Van Cuylenburg v Tablelands Regional Council (No 2)

[2012] QCATA 224

CITATION: Van Cuylenburg v Tablelands Regional Council (No 2) [2012] QCATA 224

PARTIES:	Susan Van Cuylenburg (Applicant/Appellant)
v
Tablelands Regional Council (Respondent)

APPLICATION NUMBER: APL382-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: K A Cullinane AM QC, Member

DELIVERED ON: 8 November 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1. The application for an order for costs is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROCEDURE – COSTS – where applicant appealed proper construction of certain provisions of the Animal Management (Cats and Dogs) Act 2008 – where rehearing ordered – where rehearing unnecessary due to death of animal – whether applicant entitled to costs for appeal proceedings – whether there is grounds for departure from principle contained in s 100 of the Queensland Civil and Administrative Tribunal Act 2009

Animal Management (Cats and Dogs) Act 2008
Queensland Civil and Administrative Tribunal Act 2009, ss 32, 100, 102

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

1. The applicant seeks an order that the respondent pay her costs of her successful appeal to this Tribunal.

2. The applicant succeeded on the application which concerned the proper construction of certain provisions of the Animal Management (Cats and Dogs) Act 2008 as amended, and particularly ss 89 and 94 of that Act.

3. The construction complained of was contended for at first instance by the respondent, but on appeal the respondent in its written outline conceded that the construction was erroneous.  The respondent argued nonetheless that the application should be refused on the grounds that the decision reached was the correct one in any case.

1. The tribunal ordered a rehearing but the death of the remaining dog has meant that no further hearing is necessary.

1. The power of the tribunal to award costs is provided for by Division 6 of Part 6 of Chapter 2 of QCAT Act as amended. It is significantly limited by those provisions.

1. The primary provision is s 100 of the QCAT Act, which provides that:

Each party must bear its own costs

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 proceeding.

1. Section 102 of the QCAT Act provides for the circumstances in which an order for costs can be made by the Tribunal.

   Costs against party in interests of justice

   (1) The tribunal may make an order requiring a party to a proceeding to pay all or stated  part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make an order.

   …

   (3) 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;

   (ethe financial circumstances of the parties to the proceeding;

   (f)anything else the tribunal considers relevant.

1. As I have said, the cause of the difficulty here was the decision of the tribunal that misconstrued the legislation.

1. The respondent contended for this construction at first instance but abandoned this submission in its outline of argument on appeal.

1. The matter was, in my view, not one of great complexity but on the other hand it was not unarguable and there is nothing to suggest the construction was not genuinely advanced.  The matter did not proceed to a final determination because of the death of the remaining dog.

1. Had ordinary principles applied the applicant would be in a strong position on the question of costs. However she is faced with the legislative policy contained in s 100 of the QCAT Act.

1. Given all circumstances of the case I am not persuaded that any departure from the principle contained in s 100 of the QCAT Act is warranted.

ORDER

1. The application for a costs order is refused.