Brading v Suskova [2017] QCAT 373

CITATION: Brading v Suskova [2017] QCAT 373 PARTIES: Ralph Charles Brading (Applicant) v Natasha Suskova (Respondent) APPLICATION NUMBER: OCL051-17 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown DELIVERED ON: 3 November 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The Tribunal record is corrected to reflect that the applicant is Ralph Charles Brading. 2. The application for a non publication order is refused. 3. Ralph Charles Brading must pay to Natasha Suskova costs in the amount of $304.43 within fourteen (14) days. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – where costs sought by respondent – where the dispute was not a complex dispute under the Body Corporate and Community Management Act 1997 (Qld) schedule 3 – where Tribunal does not have jurisdiction – where the applicant body corporate manager does not have authorisation to commence proceedings – where fixed costs granted to the respondent Body Corporate and Community Management Act 1997 (Qld), s 227(1)(a), Schedule 3 -- 1 of 8 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2), s 100, s 102(1), s 102(3)(a), s 102(3)(b), s 102(3)(c), s 102(3)(e), s 102(3)(f), s 107(1) Uniform Civil Procedure Rules 1999 (Qld), Schedule 3, Part 3 Cachia v Hanes (1994) 179 CLR 403 Chiropractic Board of Australia v Jamieson [2013] QSC 77 Dp v Law Society of the Australian Capital Territory [2006] ACTSC 61 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Reihana v QCAT Client Services Manager & Ors [2017] QCA 117 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). REASONS FOR DECISION [1] On 12 September 2017 I ordered the dismissal of the Application to resolve a complex dispute. My reasons were given orally at the conclusion of the hearing. I made directions for the parties to file and exchange submissions on costs. The issue of costs now falls for determination. [2] Before addressing the submissions by the parties it is appropriate to place into some context the circumstances that have led the parties to the position in which they find themselves. [3] An application to resolve a complex dispute was filed on 20 July 2017. The applicant is identified in the application as Ralph Charles Brading. Mr Brading is noted in the application to be the ‘chairperson of the body corporate committee’. [4] Mr Brading and Ms Suskova are each lot owners in Sunny Waters CTS 22181, a scheme comprising 3 lots. [5] The application sought orders that a draft management statement for the scheme be prepared. The application refers to this course of action having been ‘agreed on at the last Annual General Meeting’.1 Ms Suskova was named as the sole respondent. The application is worded in an opaque and confusing way. Suffice it to say, the application suggested Ms Suskova had acted in a manner calculated to circumvent relevant by-laws and previous orders made following adjudication applications to the Office of the Commissioner for Body Corporate and Community Management. 1 Affidavit of Ralph Brading dated 29.06.17. -- 2 of 8 -- 3 [6] The application for a complex dispute was dismissed by me on the basis that the body corporate had not authorised the commencement of the proceedings and that even if it had resolved to give such authorisation, the matter was not a complex dispute2 in relation to which the Tribunal had jurisdiction to hear and decide. I found that there may be a dispute between Mr Brading and Ms Suskova3 however it is not one in relation to which the Tribunal had jurisdiction. [7] The body corporate for a community title scheme may only start a proceeding if authorised in particular stated ways set out in the Body Corporate and Community Management Act 1997 (Qld) (“BCCM Act”). By s 312(1)(b) of the BCCM Act a special resolution by the body corporate is required to authorise the commencement of a proceeding. [8] It is clear that Mr Brading was never authorised to act on behalf of the body corporate in relation to this proceeding and that the body corporate never authorised the commencement of the proceeding. Mr Brading conceded as much at the hearing of the application for miscellaneous matters on 12 September 2017. Indeed, it is clear that the application for a complex dispute filed by Mr Brading was not one brought by the body corporate at all, but by Mr Brading in his personal capacity. [9] Mr Brading says that he was not aware that he was not authorised by the body corporate to commence the proceeding or at the very least not until the hearing of the application on 12 September. I do not accept this submission. The parties have been in dispute for some time relating to a range of issues. Mr Brading is the chairperson of the body corporate committee. If Mr Brading understood the nature and extent of his powers and obligations as chairperson of the committee then he acted in obvious disregard of those powers and obligations in commencing this proceeding. If Mr Brading was not aware that he could not simply commence the proceeding purportedly on behalf of the body corporate without the necessary authority, then he did so recklessly and without taking any appropriate steps to inform himself as to what actions he could, and could not, take on behalf of the body corporate. [10] It is no excuse for Mr Brading to say, as he does, that in filing the application he was acting as advised by the Tribunal registry. Firstly, I do not accept Mr Brading’s submission that he was advised by registry staff to file the application for a complex dispute. This was Mr Brading’s decision. Secondly, Tribunal registry staff do not provide advice to parties as Mr Brading appears to assume. Thirdly, the parties are responsible for the conduct of proceedings in the Tribunal and must take responsibility for the decisions they make in conducting the proceeding. [11] The application filed by Mr Brading was without merit. The dispute between the parties is not a complex dispute in relation to which the Tribunal has 2 As defined in BCCM Act, Schedule 3. 3 BCCM Act, s 227(1)(a). -- 3 of 8 -- 4 jurisdiction. Mr Brading was never authorised to commence the proceeding on behalf of the body corporate. [12] Other than as provided under the QCAT Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.4 The Tribunal may make an order requiring a party to pay all or a stated part of another party’s costs if the Tribunal considers the interests of justice require the making of such an order.5 [13] The QCAT Act sets out a number of matters the Tribunal may have regard to in deciding whether to make an order for costs including: 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);6 b) the nature and complexity of the dispute the subject of the proceeding;7 c) the relative strengths of the claims made by each of the parties to the proceeding;8 d) the financial circumstances of the parties to the proceeding;9 e) anything else the tribunal considers relevant.10 [14] The approach to costs in the Tribunal can be found in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2):11 Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100. [15] The circumstances relevant to the exercise of the discretion to award costs are those found at ss 102(3), 103, 104 and 105 of the QCAT Act. There is in every case a matrix of circumstances to be weighed in exercising the discretion to award costs. There is no hierarchy of considerations nor any particular weighting to be afforded to one matter over others, however the overarching consideration is the interests of justice. Each case must be considered according to its own facts and circumstances. [16] In my view, the interests of justice in this case do point compellingly to an order for costs in Ms Suskova’s favour. Mr Brading acted in complete disregard of his obligations as chairperson of the body corporate committee 4 QCAT Act, s 100. 5 Ibid s 102(1). 6 Ibid s 102(3)(a). 7 Ibid s 102(3)(b). 8 Ibid s 102(3)(c). 9 Ibid s 102(3)(e). 10 Ibid s 102(3)(f). 11 [2010] QCAT 412, 5 [29]. -- 4 of 8 -- 5 in purportedly commencing the proceeding on behalf of the body corporate. He filed an application in respect of a dispute which the Tribunal was not authorised to hear and decide and purportedly on behalf of the body corporate which had never authorised the commencement of the proceeding. [17] Following the filing of the application for a complex dispute by Mr Brading, the Tribunal made directions for the further conduct of the proceeding. The directions issued by the Tribunal incorrectly referred to the applicant as the Body Corporate. The Body Corporate was never the applicant. At all times, including in the application for a complex dispute filed by Mr Brading, the applicant was the applicant. The Tribunal record incorrectly referred to the body corporate as the applicant. The Tribunal record should be amended to reflect that the applicant in the proceeding is Mr Brading and I order accordingly. [18] Mr Brading is responsible for the payment of Ms Suskova’s costs. [19] What costs should be allowed? Ms Suskova’s claim for costs can be summarised as: a) Tribunal expenses $ 221.63 b) Photocopying/printing expenses $ 481.80 c) Travelling expenses $ 271.92 d) Attorney’s time $2,970.00 e) Humiliation and embarrassment unspecified [20] I will deal with each of the claims in reverse order. [21] Ms Suskova is not entitled to any amount for claimed humiliation and embarrassment. Such a claim does not fall within any category of recoverable costs. [22] Ms Suskova claims an amount of $2,970.00 being the time spent by her attorney, Mr North, who is appointed pursuant to a power of attorney, in acting on Ms Suskova’s behalf responding to the application. Mr North is not a legal practitioner. The amount claimed is particularised as: Estimated 45 hours @ Body Corporate secretarial rate of $66…..$2970 [23] It is well established that a litigant in person may recover reasonably incurred disbursements and witness expenses, including costs and disbursements for legal work done by others, but may not recover travelling expenses or loss of earnings.12 A litigant in person cannot recover professional remuneration or profit costs from the unsuccessful party. 12 Cachia v Hanes (1994) 179 CLR 403. -- 5 of 8 -- 6 [24] In Dp v Law Society of the Australian Capital Territory, the ACT Supreme Court held: 13 It is common ground that costs are intended to compensate a successful litigant for expense incurred in conducting the proceedings and that, since unrepresented litigants will not have incurred legal fees, it would be inappropriate to make an order for costs that would effectively enable them to profit from the proceedings. On the other hand, whilst unrepresented litigants are not usually entitled to be paid for the time they have devoted to the proceedings, they may be entitled to an order for costs so that they may recover out of pocket expenses such as that incurred in photocopying. [25] Ms Suskova says that the time and effort expended by her attorney are still costs borne by the attorney. Ms Suskova says that while her attorney is not a legal practitioner, he has obtained a decision that suggests he has likely expended as much, if not more, time than a lawyer would have in achieving the same outcome. [26] Ms Suskova says that it would not be in the interests of justice if the Tribunal was to refuse the recovery of costs where a successful party is self represented yet permit the recovery of costs where a successful party is legally represented. Ms Suskova’s claim for the recovery of costs for her attorney’s time can be categorised as one under the general law.14 In making this submission, Ms Suskova advances an argument rejected by the Court of Appeal in Reihana v QCAT Client Services Manager & Ors15 where it was held that there was no legitimate means by which the court could uphold Mr Reihana’s claim for costs as a self represented litigant.16 [27] The instrument appointing Mr North as Ms Suskova’s attorney is not before the Tribunal. There is nothing before me to suggest that Mr North was entitled to charge Ms Suskova for the time spent in responding to the application nor that Ms Suskova has incurred any expense in Mr North acting as her attorney in the proceeding. To permit the recovery of the amount claimed for Mr North’s time would be to effectively profit Ms Suskova or Mr North or both. Ms Suskova is not entitled to recover any amount claimed for time spent by Mr North in assisting her in the proceeding. [28] Regarding Ms Suskova’s claim for travel, a self represented litigant:17 … must incur the travelling and parking expenses of attending court to attend to the prosecution or defence of the proceeding involved, but Merrin No 2 denies the recoverability of those expenses as allowable costs on the footing that Cachia and Worchild require that outcome, at least in relation to an item of expense of the same kind as considered in Merrin No 2. 13 [2006] ACTSC 61 [2]. 14 Reihana v QCAT Client Services Manager & Ors [2017] QCA 117 [14]. 15 Ibid. 16 Ibid [18]. 17 Chiropractic Board of Australia v Jamieson [2013] QSC 77 [26]. -- 6 of 8 -- 7 [29] Accordingly, the claim for travel expenses is not allowed. [30] Ms Suskova claims photocopying expenses particularised as ‘printing submissions and supporting evidence & distribution’. The amount claimed is calculated at 55 cents per page. Photocopying and printing expenses incurred by a self represented litigant may be recoverable expenses.18 The amount claimed must be necessary and reasonable. Pursuant to the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), an amount of $0.20 per page is recoverable for copying expenses.19 The UCPR does not apply in the Tribunal however it is provides, in my view, appropriate guidance as to a reasonable amount to allow for photocopying and printing expenses. Ms Suskova is entitled to recover photocopying and printing expenses however the claim should be reduced in line with the amount allowed under the UCPR. [31] Ms Suskova claims expenses incurred in obtaining a copy of the Tribunal file and a copy of the Transcript of the hearing of the Application for miscellaneous matters. The reasons for the decision dismissing the Application for a complex dispute were given by me ex tempore. A self represented litigant may recover the cost of obtaining a copy of a transcript of proceedings to enable the accurate conduct of the matter.20 It was reasonable for Ms Suskova to obtain a copy of the transcript in order to prepare her submissions on costs. Ms Suskova has incurred expenses, verified by receipts attached to her submission on costs, in obtaining copies of documents on the Tribunal file. The recovery of these expenses should also be allowed on the basis that obtaining the copies of the documents has enabled the accurate conduct of the matter by Ms Suskova. [32] The Tribunal must, if possible, fix costs.21 The costs Ms Suskova is entitled to recover are: Copying and printing expenses $ 155.0022 Obtaining copy of transcript $ 151.73 Tribunal copying expenses $ 69.90 TOTAL $ 376.63 [33] Ms Suskova has sought a non publication order. A non-publication order may be made if the Tribunal considers the order is necessary to avoid interfering with the proper administration of justice; to avoid endangering the physical or mental health or safety of a person; to avoid offending public decency or morality; or to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or 18 Chiropractic Board of Australia v Jamieson [2013] QSC 77. 19 Uniform Civil Procedure Rules 1999, Schedule 3, Part 3, claims over $50,000. 20 Op cit 18, [28]. 21 QCAT Act, s 107(1). 22 Reduced by 101 pages (allowance for 4 copies of submissions and evidence) to 775 pages @ $0.20 per page. -- 7 of 8 -- 8 for any other reason in the interests of justice.23 The non publication order sought by Ms Suskova relates to personal medical information. Ms Suskova’s medical condition has been referred to in previous adjudication proceedings, but not the specific details of that condition. A non publication order should only be made in circumstances where s 66 of the QCAT is clearly engaged. The only ground in s 66 that might be relevant to Ms Suskova’s application for a non publication order is s 66(2)(e). Whilst I appreciate that the medical information, the subject of Ms Suskova’s application, may be a matter of some sensitivity for her, it is central to the administration of justice in the State of Queensland that proceedings in courts and Tribunals are open and transparent. I am not persuaded that it is in the interests of justice for a non publication order to be made and I decline to do so. [34] The orders I make are: a) The tribunal record is corrected to reflect that the applicant is Ralph Charles Brading. b) The application for a non-publication order is refused. c) Ralph Charles Brading must pay to Natasha Suskova costs in the amount of $376.63 within fourteen (14) days. 23 QCAT Act, s 66(2). -- 8 of 8 --