Webb v Queensland Building Services Authority (No 2)
[2012] QCAT 363
| CITATION: | Webb v Queensland Building Services Authority (No 2) [2012] QCAT 363 |
| PARTIES: | Adam Webb |
| v | |
| Queensland Building Services Authority |
| APPLICATION NUMBER: | OCR087-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 27 June 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra G Deane, Member |
| DELIVERED ON: | 10 August 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for costs is dismissed. 2. Each party bear their own costs. |
| CATCHWORDS : | Application for costs – unsuccessful applicant – self represented party – claim for personal exertion and outlays before and after proceedings commenced – unnecessary disadvantage – whether relevant conduct required during the proceedings Queensland Civil and Administrative Tribunal Act 2009, ss 48, 100, 102 Queensland Building Services Authority Act 1991, ss 77, 86, 87 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Adam Webb (in person) |
| RESPONDENT: | Queensland Building Services Authority represented by Mr E Bird (in house legal officer) |
REASONS FOR DECISION
Background
Mr Webb unsuccessfully applied to the Queensland Building Services Authority (QBSA) for a Medium Rise contractor’s licence and a Site Supervisor – Open licence. The QBSA refused both licences on the grounds that Mr Webb did not meet the technical qualification and experience requirements.
Mr Webb unsucessfully applied to the Tribunal to review these decisions.
Central to Mr Webb’s case was that before he embarked on obtaining appropriate technical qualifications he made lengthy enquiries in 2008 as to appropriate technical qualifications, explained to the QBSA his proposal to seek these qualifications through the Royal Insititute of Chartered Surveyors (RICS) and received an email from the QBSA which represented that he ‘would need to hold a formal qualification as a Chartered Surveyor to meet the legislative technical requirement for Builder Open’.[1]
[1] Exhibit SOE4 to the Applicant’s Statement of Evidence filed 4 August 2011.
In reliance on this statement Mr Webb embarked upon a course of action to obtain the qualification as a Chartered Surveyor from RICS and thereby expended significant sums of money and hours of time.
I found that the misrepresentation could not operate to prevent the QBSA or the Tribunal standing in its place from exercising the statutory discretion to be satisfied that the relevant technical requirements had been met.[2]
[2] [2012] QCAT 145.
Mr Webb applies for an order that the QBSA pay his costs in:
a)obtaining the RICS qualification $18,546.80[3]
b)applying for Building licences $ 2,920.70
c)obtaining a Diploma in Building $ 8,778.00
d)obtaining an Advanced Diploma of Building and Construction (Management) – yet to be incurred $ 6,000.00
e)bringing the Tribunal action $11,860.00
[3]The amount itemised at paragraph 21 of Mr Webb’s Submissions dated 3 May 2008. However the amounts itemised at paragraph 9, 10 and 11 add to $17,590.80.
A significant portion of the amounts claimed are in respect of Mr Webb’s personal exertion and in relation to actions taken prior to commencement of the Tribunal proceedings.
Mr Webb calculates the amount claimed for personal exertion by:
a)using a charge out rate of $80 per hour which it is submitted is approximately 2/3s of his 2008 consulting charge out rate; and
b)providing estimates of time expended in various activities.
Some amounts claimed are in respect of outlays incurred. Most of these outlays relate to amounts incurred prior to commencement of the Tribunal proceedings.
The only outlays claimed in relation to the Tribunal proceedings are the filing fee in the sum of $255 and an amount of $300 in respect of ‘stationary/printing/binding/postage of materials’.
No evidence to verify Mr Webb’s charge out rate, time spent or the outlays incurred have been filed in support of the amounts claimed. There is no evidence as to when the stationary etc costs were incurred.
The Tribunal accepts that a filing fee to commence the review application was incurred in the sum of $255.
No amount has been claimed by Mr Webb in relation to costs of obtaining legal advice in relation to the Tribunal proceedings. At the oral hearing of this matter Mr Webb informed the Tribunal that he had not expended any amounts on obtaining legal advice.
Mr Webb’s initial submissions[4] are more in the nature of submissions for damages for the misleading statement made to him by a QBSA staff member than in the nature of submissions for costs.
[4] Dated 3 May 2012.
The QBSA contends that the appropriate order is that each party bear their own costs[5] as there are no factors sufficient to “point so compellingly to an award that they overcome the strong contra-indicator against costs in section 100.”[6]
[5] Section 100 QCAT Act.
[6]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [29].
Submissions
Mr Webb submits that it is in the interests of justice[7] that the QBSA pay his claimed costs which he incurred only because of the misleading statement. He did not refer the Tribunal to any decided cases where an unsuccessful party obtained the benefit of a costs order. Mr Webb submits that sections 100 and 102 of the QCAT Act do not expressly say that only a successful party is entitled to an award of costs.
[7] Section 102 QCAT Act.
Mr Webb’s submission is in effect that because the Tribunal did not provide him with a remedy on the review application it ought to impose a significant costs order on the QBSA to hold the QBSA accountable for having made the misleading statement.
The QBSA submits:
a)the costs application is to be determined under the QCAT Act[8];
[8] Sections 100 and 102.
b)the function of a costs order is to compensate a successful party for the expense of the legal proceedings[9] and is not to be ordered as a de facto damages award;
c)the usual principle that ‘costs follow the event’ is displaced by section 100 of the QCAT Act;
d)section 102 of the QCAT Act sets out certain factors to be considered and acknowledges that the matter has some complexity of law and facts but contends that Mr Webb’s prospects were weak having regard to the case law regarding estoppel;
e)section 48(2)(c) of the QCAT Act does not ground an award of costs as any disadvantage must be during the course of the Tribunal proceedings rather than before the proceedings commenced;
f)the general law principle is that only in exceptional cases will a successful respondent be ordered to pay an unsuccessful applicant’s costs[10] and that this general law principle creates a double hurdle for Mr Webb in light of section 100 of the QCAT Act;
g)there was no order as to costs made in other cases in which the principle that an estoppel cannot prevent the relevant decision maker from exercising the statutory discretion was accepted;[11]
h)there is no aggravating circumstances which distinguish these fact circumstances from the other estoppel cases relied upon;
i)if it was found to be an exceptional circumstance then a public authority that makes an incorrect statement would be exposed to either adhering to the statement and acting ultra vires or paying the costs of the proceedings;
j)it is well established that no costs are payable relating to the time and exertion of a litigant in person in preparing or attending a hearing even if successful.[12] There is no clear provision in the QCAT Act or in the QCAT Rules which displaces the well established principle;
k)actual out of pocket expenses are recoverable in principle if a costs order is made.
[9] Latoudis v Casey (1990) 170 CLR 534.
[10] Re Tai-Ao Aluminium Australia Pty Ltd [2004] FCA 1488.
[11]Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303; Minister for Immigration and Ethnic Affairs v Kutovic (1990) 21 FCR 193.
[12] Cachia v Hanes (1994) 179 CLR 403.
Many of the QBSA’s submissions were made at the oral hearing it requested. Mr Webb complained that the QBSA making submissions this way disadvantaged him, a self represented party, without a legal background as he was unable to meaningfully respond with submissions to rebut the propositions advanced.
The Tribunal has carefully considered the submissions and the cases to which the QBSA referred and has conducted further research of its own.
Discussion and Decision
The QBSA Act is the relevant enabling act. Section 77(h) of the QBSA Act grants to the Tribunal a power to award costs in relation to the Tribunal’s power to resolve disputes. The Appeal Tribunal has previously found that this discretion is a broader discretion to award costs than the one found in the QCAT Act.[13]
[13] Lyons v Dreamstarter Pty Ltd [2011] QCATA 142.
Section 77 of the QBSA Act relates to building disputes and does not in my view relate to proceedings for review.
The Tribunal’s powers in relation to reviews are set out in sections 86 and 87 of the QBSA Act. These provisions do not include a provision in relation to the award of costs.
In these circumstances I find that the enabling Act does not otherwise provide[14] and therefore the application for costs is to be determined under the QCAT Act.
[14] Section 100.
The usual function of a costs order is to compensate a party for the expense of legal proceedings and in the usual course that party is the successful party.
I accept the QBSA’s submission that no costs are payable relating to the time and exertion of a litigant in person in preparing or attending a hearing even if successful and that there is no clear provision in the QCAT Act or in the QCAT Rules which displaces that principle.
Mr Webb’s claim for costs must therefore be restricted to outlays incurred and in usual circumstances to outlays incurred during the proceedings or at least relating to the proceedings.
The Tribunal has been unable to locate any decided cases where the Tribunal has ordered costs in favour of an unsuccessful party. In a jurisdiction where even a successful party is not guaranteed of its costs this is perhaps not surprising.
The Tribunal declined to waive the filing fee retrospectively for an unsuccessful applicant in Gardiner v Queensland Building Services Authority[15]. In that case the review application was bound to fail and was struck out.
[15] [2011] QCAT 326.
In PRD Nationwide v de Abaitua (No 2)[16] the President waived prospectively the necessity for paying a further filing fee and stated:
“The fact the current proceedings have no continuing utility is the product of two errors: first, on the part of Mr de Abaitua, in bringing an application for determination of a minor debt when his claim was not, in truth, of that kind; and, secondly, on the part of the delegate of the Principal Registrar, who failed to point out this error to him and, then, incorrectly gave him a decision by default. For the latter reason he ought be excused any filing fee on his new application, if he wishes to take that course.”
[16] [2010] QCATA 33.
In Verna Trading Pty Ltd v New India Assurance Co Ltd[17] the Appeal Division of the Supreme Court of Victoria refused leave to appeal a costs decision in favour of an unsuccessful plaintiff. The Court confirmed that exceptional circumstances are required. In that case the defendant had refused to disclose the basis of its defence until the first day of the hearing. If the basis of the defence had been disclosed it is possible that the plaintiff would not have commenced proceedings. In light of the defendant’s unreasonable conduct the trial judge exercised his discretion to award costs in favour of the unsuccessful plaintiff.
[17] [1991] 1 VR 129.
The QBSA’s conduct in this matter is not analogous to that conduct.
It is necessary to consider the matters referred to in section 102(3) of the QCAT Act, to the extent they are relevant to a particular case, to determine if the interests of justice point so compellingly to a costs award to overcome the starting position that each party bear their own costs for the proceeding.[18]
Whether a party is acting in a way that unnecessarily disadvantages another party[19]
[18] Section 100 QCAT Act.
[19] QCAT Act, ss 48(1)(a)-(g), 102(3)(a).
This factor was not expressly relied upon by Mr Webb until raised by the Tribunal during the course of the hearing.
The Tribunal has been unable to locate any decided cases which support the proposition that the disadvantage referred to in section 48 of the QCAT Act which may found an award of costs relates to conduct prior to the proceedings having been commenced.
The Tribunal has previously found in Robertson and Robertson v Airstrike Industrial Pty Ltd[20] that:
“All of the examples of causing unnecessary disadvantage referred to in section 48(1), are things that may occur during the conduct of a proceeding. The matters to be taken into account under section 48(3) support this interpretation. As a matter of statutory construction, it is clear that section 48 applies in respect of causing unnecessary disadvantage in the course of conducting proceedings before the tribunal.
Accordingly, the submissions of both parties which relate to matters occurring prior to the commencement of the proceedings, including any alleged delay in making the claim, are irrelevant and are not considered further.”
[20] [2011] QCAT 120.
In these circumstances I am not satisfied that the QBSA’s conduct in making the misleading statement having been conduct which occurred prior to the proceedings commencing can found a claim for costs under section 48 of the QCAT Act.
In relation to the conduct of the QBSA during the proceedings the only matter which might found a claim for causing unnecessary disadvantage relates to the exchange between the parties in the days prior to the review hearing where Mr Webb appeared to wish to discontinue the proceedings without a hearing but the QBSA convinced him to proceed to seek relief which only a judicial member could grant.
If that conduct was sufficient to found a claim then there does not appear to be any costs which Mr Webb claims which were incurred as a consequence of his continuing with the proceedings for which he could validly claim.
The filing fee had already been incurred and there is no evidence in relation to when the stationary costs etc were incurred but it is more likely than not that most, if not all, of them had been incurred by that point in time, being only days prior to the hearing.
This is not, therefore, a factor in favour of an award of costs.
The nature and complexity of the dispute[21]
[21] Section 102(3)(b) QCAT Act.
The review application involved quite complex matters of law and fact. The QBSA acknowledge this.
This is a factor in favour of an award of costs.
Relative Strengths of the claims[22]
[22] Section 102(3)(c) QCAT Act.
Given the state of the law in relation to estoppel Mr Webb’s prospects of success in holding the QBSA and the Tribunal in its place to the misleading statement were not good. Mr Webb’s reliance on this aspect of his case meant that he had not lead much evidence in relation to the equivalency of his qualifications to those that would have been acceptable. His prospects of satisfying the Tribunal as to equivalency were therefore also not good.
This is not a factor in favour of an award of costs.
Whether Mr Webb was afforded natural justice[23]
[23] Section 102(3)(d)(i) QCAT Act.
There is no evidence before the Tribunal that Mr Webb was not afforded natural justice in his application for a licence.
Whether Mr Webb genuinely attempted to enable and help the Decision-maker to make the decision on the merits[24]
[24] Section 102(3)(d)(ii) QCAT Act.
There are no matters before this Tribunal to suggest that Mr Webb did not make genuine attempts to assist the QBSA in the original decision making.
The financial circumstances of the parties[25]
[25] Section 102(3)(e) QCAT Act.
Mr Webb gave limited evidence of his financial circumstances. That evidence was that he would not be entitled to expect legal aid due to his income.
There is no express evidence as to the QBSA’s financial circumstances, although as a statutory body its financial resources are likely to be more extensive than those of Mr Webb.
Anything else that the Tribunal considers relevant[26]
[26] Section 102(3)(f) QCAT Act.
Mr Webb was unsuccessful in his review application.
This is not a factor in favour of an award of costs.
Conclusion
The QBSA’s misleading statement induced Mr Webb to take the course of action he did in undertaking the RICS qualification and applying for licences relying upon that as the technical qualification.
It is perhaps natural that upon a refusal Mr Webb would seek a review of the decision in this Tribunal but he was not obliged to seek the review.
I am not satisfied that the estoppel cases[27] referred to by the QBSA are distinguishable from this one. In those cases the unsuccessful parties were not awarded their costs.
[27]Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303; Minister for Immigration and Ethnic Affairs v Kutovic (1990) 21 FCR 193.
It is unfortunate that Mr Webb did not seek legal advice as to his prospects of successfully reviewing the decision prior to filing his review application or to seek advice as to whether he may have had better prospects in relation to a different remedy for the misleading statement in a different forum.
It is also unfortunate that Mr Webb chose to bring a costs application without reviewing any of the published decisions or seeking advice in relation to the types of matters and circumstances which might support such an application. Again he was not obliged to apply for a costs order.
This Tribunal is a creature of statute and may only act in ways it is empowered by legislation to act. It is not able ‘to do justice’ in an arbitrary way because a party is in some way aggrieved by the actions of the other party.
In my view having regard to the above section 102 factors most of which are not in favour of an award of costs, the interests of justice do not point compellingly to a costs award such as to overcome the starting position that each party bear their own costs.
Further I am not satisfied that there are exceptional circumstances justifying an award of costs to Mr Webb, an unsuccessful party.
It is appropriate that each party should bear their own costs.
Orders
The application for costs is dismissed.
Each party bear their own costs.
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