Morley v Queensland Building and Construction Commission [2025] QCAT 477

• [4] Between July 2011 and February 2012 Mr Morley decided Craig Johnstone is a competent person for the inspection of assessable building work under section 17(1)(b) of the now repealed Building Regulation 2006 (Qld).
• [5] On 30 September 2011 Mr Morley gave development approval for building work at 7 Erebus Street, Eagle Heights ('home'). Mr Johnstone performed certain of the building certifying functions.
• [6] A third party building contractor constructed the home.
• [7] On 20 June 2012 Mr Morley certified the building work for the home by completing and signing a final inspection certificate (form 21).
• [8] On 7 August 2019, more than seven years after completing and signing the certificate, the building owner of the home made a complaint about the home to the Commission.
• [9] The Commission investigated the complaints and, on 23 April 2020, gave to Mr Morley a decision notice in which the decision-maker found:
  1. five of the complaints which related to alleged poor building work were said constitute unsatisfactory conduct (the BW Complaints);
  2. the balance of the six complaints relating to alleged poor building work were not made out;
  3. Mr Morley engaged in unsatisfactory professional conduct by failing to give, at the final certification state, both a separate Form 16 for the Final State inspection in addition to the Form 21 Final Inspection Certificate which was given; and
  4. as a consequence of the above matters, that Mr Morley should be reprimanded.
• [10] Mr Morley applied to the internal reviewer to have the decision reviewed. On 13 July 2020 he made a new decision finding:
  1. In relation to the Complaint items 1 - 8 inclusive, 10, and 11, as relevant to a frame stage inspection and certifying the frame stage, I have decided that the Applicant, Steven (sic.) Paul Morley, has engaged in 'unsatisfactory conduct' as defined within Schedule 2 of the Building Act 1975 (Building Act).
  2. In relation to Complaint item 9, as relevant to the final stage inspection and certifying the completed building when bulk insulation had not been installed within the building's ceiling, I have decided that the Applicant has engaged in 'unsatisfactory conduct' as defined within Schedule 2 of the Building Act.
  3. In relation to not issuing a certificate of inspection for the final stage inspection in the approved form, I have decided that the Applicant has engaged in 'unsatisfactory conduct' as defined within Schedule 2 of the Building Act.
  4. I have further decided, pursuant to legislative provisions under section 204(4) of the Building Act, to reprimand the Applicant for his engagement in unsatisfactory conduct.
• [11] On 5 November 2020 Mr Morley applied to the Tribunal for a review of the decision.

• [12] On 24 September 2023, the day before the hearing of the proceeding, the Commission gave to Mr Morley a position statement. It was tendered in evidence on 25 September 2023 and the proceeding adjourned to the next day to afford Mr Morley an opportunity to consider the statement.
• [13] On 26 September 2023 Mr Morley and an expert witness, Mr Ruzic, gave evidence to the Tribunal. The internal reviewer, Mr Blackman, also gave evidence. Directions were then given by the Tribunal for the filing of written submissions in closing.

• [14] On 6 October 2023 the Commission made application to the Tribunal to invite the decision-maker to reconsider the decision under section 23(1) of the QCAT Act. An order to that effect was made by consent on 23 October 2023. The time for compliance with the order was extended by consent to 4 December 2023.
• [15] The decision-maker, on 6 December 2023, set aside the decision and made a new decision Mr Morley had not engaged in unsatisfactory conduct.
• [16] On 29 March 2024 Mr Morley made application to the Tribunal for an order for costs on the District Court of Queensland scale of costs.

• [17] Since 2004 Mr Morley has been a private building certifier under the Building Act 1975 (Qld). On 30 September 2011 he gave development approval for building work at 7 Erebus Street, Eagle Heights ('home'). He engaged Mr Craig Johnstone as a competent person for the inspection of assessable building work under section 17(1)(b) of the now repealed Building Regulation.
• [18] A third party building contractor constructed the home. On 20 July 2012 Mr Morley certified the building work for the home by completing and signing a final inspection certificate (form 21).
• [19] On 7 August 2019, about seven years after the certificate was given by Mr Morley, the home owner complained about the home to the Commission. The complaint items are set out on pages 364-393 of exhibit A1 in the hearing book.
• [20] The Commission investigated the complaint items and, on 23 April 2020, gave to Mr Morley a decision notice ('decision notice'). The notice made the following findings:

(a) five of the complaint items alleged poor building work;

(b) the remaining six complaint items did not constitute poor building work;

(c) Mr Morley engaged in unsatisfactory professional conduct by failing to give an inspection certificate (form 16) and a final inspection certificate (form 21); and

(d) Mr Morley should be reprimanded.

• [21] Mr Morley applied to the internal reviewer to have the decision reviewed. On 13 July 2020 the internal reviewer made the internal review decision ('internal review decision'). He decided:

(a) Mr Morley engaged in unprofessional conduct in respect of nine complaints; and

(b) he should be reprimanded for engaging in unsatisfactory professional conduct.

• [22] On 5 November 2020 Mr Morley made application to the Tribunal to review the internal review decision.
• [23] Mr Morley cites Campbell v Queensland Building and Construction Commission (No. 2)[1]. There, the Tribunal explains the power to award costs in the following way:

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'.[2]

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. 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).[3]

• [25] Mr Morley also refers to the decision of the Tribunal in Meads v Queensland Building and Construction Commission.[4] The Tribunal said:

[52] This matter has been voluminous in the paper produced, protracted and difficult for the Applicant and the Respondents evidence anecdotal at best. In circumstances where the Respondent retracted most of the penalties imposed at the end of the hearing after the Applicant explained the impossibility of their fulfilment. This is a particularly relevant consideration, had the Commission turned its mind meaningfully to the Applicants position, just on penalty at the opportunity afforded Compulsory Conference procedure an inordinate amount of wasted costs may have been preserved.

[53] This is an appropriate case for the Respondent to pay the Applicant's costs.

• [26] The Tribunal would be satisfied the interests of justice would require the making of an order for costs on the following grounds:

(a) section 102(3)(a) of the QCAT Act (unnecessary disadvantage): There were three matters set out in the position statement. The Commission may not have proceeded in the proceeding or, at the very least, the workload associated with preparation for the hearing, and the hearing itself, would have been materially reduced if the three matters in the position statement had been advanced at the commencement of the proceeding;

(b) section 102(3)(b) of the QCAT Act (nature and complexity): The proceeding necessarily involved a greater complexity about the nature of the alleged defects. Once the Commission relied on the matters alleged in the position statement, none of those matters were relevant to Mr Morley responding to the contentions or were a significant waste of costs responding to the contentions;

(c) section 102(3)(c) of the QCAT Act (strength of claims): Mr Morley's claim was materially greater in strength than the Commission's claim. The matter is one favouring an award of costs in favour of Mr Morley;

(d) section 102(3)(d)(ii) of the QCAT Act (genuine attempts to assist the decision-maker): It was not until the position statement was filed could it be said the Commission attempted to assist the decision-maker decide on the merits. The matter strongly supports an order for costs, at least to the filing of the position statement at the commencement of the second day of the hearing;

(e) section 102(3)(f) of the QCAT Act (anything else): The conduct of the Commission advancing a multiplicity of complaints requiring significant time and money to the respondent, adopting a different case, and then to abandon the case, has put Mr Morley to additional costs. The purpose of a costs order is to compensate, not punish, and in the circumstances is appropriate in the interests of justice.

• [27] The Commission refers to the application for costs in the introduction and sections 100 and 102 of the QCAT Act in the law on costs in the Tribunal. Then, the submissions refer to the decision of the Appeal Tribunal in Neller & Anor v Queensland Building and Construction Commission (No. 2)[5] ('Neller'), citing from paragraphs [6]-[16].
• [28] The submissions also refer to the decision of the Tribunal in Pound v Queensland Building and Construction Commission[6] ('Pound'), in particular paragraphs [46]-[50] of the decision concluding with what is a discretionary proceeding against a building certifier at paragraph [50]:

The approach of taking account of the public interest in statutory bodies pursuing disciplinary proceedings, and the potentially adverse impact of an adverse costs order on that endeavour, is consistent with s 100 and the objects of the QCAT Act.

• [29] The Commission summarises the principles relevant to an application for costs against a regular regulatory body in the context of a discretionary proceeding as follows:

(a) first, the general rule each party bear their own costs reflects the objects of the QCAT Act and is designed to promote access to justice generally and minimize the overall costs in tribunal proceedings;

(b) secondly, the underlying concern of section 100 of the QCAT Act, in particular of not impeding access to justice and maintaining a low-cost jurisdiction, may be placed in the balance along with the considerations in section 102(3), with the weight accorded to it being largely dependent on the nature and scope of the proceedings; and

(c) thirdly, ordinarily, unless it can be demonstrated an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against it simply because it was not successful in the application.

• [30] The proceeding concerned a discretionary decision of the Commission for a building certifier and its role as the vocational regulatory body for building certifiers in Queensland. The default position should not be departed from in the absence of unreasonableness or bad faith.
• [31] On 13 July 2020 the Commission made the internal review decision. It decided Mr Morley had engaged in unsatisfactory conduct under section 204 of the Building Act and issued a reprimand. Mr Morley, on 7 August 2020, made application to the Tribunal for external review of the internal review decision.
• [32] The statement of reasons filed in the Tribunal by the Commission on 7 January 2021 makes clear the decision of unsatisfactory conduct was founded on four matters. The matters are identified in paragraph 9 of the Commission's submissions under the heading 'Role of Mr Johnstone', 'Frame stage inspection', 'Final stage inspection' and 'Energy efficiency requirements'.
• [33] In 2021 and 2022 Mr Morley filed several statements and affidavits. The Commission, on 5 April 2022, filed a statement by Mr Blackman, the internal reviewer.
• [34] The proceeding was listed for hearing on 25 and 26 September 2023.
• [35] The submissions, under the heading 'THE COMMENCEMENT OF THE HEARING AND THE POSITION STATEMENT', quarrels with the accuracy of paragraphs 19-23 of Mr Morley's submissions. The intent of the position statement was to make clear the Commission no longer pressed the cadet issue. Rather, in the frame stage inspection, it only wanted to press the competent person issue.
• [36] The position statement, the Commission submits, was provided in response to a request by Mr Morley.
• [37] The issue whether Mr Johnstone was properly qualified to be a competent person was raised by the Commission on several occasions. It agreed to adjourn the hearing on 25 September 2023 to afford Mr Morley an opportunity to respond to the position statement. He did so.
• [38] The hearing and events following are outlined by the Commission in its submissions. It then continues it was entirely appropriate for it to consider the impact of the further written statements of evidence on 25 September 2023 and the oral evidence on 26 September 2023 on the internal review decision.
• [39] The submissions then consider the merits of the application for costs:

(a) competent person issue: Mr Blackman's consideration of Mr Johnstone's qualifications and experience did not reveal competency in timber and metal framed construction techniques showing he was confident in the performance of the frame stage inspections for class 1a buildings. Mr Morley's oral evidence provided further particulars of his assessment of Mr Johnstone's competence;

(b) non-compliance notices: The Commission's concern about the failure to take enforcement action under section 35(1) of the Queensland Building and Construction Commission 1991 (Qld) ('QBCC Act') was not without merit prior to Mr Morley's oral evidence about the verbal notice for inspection of work for the frame and final stages and in the absence of any evidence about a further inspection under section 30; and

(c) form 21 and energy efficiency compliance: The inspection certificate (form 16) relied on by Mr Morley when giving the final inspection certificate (form 21) did not certify installation of R2.5 bulk installation within the roof space. It follows Mr Morley signed the final inspection certificate without confirming compliance with the energy efficiency requirements for building approval.

• [40] The submissions conclude by commenting on several paragraphs of Mr Morley's submissions.
• [41] The parties, the Commission submits, should bear their own costs of the proceeding.

• [42] Mr Morley filed written submissions in reply. He submits the decisions in Neller and Pound are accepted, but:

(a) the principles do not establish an insurmountable hurdle to an order for costs being made against entities such as QBCC;

(b) those authorities related to proceedings where an application for costs was made following a decision being made against the disciplinary body - here, QBCC essentially conceded the proceeding following the hearing of evidence; and

(c) in this instance, the Applicant contends that the QBCC has acted unreasonably, by:

(i) advancing, by its 636-page Statement of Reasons, an unduly complex case, requiring considerable effort to prepare for;

(ii) abandoning issues at the commencement of the proceeding that the Applicant had appointed experts to consider; and

(iii) ultimately, advancing the four issues described in the 4-page Position Statement of the QBCC dated 24 September 2023 (being the day before the commencement of the proceeding) (the Position Statement), which were unmeritorious.

• [43] The criticism of the Commission is not that it provided the position statement, it is that it did so late, it relied on matters either not clearly articulated in the statement of reasons or were not part of the Commission's 'primary case' and were unmeritorious.
• [44] Four matters are mentioned in the submissions. They then go on to submit there is not a provision of the now repealed Building Regulation rendering a private building certifier from relying on the assistance of a competent person.
• [45] Mr Morley is critical of the Commission for not conceding the matters set out in the position statement were unmeritorious notwithstanding the additional evidence. In particular:

(a) as to the "Competent Person" issue, Mr Blackman gave positive evidence that Mr Johnstone could not have been a competent person, and that it would have been unprofessional to appoint him as such, despite the fact that:

(i) Mr Blackman has never met Mr Johnstone;

(ii) Mr Blackman only had regard to Mr Johnstone's academic transcripts, which he obtained through the Court's compulsive processes (and which the Applicant could not); and

(iii) Mr Blackman gave no cogent reason as to why Mr Morley could not have satisfied himself of Mr Johnstone's skills;

(b) as to the 'Enforcement Notice' issues, Mr Blackman has never given any clear reason why enforcement notices should have been given, and why builders should not be left to undertake defect repair work of their own volution; and

(c) as to the insulation issue, the certificates relied upon by Mr Morley to satisfy himself that proper insulation had been installed were always in evidence and in the possession of QBCC, and Mr Morley's evidence was merely to identify the relevant parts of those certificates that he relied upon.

• [46] Each party to a proceeding must bear the party's own costs for the proceeding unless otherwise provided under the QCAT Act or an enabling Act.[7]
• [47] The section must be read with section 102. It provides:

(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.

• [48] Costs may also be awarded by the Tribunal under section 47 of the QCAT Act (dismissing, striking out or deciding if unjustified proceeding or part) and under section 105 of the QCAT Act (other power to award costs) and section 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (additional power to award costs if particular offers to settle rejected).
• [49] The application now before the Tribunal is an application for costs under sections 100 and 102.

• [50] As I observed in Graham v Queensland Racing Integrity Commission[8], there are two lines of authority on the approach to be adopted by the Tribunal in deciding an application for costs under sections 100 and 102 of the QCAT Act. The Act, the first, or traditional, approach is that outlined by the then President of the Tribunal, Wilson J, in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)[9] ('Ralacom'). There, at [29], his Honour said:

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.

• [51] The second, or more recent approach, is that sections 100 and 102 should be read together. Judicial Member McGill SC, in Marzini v Health Ombudsman (No. 4)[10] ('Marzini'), after reviewing the decided cases on the operation of the sections in detail, summarises his conclusion on the correct approach to the operation of the sections.
• [52] The Queensland Court of Appeal, in Health Ombudsman v du Toit[11] ('du Toit'), made clear the correct approach to the operation of the sections is that formulated by Judicial Member McGill in Marzini. The language of sections 100 and 102 of the QCAT Act is to be construed in the context of the Act as a whole, citing the observations of Gageler J (as his Honour then was) in SZTAL v Minister for Immigration and Border Protection[12]. An important contextual consideration in construing section 100, the Court continued, is that the Tribunal, in the exercise of its jurisdictions deals with a multiplicity of matters which vary in nature, both in terms of complexity and the seriousness of the outcomes. When section 100 is construed in this context, it is a provision of general application which is to be applied to a multiplicity of the matters that fall within the Tribunal's jurisdiction.[13]
• [53] The nature of the proceeding in du Toit was complex. It necessitated the need for both parties to be represented. The QCAT Act contemplates a readiness to depart from the general position of minor civil disputes which ordinarily confront the Tribunal in favour of an approach more aligned with conventional litigation.
• [54] The Court returned to the construction of sections 100 and 102 of the QCAT Act adopted by Judicial Member McGill in Marzini:

[36] In my opinion the correct approach to the operations of s 100 and s 102 of the QCAT Act is similar to that formulated by the Hon P Lyons QC in Thompson v Cannon (supra): The ultimate question posed by the statutory provisions is whether in a particular case the interests of justice require the Tribunal to make a costs order. That is the effect of the terms of the statute. Because of the use in s 102(1) of the word "require", the default position of no order as to costs should not be too readily departed from. I respectfully agree with the approach of the Hon J B Thomas QC in Lee (supra) to the comments of Keane JA in Tamawood (supra), and with his analysis of the considerations relevant to the interests of justice in disciplinary proceedings in Antley (supra).

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

• [55] Judicial Member McGill addressed the difficulties in several decisions of the Tribunal in Marzini. The Court of Appeal in du Toit agreed:

The formulation of A Wilson J has subsequently been widely accepted as stating the correct approach to these provisions, but the wording is curious. There is nothing in the terms of s 100 to show a 'strong contra-indication' against costs orders. Leaving aside the reference to a provision of another Act, when s 100 and s 102 are read together, the position is that no order for costs is to be made unless the Tribunal considers the interests of justice require it to do so. This is in essence the interpretation attributed to the terms of the earlier Act in Tamawood at [28]. The QCAT Act provisions could have been drafted to entrench that approach. The terms of the sections make it clear that the starting point is that no order for costs is to be made, but authorises a costs order if the interest of justice require it. The use of the word 'require' suggests that the interests of justice must clearly support a costs order; but to say that they must do so 'compellingly', and to treat s 100 as having 'a strong contra-indication against costs orders', is to read into the statutory discretion restrictions which are not based on the terms of the Act. (Citations omitted)

• [56] The decision in Pound is important in the context of the application now before the Tribunal. The Commission found the applicant had engaged in four instances of unsatisfactory conduct when granting building approval. He was reprimanded. The decision-maker for the decisions was invited to reconsider the decisions and decided the applicant had engaged in one instance of unsatisfactory conduct. The applicant applied to the Tribunal for a costs order.
• [57] It was submitted a regulatory body might feel inhibited in commencing proceedings if costs might be awarded against it. In Motor Vehicle Industry Board v Dawson[14], the President of the State Administrative Tribunal of Western Australia (Barker J) said:

The decision in the Roberman case does not support the view, however, that an affected person in such proceedings is entitled to an award of costs for the portion of the proceedings in which they were successful. If this approach were to be adopted, vocational regulatory bodies may well feel inhibited in commencing proceedings that should be commenced and maintained in the public interest even though "success" cannot be guaranteed. Consequently, the Tribunal considers that, ordinarily, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against a vocational regulatory body simply because the application was not successful.[15]

• [58] The observations by the President were repeated by the Western Australia Court of Appeal (Buss P) in Young v Legal Profession Complaints Committee[16]. After referring to the decision in Quinlivan v Legal Profession Complaints Committee[17], the Court added:

The proper exercise of the Tribunal's discretionary power under s 87(2) of the [State Administrative Tribunal Act 2005 (WA)] to make an award of costs depends, of course, upon all the circumstances of the particular case. Ordinarily, as a matter of fact, the Tribunal will make an award of costs in favour of a regulatory body which is successful in bringing a complaint of misconduct in professional disciplinary proceedings. However, in each case, the discretionary power to make an award of costs must be exercised having regard to the circumstances of the particular case.[18]

• [59] In Fuge v Queensland Building and Construction Commission[19], the Tribunal acknowledged a regulatory body should not generally be burdened with a costs order when acting to protect professional or industry standards in the public interest. It said:

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.[20]

• [60] The respondent, in Porteous v Pharmacy Board of Australia (No 2)[21], suspended the registration of the applicant. On review, the decision was set aside. The Tribunal, when ordering that each party bear its own costs, referred to the 'default position' in section 100 of the QCAT Act stating, at [21], that in '... the absence of a finding that the Board acted unreasonably, or in bad faith, the default position should not be readily departed from.'[22]
• [61] The Tribunal referred to the decision of the Court of Appeal in Medical Board of Australia v Wong[23]. The Court, when referring to the conduct of the applicant, said:

Absent a finding, which this Court was not asked to make, that the Board's characterisation of Dr Wong's conduct as professional misconduct was unreasonable, there can be no proper criticism of the Board for bringing and prosecuting this proceeding as it did. No finding was sought here that the Board acted in bad faith. It must be kept in mind that the Board has a statutory responsibility for the protection of the public in this context and the fact that the outcome was not that which was sought should not of itself burden the Board with an order for costs, especially in a proceeding in QCAT where the starting position is that prescribed by s 100. I would add that the Board's concern for the protection of the public in the present case was clearly reasonable from Dr Wong's very serious misconduct in 2012.[24]

• [62] Mr Morley submits the Commission has acted unreasonably, for the reasons set out in paragraph [43] of these reasons for decision.
• [63] The Tribunal, in Medical Board of Australia v TXA (No 4)[25], commented on the decision in Pound to the effect costs should not be awarded against a regulator, particularly in disciplinary proceedings, because to do so would inhibit the regulator in taking action. The Tribunal observed:

[23] I have difficulty with the idea that access to justice is enhanced by encouraging regulators to put forward doubtful, let alone bad cases before the Tribunal, secure in the knowledge that if they lose they will almost certainly not have to pay the costs of the successful respondent. That does not obviously have anything to do with access to justice. It may be in the public interest not to act in a way which will lead to excessive regulatory timidity, but protecting regulators from costs orders except in extreme cases strikes me as seeking to avoid the Scylla of regulatory timidity by steering straight for the Charybdis of regulatory overreach.

[24] In most conflicts between a regulator and one of the regulated, the balance of power lies firmly with the regulator. The main weapon the regulated have is the existence of an independent tribunal, before whom allegations must be proved, or before whom decisions can be subjected to merits review. It seems to me that the regulated are likely to be deterred from arguing with a regulator in such a situation if advised that, even if they win, they will almost certainly have to pay their own legal costs anyway. That does not assist access to justice, it detracts from it.

[25] If a regulator brings a disciplinary proceeding which fails, and the other party has reasonably incurred legal costs in resisting the proceeding, the question becomes whether it is in the interests of justice for the default position, of no order as to costs, to be departed from. Section 102(3) sets out some relevant considerations in making that assessment, but recognises that other matters may in a particular case be relevant. The position is much the same if a decision of a regulator is challenged in a proceeding by way of review.

[26] In Owen v Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General (No 2), a claim against an agent for reimbursement of a payment had been set aside, and the agent sought an order for costs, on the standard basis. Following a consideration of relevant circumstances, the Tribunal awarded costs, after the application of the practical test, whether it would be unjust to the successful party not also to award costs. The Tribunal used the term "plainly unjust", but I consider that the qualifier "plainly" was not expressed as part of the test, but as a matter of emphasis in the circumstances of that case. In any case, I consider it a good practical test for whether an order for costs is required in the interests of justice, if it could be said that it would be unjust not to make an order for costs in the particular circumstances of the matter.

• [64] I agree with what was said by the Tribunal and accept the practical test for whether an order for costs is required in the interests of justice it could be said it would be unjust not to make an order for costs in the particular circumstances of the proceeding.
• [65] Mr Morley relies on paragraphs (a), (b), (c), (d)(ii) and (f) of section 102(3) of the QCAT Act. I will consider each subsection.

Unnecessarily disadvantage (section 102(3)(a) of the QCAT Act)

• [66] Mr Morley submits the Commission acted in a way that unnecessarily disadvantaged him in the proceeding. It did so by making fundamental changes to the case during the review process and hearing by relying on the position statement. The Commission may not have proceeded in the proceeding, or preparation for the hearing and the hearing would have been materially reduced, if the position statement were available at the commencement of the proceeding.
• [67] The Commission does not directly respond to the subsections. What it says is Mr Johnstone did not have qualifications or experience in timber and metal framed construction techniques. Mr Morley's oral evidence provided further particulars of his assessment of Mr Johnstone's competence. The concern about the failure to take enforcement action was not without merit prior to Mr Morley's oral evidence.
• [68] Changes in a proceeding are not unusual. Having said that, the late filing of the position statement on the day before the commencement of the hearing left Mr Morley with little time to prepare for the hearing and file answering material. Whether the position statement was filed at Mr Morley's request, or on the initiative of the Commission, in my opinion, does not matter; it was filed late in the proceeding and had it been filed earlier would have avoided significant trouble and expense.
• [69] It is unclear the Commission 'unnecessarily' disadvantaged Mr Morley. What can be said is the late filing of the position statement suggests the preparation for the hearing was delayed.

Nature and complexity of the dispute (section 102(3)(b) of the QCAT Act)

• [70] The Commission submits the dispute was complex. It is not suggested otherwise by the Commission.
• [71] I accept the dispute was complex. The material filed in the Tribunal, and the questions to be decided, were not without difficulty. The nature and complexity gave rise to a need for extensive written material and significant preparation for the hearing.
• [72] An early filing of the position statement may have impacted on the costs incurred by Mr Morley during interlocutory proceedings and preparation for trial.

Relative strengths of the claims (section 102(3)(c) of the QCAT Act)

• [73] Mr Morley submits his claim was stronger than that of the Commission. He suggests the stronger claim is evidenced by the Commission's decision to abandon the proceeding.
• [74] Again, what it says is the Commission was correct to adopt the stance it did when internally reviewing the decision.
• [75] It is difficult to reach a concluded view on the relative strengths of the claims made by the parties to the proceeding without a decision. The decision to reverse the earlier decision weighs in favour of Mr Morley.

Whether Mr Morley attempted to help the decision-maker (section 102(3)(d)(ii) of the QCAT Act)

• [76] It is not suggested Mr Morley did not genuinely attempt to enable and help the decision-maker to make the decision on the merits. The submission the Commission did not attempt to enable and help the decision-maker make the decision cannot be determined without evidence.

• [77] Mr Morley submits the complaints gave rise to a need for time and money to the respondent and adopting a different case, and then abandoning the case, put Mr Morley to additional costs.

• [78] An application for costs is not without difficulty, particularly when the internal review decision is reversed after a hearing but before the review is decided by the Tribunal. The late filing of the position statement and the need for further evidence weighs in favour of making a costs order in favour of Mr Morley.
• [79] Applying the test articulated in Pound, I am satisfied an order for costs in favour of Mr Morley is required in the interests of justice. It would be unjust not to make an order for costs in the particular circumstances of the proceeding having regard to the material filed and the submissions.

• [80] The order of the Tribunal is that the application by Mr Morley filed 29 March 2024 for costs is approved. There will be an order that the Commission pay Mr Morley's cost of the proceeding on the District Court of Queensland scale of costs.

[1] [2023] QCAT 54.

[4] [2020] QCAT 520.

[5] [2023] QCATA 170.

[6] [2023] QCAT 298.

[8] [2023] QCATA 97.

[9] [2010] QCAT 412, [4], [5].

[10] [2020] QCAT 365.

[11] [2024] QCA 235.

[12] [2017] HCA 34; (2017) 262 CLR 362, [37].

[14] [2006] WASAT 8.

[16] [2022] WASCA 52.

[17] [2012] WASCA 263, [10]-[12].

[18] Young v Legal Profession Complaints Committee [2022] WASCA 52, [261].

[19] [2014] QCAT 383. See also Stuart v Queensland Building and Construction Commission [2016] QCATA 135, [58]; Richards & Anor v Queensland Building and Construction Commission & Anor (No 2) [2019] QCAT 372, [48]; Cantamessa v Queensland Building and Construction Commission (No 2) [2021] QCAT 213, [20]-[21]; Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs) [2022] QCAT 225, [117].

[20] Fuge v Queensland Building and Construction Commission [2014] QCAT 383, [28].

[21] [2021] QCAT 390, [19], [21].

[22] Compare Marzini v Health Ombudsman (No 4) [2020] QCAT 365, [27]-[29]. The findings, in effect, were that the regulator had not acted reasonably ([90]).

[23] [2017] QCA 42 (McMurdo JA, with whom Morrison JA and Mullins J agreed).

[25] [2023] QCAT 360.