Chandra v Queensland Building and Construction Commission [2016] QCATA 53

CITATION: Chandra v Queensland Building and Construction Commission [2016] QCATA 53 PARTIES: SURESH CHANDRA (Appellant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (Respondent) APPLICATION NUMBER: APL058-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Carmody Kenneth Barlow QC DELIVERED ON: 20 April 2016 DELIVERED AT: Brisbane ORDERS MADE: THE APPEAL TRIBUNAL ORDERS THAT: The appellant pay 80% of the respondent’s costs of this appeal, to be assessed on the standard basis at the District Court scale. CATCHWORDS: APPEAL – OCCUPATIONAL REGULATION MATTER – BUILDING AND CONSTRUCTION – PROFESSIONAL DISCIPLINE – COSTS – where the appellant was partially successful, but substantially unsuccessful in the appeal – what order for costs should be made Queensland Civil and Administrative Tribunal Act 2009 ss 100, 102 Better Homes Queensland Pty Ltd v O’Reilly [2013] QCATA 122 Grasso & Anor v CMG Consulting Engineers Pty Ltd (No. 2) [2011] QCATA 326 Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601 -- 1 of 7 -- 2 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Tamawood Ltd v Paans [2005] QCA 111 Williams v Queensland Building and Construction Commission [2016] QCATA 5 APPEARANCES and REPRESENTATION: 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 Carmody J [1] I have read the reasons of Member Barlow QC and agree with the order he proposes. Member Barlow QC Introduction [2] On 22 February 2016, this tribunal determined this appeal. The appellant was partially successful and the tribunal invited the parties to make submissions on costs. The parties accepted that invitation. The appellant submits that the respondent should pay his costs of the appeal, or alternatively that there be no order as to costs. The respondent submits that the appellant should pay its costs of the appeal, together with its costs of an earlier stage of the proceeding. [3] For the reasons set out below, I consider that the appropriate order is that the appellant pay 80% of the respondent’s costs of the appeal, to be assessed on the standard basis at the District Court scale. The nature and history of the proceeding [4] The proceeding was a disciplinary matter, in which the respondent had sought and obtained penalties against the appellant for breaches of his obligations as a building certifier. By order of the tribunal, he was disqualified for life from applying for a building certifier’s licence, he was ordered to pay compensation and he was ordered to pay a penalty of $10,000. [5] In his appeal, which was commenced on 31 January 2014, the appellant appealed only from the order of disqualification. However, in an amended application to appeal filed in June 2015 and in his submissions to the appeal tribunal, he also contended that the monetary penalty was excessive, especially in addition to the disqualification, and sought to have it set aside. Counsel appearing for him at the hearing of the appeal sought leave to amend the appeal to appeal against the penalty and leave was granted. -- 2 of 7 -- 3 The appeal tribunal affirmed the disqualification but set aside the monetary penalty. [6] This proceeding has an unfortunately long and complicated genesis and history. Before this appeal was heard, the matter had already been considered by the tribunal at first instance twice, and had been to the appeal tribunal twice and to the Court of Appeal once. In the process, the applicant had sought and obtained leave to commence the appeal out of time. [7] This was also the last of several applications (over a number of years) by the respondent for disciplinary penalties against the appellant. Each of those applications led to findings to the effect that the appellant had failed to conduct himself properly in carrying out his functions as a building certifier and resulted in the imposition of penalties on him, including two periods of suspension. These facts are relevant to costs only in that they reflect on the likelihood of success of the appeal and the costs consequences that may result from an unsuccessful appeal. Costs in this tribunal [8] The principles on which this tribunal acts in considering whether to order that one party pay another’s costs are well established. [9] The starting point for proceedings in the tribunal is that, except as otherwise provided, each party must bear its own costs: s100, Queensland Civil and Administrative Tribunal Act 2009. [10] However, the Act “otherwise provides” in part by s102, which permits the tribunal to order a party to pay some or all of another party’s costs if the tribunal considers that the interests of justice require it to make such an order. Subsection 102(3) sets out a number of matters to which the tribunal may (but need not) have regard in deciding whether to award costs. The phrase ‘in the interests of justice’ is not defined in the Act but is to be construed according to its ordinary and plain meaning, which confers a broad discretionary power on the decision-maker.1 [11] The nature of the tribunal’s discretion under s102 was discussed by Alan Wilson J, in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412. His Honour compared ss100 and 102 of the Act with ss70 and 71 of the Commercial and Consumer Tribunal Act 2003, which governed the discretion as to costs in the predecessor to this tribunal. The principles governing the exercise of the former tribunal’s discretion were set out in the reasons for judgment of Keane JA (as his Honour then was) in Tamawood Ltd v Paans [2005] QCA 111. [12] In Ralacom at [26], Wilson J noted Keane JA’s view that, where the complexity of the matter justified legal representation, it would not be in the 1 Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601 at 613 per Kirby P. -- 3 of 7 -- 4 interests of justice to bar the successful party from recovering costs that were reasonably necessary to achieve a satisfactory income. [13] However, Wilson J went on to note that Keane JA’s conclusion in that respect must be reconsidered in the light of the difference between s70 of the former statute and s100 of the current Act. Section 70 spoke of a “main purpose” to have the parties pay their own costs unless the interests of justice require otherwise, but s100 mandates that parties shall bear their own costs, subject to s102. [14] At [29], Wilson J concluded that under the current 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 s100. [15] In considering costs in the context of an unsuccessful appeal, but in which the appeal tribunal had found that the member below had made an error of law, the appeal tribunal, in Better Homes Queensland Pty Ltd v O’Reilly [2013] QCATA 122 at [13], made the following observations that are apposite to this appeal: (a) The Appellant has not acted in a way that unnecessarily disadvantaged the Respondent. Whilst there is no doubt that the fact the appeal was run at all would cause the Respondent to incur costs, lose time and face the inconvenience and disruption that being involved in litigation entails (a matter which shall be considered separately), given that an error law was found in the decision of the Member at first instance, the Appellant was reasonably justified in commencing the appeal to ventilate the issue of the error of law, and question whether the decision of the Member at first instance was sound in the context of that error. That is a reasonably justifiable course of action, and it should not be seen as pursuing a course of action that has caused unnecessary disadvantage to the Respondent. … (d) The Respondent has been put to the expense of the appeal. The Respondent submits that the Appeal Tribunal is entitled to take this into account under s 102(3)(f) of the QCAT Act. In Grasso & Anor v CMG Consulting Engineers Pty Ltd (No. 2),2 the President, Alan Wilson J, said – The last factor is in my view relevant. Whilst QCAT operates in a different statutory costs environment from the civil courts, it has been accepted there that costs in an appeal may be viewed differently from costs in a proceeding – because, if the appellant fails, the respondent has had to face the additional burden and expense of the appeal in litigation in which he or she has, already, been successful. 2 [2011] QCATA 326 at [13]. -- 4 of 7 -- 5 [16] It is also relevant that the respondent is a statutory authority with important duties of public protection in an industry of great importance to the general public. The conduct of the appeal [17] The appellant pursued a large number of grounds in his conduct of the appeal. The grounds relied on in written submissions filed on his behalf included that there was a reasonable apprehension that the member hearing the original application was biased; that there had been a breach of natural justice in the conduct of the matter; that the decision was an improper exercise of the member’s power, in that the member had failed to take into account relevant considerations, had taken into account irrelevant considerations, and had made a decision (imposing a lifetime disqualification) that was so unreasonable that no reasonable person could have made it; and that the member had made other errors of law. [18] At the hearing, counsel appearing for the appellant abandoned the allegation of a reasonable apprehension of bias and did not pursue the assertion of a breach of natural justice. His primary focus was on the asserted excessive nature of a lifetime disqualification. [19] In the end, the appellant failed in that primary focus of his appeal: that is, against the lifetime disqualification from applying for a licence. His disciplinary history was relevant to that decision. He succeeded in the appeal against the monetary penalty on the basis that it was excessive in the light of the disqualification. [20] The majority of the submissions concerned whether the circumstances justified a lifetime disqualification. The appeal against the penalty was really on the basis that it was excessive if the appeal against the disqualification was unsuccessful. The latter part of the appeal took little time. Other factors [21] In the submissions on costs on behalf of the appellant, the following submissions were made on the factors relevant to the tribunal’s discretion that are set out in subsection 102(3) of the Act. I express my views on each below. a) There were complex issues of law to be considered, with counsel appearing for both parties. I accept that these factors tend toward (although they are not determinative of) an appropriate costs order being made (rather than each party bearing its own), subject to any other relevant factors. b) The appellant was significantly successful and so had a strong claim. In my view, although his success on the issue of the monetary penalty was significant, that success was principally a consequence of his failure to succeed on what was clearly the main issue – that of his -- 5 of 7 -- 6 disqualification. His grounds of appeal (other than on the monetary penalty) were either abandoned at the hearing or unsuccessful. So if one compares his success on one issue with his failure on the other (and on a number of submissions in support of the appeal), his success may properly be seen to be limited. c) The result of the appeal is that the appellant has been and will remain unable to work in his chosen occupation and thus (I infer that he submits) he must be seen to have only limited financial resources. But, while he has lost the ability to work in his chosen occupation, there was no evidence that he is not able to work in related occupations, nor is there any evidence of his particular and current financial position. On the other hand, the respondent is a statutory authority that presumably is well-resourced, although it submitted (without evidence) that it is primarily funded by members of the building industry rather than the State and that responding to appeals that are fundamentally without merit directs resources away from its other important statutory functions, including educative functions to assist the industry as a whole. It submitted that it is not in the interests of justice that other members of the industry share the costs of an unmeritorious appeal.3 However, the case relied on by the respondent for these submissions was one in which the appeal tribunal dismissed the appeal completely and held that all but one of the grounds of the appeal before it lacked merit. While the latter may be said of this appeal, it was not completely unsuccessful. d) The appellant noted that the tribunal may consider the history of the appeal from January 2014 to be relevant. In this respect I note that: (1) the primary decision was made on 22 November 2013 (after a re-hearing, following the first decision - made on 16 November 2012 - being set aside on appeal on 15 May 2013); (2) the appeal was not filed until 31 January 2014, with an application for an extension of time within which to commence the appeal; (3) the application for an extension of time was initially refused on 26 February 2014; that decision was set aside by the Court of Appeal on 16 December 2015; and a fresh decision, granting an extension, was made on 28 April 2015;4 (4) the appeal was heard on 14 October 2015. 3 In these respects, the respondent quoted from and relied on a passage from Williams v Queensland Building and Construction Commission [2016] QCATA 5 at [14]. 4 I note that the formal order of the tribunal on that occasion was that the time be extended to 21 January 2014. As the notice of appeal was not filed until 31 January 2014, and it is clear from the tribunal’s reasons that the Deputy President intended that the extension be until 31 January 2014, the date in the formal order was clearly a slip and that is how I treat that decision. -- 6 of 7 -- 7 Apart from noting and regretting the considerable delay that has occurred, I do not consider this history to be particularly relevant to the question of costs. [22] The respondent has sought an order that the applicant pay its costs of the application for an extension of time (after the Court of Appeal’s decision) and of this appeal. [23] In my view, it is not open to this appeal tribunal to make an order concerning the costs of the application for an extension of time. That application was heard by a single member of the tribunal, who did not make (and presumably was not asked to make) any order for payment of the costs of the application before him. That was the occasion on which any submission for an order concerning the costs of that application ought to have been made. There was no appeal from that decision and therefore the issue of the costs of that application is not before this appeal tribunal. Conclusions [24] In my opinion, this is a case in which it is in the interests of justice that costs be awarded. The matters the subject of the appeal were of considerable importance, both to the appellant (as they concerned his livelihood) and to the respondent (in acting for the benefit and protection of the public). The appeal justified the considerable involvement of solicitors and counsel. [25] Although the appellant was partially successful, so the appeal cannot be said to have been completely without merit, he was unsuccessful on the issues that took most of the paper (in submissions) and time (at the hearing) and that, in the end, led to his success on the issue of penalty. In my opinion, that outcome should be broadly reflected in the order for costs. [26] Taking into account all these factors, I consider that the appropriate order is that the appellant pay 80% of the respondent’s costs of the appeal. -- 7 of 7 --