Boyle & Braiden v AXIS Contracting Pty Ltd [2025] QCATA 72

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 83, r 84

Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364

Boyle & Anor v Axis Contracting Pty Ltd [2023] QCATA 139

Bucknell v Robins [2008] QCA 214

Dey v Victorian Railways Commissioners [1949] 78 CLR 62

Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Health Ombudsman v du Toit [2024] QCA 235

Jimenez v Sternlight Investments t/a LJ Hooker Alexandra Hills [2010] QCATA 29

Markan v Bar Association of Queensland [2013] QSC 146

Marzini v Health Ombudsman (No 4) [2020] QCAT 365

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] QSCFC 53

Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412

Smart State Vehicle Rental Pty Ltd v Tri Asset Protection Systems Pty Ltd [2013] QCATA 16

Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118

Yeo v Brisbane Polo Club Inc [2013] QCAT 261

• [1] The applicants, Ms Boyle and Mr Braiden and the respondent, AXIS Contracting Pty Ltd (Axis) have been in a long-standing dispute over the construction by Axis of a dam on the applicants' land.
• [2] In Q00371/22 the applicants had pursued a claim for compensation against Axis for failure to undertake the work with due care and skill and for breach of contract. In Q60887/21 Axis pursued the applicants for payment of its outstanding invoice in the sum of $14,004.70 plus interest and the filing fee.
• [3] The applications were heard together and by a decision made 1 November 2022, Axis succeeded in that an order was made for the applicants to pay Axis $12,602.28 and the applicants' claim was dismissed. Axis then enforced the original decision in Q60887/21 in the Magistrates Court and has received payment.
• [4] On 20 July 2023, Axis brought an application for a minor civil dispute - minor debt in Q2599-23 for recovery of their costs (calculated at an hourly rate for time spent) to pursue payment of their invoice in Q60887/21 and to respond to Q00371/22, for time spent on the enforcement proceedings and interest that was not awarded on the original claim in Q60887/21.
• [5] By a decision made 2 November 2023, the Appeal Tribunal set the 1 November 2022 decision aside because the reasons given by the learned Adjudicator for making the decision were inadequate.[1] The claims were sent back to the Tribunal for rehearing. The Tribunal's decision in both matters upon rehearing is pending.
• [6] The claim for costs in Q2599-23 was not heard until 8 October 2024, when it was dismissed.
• [7] This decision concerns an application for leave to appeal, and, if successful, the appeal by Ms Boyle and Mr Braiden of the Tribunal's decision to dismiss Axis' claim in Q2599-23 to recover the costs of their time spent on the other proceedings.
• [8] The applicants say that the Tribunal below erred by:[2]

(a) continuing the hearing in when neither party could hear the other's oral evidence and submissions, due to telephone connection issues known to the learned Adjudicator (ground 1),

(b) concluding the hearing before considering Ms Boyle and Mr Braiden's application for costs on the dismissal of Axis' claim (ground 2), and

(c) failing to give adequate reasons for not considering the evidence of Ms Boyle and Mr Braiden regarding the frivolous, vexatious nature of the claim (ground 3).

• [9] Pursuant to s 143(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), the applicants require leave to appeal which requires them to satisfy the Appeal Tribunal that:

(a) there is a reasonably arguable case of error in the primary decision;[3]

(b) there is a reasonable prospect that he will obtain substantive relief;[4] and

(c) leave is needed to correct a substantial injustice caused by the error;[5] or

(d) there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[6]

• [10] There is no question of general importance in these proceedings, meaning the application for leave to appeal will turn on whether the Tribunal below made an error and if so whether that error resulted in a substantial injustice to the applicants bearing in mind that mere financial disadvantage, in the absence of hardship, will not amount to substantial injustice.[7]

• [11] The applicants say that they made the Adjudicator aware that they could not hear Mr Richards, but the hearing proceeded anyway. They say, therefore, that they missed a statement by Mr Richards to the effect that he had brought the application to "find out if our contract terms are actually enforceable" and, had they heard it, they would have relied upon that statement to further highlight the frivolous nature of Axis' claim.
• [12] It is not contentious that audio difficulties impacted the conduct of the hearing. For example, according to the transcript:

(a) Upon taking appearances, the Adjudicator announced that the Tribunal was having "a few problems with volume and stuff" and that "the microphones aren't working very well" and asked the parties to "speak a little louder" than they might normally do to preserve the recording.[8]

(b) Shortly afterwards, Mr Braiden interjected in a discussion about whether the application should be adjourned pending the outcome of the appeal by stating that "We actually can't hear Jackson".[9] In response, the Adjudicator repeated what Mr Richards had said.

(c) After taking Mr Richards' evidence and submissions, Ms Boyle and Mr Braiden were invited to make their response. The invitation was worded as follows:

Ms Boyle or Mr Braiden, you've heard the questions I've been asking. What do you want to say to me?[10]

(d) As Mr Braiden began to speak, the Adjudicator asked him to "hang on for a second" while sound problems were resolved. In the end, Mr Richards was having difficulty hearing Mr Braiden, but as the Adjudicator could hear Mr Braiden, Mr Richards simply asked the Adjudicator to simply pass on what Mr Braiden was saying and the Adjudicator agreed.[11]

(e) Mr Braiden then informed the Tribunal that "a lot of what Jackson said we weren't able to pick up, but I am able to ascertain what was said" and proceeded to make submissions that appear in the written transcript as follows:

MR BRAIDEN: ...the way we see it [indistinct] the first one is obviously that it takes [indistinct] and that was noted in [indistinct] the second case is that it's fully [indistinct] nothing [indistinct] and [indistinct] time. And the third hurdle is that, on recording in his [indistinct] Jackson himself [indistinct] Adjudicator, and he hadn't even read the document. He stood up and he told John Forbes that I [indistinct] document [indistinct] on Forbes [indistinct] so now Hinkley advised and [indistinct] that there's three matters, so Jackson [indistinct] that's [indistinct]

(f) The Appeal Tribunal has listened to the audio recording of the above exchange and is satisfied that the words marked "indistinct" in the written transcript are discernible, albeit by listening carefully and with some difficulty. Therefore, the Adjudicator appears to have been truthful, when following this submission, the Adjudicator then says:

ADJUDICATOR: All right. Jackson, nothing that's been said there takes anything away from what's been put in their written documentation.

(g) Just before the decision with reasons is delivered, Mr Jackson reiterates that he had asked for the proceeding to be adjourned until the appeal outcome was known at which point the following exchange occurs:

ADJUDICATOR: All right.

MR BRAIDEN: Okay. Again, we - we're really struggling to hear what Jackson's saying.

ADJUDICATOR: Yes. I apologise. The sound is not good. What I'm doing, Mr Braiden and Ms Boyle, is I'm relying upon all the submissions that you've put in writing to me. All right.

MR BRAIDEN: Yes. Okay. Thank you.

• [13] For several reasons, there is no merit in this ground of appeal.
• [14] Firstly, bringing a claim on an untested contract clause, believing on advice that the clause is enforceable, does not make a claim frivolous, vexatious or an abuse of process - it makes it a test case. Legal advice given to Axis is privileged, but nothing in Mr Richards' evidence suggests that he pursued the claim believing it lacked merit or on advice that it was a long shot and, to the contrary, said he understood that his terms were enforceable and stated that "they are there to protect us from clients like these". He referenced his "clear contractual right to be indemnified" in his submissions.
• [15] Therefore:

(a) the statement that Ms Boyle and Mr Braiden say they missed was not probative of frivolity, vexatiousness or an abuse of process in any event, and

(b) if it was probative, it went to the issue of the applicants' submission on costs, which lacked merit as discussed in relation to appeal ground 2, below.

• [16] Secondly, at no point did either party ask to adjourn the hearing due to the difficulties with the audio. To the contrary, each wished to proceed. Although the situation was not ideal, Mr Richards was content for the Adjudicator to repeat what the applicants were saying, and Mr Braiden elected to proceed on the basis that he had in fact ascertained what was said. The difficulties were not such that in the absence of objections by the parties to the matter proceeding or an adjournment request it was not open to the learned Adjudicator to proceed.
• [17] Finally, except for the statement referenced above, the applicants have not explained how the difficulties were detrimental to them in terms of the final outcome, given that Axis' claim was dismissed, and their own written submissions were extensive and were relied upon and noted by the learned Adjudicator in giving his decision on the merits.

Ground 2 : The overlooked application for costs

• [18] The response to the minor civil dispute - minor debt claim was filed on 28 July 2023. It included an 'Annexure A to Response' that:

(a) in paragraph 10, sought an order that the application be dismissed in its entirety, and

(b) in paragraph 11, sought an order that Ms Boyle and Mr Braiden be awarded costs "on the basis that the interests of justice require one". A footnote to this statement cited s 102 of the QCAT Act as the basis of the costs order.

• [19] Paragraph 12 of the Annexure A to Response set out submissions on the 'interests of justice' that included that the claim was vexatious and an abuse of process with no real prospects of success.
• [20] Paragraph 13 of the Response made a claim for indemnity costs in the sum of $2,050.00 plus GST.
• [21] Further submissions filed on 4 April 2024 again sought an order that Ms Boyle and Mr Braiden be awarded costs in their favour on the basis that the interests of justice require one.[12] Section 102 of the QCAT Act was again footnoted to the submission. It was also extracted, with highlighting, as was rule 83 and 84 of the Queensland Civil and Administrative Tribunal Rules 2009 (QCAT Rules).
• [22] Final submissions filed 1 October 2024 state that Ms Boyle and Mr Braiden "maintain the position that the application...is frivolous, vexatious and an abuse of power"[13] but did not express that any orders were sought in reliance upon that submission.
• [23] Upon perusing the hearing transcript and the transcript of reasons given for the dismissal, it is not controversial that the learned Adjudicator did not refer to the costs order contained in the response, nor did he consider or take oral submissions from the applicants on the question of costs before giving his decision to dismiss Axis' application.
• [24] There is likely a simple reason for this: the applicants were not entitled to any costs on the dismissal.
• [25] Section 100 of the QCAT Act requires parties to a proceeding to bear their own costs, "other than as provided under this Act or an enabling Act". Relevant to these proceedings, there are two alternate paths to costs in the minor civil dispute jurisdiction: ss 47 and 102 of the QCAT Act.

• [26] As summarised by Senior Member Howard as she then was, in Belmed Pty Ltd v Nichols Constructions Pty Ltd:

[10] Section 47 applies if the Tribunal considers that the proceeding or part of it is frivolous, vexatious or misconceived; lacking in substance; or otherwise an abuse of process: s 47(1). The Tribunal may, in the exercise of its discretion, among other things, in those specified circumstances in which the section applies, dismiss or strike out the proceeding or part of it; or make a costs order against the party who brought the proceeding to compensate for any reasonable costs, expenses, loss, inconvenience or embarrassment. Therefore, an order for costs can be made under s 47 as a means of addressing the situation when the application or part of it is considered by the Tribunal to fall within those categories specified in s 47(1).

...

[14] Section 47 allows the Tribunal, in its discretion, if it is satisfied that s 47(1) applies, to make various orders in the alternative. One of those orders is an award of costs. In this case, the application under section 47 has already been dismissed by me and I made no finding that the section applied. Therefore, there is no basis for making an order for costs under section 47. Also, an award of costs is a possible alternative order to dismissal when a section 47 application is made. There is no current application. In my view this application for costs under section 47 must fail.

• [27] Put simply, a party can ask the tribunal to dismiss, or its own initiative the tribunal can dismiss an application because it is frivolous, vexatious, or an abuse of process. Alternatively, a party can ask the tribunal to order, or the tribunal can order on its own initiative, costs to a responding party if a proceeding is found to be frivolous, vexatious, or an abuse of process, but only one of these outcomes is available under s 47 if the tribunal makes the relevant finding, not both.
• [28] On appeal, the applicants argue that the reasons given by the learned Adjudicator for the dismissal "show no consideration to this section of the Act", namely to s 47. This is true. What is also true is that the applicants did not ask the Adjudicator to make a decision pursuant to s 47, which was not mentioned by the applicants until the application for leave to appeal or appeal was filed.

• [29] Section 102 gives to the tribunal the discretion to make a costs order if it considers that the interests of justice require it to do so.
• [30] In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)[14] President Justice Wilson said:

The phrase "in the interests of justice" is not defined in the Act but is to be construed according to its ordinary and plain meaning, which obviously confers a broad discretionary power on the decision-maker.

• [31] In Marzini v Health Ombudsman (No 4) [2020] QCTA 365 at [17] Judicial Member D J McGill SC said:

The terms of the sections make it clear that the starting point is that no order for costs is to be made, but authorises a costs order if the interest of justice require it. The use of the word 'require' suggests that the interests of justice must clearly support a costs order; but to say that they must do so 'compellingly', and to treat s 100 as having 'a strong contra-indication against costs orders', is to read into the statutory discretion restrictions which are not based on the terms of the Act.[15]

• [32] In deciding whether to award costs in a matter the tribunal may have regard to factors such as:[16]

(a) whether a party to a proceeding acted in a way that unnecessarily disadvantages another party to the proceeding;

(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) the financial circumstances of the parties; and

(e) anything else the Tribunal considers relevant.

• [33] These factors are not grounds for awarding costs but factors to be considered in determining whether, in a particular case, the interests of justice require a costs order.[17]
• [34] Limits on the power to award costs in minor civil disputes are set out in section 102(2) which provides that the only costs the tribunal may award in minor civil disputes are those stated in the QCAT Rules.
• [35] In turn, the QCAT Rules provide:

(a) In r 83 that for minor civil disputes other that minor debt, costs can only be awarded against a party only if the party is a respondent against whom the tribunal has made a final decision and only to order the party to pay the filing fee paid on the application for the proceeding.

(b) In r 84 that the costs that may be awarded for minor debt claim are limited to one or more of the filing fee paid on the application, service and bailiff fees and business name or company search fees.

• [36] Axis' claim was dismissed by the learned Adjudicator because:

(a) It was considered to have amounted to "claim splitting" because it ought to have been made in the original claim that sought payment of the invoice. Axis' counter-argument to that had been that the costs were not incurred or known when the invoice was originally pursued, and that the claims are separate because one arises from the completion of work done and the other from a breach of contract (by the failure to pay the invoice).

(b) The costs were costs of the proceeding and of other proceedings that were not recoverable in the minor civil dispute jurisdiction. Axis counter-argument to that was that costs were not sought under the QCAT Act but rather under the express terms of the contract between the parties.

(c) The clause of the contract pursuant to which costs were claimed was considered to be limited to 'out of pocket' costs and not Axis' own time spent on the various proceedings. Respectfully, the Appeal Tribunal's view is that this is not the correct interpretation of the clause because the use of the word "including" before out-of-pocket costs are listed means the recoverable costs under that clause are not exhaustive. Nothing turns on this.

• [37] Although the findings in (a) and (b) above might have grounded a s 47 dismissal, the decision to dismiss was one ultimately made on the merits of Axis' claim. The applicants did not ask the tribunal to dismiss the claim under s 47 and the decision to dismiss was not expressed as a s 47 dismissal, nor can a s 47 dismissal be implied given that the s 47 dismissal power:

(a) ought only to be exercised "sparingly" and "when a claim is groundless or futile",[18]

(b) requires evidence to be weighed to reach a conclusion about whether the applicant has an arguable case,[19]

(c) requires that the lack of any cause of action be very clear,[20] and that the tribunal be satisfied to a "high degree of certainty about the outcome" before making the decision to dismiss,[21] and

(d) should not be exercised simply because it appears an applicant is unlikely to succeed on an issue of fact, in circumstances where there are factual issues in dispute and capable of dispute.[22]

• [38] Further, by its express terms, the applicants' claim for costs included in the Response was made pursuant to section 102 of the QCAT Act. References to the proceeding being frivolous, vexatious and an abuse of process were made, and reiterated, in the context of the applicant's submissions on what the interests of justice required in a s 102 consideration. A copy of section 102 and rules 83 and 84 were included in the submissions, with highlighting. Section 47 was not.
• [39] Put simply, Axis' claim was dismissed on its merits and s 47 was never engaged to trigger an award of costs pursuant to it. At no stage were costs claimed pursuant to s 47 and the Tribunal below was not asked to make a finding that the proceedings were brought frivolously, vexatiously or as an abuse of process in considering the dismissal, but, rather, as arguments in favour of a costs order in the interests of justice under s 102. It is not open to the applicants to amend the ground upon which they sought costs on appeal.
• [40] As for the costs claimed under s 102, r 84 clearly limited the costs that might have been awarded to Ms Boyle and Mr Braiden to a filing fee, service fee and bailiffs fee that they did not incur on the response, in the absence of a counter-application having been filed in the proceeding.
• [41] It follows that, whilst the request for costs contained in the response was overlooked by the Adjudicator in error and no submissions on costs were called for or referenced in his reasons, it cannot be said that Ms Boyle and Mr Braiden suffered a substantial injustice due to the error because had these matters been considered, no costs would have been payable in any event.
• [42] There is no merit in this ground in this ground of appeal.

• [43] There is an obligation on the Tribunal to give reasons for its final decision in a proceeding either orally, or in writing.[23] Reasons must be adequate and address the issues that were put before the Tribunal for determination, per Muir JA in Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219 at [58]:

The rationale for the requirement that Courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with "a justifiable sense of grievance" through not knowing or understanding why the party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice with procedural fairness; to provide "the foundation for the acceptability of the decision by the parties and the public" and further "judicial accountability".

• [44] Having said that, in Smart State Vehicle Rental Pty Ltd v Tri Asset Protection Systems Pty Ltd [2013] QCATA 16 Justice Wilson, President noted at [8]:

In the Tribunal's minor civil disputes jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the QCAT Act. The Appeal Tribunal should be slow to criticise oral reasons for decision without acknowledging the circumstances in which they are given, or the pressure of the learned Magistrate's caseload.

• [45] Failure to give adequate reasons is an error of law if it denies the disappointed party natural justice.[24] As Dr Forbes has observed [25] a failure to give reasons "... adds insult to the injury of an adverse decision. Without reasons, how can a party be confident that the case was understood and properly considered?".
• [46] Ms Boyle and Mr Braiden allege that the learned Adjudicator's reasons were inadequate because they did not consider and apply s 47 and the costs application contained within the response, and because he did not consider or make findings that the application was brought frivolously, vexatiously or as an abuse of process.
• [47] For the reasons given in relation to Ground 2 and paragraph [34] above, namely because:

(a) s 47 was not engaged in the proceeding, including in the costs application contained within the response and later submissions filed,

(b) nothing compelled the Tribunal to initiate its own findings under s 47, and

(c) allegations of vexatiousness, frivolity and abuse of process were made in the context of the costs application under s 102, not under s 47, and

(d) by s 102 and r 84, there were no costs that could be awarded to the Ms Boyle and Mr Braiden in the proceeding,

although it may have been an error for the Tribunal below not to address the issue of the costs sought under s 102, as there were no costs to award, no substantial injustice arises from the error.

• [48] The reasons given otherwise thoroughly explain the decision made to dismiss the application on its merits.
• [49] There is no merit in this ground of appeal.

• [50] For the reasons given, leave to appeal is refused and the application for leave to appeal or appeal is dismissed on that basis.

• [51] The applicants seek inmdenity costs and the reimbursement of their filing fee on the application for leave to appeal or appeal. The application has been wholly unsuccessful. In fact, with the benefit of legal representation, the applicants made a costs application expressly under s 102, aware of its limitations in the minor civil dispute jurisdiction by reason of r 84. This application, suggesting the Tribunal erred in failing to consider awarding costs under s 47 when they were not sought under s 47, was bound to fail. The interests of justice do not support an award of costs on this application and the Appeal Tribunal declines to award them for that reason.

[1] Boyle & Anor v Axis Contracting Pty Ltd [2023] QCATA 139.

[2] Application for leave to appeal or appeal filed 18 December 2024.

[3] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[4] Cachia v Grech [2009] NSWCA 232, 2.

[5] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[6] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.

[7] Bucknell v Robins [2008] QCA 214.

[8] Transcript at page 1-2, lines 25-35.

[10] Transcript at page 1-2, lines 6-7.

[11] Transcript at page 1-8, lines 10-37.

[15] The Court of Appeal agreed with these observations in Health Ombudsman v du Toit [2024] QCA 235 at [62].

[17] Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 at [9].

[18] Yeo v Brisbane Polo Club Inc [2013] QCAT 261, [5]-[7] citing Dey v Victorian Railways Commissioners [1949] 78 CLR 62.

[19] Dey v Victorian Railways Commissioners [1949] 78 CLR 62.

[20] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125.

[21] Yeo, ibid at [6], citing Agar v Hyde (2000) 201 CLR 552; Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162; Markan v Bar Association of Queensland [2013] QSC 146.

[22] Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118.

[24] Jimenez v Sternlight Investments t/a LJ Hooker Alexandra Hills [2010] QCATA 29, [26].

[25] Justice in Tribunals (3rd Ed) (Federation Press, Sydney, 2010) at p 249 para 13.2.