Coppens v Waterwise Design Pty Ltd [2015] QCAT 135

CITATION: Coppens v Waterwise Design Pty Ltd [2015] QCAT 135 PARTIES: Josephine Rosalie Coppens (Applicant) v Waterwise Design Pty Ltd (Respondent) APPLICATION NUMBER: BDL375-10 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Favell DELIVERED ON: 30 April 2015 DELIVERED AT: Brisbane ORDERS MADE: The applicant pay the respondent’s costs fixed in the sum of $9023.15 by 4pm 1 July 2015. CATCHWORDS: Building matters – costs Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 86, s 100, s 102, s 107 Commercial and Consumer Tribunal Act 2003 (Qld) s 70, s 71 Queensland Civil and Administrative Tribunal Rules 2009 r 87 Queensland Building Services Authority Act 1991 (Qld) s 77 Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364 Oshlack v Richmond River Council [1998] 193CLR 72 Latoudis v Casey [1990] 170 CLR 534 Knight v FP Special Assets Ltd (1992) 174 CLR 178 Ralacom Pty Ltd v Body Corporate for Paradise Island CTS 17653 (No. 2) [2010] QCAT 412 Tamawood Ltd & Anor v Paans [2005] QCA 111 -- 1 of 10 -- 2 Queensland Building Services Authority v Johnston [2011] QCATA 265 Lyons v Dreamstarter Pty Ltd [2012] QCATA 071 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuit to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] On 29 October 2013 the tribunal dismissed a claim by the applicant for an order that the respondent pay the applicant sums of $63,410.21 and $22,310.15 plus interest. [2] Essential to the claims made by the applicant was a belief by Ms Coppens that the sewerage system installed at her premises is an illegal waste water treatment plant. In each of the orders sought against Waterwise there was an assertion that Mr Clifford Searle supplied false and misleading information so as to ‘divert the course of justice’ and that there was a failure in a statutory duty of care. The claim was partly based on a contention that Mr Searle, on behalf of Waterwise, supplied information to the Hervey Bay City Council contained in an onsite sewerage facility designer compliance statement and a compliance certificate which contained false and misleading information. [3] The tribunal found that Ms Coppens had not established that Mr Searle supplied false and misleading information to the Hervey Bay City Council in the onsite sewerage facility design compliance statement. Further she had not shown that the design was not an appropriate design. The tribunal could not find any evidence of Mr Searle being in breach of any statutory duty of care. The tribunal found that the respondent was engaged to carry out the design of a disbursement area and not an onsite sewerage facility. [4] The respondent Waterwise seeks an order that the Ms Coppens pay its cost of an incidental nature to the application for domestic building disputes. [5] Both parties were given the opportunity to make submissions and provide evidence in respect of that application. Both have done so. [6] Chapter two part 6 division 6 of the QCAT Act deals with costs. Section 100 of the QCAT Act provides that each party usually bears their own costs.1 Section 102 allows the tribunal to make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to 1 Section 100: ‘Other than as provided under this Act or an enabling Act each party to a proceeding must bear the parties own cost for the proceeding’. -- 2 of 10 -- 3 the proceeding if the tribunal considers the interest of justice require it to make the order. [7] Section 102(3) allows tribunal in deciding to award costs to have regard to the following: a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding; b) the nature and complexity of the dispute subject of the proceedings; c) the relative strengths of the claims made by each of the parties to the proceeding; d) for proceeding for the review of reviewable decision; e) the financial circumstances of the parties to the proceeding; f) anything else that the tribunal considers relevant. [8] The jurisdiction to award costs is accompanied by a discretion. Any discretion must be exercised judicially and not arbitrarily, capriciously or so as to frustrate the legislative intent.2 [9] Any costs orders should serve a compensatory function not a punitive one.3 [10] As has been recognised, there is no common law jurisdiction in tribunals to awards costs. The power is entirely a creation of statute.4 [11] As Judge Kingham, Deputy President of QCAT (as her Honour then was), in Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364 said: The public policy intent of the QCAT Act is plain. The tribunal was established as a no costs jurisdiction. That may be departed from where the interests of justice require. The considerations identified in section 102(3) are not grounds for awarding costs. They are factors that may be taken into account in determining whether, in a particular case, the interest of justice require the tribunal to make a costs order. [12] In Ralacom Pty Ltd v Body Corporate for Paradise Island CTS17653 (No. 2) [2010] QCAT 412 the President Justice Wilson said: The phrase “in the interest of justice” was not defined in the Act but is to be construed to its ordinary and plain meaning which obviously confers a broad discretion on the decision maker. [13] Ralacom Pty Ltd v Body Corporate for Paradise Island relied in part on the decision of the court of appeal in Tamawood Ltd and Anor v Paans [2005] 2 Oshlack v Richmond River Council [1998] 193 CLR 72 at 81 per Gaudron and Gummow JJ. 3 Latoudis v Casey [1990] 170 CLR 534 at 543 per Mason CJ, at 563 per Toohey J, at 567 per McHugh J. 4 Knight v F.P. Special Assets Ltd (1992) 174 CLR 178, 193. -- 3 of 10 -- 4 QCA 111, a case decided under the cost provisions of the now repealed Commercial and Consumer Tribunal Act 2003. [14] Commenting on that act President Justice Wilson said in Ralacom Pty Ltd v Body Corporate for Paradise Island: Although those provisions are not analogous to the equivalent provisions under the QCAT Act, the principles found in Tamawood provide guidance about the circumstances in which it may be in the interest of justice for this tribunal to award costs against parties. [15] His Honour considered the wording of the CCT cost provisions and said: The similar QCAT Act provision to section 70 (of the CCT Act) is, it might be said, in terms that more plainly indicate that the legislature has turned its face against awards of costs in this tribunal: s 100 says that “Other than as provided under this Act or enabling Act, each party to a proceeding must bear the parties own cost for the proceeding”. In considering sections 70 and 71 Keane JA (as his Honour then was) referred however to two matters relevant here. His Honour held that the CCT provisions negated the traditional position that costs should prima facie follow the event (unless of course the tribunal considers that another order is more appropriate) and that the nature and extent of the power to award costs could only be discerned by close consideration of the terms of the statute which created and prescribed the occasions and conditions for its exercise. Sections 100 and 102 of the QCAT Act attract the operation of the same principles. Keane JA was of the view that where the complexity of the matter justified legal representation it would not be in the interest of justice to bar the successful party from recovering costs that were reasonably necessary for a satisfactory outcome. That conclusion, here, must be considered in the light of the difference between section 70 of the CCT and section 100 of the QCAT Act. Section 70 speaks of a “main purpose”, but section 100 mandates that parties shall bear their own costs. Section 70 contains, within itself, a reference to the condition of circumstance in which the main purpose maybe subsumed to the interests of justice; s 100 has no such proviso although it appears later, in section 102(1). Under that subsection QCAT has a discretion to make a costs order “…if the tribunal considers the interests of justice require it…” Section 102(3) says that, in decision in whether to award costs, the tribunal may have regard to matters not dissimilar to those set out in section 71 of CCT Act including, in particular for present purposes, the nature and complexity of the dispute and the relative strengths of each parties claims. Under the QCAT Act the question that would 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” points so compellingly to a costs award that they overcome the strong contra- indication against costs order in s 100.” [16] The respondent submits that it is appropriate that the applicant be ordered to pay the respondents costs as assessed in “exhibit CLS1” of an affidavit -- 4 of 10 -- 5 of Cameron Lester Solley filed with the application for costs. The estimate was based on the Magistrates Court scale of costs and is $9,925.47. [17] Section 107 of QCAT Act and section 87 of the QCAT rules provide for the tribunal’s power to fix or assess costs. [18] Section 87 of the rules provides: (1) This rule provides for how costs are to be assessed under section 107 of the Act if a tribunal makes a costs order that requires costs to be assessed under the rules. (2) The cost must be assessed – (a) by an assessor appointed by the tribunal; and (b) the tribunal directs costs to be assessed by reference to the scale of costs applying to a Court – by reference to the scale of costs directed by the tribunal. [19] The respondent first submitted that this is a suitable matter for the application of section 102 as an exception to the general presumption against costs. [20] It contended that the nature and complexity of the case supports the making of an order for costs in the respondents favour. [21] It contends that the matter required consideration of a number of issues: (a) the application of the Onsite Sewerage Code, Australian Standards, the Plumbing and Drainage Act, and regulations, and any other relevant legislation and including as to issues of jurisdiction; (b) the construction of the respondent’s retainer with the applicant and whether the respondent complied with the retainer; (c) the applicant’s claim, maintained until the hearing, was high exceeding $85,000.00; (d) the legal effect of Council’s approval of the second respondent’s design on 23 June 2005; (e) whether any misleading or false information had been provided; (f) whether proceedings of the Queensland Ombudsman have any impact upon the proceedings before the tribunal. [22] As is apparent from the reasons given in the decision published on 29 October 2013 those matters were raised by the applicant and considered in some detail. [23] The respondent submits that the relative strengths of the claims made by the parties to the proceeding supports the making of an order in its favour. [24] To support that submission it points to various findings by the tribunal: (a) the work done by the respondent was according to the instruction by the applicant (paragraph [88]); -- 5 of 10 -- 6 (b) there is no evidence to suggest any false or misleading information was provided to the applicant by the respondent (paragraph [67]); (c) the applicant failed to show the respondent’s design did not comply with the relevant Australian Standards (paragraph [67]); (d) the applicant failed to show the respondent’s design was not an appropriate design or there was any negligence associated with the preparation with the design (paragraph [75]); (e) any question as to whether the work was actually done was illegal for the reasons advanced by the applicant did not reflect on the respondent (paragraph [84]); (f) the applicants system had otherwise been working as installed and she had rejected offers by the local council to replace the sand filter and provide the appropriate certificate (paragraphs [82] and [83]); (g) there was, in any event, no connection between the respondents certification documents or the work done on one hand and any losses claimed by the applicant on the other (paragraphs [80], [91] and [93]). [25] Those submissions are correct and in my view reflect the significant problems with the applicant’s case when it was heard. [26] The respondent points to letters written to the applicant in 2011 which it says put the applicant on notice that her claim was being defended because it was unmeritorious and inviting the applicant to withdraw and advising that costs would be sought from her if she failed to do so. By a letter in June 2013, the respondent noted earlier decisions in the tribunal and the Queensland Court of Appeal against the applicant and put her on notice of its view that the application was misconceived and bound to fail. [27] In my view, as the reasons show, the application was misconceived and had little prospect of success. [28] The respondent contends that it reasonably incurred costs in opposing the application even though the respondent’s lawyers were not granted leave to represent the respondent at the hearing. [29] The applicant, in response to the submissions concerning costs by the respondent contends that she was at a disadvantage during the whole of the proceeding in QCAT. She partly bases that contention on the fact that the respondent had a solicitor attend the hearing even though no leave was given for that solicitor to appear at the hearing. She also contends that she was disadvantaged because English is her second language, she had no idea of the legal jargon used, she was not provided with an interpreter, she is 74 years of age and she is unable to cope with lies being told by the respondent about herself. [30] In this regard I note that during the hearing I had no difficulty understanding Ms Coppens and the proceeding was explained to her throughout. She has represented herself on a number of occasions in proceedings at QCAT including appeals and in the Queensland Court of -- 6 of 10 -- 7 Appeal. I saw no indication that she did not understand what was happening and in fact she displayed knowledge of what she was contending. [31] In her submissions she complains about parts of the decision and said that it seemed to her that the applicant’s case has been thrown out without a final hearing. That is not so. [32] She also complains of QCAT employee harassment the day before the final hearing. I do not know about the accuracy of that contention but that has little to do with this application for costs. [33] The applicant contends that she was very stressed during the hearing because of the close presence of the respondent’s solicitor. I did not observe any such stress. She claims she was intimidated and was belittled by the respondent’s lawyer. I did not observe any such conduct but in any event it is difficult to see what relevance that contention has on the question of whether there should be a costs order made in favour of the respondent. [34] The applicant says that she is of the opinion that Mr Searle gave information to QCAT and/or the sitting member and that none of the information was supplied to her. [35] Any information that was supplied to me was during the course of the hearing or was filed in QCAT and provided to the parties. Any documents that were handed up to the tribunal during the hearing were all subject to me being assured that the other side had a copy of that material. Any material that was handed up and became an exhibit was marked as an exhibit. [36] In further response to the application for costs the applicant asserts that she was demoralised during the hearing and that there was discrimination against women in the building industry. [37] She makes reference to the objects under the QCAT Act, the need to ensure proper understanding and regard and directions made by the tribunal. She asserts that lies have been told to the tribunal which QCAT has not addressed. She complains that QCAT ‘has now after 3 years of legal wrangling’ dismissed the applicant’s application of November 2010 and generally complains about the finding. [38] Most of the matters contained in the applicant’s submissions are not relevant to the matters to be taken into account on the application for costs. [39] Relevantly however the applicant contends that the claim for $9,920.47 in costs is half of the applicant’s annual income as an aged pensioner supported by Centrelink. -- 7 of 10 -- 8 [40] The applicant submits that the respondent is “accountable to” section 48 of the QCAT Act because, she says, ‘he acted deliberately causing major disadvantages to the applicant’. [41] She seeks an order which seems to require the striking out of the application for costs because the respondent has said to acted in a way that unnecessarily disadvantaged her by not complying with the tribunal order or direction without reasonable excuse. The basis for that submission appears to be the mistaken belief that because the respondent was not given leave to be represented, he could not in any event seek legal advice. In my view there is no basis shown for such an order. [42] It is however relevant to consider whether it was reasonable for the respondent to seek such advice. In my view, because of the nature of the case being advanced against it by Ms Coppens it was reasonable for the respondent to seek legal advice. [43] Ms Coppens seeks an order that the order made by me be dismissed and that she be awarded her claim in full because of an application of section 48 of the QCAT Act. There is no basis for such an order. [44] In further submissions made by the respondent it is said that the “enabling Act” for this proceeding within the meaning of that term in section 100(1) of the QCAT Act was the Queensland Building and Construction Commission Act 1991 (QBCC Act). [45] The relevant costs provision in the QBCC Act is section 77(2)(h) which provides that the tribunal may award costs. [46] It was submitted that such a provision prevails over the cost provision of the QCAT Act and the tribunal has a broad general power to be exercised judicially to award costs in the proceeding and the starting principle in exercising that discretion is that it is “just and reasonable” that the party who causes another to incur costs should reimburse the other party for them.5 [47] The respondent relies on the comments on Justice McHugh in Oshlack v Richmond River Councils when he said that the traditional exceptions to the usual orders of costs focus on the conduct of a successful party which disentitle it to the beneficial exercise of the discretion. Examples may include unnecessarily protracting the proceeding, succeeding on a point not argued, or prosecuting the matter solely for the purpose of increasing the costs recoverable. [48] The respondent says it engaged in no such disentitling conduct and sought at an early stage and throughout the proceeding to bring the proceeding to an early conclusion without a need for a hearing. 5 Lyons v Dreamstarter Pty Ltd [2012] QCATA 071 at [11]. -- 8 of 10 -- 9 [49] The application lodged by Ms Coppens was made as a domestic building dispute. As set out in the reasons for the decision Ms Coppens has had a continuing theme in the various applications and appeals. Essential to her claim was her belief that the sewerage system installed at her property was an illegal wastewater treatment plant. As such the dispute was concerned with work associated with the erection, construction, removal or re-siting of a detached dwelling and accordingly domestic building work. The dispute was thus a building dispute as defined in Schedule 2 of the QBSA Act and the tribunal had jurisdiction to determine the dispute under an enabling act namely the then QBSA Act. [50] Consideration was given to the question of jurisdiction in the reasons. Although the dispute could be characterised as a domestic building dispute Ms Coppens contended, in part, for orders which the tribunal could not make. The Tribunal had earlier made such a finding but Ms Coppens modified her claim at the hearing. In my view her contentions at the hearing, were at least, in part, a rehash of matters which had been decided or at least were considered earlier. [51] In my view the respondent was forced to a hearing which had little prospects of success and that poor prospect was apparent from previous litigation and findings by other bodies as set out in the reasons. [52] The reasons make it clear that Ms Coppens failed to establish that, in so far as negligence or misrepresentation was alleged, it related to the performance of building work. [53] In my view the reasons advanced on behalf of the respondent in letters to Ms Coppens prior to the hearing should have put Ms Coppens on notice that her claim had poor prospects. Nevertheless even after the various previous findings and appeals she persisted with her claim. [54] In my view, because of section 77 of the QBCC Act, a relevant enabling Act, section 100 of the QCAT Act is modified and the tribunal is empowered to make a costs order that is just and reasonable. [55] If I am wrong in that regard I would in any event find that the interests of justice require the making of a costs order in favour of the respondent. I make that finding after considering the contention concerning Ms Coppens’ income. Other than what was asserted in her submission, that is the extent of my knowledge with respect to her financial circumstance. [56] In making that finding I consider that the hearing was one of some complexity, the prospects of success were poor and it was in the circumstances set out above reasonable for the respondent to seek legal advice. The applicant had notice that her prosects were poor but proceeded with the claim. [57] Section 107 of the QCAT Act requires the tribunal to fix the costs if possible. The respondent has provided a list of costs based on the -- 9 of 10 -- 10 Magistrates Court scale of costs. That scale is appropriate given the extent of the claim made. The claim for costs seems reasonable and it is possible to fix the costs. [58] The applicant is ordered to pay the costs of the respondent fixed in the sum of $9,023.15 by 4pm 1 July 2015. -- 10 of 10 --