Bloomfield & Roofshield Restorations Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 528

CITATION: Bloomfield & Roofshield Restorations Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 528 PARTIES: Anthony William Bloomfield and Roofshield Restorations Pty Ltd (Applicants) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: GAR052-14 and GAR053-14 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Walker DELIVERED ON: 23 October 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for costs is dismissed. CATCHWORDS: COSTS – APPLICATION TO REVIEW APPLICATION TO CANCEL LICENSES – where applicant wholly successful in the application for review – where applicant applied for costs – where considerations of public policy – where the respondent has to balance the interests of consumers and building contractors – whether hearing necessary – where respondent model litigant – where factors relevant to exercise of discretion discussed Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 Fuge v Queensland Building and Construction Commission [2014] QCAT 383 Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364; McEwen v Barker Builders Pty Ltd [2010] QCAT 49; -- 1 of 7 -- 2 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 APPEARANCES and REPRESENTATION (if any): 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 11 April 2014 the Tribunal heard two applications for review of decisions made by the Respondent to cancel the licenses of the Applicants under the Queensland Building and Construction Commission Act 1991 (the “QBCC Act”). [2] The applications were successful and the decisions were set aside. [3] The Applicants now seek their costs of and incidental to the review proceedings in the sum of $26,371 excluding GST, or alternatively on the District Court Scale as agreed or assessed. [4] The general approach to be taken by the Tribunal in these type of general review matters was discussed extensively by Senior Member Oliver in the decision of Fuge v Queensland Building and Construction Commission where he stated as follows:1 a) Unlike the Courts, in the Tribunal costs do not follow the event because s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that ‘other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.’ That does not mean to say that the Tribunal cannot award costs. It can, because s 102 of the QCAT Act provides that the Tribunal can make an order for costs if it ‘is in the interests of justice’ to do so. b) Section 102 sets out certain matters that might be taken into account in deciding whether it is appropriate to make an order for costs they include: i) Whether a party to a proceeding is acting to the disadvantage of the other; ii) The nature and complexity of the dispute; iii) The relative strengths of the claims made by the parties; iv) Whether an applicant for a decision has been afforded natural justice or there was a genuine attempt to help the decision-maker; v) The financial circumstances of the parties and anything else the Tribunal considers relevant. 1 [2014] QCAT 383. -- 2 of 7 -- 3 c) However, the awarding of costs in any circumstance is an exercise of discretion, which has to be discharged in accordance with the recognised principles.2 d) There have been various statements in the Tribunal as to how section 100 should be applied given the strong statutory mandate that parties must pay their own costs. In McEwen v Barker Builders Pty Ltd3 the then President, Justice Alan Wilson, said that the costs provisions in the QCAT Act plainly indicated that the legislature had ‘turned its face against the award of costs in this Tribunal’. e) In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)4 the President said: 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. f) This statement was reinforced in Ascot v Nursing & Midwifery Board of Australia5: The public policy intent of the provisions in 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 it. The considerations identified in s102(3) are not grounds for awarding costs. They are factors that may be taken into account in determining whether, in a particular case, the interests of justice require the tribunal to make a costs order. g) That of course applies in circumstances where the enabling act, conferring jurisdiction on the Tribunal, is silent as to the question of costs.6 h) There is one further observation that might be made with respect to a review of an administrative decision. Review applications, by their very nature, are not adversarial. Part 1 Division 3 of the QCAT Act sets out how review applications are to be conducted in the Tribunal. In exercising the review jurisdiction, the proceeding must be decided in accordance with the QCAT Act and the enabling act under which the review decision is being made.7 i) The Tribunal may perform the functions conferred on it by the QCAT Act, or an enabling act under which the reviewable decision is being reviewed, and has all the functions of the original decision-maker. The decision- maker must help the Tribunal8 and provide a written statement of reasons for the decision and any documents relevant to the Tribunal’s review of the 2 House v R [1936] 55 CLR 499. 3 [2010] QCAT 49 at [17]. 4 [2010] QCAT 412. 5 [2010] QCAT 364 at [9]. 6 As an example see s 77 of the Queensland Building and Construction Commission Act 1991 (Qld). 7 Section 19. 8 Section 21. -- 3 of 7 -- 4 decision. Generally, if the decision-maker is a Government Department, or instrumentality, the proceedings must be conducted in accordance with guidelines of a model litigant. That means, that the decision-maker must assist the Tribunal in coming to the correct and preferable decision. j) It is against that background that the matters referred to in s 102(3) of the QCAT Act must be considered. k) Here, not only does the Commission have an obligation to assist the Tribunal, it also has to have regard to the objects of the QBCC Act. It has a statutory obligation to administer the Act, to ensure that industry standards are maintained, and achieve a reasonable balance between the interests of building contractors and consumers. … [5] While that decision dealt with an application to become a “Permitted Individual” rather than a review of decision to cancel a License the principles remain the same. [6] Within the context of this reasoning, then, I turn to the specific submissions in this case. Whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding. [7] In essence the submission by the Applicants focusses on the conduct of the decision maker during the period prior to the launching of the Review Application. Included in the submissions is a statement that Ms Horton was never advised that she personally, was the subject of the consideration by the Commission. [8] In that respect, it seems relevant that no evidence to that effect was led in the proceedings. Further, it seems highly relevant to consider the role of the Commission in these types of matters. Specifically the decision maker can review the decision at any time if it sees reason to do so. Certainly evidence of the type that Ms Horton is said to have been deprived of the opportunity to present had been presented to the Commission well prior to a final hearing. Even if this caused a delay to an extent, ultimately Ms Horton could not be said to have been deprived of an opportunity to fully present her case. [9] Additionally at paragraphs 15 and 16 of their submissions the Applicants make submissions to the effect that it was incumbent on the decision maker to provide the Applicants with information that would have amounted to providing legal advice. The submissions refer to an extract of the relevant Case Notes and in particular an entry of 20/08/2014. I do not accept that those Notes in any way amount to the giving of legal advice and it does not seem to me that there is any obligation on the Commission to give such advice to parties within its jurisdiction. [10] In any event, in this case it was ultimately the oral evidence of the Mr Bloomfield and Ms Horton that enabled the making of the final -- 4 of 7 -- 5 determination. Given the documentary evidence that had come to light it is unsurprising that the matter proceeded to a final hearing. [11] In the circumstances I am not satisfied that the Commission acted in a way that unnecessarily disadvantaged the Applicants. The nature and complexity of the dispute the subject of the proceeding: [12] Factually there were aspects of the matter that were complex. Indeed it seems that the Applicants would certainly have been disadvantaged had they not been represented as they certainly demonstrated a lack of understanding of aspects of the Act so far as it related to their application. [13] Nevertheless this subsection has been the subject of numerous decisions of the Tribunal. In some costs orders were made but in many, despite complexity, they were not. The mere fact that legal representation is appropriate is not, in my view, sufficient to justify the making of a costs order. [14] Specifically the Applicants submit9 that the Commission conducted the matter as if it were a disciplinary proceeding. With due respect I do not accept this submission and even if it had force it would still not, in my view, be sufficient to justify the making of a costs order alone and in its own right. In the Tribunal the mere fact that legal representation is appropriate does not per se justify the making of a costs order. The relative strengths of the claims made by each of the parties to the proceeding: [15] The Applicants submissions in this regard focus extensively on the comments made in the final decision. What they overlook is that the case of the Commission was based on written material that on its face was quite damning to the Applicants and was clearly incorrect. [16] It is certainly the case that on each of the points dealt with in the submissions in10 was ultimately determined in favour of the Applicants. Had that not been so the applications would have failed. The findings justify the decision to set aside the decision of the Commission. They do not of themselves establish that the weight of evidence overwhelmingly favoured the Applicants. [17] It was ultimately the oral evidence of Mr Bloomfield and Ms Horton that made the findings possible. While it is certainly true that the Commission was aware of the responses that would very likely be given by the Applicants to questions surrounding these documents it would seem appropriate, and indeed consistent with its role for the Commission to test the veracity of those statements by cross-examination. 9 See paragraph 16 and 17 of submissions. 10 In particular see submissions at paragraphs 25 to 29. -- 5 of 7 -- 6 [18] In circumstances where there is objective evidence available to the Commission that would give support for its stance one could not say that the weight of evidence relatively was so much stronger for one side or the other such as to justify the making of a costs order. That the Applicants were not afforded natural justice: [19] The submissions in this respect largely centred around the meeting that took place between the decision maker and Mr Bloomfield and Ms Horton on 20 August 2013 which has been the subject of earlier comments. The notices that had been forwarded to the Applicants clearly set out the actions that the Commission was considering. By any standard such consequences were potentially dire and one might have thought that this would provide sufficient reason for the Applicants to seek legal advice at an earlier stage. [20] Further it does not seem from the file note presented that what was said amounted to comprehensive legal advice and it is hard to see why the Applicants would interpret it in that way. [21] Ultimately, in any event, the Applicants had every opportunity to present their case in a full manner. Looking retrospectively it does not seem that what transpired at that meeting would have had real impact on the costs incurred given the right of the decision maker to review their decision at any time and the ultimate reasonableness of proceeding to a hearing. [22] Certainly there would not seem to be any question that the Applicants made every effort to assist the decision maker. Nevertheless some real questions remained for determination and questions, as I have previously said, were best determined by oral evidence and cross-examination. The financial circumstances of the parties to the proceedings: [23] Despite the fact that there is no actual evidence before the Tribunal as to the financial circumstances of the Applicants it is safe to assume that proceedings such as this would adversely impact on the Applicants. This would likely be both in a direct sense, because of the need to make direct payments to their legal representative, and because the course of such proceedings is invariably emotionally draining and no doubt takes focus away from the necessities of conducting business. [24] Nevertheless in the absence of an opportunity to fully test the financial material presented by the Applicants in their submissions11 it is difficult to determine to what extent the financial circumstances were directly attributable to the Applicants’ involvement in these proceedings. [25] Ultimately, though the Commission cannot carry out its function, and in particular, its duty to the public if a fear of financially causing disadvantage or even damage to a party, is to be determinative in how decisions are to 11 See submissions at paragraphs 34 to 37. -- 6 of 7 -- 7 made. In such a case as this, this public policy consideration is of major significance. Any other relevant consideration: [26] The primary thrust of this submission was that one of the motivations of the decision maker was to “make an example” of the Applicants. [27] With due respect deterrent seems an entirely appropriate matter to take into account when a body is entrusted with balancing public and industry interests. Whether this is properly considered a “motivation” or an appropriate consequence is perhaps a moot point but on either interpretation it does not seem to be a basis for criticism of the Respondent’s behaviour and hence ought not to be the basis for a costs order. [28] Given the submissions, it seems appropriate to make mention of the decision of Member Paratz in Imperial Homes (Qld) Pty Limited v Queensland Building and Construction Commission (No 2)12. That matter was clearly distinguishable from the present one in that was considered to be the progress of a “test case” that ultimately was found to have little prospect of success. [29] In this matter neither of those elements is present. The Commission was carrying out an established function and, despite the Tribunal’s ultimate findings, the written documentation clearly gave prospects that its decision would be upheld. Conclusion: [30] I turn again to the words of Senior Member Oliver in Fuge v Queensland Building and Construction Commission where he said:13 I reiterate that under the QBCC Act, the Commission has a dual function in administrating the Act. That is, to protect the public interest and also the interests of building contractors. In doing so it must not be reticent in discharging its obligations for fear of adverse costs orders against it if it is unsuccessful in responding to an application for review of its decisions unless it can be demonstrated, there is some specific conduct on the part of the Commission, that would ‘so compellingly’ overcome the strong contra-indication against costs orders in s 100 of the QCAT Act. [31] In the circumstances, I am of the view that there has been nothing in the behaviour of the Commission that would overcome the ordinary circumstance that would prevail so far as Section 100 of the Act is concerned. [32] In the circumstances, the application for costs is dismissed. 12 [2014]QCAT 135. 13 Op cit at paragraph 28. -- 7 of 7 --