Billing v Queensland Building Services Authority [2009] QCAT 31

Citation: Billing v Queensland Building Services Authority [2009] QCAT 31 Parties: Robert Billing -v- Queensland Building Services Authority APPLICATION NO: QR135-09 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr Bridget Cullen Mandikos DELIVERED ON: 23 rd December 2009 DELIVERED AT: Brisbane CATCHWORDS: Leave to be represented; sections 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; Evans v Queensland Building Services Authority [2009] QCCTB 205 ORDERS: Respondent’s application for costs in the matter is denied. Parties to bear their own costs. -- 1 of 8 -- REASONS FOR DECISION 1. On 10 th June 2009, the Applicant, Robert Billing, filed an application for review with the then Commercial and Consumer Tribunal (“CCT”) of a decision by the Queensland Building Services Authority (“QBSA”), dated 14th May 2009, refusing the Applicant’s application to be categorised as a permitted individual for a relevant event within the meaning of s 56AD of the Queensland Building Services Authority Act 1991. The Applicant’s affidavit of service was filed with the CCT on 25 th June 2009. 2. On 6 th July 2009, Forbes Dowling Lawyers advised the CCT that it had been appointed by the Respondent QBSA to act on its behalf. The CCT responded on 7 th July 2009, indicating that although it had changed the Respondent QBSA’s address for service, “[t]he change of address does not indicate approval for legal representation at hearings”. The CCT requested that the parties complete a “Form 4 – Application in a proceeding” if they wished to be represented by lawyers at hearings. 3. Regrettably, this does not appear to have happened. While it is clear that Forbes Dowling Lawyers did appear before the CCT on the Respondent’s behalf, it does not appear that they ever made formal application to the CCT seeking leave to appear. 4. Ultimately, after failing to comply with directions issued by the CCT to make submissions on his behalf, the Applicant in this matter also failed to attend a Directions Hearing that was scheduled by the CCT on 9 th October 2009. Following the Applicant’s non-attendance, the CCT made further orders, also dated 9 th October 2009, directing compliance with various pre-hearing steps, with which the Applicant also failed to comply. 5. I note that the CCT’s 9 th October 2009 Order makes reference to Mr Robinson of Forbes Dowling Lawyers seeking to represent the Respondent at the eventual hearing. There is, however, no indication in the materials before me that this leave was ultimately granted. -- 2 of 8 -- 6. On 19 th October 2009, the CCT dismissed the Applicant’s Application in this matter, for failure to comply with the CCT’s 9 th October 2009 Order. 7. Thereafter, on 26 th October 2009, the Respondent filed a “Form 4 – Application in a proceeding” (together with written submissions) with the CCT, seeking that the Applicant pay the Respondent’s costs of the matter, to be assessed. The Applicant failed to comply with a subsequent Order of the CCT, directing him to file written submissions as to costs with the CCT. On 26 th October 2009, the CCT ordered that, in view of the Applicant’s non- compliance, the issue of legal costs be determined on the papers. Applicable Law – Transitional Provisions of QCAT 8. 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. 9. 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. c) QCAT has jurisdiction to deal with the matter the subject of the proceeding under this Act. 10. 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- -- 3 of 8 -- 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. 11. 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 Respondent has tailored their submissions, which were lodged before the commencement of QCAT, to the factors set out in section 71 of the CCT Act. Factors relevant to an award of costs 12. 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. -- 4 of 8 -- 13. 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; g) anything else the tribunal considers relevant. 14. 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. 15. The Respondent has drawn my attention to the decision of Justice Keane in Tamawood Ltd. & Anor v Paans [2005] QCA 111 “Tamawood”. In Tamawood, 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 -- 5 of 8 -- costs may afford general assistance but they cannot be allowed to distract attention from the terms of the particular statute in question.” 16. Following on from His Honour’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 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.” -- 6 of 8 -- 17. The Respondent has also directed my attention to Evans v Queensland Building Services Authority [2009] QCCTB 205 (“Evans”), 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. 18. In my view, there are some important differences between an interests of justice analysis in this case, and the analysis in both Tamawood and Evans. In Tamawood, Justice Keane placed some importance on the finding of the Tribunal that the proceedings were sufficiently complex to justify the parties having obtained legal representation. There has been no such finding in the instant matter. 19. In Evans, the CCT had ordered, by consent of both parties, that legal representation was permitted. Here, as discussed above, the Respondent QBSA was directed to apply for approval to be represented. 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 Respondent where it has failed to obtain such leave. 20. I consider the failure of the Respondent to obtain leave to be conduct that falls within the parameters of both 71(4) (b) and 71(4) (g). The Respondent has simply proceeded on the assumption that it would be granted leave, and I consider that insufficient to justify an award of legal costs. 21. The Applicant’s conduct in this matter has been dilatory, and disinterested. I note that the Respondent 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 Respondent. Had the Respondent obtained an Order granting leave to be represented, I would have awarded the Respondent its legal costs, on the District Court Scale. Applicants that commence proceedings, and fail to comply with tribunal directives to progress the matter (as is the case here), should not be permitted to sit back idly while a -- 7 of 8 -- respondent is forced to respond to their application, incurring costs in the process. 22. The difficulty here is that it cannot be assumed that the CCT would have granted the Respondent leave. An application to appear with representation, in the CCT, needed to be done on notice to the other party. Accordingly, there has been no notice to the Applicant, and he was not in a position where he could make an informed assessment as to whether he objected to representation, or would prepare submissions in response to such an application. If I were to now award costs, on an assumption that the Applicant would not have objected or responded, I consider that I would deny him procedural justice. This is of primary importance in a jurisdiction where the main purpose is to have parties pay their own costs. 23. In view of the above, I decline to award the Respondent its costs in this matter. -- 8 of 8 --