W&E Carlsen Builders v Tressider
[2014] QCAT 131
•4 April 2014
| CITATION: | W&E Carlsen Builders v Tressider [2014] QCAT 131 |
| PARTIES: | William George Carlsen t/as W & E Carlsen Builders (Applicant) |
| v | |
| Steven Tressider Melissa Tressider (Respondents) |
| APPLICATION NUMBER: | BDL130-13 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Hughes |
| DELIVERED ON: | 4 April 2014 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Steven Tressider and Melissa Tressider pay to William George Carlsen t/as W & E Carlsen Builders his costs thrown away by the adjournment of the expert’s conclave of 24 February 2014 fixed at $412.50 by 5 May 2014. |
| CATCHWORDS: | COSTS – whether respondent unnecessarily disadvantaged applicant – where respondent’s expert failed to attend conclave – where respondent claimed applicant delayed in providing expert report and alleged conflict of interest by applicant’s expert – where respondent failed to apply to adjourn conclave – where respondent unrepresented – whether respondent failed to act in own best interests Queensland Civil and Administrative Tribunal Act 2009 ss 100, 102 and 107 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 |
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
What is this Application about?
W & E Carlsen Builders claims Mr Steven Tressider and Mrs Melissa Tressider owe $82,004.04 for building work. The Tribunal has made comprehensive directions throughout the application to facilitate the expeditious resolution of the dispute.
One of these directions was to order an Experts’ Conclave in Cairns on 24 February 2014.[1] Because Mr and Mrs Tressider’s expert did not attend, the conclave was adjourned.
[1]Directions dated 6 December 2013 at paragraph 4, confirmed in Directions dated 24 February 2014 at paragraph 3.
The Tribunal has therefore ordered that the costs thrown away of the adjournment be determined.[2]
[2]Directions dated 24 February 2014 at paragraph 5.
What is the Tribunal’s jurisdiction to award costs?
Costs in the Tribunal are not awarded as a matter of course. Each party must bear their own costs[3], unless the interests of justice require the Tribunal to order a party to pay the costs of another party.[4]
[3]Queensland Civil and Administrative Tribunal Act 2009, section 100.
[4]Queensland Civil and Administrative Tribunal Act 2009, section 102.
There is therefore a strong indicator against awarding costs:
Under the QCAT Act the question that 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.[5]
[5]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 at [29].
In deciding this, I may regard prescribed circumstances[6]. Importantly, they are not mandatory and some of these may be more apposite in a particular case:
… although the applicant relies on s 102 and the matters to be taken into account in that section, which are always helpful general principles to apply with respect to costs any award of costs is discretionary.[7]
[6]Queensland Civil and Administrative Tribunal Act 2009, section 102(3).
[7]Urguhart v Partington [2013] QCAT 133 at [106].
The apposite circumstance here is whether a party to the proceeding acted in a way that unnecessarily disadvantaged another party to the proceeding.[8]
Did Mr and Mrs Tressider act in a way that unnecessarily disadvantaged another party?
[8]Queensland Civil and Administrative Tribunal Act 2009, section 102(3)(a).
Mr and Mrs Tressider’s submissions
Mr and Mrs Tressider claim that although the conclave was adjourned because their expert did not attend, they did not act in a way that unnecessarily disadvantaged another party because: the solicitors for Mr Carlsen did not respond to their concern about his expert’s possible conflict of interest; and the solicitors for Mr Carlsen did not provide his expert report until 13 February 2014.
Both these submissions appear to be attempts to explain why Mr and Mrs Tressider’s expert did not attend the conclave. However, they do not explain why Mr and Mrs Tressider did not apply to the Tribunal to adjourn the conclave. This would have obviated or at least reduced the costs to Mr Carlsen and the unnecessary incursion upon the Tribunal’s limited resources.
Events leading up to adjournment of conclave
On 29 November 2013, Mr Tressider wrote to the solicitor for Mr Carlsen requesting the identity of his expert. On 9 December 2013, Mr and Mrs Tressider claim to have again raised the issue with the Member presiding at the “resumed” Compulsory Conference. However, the only Directions from the Compulsory Conference in December are dated 6 December 2013 and relevantly direct Mr Carlsen to file and give his expert report to Mr and Mrs Tressida by 31 January 2014.
On 20 December 2013, Mr Tressider wrote to the Registry with a courtesy copy to the solicitor for Mr Carlsen that relevantly states:
We also have concerns regarding the identity of the expert witness provided by the applicant.
We also note that we required that the applicant identify in writing the name and qualifications of their expert in order to determine whether a conflict of interest exists in this matter with regard to the evidence of the expert and prior dealings that we may have had with him.
We have asked in writing for the identity of the expert prior to the inspection that took place on the 7th December 2013 but have not been provided with any details. We should like these details as soon as possible in order that the applicant can enter into the appropriate considerations without unnecessary additional expense.
On 7 February 2014, Mr Tressider again wrote to the Registry with a courtesy copy to the solicitor for Mr Carlsen that claimed he had not been served with Mr Carlsen’s expert report and relevantly states:
If there is no report, I would seek to advise my expert accordingly as there may be additional costs associated with his consideration and preparation for the expert conclave scheduled in two weeks’ time.
On 14 February 2014, Mr Tressider again wrote to the Registry with a courtesy copy to the solicitor for Mr Carlsen that claimed he had only received Mr Carlsen’s expert report on 13 February 2014, details the basis for his perception of a conflict of interest and relevantly states:
This information would have been available prior to the engagement of the expert by the applicant if the professional exchange of correspondence was observed, with the consummate opportunities available…
It is our belief that a perceived or actual conflict of interest may arise or be proven by these events or subsequent evidence and we will act accordingly in response.
On 17 February 2014, the Registry wrote to the parties notifying them that it could not refer correspondence to the Tribunal and referring them to the form to file an application.
On 24 February 2014 – the day of the conclave – Mr Tressider applied to strike out Mr Carlsen’s application for the delay in providing his expert report. The application did not seek an adjournment. Following this and some advice by the Tribunal Registry, at 1.26pm – four minutes before the start of the conclave – he emailed the Tribunal Registry relevantly stating:
I contend that our expert cannot attend due to the actions of the applicant in service of the document which is not proved. I ask that the conclave be postponed and rescheduled in consideration of the information that I have tendered in the application, and the applicant asked to prove service accordingly.
The Tribunal dismissed Mr and Mrs Tressider’s application to strike out and ordered Mr and Mrs Tressider to pay Mr Carlsen’s costs.[9]
[9] Decision dated 10 March 2014.
The solicitors for Mr Carlsen concede failing to respond to the request for information, at least until 31 January 2014.
Responsibility of the parties
Mr and Mrs Tressider appear to have proceeded on the basis of a fundamental misunderstanding of the roles of the parties to the dispute and those of the Tribunal and its Registry. Despite being unrepresented, they have a responsibility to act in their own interests:
The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings.’[10]
[10]Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 at [13].
If Mr and Mrs Tressider had concerns about a possible conflict of interest or Mr Carlsen’s alleged delay in providing his expert report, they could and should have applied for an adjournment well before four minutes before the conclave. Even on their own evidence, they received Mr Carlsen’s expert report and were aware of the expert’s identity by 13 February 2014.
Their correspondence to the Registry is not sufficient compliance with the requirement to file an application:
Parties must assume a responsibility to take care in preparing material upon which they seek to rely, and to lodge the correct application. The forms are not difficult to understand and may even fairly be described as intuitive.[11]
[11]Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 12 at [46].
The Registry is not a legal entity.[12] Moreover, it is not the role of the Registry to receive and respond to requests from parties about the issues or advise parties on how they should proceed:
… sections 28 and 29 (of the Queensland Civil and Administrative Tribunal Act 2009) do not extend to imposing, upon QCAT, an obligation to shore up deficiencies in a party’s initiating application.[13]
[12]Shorten v Bell-Gallie & Brisbane QCAT Registry [2014] QCA 57 at [4].
[13]Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 12 at [43].
Mr and Mrs Tressider’s perception of a conflict of interest of Mr Carlsen’s expert or claiming to not receive his report until ten days before the conclave does not entitle them to simply not have their expert attend the conclave. At no stage did they apply to the Tribunal to adjourn the conclave based on their perception of a conflict of interest or the alleged delay, until their email to the Registry filed as late material to their application to strike out - four minutes before the conclave.
Not only did Mr Carlsen thereby incur unnecessary costs in having his expert unnecessarily attend the conclave, the Tribunal incurred unnecessary expense in having a Member attend:
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.[14]
[14]Tyler v Queensland Building Services Authority (No.2) [2010] QCAT 589 at [9].
By not applying for an adjournment, Mr and Mrs Tressida failed to act in their own interests. They thereby acted in a manner that unnecessarily disadvantaged Mr Carlsen by causing him to incur legal costs when Mr and Mrs Tressider had been in a position to apply for an adjournment, no fewer than ten days before the conclave.
Lack of legal representation
Mr and Mrs Tressida frequently refer to their lack of legal representation. This does not mean that they have been denied natural justice. All parties to the application were granted leave to be legally represented.[15] They have been provided with the opportunity to seek their own legal advice and have chosen not to avail themselves of this opportunity:
This must be a cautionary tale to any litigant who wants to proceed in relation to a legal grievance against another party and to issue proceedings against that party. (The applicant) had the opportunity to get legal advice and chose not to. I would compare it to the situation where the surgeon takes out the wrong kidney of the patient – there may have been no intention to cause harm but it is simply unacceptable. Issuing proceedings is a very serious step for anyone and the Applicant must at least have the right respondent. If the Applicant is unsure then he can get advice. There is nothing to suggest that (the applicant) did not have the opportunity to get legal advice. The evidence is that he had that opportunity.[16]
[15]Decision dated 9 August 2013.
[16]James v Robins [2012] QCAT 400 at [23].
Mr and Mrs Tressida had the opportunity to procure legal advice well before the conclave, even allowing for the alleged delay in their receipt of Mr Carlsen’s expert report. A conclave is a serious step in the proceeding – it maximises the benefit of the experts’ involvement in a cost effective way.[17] A party who fails to apply for an adjournment or ensure their expert attends – without legal advice - and simply corresponds directly with the Registry fails to act in their own interests:
The Tribunal Registry rightly states that it cannot provide legal advice… this highlights the fact that the Applicant was being put on notice that he needed to get advice if he did not understand the information…[18]
[17]QCAT Guide to Expert Conferences at [3].
[18]James v Robins [2012] QCAT 400 at [26].
Had Mr and Mrs Tressida applied for an adjournment after receiving Mr Carlsen’s expert report and being notified by their expert of his concerns with the delay, Mr Carlsen’s expert and the Tribunal Member would not have needed to attend the conclave. These costs arise because Mr and Mrs Tressida did not act properly to adjourn the conclave, despite their putative concerns with the expert’s identity and alleged delay.
What are the costs thrown away?
I therefore consider that it is in the interests of justice to require Mr and Mrs Tressida to pay Mr Carlsen’s costs thrown away of the expert’s conclave of 24 February 2014.
The Tribunal is mandated to fix these costs if possible.[19] The solicitors for Mr Carlsen claim an amount of $837.54 comprised of $425.04 legal costs and $412.50 expert costs.
[19] Queensland Civil and Administrative Tribunal Act 2009, section 107(1).
There was no need for Mr Carlsen’s legal representative to attend the conclave, nor are there any Tribunal directions to that effect. I therefore do not consider it reasonable to require Mr and Mrs Tressida to pay the $425.04 claimed for legal costs. I will fix the costs as the costs of the need for the expert to attend, being $412.50.
Orders
For these reasons, the Tribunal orders that Steven Tressida and Melissa Tressida pay to William George Carlsen t/as W & E Carlsen Builders its costs thrown away by the adjournment of the expert’s conclave fixed at $412.50 by 5 May 2014.
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