Cullen v Ogden [2020] QCATA 33

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cullen v Ogden [2020] QCATA 33 PARTIES: STEPHEN WILLIAM CULLEN (Applicant) v GAVIN OGDEN (Respondent) APPLICATION NO: APL285-18 ORIGINATING APPLICATION NO: MCD0363-18 Southport MATTER TYPE: Appeals DELIVERED ON: 20 March 2020 HEARING DATE: 18 March 2020 HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member ORDERS: The application for leave to appeal is refused. CATCHWORDS: APPEAL – APPLICATION FOR LEAVE TO APPEAL – motor vehicle accident – where compensation awarded – where second and separate action for costs advanced – where costs claimed irrecoverable at law – where action improperly split – whether abuse of process – where cause of action estoppel – Anshun estoppel - whether proceedings misconceived - where application for leave to appeal refused Queensland Civil and Administrative Tribunal 2009 (Qld) sections 32, 47, 102, 143 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 83 Blair v Curran (1939) 62 CLR 464 Mansfield v Fokas [2018] NSWSC 249 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 -- 1 of 4 -- R v Balfour; ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26 Sahin v National Australia Bank Ltd [2012] VSCA 317 SZDCF v Minister for Immigration and Citizenship [2007] FMCA 1391; [2007] FCA 2001 Wall v Halford (No 2) [1960] QWN 51 APPEARANCES & REPRESENTATION: 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 [1] On 1 November 2017 the Applicant (`Cullen’) commenced an action in the Tribunal claiming compensation for damage to his motor vehicle in a collision with one owned and driven by the Respondent Ogden (`the First Action’). [2] Actions of that kind are within the jurisdiction of this Tribunal.1 [3] The First Action was successful and a counterclaim by Ogden was dismissed. Cullen was awarded compensation of $6,485.40, including costs.2 Action split [4] However, Cullen considers that he was entitled to costs well in excess of those allowed in the First Action.3 So on 21 May 2018 he launched another claim (`the Second Claim’) for an amount of $3,840, including accident investigator’s fees of $1,900 and $1,900 for legal fees. [5] On 7 August 2018 an Adjudicator struck out the Second Action as misconceived4 and beyond the Tribunal’s jurisdiction. Reasons for that decision were published on 20 August 2018. [6] Cullen now seeks leave to appeal against that decision. [7] His application for leave was filed on 26 October 2018. Prima facie that date is well outside the limitation period prescribed by the Act.5 However, Cullen claims that he did not receive notice of the decision until 2 October 2018 and on 20 May 2019 the Tribunal confirmed that no extension of time was necessary.6 1 QCAT Act s 11; Schedule 3 definition of minor civil dispute, clause (c). 2 The award was made on 16 February 2018: Submissions of Respondent filed 5 April 2019 paragraph 7. 3 Namely, the filing fee: QCAT Rules s 83(b). 4 QCAT Act s 47(1)(a). 5 QCAT Act s 143(3). 6 Appeal Tribunal directions 20 May 2019 paragraph 1. -- 2 of 4 -- Grounds of appeal [8] The proposed grounds of appeal read as follows: Gavin Ogden was not insured until 20 minutes after the accident. NRMA should not have been allowed into the hearing to represent him. It gave him an unfair advantage. My cost [sic] was necessary to prove to the tribunal the truth. Gavin Ogden or NRMA cost [sic] were to hide the truth. That is why I believe I should be compensated for these costs. It’s Gavin Ogden’s lies that caused all these expenses not the accident. It could have been dealt with at the hearing but Sam Harvey stopped it when he said, Stephen Cullen does not have any expenses. This is a separate matter from the car accident. This is a deliberate attempt to get out of his responsibility by committing fraud, then perjury and using his son to hide the truth. [9] The application does not particularise any appellable error on the Adjudicator’s part. Nor does it specify the costs claimed. However, some details may be gleaned from the reasons for the decision in question, namely $220 paid to a company known as Kitruno Pty Ltd, solicitors’ fees of $1,900, and accident investigators’ charges.7 In all, the claim is $3.840.22. [10] No question arises under section 102 of the QCAT, in view of section 102(2). [11] It is regrettable that scurrilous accusations of lies, fraud and perjury have been bandied about – all the more so, considering that the First Action was successful. There is also a complaint about Cullen’s lack of legal representation; ironically, if he had been represented, his costs would have been significantly higher. The costs recoverable - Rule 83 [12] The first difficulty that Cullen faces in these proceedings is section 100 of the QCAT Act: Other than is provided in this act or an enabling Act each party to a proceeding must bear the party’s own costs for the proceeding. [13] There is no relevant enabling Act, and under the QCAT legislation, the power to award costs is strictly limited: Costs that may be awarded for minor civil dispute other than a debt claim: [T]he tribunal may award costs to a party to a proceeding for a minor civil dispute other than a debt claim ... only to order the party to pay to the applicant [ie for costs] the amount of any prescribed fee paid by the applicant on filing the application for the proceeding.8 [14] Cullen’s original action, as a claim for unliquidated damages, is not a debt claim. [15] Cullen was awarded his filing fee in the original proceedings. 7 Transcript of hearing 20 August 2018 (`T’) page 2. 8 QCAT Rules s 83(b). -- 3 of 4 -- Improper `splitting’ [16] Rule 83 is not Cullen’s only difficulty. He has improperly split his cause into two distinct proceedings.9 That is an abuse of process.10 Applications for costs are not stand-alone causes of action. In the interests of economy and fairness a single claim (principal and ancillary relief) may not be so divided. So far as possible, all claims arising out of a particularly set of circumstances must be dealt with in one proceeding.11 Cullen should have included his claim for costs in the original proceedings (although, as already explained, it would inevitably have been rejected). For what it was worth, it merged in the original decision made on 16 February 2018.12 Absence of legal representation at the first hearing does not affect this principle.13 Conclusion [17] This proceeding14 is aptly described as misconceived and an abuse of process.15 The Adjudicator very properly struck it out. There is no prospect of a successful appeal. The application for leave to appeal will be refused. ORDER The application for leave to appeal is refused. 9 Southport MCD applications Q718/17 and Q363/18 10 R v Balfour; ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26; Mansfield v Fokas [2018] NSWSC 249. 11 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Sahin v National Australia Bank Ltd [2012] VSCA 317. 12 Blair v Curran (1939) 62 CLR 464 at 532; Wall v Halford (No 2) [1960] QWN 51. 13 SZDCF v Minister for Immigration and Citizenship [2007] FMCA 1391; [2007] FCA 2001. 14 MCD Q363/18, APL 285-18. 15 Mansfield v Fokas [2018] NSWSC 249; QCAT Act s 47(1). -- 4 of 4 --