//
[2023] QCAT 54
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2023-02-14
Astway P
Original judgment source is linked above.
[1] By a Decision in this matter dated 6 December 2022, the Tribunal set aside a decision of the Respondent ('the QBCC') made on 1 July 2020. Orders were made for the making of submissions in relation to costs. For the purposes of these reasons I will use the abbreviations adopted in the primary reasons.
[2] On 20 December 2022, Ms Campbell filed written submissions in relation to costs ('Ms Campbell's primary submissions').
[3] Also on 20 December 2022, the QBCC filed written submissions on costs ('QBCC's costs submissions').
[4] On 23 December 2022, Ms Campbell filed written submissions in response ('response submissions') to the QBCC's costs submissions.
[5] The QBCC did not file submissions in response to Ms Campbell's primary submissions.
(a) Ms Campbell seeks a costs order in her favour;
(b) the QBCC submits that there should be no order as to costs.
[7] In my view, the issues that arise for determination involve:
(a) the proper approach to an application for costs having regard to ss 100 and 102 of the QCAT Act;
(b) whether the interests of justice require an order for costs in favour of Ms Campbell (in whole or part).
The operation of ss 100 and 102 of the QCAT Act
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.
(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.
[10] In Marzini v Health Ombudsman (No 4) [2020] QCAT 365 (Marzini) and Cowen v Queensland Building and Construction Commission [2021] QCATA 103 (Cowen), Judicial Member D J McGill SC rejected the approach that had broadly been adopted by the Tribunal in determining costs orders having regard to ss 100 and 102 of the QCAT Act. That approach accepted that, on a proper construction of those provisions, there was a 'strong contra-indication' in s 100 against an order for costs and that the circumstances relevant to the exercise of the discretion under s 102 needed to point 'compellingly' to a costs award. This approach was adopted by Alan Wilson J, President in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)[1] where the President said:[2]
Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase 'the interests of justice' point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.
[11] In Cowen, Judicial Member D J McGill SC said:[3]
... I remain of the view that the relevant test is that in s 102(1): whether the interests of justice require that order. As I said in Marzini, the use of the term "require" shows that an order for costs should not be too readily made, and I accept that it may fairly be said that the wording of the heading to s 100 is another indication to the same effect. 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.
(citation omitted)
[12] In CH v Queensland Police Service,[4] Judge Allen QC, Deputy President, agreed with Judicial Member McGill SC's conclusion in Marzini and observations in Cowen.
[13] In Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs),[5] Member Gordon considered the numerous authorities relevant to this issue and summarised the two approaches (described as 'approach (a)' and 'approach (b)') as follows:
(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). 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).
[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 [sic] 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).
[15] For my part, I do not interpret the reasoning of the Judicial Member in Cowen (having regard to Marzini) as meaning s 100 is not a 'starting point' as suggested in 'approach (b)'. In Marzini, the Judicial Member summarised the position as follows:[7]
... The terms of the sections make it clear that the starting point is that no order for costs is to be made, but authorises a costs order if the interest [sic] of justice require it. The use of the word "require" suggests that the interests of justice must clearly support a costs order; but to say that they must do so "compellingly", and to treat s 100 as having "a strong contra-indication against costs orders", is to read into the statutory discretion restrictions which are not based on the terms of the Act.
[16] The Judicial Member expressly stated that the 'starting point' is that no order for costs is to be made.
[17] In my view, the current difference in opinion turns on two related issues, first, whether, upon a proper construction of s 100, there is a 'strong contra-indication' against costs orders, and second, whether the circumstances relevant to the phrase 'the interests of justice' in s 102 must point 'so compellingly' to a costs award that they overcome any such strong contra-indication in s 100.
[18] Commencing with s 100, that provision, on its proper construction, mandates that the parties must bear their own costs save as otherwise provided in the QCAT Act or one of the enabling Acts. I respectfully adopt the description of s 100 as providing for the 'default position' on costs.[8] I consider that, absent the application of another relevant provision, no discretion arises and the Tribunal is bound not to make an order for costs (or is bound to make an order that the parties bear their own costs). If a costs order is sought, the question turns on whether a costs order is justified pursuant to another provision of the QCAT Act (in this case, s 102) or an enabling Act. In my respectful view, it is inapt to construe s 100 as providing a 'strong contra-indication' against costs orders; rather, it provides a default position which must be applied unless another provision justifies a costs order. However, I consider that the operation of s 100 is relevant to the proper construction of s 102.
[19] Turning to s 102, while there appears to be no dispute that s 102 involves a discretionary decision, I consider that the exercise of that discretion is conditioned on what I would describe as the formation of an opinion (or, perhaps, the formation of a state of satisfaction) that the interests of justice 'require' the Tribunal to make a costs order. In my view, this follows from the requirement that the Tribunal 'considers' that the costs order is required in the interests of justice. This requires an assessment of the circumstances determined to be relevant and, in my view, involves an evaluative judgment. The difference in opinion as to the proper approach in relation to s 102 appears to boil down to the question of whether the interests of justice must 'clearly' support a costs order (which should not be readily made) (Marzini [17]) or whether the interests of justice must 'compellingly' or 'so compellingly' support a costs order (e.g. Ralacom [29]; Brisbane Marine [150]). Plainly, Judicial Member McGill in Marzini and Cowen proceeded on the basis that the circumstances which require (or 'clearly support') a costs order may fall short of being 'compelling'.
[20] In my view, in construing s 102 it is important to determine the meaning of the word 'require'.
[21] The Macquarie Dictionary defines 'require' as follows:
require ... verb (required, requiring) -verb (t) 1. to have need of; need: he requires medical care. 2. to call on authoritatively, order, or enjoin (a person, etc.) to do something: to require an agent to account for money spent. 3. to ask for authoritatively or imperatively; demand. 4. to impose need or occasion for; make necessary or indispensable: the work required infinite patience. 5. to call for or exact as obligatory: the law requires annual income tax returns. 6. to place under an obligation or necessity. 7. to wish to have: to require room service. -verb (i) 8. to make demand; impose obligation or need: to do as the law requires ...
[22] The particular meaning of 'require' to be adopted depends on the context in which it is used.[9]
[23] In Secretary to the Department of Premier and Cabinet v Hulls,[10] the Victorian Court of Appeal was concerned with determining the meaning of the term 'requires' in the context of a provision in the Freedom of Information Act 1982 (Vic) which adopted the expression 'is of opinion that the public interest requires that access to the document should be granted'. It was said by Phillips JA (with Tadgell and Batt JJA agreed):[11]
The word "required" is an ambiguous word. In modern usage it is capable, when used as a transitive verb with a direct object, of bearing two quite distinct meanings. It may be used in the sense of "demand" or "claim" or it may be used in the sense of "need". It may be that, even when used in the former sense, it connotes a degree of genuine reason for the demand or claim, an absence of arbitrariness. But the two senses are as distinct as they are familiar.
Fullagar J. returned to this distinction in De Marco v. Ellis [1948] VicLawRp 75; [1949] V.L.R. 97 at 99, and Sholl J. sought to elaborate on it in Brown v. Lusk [1956] VicLawRp 15; [1956] V.L.R. 285 at 290 and Henry v. Humphris [1956] VicLawRp 28; [1956] V.L.R. 371 at 380-1. The distinction was a valid one, the submission went, and in s. 50(4) "requires" had the meaning of "needs", not "demands".
- In a number of tribunal decisions the word "requires" in s. 50(4) has been treated as conveying a sense of the imperative: Re Gill and Department of Industry, Technology and Resources (1985) 1 V.A.R. 97 at 103, Re Thomas and Royal Women's Hospital (1988) 2 V.A.R. 618 at 641 and David Syme at 232. To construe the word in that way, said the respondent, was contrary to the views of the High Court in Wright and of members of the Full Court in Ryder v. Booth [1985] VicRp 86; [1985] V.R. 869 at 877 and Sobh v. Police Force of Victoria [1994] VicRp 2; [1994] 1 V.R. 41 at 56, 60-1, where it was emphasised that the F.O.I. Act should not be construed narrowly, and was to be construed to further, not hinder, access to information. No doubt that is so, and no doubt that will inform the exercise of the various discretions conferred by the Act. But subject to those discretions it is the Act itself which provides, and in some detail, the extent to which access is to be provided or withheld, and that includes Pt IV prescribing what documents are to be exempt from disclosure, at least in the first instance. Where a claimed exemption is otherwise upheld on review, access may be granted by the tribunal only if it is of the opinion set out in s. 50(4) (the public interest override). Our task is to construe the word "requires" in that particular provision, and I doubt that generalisations about how the Act should be approached will be helpful in that regard. Of first importance must be the legislative context itself and with that to guide I think that the word is used in the sense of "demands" or "necessitates". (The same can be said of s. 5(1), in the introduction to the definitions.)
- Regularly, of course, statutes do use the word "requires" or a variant deliberately to convey a sense of the imperative; when a person is described as "required" to do something or other, that surely means that he or she is obliged to do it. In this statute examples can be found in ss. 7(5), 9 and 27(2)(a), cf. ss. 11(3) and 12(1). Moreover, in the end I do not think that the respondent's case is advanced much, if at all, by the apparent difference between "needs" and "demands". In the four Victorian cases to which we were referred the distinction was drawn in the context of the landlord and tenant regulations of the day, under which notice to quit might be given if the landlord reasonably required the premises for occupation by him- or herself. Where premises are "required" for a given purpose, that may mean that the premises are needed, or without need are simply demanded, and it was important to the tenant to establish whether need on the part of the landlord had to play some part before notice to quit could lawfully be given, or whether arbitrary demand was enough. Need of premises for a given purpose is easy to understand, as is demand of the premises for that purpose though there be no need. But, as the four cases demonstrate, when the word "require" is coupled with "reasonably" the arbitrary demand is excluded anyway: some element of reason or legitimacy must support any attempt to "require". That is all that those four cases relevantly decided.
- Here the context is altogether different. The opinion relevant under s. 50(4) is that "the public interest requires that access . . . be given". Nothing is being "required" for application to some given purpose, as it was in Kiely. What is more significant for present purposes is that in the construction of s. 50(4) the respondent opts for the alternative of "needs" over "demands"; yet I should have thought that in Kiely the need referred to was founded in necessity. What does it matter, then, whether in s. 50(4) the word "requires" means "needs", in the sense of calls for as a matter of necessity, or "demands", which after all has a similar connotation of necessitates (though perhaps it is a little less emphatic in that regard)? The argument between the two seems to me a sterile one, in much the same way that the difference between "needs" and "demands" would seem of no significance in construing the opening words of s. 5(1). Given that the test must be whether at the end of the day the tribunal is of opinion that the considerations of the public interest (to which no doubt it is referred by the applicant for access) are so strong as to override the factors which in the first place are such as to accord the document exempt status, the meaning of "requires" is clear enough. In Director of Public Prosecutions v. Smith, the tribunal found that the public interest "necessitated" disclosure, and the decision was confirmed on appeal. To my mind that test was wholly appropriate under s. 50(4).
[24] The Victorian provision required the formation of an opinion that the public interest 'requires' the grant of access to documents that otherwise would not be publicly available. Given the structure of that provision, I consider that the observations of the Court provide useful guidance as to the proper construction of the term 'require' in s 102. Reading s 102 in context, I would ascribe a meaning of 'necessitate' to the term 'require' (consistently with the approach in Hulls). I consider this construction is warranted having regard to the default position set out in s 100.
[25] Further, by parity of reasoning with the observations at [31] of Hulls, I consider that it is not sufficient for the Tribunal, in considering s 102, to conclude merely that it is in the interests of justice to make an order for costs; a stronger foundation is required. Otherwise, I respectfully consider that there is no utility in attempting to articulate the degree or extent to which the Tribunal must be satisfied in order to conclude that the interests of justice necessitate a costs order. In my respectful view, whether the interests of justice must 'clearly' support a costs order or must do so 'compellingly' invites debate or conjecture as to what is required to satisfy each threshold. CH is an interesting case in point. The Member at first instance found that the applicant had made a 'convincing' argument for costs yet denied a costs order having regard to the principle set out in Ralacom. However, one of the meanings given to the term 'compelling' (when used as an adjective) in the Macquarie Dictionary is 'convincing'.
[26] In my view, s 102 requires the Tribunal to undertake an evaluative assessment of all circumstances considered to be relevant in forming an opinion as to whether the interests of justice necessitate a costs order being made (in whole or in part) and the default position displaced. The only qualification I would place on the language of s 102 is that it is not sufficient for the Tribunal to conclude merely that it is in the interests of justice to make an order for costs, a stronger foundation is required. Nevertheless, sitting at first instance, I consider I am bound to follow one or other of the respective approaches to s 102. In that event, I prefer the conclusion that the interests of justice must point 'so compellingly' to the making of a costs order as to override the default position under s 100. However, in the absence of guidance as to what satisfies the requirement of 'compellingly', I consider that it is appropriate to proceed on the basis that the term should be equated with 'convincingly'.
[27] Ms Campbell seeks various orders, 16 in number.
[28] In my view, the large majority of the orders sought in Ms Campbell's primary submissions are not orders that could properly be made pursuant to s 102 of the QCAT Act.
[29] Order number 1 seeks repayment of $26,247.51 (plus interest) which was said to be paid to the solicitors for the Builder in the dispute between Ms Campbell and the Builder (which resulted in the Deed). This amount comprised the second amount payable under the Deed and Ms Campbell seeks repayment because the Builder did not recommence the Works under the Deed. This raises a discrete matter of dispute between Ms Campbell and the Builder's solicitors and is not an order that could be made pursuant to s 102.
[30] Order number 2 appears to seek the equivalent of liquidated damages that would have been payable but for provision in the Deed that no liquidated damages would be payable. Without descending into the grounds upon which Ms Campbell relies in this respect, again it is not in the nature of costs that could be ordered pursuant to s 102. Recognising that this may be the case, Ms Campbell sought that 'the Tribunal make comment that they are part of the statutory warranty expenses that she is entitled to recover' (necessarily referring to the statutory insurance scheme). It is not the role of the Tribunal to make some type of advisory observations in relation to a statutory warranty claim that may be made against the QBCC.
[31] Without addressing a number of the other orders sought individually, for one or both of the above reasons, I consider that the orders numbered 3, 4, 5, 6, 7, 8, 9, 10, 11, 13 and 16 cannot be ordered by the Tribunal under s 102 of the QCAT Act.
[32] That leaves for consideration the orders numbered 12, 14 and 15.
[33] Order number 12 refers to various components of costs. The first refers to representation from AXIA Litigation for the 'appeal' (which plainly refers to the Review Application). This is more fully addressed by Ms Campbell in relation to order number 15 and I will deal with it below.
[34] Ms Campbell also submits that she has 'encountered' thousands of hours over the years, doing things such as typing, investigating, researching, attending lawyers, making calls, copying documents, and driving to the courthouse. In my view:
(a) the cost of copying documents may be a recoverable cost;
(b) otherwise, I consider that the balance of the costs would not ordinarily be recoverable as costs under s 102 in circumstances where Ms Campbell was self‑represented.
[35] Order number 14 seeks the costs of the building expert, Mr Helisma, engaged by Ms Campbell. Ms Campbell submits:
(a) ... QBCC actually positioned me into a situation where I felt, forced to engage Expert Witness Mr Martin Helisima [sic], to do a full building report, due to QBCC's REFUSAL to send an inspector to site. QBCC forced me to spend thousands of dollars, when they are the regulators and inspectors, and it was their responsibility not mine to do bear the weight of such heavy expenses. Therefore I request the recovery of all of Martin Helisimas [sic] costs paid. Mr Helisima prepared a full report, & also prepared for and attended as a [sic] expert witness. His testimony and report were critical to my case. Mr Helisima's [sic] report will also need to be used by the builder whom QBCC will appoint to know the full extent of the INCOMPLETE works. Which included the builders, removal and omission of structural elements, that compromise the integrity of the home. His report was based on over 300 in construction images, proving the full extent of the cowboy builders actions.[12]
(b) QBCC chose to undermine, not listen to and even went as far as to question esteemed Building Inspector and Expert Witness - Martin Helisima's [sic] report. At the time of the Initial Inspections by Chris Coombes QBCC, and respectfully with Ms Coonan's questioning him, whom's [sic] online credentials do not state respectfully she is either a builder, inspector, engineer or a certifier. This undermining of an esteemed expert court witnesses [sic], expert building report, has led to extra, damages & consequential damages to my home since the date of the initial inspection conducted by the QBCC. Obviously Ms Coonan had nothing to do in any way with such damages, the fault lies fully with the QBCC. The QBCC are responsible for all rectifications/compounded damages to the home at TODAY'S prices not those 5 years ago, not what the policy states even, due to Covid and the unprecedented escalating costs of materials. QBCC need to cover hese [sic] extra costs, my cover won't cover. I ask the Tribunal to please address the issue, that QBCC dragged on the case, refused to give me access to an inspector when the items were in progress, and even when I DID EVERYTHING required of me, they still REFUSED, to allow me a proper inspection, by refusing to remove, walls and floors as I was entitled to. QBCC had they done their job, would have spotted items years ago, and these could have been rectified. Instead now 5 years on the Scheme will NOT cover the works required due to Covid. I ask the Tribunal to make mention, QBCC must complete the house to completion, no matter what the cost, and correct the miscarriage of justice against me.[13]
(c) I was forced to engage Expert Witness Martin Helisima, [sic] to prepare a full report for incomplete and defective works and expert witness during the appeals process. Exhibit "H". Invoice 837 14/8/2020, $1573.00. Invoice 947 11/10/2021 $352.00. Invoice 998 $577.50. Invoice 783 $6263.40. Total $8765.90.[14]
[36] I consider that the costs incurred by Ms Campbell in engaging Mr Helisma are costs that are potentially recoverable under s 102. This is addressed further below.
[37] Order number 15 seeks 'recovery of all legal fees before and after the appeal'. The various amounts are identified in paragraph 2.20.
[38] It appears that Ms Campbell did not seek and, in any event, was not granted leave to be legally represented in the proceeding.
[39] The QBCC was granted leave to be legally represented in the proceeding but only upon the giving of an undertaking that it would not apply for a costs order in the event that the review was unsuccessful unless Ms Campbell conducted herself in a manner that was found to be frivolous, vexatious or an abuse of process.
[40] I summarised the principles relevant to a grant of leave for legal representation in the Tribunal in Gold Coast Tree Houses Pty Ltd v Lander No 2 [2022] QCATA 178, which principles including the following:
(a) s 43 provides for the situation where a person acts generally in a proceeding on behalf of a party, and is not limited to who speaks at a hearing;
(b) the grant of leave under s 43 permits the representative to provide written submissions, sign, file and serve documents, act as the channel of communications for the party, and speak at an oral hearing;
(c) a party who has not obtained leave to be represented is still entitled to have the assistance of a lawyer in preparing submissions and other documents, but such assistance does not extend to performing the tasks identified in subparagraph (b) above.
[41] While a party is entitled to have the assistance of a lawyer in preparing submissions and other documents, there is a question as to whether that party would be entitled to recover costs for the provision of such assistance in circumstances where a grant of leave to be legally represented has not been obtained.
[42] A claim for legal costs in a case where leave for legal representation was not granted was considered in Sharma & Ors v Woolfson [2020] QCAT 271. Member Kent's reasons included the following observations, which I respectfully adopt:
(a) that the process under s 43 provides procedural fairness to the other party as they have an opportunity to make submissions on their views about legal representation for the other party;[15]
(b) 'The Tribunal has not had the benefit of fully considering the relevant issues in the way they are in [sic] intended to be considered i.e. by an application to be granted leave to be legally represented. The Sharmas and their solicitors have ignored the statutory regime whereby there is an opportunity for people to formally file for leave to be legally represented. This regime provides an opportunity for the other parties to make applications in response to an application for legal representation. Without this there is a denial of due process. Essentially other parties cannot effectively assess the potential expenses of the litigation given an adverse outcome. A granting of costs orders for legal fees in circumstances where solicitors describe themselves as not representing parties in the dispute before the Tribunal means that the other party to the dispute has no way of knowing what potential costs may be claimed.'[16]
[43] While I am of the view that a failure to obtain leave to be legally represented would not preclude an order for costs, it is an important factor to take into account in assessing whether, in the present context, the interests of justice necessitate an order for costs (at least in so far as that component of the costs is concerned).
Whether the interests of justice require an order for costs
[44] The factors set out in s 102(3) of the QCAT Act are not determinative of whether a costs order should be made but go only to informing the exercise of a broad discretion, the touchstone of which remains the Tribunal's assessment of the interests of justice in a particular case.[17] The factors in s 102(3) are not expressed to be exhaustive although s 102(3)(f), in terms, picks up any other circumstances the Tribunal 'considers relevant'. In some cases, there may be an overlap between the factors mentioned in s 102(3)(a) to (e) and other factors considered to be relevant as provided for by s 102(3)(f).
[45] In my view, a consideration of whether a costs order should be made in favour of Ms Campbell warrants a consideration of each of the factors in s 102(3).
Whether the QBCC acted in a way that unnecessarily disadvantaged Ms Campbell
[46] Ms Campbell submits that the QBCC unnecessarily disadvantaged her in the following ways.
2.6a During a QCAT hearing the learned MEMBER made a CLEAR ruling after a lengthy discussion involving all parties, that Paul White, whom [sic] was removed from the Joinder after failing 3 Directions by QCAT, would be disallowed from providing any further evidence or statements against me. He was forcefully removed as a Party and from the Joinder, due to failing the said 3 opportunities all under Tribunal Directions to provide a scrap of evidence to disprove my SOR Evidence. The Tribunal directed he be REMOVED as a party and would NOT be allowed to be called as a witness.
For completeness, the learned Member told me when specifically questioned, by myself repeatedly, AFTER REFERRING TO HIS NOTES, that he WOULD NOT ALLOW, Paul White of Kingdom Builder Ministries, to be called, and he was removed as a Party from the Joinder by QCAT by Order/Direction.
Literally the following day a government Statutory Body the QBCC, on 21st September 2022, went behind the learned Tribunal Members back, and contacted Paul White and asked him to provide further evidence, against me, which he did. - This act shows QBCC DID act unnecessarily to disadvantage myself, and deliberately breached the Tribunals ruling. Remembering the builder failed 3 x Directions prior to provide any evidence against me. The QBCC's actions were deliberate, and beyond any doubt they DID NOT COMPLY WITH A QCAT ORDER OR DIRECTION.
[48] I did not sit on the directions hearings prior to the main hearing. However, on reviewing the directions made in the course of the proceeding, I consider that the directions made provide some further context to the matters raised by Ms Campbell.
[49] On 29 November 2021, the Tribunal directed that the Builder be removed as a respondent in these proceedings.
[50] On 13 September 2022 (which is approximately a week prior to the date identified by Ms Campbell), the Tribunal made a Decision by which the Tribunal, amongst other orders, granted an application by the QBCC requiring witnesses to attend the hearing and/or produce a document or thing with the only witness identified being Paul White (the Builder's representative).
[51] No transcript from either of the respective hearings has been placed before me.
[52] On the material before me, I cannot be satisfied that there was any failure to comply with an order or direction of the Tribunal as contended by Ms Campbell.
[53] Further, at the main hearing the QBCC sought to lead additional evidence from Mr White. That application was refused.
[54] In the end result, even if I had been satisfied that there was a failure to comply with a direction or order, I do not accept that it has unnecessarily disadvantaged Ms Campbell in a way that would bear on the making of a costs order under s 102.
[55] Second, Ms Campbell contends that the QBCC agreed, at a hearing, to provide Ms Campbell's evidence in a form acceptable to the Tribunal and agreed to prepare her hearing book, but failed to do so, and that this greatly disadvantaged herself (and the Tribunal). On 30 August 2020, the Tribunal made directions including a direction that Ms Campbell file two copies of a paginated hearing book with all material upon which she intended to rely upon at the hearing (direction number 1) and that the QBCC do likewise in relation to the material upon which it intended to rely (direction number 2). There appears to be a question of fact as to whether the QBCC bound itself to prepare Ms Campbell's hearing book. I consider that I am not in a position to resolve that issue, particularly as Ms Campbell has not provided sufficient detail for me to reach a conclusion in that regard.
[56] Third, Ms Campbell contends that the QBCC has 'claimed numerous extensions of time, and continue [sic] to do so, causing the case to be prolonged'. In my view, Ms Campbell has not identified the individual occasions on which the QBCC has sought an extension of time; has not demonstrated that the requests for an extension of time were not justified; and has not identified the extent to which the applications for extensions were granted nor quantified the extent to which they prolonged the proceeding. In the absence of detailed evidence, I am unable to accept that the QBCC acted in a way that unnecessarily disadvantaged Ms Campbell in this manner.
The nature and complexity of the dispute the subject of the proceeding
[57] Ms Campbell made a reference to the complexity of the case in paragraph 2.8 of her response submissions, although she did not expand on that. However, as noted above, Ms Campbell submits that she has 'encountered' thousands of hours over the years, typing, investigating, researching, attending lawyers, making calls, copying documents and driving to the courthouse.
[58] In my view, there was some complexity involved in this matter, primarily arising out of the issue of renunciation, but overall the matter was not overly complex.
[59] As noted above, the QBCC was granted leave to be legally represented in the proceedings subject to its undertaking.
[60] On balance, I consider that the nature and complexity of the dispute was not such as to justify a costs order in favour of Ms Campbell.
The relative strengths of the claims made by each of the parties to the proceeding
[61] Ms Campbell submits that her claim was always 'strong' and that the Original Decision was 'overruled using only the same factual evidence, Deed, and paperwork that originally was submitted by myself in 2019'.
[62] The QBCC submits that it had 'at the very least, an arguable case' and that the Decision ultimately turned the construction of clause 2(g) of the Deed and the effect of the Builder's failure to comply with the requirements of that clause.
[63] Ms Campbell succeeded on the basis that she lawfully terminated the Contract on the basis of substantial breach by the Builder.
[64] I accept that the QBCC had a reasonably arguable case and that Ms Campbell's case was not so overwhelmingly strong as to make it a persuasive factor in support of granting a costs order in her favour.
Whether Ms Campbell was afforded natural justice by the QBCC
[65] Subsection 102(3)(d) of the QCAT Act addresses factors relevant only to review proceedings.
[66] The first of those is whether an applicant has been afforded natural justice by the decision-maker for the decision.
[67] Ms Campbell has not submitted, at least in terms, that she was not afforded natural justice. I am satisfied that the QBCC did not fail to afford Ms Campbell natural justice.
Whether Ms Campbell genuinely attempted to enable and help the QBCC to make the decision on the merits
[68] This is the second of the factors set out in s 102(3)(d).
[69] The QBCC does not contend, and I find that there is no basis for concluding, that Ms Campbell did not genuinely attempt to enable and help the QBCC to make the Decision on the merits.
The financial circumstances of the parties to the proceeding
[70] In paragraph 2.9 of Ms Campbell's submissions in response, Ms Campbell describes the financial hardship that she has suffered as a result (which she attributes to the QBCC and the Builder) as 'immeasurable'. She states that she and her partner have lost, amongst other things, their savings, their shares and their furniture. I also note and accept, without repeating, the circumstances further described in paragraph 2.9 of the submissions and that Ms Campbell has been unable to occupy the house the subject of the review and has been forced to live in a caravan. I would describe Ms Campbell as suffering financial hardship.
[72] In Cowen, the Judicial Member said the following in relation to the financial position of the QBCC:[18]
[46] The Member also rejected a submission, from the appellants, that there would be no financial hardship to the respondent should a costs order be made. I find that curious also, since as a government agency it would necessarily not suffer "hardship". The submission was a statement of the obvious, but not in itself a reason to make a costs order, or even a consideration favouring one. Of a little more significance was the statement that in effect any costs order would have to be satisfied out of fees paid by licensees: The QBCC Act s 26 provides for an Insurance Fund, from which the respondent is to pay claims and, by s 26(3)(a), "the costs of administering the statutory insurance scheme". It is funded from money received or recovered in connection with the scheme, like any other insurance business. The costs of administering the scheme would include the costs of processing and investigating claims, and the costs of litigating disputed claims. It follows that any legal costs ordered to be paid are not to be paid out of fees paid by licensees, but by insurance premiums paid by owners in general.
[47] In this respect the respondent is in the same position as any other insurer, except that, not being exposed to competition, it is under no economic pressure to minimise its costs in order to minimise premiums. Being a monopoly supplier of a product which consumers are in effect compelled to buy, it is as insulated from hardship as it is possible to get. ...
[73] I find that the QBCC would not suffer any material financial hardship if an order for costs were made against it. However, I consider that this does not, of itself, demonstrate that it would be in the interests of justice to make an order against it. However, I consider that Ms Campbell's adverse financial circumstances are a relevant factor to take into account in evaluating whether the interests of justice necessitate a costs order.
[74] The QBCC submits that 'where the Applicant has not made any application for costs, nor has she provided any details of costs being sought in this proceeding, there is no basis for the Tribunal to depart from the plain provisions of the legislature'(paragraph 2.8).
[75] In my view, it is unnecessary for an applicant in a review proceeding to include a formal application for costs. The question of costs will arise upon the making of the final decision in a review application. The QBCC does not contend that Ms Campbell has formally abandoned a claim for costs or that she has acted in a manner that would preclude her from seeking costs. Ms Campbell has made an application for costs by way of her primary submissions and has provided details of the costs sought in her response submissions. I reject the argument of the QBCC.
[76] The QBCC also submits that as 'the industry regulator' this a further relevant factor to be taken into consideration in the exercise of the Tribunal's discretion, and relies on the Tribunal decision of Fuge v Queensland Building and Construction Commission & Anor [2014] QCAT 383, [10]-[13], [28] (paragraphs 2.6 and 2.7).
[77] In Cowen, the Judicial Member examined the additional role of the QBCC in the context of claims under the statutory insurance scheme, and said:[19]
[30] There is however a larger issue here, which was not considered by the Member, who approached the matter as an example of a review of an administrative decision of a regulator at the instance of an affected citizen. There was another relationship between the appellants and the respondent, because of the existence of the statutory insurance scheme. The respondent was not just a regulator whose decision was subject to merits review by the Tribunal; it was an insurer under a statutory obligation to the appellants to pay on a valid claim.
[31] The QBCC Act provides for the statutory insurance scheme in Part 5. Its purpose is "to provide assistance to consumers of residential construction work for loss associated with work that is defective or incomplete": s 67X(2). The Scheme was explained by Morrison JA, with whom the other members of the Court agreed, in Schneider v Queensland Building and Construction Commission [2021] QCA 155, and I respectfully adopt what his Honour said. It is clear that, when cover under the scheme is provided to a consumer under the QBCC Act, the consumer is in a position analogous to that of an insured under a policy of insurance issued by the respondent as insurer. The terms of cover under the scheme are set out in the Regulation under the QBCC Act. The Regulation provides relevantly a limit in the amount of the cover available in various circumstances of $200,000.
[78] I respectfully adopt those observations in the present case which also involves a claim under the Scheme.
[79] In my view, while the QBCC was entitled to, in essence, defend its position in relation to Ms Campbell's claim under the Scheme,[20] I do not consider that its role in doing so is a factor that would weigh in favour of refusing Ms Campbell's application for costs; rather, I consider that it is a neutral factor, neither justifying the grant of, nor the refusal of, an order for costs.
[80] Finally, I address Ms Campbell's submissions in relation to Mr Helisma's evidence.
[81] Mr Helisma's evidence addressed the defective and incomplete work at the Property. It was relevant to one of Ms Campbell's arguments in relation to renunciation of the Contract. The QBCC required Mr Helisma for cross-examination. This suggested that at least some of his evidence was contentious. While Mr Helisma was cross-examined on his evidence, the cross-examination was mainly exploratory and a contrary case was not put to him (at least as had any bearing on the result). This was borne out in the QBCC's Closing Submissions at, in particular, paragraphs 4.65 to 4.68. In my view, Ms Campbell was unnecessarily put to proof on the factual matters the subject of Mr Helisma's evidence, in respect of which there was not any material dispute. Ms Campbell's argument in relation to renunciation in this respect was rejected but this turned on the effect of the Deed and the period of time that had elapsed between the time that the Builder was obliged to recommence the Works at Site and the date of purported termination. When coupled with the obvious expertise of the QBCC in relation to defective (and incomplete) building work and Ms Campbell's adverse financial circumstances, I consider that the interests of justice necessitate an order for the amounts incurred by Ms Campbell in relation to Mr Helisma.[21] Ms Campbell has provided copies of the various invoices issued by Mr Helisma which total $8,765.90.
[82] As addressed above, I consider that many of the individual orders sought by Ms Campbell are not properly made pursuant to s 102 (even if they were otherwise warranted).
[83] With respect to the amounts that could arguably be recovered as costs under s 102, having regard to all the factors addressed above, I consider that:
(a) for the reasons set out in paragraph [81] above, the interests of justice require the making of a costs order in favour of Ms Campbell for that part of her costs that were paid to Mr Helisma;
(b) otherwise, the interests of justice do require the making of a costs order in Ms Campbell's favour. As to the merits of the claim, I consider that (apart from Mr Helisma's evidence) the QBCC's position was reasonably arguable and it did not QBCC unnecessarily disadvantage Ms Campbell. Further, in relation to the amounts paid to the lawyers, Ms Campbell did not have leave for legal representation and this issue has been addressed above. Whilst the financial circumstances of Ms Campbell are a factor in her favour, I consider that, on balancing all of the factors, the interests of justice do not require (necessitate) a costs order (and note that this conclusion would be the same regardless of whether the test were one that the interests of justice 'clearly support' such a costs order or whether the interests of justice must do so 'compellingly'). For completeness, with respect to the costs identified in paragraph [34] above, other than the sum of $70.00 for photocopying costs, that Ms Campbell did not provide evidence that would enable a quantifiable order to be made in any event.
[84] For the reasons set out above, the Respondent is ordered to pay to the Applicant costs in the amount of $8,765.90 within 21 days of the date of this order.
[4] [2021] QCATA 137, [6] and [7].
[5] [2022] QCAT 225, [53].
[6] At [82]-[84]. In Valuers Board of Queensland v Murphy [2022] QCAT 295, Member Gardiner agreed with this analysis, [16]-[17].
[8] CH, [6] per Judge Allen QC, Deputy President.
[9] Astway P/L v Council of the City of the Gold Coast [2008] QCA 73, [14].
[17] Magill v Queensland Law Society Inc (No 3) [2020] QCATA 327 at [7] per Daubney J, President.
[19] At [30]-[31]. See also [32]-[33].
[20] Noting my observations below in relation to Mr Helisma's evidence.
[21] Section 102 permits the Tribunal to order that a party be paid a 'stated part' of that party's costs.
Campbell
Queensland Building and Construction Commission