Diverse Industries Australia Pty Ltd v Crushing [2014] QCATA 233

CITATION: Diverse Industries Australia Pty Ltd v Crushing [2014] QCATA 233 PARTIES: Diverse Industries Australia Pty Ltd (Applicant/Appellant) v Calvani Crushing (Respondent) APPLICATION NUMBER: APL159 -14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Thomas, President DELIVERED ON: 26 August 2014 DELIVERED AT: Brisbane ORDERS MADE: CATCHWORDS: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 13 March 2014, that: “The Applicant pay to the Respondent $6598.40 being travelling allowance pursuant to S.102 & S.84 of the QCAT Act within 28 days.” is set aside. 4. The decision of 13 March 2014, that: “Respondent pay to the applicant $12775.47 in full satisfaction of the claim within 28 days.” is confirmed. APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – COSTS – where respondent travelled from Sydney to Chinchilla to attend hearing – where applicant did not attend hearing – where order in terms of respondent’s offer – where tribunal ordered applicant pay the respondent’s travel based on bailiff’s travel rate – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 102, s 142(3)(a)(i) Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 84 -- 1 of 4 -- 2 Uniform Civil Procedure (Fees) Regulation 2009 (Qld), Schedule 2, Part 2 Dulley trading as Bruce Dulley Family Lawyers v Archibald & Brown Lawyers Pty Ltd [2013] QCATA 320 Fife v Steve Coates Constructions [2012] QCATA 21 Guss v Veenhuizen (No 2) (1976) 136 CLR 47 London Scottish Benefit Society v. Chorley, Crawford and Chester (1884) 13 QBD 872 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 Pickering v McArthur [2005] QCA 294 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Realgo Investments Pty Ltd v Daley [2013] QCATA 211 Taylor t/as Solar Water Pumping v Cameron & Anor [2014] QCATA 10 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] Diverse Industries Australia Pty Ltd is a mechanical repair business. It did work for Calvani Crushing and rendered invoices, which were unpaid. It filed a claim in the minor civil disputes jurisdiction of the tribunal seeking $18,449.02. Calvani admitted that it owed $12,775.47 and it had paid that amount into a solicitors trust account. [2] Diverse did not appear at the hearing in Chinchilla. Ms White, who had travelled from New South Wales to attend the hearing, represented Calvani. A Magistrate, sitting as a member of the tribunal ordered that Calvani pay Diverse $12,775.47. Calvani then asked for its costs of attending the hearing. The learned Magistrate ordered Diverse pay Calvani’s costs of attendance fixed at $6,598.40. [3] Diverse wants to appeal that decision. It says it should not have to pay Calvani’s costs of attendance. [4] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is 1 QCAT Act s 142(3)(a)(i). -- 2 of 4 -- 3 attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [5] Diverse had no notice of Calvani’s claim for travelling costs. It was not mentioned in its response, nor was it mentioned in Calvani’s letter of 15 January 2014 requesting an adjournment. The rules of natural justice require that parties should be given a proper opportunity to make submissions about matters that may adversely affect their interests.3 Because Diverse did not have an opportunity to make submissions on the question of costs, the tribunal did not observe the rules of natural justice. Leave to appeal should be granted. [6] The learned Magistrate relied on s 102 of the QCAT Act and r 84(1)(c) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) to order Diverse pay Calvani’s costs. As the learned Magistrate observed, s 102(1) allows the tribunal to order costs if the interests of justice require. That power is limited, however, by subsection (2) of that section, which says that the only costs the tribunal may award under subsection (1) for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section. [7] In considering that question, the tribunal may have regard to the matters set out in s 102(3). The transcript does not reveal whether the learned Magistrate turned her mind to those matters. She may have had s 102(3)(a) in mind. That allows the tribunal to consider whether a party to the proceeding acted in a way that unnecessarily disadvantages another party to the proceeding, including failing to attend a hearing of the proceeding without reasonable excuse. Diverse, which operates from Chinchilla, chose not to attend the hearing. Calvani, which operates in New South Wales, did attend. The transcript reveals that Calvani did not have notice that Diverse would not attend the hearing.4 [8] Rule 84(1) limits the costs that can be awarded in a minor debt claim. The tribunal can order a party pay: 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. [9] Rule 84(2) defines “prescribed bailiff fees” as the fees prescribed under the Uniform Civil Procedure (Fees) Regulation 2009 schedule 2, part 2 (UCPR Fee Regulation). [10] The learned Magistrate interpreted r 84(1)(c) as allowing costs on two separate bases: the service fee and/or travelling costs which were not necessarily linked to the act of service. That interpretation ignores the 2 [2005] QCA 294 at [3]. 3 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 at [15]. 4 Transcript, Page 1-2, lines 6 – 9. -- 3 of 4 -- 4 context of the rule as a whole and the objects of the QCAT Act.5 All of the “costs” contained in r 84(1) are, in fact, fees. They refer to the administrative tasks involved in starting a proceeding; that is, the expense of filing it and the expense of serving it. Rule 84(1)(c), in its terms, refers to the service fee and travelling allowance. If the legislature intended that the tribunal have the power to order travelling costs that were not related to service then, logically, travelling costs would have been the subject of a separate sub-rule. That interpretation is confirmed by the wording of the UCPR Fee Regulation,6 which links the travelling expense to the act of service: 3 (1)Travelling fees on service, or attempted service, of claim, application, subpoena, process or other document or enforcement, or attempted enforcement of warrant… [11] The learned Magistrate’s order was not a true assessment of Calvani’s expenses because, as the transcript shows,7 Ms White flew from Sydney to Toowoomba. It was a means of compensating Ms White for the time and expense of attending the hearing. [12] The general rule is that a litigant in person is not entitled to recover costs.8 Further, a litigant in person is not indemnified for the personal time spent on the litigation9. A litigant in person may be entitled to recover the expense of litigation but: …there cannot be a perfect indemnity, because it is impossible to determine how much of the costs is incurred through his own over- anxiety.10 [13] The tribunal has refused an application for the expense of child minding and parking incurred by a party attending a hearing.11 It has refused to order the expense of an expert witness12 in a minor civil dispute, and it has also refused to order legal costs in a minor civil dispute.13 [14] Any right to recover expenses must have its source in the QCAT Act. The Act “turns its face generally against costs orders”.14 By r 84, the tribunal is limited in the costs it may order on a minor debt claim. There is no basis for the learned Magistrate’s order. The decision of 13 March 2014, that: “Applicant pay to the Respondent $6598.40 being travelling allowance pursuant to S. 102 & S. 84 of the QCAT Act within 28 days.” is set aside. The order that “Respondent pay to the applicant $12775.47 in full satisfaction of the claim within 28 days.” is confirmed. 5 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] per McHugh, Gummow, Kirby and Hayne JJ. 6 UCPR Fee Regulation, Schedule 2, Part 2. 7 Transcript page 1-7, Line 30-31. 8 Guss v Veenhuizen (No 2) (1976) 136 CLR 47. 9 London Scottish Benefit Society v. Chorley, Crawford and Chester (1884) 13 QBD 872. 10 Ibid at 875 per Brett MR. 11 Realgo Investments Pty Ltd v Daley [2013] QCATA 211. 12 Taylor t/as Solar Water Pumping v Cameron & Anor [2014] QCATA 10. 13 Dulley trading as Bruce Dulley Family Lawyers v Archibald & Brown Lawyers Pty Ltd [2013] QCATA 320. 14 Fife v Steve Coates Constructions [2012] QCATA 21 at [25]. -- 4 of 4 --