Williams v Queensland Building and Construction Commission - [2016] QCATA 5

CITATION:

Williams v Queensland Building and Construction Commission [2016] QCATA 5

PARTIES:	Neil Joseph Williams (Appellant)
V
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

APL096-15

MATTER TYPE:

Appeals

HEARING DATE:

4 November 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member O’Callaghan
Member Hughes

DELIVERED ON:

7 January 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Neil Joseph Williams shall pay the Queensland Building and Construction Commission’s costs of the appeal and the application for stay on a standard basis calculated on the District Court Scale within 28 days of agreement or assessment.

2. The Queensland Building and Construction Commission shall deliver an assessment of its costs to Neil Joseph Williams by 8 February 2016.

3. Neil Joseph Williams shall deliver any response to the assessment by 8 March 2016.

4. If the parties cannot agree on an amount for costs by 15 March 2016, costs shall be determined by an assessor appointed by the Principal Registrar.

CATCHWORDS:

COSTS – whether in the interests of justice to award costs – where leave to appeal refused – where relative strengths of parties’ cases may loom large in later proceedings – where lack of merit in appeal and application for stay – where requiring a successful party to pay all their own costs in meeting arguments fundamentally without merit unnecessarily burdens successful party – where statutory authority primarily funded by members of industry - where responding to unmeritorious appeal directs resources of statutory authority away from other important statutory functions – where not in interests of justice for members of industry to share costs of unmeritorious appeal by one member

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 100, 102, 103

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Body Corporate for Sunnybank v Coming Home Pty Ltd ATF The Coming Home Trust [2014] QCAT 192
Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39
Fox v Percy (2003) 214 CLR 118
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77
Lida Pty Ltd v Miller & Anor [2011] QCATA 219

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412

Waterford v The Commonwealth (1987)

163 CLR 54

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 (Qld).

REASONS FOR DECISION

What is this Application about?

Neil Joseph Williams is a builder who unsuccessfully applied for leave to appeal the Tribunal’s decision to confirm him as an ‘Excluded Individual’ because he was a Director, secretary or ‘influential person’ of a company with a liquidator appointed.
The Appeal Tribunal considered that all but one of Mr Williams’ grounds of appeal lacked merit. The Appeal Tribunal considered the remaining ground did not affect the learned Member’s ultimate finding and therefore did not lead to a ‘substantial injustice’.
The Appeal Tribunal therefore refused leave to appeal.
The Queensland Building and Construction Commission has now applied for its costs…

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: [2016] QCATA 5
Decision Date: 7 January 2016

CaseChat Overview and Summary

The appeal arose from proceedings before the Queensland Building and Construction Commission, where Neil Joseph Williams was the appellant and the Queensland Building and Construction Commission was the respondent. Williams sought to challenge a decision of the Commission, and subsequently applied for a stay of the Commission's decision pending the appeal. The Court of Appeal considered whether it was in the interests of justice to award costs in relation to the appeal and the application for stay, given that leave to appeal had been refused and there was a lack of merit in both the appeal and the application for stay.

The court held that it was not in the interests of justice for Williams to bear the full burden of the costs associated with the appeal and the application for stay. The court noted that the statutory authority, primarily funded by members of the industry, would be unduly burdened if it had to respond to an unmeritorious appeal, as this would divert resources away from other important statutory functions. Furthermore, it would not be just for members of the industry to share in the costs of an unmeritorious appeal by one member. Consequently, the court determined that it was appropriate for the Commission to bear a portion of the costs.

The court ordered that Williams was to pay the Commission's costs of the appeal and the application for stay on a standard basis, calculated on the District Court Scale, within 28 days of agreement or assessment. The Commission was directed to deliver an assessment of its costs to Williams by 8 February 2016, with Williams to respond by 8 March 2016. If the parties could not agree on the amount for costs by 15 March 2016, an assessor appointed by the Principal Registrar would determine the costs.

Orders

Orders of the court

2. The Queensland Building and Construction Commission shall deliver an assessment of its costs to Neil Joseph Williams by 8 February 2016.

3. Neil Joseph Williams shall deliver any response to the assessment by 8 March 2016.

4. If the parties cannot agree on an amount for costs by 15 March 2016, costs shall be determined by an assessor appointed by the Principal Registrar.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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