A & GC Lee Pty Ltd v Collier & Anor (No. 2) [2019] QCAT 96

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: A & GC Lee Pty Ltd & Collier & Anor (No. 2) [2019] QCAT 96 PARTIES: A & CG LEE PTY LTD ATF LEE SUPERANNUATION FUND (applicant) v MARK NORMAN COLLIER (first respondent) PAULA MAREE COLLIER (second respondent) APPLICATION NO/S: RSL162-18 MATTER TYPE: Retail shop leases matter DELIVERED ON: 8 April 2019 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: 1. The proceeding is dismissed. 2. A & CG Lee Pty Ltd ATF Lee Superannuation Fund must pay Mark Norman Collier’s and Paula Maree Collier’s costs fixed in the sum of TWENTY-FOUR DOLLARS AND SEVENTY CENTS ($24.70) within 14 days of this decision. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where costs to be awarded under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where tribunal had no jurisdiction to hear and decide dispute as a result of applicant’s failure to comply with the Retail Shop Leases Act 1994 (Qld) – consideration of s 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether interests of justice require an order for costs to be paid – where parties self-represented – consideration of recoverable outlays – whether travel expenses recoverable Retail Shop Leases Act 1994 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 100, s 102 -- 1 of 4 -- 2 Cachia v Hanes (1994) 179 CLR 403 Re Chambeyron Pty Ltd (No 2) [2017] VSC 410 (3 August 2017) Russo v Russo [1953] VLR 57. REPRESENTATION: Applicant: Self-represented Respondent: Self-represented APPEARANCES: 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 [1] On 19 February 2019 I published reasons in respect of these proceedings.1 In my earlier decision I expressed the view that the applicant’s claim may be characterised as both a retail tenancy dispute under the provisions of the Retail Shop Leases Act 1994 (Qld) (‘RSL Act’) and a minor civil dispute under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). I concluded that the non- compliance by the applicant with the pre-proceedings mediation process mandated by the RSL Act prevents the applicant from proceeding with any part of its claim.2 [2] To ensure that the parties were afforded procedural fairness, both were given the opportunity to make further submissions before any further orders or directions were made by me. [3] The applicant says that the correct respondent is Dalby Video Rentals Pty Ltd. The applicant says that the dispute should be referred to mediation in accordance with the RSL Act. The respondents say that the proceedings should be dismissed, relying upon my earlier reasons. The respondents make no submissions regarding the correct respondent. In addition to seeking the dismissal of the proceedings, the respondents seek their costs fixed in the amount of $1,107.50. In submissions in reply the applicant seeks its costs of the proceeding fixed in the amount of $4,962.30. [4] For the reasons I set out previously, the failure by the applicant to comply with the pre-proceedings mediation process under the RSL Act is fatal to its claim. There is no basis upon which the dispute can now be referred to mediation as sought by the applicant. Mediation is a step that is required to be taken before proceedings in the tribunal are commenced. [5] In circumstances where a proceeding is frivolous, vexatious or misconceived, lacks substance or is otherwise an abuse of process, the tribunal may dismiss the proceeding.3 Here the proceeding may be characterised as lacking in substance. The appropriate order is that the proceeding is dismissed. 1 A & C G Lee Pty Ltd v Collier & Anor [2019] QCAT 30 (19 February 2019). 2 Ibid, [50]. 3 QCAT Act, s 47(2)(a). -- 2 of 4 -- 3 [6] Each party seeks their costs. The applicant’s submissions clearly go beyond seeking the recovery of costs and encompass the damages sought by the applicant in the substantive proceeding. [7] The starting point in any consideration of costs in the tribunal is that, subject to the QCAT Act and the relevant enabling Act, each party must bear their own costs.4 The enabling Act is the RSL Act which makes no provision for awarding costs. Costs therefore fall for consideration under the QCAT Act. [8] The tribunal may make an order for costs if the interests of justice require such an order to be made.5 In deciding whether to award costs, the tribunal may have regard to a number of matters.6 I will consider each of those matters: (a) Whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party – s 102(3)(a). I am not satisfied that either party has acted in a way that has unnecessarily disadvantaged the other party. There has been no deliberate course of conduct by either party to cause any such disadvantage or prejudice to the other party. This is not a factor favouring an order for costs. (b) The nature and complexity of the dispute the subject of the proceeding – s 102(3)(b). The dispute is not a complex one. The issues were straightforward and the quantum modest. The ultimate disposition of the matter turned on the failure by the applicant to comply with the requirement to lodge a dispute notice. This is not a factor favouring an order for costs. (c) The relative strengths of the claims made by each of the parties – s 102(3)(c). I have not been required to assess the strengths of the parties’ claims in the dispute proper. The claim has failed for other reasons. This is not a factor favouring an order for costs. (d) The financial circumstances of the parties – s 102(3)(e). Neither party has made submissions in relation to this consideration. I do not consider this is a factor favouring an order for costs. (e) Anything else the tribunal considers relevant – s 102(3)(f). It is a relevant consideration that the proceeding was commenced by the applicant in circumstances where the result of the failure by the applicant to comply with the RSL Act is that the tribunal has no jurisdiction to hear and decide the dispute. The proceeding was doomed to fail from the outset. I consider this factor favours an order for costs. [9] I conclude that the applicant should pay the respondents’ costs of the proceedings. What costs should be awarded? [10] The ASIC search fees claimed in the amount of $18.00 are reasonable and are allowed. The postage fees claimed in the amount of $6.70 are reasonable and are allowed. There is no evidence before me regarding the amount claimed for photocopying, 4 Ibid, s 100. 5 Ibid, s 102(1). 6 Ibid, s 102(3). -- 3 of 4 -- 4 consumables and stationary nor is the claim particularised in any way. No amount is allowed in this regard. The respondents claim out of pocket expenses associated with travel, accommodation and meals in attending mediation and a directions hearing. A self-represented litigant is entitled only to the costs he or she would receive as a witness fee and not to a fee for the time of observing and instructing.7 A self- represented party may recover travel expenses in his or her capacity as a witness, but not for merely attending to observe or instruct.8 Such costs must be reasonable.9 I decline to allow the claim for the following reasons: the amounts claimed relate to travel, not for the hearing, but to attend a mediation and a directions hearing; the respondents could have attended the mediation and the directions hearing by telephone; there is nothing before me to suggest that the respondents applied to attend either tribunal event by telephone or other remote means; the claim is not reasonable. [11] The appropriate orders are that the proceeding is dismissed and the applicant must pay the respondents their costs fixed in the amount of $24.70. 7 Cachia v Hanes (1994) 179 CLR 403. 8 Russo v Russo [1953] VLR 57. 9 See for example Re Chambeyron Pty Ltd (No 2) [2017] VSC 410 (3 August 2017). -- 4 of 4 --