Bignell v Queensland Building and Construction Commission [2023] QCAT 364

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bignell v Queensland Building and Construction Commission [2023] QCAT 364 PARTIES: DREW BIGNELL (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: OCR065-22 MATTER TYPE: Occupational regulation matters DELIVERED ON: 6 September 2023 HEARING DATE: On the papers DECISION OF: Senior Member Aughterson ORDERS: 1. There be no order as to costs. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where review of decision by respondent to refuse the applicant a Builder- Open licence – where in the course of the proceedings before the Tribunal the respondent reconsidered its decision and issued licence – where application for review subsequently dismissed – whether an order for costs should be made in favour of applicant Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 100, s 102 Bignell v Queensland Building and Construction Commission (Queensland Civil and Administrative Tribunal, Senior Member Aughterson, 25 May 2023) Pound v Queensland Building and Construction Commission [2023] QCAT 298 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) -- 1 of 5 -- 2 REASONS FOR DECISION [1] The present question for determination is whether the applicant should be awarded costs in this matter. On 24 March 2022, he filed an application to review a decision of the respondent to refuse the issue of a licence in the class of ‘Builder-Open’. In essence, the given reason for the decision was that the applicant had refused to provide additional information required by the respondent to support the application. It was said that on that basis the respondent could not be satisfied that the applicant met the technical and experience requirements for the licence. [2] On 10 October 2022, in the course of the proceedings before the Tribunal, the respondent stated that it had received further information that satisfied it that the technical requirements had been met. On 18 December 2022, the applicant provided the respondent with further reports addressing the applicant’s relevant experience, as a consequence of which the respondent stated that it was now also satisfied as to the prescribed practical experience. On 24 January 2023, the respondent advised the applicant that having regard to the new information provided in the course of the Tribunal proceedings it had decided to approve the licence application. [3] In accordance with directions made by the Tribunal, on 23 February 2023 the respondent filed its reconsideration decision in the Tribunal, approving the licence application (with effect from 23 January 2023) on the basis of the new material. [4] On 27 February 2023, the applicant advised the Tribunal that he did not wish to withdraw his application to review and that he wished the matter to proceed to a final hearing. He submitted that it was in the public interest for the matter to be heard by the Tribunal as the respondent had adopted improper processes and had not followed the legislative framework in the awarding of licences. He further submitted that his ‘costs should also be allowed’. [5] In dismissing the application to review pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), in an unreported decision of 25 May 2023 the Tribunal stated:1 … by s 20(2) of the QCAT Act, the Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits. It has no jurisdiction to conduct an enquiry into the processes of the respondent. The Tribunal does not conduct a review in the nature of judicial review. In conducting a merits review, the Tribunal is not concerned with identifying and correcting any error made on the part of the respondent. Rather, its function is to conduct a fresh hearing on the merits and, generally, on the basis of the material before the Tribunal and the law as it stands at that time. [6] The Tribunal also stated: In any event, the Tribunal does not have jurisdiction to continue with the proceeding. By s 17(1) of the QCAT Act, the Tribunal’s review jurisdiction is the jurisdiction conferred by an enabling Act; in the present case, the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’). By s 86(1) of the QBCC Act, the Tribunal has jurisdiction to review a decision to refuse 1 Bignell v Queensland Building and Construction Commission (Queensland Civil and Administrative Tribunal, Senior Member Aughterson, 25 May 2023). -- 2 of 5 -- 3 an application for a licence. There is no provision allowing the Tribunal to review a decision to grant a licence. Where the decision-maker sets aside the earlier decision and substitutes another decision, then by s 23(4)(a) of the QCAT Act the substituted decision is taken to be the reviewable decision. The review before the Tribunal may continue where the substituted decision is such that it remains a reviewable decision in terms of s 86 and s 87 of the QBCC Act. However, where the licence has now been issued, as here, so that there is no existing decision to refuse an application for a licence and there is no longer a ‘reviewable decision’, the jurisdiction of the Tribunal falls away. [7] The applicant filed submissions in support of allowing costs on 5 June 2023, while the respondent filed submissions in response on 22 June 2023. The applicant filed further submissions in reply on 29 June 2023. [8] The applicant was not legally represented in the proceedings. He claims the filing fee for both the initial licence application to QBCC and the QCAT filing fee, as well as $23,800 for ‘administrative and consulting services’ provided by Dr Jackie Campbell. At a directions hearing held on 6 December 2022 leave was given for Dr Campbell ‘to assist’ the applicant in the proceedings. The invoice attached to the applicant’s submissions gives a billing period of March 2022 to June 2023, though none of the itemised hours are dated. The legislation and applicable principles [9] Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides: 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. [10] Section 102 of the QCAT Act provides: (1) The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order. (2) … (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; -- 3 of 5 -- 4 (e) the financial circumstances of the parties to the proceeding; (f) anything else the tribunal considers relevant. [11] The interplay between s 100 and s 102 of the QCAT Act was considered in Pound v Queensland Building and Construction Commission,2 where it was stated (footnote omitted): [41] The objects of the QCAT Act, including the issues of access to the Tribunal and the minimisation of costs, provide an appropriate reference point for the operation of s 100 of the QCAT Act and, in that context, may be placed in the balance along with the s 102(3) interests of justice considerations. The interplay between s 100 and s 102(3) may well vary, depending on the impact a costs order in the case at hand might have on access to justice and the other objectives in s 3 of the QCAT Act. [42] For example, the prospect of an adverse costs order is likely to weigh heavily on any decision to seek review of certain administrative decisions, which will potentially have a significant impact on access to justice. On the other hand, in relation to body corporate disputes involving significant monetary or other considerations, the interests of justice in awarding costs, as alluded to by Keane JA in Tamawood, might weigh heavily in favour of a costs order. In those circumstances, the disincentive of a potential costs order in bringing a matter before the Tribunal is less likely to loom so large and, accordingly, considerations of access to justice might weigh relatively lightly in the balance against a costs order. [43] On that basis, the underlying concern of s 100, in particular of not impeding access to justice and maintaining a low cost jurisdiction, may simply be placed in the balance along with the s 102(3) considerations, with the weight accorded to it being largely dependent on the nature and scope of the proceedings. [12] As noted in Pound, the impact of a costs order on access to justice and other considerations arising under the objects of the QCAT Act may vary, depending on the nature of the proceedings. In the context of proceedings to review the decision of a regulatory body, as in the present case, it was stated in Pound at [48] (footnote omitted): That a regulatory body should not generally be burdened with a costs order when acting to protect professional or industry standards in the public interest has been recognised in this State. In Fuge v Queensland Building and Construction Commission, it was stated: I reiterate that under the QBCC Act, the Commission has a dual function in administrating the Act. That is, to protect the public interest and also the interests of building contractors. In doing so it must not be reticent in discharging its obligations for fear of adverse costs orders against it if it is unsuccessful in responding to an application for review of its decisions unless it can be demonstrated, there is some specific conduct on the part of the Commission, that would ‘so compellingly’ overcome the strong contra-indication against costs orders in s 100 of the QCAT Act. I am not satisfied that this is the case here. [13] That must be balanced with the ‘interests of justice’ considerations arising under s 102(3) of the QCAT Act. Those factors are shown at [10], above. 2 [2023] QCAT 298. -- 4 of 5 -- 5 [14] The applicant refers to what he says is a ‘significant miscarriage of justice’ arising from a ‘failure of process and absence of transparency within the licensing system’ of the respondent. He also refers to ‘unmeritorious and factually incorrect arguments to the Tribunal’ made on behalf of the respondent. He further states that he ‘was not afforded natural justice and was put to the expense of challenging an unmeritorious or flawed decision made by the QBCC’. [15] In response, the respondent details the further information, relevant to technical and experience requirements for the licence, that it says were required of the applicant, but which he declined to supply. The respondent also details the further information that was provided by the applicant in the course of the Tribunal proceedings and which then satisfied it that the technical and experience requirements had been met. It is submitted that any costs incurred by the applicant arose from the applicant’s failure to provide the required information prior to the making of the respondent’s initial decision. In terms of s 102(3)(d)(ii) of the QCAT Act, it is further submitted that the applicant did not genuinely attempt to enable and help the decision-maker to make the decision on the merits. [16] The respondent also submits that the licence application fee paid to the respondent was incurred prior to the commencement of the Tribunal proceedings and does not relate to the proceedings before the Tribunal. It is also noted that that fee would be payable in any event where an application is made to the respondent for a licence, regardless of the outcome of the application. In relation to the invoice for $23,800, it is submitted that leave was given for Dr Campbell to ‘assist’ the applicant in the proceedings on the basis that she was providing support to the applicant. [17] The difficulty with the submissions of the applicant is that they rely on what is said to be the failures in the processes of the respondent and its ‘unmeritorious’ initial decision. Leaving to one side the proper role of the Tribunal in conducting a merits review, as referred to above, the present matter did not proceed to a hearing and there was no opportunity to test the claims made by the applicant. [18] In terms of s 102(3) of the QCAT Act, there is no other factor referred to or other available material which might be placed in the balance in favour of a costs order. [19] In the circumstances, including the considerations referred to at [11]-[12] above, no order for costs should be made. -- 5 of 5 --