Pound v Queensland Building and Construction Commission [2023] QCAT 298

[2] Consistent with the right under s 43(2)(b)(ii) of the QCAT Act, the applicant was legally represented in the proceedings, while the respondent was represented by in-house counsel.

[3] On 16 March 2021, the applicant filed two applications to review disciplinary decisions made by the respondent. The decisions related to separate properties in St Lucia. In each case the respondent found that the applicant had engaged in four counts of unsatisfactory conduct when granting the Building Approval. In accordance with

s 204(4) of the Building Act 1975 (Qld), in each case it was decided to reprimand the applicant on each count, direct her to complete a stated educational course, impose conditions on her licence (which in essence required peer review of specified building applications until completion of the educational course), and the provision to the respondent on a monthly basis of a list of all building development approvals given which had been peer reviewed.

[4] By directions issued on 25 January 2022, the respondent was invited to reconsider its decisions. On 22 February 2022, in reconsidering the decisions, the respondent decided that, in relation to certification of the buildings on each of the two properties, the applicant had engaged in one count of unsatisfactory conduct for which the appropriate penalty was reprimand only. It was noted that on 17 and 18 June 2021 the applicant had completed the prescribed educational course, which was notified to the respondent on 17 August 2021, and that between 9 June 2021 and 22 July 2021 an appropriately qualified person had peer reviewed specified building approvals issued by the applicant. It was further noted that the respondent was satisfied that the applicant had complied with the earlier education and peer review requirements and, accordingly, it was no longer appropriate to impose those penalties 'as part of the correct and preferable decision'. As to the latter, see ss 20(1) and 21(1) of the QCAT Act.

[5] On 11 April 2023 the applicant filed notices of withdrawal of the review applications and on the same day filed submissions in support of an application for costs. On 26 May 2023, the respondent filed submissions in response, opposing a costs order.

[6] Section 100 of the QCAT Act is headed 'Each party usually bears own costs' and provides:

Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party's own costs for the proceeding.

[7] Section 102 is headed 'Costs against party in interests of justice' and 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.

[8] There have been ongoing divergent views expressed in the decisions of the Tribunal as to the effect of those provisions.

[9] In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2),[1] the then President of the Tribunal, Justice Alan Wilson, referred to s 100 of the QCAT Act and said that the 'starting point concerning costs in QCAT is that each party must bear its own', before adding, at [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.

[10] That decision has been followed in a considerable number of cases, including more recently in Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs),[2] Valuers Registration Board of Queensland v Murphy,[3] and Campbell v Queensland Building and Construction Commission (No 2).[4]

[11] On the other hand, in Marzini v Health Ombudsman (No 4),[5] Judicial Member D J McGill SC surveyed a number of authorities before stating (footnotes omitted):

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.

[12] Subsequently, in Cowen v Queensland Building and Construction Commission,[6] Judicial Member D J McGill SC clarified what was said in Marzini (footnotes omitted):

I have previously, in Marzini v Health Ombudsman (No 4) [2020] QCAT 365, set out my views on the interpretation and application of the QCAT Act s 100 and s 102. I adhere to those views. There are two particular matters I should mention. One is that in Marzini I did not particularly discuss the QCAT Act s 105, and Rule 86 of the QCAT Rules, which did not arise in that matter. The other relates to my comment on the statement of A Wilson J, the then President of the Tribunal, in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [28] that the question when a costs order was sought was "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." I said that this was curious, as I did not consider that there was any such strong contra-indication in the words of s 100.

In saying that I had overlooked that the heading to that section is part of the Act, and hence relevant to the interpretation of the Act. Presumably his Honour found the strong contra-indication in the wording of the heading: "Each party usually bears own costs". Even so, I consider that it goes a long way to draw that proposition from the expression of a legislative expectation that the application of the terms of the statute will "usually" mean that no order for costs will be made. The expectation must have been directed to the operation of the Tribunal as a whole. In any particular case, either there will be an order for costs or there will not, and it is meaningless to talk of the "usual" order in a particular case. To say that an order for costs will be unusual, in a context where parties are ordinarily not to be legally represented anyway, is not a particularly strong statement. It was not said, for example, that such an order is to be made only in exceptional circumstances.

Having considered that matter, I remain of the view that the relevant test is that in s 102(1): whether the interests of justice require that order. As I said in Marzini, the use of the term "require" shows that an order for costs should not be too readily made, and I accept that it may fairly be said that the wording of the heading to s 100 is another indication to the same effect. In so far as his Honour went further in Ralacom at [29], I consider that his statement cannot confine the discretion conferred on the Tribunal under s 102(1), or modify the test in that section.

[13] The approach adopted in Marzini has been followed in several cases, including CH v Queensland Police Service,[7] Rao v Medical Board of Australia (No 2),[8] Dansur Pty Ltd v Body Corporate for Cairns Aquarius CTS 1439 & Anor,[9] and Graham v Queensland Racing Integrity Commission.[10]

[14] In each of Ralacom, Marzini and Cowen reference was made to the observations of Keane JA, with whom Williams JA and Philippides J agreed, in Tamawood Ltd v Paans [2005] QCA 111; [2005] 2 Qd R 101, but to differing effect. That case considered the operation of s 70 of the, then, Commercial and Consumer Tribunal Act 2003 (Qld), which provided: 'The main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise'. The respondents in the initial proceedings before the Tribunal were ordered to each pay the applicant damages in relation to the construction of a house on land owned by the applicant. In relation to costs, Keane JA adopted what was said by the Tribunal:[11]

... under the Act the parties before it should bear their own costs unless one side is able to show good reason, in terms of the interests of justice in the particular circumstances of the case, why there should be a positive exercise of the discretion in that party's favour.

[15] Keane JA also stated that the nature and extent of the power to award costs:[12]

... 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.

[16] Then, noting 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', Keane JA stated:[13]

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.

[17] In Marzini reference was made to the 'similar provisions' (to those in the QCAT Act) in relation to costs considered in Tamawood and it was stated at [17]:

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].

[18] On the other hand, in Ralacom reference was made to the wording of s 70 of the legislation considered in Tamawood, which provided: 'The main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise'. It was then stated that s 100 of the QCAT Act 'is, it might be said, in terms that more plainly indicate that the legislature had turned its face against awards of costs in this tribunal'.[14] It was added:[15]

Section 70 speaks of a 'main purpose', but s 100 mandates that parties shall bear their own costs. Section 70 contains, within itself, a reference to the condition or circumstance in which the main purpose may be subsumed to the interests of justice; s 100 has no such proviso, although it appears later, in s 102(1).

[19] As has been noted, more recent cases have tended to follow one or other of the differing approaches adopted in Ralacom and Marzini; that is, that the starting point is that each party must bear its own costs unless 'the interests of justice' point so compellingly to a costs award that they overcome the strong contra-indication against costs orders (Ralacom) or, 'the relevant test is that in s 102(1): whether the interests of justice require that order',[16] with the proviso that the terms 'require' in s 102(1) and 'usually' (bears own costs) in the heading of s 100 show that an order for costs should not be too readily made (Marzini and Cowen).

[20] Before further discussing these approaches, it is helpful to consider the approaches taken in relation to similar costs provisions in the governing legislation of tribunals in other Australian jurisdictions.

[21] The Civil and Administrative Tribunal legislation in other Australian jurisdictions has provisions similar to s 100 of the QCAT Act.

[22] Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides:

Subject to this Division, each party is to bear their own costs in the proceeding.

[23] While s 109(2) then provides that the Tribunal may make an order for costs, s 109(3) provides that it may do so only 'if satisfied that it is fair to do so', having regard to a number of specific criteria, which are similar to those set out at s 102(3) of the QCAT Act.

[24] In Stonnington CC v Blue Emporium Pty Ltd,[17] in refusing an order for costs in favour of the Council in circumstances where the Tribunal had ordered the respondent to cease using certain premises as a nightclub, the President of the Tribunal, Morris J, referred at [9] to the 'general rule' that each party is to bear their own costs in a proceeding and then, after referring to the specific criteria in s 109(3) relevant to the power to award costs, stated at [13]:

A failure to award costs in a matter like this does result in an outcome that is, to some extent, unjust. But I am conscious that the scheme of section 109 is to lay down a general rule that this tribunal be one where costs are paid by the person incurring them; and that that general rule is designed to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as is practicable. Conscious as I am of these broader goals, I think that some injustice in particular cases is inevitable in order to achieve a wider objective in promoting access to justice.

[25] That view was adopted in Martin v Fasham Johnson Pty Ltd, where Bell J, after noting at [15] that by s 109(1) the 'starting point is that each party to a proceeding must bear their own costs', stated:[18]

The Tribunal is a creature of statute and, on questions of costs, it commences from a different starting point [to that of ordinary civil litigation in a court]. Usually parties must bear their own costs, which no doubt reflects the general object of the Act. That object, as identified by the President, is to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as practicable.

[26] That passage was cited with approval by Moore J in D'Agostino v The Greater Shepparton City Council,[19] where, at [16], it was also stated that 'prima facie' each party bears their own costs. It is evident that the 'general rule' in s 109(1) that each party bears their own costs, and its object of promoting access to justice and minimising the overall level of costs in tribunal proceedings as stated in Stonnington CC, has been consistently adopted: see, for example, Matson v Harness Racing Victoria (Costs) (Review and Regulation),[20] Kelly v Lombardi (Costs) (Building and Property),[21] Rontogiannis v Victorian Building Authority (costs) (Review and Regulation).[22]

[27] In relation to Western Australia, s 87(1) of the State Administrative Tribunal Act 2004 (WA) provides:

Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.

[28] While s 87(2) then provides that the Tribunal may make an order for costs, there is no guidance, other than to a limited extent in relation to the review jurisdiction, as to the circumstances in which the discretion should be exercised, such as by reference to the interests of justice or principles of fairness. However, in Western Australian Planning Commission v Questdale Holdings Pty Ltd,[23] Murphy JA, with whom Martin CJ and Corboy J agreed, stated (footnotes omitted):

Although s 87(2) does not in terms say that the discretion is to be exercised if it is fair and reasonable in all the circumstances of the case to do so, the judicial nature of the exercise and the scheme of the SAT Act indicates that, broadly speaking, that is the legislative intention.

Unlike in curial litigation, the 'important principle commonly referred to as the "usual order as to costs"', under which the successful party is prima facie entitled to his or her costs, has no application given the presumptive position or starting point under s 87(1) of the SAT Act that each party is to bear its own costs.

Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even in a statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour.

[29] Under the South Australian Civil and Administrative Tribunal Act 2013 (SA), s 57(1) provides:

Unless otherwise specified in this Act, a relevant Act, or an order of the Tribunal under this section, parties bear their own costs in any proceedings before the Tribunal.

Unless otherwise specified in a relevant Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party, or of a person required to appear before the Tribunal or to produce evidential material, if the Tribunal thinks that it is appropriate to do so after taking into account -

(a) the main objectives of the Tribunal that are relevant to simplifying proceedings and issues before the Tribunal and to keeping costs to parties in proceedings before the Tribunal to a minimum insofar as is just and appropriate; and

(b) the need to ensure that proceedings are fair and that parties are not disadvantaged by proceedings that have little or no merit; and

(c) any provision made by the rules; and

(d) any other matter considered relevant by the Tribunal.

[31] In South Australian Housing Trust v Brady & Milera, Hughes J, President of the Tribunal stated:[24]

The primary provisions regarding costs are contained within ss 57, 58 and 91 of the South Australian Civil and Administrative Tribunal Act 2013 ('SACAT Act'). The task of considering the exercise of a costs discretion must be undertaken in its statutory context. As the High Court stated in Oshlack v Richmond River Council, "in many instances legislatures have found reason to depart from the traditional formula by enacting specific legislation varying the incidence and reach of costs orders...".[25] The 'traditional formula' is that costs follow the event i.e. a successful litigant is entitled to recover their costs. The legislature has established a statutory regime for costs in this Tribunal that takes a different starting point.

...

It must be borne in mind that the overarching principles are that parties bear their own costs unless it is appropriate for the Tribunal to make an order. None of the factors that must be considered overrides the general proposition.

The main objectives of the Tribunal are set out in s 8 of the SACAT Act. Whether a costs order is made is to be informed by these objectives and how a costs order will reflect or further those objectives.

...

Having considered the statutory regime it is necessary to return to the overarching principles of the parties bearing their own costs subject to a discretion to make an order for costs where it is appropriate, taking into account the mandated factors. The broad scope of "appropriateness" permits consideration of the nature of the proceedings. The Tribunal has diverse jurisdiction and increasingly so following the recent conferral of new review jurisdictions. In some of its areas of work, the nature of the proceedings and the circumstances that bring the parties to the Tribunal may lend themselves more than others to a ready finding that it is appropriate to make an award of costs. In the performance of original jurisdiction hearings of matters relating to housing, and to the guardianship, administration and mental health hearings that currently make up the volume of the matters heard by the Tribunal, the case for maintaining accessibility to the Tribunal including through parties bearing their own costs is strong.

[32] More generally, in a decision of the earlier NSW Administrative Decisions Tribunal in Maylor (No 2) v Mid North Coast Area Health Service,[26] Judicial Member Britton noted that governments throughout Australia had created a number of administrative tribunals in 'their attempts to make justice more accessible'.

[33] Under the QCAT Act it is evident that the question is not simply whether the interests of justice warrant an award of costs. If s 102 stood alone that would be the case. However, some effect should be given to s 100, otherwise it would be superfluous. In the case law in this State, including in the decisions in Marzini and Cowen,[27] it has been generally accepted that s 100 is the starting point, or, at least, impacts the interests of justice considerations under s 102. However, the issue has been one of the nature or content of that impact.

[34] One difficulty with a generally applicable test expressed in terms of whether the interest of justice are so compelling or clear that they overcome the 'strong contra-indication' against a costs order, is that, taken in isolation, it provides no discernible foundation to enable its impact to be measured relative to the interests of justice considerations in s 102(3) of the QCAT Act.[28]

[35] That difficulty is magnified by the fact of QCAT's diverse jurisdiction and the potentially differing considerations that might arise in assessing the interplay between s 100 and s 102(3) of the QCAT Act in any given case. As noted in South Australian Housing Trust v Brady & Milera, at [26], with reference to the diverse jurisdiction of that Tribunal: 'In some of its areas of work, the nature of the proceedings and the circumstances that bring the parties to the Tribunal may lend themselves more than others to a ready finding that it is appropriate to make an award of costs'. On that basis, it is evident that different factors come into play with each jurisdiction, such that might influence any starting point as to costs.

[36] The approach taken in the Victorian cases in particular, is that the 'general rule' that each party bears their own costs reflects the objects of the Act and is designed to promote access to justice generally and minimise the overall level of costs in tribunal proceedings as far as is practicable.[29]

[37] That approach also seems appropriate to the Queensland legislation, where, by s 3(b), the objects include 'to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick'.

[38] The link between the s 3 objects and s 100 of the QCAT Act is evident from the Explanatory Note to the QCAT Bill, which states: 'The Bill will achieve its objective of dealing with matters in a way that is accessible, fair, just, economical, informal and quick', including by 'providing that parties bear their own costs in proceedings unless the tribunal considers the interests of justice require it to order otherwise'.[30]

[39] The link between s 100 and the objects of the QCAT Act was also noted in McGee v Queensland Building and Construction Commission.[31] After expressing the view that s 100 and s 102 of the QCAT Act should be read together, so that each party bears their own costs unless the interests of justice require otherwise, the Appeal Tribunal stated:[32]

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

[40] Also, in Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs),[33] in the context of the interests of justice considerations under s 102(3) of the QCAT Act, there is extensive discussion of the objects of the QCAT Act, with particular reference to access to justice and the impact of costs orders on that access.

[41] The objects of the QCAT Act, including the issues of access to the Tribunal and the minimisation of costs, provide an appropriate reference point for the operation of

s 100 of the QCAT Act and, in that context, may be placed in the balance along with the s 102(3) interests of justice considerations. The interplay between s 100 and

s 102(3) may well vary, depending on the impact a costs order in the case at hand might have on access to justice and the other objectives in s 3 of the QCAT Act.

[42] For example, the prospect of an adverse costs order is likely to weigh heavily on any decision to seek review of certain administrative decisions, which will potentially have a significant impact on access to justice. On the other hand, in relation to body corporate disputes involving significant monetary or other considerations, the interests of justice in awarding costs, as alluded to by Keane JA in Tamawood,[34] might weigh heavily in favour of a costs order. In those circumstances, the disincentive of a potential costs order in bringing a matter before the Tribunal is less likely to loom so large and, accordingly, considerations of access to justice might weigh relatively lightly in the balance against a costs order.

[43] On that basis, the underlying concern of s 100, in particular of not impeding access to justice and maintaining a low cost jurisdiction, may simply be placed in the balance along with the s 102(3) considerations, with the weight accorded to it being largely dependent on the nature and scope of the proceedings.

[44] Weighing the s 102(3) interests of justice considerations with the s 100 factor is consistent with what was said by the President of the Tribunal in Magill v Queensland Law Society Inc.[35] In that case Daubney J referred to the s 102(3) factors to which the Tribunal may have regard when considering the interests of justice in a particular case and then stated:[36]

These factors, individually and collectively, are not determinative, and 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 discretion to award costs will only be exercised when the interests of justice in a particular case outweigh the prima facie "no costs" position under s 100.

[45] The present matter involves disciplinary proceedings. The applicant building certifier sought review of the respondent's decision that she had engaged in unsatisfactory conduct as defined under the Building Act 1975 (Qld). The respondent subsequently reconsidered its decision and reduced the number of findings of unsatisfactory conduct. The applicant then withdrew her review application and sought costs.

[46] In relation to the bringing of disciplinary proceedings, access to justice has been alluded to in Western Australian decisions, in the sense that it has been suggested that a regulatory body might feel inhibited in commencing proceedings if costs were awarded to a successful respondent.[37] In Motor Vehicle Industry Board v Dawson, the President of the State Administrative Tribunal of Western Australia, Barker J, referred to submissions made in relation to an earlier decision of the Tribunal and stated:[38]

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.

[47] Those observations were cited with approval by the Western Australia Court of Appeal in Young v Legal Profession Complaints Committee [2022] WASCA 52, [260] and cases cited therein. Buss P added at [261]:

The proper exercise of the Tribunal's discretionary power under s 87(2) of the SAT Act 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.

[48] That a regulatory body should not generally be burdened with a costs order when acting to protect professional or industry standards in the public interest has been recognised in this State. In Fuge v Queensland Building and Construction Commission,[39] it was stated:

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.

[49] In Porteous v Pharmacy Board of Australia (No 2),[40] where, upon review, the decision of the respondent to suspend the registration of the applicant was set aside, Judicial Member Robertson, in ordering that each party bear its own costs, referred to the 'default position' in s 100 of the QCAT Act and stated, 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'.[41] Reference was then made to a passage from the decision of the Court of Appeal in Medical Board of Australia v Wong:[42]

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.

[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.

[51] The applicant building certifier sought review of the respondent's decision that she had engaged in unsatisfactory conduct as defined under the Building Act 1975 (Qld). The allegations related to two separate properties. In an internal review decision of 16 February 2021, the respondent determined that the applicant had engaged in four counts of unsatisfactory conduct in relation to the building certification of each of the properties, giving a total of eight counts of unsatisfactory conduct.

[52] The applicant was reprimanded in relation to each of those counts. In addition, she was required to complete a specified educational course and, as a condition imposed on her licence until completion of that course, specified work undertaken by her was to be peer reviewed, the details of which were to be provided by the applicant to the respondent.

[53] At a compulsory conference held on 25 January 2022, the respondent was invited to reconsider its decision pursuant to s 23 of the QCAT Act. On 10 February 2022, the applicant made submissions addressing penalties only, though reserving her right to review the substantive findings. It was submitted that the penalties were manifestly excessive, in particular given that she had already completed the educational course and the supervision and reporting conditions, and had no prior complaint history. Reference was made to s 204(4)(g) of the Building Act, whereby if the respondent is satisfied that the building certifier is 'generally competent and diligent', the respondent can decide to take no action. It was submitted that the appropriate course on reconsideration was to take no further action. Reference was then made to what were said to be comparative cases.

[54] The reconsideration was filed in the Tribunal on 9 March 2022. In that decision the finding of unsatisfactory conduct was maintained. However, in relation to the findings pertaining to each of the two properties it was stated:

Schedule 2 of the [Building Act] defines 'unsatisfactory conduct' as conduct rather than a single instance. As all four counts occurred in the course of approving a single building permit against the various requirements of the Small Lot Code, I am satisfied that they all amount to a single course of unsatisfactory conduct with each of the four instances above serving as particulars as to how the building permit failed to comply with the Small Lot Code.

[55] Accordingly, it was decided that the appropriate penalty to impose on the applicant for her unsatisfactory conduct in relation to each building certification was a single reprimand only. Further, as the applicant had completed the prescribed educational course and had complied with the conditions as to peer review, it was concluded that it was no longer appropriate to impose those aspects of the initial penalty on the applicant.

[56] At a directions hearing held on 22 November 2022, in relation to each of the two review applications it was directed that the applicant, by 13 December 2022, either file a notice of withdrawal or advise the Tribunal and respondent in writing as to whether she wished to continue with the application to review. Following the granting of an extension of time, on 12 April 2023 the applicant filed notices of withdrawal and applications for costs, with supporting submissions. On 26 May 2023, the respondent filed submissions opposing a costs order.

[57] The applicant submitted that the reconsidered decisions were 'materially' in the applicant's favour and that the imposition of eight separate findings and eight separate reprimands, along with the educational and peer review requirements, was manifestly excessive. It was also submitted that the factual basis for the proceedings was complex and technical and that responding to the statement of reasons was complex, that the applicant genuinely attempted to enable the decision-maker to make a decision on the merits, consented to repeated delays, and that the process and penalty negatively impacted on the applicant's ability to practise and her financial circumstances.

[58] The applicant also refers to delays, following the reconsidered decision, occasioned by some uncertainty as to whether there were any other outstanding complaints, as the applicant was concerned that all outstanding matters be determined together. That uncertainty was evident at a directions hearing held on 27 September 2022, but at a directions hearing held on 22 November 2022 the respondent confirmed that no matters were outstanding and that no further action would be taken in relation to the applicant. However, the applicant states that it was not until 20 January 2023 that this was confirmed in writing and, further, that it was confirmed that the Licence Register had been corrected to reflect the outcome of the reconsidered decision. The applicant says that on 23 January 2023 the Tribunal and the respondent were advised that she wished to withdraw and would be seeking costs.

[59] With reference to s 102(3) of the QCAT Act, the applicant submits:

(a) With reference to s 102(3)(a) of the QCAT Act, the respondent unnecessarily disadvantaged the applicant, through imposing excessive penalties and by virtue of the delays noted above. On the other hand, it is submitted that at all times the applicant genuinely attempted to enable the decision-maker to make a decision on the merits: see s 102(3)(d)(ii) of the QCAT Act.

(b) The original penalties were unjustifiable. It is submitted that there are no published decisions in which the Tribunal has found it is appropriate to impose a sanction comprising a reprimand (let alone multiple discrete reprimands) and education and oversight and reporting conditions on a building certifier.

(c) The nature and complexity of the dispute warrants a costs order: see [57] above and s 102(3)(b) of the QCAT Act.

(d) The proceedings and 'excessive' penalty negatively impacted the applicant's ability to practise and her financial circumstances.

(e) The delay in updating the register ought to be taken into account. Reference is made to s 102(3)(f) of the QCAT Act.

[60] The applicant makes no express reference to the divergent views in relation to the basis for the award of costs expressed in earlier decisions of the Tribunal.

[61] In opposing an order for costs, the respondent relies upon the decision in Ralacom and says that there are no compelling circumstances that favour the making of a costs order. In any event, on the alternative approach as outlined in Marzini and Cowen it is submitted that the interests of justice do not require the making of a costs order. In that regard it is submitted that (using the corresponding numbering at [59] above):

(a) In relation to the suggested delays, the applicant requested that the respondent inform her as to whether there had been any further complaints against her and whether there were any other pending issues against her. The respondent did not delay in providing 'relevant' information and assisted the Tribunal in an appropriate manner. The applicant caused delay between September 2022 and March 2023 by indicating at directions hearings that she was still considering her position and stating that she was aware of a further complaint against her (that her solicitor was not aware of) and wanted to ascertain the nature of that matter before making a decision in relation to the present matter.

(b) In relation to the penalties imposed, between the filing of the review application and the reconsidered decision the applicant took steps to comply with the conditions imposed on her licence. It was the taking of those steps that informed the decision on reconsideration. Accordingly, it was not the case that the decision was wrong. Rather, it took into account fresh evidence and information to allow the correct and preferable decision to be reached. On that basis, it is not the case that the applicant 'succeeded' in the proceedings.

(c) In relation to the suggested complexity, while there was some complexity in the technical application of the planning scheme 'it was certainly not the most complex of matters'. Also, the applicant, as a qualified building certifier, was well placed to respond to questions concerning her lack of compliance without the need for legal representation. The respondent also queried the engagement of both a solicitor and counsel by the applicant, including to appear at the compulsory conference and the directions hearings.

(d) In relation to the negative impact of the decision and the proceedings on the applicant, it is uncontentious that detriment may flow where a finding of unsatisfactory conduct is made. Further, no evidence was filed to support the claim of financial hardship.

(e) It was acknowledged that due to administrative error there was a delay in updating the register. That was immediately rectified when notified by the applicant's solicitor. In any event, that administrative error cannot found an application for costs.

[62] With regard to the role of the respondent in protecting the public interest, the respondent submits that it is currently involved in more than 300 proceedings before the Tribunal and that it should be able to act in accordance with the QCAT Act, the Model Litigant Principles and the enabling legislation without placing undue emphasis on potential costs implications. It is said that that is particularly relevant in the context of merits review, where it is not necessary for an error to be identified for a decision to be set aside or amended.

[63] There are factors in the present case that weigh against the making of a costs order. First, relevant to the access object in s 3 of the QCAT Act, as is noted above the respondent has a statutory responsibility for the protection of the public relevant to its sphere of operation. Given the number of matters that do or might come before the Tribunal as a consequence of discharging disciplinary functions, there is the potential for costs orders to negatively impact or, with reference to the decision in Wong (see [49] above), 'burden' the carrying out of that statutory role.

[64] In Porteous, a matter involving the Pharmacy Board of Australia, it was stated that in 'the absence of a finding that the Board acted unreasonably, or in bad faith, the default position [in s 100] should not be readily departed from'. There is no suggestion in the present case that the respondent acted in bad faith. Nor that it acted unreasonably, at least in relation to the decision-making process.

[65] A second factor weighing against a costs order is that the 'success' of the applicant was limited, given that in her review applications before the Tribunal the applicant challenged both the substantive decision and the sanction, on the basis that the finding of non-compliance in each instance was wrong or, in the alternative, even if there was non-compliance, the applicant reasonably relied on the advice of a competent third party. The applicant sought to have the decisions of the respondent set aside and substituted with a finding that she had not engaged in unsatisfactory conduct, or, in the alternative that the decision on penalty be set aside and be substituted with the Tribunal's decision on penalty, or, further in the alternative that the decision be set aside and remitted to the respondent.

[66] In relation to penalty, it was argued that the penalty in relation to each count was excessive having regard to all relevant circumstances, including that the applicant relied on the advice of a third party and any non-compliance was to such a small degree that it was appropriate that no action be taken. It was not proposed that the number of reprimands be reduced.

[67] With the reconsidered decision the finding of unsatisfactory conduct remained. The number of reprimands was reduced from eight to two, the reasons for which were provided by the respondent: see [54], above. The conditions on the licence were no longer included in the sanction under the reconsidered decision, but for the reason that they had already been complied with. Significantly, the submission made by the applicant prior to the making of the reconsidered decision, that rather than a reprimand the decision should be that no further action would be taken in accordance with

s 204(4)(g) of the Building Act, was not acceded to by the respondent.

[68] On the other hand, in favour of a costs order, the applicant raised five factors. Using the same sequence as at [59] and [61] above, they are addressed in turn.

[69] First, it is said that the respondent unnecessarily disadvantaged the applicant, through imposing excessive penalties and by virtue of the delays referred to at [58], above. The issue of penalties has been addressed. The delays referred to followed the making of the reconsidered decision and the respondent says that much of it was caused by the applicant wanting clarification as to any further outstanding matters against her. On the material before me, it is not possible to make a conclusive determination as to responsibility for any delay. In any event, it followed the filing of the reconsidered decision in the Tribunal. At that point, the issue was whether or not the applicant would withdraw the review applications, which ultimately she did. Enquiries as to any separate outstanding matters were incidental to the matter before the Tribunal and were not directly related to costs incurred in conducting these proceedings.

[70] The second factor goes to the justifiability of the original penalties. It is said that there are no published decisions in which the Tribunal has found that it is appropriate to impose a sanction comprising a reprimand (let alone multiple discrete reprimands) and education and oversight and reporting conditions on a building certifier. However, the reprimands remained in place after the withdrawal of the review applications, albeit reduced from eight to two. Also, the original education and reporting requirements had been satisfactorily completed by the applicant. The question of whether the applicant was 'successful' in the proceedings is addressed above.

[71] Third, it is submitted that the nature and complexity of the dispute warrants a costs order. The respondent submits that it was not relatively complex and that, as a qualified building certifier, the applicant should have been able to address issues concerning lack of compliance. However, it remains that there is no indication that the applicant was appropriately qualified or able to address legal issues.

[72] Fourth, it is said that the proceedings and 'excessive' penalty negatively impacted the applicant's ability to practise as well as her financial circumstances. While there was no indication as to the precise nature of her financial circumstances, as noted by the respondent it is uncontentious that detriment may flow where a finding of unsatisfactory conduct is made. Also, there is no indication as to how the impact on the ability to practise might have differed as between an imposition of eight reprimands as compared with two.

[73] Finally, it is submitted that the delay in updating the register ought to be taken into account. While the respondent acknowledges that delay, it is said that such an administrative error should not justify an application for costs. Certainly that error was not related to the conduct of the proceedings and the applicant has not indicated how it impacted the costs incurred in the proceedings.

[74] The question is whether, taking into account s 100 and s 102 of the QCAT Act and all of the factors and considerations outlined above, an order for costs should be made.

[75] It is noted that, by s 43(2)(b)(ii) of the QCAT Act, a party may be represented by someone else if 'the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person'. In other words leave is not required, so that any implications that might arise from the granting of leave to be legally represented do not arise.[43] Nevertheless, it is appropriate to take into account the utility of representation in disciplinary proceedings recognised in s 43 of the QCAT Act, as well as the fact that the matter involved a degree of complexity. Some complexity in the present matter is apparent from the number of allegations of unsatisfactory conduct and the fact that the conclusion by the respondent on internal review differed from its original decision.

[76] On the other hand, the case law recognises that the Tribunal should not readily make a costs order against a party in the position of the respondent, given its statutory duty to conduct disciplinary proceedings in the public interest, lest it be dissuaded from that endeavour or unduly burdened by such an order. Added to that is the limited success of the applicant in the proceedings. The orders sought in the applications for review that the findings of unsatisfactory conduct be set aside, as well as the alternative argument in relation to penalty that no further action be taken, were some considerable distance from the ultimate decision made. The findings of unsatisfactory conduct and the reprimands, though reduced in number, remained.

[77] Taking all of those issues into account, it is clear that the factors against the making of a costs order significantly outweigh those in favour of an order. Accordingly, the application for costs is dismissed.

[1] [2010] QCAT 412, [4].

[2] [2022] QCAT 225.

[3] [2022] QCAT 295.

[4] [2023] QCAT 54. In that case extensive consideration was given to the opposing views, including what is meant by the term 'require' in s 102(1) of the QCAT Act, before it was concluded that a stronger foundation than the 'interests of justice' is required and that: 'I consider that 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 in s 100'.

[5] [2020] QCAT 365, [17].

[6] [2021] QCATA 103, [25]-[27].

[7] [2021] QCATA 137.

[8] [2021] QCAT 391.

[9] [2023] QCATA 14, [8]-[9], [12].

[10] [2023] QCATA 97.

[11] [2005] QCA 111; [2005] 2 Qd R 101, [16]. See also [28]-[29].

[14] [2010] QCAT 412, [24].

[16] Cowen v Queensland Building and Construction Commission [2021] QCATA 103, [27].

[17] [2004] VCAT 1441, [13]. It is noted that there is no provision in the Victorian Civil and Administrative Tribunal Act 1998 (Vic) equivalent to s 3 of the QCAT Act.

[18] [2007] VSC 54, [31].

[19] [2019] VSC 199, [19].

[20] [2022] VCAT 358, [15].

[21] [2020] VCAT 580, [22].

[22] [2021] VCAT 192, [16].

[23] [2016] WASCA 32, [49]-[51]. See also per Martin CJ at [9].

[24] [2018] SACAT 2, [12], [18]-[19], [26].

[25] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 104 [84] (McHugh J).

[26] [2001] NSWADT 118, [21].

[27] See Marzini v Health Ombudsman (No 4) [2020] QCAT 365, [17]; Cowen v Queensland Building and Construction Commission [2021] QCATA 103, [27].

[28] It is not clear whether in Ralacom it was intended to set a general standard as to the operation of s 100. As noted at [9], above, it was stated that the question that will 'usually arise' is whether the interests of justice point so compellingly to a costs award that they overcome the strong contra-indication against costs.

[29] As to the objects of those Acts, see South Australian Civil and Administrative Tribunal Act 2013 (SA), s 8 and, in relation to Victoria, see fn. 17, above.

[30] It is also noted that s 4(c) of the QCAT Act provides that to achieve the objects of the Act, the tribunal must 'ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice'.

[31] [2018] QCATA 124.

[33] [2022] QCAT 225, [94]-[117].

[34] It is noted that the decision in Tamawood concerned a dispute in relation to the construction of a house and where damages were awarded against Tamawood Limited.

[35] [2020] QCAT 327, [7].

[36] Ibid. Though, in relation to the s 100 factor, his Honour referred to the approach taken in Ralacom.

[37] Compare the approach in Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327, [13], in the context of review proceedings.

[38] [2006] WASAT 8, [47]. Barker J also stated, at [44], that where a vocational body is successful in obtaining an order, the Tribunal 'will usually make an order for costs in favour of the vocational regulatory body'. Again citing Roberman, it was said: 'That is because such bodies perform a function which promotes the public interest, and usually with limited resources'. See also Pharmacy Board of Australia v Nyoni [2018] WASAT 134 (S), [57]-[59].

[39] [2014] QCAT 383, [28]. 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].

[40] [2021] QCAT 390, [19], [21].

[41] Compare Marzini v Health Ombudsman (No 4) [2020] QCAT 365, [27]-[29]. Though in that case, in effect, the findings were that the regulator had not acted reasonably: see at [90].

[42] [2017] QCA 42, [37] (McMurdo JA, with whom Morrison JA and Mullins J agreed).

[43] In fact, on 2 August 2021 leave was given. However, as noted leave was not required.