably agree with all the allegations listed”.[30] He co-operated with the investigator, and offered no opposition to the Board’s submissions on sanction.[31] Thus, in no small measure, the Board’s application was facilitated.
[28]QCAT Act s 107(1).
[29][2012] QCATA 71.
[30]Reasons for decision 12 December 2013 at [12].
[31]Ibid at [78].
Conroy has already paid, or is liable to pay the Board an amount of $4,400, together with investigation costs of $9,139.23. The Board’s professional costs of the original application are stated, without further particulars, as $16,500.[32] I consider this to be a case where, to adopt the words of Judicial Member Thomas in Tainton,[33] the burden of a full costs order is likely to be crushing. The Board’s professional costs of the primary hearing will be limited to $8,000.
[32]Paragraph 7(b) of the Board’s statement dated 15 September 2014.
[33]Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161 at [40].
ORDERS
1.Leave to appeal, if required, is granted.
2. The appeal is allowed by adding to the orders made herein on 12 December 2013 an order that the respondent Conroy pay to the Valuers Registration Board of Queensland the sum of $8,000 for the Board’s professional costs of conducting in the Tribunal the application numbered OCR149-12.
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