Abbott v Queensland Building and Construction Commission [2022] QCAT 129

• [3] I note in passing that I doubt whether a number of these items, and in particular the last three items, fall within the scope of a costs order. However, for the reasons set out below, it is unnecessary for me to determine this issue.

• [4] Section 100 of the Queensland Civil and Administrative Act 2009 (Qld) ('the QCAT Act') sets out the default position in relation to costs:

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.

• [5] Section 102 of the QCAT Act permits the Tribunal to make a costs order if the interests of justice require it:

(1) 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. > > (2) However, the only costs the tribunal may award under subsection (1) against a party to a proceeding 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. > > (3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following -

(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);

(b) the nature and complexity of the dispute the subject of the proceeding;

(c) the relative strengths of the claims made by each of the parties to the proceeding;

(d) for a proceeding for the review of a reviewable decision -

(i) whether the applicant was afforded natural justice by the decision-maker for the decision; and

(ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;

(e) the financial circumstances of the parties to the proceeding;

(f) anything else the tribunal considers relevant.

• [6] The Tribunal's approach to costs has varied over time. In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2), the first President of the Tribunal, Justice Wilson, stated:[1]

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.

• [7] More recently, in Cowen v Queensland Building and Construction Commission,[2] Judicial Member McGill SC stated:

I consider that to say that an order for costs will not be made unless the factors favouring an order are 'compelling' does not accurately state the test for making an order for costs laid down by s 102(1). In my opinion, the Member in this way set the bar too high against the applicants when deciding whether to make an order for costs in this matter. The test is whether the interests of justice 'require' an order for costs, but I do not accept that the circumstances favouring an order for costs must be compelling before that test will be met.

• [8] Nevertheless, Judicial Member McGill SC conceded that the use of the word 'require' in s 102 means that the default position should not be 'too readily' departed from.[3]
• [9] In Ascot v Nursing and Midwifery Board of Australia, the then Deputy President of the Tribunal, Judge Kingham, noted:[4]

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.

• [10] On 27 July 2020, the QBCC 'approved' a claim by Ms Abbott under the statutory insurance scheme in the amount of $0. In substance, her claim was disallowed.
• [11] On 24 August 2020, Ms Abbott sought internal review of the QBCC decision.
• [12] Section 86C of the Queensland Building and Construction Act 1991 (Qld) ('QBCC') provides that an internal review decision must be made within 28 days of the internal review application, unless a longer period is agreed to by the applicant.
• [13] On 18 September 2020, the internal review officer sought additional documentation from Ms Abbott, and requested an extension of time until 19 October 2020 to make the internal review decision. Ms Abbott declined to allow an extension of time.
• [14] On 22 September 2020, because the extension of time had not been decided within the statutory period, the QBCC made a deemed decision, which was taken to be the same as the original decision pursuant to s 86C of the QBCC Act.
• [15] On 17 December 2020, Ms Abbott lodged an application for review of the internal review decision with the Tribunal.
• [16] On 29 March 2021, the parties filed an application for order by consent. Directions were made in terms of the consent orders on 9 April 2021. Relevantly:

(a) the time for filing the application of review was extended to 17 December 2020; and

(b) the QBCC was invited to reconsider its decision pursuant to s 23 of the QCAT Act.

• [17] On 15 April 2021, the QBCC made the reconsidered decision. The reconsidered decision allowed Ms Abbott's claim under the statutory insurance scheme.
• [18] On 13 May 2021, the QBCC updated Ms Abbott's claim, advising that the amount of $7,540.45 had been approved under her claim.
• [19] On 14 May 2021, Ms Abbott filed her application seeking costs.

• [20] Mr and Mrs Paynter submission in support of their application for costs is that:

(a) the QBCC caused an unnecessary disadvantage to Ms Abbott;

(b) the QBCC failed to correctly interpret the relevant legislation and then did nothing to rectify the issue;

(c) the QBCC failed to afford natural justice to Ms Abbott in the conduct of the internal review process;

(d) the QBCC's conduct was not in good faith and inconsistent with the model litigant principles;

(e) the QBCC failed to correct its error despite having multiple opportunities to do so;

(f) the application before the Tribunal was avoidable.

• [21] I accept that there is a level of complexity to the proceedings, and this is a relevant consideration under s 102(3)(b) of the QCAT Act.
• [22] I also accept that the QBCC made a decision in Ms Abbott's favour upon being invited to reconsider the decision under review. The strength of Ms Abbott's claims is a relevant consideration under s 102(3)(c) of the QCAT Act.
• [23] However, I do not accept that the QBCC denied Ms Abbott natural justice for the purposes of s 102(3)(d)(i). Ms Abbott's submission in this regard appears to stem from the QBCC having sought additional documentation, and requesting an extension of time to consider the documents. When the extension of time was not granted, the QBCC made a deemed decision. This does not amount to a denial of natural justice. The QBCC explained the consequences of a failure to make a decision within 28 days, and Ms Abbott elected not to grant an extension of time.
• [24] Nor do I accept that the QBCC has acted in a way that unnecessarily disadvantaged Ms Abbott for the purposes of s 102(3)(a). Indeed, a powerful factor against awarding costs is that the QBCC consented at an early stage in the proceedings to reconsidering its decision, which it then did in Ms Abbott's favour. The QBCC's conduct led to the proceedings being otherwise resolved in their favour at an early stage.
• [25] Another powerful factor against awarding costs is that Ms Abbott is that the application to the Tribunal could have been avoided if she had agreed to the QBCC's request for an extension of time. In my view, the QBCC's request for an extension of time was reasonable in the circumstances. Had the request been granted, the matter could have been resolved in October 2020. I note that Ms Abbott claims that she was admitted to hospital and was not in a position to correspond. However, the emails provided to the Tribunal indicate that Ms Abbott sent Ms Blaney three emails on 18 September 2020 in response to the request for an extension of time. In no email did she indicate that she was in hospital.
• [26] I have considered the parties submissions on costs in full. In my view, the circumstances of this case fall well short of the interests of justice requiring a costs order to be made, much less overcoming any strong contra-indication against awarding costs contained in s 100 of the QCAT Act.
• [27] For completeness, having found that the QBCC did not act in a way that unnecessarily disadvantaged Ms Abbott, I also decline to make a costs order under s 48(2)(c) of the QCAT Act. I am also not satisfied that it would be in the interests of justice to make a costs order under s 103 against the QBCC's legal representative.

[1] [2010] QCAT 412, [29].

[2] [2021] QCATA 103, [28].

[4] [2010] QCAT 364, [9].