[29] 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.

[8] This statement was reinforced in Ascot v Nursing & Midwifery Board of Australia[4]:

[9] The public policy intent of the provisions in the QCAT Act is plain. The tribunal was established as a no costs jurisdiction. That may be departed from where the interests of justice require it. The considerations identified in s 102(3) are not grounds for awarding costs. They are factors that may be taken into account in determining whether, in a particular case, the interests of justice require the tribunal to make a costs order.

[9] That of course applies in circumstances where the enabling Act, conferring jurisdiction on the Tribunal, is silent as to the question of costs.[5]

[10] There is one further observation that might be made with respect to a review of an administrative decision. Review applications, by their very nature, are not adversarial. Part 1 Division 3 of the QCAT Act sets out how review applications are to be conducted in the Tribunal. In exercising the review jurisdiction, the proceeding must be decided in accordance with the QCAT Act and the enabling Act under which the review decision is being made.[6]

[11] The Tribunal may perform the functions conferred on it by the QCAT Act, or an enabling Act under which the reviewable decision is being reviewed, and has all the functions of the original decision-maker. The decision-maker must help the Tribunal[7] and provide a written statement of reasons for the decision and any documents relevant to the Tribunal's review of the decision. Generally, if the decision-maker is a Government Department, or instrumentality, the proceedings must be conducted in accordance with guidelines of a model litigant. That means, that the decision-maker must assist the Tribunal in coming to the correct and preferable decision.

[12] It is against that background that the matters referred to in s 102(3) of the QCAT Act must be considered.

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

[14] I will now turn to consider the applicant's submissions under s 102(3) of the QCAT Act.

The respondent unnecessarily disadvantaging applicant

[15] It was not until 13 February 2014 that the applicant had finalised nearly all of the evidence upon which he intended to rely for the purposes of the hearing. Mr Fuge's complaint is that the Commission, once it received all of that evidence, acted unreasonably in not then deciding to categorise him as a permitted individual. Further, the complaint is that Commission did not identify any specific matters going to his unsuitability to be so categorised. It did not ask for any further information which might go to satisfying any ongoing concerns.

[16] It is then contended that had the Commission advised the applicant of these matters, those matters could have been addressed. By not doing so, it is then contended, that the Commission acted to the applicant's disadvantage.

[17] Section 56AD(8) of the QBCC Act imposes a specific evidentiary burden on an applicant who wants to be categorised as a permitted individual to satisfy the test contained in the section. Although it is always helpful for the Commission to identify any shortcomings with such an application to assist it in arriving at a decision, there is no specific obligation on it to do so. Once an applicant files an application for review, that evidentiary onus continues and it is for the Tribunal, standing in the shoes of the decision-maker, to arrive at the correct and preferable decision.

[18] Practically, as the evidence is gathered and presented to the Commission it can reconsider its decision and change it if it is satisfied that an applicant has met the test, but is not obliged to do so. The Commission says here that even during the course of the hearing, further information came to light about the applicant's financial transactions, which was relevant to the final decision by the Tribunal. I agree with this submission.

[19] One matter that was never satisfactorily explained was the reason for the litigation against Mr Fuge by W & D Investments Pty Ltd. As matters transpired, the Tribunal found that by the time this litigation commenced, all of the damage had been done with the inevitable result of bankruptcy, but one cannot help but be suspicious about there being some ulterior motive for this litigation.

[20] I am not satisfied that the Commission acted any way to the disadvantage of the applicant.

[21] Factually, the nature of the dispute was complex. Legally, the test to be applied in these applications has been well settled and there are numerous decisions by the Tribunal as to how the test is applied. It was reasonable for both parties to be legally represented in the proceeding but the mere fact that it was complex factually does not support an order for costs in favour of the applicant.

[22] The applicant submits that it ought to have been obvious to the Commission, certainly after 13 February 2014 that the likely outcome of the hearing would be that Mr Fuge would be categorised as a permitted individual. It also contends that in respect of the two major grounds upon which the Commission resisted the application that is, the property development of the two houses at Coolum Beach was inherently risky, and the applicant did not obtain appropriate advice, further evidence at the hearing did not necessarily improve the applicant's prospects. However, I take the view that, Mr Fuge's explanations and the cross-examination of his accountant were of assistance it making the decision.

[23] Even so, if the evidence put forward by the applicant presented a strong case the Commission still had a responsibility, in the administration of the Act, to ensure that the public interest was protected and therefore, to proceed to a fresh hearing on the merits was a reasonable course for it adopt.

Whether the applicant genuinely attempted to enable and help the respondent make the decision

[24] To the applicant's credit, he is only seeking costs after the final statements were filed in February 2014. However, as I have said above there is an evidentiary onus on the applicant to satisfy the Tribunal that the test contained in s 56AD(8) has been discharged. I simply cannot see this as a proper foundation to warrant a costs order.

[25] In addition, the respondent was put to cost and expense in having to continuously comply with procedural steps due to the failure of the applicant to file his material in a timely fashion. As well, further material was filed on 11 March 2014 providing further evidence as to the reasonable steps taken by the applicant.

[26] There was no circumstance out of the ordinary in this case, which would warrant further consideration in respect of costs. There are many published decisions on the application of s 56AD(8) in the Tribunal as well, the parties engage in compulsory conferences to assist them to identify those matters that are of concern to the Commission in an attempt to resolve the application. Many do resolve and no doubt that will continue. However, there are those cases, where there are complex factual issues, that ultimately need to be considered by the Tribunal to produce the correct and preferable decision.

[27] I am not satisfied that in the circumstances of this case, taking into account the matters set out in s 102(3), that there was any conduct on the part of the Commission which would justify, in the interests of justice, an costs order against it.

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

[29] In the circumstances, the order the Tribunal will be that there be no order as to costs.

[1] House v R [1936] 55 CLR 499.

[2] [2010] QCAT 49 at [17].

[3] [2010] QCAT 412.

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

[5] As an example see s 77 of the Queensland Building and Construction Commission Act 1991 (Qld).