Anderson v Gold Coast Waterways Authority and anor [2014] QCAT 639

CITATION: Anderson v Gold Coast Waterways Authority and anor [2014] QCAT 639 PARTIES: Errol Anderson (Applicant) v Gold Coast Waterways Authority (First Respondent) Gold Coast City Council (Second Respondent) APPLICATION NUMBER: MCDO494/14 MATTER TYPE: Other minor civil dispute matters HEARING DATE: On the papers HEARD AT: Southport DECISION OF: Adjudicator Trueman DELIVERED ON: 22 November 2014 DELIVERED AT: Southport ORDERS MADE: 1. That there be no order for costs. 2. That each party bears their own costs of the proceedings. CATCHWORDS: Minor civil dispute – minor debt – whether claim within jurisdiction of tribunal – whether a liquidated claim or claim for damages – objection by respondents to jurisdiction – where claim struck out for want of jurisdiction – costs Queensland Civil and Administrative Tribunal Act 2009 Queensland Civil and Administrative Tribunal Rules 2009 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Errol Anderson RESPONDENT: Gold Coast City Waterways represented by Mr David de Jersey of Counsel Gold Coast City Council represented by Mr Phillip Halliday -- 1 of 7 -- 2 REASONS FOR DECISION [1] Mr Errol Anderson (“Mr Anderson”) commenced these proceedings on 20 January 2014 in the form of a Minor Civil Dispute against the respondents, Gold Coast City Council (“GCCC”) and the Gold Coast Waterways Authority (“GCWA”), claiming $4,248.80 for alleged damages to his boat after a boating accident in a Gold Coast canal. [2] Mr Anderson alleged that the GCCC and the GCWA have been negligent in allowing gravel to build up, during construction of the Light Rail, in the canals causing a hazard. He said he was cruising at under 6 knots in his boat, the Tiger Roy, in the canals travelling up the channel just southeast of Jupiters Casino jetty, Southport, enjoying a day on the water, when his boat struck a submerged gravel pile, causing damage to the hull of his boat and the propeller on his motor. [3] The GCCC and GCWA filed a Response and both allege that the application against them should be dismissed. Both respondents raise the issue of jurisdiction and claim that the tribunal does not have jurisdiction to hear the matter. [4] At the hearing on 11 August 2014, a finding was made that the claim was not a minor civil debt as defined by the QCAT Act, but a claim for damages for negligence. The claim was struck out for want of jurisdiction. The Respondents sought orders for costs. The parties were granted leave to file submissions regarding the issue of costs. [5] The issue of costs were heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Jurisdiction [6] The tribunal has jurisdiction to hear and determine minor civil disputes – minor debt matters.1 [7] A minor civil application for a claim to recover a debt or liquidated demand of money must be made by a person to whom the debt is owed or money is payable.2 [8] In a proceeding for a minor civil dispute, the tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute and may, if considered appropriate, to make an order dismissing the application.3 The tribunal may make an order 1 QCAT Act s 11. 2 Ibid s 12(4)(a). 3 Ibid s 13(1). -- 2 of 7 -- 3 requiring a party to the proceeding to pay a stated amount to a stated person. 4 [9] In proceedings before the tribunal, other than as provided under the QCAT Act, or an enabling Act, each party to a proceeding must bear the party's own costs of the proceedings.5 [10] The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order. 6 Costs in QCAT proceedings [11] The only costs the tribunal may award under section 102(1) of the QCAT Act against a party to a proceeding for a minor civil dispute are the costs stated in the rules. The costs that may be awarded for minor civil disputes are particularised in this section.7 [12] The tribunal must consider various factors when deciding whether to award costs against a party to a proceeding. The tribunal may have regard to matters including the relative strengths of the claims made by each of the parties to the proceeding8, the financial circumstances of the parties to the proceeding9 and anything else the tribunal considers relevant.10 [13] The tribunal may award costs against a party to a proceeding for a minor civil dispute other than a minor debt claim. The costs can only be against the party who is a respondent, and where the tribunal has made a final decision. The tribunal may only order the party to pay to the applicant the amount of any prescribed fee paid by the applicant on filing the application for the proceeding.11 [14] The tribunal may award costs for a minor debt claim against a party against a party to a proceeding for a minor debt claim only to order the party to pay an amount for one or more of the following — (a) the prescribed fee for filing the application for the claim; (b) a fee charged by a service provider for electronically filing a document; (c) a service fee and travelling allowance at the rate of the prescribed bailiff fees; (d) a business name or company search fee.12 Discussion [15] A finding was made that the tribunal did not have jurisdiction to hear the applicants claim and it was struck out for want of jurisdiction. 4 Ibid s 13(2)(a)(i). 5 Ibid s 100. 6 Ibid s 102(1). 7 Ibid s 102(2). 8 Ibid s 102(3)(c). 9 Ibid s 102(3)(e). 10 Ibid s 102(3)(f). 11 Queensland Civil and Administrative Tribunal Rules 2009 (QCAT Rules), r 83. 12 Ibid r 84. -- 3 of 7 -- 4 [16] The Respondents vented frustration and disappointment that the Applicant had put both Respondents to unnecessary time and costs in dealing with the matter and had raised the jurisdiction issue with Mr Anderson early in the proceedings. [17] On the basis that the claim was struck out for want of jurisdiction, and as Mr Anderson did not bring a claim within the tribunal’s jurisdiction the Respondents raised the issue of costs. An order was made on 11 August 2014 and a timetable provided for the filing of submissions regarding costs. The Second Respondent and the Applicant have complied with those orders. Their submissions have been taken into account. [18] The GCWA filed submissions in relation to costs on 18 August 2014. [19] GCWA submit that an order can be made for costs against Mr Anderson as the claim was struck out for want of jurisdiction, the claim is not a minor debt claim, and not bound by the scale applicable to s 102(2) of the QCAT Act. [20] GCWA submit an order for costs of the proceedings should be made for these reasons: a) The applicant was aware from the outset that the second respondent contended that the Tribunal did not have jurisdiction to hear the application, noted in the Response. That the applicant was explained why the application did not raise a ‘minor civil dispute’ and that no enabling Act conferred jurisdiction on the tribunal. b) The applicant failed to respond to the contentions raised regarding jurisdiction until the matter was listed for hearing on 11 August 2014. c) The applicant disputes the costs issue based on an apparent informal determination of the issue made in the Brisbane registry where the claim was originally filed. The applicant failed to address the issue of jurisdiction well before the matter was listed for hearing and this should have been dealt with prior to the parties incurring the cost of preparing for the hearing. d) The applicant put GCWA to substantial costs in preparing for the hearing and multiple applications for miscellaneous matters by his conduct of the application. e) The applicant refused reasonable requests for an adjournment requiring GCWA to have to make numerous miscellaneous applications for the adjournment based on reasons that the GCWA’s counsel and witnesses were not available. f) The applicant disclosed without prejudice correspondence to resolve the dispute sent by GCWA and filed an application seeking permission to disclose to the tribunal the content of the without prejudice correspondence. -- 4 of 7 -- 5 g) GCWA was put to the time and expense and applied to the tribunal for the proceedings to be dismissed based on the disclosure of without prejudice correspondences as a denial of procedural fairness. [21] Mr Anderson provided submissions in response to the submissions filed by GCWA. [22] Mr Anderson submits that the tribunal should not award costs at all and that each party should bear their own costs. [23] Mr Anderson contends that GCWA decided to employ the services of legal representation to represent them rather than a member of their own staff at their own costs. [24] Mr Anderson submits that QCAT requires people to represent themselves and that it was not a requirement of the tribunal for representation. [25] Mr Anderson stated that the tribunal had dealt with the issue of jurisdiction, which was dealt with by an order of the Tribunal to proceed with the matter. Mr Anderson claims that this issue was resolved and a determination was made, that the claim fell within the jurisdiction. [26] Mr Anderson stated that he believed that as the matter was listed for a hearing ‘it must have had jurisdiction’. [27] Mr Anderson said the grounds for his claim was for consideration under consumer and ‘trader provisions, as he paid boating licensing and council rates and those should fund the service provisions of making waterways safe for vessels and mariners’. Findings [28] I find that the evidence suggests that as early as November 2013, a month after the boating incident, Maritime Safety had written to Mr Anderson regarding the incident and highlighting that the matter had been investigated. The GCCC had written a letter to Mr Anderson in October 2013 advising that the ‘council is not responsible for maintaining the incident area’. Despite this advice, Mr Anderson continued to insist that the GCCC were a party to the proceedings incurring considerable inconvenience, time and costs to the Council. [29] The GCWA stated that they had advised Mr Anderson that there were issues relating to jurisdiction raised in correspondence before the claim was filed, and then later again in their response filed in February 2014, just a month after the original claim was filed. [30] Mr Anderson said he thought he had dealt with the issue of jurisdiction prior to the claim being listed for hearing. He believed that the tribunal had already made an informal determination on issues of jurisdiction. [31] I find from the evidence I can understand why Mr Anderson believed that the issue of jurisdiction had been dealt with as on 18 March 2014 a -- 5 of 7 -- 6 learned Justice of the Peace in Brisbane reviewed the file and determined that the tribunal had jurisdiction and the order sought by GCWA to strike out the claim was refused. The learned Justice of the Peace considered an application by the GCCC to be removed from the claim, the learned Justice of the Peace indicated that there was evidence that GCCC may be liable and should remain a party until the facts were disclosed and argued in a hearing. [32] I can understand the frustration and confusion surrounding the Respondents prior interim application for the claim to be struck out for want of jurisdiction, being dismissed and the matter listed for a hearing and then a determination to be made that the claim did not come within the definition of minor debt. Their application for costs is understandable, but in the circumstances, I find that the tribunal has to some extent provided information to Mr Anderson that might have led him to believe that his claim had merit and to proceed with his claim. [33] While the GCWA was critical of Mr Anderson’s cavalier attitude to the proceedings and his ignorance of providing a response to their request for identification of the relevant section of the QCAT Act that would invoke jurisdiction of the tribunal. I accept to some extent that Mr Anderson is a litigant in person; he does not have legal training and appears to not have obtained legal advice regarding his claim. [34] Before the tribunal can make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding the tribunal must only do so if it considers the interests of justice require it to make such costs order. [35] In cases such as this, it might be a case that a claim struck out for want of jurisdiction relating to a minor debt claim may not be bound by the provisions relating to costs contained within section 102 of the QCAT Act. [36] The objects of the QCAT Act state that the tribunal must deal with matters in a way that is accessible, fair, just, economical, informal and quick.13 [37] Any party filing a claim in the tribunal should be careful and ensure that they have standing to bring their claim and that the tribunal has jurisdiction. A failure by a party to make those necessary enquiries and obtain advice, risks their application being struck out. That type of application clogs up lists and wastes precious tribunal hearing time. This prevents the tribunal dealing with matters in a quick and economical way. [38] The unfortunate circumstances in this case, from reviewing the file, it would appear to be an honest belief that Mr Anderson considered that he had a valid minor debt claim as a determination was made by a learned Justice of the Peace in Brisbane that the claim had jurisdiction, and listed the matter for hearing. In the circumstances, I find that Mr Anderson believed that the preliminary jurisdiction issue had been dealt with and he 13 QCAT Act s 3. -- 6 of 7 -- 7 continued with his claim on that assumption. I find it would not be fair or reasonable to award costs against Mr Anderson on the facts and evidence before me. [39] The application by GCWA for costs against Mr Anderson is refused. I make no order as to costs and order that each party bear their own costs of the proceedings. [40] The order I propose to make is: 1. That there be no order for costs. 2. That each party bears their own costs of the proceedings. -- 7 of 7 --