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
Latoudis v Casey (1990) 170 CLR 534
Re Tai-Ao Aluminium Australia Pty Ltd [2004] FCA 1488
Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303
Minister for Immigration and Ethnic Affairs v Kutovic (1990) 21 FCR 193
Cachia v Hanes (1994) 179 CLR 403
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Gardiner v Queensland Building Services Authority [2011] 326
PRD Nationwide v de Abaitua (No 2) [2010] QCATA 33
Robertson and Robertson v Airstrike Industrial Pty Ltd [2011] QCAT 120

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCAT 363
Decision Date

CaseChat Overview and Summary

Adam Webb applied to the Queensland Civil and Administrative Tribunal (QCAT) for an order that the Queensland Building Services Authority (QBSA) pay his costs in obtaining a qualification from the Royal Institute of Chartered Surveyors, applying for building licenses, obtaining a diploma in building, obtaining an advanced diploma of building and construction, and bringing the Tribunal action. The QBSA opposed the application and submitted that each party should bear their own costs. The key issue for determination was whether 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. The Tribunal found that the QBSA's misleading statement induced Mr Webb to take the course of action he did in undertaking the RICS qualification and applying for licenses relying upon that as the technical qualification. However, having regard to the relevant factors under section 102 of the QCAT Act, most of which were not in favour of an award of costs, the interests of justice did not point compellingly to a costs award such as to overcome the starting position that each party bear their own costs. Further, there were no exceptional circumstances justifying an award of costs to Mr Webb, an unsuccessful party. The application for costs was dismissed and each party was ordered to bear their own costs.

The outcome of this case reinforces the principle that a costs order is not a de facto damages award and is generally only awarded to compensate a successful party for the expense of legal proceedings. An unsuccessful party will only be awarded costs in exceptional circumstances, and even then the order must be justified by the relevant factors under the legislation. The Tribunal found that the QBSA's misleading statement was not conduct that occurred during the proceedings and therefore did not found a claim for costs under section 48 of the QCAT Act. Additionally, Mr Webb's prospects of success in his review application were not good given the state of the law in relation to estoppel. As a result, the Tribunal dismissed Mr Webb's application for costs and ordered that each party bear their own costs.

Orders