Civic Steel Homes Pty Ltd v Mitra

"Division 7 Costs generally

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.

(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.

(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.

(7) The tribunal may direct that costs be assessed -

(a) in a way decided by a presiding case manager; or

(b) by a person appointed by the tribunal."

[5] Tamawood at District Court level is a precedent for the granting of leave to appeal about costs only to a successful litigant in the Tribunal who has been denied them. Williams JA said at 102:

"The critical questions for determination are the meaning to be attributed to and the scope of operation of s 70 and s 71 of the Commercial and Consumer Tribunal Act 2003. In seeking to uphold the reasoning of the learned District Court judge, counsel for the respondent submitted that s 70 should be treated as analogous to a preamble to a statute. Relying on common law principles of statutory construction he then submitted that the meaning of s 71 was clear and free from doubt and in consequence the words of s 70, the preamble, could not be resorted to to qualify or cut down the meaning or the scope of operation of s 71. The submission is fallacious. 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."

[6] Keane JA's is the leading judgment. It dispels any notion that in the Tribunal costs should ordinarily follow the event. Commencing at p 109 his Honour said:

"[22] At this point, I should say that, in my respectful opinion, the learned District Court judge erred in his interpretation of s 70 and s 71 of the Act. I am also of opinion that, although his Honour was in error in his interpretation of the Act, there was nevertheless, as his Honour said, a separate and sufficient basis for setting aside the Tribunal's decision and for the substitution of his own view as to the proper disposition of the costs of the proceeding before the Tribunal. I proceed now to explain the reasons which have led me to these conclusions.

Sections 70 and 71 of the Act

[23] As I have already said, in my view, the language of s 70 and s 71(5)(a) is sufficiently clear to negate the proposition that costs should, prima facie, follow the event unless the Tribunal considers that another order is more appropriate. In this regard, it is clear that the power of a court or tribunal to award costs to a party is now the creature of statute.2 The nature and extent of that power can only be discerned by close consideration of the terms of the statute which creates the power and prescribes the occasions for, and conditions of, its exercise. In the performance of this task, observations of the courts in relation to the operation of other statutory regimes relating to costs may afford general assistance but they cannot be allowed to distract attention from the terms of the particular statute in question.

[24] The language of the provision 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.

[25] 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'.3 It went on to provide4 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.'5

[26] The approach taken by the learned District Court judge cannot be said to 'best achieve the purpose' of the Act made evident by s 70.6 Considerations of the legislative history of analogous provisions support this view. In this regard, the Queensland Building Tribunal Act 2000, the Act establishing one of the Tribunal's predecessors, did not contain a provision equivalent to s 70. It did contain, at s 61, a provision equivalent to s 71 of the Act. 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. In this regard, Mr Logan of counsel, who appeared to Ms Paans, relied upon the decision of this Court in _Kimtran Pty Ltd v Downie_7 to support the proposition that s 70 added no relevant instruction to the Tribunal in relation to the exercise of the direction under s 71(1) of the Act. It is clear, however, that the Court in Kimtran was concerned with the issue of power to award costs against non-parties rather than the manner in which the discretion should be exercised by the Tribunal. In my view, neither the decision nor any dicta in the Court's reasons affords support for the proposition advanced on behalf of Ms Paans.

[27] On behalf of Ms Paans, reference was made to other provisions of the Act which expressly provide for the making of orders for costs. In this regard, attention was drawn to s 50(6) (order for costs to remedy prejudice or detriment); s 52(4)(b) (Tribunal may not extend time or waive compliance if prejudice could not be remedied by an order for costs or damages); s 58(b) (to compensate a party where vexatious or oppressive proceedings are commenced); s 60(2)(a) (requiring one party to compensate another for costs where it has caused the other disadvantage); s 64 (costs to be paid where a proceeding is withdrawn); s 67 and s 68 (detailed provisions for security for costs, the existence of which recognises the prospect of an award of costs in the proceedings); s 69(2) (which contemplates adverse costs orders against a party); s 71(6) (which expressly adverts to the existence of other provisions under the Act or other Acts which may entitle the Tribunal to award costs); s 72(2) (which provides for a power to stay a fresh proceeding where an adverse costs order has not been met); s 79(1)(b) (which confers a broad discretion as to the making of a costs order against a party upon an adjournment); s 115(2)(c) (which confers an entitlement on an applicant to costs in the event of a decision by default); s 116 (which provides for a costs order upon setting aside a decision by default); s 125(3)(b) (which provides for an order for costs upon a summary decision application); s 142(2) (which provides for a costs order if a reasonable offer to settle is refused); and s 142(4)(b) (which contemplates costs order being made in favour of a party after an offer to settle has been made).

[28] The existence of the provisions referred to in the preceding paragraph cannot alter the ordinary meaning of s 70 and s 71 of the Act. In any event, the existence of this extensive array of special provisions relating to orders for costs in particular circumstances tends, in my view, to confirm that s 70 and s 71(1) are intended to impose a general rule that good reason must be shown in terms of the interests of justice for making an award of costs in proceedings before the Tribunal."

_______________________________________________________

2 Knight v F.P. Special Assets Ltd (1992) 174 C.L.R. 178 at 193; Forest Pty

Ltd (Receivers and Managers Appointed) v Keen Bay Pty Ltd & Ors (1991) 4 A.C.S.R. 107 at 111-113.

3 See the Explanatory Memorandum at 3.

4 Explanatory Memorandum at 20.

5 This objective is expressly identified in s 4(1)(b) of the Act.

6 Acts Interpretation Act 1954 s 14A(1).

7 [2003] QCA 424 esp. at [18]; [2003] QCA 424; [2004] 1 Qd R 651 esp. at 658-659."

[7] The ultimate outcome in Tamawood was that the District Court's allowing of costs to the successful party in the Tribunal, whereas the Tribunal had refused them, prevailed. As I read the reasons, the Court of Appeal did not necessarily determine that the Tribunal's conclusion was insupportable; its conclusion was overtaken by developments, including the supervening exercise of discretion by the District Court, which the Court of Appeal found was supportable. Keane JA's discussion criticised the Tribunal for placing reliance on one aspect of the appellant's conduct "irrationally" and its "failure to appreciate" that certain behaviour of the other parties was relevant - "an error of principle". The application of CACTA there was discussed as follows:

"The application of the Act

[29] As I have said, although I consider the Tribunal's interpretation of s 70 and s 71 of the Act was essentially correct, I agree with the learned District Court judge that the Tribunal erred in its application of the law as understood by it to the facts of this case. There are, broadly speaking, three reasons for my conclusion in this regard.

[30] First, the Tribunal found that each party was justified in engaging the services of legal representatives to assist them in the conduct and defence of what the Tribunal recognized to be complex proceedings. That finding alone could be, in my view, a sufficient basis to conclude that the interests of justice warranted the exercise of the discretion to award costs in favour of the successful party, at least in the absence of any countervailing consideration. The Tribunal erred in failing to appreciate the implication of this finding for an understanding of where the interests of justice lay in relation to the costs of the proceedings.

[31] There will inevitably be occasions when the aspirations of the legislature that parties before the Tribunal should not be legally represented cannot reasonably be met having regard to the nature of the issues involved. That this is so is recognized by the terms of s 73 which deals with the topic of representation. It provides:

The main purpose of this division is to have parties represent themselves and save legal costs unless the interests of justice require otherwise.'

[32] If orders for costs were not to be made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the Tribunal.

[33] To say this is not to ignore s 71(5)(b) of the Act. There is a clear distinction, in terms of the interest of achieving justice, between the mere fact of having representation and the fact of having reasonably obtained that representation because of the complexity of the case. In the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome. Finally in this regard, it should also be borne in mind that s 71(4)(a) of the Act expressly recognizes that "the outcome of the proceeding" is a consideration which is relevant to the exercise of the discretion conferred by s 71(1) of the Act.

[34] Secondly, the learned District Court judge was, in my respectful opinion, correct to conclude that the decision by Ms Paans to pursue her rights against Tamawood and Martyn, rather than to use her funds (assuming she had them available to her) to pay for the rectification of her problems by the Maroochy Shire Council, was not a consideration which could rationally lead to the exercise of the Tribunal's discretion against Ms Paans. Such a consideration is not expressly referred to as a relevant matter in s 71(4) of the Act. Indeed, the Tribunal's decision in favour of Ms Paans in the substantive proceeding was itself a clear recognition that Ms Paans had rights against Tamawood and Martyn. That she chose to pursue them, as the legislature no doubt intended she should, could not, on any rational view of the factors bearing upon the exercise of the discretion under s 71(1), be treated as a disqualifying factor.

[35] Thirdly, his Honour was, in my respectful opinion, correct to regard the conduct of Tamawood and Martyn prior to the commencement of proceedings by Ms Paans by reason of what was found to be their continuing default as a consideration tending to support an award of costs in her favour. It is, of course, a consideration made relevant by s 71(4)(b) of the Act. The Tribunal's evident failure to appreciate this point was an error of principle.

[36] For these reasons I am of the opinion that the learned District Court judge was correct in concluding that, even if the Tribunal had correctly interpreted s 70 and s 71 of the Act, the exercise of the discretion had miscarried and that he was entitled to exercise afresh the discretion to award costs. The orders which he then made were open to him as a proper reflection of the interests of justice having regard to the facts of the case as found by the Tribunal."

[8] Some of the relevant features are present here. Civic Steel's resort to legal representation was wholly reasonable, if not necessary. Further, it and the Mitras agreed on the legal representation. Another Tribunal member in the course of managing or supervising the proceeding expressed concern that the Mitras dispensed with legal representation they had previously had; this may be seen as the Tribunal's confirmation that the dispute was one in which legal representation was desirable. Although paras (a) and (b) of s 71(5) are not listed in s 71(4) as matters to which regard may be had, it seems obvious that they should be accorded that status, and as factors tending to favour costs being awarded. An "order" under (a) aforesaid may be something much more limited than the "outcome" mentioned in s 74(4)(a). At all events, Civic Steel satisfies both (a) and (b) of s 71(5), in which the use of "or" may introduce a difficulty. The subsection clearly discourages costs orders if only one paragraph applies. It would seem that where both apply, the consequence is that s 71(5) has no operation, is neutralised. Section 75(5) cannot be regarded as favouring a costs order, of course, except as stated above; if I am right, it is simply taken out of the picture.

[9] The Tribunal's reasons for refusing costs are carefully written and comprehensive. The considerations expressed in ss 70 and 71 feature prominently. Section 142 issues apart (in my opinion, if relevant, they would tend to favour Civic Steel's claim to costs under s 71), Civic Steel's claim to costs was favoured by s 71(4)(a) and (d), also by the consideration in s 71(5)(b). There may be considerations both ways in respect of s 71(4)(b) and (c). Civic Steel's case was harmed by the consideration in (e). There was contravention of s 80 of the Domestic Building Contracts Act 2003 which requires a building contractor, under threat of penalty, to ensure that a variation document for the contract complies with statutory requirements, the most basic of which is that it be written. The requirement was ignored in respect of a variation to relocate the new house. The issues raised by the Mitras depended heavily on the relocation and various consequences attributed to it. That they were found to have agreed to the variation and that they failed to obtain any relief by reference to it would not preclude the Tribunal's according considerable weight to a blatant disregard of an important statutory protection for building owners; such "conduct ... before the proceeding" could reasonably be seen as adverse to an application for costs under s 71(4)(b). As for (g), I think the member was acutely conscious that, in his determination on the merits of 19 August 2005, a number of finely balanced or unclear issues which might well have gone the other way were decided against the Mitras; they could be forgiven for feeling hard done by, as can Civic Steel in the costs determination.

[10] Underlying all of this is the general rule against ordering costs. There must be good reason for departing from it. Rights to claim costs are notoriously creatures of statute. Contexts in which costs are unavailable to the victor in a proceeding are common. The best known instance of an essentially costs-free jurisdiction is in criminal law: in proceedings on indictment, 'costs orders are wholly exceptional. Another instance is that of the Planning and Environment Court under the Integrated Planning Act 1997 section 4.1.23(1), noted by way of quotation of the District Court in Tamawood at [18]. As Mr Codd said, disputes in that jurisdiction are likely to be about the creation of new rights rather than about determination of existing ones, as in Tribunal proceedings.

[11] The only arguable deficiency in the costs determination from the standpoint of identifying an error of law is the failure of the Tribunal to acknowledge in terms what Keane JA said at [33] in Tamawood. There are no "countervailing considerations" here, Mr Codd says. It is the case that his submission to the Tribunal about costs specifically sets out the passage, which obviously creates some expectation in a successful litigant not only permitted, but encouraged to engage legal representations, that success will not be eroded because costs are wholly irrevocable. The Tribunal's reasons in terms acknowledge other parts of what Keane JA said, being those that confirm the potency of s 70. To the extent that Mr Codd's argument for leave asserted that this court should intervene lest the determination under appeal gain some respectability or life of its own or because supposed uncertainty arises from other Tribunal members having acknowledged and given effect in outcomes to par [33], I do not agree. Tamawood is a clear decision, not in need of elaboration at District Court level. Further, I would not assume that par [33] was overlooked by the Tribunal member whose decision is in question. That inference cannot be drawn with any assurance from his failure to mention it, or from the decision reached. No one can doubt that para [33] expounds the correct approach. I am not persuaded that the Tribunal overlooked it here.

[12] It is unknown to what extent, if at all, the Tribunal member was concerned about the imbalance that was obviously there in the levels and expense of representation of the parties, also between the amounts of money ultimately in issue and the costs claimed by Civic Steel. There are many situations in which it is not a congenial prospect for any judicial officer to award legal costs of professional representation against self-represented litigants who are not running up similar bills of costs which the represented party might have to meet. It may be that those considerations have no proper role to play, but I need not ronounce upon it here. The general no representation/no costs regime intended under the CACTA may be seen as accommodating them. Section 70 is in terms of what "the interests of justice require". Perhaps only rarely will it be clear what are the interests of justice. Along with the factors detailed above, one has to look at the interests of both sides. From the perspective of either, the just costs order would be the favourable one; reasonable arguments could be propounded in support. No particular resolution could be identified as representing the interests of justice to the exclusion of others. The situations in which the interests of justice can be said, objectively, to "require" a particular costs outcome may be relatively unusual. The views of the particular Tribunal or Court can be expected to play a significant part when the decision is arrived at.

[13] For appeal purposes, the issue is not whether the appeal court would have made the same decision, would have exercised the discretion in the same way, but whether the primary decision is vitiated by one or more of the grounds identified in leading cases such as House v The King (1936) 55 CLR 499, so that it may be set aside, enabling the appeal court to exercise the discretion afresh.

[14] While I would have been strongly inclined to exercise the costs discretion in favour of Civic Steel (not necessarily to the full extent of its costs incurred), I detect no error in the Tribunal member's approach. For the record I shall set out a collection of passages from the reasons given by him, illustrating matters taken into account:

"2. ...The respondent has objected to supplementary costs submissions filed by the applicant ...

3. It seems to me that the applicants' further submissions were necessitated by the respondent's lengthy and detailed submissions and a new affidavit ...

7. ...on whether the applicants were entitled to claim unliquidated damages. ... The respondent's counsel relied upon lengthy and detailed written preliminary submissions. ... the applicants properly conceded the issue ...

28. ...In these proceedings it seems to me that the respondent's legal representatives voluntarily engaged in unnecessary and prolix debate which is evident in correspondence but more so in the various submissions made to the Tribunal. It seems to me that each party, by their conduct, fuelled unnecessary and irrelevant debate about false issues.

...

31. ... As I said earlier the parties' dispute would have been avoided or substantially reduced if the respondent complied with the legislative requirements of recording the variation in writing. ...

41. It was clear on the evidence that the respondent was capable of putting the variation into written form within the shortest practicable time and before the varied work was carried out. ...

42. ... In my view the failure by the respondent to properly administer the contract by issuing a compliant variation document, materially caused or contributed to the matters in dispute before the Tribunal. If the respondent had provided a compliant variation it is likely that these proceedings would have been avoided, or at least the issues substantially reduced.

...

44. However, it seems to me that these proceedings would have been avoided, or the disputed issues substantially reduced, if the respondent had fulfilled its obligation to provide a written variation, and refrained from voluntarily engaging the applicants in unnecessary and irrelevant debate of false issues. ...

45. ... I do not think that the interests of justice require a departure from an order that each party bear their own costs ..."

[15] It would have been consonant with the interests of justice for some substantial costs order to have been made in favour of Civic Steel. I find no appealable error in the Tribunal member's reasoned view that such an order was not "required" in the interests of justice. There is legitimate room for a range of views about that.

[16] Mr Codd referred to decisions of other Tribunal members said to give proper effect to the approach described in Tamawood at [33], in particular Carpenter v Lifetime Securities (Aust) Pty Ltd [2005] CCT B181-02; Stanfield v Queensland Building Services Authority [2006] CCT Q042-04 at par 22; Heritage House Recyclers Pty Ltd v Jason Windsor [2006] CCT B566-04 at par 271 (all Mr Lohrisch) and Omar Habul trading as Habul Building Group v Saven Mihalache trading as Sam's Painting [2006] CCT BN160-05 at par 28 (Mrs Spender). (In some of those cases, such as the first, some costs at least were awarded on the indemnity basis). To similar effect, but lacking express reference to par [33] are the decisions about costs in Kawase v MI Pty Ltd [2005] CCT B052-04; Di Lione v Vincenzo Robertiello t/as Aqua Shop [2003] CCT B306-01; Reuter and Fraser v QBSA (No. 3) [2004] CCT Q008-03; Marshall and Ken & Darryl Marshall Pty Ltd v Seckold [2005] CCT B370-02; Dixon Projects Pty Ltd v QBSA (No. 2) [2004] CCT Q522-03; DMN Pty Ltd v Leo Salmi t/as Leo Salmi Constructions [2006] CCT B180-03. Reference to those decisions bears out Mr Codd's proposition, but does not justify the proposed appeal's being entertained on the basis of inconsistent approaches being taken to costs issues within the Tribunal. The members may be applying recognised principles with varying outcomes; it is not shown that they are invoking different sets of principles.

[17] The member whose decision is under appeal here in Slade v Caysand 132 Pty Ltd t/as Trident Constructions [2006] CCT B067-06 cited par [24] in Tamawood; there was no occasion to cite [33]; the situation was within s 64 of CACTA, said to be present a "stark contrast" with s 70; the member considered s 71(4) still provided "a useful guide"; he awarded costs against an applicant. Mr Codd's original outline of argument nevertheless takes him to task for misapplying Tamawood in failing to make reference to "countervailing considerations" when considering costs. See par 41. I am not persuaded that in the decision under appeal, or in his other decision, what the member has written raises any concern that he misunderstands Tamawood; there is nothing here to affect the view expressed at the end of the preceding paragraph. Indeed, the member has set out (and given effect to) "countervailing considerations." I disagree with Mr Codd's contention (par 45) that in the Tribunal there are "two diametrically opposed approaches to interpreting the binding precedent provided by Tamawood". Tamawood is the binding precedent. I have seen nothing to indicate that any Tribunal member misunderstands it (with the consequence that this court's intervention to set things right becomes desirable).

[18] In marked contrast with the general rule against costs being ordered in the Tribunal in s 70 of the CACTA stands s 142:

"142 Tribunal must order party to pay costs if certain offers to settle rejected

(a) a party to a proceeding serves another party to the proceeding with a written offer to settle the matters in dispute between the parties; and

(b) the other does not accept the offer within the time the offer is open; and

(c) the offer complies with this division; and

(d) in the opinion of the tribunal, the decision of the tribunal on the matters in dispute is not more favourable to the other party than the offer.

(2) The tribunal must award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.

(4) In deciding whether a decision is or is not more favourable to a party than an offer, the tribunal must -

(a) take into account any costs it would have awarded on the date the offer was served; and

(b) disregard any interest or costs it awarded relating to any period after the date the offer was served."

This mandatory provision is in line with the encouragement of parties to put an end to litigation by accepting offers which are established to be advantageous by subsequent events, namely the decision handed down by the court or tribunal. In the Uniform Civil Procedure Rules, see rules 360 and 361. It can be difficult to determine whether an offer is "no less favourable" or "not more favourable" than a decision or judgment. See ANZ Banking Ltd v Alirezai [2002] QSC 205 at [18] ff. The Court of Appeal considered the equivalent former District Court rule in Timms v Clift [1997] QCA 61; [1998] 2 Qd R 100 at 107-108:

"The argument was that r 118(1) had no application because it could not be shown that the judgment was 'no less favourable' than the offers; that was said to be so because the offers included a requirement that an apology be published, an element not quantifiable in monetary terms.

...

the expression 'a judgment no less favourable' in r 118 does not in our opinion exclude from consideration relief sought other than money claims. For example, if an action was brought relating to the winding up of a partnership, various items of relief might be claimed, including declaratory relief; it would be a matter for the court's judgment as to whether, an offer to settle having been made, the effect of the judgment overall was 'no less favourable' to the plaintiff than the offer.

In the present case there was, as it seems to us, no chance of an apology; however that may be, the respondent has not of course obtained one, under the judgment. But what he has is an award of damages very much higher than the sums sought in the offers to settle, namely $13,000 and $15,000. It seems to us that the result of the judgment, including ample vindication of the respondent's position, was more favourable to the respondent than either offer."

[19] The award was $165,000, halved on appeal. The reasoning was applied in Sunlec International Ltd v Carroll Australasia Pty Ltd [2001] WASC 354; BC 200108258 at [15] ff:

'Who as a matter of substance and reality, had won? Had the plaintiff won anything of value or anything he could not have won without fighting the action through to a finish? Had the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?'

(Timms v Clift [1997] QCA 61; (1998) 2 Qd R 100 at 107).

[16] It is difficult to compare an offer of $2,000 damages with an offer of $350 damages plus an injunction and delivery up. The defendant submits that the value of the injunction must be assessed against the amount awarded in damages for past infringement of copyright, so that it is unlikely that the injunction itself could be seen as worth more than $350. However, the orders for injunctive relief and for delivery up would have the effect of saving the plaintiff any possible future proceedings, in addition to preventing future damage. In my view, the injunctive relief must be seen as of considerable value in this action and I am unable to form the view in this case that the judgment is 'not more favourable' than the terms of that offer.

[17] However, I reject the submission made on behalf of the plaintiff, relying in part on assertions in an affidavit sworn by Mr Ellard on behalf of the plaintiff, that, in effect, the injunctive relief was of primary importance to the plaintiff and that 'this case has never been about the amount of money that the plaintiff may recover in damages' ...

[18] However, this is not a case in which it has always been clear that the plaintiff could have had injunctive relief purely by asking for it. ..."

The dicta quoted are from Roache v News Group Newspapers Ltd [1992] TLR 551.

[20] A feature of s 142 is that it apparently recognises the potential difficulty where the comparison is not a simple one between monetary amounts by making "the opinion of the tribunal" the foundation for the jurisdiction/obligation to pronounce the order described in subsection (2).

[21] Civic Steel's offer, while incorporating an amount in excess of what the Mitras recovered, does not permit any simple comparison to be made, in that it was conditional upon the Mitras' abandoning possible future claims they may have arising from circumstances as yet unknown. It offered the Mitras:

"1. Payment to you of the amount of $7,335.00 including GST and any interest ('Settlement Money') in full and final satisfaction of your remaining claim still in issue in the Tribunal proceedings and also all claims of any nature arising out of or in connection with the Building Contract and the performance of work by our client at your home address of 40 Rise Place, Upper Kedron. This Settlement Amount provides an allowance of $1,335.00 for liquidated damages and $6,000.00 in respect of the resiting claims.

2. Payment of the Settlement Money is to be made from the funds presently held in the Tribunal trust account in the total sum of $31,295.60 within five days of acceptance of this offer. The balance of the funds (namely $23,960.60) held in the Tribunal trust account are to be released absolutely to our client together with any interest thereon.

3. Upon payment of the Settlement Money:

(a) you will discontinue the proceedings commenced in the Tribunal against our client;

(b) our client will release you from any further liability for payment of moneys due pursuant to the Building Contract; and

(c) you will release and discharge our client from all claims of whatsoever nature that you now have or at any time in the future may have arising from or in connection with the Tribunal Proceedings, the Building Contract and the carrying out of work at your property, save for item 4 below and any items which our client may be responsible for pursuant to its statutory obligations under Section 72 of the Queensland Building Services Authority Act.

4. Our client will replace the weatherboard work which does not currently match the existing weatherboards within 28 days of acceptance of this offer. If it does not rectify that within this time then you will have the right to bring this issue back before the Tribunal to compel compliance. If there is any dispute over the quality or state of completion of that reinstatement work then the parties will ask the Tribunal to appoint an expert (such as a Queensland Building Services Authority building inspector) to assess compliance with appropriate building standards and once work has been done to the standard of that inspector, our client shall be discharged of any further liability in regard to that item.

5. This offer is open for acceptance for a period of 14 days from the date hereof and, if not accepted shall then lapse."

"16. The effect of the release and discharge in paragraph 3(c) is to strip the applicants of all rights save for the rectification of weatherboard work and any other rectification work pursuant to section 72 of the Queensland Building Services Authority Act 2003. My decision and the resultant orders do not affect the continuing of liability of the respondent arising out of the building contract or the building work carried out by the respondent. In that regard, the offer is plainly more disadvantageous to the applicants than the Tribunal decision. Whilst the monetary order slightly favours the respondent, the decision does not purport to strip the applicants of their present and continuing rights to make claims arising from the building contract or the building work.

17. In my opinion, the decision of the Tribunal on the matters in dispute is more favourable to the applicants than the offer. Therefore, the pre-requisite in subsection 142(1)(d) has not been fulfilled and the question of costs will fall to the general discretion and powers of the Tribunal to award costs having regard to the interests of justice."

[22] For Civic Steel, Mr Codd in supplementary submissions provided under cover of a letter dated 24 July 2006 submitted:

"6. In my respectful submission the learned Member was wrong and the submissions of the respondent misdirected in that neither the learned Member or the respondents correctly place the operation of section 72 within the confines of the Queensland Building Services Authority Act (the QBSA Act) as a whole, nor do they correctly interpret the rights said to be extinguished under the offer.

7. Section 72 of the QBSA Act is an element of the part of the act, Part 5, relating to the statutory insurance scheme and its regulation. Primarily section 72 addresses the power of the authority to give directions to rectify defective and/or incomplete building work to persons who carried out said building work. The power of the authority is extended to consideration of all matters reasonably relevant and is not limited to the terms of the contract or warranties pertaining thereto (section 72(2)). The prima-facie position is that the power of the authority to issue a direction to rectify is limited to a period of six years and three months after the building work to which the direction related was completed (section 72(8)).

8. Section 68 of the QBSA Act provides that a building contractor must pay to the authority the appropriate insurance premium. Section 68 further provides that a private certifier must not issue a development approval for building works unless the appropriate certificate of insurance has been issued by the authority. It is submitted that, in the absence of evidence to the contrary, the presumption of regularity applies and that the subject works are and were, at all material times, properly covered by the statutory insurance scheme.

9. Section 70 of the QBSA Act provides that, if a person entitled to indemnity under the scheme gives notice in accordance with the regulations to the authority:

a) the authority must make a decision regarding the claimed indemnity;

b) if the claimant is dissatisfied with the decision of the authority the claimant may seek review of said decision from the Commercial and Consumer Tribunal.

10. Section 71 of the QBSA Act provides that, if the authority makes a payment on the claim under the insurance scheme, the authority may recover the amount of the payment from the building contractor.

11. The issue raised by section 72 is: 'what happens if, notwithstanding the operation of section 72(10), the contractor nevertheless fails to rectify works subject to a direction by the authority.'

12. Section 74 of the QBSA Act provides:

a) At subsection (1) that in the event of the rectification work is not carried out in accordance with the direction the authority must seek tenders for carrying out the work.

b) Subsection (2) provides in certain circumstances the authority may seek tenders to carry out the building work even where the authority has decided not to give a direction to rectify under section 72.

c) Subsection (7) provides the authority may only have the work carried out under this section to the extent the cost of traffic engineer work is covered by payment to be made under the statutory insurance scheme in relation to the defective or incomplete work.

13. It is submitted that, under the statutory scheme, presuming section 72 is constrained by the operation of Part 5 of the Act as a whole and the insurance policies in place, a complaint made under section 72 of the QBSA Act, whether by the respondents or their successors in title, related to defective and/or incomplete works up until six years and three months after the completion of the works is subject to an indemnity from the statutory insurance fund. It is further submitted that, the award of an indemnity is subject to a review according to law by the tribunal under sections 70 and 86 of the QBSA Act.

14. In a practical sense it can be seen that, in respect of genuine defects and/or incomplete work, the effect of the offer to settle was to place the Queensland Building Services Authority (the QBSA) between the parties but not to otherwise diminish the owner's rights within the period and scope of the operation of the statutory insurance scheme."

(Section 72 finds its place in the QBSA Act in Part 6 - Rectification of Building Work.) There followed observations about the effect of s 72, whose continued operation the offer expressly contemplates, as the reasons below acknowledge. Mr Codd argues that the reasons are erroneous in law for failing to consider the provisions of Part 5 - the Statutory Insurance Scheme; it is said that it is excluded from the calculations that should have been made in evaluating the offer the Mitras' rights under that Scheme. It is presently unknown what, if any, defects in the building work might become apparent in the future and when that might happen. The imponderables thus appear more problematic than those considered in Clift v Timms and the West Australian case - which is not to say that they could not be brought into the reckoning in some way.

[23] The answer in my opinion is provided by the Victorian Court of Appeal's decision in Housing Guarantee Fund Ltd v Johnson 4743 of 1994, 17 March 1995; BC 9503251; cited in the supplementary submissions of Mr Daubney SC supplied rather late (on 1 August 2006), as the author had "been distracted by other matters". He had been granted time to respond to Mr Codd's assertion made for the first time at the hearing about the Insurance Scheme. The decision concerns Victorian provisions, but nevertheless casts grave doubt upon the contention that if the offer incorporating the very wide release of all claims had been accepted, the Insurance Scheme would have been available. I have not been asked (and do not purport) to consider the QBSA Act provisions, but would expect that the general principle of the Court of Appeal's decision (allowing an appeal) would apply here.

"The question for our decision is simply whether a release by a building owner of the builder's obligations under a domestic building work contract, as that expression is defined in the House Contracts Guarantee Act 1987, leaves room for any future claim by the building owner upon the appellant Fund as guarantor under the Act."

(Page 3 of 17)

and concludes after brief examination of the legislation:

"In this case the building owner has for consideration released the builder from its obligations under the domestic building work contract. It necessarily follows, in my opinion, that the subject matter of the guarantee to the owner has disappeared, for the builder now owes to the building owner under the domestic building work contract no obligations the performance of which were guaranteed."

(Page 4 of 17)

Ormiston J thought that the Victorian Act established a "guarantee" which was discharged once the primary liability of the builder ended. He said at page 5 of 17:

"In my opinion, therefore, notwithstanding those aspects of the guarantee which do not appear entirely consistent with the normal contractual guarantee, I consider this to be a guarantee. For this purpose it is useful to consider the careful analysis of the nature of a guarantee contained in three judgments of Jordan, CJ in decisions of the New South Wales Full Court in Permanent Trustee Co of NSW Ltd v Hinks [1934] NSWStRp 13; (1934) 34 SR (NSW) 130; Jowitt v Callaghan [1938] NSWStRp 43; (1938) 38 SR (NSW) 512 and Hancock v Williams [1942] NSWStRp 28; (1942) 42 SR (NSW) 252, which in my opinion are consistent with observations subsequently made in the High Court and in particular in Sunbird Plaza Pty Ltd v Moloney (1988) 166 CLR 245. however, even if it were to be characterized as an indemnity, this is a case where the indemnity would have been in respect of the liability of the builder, and if there be no liability, by reason of release or other discharge, then the party 'guaranteed' or indemnified pursuant to the provisions of the Act has no greater right to recover under the statutory guarantee or indemnity from the Fund. In other words 'A liability to indemnity against a liability which has no existence, and which can never arise, is a contradiction in terms': see Re Perkins [1898] 2 Ch 182 at 189 per Lindley, MR, and Taylor v Sanders [1937] VicLawRp 16; [1937] VLR 62 at 65 (FC)."

[25] The leading judgment is that of Phillips J who said at page 7 of 17:

"THE APPEAL On the appeal, the principal issue is whether the settlement achieved as between builder and owner (as embodied in the terms of settlement and reflected in the consent award) was such as to relive the Fund of liability to the owner under the guarantee given by the Fund under the Act in relation to the builder's work for the owner (which is the contention of the Fund); or whether (as contended by the owner and as held by the Tribunal) it allows her to prosecute her claim against the Fund under the guarantee, save for 'loss and damage for which she has recovered pursuant to terms of settlement'. But one or two points may be made at the outset.

First, there was no dispute before us about the ambit of the settlement made between the owner and the builder, at least to this extent: it was contended by the Fund and conceded by the owner that the settlement was comprehensive as between the owner and the builder. It was common ground that neither could thereafter have any claim against the other for any failure to perform the contract or for bad workmanship contrary to the contract; each had discharged the other and no liability as between them remained. (This was in line with the decision of the learned President.) What was still in dispute was the effect of the settlement on the liability of the Fund to the owner under the statutory guarantee.

Secondly, as the question for decision is whether the Fund remains liable under the guarantee in circumstances where the builder has ceased to be liable to the owner, the answer will no doubt reveal to what extent under this statutory scheme the builder and the owner remain free to resolve by agreement any dispute between them over defects or uncompleted work. The owner contends that, notwithstanding the release given by her to the builder, she may call upon the Fund under the guarantee to make good loss or damage suffered by defects and uncompleted works (even if, as held by the Tribunal, that claim must now be limited by such recovery as was achieved by her from the builder by virtue of the settlement). If that be correct, because the Fund may have recourse to an approved builder under R41 for any payments which the Fund makes to the owner, the release of all claims by an owner may offer little inducement to builders hereafter to settle their disputes - at least if the Fund itself is not made party to the release. It would, of course, be an extraordinary result if this legislation, which was no doubt intended to be of benefit to building owners and builders alike, served to impede the settlement of building disputes; it is plainly in the public interest that such disputes be resolved by agreement, wherever possible."

After detailed review of the legislation and relevant contractual principles, his Honour concluded at 13 of 17:

"It follows, in my view, that when the owner and the builder in this case arrived at a settlement of their differences in respect of the builder's performance of his obligations under the contract, that agreement now controls the liability of the Fund under the statutory guarantee; and the builder having been released by the owner from all liability to her in respect of the contract, the Fund is not now liable to her under the guarantee."

[26] At the very least, this decision establishes grave doubt as the availability of the Insurance Scheme to any owner who releases/discharges the builder. No argument has been presented to support the assertion that the relevant insurance policy would continue to offer the Mitras any significant protection, had they accepted the offer. I am not persuaded that there is error or arguable error in the Tribunal member's approach to arriving at the "opinion" he had to reach for purposes of s 142(1) of CACTA. It may be implicit in what he said about the release/discharge insisted upon that he appreciated or assumed that the protection of the Insurance Scheme would or would most likely be lost. My view is that, as things stand, he would have been right. This is not a case for declaring his "opinion" vitiated by error to the extent that this court should form its own.

[27] Mr Codd, who has made no submission about the Victorian case, submitted (par 121) that:

"a) section 142 of the Act necessarily requires the Member ascribe a monetary value to all matters bearing upon the question raised by section 142(1)(d);

b) the prima facie obligation is for the successful party under section 142 to demonstrate the monetary value of the offer exceeded the award;

c) once the successful party has discharged that obligation the burden falls to the unsuccessful party to adduce material contesting the monetary value achieved by the offer;

d) no evidence was placed before the Tribunal from which a value was asserted for paragraph 4 of the offer letter;

e) even if such evidence was found the Member failed to refer to it in his reasons and therefore may be inferred to have failed to consider it;

f) the Member's opinion of the value is unsupported by reasons amenable to review on appeal and this lack of support is of itself a point on which the appeal should be granted;

g) on the bases set out above this Court should set aside the decision of the Member in respect to section 142 and substitute its own decision; ..."

I doubt that there would be any universal obligation to ascribe a money value to every component of an offer which is not expressed in a money amount. It may well be that, as in the cases noted above, the court considering some non-monetary component, such as an apology, can feel comfortably satisfied that an offer bettered or fell short of the outcome of litigation pursued to finality. There will be other cases, like ANZ v Alirezai, in which quantification in money is not possible or in which no comparison of relative benefits can confidently or sensibly be made. I am unimpressed by Civic Steel's assertion that any problem with its building work would emerge within six years and three months.

[28] Another aspect of Mr Codd's argument should be noted, namely that the Tribunal member denied Civic Steel natural justice in the form of a proper hearing, by failing to afford an opportunity to make submissions dealing with the effect of the s 142 offer. It may be accepted that the Tribunal must accord natural justice to all parties before it. A failure to do so may be an error of law for purposes of supporting an appeal: Escobar v Spindaleri (1986) 7 NSWLR 51. The present parties have been heard at length. The aspect attracting complaint is that the member is said to have embarked on some undisclosed exercise of his own in evaluating the offer. The supplementary submissions contain the following:

"31. It is a basic principle of natural justice that if a person making a decision constrained to afford natural justice intends to rely upon personal knowledge, the decision maker must disclose this knowledge to the parties so that they m ay have the opportunity of addressing evidence or argument upon it.

32. Similarly, the decision maker must disclose to the parties any argument which has not been raised the hearing and which might have a bearing on the determination in order to give them an opportunity to meet it. In dealing with the power of an arbitrator to make a determination, Justice Owen of the Supreme Court of Western Australia observed:

'...although he was at liberty to call on his own knowledge and expertise as a valuer. However, if he wished to take into account something which had not been aired by the parties and which would be material to his decision he would be under an obligation to advise the parties of the fact and to give them an opportunity to comment on it. In this respect too an arbitrator is in no different a position to a specialist tribunal exercising a supervisory jurisdiction. See Cranleigh v The Medical Board Unrep SCWA Ipp J Library No 8610 27 November 1990 at 7-8'

33. The submissions made by the parties to the tribunal in respect to the question of costs are incorporated in the affidavit of Adam William Carlton-Smith at exhibits 5, 6, 7 and 8. The value of the letter of offer was addressed in submissions by the appellants at paragraphs 15, 48 and 79 of the primary submissions on costs by the appellant (Exhibit 6). No other submissions were made by either party which might even touch upon the relative value of the offer as against the award.

34. In respect to the potential value of the constraint provided by paragraph 3(c) of the offer:

a) No evidence was tendered at the hearing and no evidence identified in the learned member's reasons for decision that was properly placed before the parties during the hearing or before the learned member made his findings.

b) The learned member reached conclusions as to the respective entitlements and rights the parties under the offer which were not agitated by either party in the hearing or in submissions thereafter."

-

the submission being the "the attribution of value to the effect of par 3(c) of the offer amounted to a breach of natural justice". The quotation of Owen J is from EMS Holdings Pty Ltd v Industrial Lands Development Authority, 23 December 1993; BC 9301631. Also pertinent are the dictum of McInerney J in Slapjums v City of Knox (No 1) [1978] VR325, 341-42:

"I am of the view that the arbitrator was not entitled to make a finding of fact based on evidence (collected by him on his own enquiries) not disclosed to the parties before judgment and which neither party had the opportunity of investigating, testing or answering. In this context I would refer to and repeat what was said recently by the Full Court in R v Industrial Appeals Court; Ex parte Maher, [1978] VicRp 12; [1978] V.R. 126, and to what I myself said in Pruscino v Nibaldi, [1973] VicRp 9; [1973] V.R. 113 at p.119."

and other authorities, many of which were collected by Byrne J in Re Tiki Village International Pty Ltd [1994] 2 QdR 674 at 678-80 and in the footnotes.

[29] Civic Steel may not have raised in the Tribunal the arguments presented to this court about the evaluation of its offer, but it had the opportunity to do so, and to present any evidence pertinent to the matter. As Mr Daubney points out in par 9 of his supplementary outline of argument, it "squarely raised the issue of whether the decision was or was not more favourable than the offer. It is clear that the parties were afforded, and took advantage of, natural justice below." It had been submitted for Civic Steel, inter alia:

"Relevant Precedents Sections 138-142 of the Act

[45] If an offer to settle has been made in accordance with Part 7 Division 7 of the Act50 the discretion available to the Member in respect of orders for costs is controlled by the legislation. Two key questions dominate the application of these provisions:

a) whether in fact the offer made pursuant to the division is better that than the award; and

b) did the offer made conform with the requirements of the Division.

[46] It is axiomatic that if the offer did not conform to the Division under which it was to be made, it is not an offer to settle which attracts the application of the Division.51

[47] However where an offer does conform the Act provides no discretion for the Member to refuse an application for costs.52

[48] The more significant question is whether the offer to settle exceeded the award. This is a question which is complicated by consideration of issues such as the scale or proper measure of costs53 and the relative value of the terms of the offer weighted against the award.54

_______________________________________________________

50 ss 138-142 of the Commercial and Consumer Tribunal Act 2003

51 Darcy & Hyde v Helensvale Pool & Spa [2005] CCT B658-03 at [7]; Marshall & Marshall v Seckold [2005] CCT at [19]-[27].

52 Wallace Internal Linings Pty Ltd v Sommer & Staff Constructions Pty Ltd [2003] CCT No 11-03 at [28]; Dixo Pty Ltd v QBSA [2004] CCT Q522-03 at [11]; Kama Services Pty Ltd v Benbeach Pty Ltd t/a PB Plastering [2004] CCT B212-03 at [13]

53 Darcy & Hyde v Helensvale Pool & Spa [2005] CCT B658-03

54 Kama Services Pty Ltd v Benbeach Pty Ltd t/a PB Plastering (No. 2) [2004] CCT B212-03"

The argument presented asserted that "any reasonable construction" would favour Civic Steel's case for costs. The member was left to make a decision about this. It appears that nothing was said to him about the releases sought; no submission was made about any monetary equivalent. No one reading the terms of the offer would overlook its effect of releasing Civic Steel. I would hazard a guess that the release sought:

• was unusual in being there at all

• was unusual in its lack of definition of potential claims being released (alternatively in its width)

• was very important to Civic Steel.

It went far beyond the issues identified in the proceeding to be settled, bringing in not only other claims that might have been adverted to or foreshadowed between the parties, but quite likely still others that could not even be usefully guessed at. Accepting that judicial officers often recall parties to invite submissions about issues that have not been the subject of argument but which come to seem important, I do not think that it was incumbent on the Tribunal member here to contact the parties; he would have presumably been advising some preliminary view about the release looming large in his thinking and that its notional money equivalent might be very significant, inviting submissions about that.

[30] My conclusion is that if leave were granted to appeal, the appeal would have no appreciable prospects of success. The length of these Reasons is acknowledgment that there is some scope here for argument, some of it complicated or subtle. In effect, Civic Steel has had the benefit of my consideration on the merits. The simpler course is to refuse it leave to appeal. The remaining matter is (appropriately for this proceeding) costs.

[31] The rejection of the application for leave to appeal would ordinarily lead to Civic Steel being ordered to pay Mitras' costs. By analogy with appeals from other tribunals in which a no-cost regime usually applies (for example appeals from the Planning and Environment Court), costs in the appeal is in the discretion of this court.

[32] Section 100(8) of CACTA construed literally and in isolation could be seen as requiring this court to order costs in favour of the Mitras, whatever the outcome of this appeal subject to leave proceeding. Tamawood has authoritatively determined that the provision applies only to the filing and like costs incurred in getting such a proceeding underway and the transcript referred to. An appellant is going to have to bear such costs in the first instance in any event. The Mitras having no right to a costs order, even though they have been successful, the question is whether the court should exercise its discretion to order costs in their favour.

[33] I have concluded that the justice of the case is served by declining to so order. The circumstances are special in that the Tribunal's costs decision falls at an extreme of the range of orders that could be seen as consonant with the interests of justice, being the extreme most unfavourable to Civic Steel, which had been almost completely successful; from its point of view the decision could hardly be seen as just. A way of ameliorating what strikes me as an anomalous and problematic cost outcome in the Tribunal is to refrain from ordering costs in this court in favour of the Mitras, notwithstanding their success here. The costs denied Civic Steel in the Tribunal would be many times greater.

[34] (There is on the file an order of 20 March 2006 giving effect to a signed consent document filed on 17 March 2005 including the following:

1. The Appellant is granted Leave to file a Notice of Appeal Subject to Leave.

2. The Application for Leave to Appeal and the Appeal are to be heard together on a date to be set, at which time the Respondents agree not to contest the Appellant's leave to Appeal Application.

At the hearing it became clear that the Mitras had never intended or been expected to consent to leave to appeal being granted. It was simply a case of their being co-operative by way of allowing Civic Steel to overcome difficulties it might otherwise have faced from having commenced its proceeding in this Court by a notice of appeal on 22 December 2005, rather than a notice of appeal subject to leave.)