Board of Professional Engineers of Queensland v Jenkins [2015] QCAT 49

CITATION: Board of Professional Engineers of Queensland v Jenkins [2015] QCAT 49 PARTIES: Board of Professional Engineers of Queensland (Applicant) v Colin Jenkins (Respondent) APPLICATION NUMBER: OCR097-13 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member O’Callaghan DELIVERED ON: 18 February 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for costs is dismissed. CATCHWORDS: PROCEEDURE – COSTS – whether party unnecessarily disadvantaged Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48, s 100, s 102 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 APPEARANCES: 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] This is an application by Mr Jenkins for his costs of attending a directions hearing held in the matter on 30 September 2014. [2] This matter has a lengthy history. In April 2013 the Board of Professional Engineers of Queensland (‘the Board’) filed an application for a disciplinary proceeding against Mr Jenkins. From early in the proceeding -- 1 of 4 -- 2 Mr Jenkins has sought further particulars of the application from the Board. [3] The Board has maintained the position that the particulars are unnecessary but has agreed to and has been ordered to provide the particulars sought. [4] The provision of the particulars was put on hold until the parties participated in a compulsory conference in an attempt to reach agreement on the matter. [5] On 15 July 2014 the Tribunal made an order that the Board provide the particulars by 19 September 2014 and listed the matter for a directions hearing on 30 September 2014. [6] On 18 September 2014 the Board filed an application for an extension of time to file the particulars. The affidavit in support by the solicitor for the Board was to the effect that the delay in the provision of the particulars was as a result of the Board’s expert needing to do site inspections at a number of properties and there had been some delay in getting the authority from the owners to do those inspections. [7] The directions hearing on 30 September 2014 proceeded as scheduled. At that directions hearing the Board pursued its application for an extension of time to deliver the particulars. [8] Mr Jenkins was represented by his solicitor. I granted the extension of time to deliver the particulars in order for the matter to progress. The matter was listed for a further directions hearing and I directed that any application for costs was to be filed within seven days. [9] Mr Jenkins filed an application for his costs of the directions hearing. The Board opposes the application. Both parties have filed submissions. Legislative Framework [10] The starting point in QCAT is that each party must bear their own costs.1 [11] The Tribunal does however have the power to make a costs order if the interests of justice require it.2 [12] The matters that the Tribunal must have regard to when deciding whether to award costs as set out in s 102(3) and include: (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) [13] Section 48(1)(a) to (g) gives examples of how a party may ‘unnecessarily disadvantage another party’ and includes: 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 100. 2 QCAT Act s 102(1). -- 2 of 4 -- 3 (a) not complying with a tribunal order or direction without reasonable excuse; or (b) not complying with this Act, an enabling Act or the rules; or (c) asking for an adjournment as a result of conduct mentioned in paragraph (a) or (b) Mr Jenkins Submissions [14] Mr Jenkins says he should be awarded his costs of attendance at the directions hearing on 30 September 2014. He says the failure to provide the particulars as ordered meant that the directions hearing on 30 September 2014 was unnecessary. [15] He says the applicant has acted in a way that unnecessarily disadvantages him. He says as the particulars were not provided on the due date he was disadvantaged by having to pay the costs of the directions hearing and also had to wait further time to find out about the case that he is facing. The Board’s Submissions [16] The Board referred the Tribunal to the decision of the then QCAT President Justice Wilson in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)3 where in referring to the costs regime in QCAT his Honour noted that the circumstances must ‘point so compellingly to a costs award that they overcome the strong contra- indication against costs orders in s 100’. [17] It says that the circumstances here fall well short of meeting that criteria. [18] It says the failure to provide the particulars on time was due to matters outside the Board’s control namely obtaining authority from homeowners to access the properties and the engineers ability to finalise reports in a timely manner. [19] It says that it must be established that the disadvantage was ‘unnecessary’ and not simply a disadvantage experienced in the usual course of a proceeding.4 [20] The Board submits that because of the reasons for the delay, any disadvantage suffered by Mr Jenkins through the delay of the provision of the particulars and the hearing of the application at the directions hearing on 30 September 2014 was not ‘unnecessary’. [21] At the directions hearing I expressed my dissatisfaction with the Board’s conduct in waiting until the day before the particulars were due to apply for an extension of time (the direction having been made two months earlier). It did not appear to me that the Board had approached the prosecution of 3 [2010] QCAT 412. 4 Citing Queensland Building Services Authority v Johnston [2011] QCATA 265 at [31]; Campbell v Kerry M Ryan Pty Ltd [2014] QCATA 58 at [8]. -- 3 of 4 -- 4 the application with the speed and efficiency that is the statutory objective of proceedings in QCAT. It was inconsiderate to wait until the day before the particulars were due to request an extension when it must have been apparent some time previously that the time frame would not be met. [22] The directions hearing had been listed prior to the filing of application for an extension of time. It was convenient for the Tribunal to deal with the extension of time at the directions hearing. It is arguable in that situation that Mr Jenkins would have had to incur the costs of the directions hearing on 30 September 2014 in any event because it had already been listed. [23] In his application he says that the following directions hearing in December 2014 would not have been necessary if the particulars had been supplied. That may be the case however it is noted that the Tribunal ordered that the costs of that directions hearing be reserved. Accordingly that argument can be made at a later time. [24] Whilst I am not convinced that the delay was totally beyond the control of the Board (for example the Tribunal is not told when the permission to conduct inspections was sought) I am unable to conclude that Mr Jenkins has been unnecessarily disadvantaged to the extent that the usual position that each party bears their own costs should be departed from. [25] The application for costs is dismissed. -- 4 of 4 --