Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors

Acts Interpretation Act 1954 (Qld), s 14, s 35C

Human Rights Act 2019 (Qld), s 31, 13(1)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 100, s 102

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

Bakir v Body Corporate for Chevron Renaissance & Ors (No 4) [2019] QCATA 28

Bell v State of Queensland & Anor [2015] QCAT 369

Brisbane Marine Pilots Pty Ltd v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors [2021] QCAT 436

Campbell v Queensland Building and Construction Commission [2021] QCATA 34

Campbell v The Body Corporate for 70 Bowen St CTS 15330 & Ors (costs) [2020] QCATA 26

CH v Queensland Police Service [2021] QCATA 137

Cowen v Queensland Building and Construction Commission [2021] QCATA 103

Croatian Community Centre (Qld) Ltd v Boss Lawyers Pty Ltd [2022] QCAT 94

Fast Access Finance (Beaudesert) Pty Ltd and Anor v Charter and Anor (No 2) [2012] QCATA 172

Fuge v Queensland Building and Construction Commission [2014] QCAT 383

Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2022] QCATA 27

Klein v Domus Pty Ltd [1963] HCA 54; (1963) 109 CLR 467

Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327

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

Maylor (No. 2) -v- Mid North Coast Area Health Service [2001] NSWADT 118

McEwan v Barker Builders Pty Ltd [2010] QCATA 49

McGee v Queensland Building and Construction Commission & Anor [2018] QCATA 124

Melville & Anor. v Body Corporate for Santorini by the Sea CTS 16829 [2022] QCAT 119

Murray v Body Corporate for the Mediterranean Towers CTS 35038 [2022] QCATA 31

Murtough v NSW Bar Association [2008] NSWADT 166

Queensland Racing Integrity Commission v Vale [2017] QCATA 110

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

R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51

Samimi v Queensland Building Services Authority [2012] QCAT 133

Stuart v Queensland Building and Construction Commission [2016] QCATA 135

Tamawood Ltd & Anor v Paans [2005] QCA 111

Turner v Macrossan & Amiet Pty Ltd (No 2) [2016] QCAT 255

Warren v Queensland Law Society Incorporated (No 2) [2013] QCAT 234

Matthew Hickey OAM counsel, instructed by Clyde & Co.

Scott McLeod QC and Florence Chen counsel, instructed by Crown Law for the General Manager of Maritime Safety Queensland, Department of Transport and Main Roads

John McKenna QC and Samuel Walpole counsel, instructed by MinterEllison for Poseidon Sea Pilots Pty Ltd, Matt Stannard and Colin Kesteven

• [1] These are applications for costs brought by Poseidon Sea Pilots Pty Ltd (PSP) and by Matt Stannard and Colin Kesteven and by the General Manager of Maritime Safety Queensland, Department of Transport and Main Roads (MSQ). They all seek a costs order against Brisbane Marine Pilots Pty Ltd (BMP). BMP failed in review proceedings in the tribunal.
• [2] There are currently two irreconcilable lines of authority demonstrating different approaches to the starting point for costs and these applications require me to decide between them. I also need to analyse the impact on costs of the successful party being legally represented and this being reasonably necessary, but which may erode the fruits of success.
• [3] In the review proceedings, BMP claimed to be 'a person whose interests are affected by an original decision', that is a decision by MSQ to grant licences to Matt Stannard and Colin Kesteven to operate as pilots in the Brisbane Pilotage Area for the port of Brisbane. BMP asked the tribunal to stay MSQ's decision about the licences. Upon a valid request of MSQ to review such a decision by way of internal review, the tribunal would have power to stay the decision. BMP asked the tribunal for such a stay.
• [4] The context of all this was that since 1989, BMP had been the sole pilotage provider for the Brisbane Pilotage Area under a series of contracts made with MSQ. From 1 January 2022 the applicant was to cease to be the pilotage provider. Instead, the second respondent, PSP, had been appointed as pilotage provider for the ten years starting 1 January 2022. A pilotage provider must provide pilots to navigate ships of over 50 metres.
• [5] The application for review was originally brought against MSQ and against PSP as interested parties, and the two named pilots were joined to the proceedings by consent a little later. At the hearing of this matter BMP's counsel explained that BMP would seek to challenge the granting of pilot licences to all PSP's pilots and would do so on the same grounds if necessary if a stay were to be granted in respect of the currently joined pilots.
• [6] All parties obtained the leave of the tribunal to be legally represented. The two pilots were represented by the same solicitors and counsel as PSP. In this decision, when I refer to PSP's costs application, in the correct context this should also be read as referring to the costs application made by the two pilots.
• [7] In the application for a stay, BMP challenged the training given to the PSP candidates for pilot licences and how they were assessed by MSQ when the decision was made to grant the licences.
• [8] The issues which arose from this matter were largely technical, starting with an understanding of the statutory provisions under which the application was properly made, then the question whether BMP had sufficient standing on any basis to bring the application for a stay of the decision, and finally whether such a stay should be granted pending an internal review of the decision by MSQ.
• [9] BMP was wholly unsuccessful in the application. In the decision delivered on 20 December 2021 after hearing the parties and reading the filed material,[1] I decided that BMP had not been entitled to request MSQ internally to review the decision to grant the licences. This meant that BMP could not apply to the tribunal for a stay of the decision as it had done in these proceedings. I decided that BMP did not have sufficient standing on any basis to bring the application for a stay of the decision. In any case I found that a stay should not be granted pending an internal review of the decision by MSQ even if it did have sufficient standing.
• [10] PSP's claim for costs is for $110,000 - being an amount which, it is said in an affidavit in support, would be likely to result from an assessment of the costs - bearing in mind that the solicitor client costs are $169,030.49, including disbursements.
• [11] MSQ's claim for costs is for $51,300, which again is an amount calculated assuming that that they would be assessed.

• [12] In this matter, the power to award costs is in Division 6 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The relevant part of these provisions are:

Division 6 Costs

100 Each party usually bears own 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.

102 Costs against party in interests of justice

(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.

• [13] Costs could also be awarded in the tribunal under section 47 of the QCAT Act (costs order following dismissal or strike out because the proceeding is frivolous, vexatious, misconceived, lacking in substance or an abuse of process) and also under section 105 and rule 86[2] (offers to settle).
• [14] Here we are concerned with an application for costs under section 102. At first sight anyway, it can be seen that section 100 seems to state a general rule, and section 102 gives the tribunal power to order costs if it considers the interests of justice require it to make the order.

The relevant factors relied on by the costs applicants

• [15] In this costs application, submissions are made by PSP and MSQ in an attempt to show that the interests of justice require the tribunal to make an order for costs. These submissions fall under the headings of BMP's motive in bringing the proceedings (which is said to be to gain a financial advantage), the fact of the heavily commercial nature of the proceedings, the merits of BMP's application (which are said to have always been weak), the fact that one application made by BMP was incompetent, and a sweep up submission (relying on PSP's and MSQ's need to be legally represented and incur costs in order to succeed in the matter).

• [16] MSQ submit that in making the application, BMP sought to gain financial advantage because if it had been successful in achieving a stay, MSQ would have had to enter into a contract with BMP for pilotage services after the existing agreement with BMP ended, because the affected PSP pilots would not have been able to provide those pilotage services.
• [17] PSP's submissions are much stronger. They describe BMP as being a disappointed commercial party, making the application for review in order to attempt to frustrate the pilotage contract awarded by MSQ to PSP and to disrupt nearly two years of work by MSQ and PSP on the handover, with the potential to cause considerable financial losses to PSP because of its financial outlay and loss of future revenue from the contract.
• [18] PSP say that therefore the application was not of the usual type which is determined by the tribunal in its review jurisdiction and the tribunal should not be concerned about deterring other applicants from invoking the tribunal's review jurisdiction by making a costs order.
• [19] It is true that had BMP been successful in the application, it is likely that MSQ would have had to maintain the status quo by extending BMP's contract (it had already been extended by one year because of Covid-19) or entering into a new contract to the same effect. The tribunal's final consideration of the review could have taken some time. Meanwhile PSP would suffer heavy financial losses. The application therefore had a heavily commercial nature.
• [20] There are things in my original decision which support these submissions about BMP's motive:

(a) To help to achieve a proper handover of the pilotage contract from BMP to PSP, MSQ asked BMP to permit PSP's pilots during December 2021 to observe BMP's pilotage operations on the bridge. The idea was that this would give PSP's pilots 'on water' experience in the Brisbane Pilotage Area in real life situations. Since the existing pilots were all employed by BMP, it had direct control over whether or not this handover would occur. However, BMP refused to co-operate with this proposal.[3] At the hearing before me, through counsel, BMP offered an explanation for this saying that there was no contractual or statutory obligation to co-operate in this way.

(b) PSP agreed with MSQ that in the month of December 2021, PSP's pilots would provide pilotage services in the Brisbane pilotage area. I called this the 'parallel pilotage plan'. This would have meant that BMP's pilots would be working in the same area of water as PSP's pilots. To manage this, MSQ set up an Operational Readiness Group involving all interested parties. BMP was asked for its cooperation and a meeting was arranged to discuss the plan but the applicant declined to attend.[4] A letter written the day before the hearing and dated 14 December 2021 which was in evidence,[5] shows that BMP had been alleging that the parallel pilotage plan would be a breach of its pilotage service contract. The MSQ letter said that this was not accepted but 'in order to avoid a potential dispute during the transition of services ... we wish to inform you that MSQ will no longer be pursuing this proposal'.

(c) One of the BMP's adverse interests relied on in order to show sufficient standing to bring the stay application was a contract made by BMP under which they would send their tugs through the Brisbane Pilotage Area after the changeover date on a barge of such a size that a pilot would be required.[6] BMP said that there were safety concerns if a PSP pilot were to be used for this voyage and so their interests would be affected. A solution was offered by MSQ, to consider providing BMP with an exemption for the voyage so that BMP could use one of its own pilots instead. This would require written agreement from BMP but it was submitted at the hearing on behalf of BMP that there was nothing to show that this would be forthcoming. Hence it was said, the adverse interest was maintained despite the offer.[7]

• [21] Inevitably these things leave the tribunal with the impression that BMP was intent upon not only being uncooperative with the handover to PSP, but also trying to disrupt it by bringing the application for a stay as PSP submits. The question is whether, in the absence of cross examination of BMP's witnesses, it is right to rely on this impression when considering costs.
• [22] In my original decision I made findings about the evidence showing that there was nothing to suggest that BMP's witnesses were not genuine in their concerns about the safety of the new recruitment, training and assessment arrangements.
• [23] I agreed with the submissions made by Mr McKenna on behalf of PSP, that the views expressed by BMP's witnesses about the inadequate training and experience for the PSP pilots was not given with the benefit of actual knowledge of the pilots involved or the training that they have received.[8]
• [24] I also found that the views of the witnesses were expressed without knowledge of the process of recruitment, assessment and training undertaken by PSP before engagement of the prospective pilots and without knowledge of the assessments against criteria carried out by MSQ for the granting of the pilot licences as was now set out in the affidavits. In particular, the evidence was clearly not given in the knowledge that all PSP's candidates for pilot licences are highly experienced ship masters and most of them are qualified pilots, albeit mostly with experience in other ports.[9]
• [25] Equally it cannot be said that the BMP witnesses did not truly believe that the training given to the new pilots was insufficient and unsafe as they stated in their affidavits. There was no cross examination, and in those circumstances I must assume that the evidence was thought to be correct at the time the affidavits were made.
• [26] Also it is not possible to say, without cross examination, whether BMP intentionally failed to co-operate with the handover in order to obtain ammunition in the review proceedings by being able to suggest that the new pilots had insufficient bridge training. This could be limited to irony or it could be manipulation of the highest order designed to disrupt the handover. All that can be said is that BMP had no legal obligation to co-operate with the handover. Any duty to do so would be a moral one only, or one aimed at achieving maximum safety upon the contract takeover in the public interest. As it turned out, it was clearly a serious defect in the contractual arrangements between MSQ and BMP not to provide for co-operation with a handover upon the ending of the contract.
• [27] In the circumstances, in the absence of cross examination of BMP's witnesses, it would be wrong for me to assume that BMP had manufactured a case or had an improper motive for the proceedings.

• [28] It has been emphasised in the submissions for costs that the proceedings were of a commercial nature.
• [29] But many reviews heard by the tribunal have a commercial nature in the sense that they involve a party in trade and commerce. An example was Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2022] QCATA 27 considered below. It was not suggested in that case that the fact that the party seeking the costs order was in trade and commerce made any difference to the outcome of the costs application, apart from being a factor under section 102(3)(e) (financial circumstances of the parties).
• [30] Although the commercial nature of the proceedings and the amount at stake may be taken into account when considering whether the interests of justice require an order for costs to be made it does not appear strongly to lean the tribunal in that direction.

• [31] It seems to me for the purposes of costs in review matters it is necessary to understand the merits as they reasonably appeared to the applicant when the application was made and at any stage during the currency of the application where there is a significant shift in the merits. Such a shift quite often happens as the evidence is filed, or as new considerations arise. There have been many costs decisions based on whether a party should have withdrawn a review application (or in a respondent's case, should have offered a reconsideration if available) on such a shift happening.
• [32] Both PSP and MSQ point out that BMP failed in all aspects of the application, that is standing, prospects of success on review and the balance of convenience in the stay application. PSP say that BMP had a weak case from the outset.
• [33] It is important I think, that when BMP first brought the stay application it could show far more easily than at the time of the hearing that it was 'a person whose interests are affected by an original decision'. This was because the parallel pilotage plan was at that time still proceeding. A day before the hearing, the parallel pilotage plan was abandoned.[10] By that time however, quite substantial costs had already been incurred. I think it would have been difficult for BMP to unwind matters in the time available, so as to avoid the costs of the hearing.
• [34] In any case, the apparent merits of the application were still not as bad as turned out to be the case later. It was still arguable that standing should be assessed at the time of the application, rather than at the date of the hearing, and if this were correct then the merits were not so weak as to demand a withdrawal.
• [35] Also, on my findings about BMP's evidence in the section above under 'BMP's motive', the merits of the application would have appeared a lot better than they would have appeared after the evidence filed by PSP and MSQ. Even then it seems to me that the case was still arguable.
• [36] One of the main reasons why the application failed in the first instance was because it was outside the scope of the tribunal's administrative review jurisdiction. This was because the decision to grant the pilot licences was a natural and inevitable consequence of earlier non-reviewable decisions.[11] It was for that reason that I decided that BMP did not have sufficient standing on any basis to bring the application for a stay of the decision. It cannot be said that it was obvious or even foreseeable that the tribunal would come to this view. I say that because it was not a submission made either by MSQ or by PSP. Hence it cannot be said that the weakness of the application on those grounds could or should have been recognised by BMP when it made the application.
• [37] I conclude that although the merits may be taken into account when considering whether the interests of justice require an order for costs to be made, it does not appear strongly to lean the tribunal in that direction.

• [38] The application which is said to be incompetent was an application to stay a decision of MSQ filed by BMP on 9 December 2021. Six days earlier on 3 December 2021 BMP had filed an application to stay a decision of MSQ, and in the actual sequence of events it was that application which was in the tribunal's jurisdiction and not the later one.[12] There was in fact a further application filed by BMP over which the tribunal had no jurisdiction.[13]
• [39] Although there is no explanation from BMP as to why these incorrect applications were filed, it seems likely that given the urgency and importance of the matter BMP's legal representatives wished to ensure there was some matter before the tribunal and so wished to cover all eventualities. If that is not the explanation, then mistakes were made.[14]
• [40] Either way, I cannot see that the incorrect applications should have any substantial effect on the outcome of the costs application because there is nothing in the costs applications showing that any legal costs were incurred by reason of the incorrect applications. It seems to me that it is probably the case that no such costs were incurred because exactly which of the various applications which had been made were within the tribunal's jurisdiction was not at the forefront of the parties' submissions at the original hearing.

• [41] Both PSP and MSQ make the submission that:

(a) The dispute was one of considerable public and commercial significance.

(b) They had no choice but rigorously to respond to the application for review.

(c) Inevitably they had to engage lawyers including Queen's Counsel, junior counsel and solicitors.

(d) As it turned out, the case for a review was very weak.

(e) They won the case.

• [42] Although all these things are true, the question is whether they are sufficient for the tribunal to say that the interests of justice require an order for costs.
• [43] In their submissions, both PSP and MSQ submit that they are sufficient.
• [44] Using identical wording, and citing a passage in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, [26], Justice Alan Wilson, President, both submit 'that it is well recognised that':

where the complexity of the matter justified legal representation, it would not be in the interests of justice to bar the successful party from recovering costs that were reasonably necessary to achieve a satisfactory outcome

• [45] In fact, that passage was Justice Wilson's summary of a view expressed by Keane JA in Tamawood Ltd & anor v Paans [2005] QCA 111, [33].
• [46] Also, relying on a passage in Cowen v Queensland Building and Construction Commission [2021] QCATA 103,[15] PSP suggest that this is indeed the correct starting point when deciding whether the interests of justice require the tribunal to make a costs order, so that unless there are countervailing considerations BMP should be ordered to pay its costs.[16]
• [47] In its submissions, MSQ cite and rely on Marzini, Cowen and CH v Queensland Police Service [2021] QCATA 137 for the proposition that the test for costs under section 102 is not whether factors favouring an order are 'compelling' as suggested in Ralacom, but rather whether the interests of justice 'require' an order for costs. However, the word 'require' shows that an order for costs should not be too readily made.
• [48] MSQ cite Cowen at [26] as saying that the words in the heading of section 100 'each party usually bears own costs' do not mean that usually no order for costs will be made and that it is meaningless to talk of a usual order in a particular case especially where parties are usually unrepresented and the legislation does not state that it should only be made in exceptional circumstances.
• [49] BMP point out that in Ralacom, when summarising the view expressed by Keane JA in Tamawood, Justice Wilson said that the view had to be considered in the light of different statutory provisions in QCAT which were not displaced.[17] I agree with these submissions.
• [50] BMP submit that the default position is that each party must bear their own costs and that (citing Justice Daubney, President, in Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327) on an application for costs the question 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 section 100 of the Act.
• [51] BMP run through the factors in section 102(3) and find nothing there requiring an order for costs.

The two lines of authority on the question of costs

• [52] In their submissions therefore, the parties to these cost applications rely on the two currently contrasting lines of authority requiring quite different approaches when dealing with a costs application in the tribunal under section 102. Although at first instance I would be obliged to follow authority at least for reasons of consistency, it is not clear which line of authority is currently paramount.
• [53] In their submissions BMP rely on the traditional line of authority in approach (a) and PSP and MSQ rely on the recently developed line of authority in approach (b). The two approaches are:

(a) Section 100 is the usual rule (a starting point) which, when read with section 102, means that each party bears their own costs unless the interests of justice require otherwise (as explained in McGee[18]). So the question that will usually arise 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 section 100 (traditional line of authority in Ralacom and Magill).

(b) Section 100 should be read together with section 102 so that the overall rule is that the tribunal will award costs if the interests of justice require it to make the order (recently developed line of authority in Cowen and CH). This also means that section 100 is not a starting point; instead there is a new starting point where the successful party had good reason to be legally represented: in those circumstances costs should follow the event unless there are relevant countervailing considerations (Cowen).

• [54] Without deciding this, it seems likely that which approach I choose to follow will effectively decide the outcome of this costs application. This is because, in this particular case, if I choose (a), the sweep up submission is only a factor to take into account, but if I choose (b), the sweep up submission will be a starting point or at least highly persuasive in the absence of countervailing considerations. And there probably are no such countervailing considerations.
• [55] Hence I need to choose one or the other. This is also important because the two approaches have been shown to produce quite different results on a practical level. In both Cowen and in CH, the member at first instance decided, applying approach (a), that there should be no costs award, but on applying approach (b) the Appeal Tribunal decided that there should be a costs award.
• [56] In considering this, I am conscious of the fact that whether something is required in the 'interests of justice' is a matter of subjective judgement and will vary between decision makers. These variations arise from decision makers having a different understanding of the meaning of the expression (for example, whether the expression is limited to consideration of fairness as between the parties or whether it has a wider meaning in the public sense). Or decision makers applying different weight to all the various factors which might need to be considered. This makes it much harder for parties to predict the outcome of 'the interests of justice' test than for example where the test is of reasonableness, or a breach of tribunal's directions which might apply in other jurisdictions.

• [57] Approach (a) was firmly established in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412. There, Justice Alan Wilson, President, having cited the dicta from Keane JA in Tamawood, but because of the differences in the statutory provisions applying, decided that the dicta would need to 'be considered in the light of those differences'. Then he said that:

the question that will usually arise 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 s100.

• [58] But in Marzini v Health Ombudsman (No 4) [2020] QCAT 365, Judicial Member McGill SC found this wording curious because there was nothing in section 100 to show a 'strong contra-indication' against costs orders and that requiring the 'interests of justice' to support a costs order 'compellingly' was reading into the statutory discretion restrictions which are not based on the terms of the Act.[19]
• [59] Instead, he considered that sections 100 and 102 should be read together so that the ultimate question was whether it is in the interests of justice to make a costs order.[20]
• [60] Judicial Member McGill SC revisited this in Cowen v Queensland Building and Construction Commission [2021] QCATA 103 and maintained his view that the relevant test was whether the interests of justice require an order for costs.[21]
• [61] In CH v Queensland Police Service [2021] QCATA 137, [6] and [7], Judge Allen QC Deputy President agreed with Judicial Member McGill SC's conclusion in Marzini and in Cowen. The appeal against the refusal of the costs order was allowed because the member relied on the 'so compellingly' test in Ralacom which 'unduly constrained the discretion to be exercised' in section 102 and therefore acted on a wrong principle and erred in law in so doing.
• [62] The deputy president said:[22]

I agree with the conclusions reached by Judicial Member McGill SC in that decision as to the correct approach to the operation of sections 100 and 102 of the QCAT Act:

The ultimate question posed by the statutory provisions is whether in a particular case the interests of justice require the Tribunal to make a costs order. That is the effect of the terms of the statute. Because of the use in s 102(1) of the word 'require', the default position of no order as to costs should not be too readily departed from.

...

I do not consider that there is any justification in the words of the statute for any further constraint on the operation of the power to order costs under s 102, although the section directs attention to a number of matters which may in a particular case be usefully considered. The reference to "any other matter the Tribunal considers relevant" shows that this list is not to be read in a confining sense.

I also agree with the observations of Judicial Member McGill SC in Cowen v Queensland Building and Construction Commission, including the following:

In so far as his Honour went further in Ralacom at [29], I consider that his statement cannot confine the discretion conferred on the Tribunal under s 102(1), or modify the test in that section.

...

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) ... 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.

• [63] For my part, I find it difficult to reconcile the disappearance of what I regard as the section 100 starting point and the merger of sections 100 and 102, with what was said in Tamawood itself. In that case the Court of Appeal considered whether the District Court which had heard the earlier appeal (DJ McGill SC) had been right to say that the costs provisions in the Commercial and Consumer Tribunal Act 2003 (Qld) (CCTA) merged into one test: so that ultimately the test for costs in the CCTA was whether the interests of justice require a costs order to be made.
• [64] The Court of Appeal said the costs provisions did not merge into one test and that the District Court was incorrect to apply the test in that way. As Keane JA said:[23]

The language of the provisions of the Act to which I have referred is sufficiently clear to negate the proposition that success in the proceedings is sufficient to establish a prima facie entitlement to the beneficial exercise of the discretion conferred by s 71(1) of the Act. The approach of the learned District Court judge seems to me, with respect, to deny the words of both s 70 and s 71(5) their ordinary meaning; it is not to the point that another form of words might have been used to make that position even clearer.

The Explanatory Memorandum to the Bill for the Act said that one of the key principles underpinning the operation of the Tribunal was to be an 'emphasis on self-representation - provisions are made in the Bill for parties to represent themselves, thus ensuring that the [Tribunal] maintains informality'. It went on to provide that:

Clause 70 establishes beyond doubt that the purpose of this Division is that parties pay their own costs unless the interest [sic] of justice require otherwise. This provision is in keeping with the objective of the Bill to establish an informal and cost effective tribunal.

The approach taken by the learned District Court judge cannot be said to 'best achieve the purpose' of the Act made evident by s 70.

..

To view s 70 in the same light as the learned District Court judge is effectively to leave the new provision with no real work to do.

• [65] And Williams JA, having recited a submission that section 70 should be treated as analogous to a preamble, explained that it contained the starting point:[24]

Section 70, although it expresses the purposes of the division, cannot be equated with a preamble. It is part of the statute and has the same force and effect as s 71. It is made clear by s 70 that the starting point is that each party should 'pay their own costs unless the interests of justice require otherwise'. Then s 71 deals with the considerations relevant to deciding whether some order for costs should be made and the situation where the Tribunal has determined that the interests of justice require that some order for costs be made. The sections can, and should, be read together as indicated by Keane JA in his reasons.

• [66] To explain the finding here it seems helpful to set out the relevant statutory provisions in the CCTA:

70 Purposes of div 7

The main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise.

71 Costs

(1) In a proceeding, the tribunal may award the costs it considers appropriate on -

(a) the application of a party to the proceeding; or

(b) its own initiative.

(2) The costs the tribunal may award may be awarded at any stage of the proceeding or after the proceeding has ended.

(3) If the tribunal awards costs during a proceeding, the tribunal may order that the costs not be assessed until the proceeding ends.

(4) In deciding whether to award costs, and the amount of the costs, the tribunal may have regard to the following -

(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.

Examples of paragraph (g) -

The tribunal may consider whether a party to a proceeding is acting in a way that unreasonably disadvantages another party to the proceeding.

The tribunal may consider whether the proceeding, or a part of the proceeding, has been frivolous or vexatious.

(5) A party to a proceeding 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.

(6) The power of the tribunal to award costs under this section is in addition to the tribunal's power to award costs under another provision of this or another Act.

• [67] When Justice Wilson in Ralacom compared the wording of sections 70 and 71 of the CCTA with the costs provisions in the QCAT Act, he concluded that the QCAT provisions 'more plainly indicate that the legislature had turned its face against awards of costs in this tribunal'.[25]
• [68] In the light of this, since the Court of Appeal in Tamawood considered that it was wrong to regard the starting point in section 70 of the CCTA as disappearing and therefore wrong to consider the test being simply whether it was in the interests of justice to award costs, which was an issue directly before the court for consideration and determination, then the view of the Court of Appeal must apply even more strongly to the QCAT Act provisions where the starting point is separate, having its own heading in section 100.[26]
• [69] This closer study of Tamawood itself therefore seems strongly to suggest that approach (a) is correct.
• [70] There is also a substantial body of tribunal case law favouring approach (a).
• [71] In Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327, [3] and [5] Justice Daubney, President described section 100 as being the 'starting point' and the 'prima facie' position and citing McEwan v Barker Builders Pty Ltd [2010] QCATA 49, [17], that section 100 is a plain indication that, as a matter of policy, the legislature turned its face against awards of costs in the tribunal. As Justice Daubney said:[27]

The applicant had a lawful entitlement to have access to this Tribunal's review jurisdiction, which exists in a prima facie 'no costs' environment. The matter was conducted expeditiously and efficiently. It has not been demonstrated that the interests of justice in this case overcome the mandated primary 'no costs' policy.

1. There are two Appeal Tribunal decisions when Justice Wilson's 'compelling' and 'strong contra-indication' description of sections 100 and 102 in Ralacom was challenged in submissions by legal representatives and therefore fully considered, and the challenge rejected by the Appeal Tribunal. Unfortunately neither of these Appeal Tribunal decisions were cited in Marzini or CH.[28]

• [73] The first decision was Stuart v Queensland Building and Construction Commission [2016] QCATA 135. It was submitted by a legally represented party that the approach in Tamawood should be preferred over the approach in Ralacom, and that it was incorrect to apply a gloss on the words of the Act such as to require the applicant to make out a compelling case for costs as opposed to what the justice of the case demands.[29] However, Senior Member O'Callaghan and Member Deane pointed out that Tamawood applied quite different statutory wording and was a building dispute. The Appeal Tribunal confirmed that the weight of the factors must be compelling for the starting position of each side bearing their own costs to be overcome.[30]
• [74] The second decision was McGee v Queensland Building and Construction Commission & Anor [2018] QCATA 124 Senior Member Brown and Member Traves said:[31]

.. it was argued that s 102 should be read on its own, and was not to be coloured by s 100. We reject this argument. In our view ss 100 and 102 must be read together. When read together, the simple construction is that, other than as provided under the QCAT Act or an enabling Act, each party bears their own costs unless the interests of justice require otherwise. If there was no starting point that each party bear their own costs, there would be no work for s 100 to do. This, in our view, is not what the legislature intended.

• [75] Other Appeal Tribunal authority has confirmed the approach in Ralacom. Examples are Fast Access Finance (Beaudesert) Pty Ltd and Anor v Charter and Anor (No 2) [2012] QCATA 172, [13], Dr J R Forbes, whose dicta was approved by Justice Carmody in Queensland Racing Integrity Commission v Vale [2017] QCATA 110 at [43], and more recently Campbell v Queensland Building and Construction Commission [2021] QCATA 34, [36], where Senior Member Brown and Member Traves said that the member at first instance had not been wrong to cite Ralacom and refer to 'strong contra-indication'.
• [76] For my part I do not regard Justice Wilson in Ralacom as having amended or supplemented the tests to apply under section 100 and 102. Instead, he was simply describing what those sections say. As can be seen below, the discretion conferred by sections 100 and 102 must be applied having regard to the aims and objects of the QCAT Act, and bearing in mind the starting point in section 100, this means that there is indeed a strong contra-indication against costs orders in the tribunal. With such a strong contra-indication against costs orders, only when the interests of justice are compelling can it be overcome. This is simply describing the effect of the statutory provisions on costs in the tribunal.

• [77] In Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2022] QCATA 27, Senior Member Howard and Member Fitzpatrick found a point in that case which distinguished Cowen,[32] so did not attempt to resolve the conflicting authorities.
• [78] In Murray v Body Corporate for the Mediterranean Towers CTS 35038 [2022] QCATA 31, Member Lember, the 'so compellingly' and 'strong contra-indication' test in Ralacom was cited[33] but neither Cowen nor CH were cited.
• [79] In Croatian Community Centre (Qld) Ltd v Boss Lawyers Pty Ltd [2022] QCAT 94,[34] Hon. Duncan McMeekin QC, Judicial Member, the 'so compellingly' and 'strong contra-indication' test in Ralacom was cited with approval[35] but neither Cowen nor CH were cited.
• [80] In Melville & Anor. v Body Corporate for Santorini by the Sea CTS 16829 [2022] QCAT 119 when refusing costs to a partially successful applicant in a body corporate dispute, Member Carrigan cited Ralacom, Cowen and CH, but applied the test that 'the costs are governed by the general rule in s 100 of the QCAT Act that each party must bear their own costs of the proceedings except where the Tribunal's discretion is enlivened in the interests of the injustice'.
• [81] In Abbott v Queensland Building and Construction Commission [2022] QCAT 129 in refusing costs to a successful applicant for review where the QBCC reconsidered its decision at early stage in proceedings, Member Cranwell cited Ralacom and Cowen and concluded:[36]

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.

Conclusion as to the weight of the differing authorities

• [82] In summary, although normally more recent authority would have greater weight than older authority, the birth of the more recent authority in support of approach (b), that is Marzini, Cowen and CH, happened without the benefit of legal argument on the particular issue involved, that is the correctness of Justice Wilson's description of the effect of sections 100 and 102 as a 'strong contra indication' requiring a 'compelling' interests of justice argument to displace it. They were also decided without citing Appeal Tribunal decisions confirming the correctness of the description where there had been such argument. The sheer longevity of the traditional approach in Ralacom seems to gives it greater weight, and there is nothing in the more recent decisions to guide me one way or another.
• [83] On that basis alone I would tend to go with the traditional approach, but having analysed the Court of Appeal decision in Tamawood it can be seen that the suggestion in approach (b) that the starting point in section 100 merges into the real test which should be applied (a test of 'interests of justice') was indeed rejected by the Court of Appeal on the statutory provisions of the CCTA, and the QCAT Act is stronger in that regard.
• [84] Obviously with the greatest respect to the decision makers in Marzini, Cowen and CH, for these reasons I find myself unable to follow these cases. It seems to me to be correct to follow the line of authority for approach (a) rather than approach (b).

• [85] Since the costs applications before me are finely balanced, and it has been necessary closely to analyse the principles which apply, I am also going to take into account other considerations which seem important.

The 'interests of justice' is wider than just what is fair to the parties

• [86] Since the tribunal will consider in every costs application under section 102 whether the interests of justice require it to make the order, it is helpful to know whether the expression 'interests of justice' is limited to what is fair to the parties or whether it has a wider meaning.
• [87] In the QCAT Act itself, it can be seen that the expression is used in the private sense of what is fair to the parties but also in the public interest sense, which includes the interests of the administration of justice by the tribunal.
• [88] The expression 'interests of justice' is used in the QCAT Act only in the private sense in sections 49 (reinstatement of proceeding and restriction on new application or referral) and 103 (costs against representative).
• [89] But it is clearly used also in the wider public sense in section 43 (representation), where the tribunal would be assisted in the administration of justice by State agencies being represented [a consideration in section 43(3)(a)], where legal arguments and marshalling of evidence would assist the tribunal because of complex questions or fact or law [a consideration in section 43(3)(b)] and also from representation for a child or a person with impaired capacity [a ground for leave in section 43(2)(b)(i)].
• [90] Section 45 (general obligation of parties) infers that the expression interests of justice in section 102 is used not only to benefit the parties in having their dispute resolved quickly, but also in a wider sense enabling the tribunal to meet the objects of the QCAT Act to deal with matters in an economical and quick way.[37]
• [91] Section 58 (interim orders) describes the making of an interim order if the tribunal considers it appropriate in the 'interests of justice' to secure the effectiveness of the exercise of the tribunal's jurisdiction [section 58(1)(b)], which is a clear use of the expression in the wider public interest and administration of justice sense.
• [92] Finally, in section 66 (non-publication orders) and section 90 (public hearing) the expression is used in the QCAT Act with a meaning not confined to justice between the parties themselves having regard to their own private interests but also a wider meaning involving the public interest, to benefit the administration of justice.
• [93] From this study it seems to me that as a matter of statutory interpretation the expression 'interests of justice' in section 102 can be construed both in the private sense of what is fair to the parties but also in the public interest sense, which includes the interests of the administration of justice by the tribunal.
• [94] It is also the case that the discretion conferred by the expression 'the interests of justice' must be exercised in accordance with the object and purpose of the legislation giving the power. As was said by Dixon CJ in Klein v Domus Pty Ltd [1963] HCA 54; (1963) 109 CLR 467 at 473:

This Court has in many and diverse connexions dealt with discretions which are given by legislation to bodies, sometimes judicial, sometimes administrative, without defining the grounds on which the discretion is to be exercised ... We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and at what is its real object. If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.

• [95] This would not be possible if the expression were limited only to a private sense of fairness as between the parties, so this strongly indicates that it is used in the wider public interest sense, which includes the interest of the administration of justice by the tribunal.

• [96] It is clear from the passage in Klein above, that the discretion to award costs must be exercised so as to achieve the aims and objects of the Act conferring the discretion. In particular the QCAT Act requires the tribunal to deal with matters in a way that is accessible, fair and just, economical, informal and quick.[38] To achieve its objects the tribunal must ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice.[39]
• [97] These objects reflect what was intended when QCAT was formed. The explanatory note to the QCAT Bill said:

The Bill will achieve its objective of dealing with matters in a way that is accessible, fair, just, economical, informal and quick by:

• allowing representation of parties in specified matters and in other matters, only with the leave of the tribunal
• providing that parties bear their own costs in proceedings unless the tribunal considers the interests of justice require it to order otherwise.

• [98] This second bullet point is closely similar to the then Attorney-General Cameron Dick's speech in the second reading of the Bill:

To ensure QCAT remains as informal and as economical as possible, parties will generally represent themselves. However, if the interests of justice or the rules of natural justice require a party to be represented, QCAT will grant leave for the representation. To ensure QCAT is a low-cost jurisdiction, parties must generally bear their own costs unless the tribunal considers it is appropriate in the interests of justice to award costs.

• [99] The QCAT model was put succinctly in McGee, where having stated the 'simple construction' of the costs provisions that, other than as provided under the QCAT Act or an enabling Act, each party bears their own costs unless the interests of justice require otherwise, the Appeal Tribunal stated:[40]

This interpretation of the costs provisions is also consistent with the objects of the QCAT Act which include to provide a way for parties to settle disputes that is economical, informal and quick. The practice of awarding costs has the potential to make proceedings more adversarial and, accordingly, increase the formality and technicality with which parties approach them. It is also consistent with one of the key principles underpinning the operation of the Tribunal, the emphasis on self representation. The purpose of the Costs Division in having parties pay their own costs unless the interests of justice require otherwise, or for example s 105 of the QCAT Act is engaged, is clearly in keeping with the objective of establishing an informal and cost-effective tribunal.

• [100] Some of these aims and objects need greater discussion in the light of developments since the formation of the tribunal.

• [101] Accessibility to justice is an object of the QCAT Act.[41] As was explained by Judicial Member Britton sitting with two members of the Equal Opportunity Division of the NSW Administrative Decisions Tribunal in Maylor (No. 2) -v- Mid North Coast Area Health Service [2001] NSWADT 118:[42]

In their attempts to make justice more accessible, Governments throughout Australia had created a number of administrative tribunals.

To encourage a resort to law, and to make government authorities more accountable to the citizens of Australia and the various States and Territories, many if not most administrative tribunals established on the model of the Commonwealth Administrative Appeals Tribunal generally expect the parties to bear their own costs. This is particularly so where the respondent party is usually a government authority.

• [102] There is no doubt that some prospective parties would be intimidated by the prospect of having to pay the other side's legal costs if their application or response to a matter in the tribunal were unsuccessful.
• [103] This is not helped by the fact that some legal costs are extremely high. An example is a recent guardianship matter heard over four days with two additional days. The legal costs of the party seeking costs were $409,581.45.[43] In a matter concerning the termination of a body corporate service contract, costs of one party were $427,340 and the other party were $472,500.[44] In a review of a QBCC decision about insurance, costs of one party were $478,000.[45] In a review of a QBCC decision about insurance and an associated building dispute, costs of one party were some $613,000.[46] In another matter concerning the termination of a body corporate service contract the costs of the contractor reached a staggering $800,000.[47]
• [104] That such costs are allowed to be incurred in the tribunal, if there is any power to stop this, seems to be contrary to the objects of the QCAT Act which are to have the tribunal deal with matters in a way that is economical, where the tribunal must encourage the early and economical resolution of disputes, and ensure proceedings are conducted in an informal way that minimises costs to parties.[48]
• [105] Although it is likely that careful case management could reduce such costs, there is no mechanism operated by QCAT to require the parties to keep costs down. The closest is the ability to fix costs after the event when making a costs order.[49] This differs therefore from the court rules which apply in the UK, which require all parties (and not just their representatives) to help the court to further the court's overriding objective to deal with cases justly and at proportionate cost.[50] And in ordinary civil actions there are comprehensive costs management powers. All represented parties are automatically required to provide a costs budget at the start of proceedings which would be discussed and endorsed by the court, and which would form the basis of any assessment of costs.[51] If it appears to be necessary the court can cap the costs which may be allowed on assessment before they are incurred.[52]
• [106] A recent survey has shown that in Australia, only 52% of households have savings of $10,000 or more; only 29% of households have savings of $50,000 or more; and only 15% of households have savings of $100,000 or more.[53] This means that even with much smaller legal bills than those referred to above, those who might wish to seek redress in the tribunal, or to join as a party interested, may be deterred by the prospect of having to pay the costs of the other party or parties if unsuccessful, as well as their own costs if they are represented. That such deterrence occurs in review proceedings in the UK is well understood.[54]
• [107] The importance of ready and economical access to justice has become more obvious with the passing of the Human Rights Act 2019 (Qld) which provides in section 31:

(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

• [108] It has been understood for a long time that this right goes far further than simply being entitled to a procedurally fair hearing. It is a right of access to the courts,[55] which must provide a person with 'a clear, practical opportunity to challenge an act that is an interference with his rights',[56] and this will include where court procedures are so complex that a solicitor would be required but which the person is unable to afford.[57]
• [109] Since the right to access to justice is not absolute, the question under the Human Rights Act in Queensland would be whether such an impediment is a reasonable limit that is demonstrably justified in a free and democratic society based on human dignity, equality and freedom.[58]
• [110] It is not fanciful to say that a financial burden imposed on a party when accessing a court or tribunal may be a contravention of such principles and may not be demonstrably justified. In R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51 a large UK trade union successfully challenged application and hearing fees which had been imposed in employment tribunal claims and appeals to the Employment Appeal Tribunal. In holding that the fees were invalid, the UK's Supreme Court said:
  1. At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.
  2. Access to the courts is not, therefore, of value only to the particular individuals involved.
• [111] In Australia it is not yet known whether the same approach will be taken as was taken in Unison.
• [112] In any case, the tribunal is designed to provide a level playing field for both the legally represented and self-represented (leave under section 43 of the QCAT Act is normally required for a party to be legal represented). This is achieved by the understanding and specialism of its members, their training,[59] the encouragement of members to act in a way that promotes the collegiate nature of the tribunal,[60] and the requirement to ensure that parties have proper understanding and regard of the practices and procedures of the tribunal, the nature of assertions made in the proceeding and the legal implications of the assertions and any decision of the tribunal relating to the proceeding.[61] It is assisted by the use of compulsory conferences, where the purposes include identifying and clarifying the issues in dispute in the proceeding and identifying the questions of fact and law to be decided by the tribunal.[62] It is also assisted by the fact that the tribunal is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; that the tribunal may inform itself in any way it considers appropriate and must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit.[63] Finally it is assisted by the tribunal having to ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.[64] In practice this will often require the tribunal during case management, and in the hearing, identifying the issues of fact and law to be decided, the applicable case law to apply, and to be more interventionist than would be the case in the mainstream courts.
• [113] In review applications and occupation regulation matters, a move closer towards costs following the event would mean that the government or regulatory authority would be at a greater risk of having to pay costs of a successful party. This seems particularly inappropriate where the tribunal is being asked to reach the correct and preferable decision by a fresh hearing on the merits.[65]
• [114] A corollary of this would be that the government or regulatory authority would have a better chance of obtaining their costs if successful because generally they would be legally represented [a State agency is a circumstance supporting leave: section 43(3)(a) of the QCAT Act]. The current position is that government or regulatory authorities very rarely apply for costs, but it could be foreseen that if costs orders are more readily made against them then they may start applying for costs if successful as a matter of course.
• [115] There is authority describing the 'chilling effect' of too readily making costs orders against applicants in administrative tribunals where the parties are normally expected to bear their own costs.
• [116] As it was put by Deputy President Britton in Murtough v NSW Bar Association [2008] NSWADT 166:

A determination of the question whether costs should be awarded requires a balance to be struck between the 'chilling effect' of too readily ordering costs against complainants (see Maylor (No.2) v Mid North Coast Area Health Service [2001] NSWADT 118 at [23]) and the need to ensure that parties conduct their cases in such a way that costs are not unnecessarily incurred or forced on others. The real questions to be determined are whether, due to a combination of factors, circumstances have arisen that displace the general presumption against an order for costs and, if so, whether the order ought be an order for costs of the entire proceedings or an order for the costs in relation to part of the proceedings.

• [117] Accessibility is not only important for applicants. As Senior Member Oliver said in Fuge v Queensland Building and Construction Commission [2014] QCAT 383 when refusing costs to an applicant for a review which was wholly successful, and having pointed out that review proceedings are not adversarial:[66]

Here, not only does the Commission have an obligation to assist the Tribunal, it also has to have regard to the objects of the QBCC Act. It has a statutory obligation to administer the Act, to ensure that industry standards are maintained, and achieve a reasonable balance between the interests of building contractors and consumers. This is particularly so in circumstances where registered builders are directors of companies that go into liquidation, or become bankrupt, which inevitably results in financial harm to financial institutions, trade creditors and homeowners. It also brings the industry into disrepute.

..

I reiterate that under the QBCC Act, the Commission has a dual function in administrating the Act. That is, to protect the public interest and also the interests of building contractors. In doing so it must not be reticent in discharging its obligations for fear of adverse costs orders against it if it is unsuccessful in responding to an application for review of its decisions unless it can be demonstrated, there is some specific conduct on the part of the Commission, that would 'so compellingly' overcome the strong contra-indication against costs orders in s 100 of the QCAT Act. I am not satisfied that this is the case here.

• [118] The need to prevent abuse of low cost or no cost dispute resolution offered by tribunals such as QCAT was recognised by Judicial Member Britton sitting with two members of the Equal Opportunity Division of the NSW Administrative Decisions Tribunal in Maylor (No. 2) -v- Mid North Coast Area Health Service [2001] NSWADT 118. The costs provisions applying to that tribunal were that if a complaint was dismissed the tribunal may order the complainant to pay the respondent's costs, notwithstanding the statutory presumption that each party will bear its own costs.[67]
• [119] Referring to these provisions, the tribunal said:[68]

It is clearly Parliament's intention that potential complainants not be discouraged from pursuing complaints by the threat of an award of costs, unless the pursuit of the complaint is so entirely unmeritorious that it ought never to have been brought in the first place.

Respondents unjustly pursued and forced to defend themselves at significant cost have a general right to expect that the Tribunal will take appropriate action to compensate them for the reasonable and necessary costs of meeting the case mounted against them, and to deter vexatious, frivolous or unmeritorious complainants from further pursuing them.

11 In Langley v University of NSW (1984) EOC 92-018 at 75,468, Hutley J said:

In my opinion, the complaints in this case lacked any conceivable merit in fact of law. Under those circumstances my only criticism of the proceedings so far is that this was a case in which the complainant was not ordered to pay the costs by the Tribunal. That is the one effective sanction available to keep this Act within bounds and to ensure it will not be made the subject of gross abuse.

• [120] It is notable in this respect that section 47 of the QCAT Act empowers the tribunal to make an order for costs following dismissal or strike out because the proceeding is frivolous, vexatious, misconceived, lacking in substance or an abuse of process.

• [121] To my mind, if a party is taken by surprise by an application for costs which unexpectedly appears to have a prospect of success, this may well be unfair to the party. Section 29 of the QCAT Act requires the tribunal to ensure that each party understands (i) the practices and procedures of the tribunal; (ii) the nature of assertions made in the proceeding and the legal implications of the assertions; and (iii) any decision of the tribunal relating to the proceeding. I think this means that parties must have informed knowledge of any serious risk as to costs when they are a party to tribunal proceedings.
• [122] Until recently, a party to a review application in the tribunal would be advised that if they or the other side were legally represented, usually there would be no order for costs. This would be based on the wording of sections 100 and 102 as understood in the published decisions.
• [123] This would mean that a person who wished to seek a review of a government decision like, for example the refusal of a Blue Card, would reasonably believe that if the application were unsuccessful it would be unlikely that they would have to pay the government department's legal costs. In turn, such an applicant would reasonably believe that if they wanted to be legally represented in the tribunal and had leave from the tribunal for this, then it would be unlikely that they would be able to recover these costs from the government department. In other words, this would be a luxury that they would have to pay for themselves.
• [124] The promotion of the quality and consistency of tribunal decisions and the enhancement of the quality and consistency of decisions are objects of the QCAT Act,[69] and the tribunal must ensure like cases are treated alike.[70]
• [125] Because of the above matters, I think that parties would need to be warned if the tribunal was more likely in the future to award costs to a successful party than before.

What is the impact of legal representation being reasonably necessary and the erosion of the fruits of success if there is no costs order?

• [126] This is important because in their sweep up submissions both MSQ and PSP rely on the fact of their legal representation being reasonably necessary and their success in the proceedings as showing that the interests of justice require the tribunal to make an order for costs in their favour.
• [127] Unfairness if no order is made in those circumstances, where the fruits of success would be eroded, was recognised by Keane JA in Tamawood Ltd & Anor v Paans [2005] QCA 111:[71]

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.

• [128] In their submissions, PSP rely on this passage in Cowen v Queensland Building and Construction Commission [2021] QCATA 103, at [67] where Judicial Member McGill SC described this starting point:

The question is whether the interests of justice require that an order for costs, and what order be made. In my opinion the starting point as to the identification of the interests of justice is the passage from Tamawood cited earlier: that it would be unjust for the appellants' success to be substantially eroded by having to pay their own costs incurred in achieving their success in the first review. This was a case where the appellants' legal expenses were reasonably incurred. It is then a question of whether there are any relevant countervailing considerations, and what comes from a consideration of the specific matters in the QCAT Act s 102(3).

emphasis added

• [129] This view, that Keane JA's dicta is a starting point where both sides are represented with good reason is only available if approach (b) considered earlier is the correct approach. This is because if approach (a) is correct instead, then the starting point is that each party shall bear their own costs.
• [130] If the Cowen starting point were to be adopted in the tribunal generally it would be a significant departure from the approach taken on costs in the past, changing expectations from 'usually there will be no order for costs' to 'usually costs will follow the event where legal representation is ordered'. This is because it is to be assumed that the tribunal would not grant a party leave for legal representation unless it was reasonably necessary. This certainly seems to be the principle of section 43 of the QCAT Act which permits the tribunal to allow representation.
• [131] On that basis, if such a party were successful it would seem to be almost impossible, in the absence of countervailing circumstances, for the tribunal to decline an award of costs because to do otherwise would be 'irrational' according to the dicta of Keane JA in Tamawood in the passage above.
• [132] In the light of such potential for irrationality, exactly what countervailing circumstances might overcome the new starting point is unclear. In reality it is probable that in most cases the starting point of legal representation being reasonably necessary would simply produce the costs outcome. In other words, if the tribunal gives leave for a party to be legally represented due to the complexity of a matter, and that party is successful, then a costs order in favour of that party would usually be made.
• [133] However, I have not found any past tribunal decision where legal representation being reasonably necessary has been regarded as a starting point for an award of costs in the sense that once that is shown, in the absence of countervailing considerations there should be an award of costs.
• [134] CH v Queensland Police Service [2021] QCATA 137 does not seem to support the Cowen starting point. There the Deputy President, Judge Allen QC, agreed with the conclusions of Judicial Member McGill SC in Marzini and with his observations in Cowen. But he seems to have taken care to specify which particular conclusions and observations he agreed with, and despite it being directly relevant to the matter before him, he does not refer to the starting point. Instead of relying on the starting point, the Deputy President simply stated that he considered that the interests of justice required a costs order in the circumstances of the case.[72]
• [135] For legal representation being reasonably necessary to be a starting point for an award of costs in the tribunal seems particularly inappropriate when considering the position of a government agency whose decision is found to have been the correct and preferable one on review by the tribunal, or a disciplinary body whose disciplinary action is found to be justified by the tribunal. Such agencies or bodies will almost always be legally represented either by in-house or external lawyers, and reasonably so. It cannot be the case that the starting point is that they will be awarded costs.
• [136] Until now it has been extremely rare for such bodies to make an application for costs, other than such costs as may be expressly contemplated by statute. And to permit such costs order to be made has been described as a 'chilling effect' (considered above when considering accessibility).
• [137] Instead, although the passage from Tamawood set out above has been applied many times in the tribunal it is regarded only as a factor to take into account, but not a conclusive one.
• [138] It seems that this is largely because in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No.2) [2010] QCAT 412, Justice Alan Wilson, President, pointed out that the QCAT costs provisions more plainly indicate (than the provisions being considered in Tamawood) that the legislature had turned its face against awards of costs in this tribunal. Hence he said, Keane JA's dicta should be 'considered in the light of the difference' between the two provisions and that 'the principles found in Tamawood provide guidance about the circumstances in which it may be in the interests of justice for this tribunal to award costs against parties.'
• [139] A typical example of this applying in practice was Bell v State of Queensland & Anor [2015] QCAT 369 where the applicant was partially successful in a sexual harassment allegation and was awarded compensation of $9,000 which was completely swallowed up in her legal costs. She claimed costs of some $113,000 from the respondents. In considering this, Member Ann Fitzpatrick said:[73]

I accept the respondents' proposition that just because a matter justifies legal representation does not mean a successful party is entitled to a costs order. However, in this case I consider that the level of complexity of the case was such as to warrant legal representation in order to achieve the success Mrs Bell did achieve. I consider that the guidance given by Keane JA, is apposite and that it is not in the interests of justice for Mrs Bell to have her award completely eroded by the costs of representation.

I do not find that the need for legal representation entitled the payment of costs. I do not find that this is the test prescribed by ss100 and 102. I find that it is a relevant factor in the exercise of my discretion that, as Keane JA said, 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.

• [140] The Appeal Tribunal has also taken this approach, for example Bakir v Body Corporate for Chevron Renaissance & Ors (No 4) [2019] QCATA 28, where Senior Member Brown Senior Member Howard said:[74]

The engagement of legal representatives for a complex case may, in the absence of countervailing considerations, be a basis for awarding costs. However the fact of legal representation does not, of itself, compel the conclusion that an award of costs is in the interests of justice. Other factors must be taken into consideration including the nature and complexity of the proceedings, the relative strength of the applicant's claim, whether legal representation was required to achieve a just result and the extent to which a party's success in a proceeding is eroded by bearing their own costs.

• [141] Greater weight seemed to be put on the fact of the fact of legal representation being necessary in Turner v Macrossan & Amiet Pty Ltd (No 2) [2016] QCAT 255, where Justice Carmody said that Keane JA's remarks in Tamawood should be treated with some circumspection but that the fact that legal representation was required to ensure that the respondent secured a just result was a significant factor in favour of a costs order but was not conclusive.[75]
• [142] It would seem that the principle might apply not only where legal representation is required because of the complexity of the matter, but also where legal representation is required because of the vulnerability of a party or because of the way a case is presented by another party. Thus in Campbell v The Body Corporate for 70 Bowen St CTS 15330 & Ors (costs) [2020] QCATA 26 the tribunal awarded costs where an appeal from a departmental Adjudicator was hopeless, where the appellant was legally represented and the appeal was argued in such a way that the respondent had little choice but to engage a lawyer.
• [143] Sometimes a distinction is made based on the type of success achieved in the proceedings, so that the tribunal is able to consider whether in truth the fruits of such success would be eroded by no order for costs. For example, in a permitted individual review heard by Member Ann Fitzpatrick, Samimi v Queensland Building Services Authority [2012] QCAT 133 she said:[76]

I find that the applicant perceived a complexity in the matter which compelled him to seek legal assistance. However, I do not think that just because it is reasonable to be legally represented, that costs must necessarily follow without some other compelling reason, such as a party being deprived of the benefit of an award by the need to pay legal costs, as discussed in Tamawood Limited & Anor v Paans.

• [144] In that case Member Fitzpatrick set aside the QBSA's decision that the applicant was not a permitted individual, she decided not to award costs against the QBSA because it was not a case where a money order had been achieved which was likely to be seriously eroded by the need to pay costs to a successful party's lawyers, thus diminishing the effect of the order.[77]
• [145] This same approach was taken recently in Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2022] QCATA 27 a party was automatically joined to an application to review a decision made by the Chief Executive not to allow a claim from the claim fund established under the Agents Financial Administration Act 2014 (Qld). The application for review was unsuccessful and went on appeal, which also failed. In other words the tribunal confirmed the decision made by the Chief Executive to refuse the applicant's claim from the claim fund. The joined parties applied for their costs of the appeal against the applicant.
• [146] In declining to make an order for costs, Senior Member Howard and Member Fitzpatrick distinguished Tamawood and Cowen on the basis that the absence of a costs order did not 'substantially erode' the joined party's success because the party had only preserved its financial situation.[78] In other words these two scenarios were distinguished:

(a) where the joined party had reasonably incurred legal costs and was successful because a decision was confirmed so that the party had preserved its financial position;

(b) where a party had reasonably incurred legal costs and was successful because a decision was set aside so the party would achieve a positive financial benefit which would be substantially eroded if no costs order were made.

• [147] It would remain to be seen whether in practice this distinction is workable. For my part, I find it difficult to see why there should be a distinction in the two approaches based on whether or not the party's financial position was improved by receiving money, rather than being improved by not having to pay money.

Conclusion as to the impact of legal representation being reasonably necessary and the erosion of success if there is no costs order

• [148] My conclusion after considering these authorities is that the fact of legal representation for the costs applicants being reasonably necessary either because of a special need on their part, or because of the complexity of the proceedings or because of the behaviour of the other party is a factor in favour of costs but is not conclusive. It will be a more significant factor if the financial effect upon the successful party of having to pay all their own costs, would erode the fruits of the success.
• [149] There are no blanket rules about this, or new tests to apply. Instead, it is one of the relevant considerations for the tribunal to consider under section 102(3) when deciding whether the interests of justice require it to make a costs order. Since the discretion needs to be exercised to achieve the aims and objects of the QCAT Act and since the interests of justice is not limited to fairness between the parties themselves but extends to the public interest, including the administration of justice, the wider effect of the decision about costs on accessibility, prevention of abuse and meeting parties' expectations needs to be considered. This needs to be balanced against the extent to which it is fair to make the order having regard to the impact of that upon both parties.

• [150] I am following the tribunal's traditional line of authority which is that section 100 is the usual rule (a starting point) which when read with section 102 means that each party bears their own costs unless the interests of justice require otherwise. So the question that will usually arise 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 section 100. I shall also regard the fact of legal representation for the costs applicants being reasonably necessary as a factor in favour of costs but not conclusive, and try to achieve the balancing act of private and public interests referred to above.
• [151] I go back to my consideration of the points relied on by the costs applicants at the beginning of these reasons.
• [152] As for BMP's motive and conduct, although I am left with the impression that BMP was intent upon not only being uncooperative with the handover to PSP, but was indeed trying to disrupt it by bringing the application for a stay as PSP submits, it would be unfair to BMP to find this as a fact. And having regard to my findings about BMP's evidence it cannot be said that the evidence was knowingly untrue or contrived.
• [153] Overall, it is difficult to see how BMP's conduct, in so far as it can be criticised, can be any more than a limited factor when considering whether the interests of justice require an order for costs to be made.
• [154] It is true that the proceedings were heavily of a commercial nature, but that is only a factor to consider as many such review proceedings are of that nature. It is true that the amount at stake was more than usual but it is difficult to see how that could affect the question of costs.
• [155] It is true that the merits turned out to be poor but as found above, when the application was made, the merits would have appeared much better, and because of the speed that the tribunal dealt with the application there was probably little opportunity to end the proceedings once they had gathered momentum.
• [156] It is true that two applications made by BMP were incorrect but it does not appear that costs were enlarged because of this.
• [157] Following the lines of authority which I have chosen, the sweep up submission (that costs should follow the event where the successful party necessarily required legal representation) is persuasive only. It is not a starting point or itself conclusive on the question of costs.
• [158] Considering MSQ's costs first, it is very unusual for a government agency or regulatory authority to apply for costs in a review.
• [159] One example when such an order was made was Warren v Queensland Law Society Incorporated (No 2) [2013] QCAT 234, where Justice Alan Wilson, President, awarded costs to QLS in a case where the applicant's conduct during the proceedings bordered on the egregious, having pursued proceedings 'which had little apparent merit and, on any realistic assessment, poor prospects and has done so in a way which has greatly added to the costs of her opponent'.[79]
• [160] In Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327, [12], Justice Daubney, President, when dealing with another application for costs by the QLS, contrasted the situation with Warren. He said that applicant always had an arguable case, and was seeking a review which was required to be heard and determined by way of a fresh hearing on the merits and in which he could adduce fresh evidence, but albeit was unsuccessful. Although if there was a no costs order the QLS would have to meet its costs from its own funds that was a necessary function and unavoidable consequence of the respondent's statutory position as a 'regulatory authority'. In the circumstances the applicant had a lawful entitlement to have access to the tribunal's review jurisdiction, which exists in a prima facie 'no costs' environment. The matter was conducted expeditiously and efficiently. It had not been demonstrated that the interests of justice overcome the mandated primary 'no costs' policy.
• [161] It is the case that the tribunal was very much assisted in coming to its conclusion by the evidence filed by MSQ, and it is correct to say that in this review MSQ had no choice but to participate fully in the proceedings, both in compliance with its statutory obligation to help the tribunal and to provide relevant documents and evidence,[80] but also because the integrity of pilotage in the Brisbane Pilotage Area was at stake.
• [162] But the factors I have considered above put this matter much closer to Magill than to Warren and having regard to those other considerations which would be of concern if costs are too readily awarded against an unsuccessful applicant for review, the fact that MSQ would normally expect to have to bear its own costs, and so the financial impact meets those expectations, I do not think that the tribunal is required to make an order for costs in the interests of justice. I decline to make an order for costs against BMP in MSQ's favour.
• [163] Turning to PSP's application for costs, their position differs from MSQ's in that the PSP parties were all joined as interested parties. It is not suggested in the costs submissions however, that a joined party has a better case to be awarded costs in a review than a government agency or regulatory authority, solely by the fact of the joining. The Appeal Tribunal decision in Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2022] QCATA 27 demonstrates that a joined party does not have a better case for costs solely on that ground. So the same principles apply to a joined party applying for costs as they apply to a government agency or regulatory authority doing so - one important one being the concern in reviews of the 'chilling effect' of too readily awarding costs against regulatory complainants.
• [164] It is the case that the tribunal was also very much assisted in coming to its conclusion by the evidence filed by PSP. And instinctively the heavily commercial and adversarial nature of this review would lead to the conclusion that costs should follow the event.
• [165] On the figures that I have seen the financial impact on PSP of having to pay its own costs will not be significant and so it is difficult to say that the fruits of its success in the litigation will be eroded if there is no costs order. Having regard to all the considerations above, I do not think that the tribunal is required to make an order for costs in the interests of justice. Therefore I also decline to make an order for costs against BMP in favour of PSP.

[1] Reported at Brisbane Marine Pilots Pty Ltd v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors [2021] QCAT 436.

[2] Queensland Civil and Administrative Tribunal Rules 2009 (Qld).

[13] Filed on 10 December 2021 - original decision, [24].

[14] It is not suggested that the multiple applications were made in an attempt to oppress.

[15] [67], Judicial Member McGill SC.

[18] McGee v Queensland Building and Construction Commission & Anor [2018] QCATA 124.

[26] Which heading is part of the Act and part of section 100: sections 14 and 35C of the Acts Interpretation Act 1954 (Qld).

1. [28] Both decisions were cited in Cowen but not followed.

[34] In the published decision the citation is wrongly given as [2021] QCAT 94.

[40] McGee v Queensland Building and Construction Commission & Anor [2018] QCATA 124, [30], Senior Member Brown and Member Traves.

[43] WJ [2021] QCAT 450 where costs were fixed at $179,434.35: Members Joachim and Allen.

[44] TLL Investment Pty Ltd v The Body Corporate for the Grange CTS 30993 (No 2) [2018] QCAT 444, [2], Member Cranwell.

[45] Body Corporate for Rosegum Villas CTS 37755 v Queensland Building and Construction Commission (No. 3) [2018] QCAT 240, [24], Member Paratz.

[46] Lyons v Queensland Building and Construction Commission & Dreamstarter Pty Ltd (in liquidation) [2016] QCAT 218, [23], Member Ann Fitzpatrick.

[47] The Sands Gold Coast Pty Ltd v The Body Corporate for the Sands [2019] QCAT 336, [2], Member Gordon. Most of these costs were incurred in QCAT but some were incurred in other proceedings relating to the same subject matter.

[49] If the tribunal makes an order for costs it must, if possible, fix the costs.

[50] Civil Procedure Rules 1.1(1) and 1.3.

[51] Civil Procedure Rules 3.13, 3.15, 3.18. This does not apply to matters involving more than ten million pounds.

[53] Household Financial Comfort Report, 18th survey July 2020 by DBM Consultants for ME Bank, Figure 16 page 29.

[54] Professor Tom Hickman: 'Public Law's Disgrace' and 'Public Law's Disgrace Part 2', UK Constitutional Law Association Blogs 9 February 2017 and 26 October 2017.

[55] In Golder v United Kingdom ECHR (21 February 1975), [36], (European Court of Human Rights) considering the similarly worded Article 6 of the European Convention of Human Rights 'In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.'

[56] Bellet v France ECHR (4 December 1995), [36].

[57] Airey v Ireland ECHR (9 October 1979).

[59] The President, assisted by the Deputy President, has a duty to ensure that members are adequately and appropriately trained to enable the tribunal to perform its functions effectively and efficiently, and attendance at training can be enforced: sections 172 to 174 QCAT Act.

[60] Required by section 4(h) of the QCAT Act.

[65] As required by section 20 of the QCAT Act.

[67] Specific costs provisions in sections 111(1) and 111(2) of the Anti-Discrimination Act 1977 (NSW).

[70] Section 4(d).

[78] [20(c)]. For the 'substantial erosion of success' factor see Cowen, [67] and [75] and Tamawood, [33].

[80] Under section 21 of the QCAT Act.