Van Cuylenburg v Tablelands Regional Council
[2012] QCAT 406
•31 August 2012
| CITATION: | Van Cuylenburg v Tablelands Regional Council [2012] QCAT 406 |
| PARTIES: | Susan Van Cuylenburg |
| v | |
| Tablelands Regional Council |
| APPLICATION NUMBER: | GAR182-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 31 August 2012 |
| HEARD AT: | Cairns |
| DECISION OF: | Deanne Drummond, Member |
| DELIVERED ON: | 31 August 2012 |
| DELIVERED AT: | Cairns |
| ORDERS MADE: | 1. Susan Van Cuylenburg is granted leave to withdraw the application. 2. Each party’s application for costs is dismissed. |
| CATCHWORDS: | Review – declaration that dogs menacing dogs – both dogs subsequently died – now unnecessary to determine whether decision should be set aside – costs – each party to bear their own costs Animal Management (Cats and Dogs) Act 2008 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Korn of Counsel instructed by Anne English of Bottoms English |
| RESPONDENT: | Dean Morzone of Counsel |
REASONS FOR DECISION
On the 10 June 2010 Susan Van Cuylenburg filed an application in this Tribunal seeking that the decision of the Tablelands Regional Council dated 12 May 2010 be set aside. The Council’s decision declared her two dogs, Cassius and Sampson, regulated menacing docs pursuant to Chapter 4, Part 4 of the Animal Management (Cats and Dogs) Act 2008.
Ms Van Cuylenburg also sought in her application that the Council pay her costs of the QCAT application.
In July, 2011 (following the hearing but prior to Reasons for Decisions being delivered), the dog Cassius passed away.
In September, 2011 the Tribunal gave a written decision reaffirming the Council’s declaration.
Ms Van Cuylenburg subsequently appealed that decision.
On the 5 April 2012 the appeal was upheld and the Tribunal’s original determination set aside. It was ordered that the matter be remitted for hearing before a differently constituted Tribunal.
The matter was due to be reheard on 31 August 2012. Directions were made on the 1 August, 2012 that the evidence of the original hearing of the matter on 23 and 24 June, 2011 be accepted as the evidence on this hearing.
Directions were also made for the filing of written submissions by each party with Ms Van Cuylenburg to file and serve any written submissions to be relied upon at the hearing by 4.00pm on the 17 August, 2012, and the Council by 4.00pm on the 24 August, 2012.
The Council subsequently filed written submissions but Ms Van Cuylenburg did not.
Late on 22 August 2012 the dog Samson died and the Council was notified of this fact on 24 August 2012.
At the further hearing on the 31 August the parties agreed it was no longer necessary to determine whether or not the decision of the Council should be set aside.
Ms Van Cuylenburg however, wished to proceed with her application for costs against the Council in relation to the original hearing.
In an oral reply, the Council sought costs of preparing for the further hearing noting that submissions had been prepared the day after the dog Samson passed away, but the day before the Council was notified of this fact.
Both parties proposed costs be as assessed either under the District Court Scale or Magistrates Court Scales.
Notwithstanding neither party had prepared written submissions on the issue of costs, Counsel for both parties indicated they were ready to proceed on the day of hearing. Both parties subsequently made oral submissions on the issue of costs in relation to the substantive application.
It should be noted that a separate application for costs has been filed by Ms Van Cuylenburg in relation to the appeal (matter number APL382-11).
a. On 9 August 2012 directions were made requiring Ms Van Cuylenburg to file submissions in relation to that application for costs by 4pm on 31 August 2012. The Council were directed to file submissions in reply by 4pm on 21 September 2012.
b. Both parties agreed today to consent to an extension of time for the filing of submissions. The Council agreed to Ms Van Cuylenburg having until 14 September 2012 to file her submissions. Ms Van Cuylenburg has agreed to the Council having until 5 October 2012 to file its submissions.
The costs of the appeal are a separate and distinct matter to the current proceedings.
Section 100 of the Queensland Civil and Administration Tribunal Act 2009 (QCAT Act) provides:
Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceedings.
Section 102(1) of the QCAT Act provides:
The Tribunal may make an Order requiring the party to a proceedings to pay all or a stated part of the costs of another party to the proceeding if the Tribunal considers the interest of justice will require it to make the Order.
Section 102(3) of the QCAT Act provides:
In deciding whether to award costs under subsection (1) or (2) the Tribunal may have regard to the following-
1.Whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to a proceeding, including as mentioned in Section 48(1)(a) to (g);
2.The nature and complexity of the dispute the subject of the proceeding;
3.The relevant strengths of the claims made by each of the parties to a proceeding;
4.For a proceeding for the review of reviewable decision:
a.Whether the applicant was afforded natural justice by the decision maker for the decision; and
b.Whether the applicant generally attempted to enable and help the decision maker to make the decision on the merits;
5.The financial circumstances of the parties to the proceeding;
6.Anything else the Tribunal considers relevant.
In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 President Justice Wilson said:
29. Under the QCAT Act the question will usually arise in each case in 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.
Later, in McEwen v Barker Builders Pty Ltd [2010] QCATA 49 President Justice Wilson said:
[17] The language of s 100 plainly indicates that the legislature has turned its face against awards of costs in this Tribunal. The question that will usually arise in each case in which costs are sought is, then, whether circumstances relevant to the discretion inherent in the phrase “the interests of justice” have arisen; and, whether or not they point to a costs award in a sufficiently compelling way to overcome the statutory hurdle.
Conduct unnecessarily disadvantaging another: In this matter I do not believe either party has acted in a way that has unnecessarily disadvantaged the other.
Mr Morzone for the Council submitted there had been delay by Mrs Van Cuylenburg in notifying the Council that Samson had passed away. Given the dog passed away late on the 22 August, and the dog was a much loved family pet, I do not find it unreasonable that one day passed before the Council was notified of his death.
Mr Korn for Mrs Van Cuylenburg submitted that a relevant factor in this matter was that at the original hearing, the Council contended (and the Tribunal accepted) that on its proper construction Chapter 4, Part 4 of the Animal Management (Cats and Dog) Act 2008 provided for the making of two separate and distinct decisions. Council argued the only decision to be reviewed in the present case was pursuant to section 94, thereby limiting Mrs Van Cuylenburg’s grounds of review.
During the Appeal, the Council conceded that the Tribunal misconstrued the provisions of Part 4 accepting that Part 4 provides for a single process consisting of a number of steps.
I do not accept that such a contention by the Council at the original hearing is conduct so unnecessarily disadvantaging the other that it is in the interests of justice that Council pay Mrs Van Cuylenburg’s costs of the initial hearing.
Nature and Complexity of the Case: Whilst both parties in this matter were legally represented and the matter was heard over 2 days, I do not find the dispute was such as to warrant overturning the statutory preference that each party bear their own costs.
Strength of the case of each party: This matter did not ultimately proceed to a rehearing and accordingly it is not appropriate for the Tribunal to speculate as to the likely outcome had this occurred.
Whether Applicant was afforded natural justice by the decision maker or whether the applicant generally attempted to enable and help the decision maker to make the decision on the merits: No party relied on these ground in their oral submissions.
The financial circumstances of the party: During submissions Mrs Van Cuylenburg indicated that she had spent over $40,000 on legal costs although no breakdown was given as to how much of this was on the appeal and how much was on the initial hearing. She also indicated that she did not work and her husband had funded the legal proceedings. No information was provided in relation to the Council’s financial circumstances.
I find nothing in the submissions that warrants a departure from the principal position that each party bear their own costs of the proceedings.
Other matters: Mr Morzone for the Council submitted it was relevant to the issue of costs that Mrs Van Cuylenburg did not file any further written submissions after being directed to do so prior to the remitted hearing. Mr Morzone also submitted this put the Council at a disadvantage in guessing what the applicant’s case would be when the Council prepared its submissions.
No explanation was given for Ms Van Cuylenburg why this did not occur however in the circumstances I do not find that this is so significant as to warrant a departure from the general principle that each party bear their own costs of the proceedings.
Mr Morzone also noted that no costs order was sought at the original hearing. I do not find this surprising given Mrs Van Cuylenburg was unsuccessful at the original hearing however in all the circumstances I find that it is appropriate for the reasons outlined above that each party bear their own costs of and incidental to the substantive application.
Each party’s application for costs is accordingly dismissed.