Colling v Queensland Building Services Authority [2010] QCAT 102

1 CITATION: Colling v Queensland Building Services Authority [2010] QCAT 102 PARTIES: Gary Raymond Colling v Queensland Building Services Authority APPLICATION NUMBER: QR026-09 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr Bridget Cullen Mandikos DELIVERED ON: 12 th January 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. The Respondent’s application for costs in the matter is denied. 2. Parties to bear their own costs. CATCHWORDS: Leave to be represented; sections 64, 70-71 Commercial and Consumer Tribunal Act 2003; Transitional provisions, Queensland Civil and Administrative Tribunal Act 2009, sections 245 and 257; Tamawood Ltd. & Anor v Paans [2005] QCA 111; Horsburgh v Queensland Building Services Authority [2008] QCCTB 235; Civic Steel Homes Pty Ltd v Mitra [2006] QDC 322. APPEARANCES and REPRESENTATION (if any): On the papers. -- 1 of 6 -- 2 REASONS FOR DECISION 1. On 22 January 2009, the Applicant, Gary Raymond Colling, filed an application for review with the then Commercial and Consumer Tribunal (“CCT”) of a decision by the Queensland Building Services Authority (“QBSA”), dated 19 December 2008, relating to a decision by the QBSA that the Applicant had failed to satisfactorily rectify items that were the subject of a QBSA direction to rectify and/or complete. The Applicant’s affidavit of service was filed with the CCT on 30 January 2009. 2. Ultimately, after failing to comply with directions issued by the CCT on 25 February 2009 and failing to comply with correspondence from the CCT dated 1 May 2009, the Applicant consented to withdrawal of his application on 29 June 2009. The QBSA also consented to this withdrawal. The CCT then issued an Order dated 10 July 2009 vacating the hearing in the matter and requiring the QBSA to advise in writing as to whether it claimed costs. 3. The QBSA, on 8 July 2009, made an application for the costs of the proceedings, using the CCT Form 4 “Application in a proceeding” and annexing written submissions in support of the QBSA’s assertions that it is entitled to costs on the District Court Scale, to be assessed. 4. I note that there is no indication in the materials before me that the QBSA was granted leave to be legally represented in the matter, whether by external legal counsel, or by its own in-house legal team. In my view, this is a pre-condition to the awarding of legal costs in jurisdictions where parties are not entitled, as of right, to appear with legal representation. Applicable Law – Transitional Provisions of QCAT 5. The CCT has amalgamated into the Queensland Civil and Administrative Tribunal (“QCAT”). QCAT now hears and decides all matters previously dealt with by the Commercial and Consumer Tribunal. As this matter had been heard and determined as at the commencement of QCAT, it is considered to be an “other proceeding” for purposes of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), s 245. Accordingly, the applicable transitional provision of the QCAT Act is section 257. 6. Relevantly, section 257 of the QCAT Act provides that: a. This section applies to an existing tribunal proceeding that is not a pending proceeding. b. At the commencement, the proceeding is taken to be a proceeding before QCAT. -- 2 of 6 -- 3 c. QCAT has jurisdiction to deal with the matter the subject of the proceeding under this Act. 7. Sections 245 and 257 must be read in conjunction with section 252(3) of the QCAT Act, which provides: If, under a former Act, a person has applied to a former tribunal to deal with a final decision of the former tribunal and the application has not been heard at the commencement- a. the application is taken to be an application made to QCAT under this Act; and b. in hearing the application, QCAT has, and only has, the functions of the former tribunal under the former Act. 8. In short, these provisions collectively mean that in considering the Respondent QBSA’s application for costs herein, which is an application to “deal with a final decision”; I must have regard to the provisions of the former Commercial and Consumer Tribunal Act 2003 (Qld) (“CCT Act”). Indeed, the QBSA has drawn my attention to the factors set out in section 71 of the CCT Act, and to Justice Keane’s decision in Tamawood Ltd. & Anor v Paans [2005] QCA 111 “Tamawood”, in its submissions that were lodged prior to the commencement of QCAT. Factors relevant to an award of costs 9. The starting point vis-à-vis costs in the former CCT was contained in section 70 of the CCT Act: The main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise. As I interpret section 70, the CCT jurisdiction was not a “costs follow the event” jurisdiction, but rather, if the interests of justice were such that the parties should not pay their own costs, the CCT had authority to make such an order. 10. In considering whether the interests of justice warrant an award of costs, regard must be had to the factors contained in section 71(4) of the CCT Act, namely: (a) the outcome of the proceeding; (b) the conduct of the parties to the proceeding before and during the proceeding; (c) the nature and complexity of the proceeding; (d) the relative strengths of the claims made by each of the parties to the proceeding; (e) any contravention of an Act by a party to the proceeding; (f) for a proceeding to which a State agency is a party, whether the other party to the proceeding was afforded natural justice by the State agency; and -- 3 of 6 -- 4 (g) anything else the tribunal considers relevant. 11. Further, section 71(5) of the CCT Act provides that a party is not entitled to costs merely because— (a) the party was the beneficiary of an order of the tribunal; or (b) the party was legally represented at the proceeding. 12. As I indicated above, the QBSA has drawn my attention to the decision of Justice Keane in Tamawood, where His Honour considered the application of sections 70 and 71 by the then Commercial and Consumer Tribunal and said: “As I have already said, in my view, the language of s 70 and s 71(5)(a) is sufficiently clear to negate the proposition that costs should, prima facie, follow the event unless the Tribunal considers that another order is more appropriate. In this regard, it is clear that the power of a court or tribunal to award costs to a party is now a creature of statute. The nature and extent of that power can only be discerned by close consideration of the terms of the statute which creates the power and prescribes the occasions for, and conditions of, its exercise. In the performance of this task, observations of the courts in relation to the operation of other statutory regimes relating to costs may afford general assistance but they cannot be allowed to distract attention from the terms of the particular statute in question.” 13. As I said in Robert Billing v Queensland Building Services Authority [2009] QCAT QR135-09 , following on from His Honour Justice Keane’s comments, it is then necessary to determine what circumstances enliven an “interests of justice” consideration sufficient to justify deviation from the main purpose of section 70 of the CCT Act (that parties are to bear their own costs). His Honour next considered the intent of the CCT Act, and provided a general example of circumstances that might warrant the awarding of costs: “If orders for costs were not to be made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the Tribunal. To say this is not to ignore s 71(5) (b) of the Act. There is a clear distinction, in terms of the interest of achieving justice, between the mere fact of having representation and the fact of having reasonably obtained that representation because of the complexity of the case. In the absence of countervailing -- 4 of 6 -- 5 considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome. Finally in this regard, it should also be borne in mind that s 71(4) (a) of the Act expressly recognizes that "the outcome of the proceeding" is a consideration which is relevant to the exercise of the discretion conferred by s 71(1) of the Act.” 14. The QBSA, in its submissions, has placed particular emphasis on the passage from Tamawood cited above. I do not share the QBSA’s view that it has “reasonably incurred the cost of legal representation” in this situation as contemplated in Tamawood. In Tamawood, there was a finding that the matter was sufficiently complex to justify legal representation, and I also consider it an important distinction in the “interests of justice” analysis in Tamawood that Ms Paans was an individual, as opposed to a statutory authority. Had Ms Paans not been awarded costs in Tamawood, her victory (an award of $10,000.00 damages arising out of default in relation to construction of a house by the unsuccessful parties) would have been eroded by her individually borne legal costs. The same cannot be said of the QBSA here. While the costs of defending review applications such as this may collectively erode a budget overtime, the QBSA will not suffer in the same manner that Ms Paans would have, and is in a position to make decisions to prevent such difficulties, for example, by increasing its own filing fees for review matters. 15. The Respondent has also directed my attention to then Member Lohrisch’s comments in Horsburgh v Queensland Building Services Authority [2008] QCCTB 235 (“Horsburgh”), a decision of the CCT wherein the Applicant was ordered to pay the Respondent’s costs on an agreed basis, or failing agreement, on the District Court scale as assessed. With respect, I do not share the view expressed in Horsburgh that the fact that the QBSA is fulfilling its role as a regulator ipsa facto means that the QBSA is entitled to the costs of upholding its decisions. If this was the case, then surely the legislature would have captured such a view within the drafting of s 70 of the CCT Act, and would have created special provision for the legal costs of QBSA as a regulator. This is not the situation, however. 16. I note that s 64 of the CCT Act did allow the CCT Tribunal to make a costs Order upon an applicant’s withdrawal. While it appears that it was the applicant who initiated the consent to withdraw the application here, ultimately the matter was discontinued upon the consent of both the applicant and the QBSA. The decision by the QBSA to agree by consent to withdrawal was a prudent decision that avoided further legal costs on its part. However, it cannot be said that this was an Order that was ultimately made as a consequence of the applicant’s withdrawal; to the contrary, it -- 5 of 6 -- 6 was mutual. As a statutory authority, the QBSA cannot expect, in view of s 70 of the CCT Act in particular, and in view of s 100 of the QCAT Act as it will apply in future, to anticipate that all of its costs borne from successful legal proceedings will be recoverable. 17. I note that this is not a case where QBSA had been granted leave to appear with representation, nor one that attracted the automatic entitlement to legal representation under section 76 of the CCT Act. In a jurisdiction that contemplated that parties were to be self-represented, unless leave was granted, it is difficult to award legal costs to the QBSA where it has not obtained such leave. 18. The Applicant’s conduct in this matter could be described as disengaged. I note that the QBSA was successful in the proceedings, but that the file from the former CCT does not contain an Order granting leave to be represented to the QBSA. Had the QBSA obtained an Order granting leave to be represented, I would have considered awarding the QBSA its legal costs. However, even an Order permitting legal representation does not translate into an entitlement to obtain legal costs if successful. It is, in my view, a precondition to a consideration as to whether any costs might be allowed, bearing in mind the legislative intent that the jurisdiction be one where parties bear their own costs, save for when the interests of justice otherwise compel. 19. As Judge Robin said, in interpreting Tamawood and the CCT costs provisions, in Civic Steel Homes Pty Ltd v Mitra [2006] QDC 322: The situations in which the interests of justice can be said, objectively, to “require” a particular costs outcome may be relatively unusual. Conclusion I do not consider that the present case requires a costs order in the interests of justice, and in view of the above, I decline to award the Respondent its costs in this matter. -- 6 of 6 --