Burgess v Queensland Building and Construction Commission [2018] QCAT 118

CITATION: Burgess v Queensland Building and Construction Commission [2018] QCAT 118 PARTIES: Richard Patrick Burgess (Applicant) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: OCR125-17 MATTER TYPE: General administrative review matters HEARING DATE: On the papers decision HEARD AT: Brisbane DECISION OF: Member Olding DELIVERED ON: 26 April 2018 DELIVERED AT: Brisbane ORDERS MADE: The Application for miscellaneous matters (costs) filed by the Queensland Building and Construction Commission is refused. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant for administrative review filed Notice of Withdrawal eight days before scheduled hearing – where applicant failed to advise respondent – where breakdown in internal procedures caused withdrawal not to be processed expeditiously – where respondent sought costs – whether interests of justice required a costs order to be made Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 3 -- 2 REPRESENTATIVES: APPLICANT: represented by Robinson Locke Litigation Lawyers RESPONDENT: unrepresented REASONS FOR DECISION [1] The Queensland Building and Construction Commission has applied for a costs award against Mr Burgess from 15 February 2018 because Mr Burgess failed to inform the Commission that he had filed a Form 58, Notice of Withdrawal of Application or Referral on that date, resulting in the Commission incurring unnecessary costs in preparing for a hearing scheduled for 28 February 2018 and attending at the Tribunal for that purpose. [2] Mr Burgess in turn filed an application seeking dismissal of the Commission’s application. [3] I have decided to refuse the Commission’s application for costs. [4] My reasons follow. Facts [5] The following facts are not in contention: a) Mr Burgess applied for review of a decision of the Commission. b) On 30 November 2017, at a directions hearing that Mr Burgess attended, the review was listed for hearing on 23 February 2018. c) On 9 February 2018, the Commission notified Mr Burgess of the witnesses that the Commission would require for cross-examination at the hearing. d) On 12 February 2018, the Commission filed and served an outline of its opening address in preparation for the hearing. e) Thereafter the Commission continued to prepare for the hearing. f) On 15 February 2018, Mr Burgess sought to withdraw his application for review, without notifying the Commission. g) On 23 February 2018, the Commission attended the hearing; present were Emily Roberts (solicitor of Robinson Locke Litigation Lawyers), June Blaney (the Commission’s decision-maker and instructing officer) and Darren Girling (a Commission building inspector based in Southport who travelled to Brisbane for the hearing). -- 2 of 3 -- 3 [6] When Mr Burgess failed to appear for the hearing, I asked the Tribunal’s hearing support officer to telephone him. Mr Burgess advised the hearing support officer that he had electronically filed a Notice of Withdrawal on 15 February 2018. The hearing support officer then advised the Commission representatives of this. [7] The Commission accepts, and it was subsequently established by registry staff, that Mr Burgess did indeed attempt to file a Notice of Withdrawal on 15 February 2018. A breakdown in internal processes regrettably resulted in it not being dealt with expeditiously. [8] Mr Burgess has also advised that he telephoned the registry on two occasions – 19 February and 21 February 2018 – to follow up receipt of a stamped copy of the withdrawal, but received no response before the date set for the hearing. Legislative framework [9] Under s 100 of the QCAT Act, the usual rule is that each party bears their own costs. [10] However, the Tribunal may make a costs order if it considers the interests of justice require it to make the order: s 102(1). In deciding whether to make an order, s 102(3) sets out a number of factors to which the Tribunal may have regard, including whether ‘a party is acting in a way that unnecessarily disadvantages another party’: s 102(3)(a). Consideration [11] It is true that, as the Commission notes, Mr Burgess failed to advise the Commission when he filed his Notice of Withdrawal on 15 February 2018 and that the Commission has been disadvantaged by unnecessarily continuing to prepare for the hearing and having its lawyer and officers attend at the Tribunal on the day scheduled for the hearing. [12] It is unfortunate that Mr Burgess did not advise the Commission of the withdrawal of his application. However, he did otherwise take reasonable steps to withdraw his application and was thwarted by a breakdown in internal processing. [13] The interests of justice would not, in my view, be served by an order in favour of a state agency against Mr Burgess for costs incurred after he has endeavoured to bring an end to proceedings by following the Tribunal’s instructions for electronic filing of a Notice of Withdrawal. [14] In the context of an unrepresented applicant who has followed the Tribunal’s process for filing a Notice of Withdrawal, and where there was a breakdown in the Tribunal’s own processes, I do not consider that Mr Burgess’ failure to advise the Commission is sufficient to displace the general rule and, in terms of s 102, require a costs order to be made in the interests of justice. -- 3 of 3 --