Rainvale Pty Ltd v Queensland Building and Construction Commission & Ors [2025] QCAT 116

• [5] Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') 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.

• [6] Section 100 is qualified by section 102 that 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 interest of justice require it make the order.

(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 -

1. whether the applicant was afforded natural justice by the decision-maker for the decision; and
2. 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.

The rules may authorise the tribunal to award costs in other circumstances, including, for example, the payment of costs in a proceeding if an offer to settle the dispute the subject of the proceeding has been made but not accepted.

• [8] Rule 85 of the Queensland Civil and Administrative Tribunal Rules 2009 ('the Rules') states:

If the Tribunal makes an order against a respondent in a proceeding, other than a proceeding for a minor civil dispute, the tribunal may order the respondent to pay to the applicant the amount of any prescribed fee paid by the applicant on filing the application or referral for the proceeding.

• [9] Rule 86 of the Rules provides an additional power to award costs if particular offers to settle are rejected. Rule 86 states:

(1) This rule applies if-

(a) a party to a proceeding, other than a proceeding for a minor civil dispute, makes another party to the proceeding a written offer to settle the dispute the subject of the proceeding; and

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

(c) in the opinion of the tribunal, the decision of the tribunal in the proceeding is not more favourable to the other party than the offer.

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

(3) If the proceeding involves more than 2 parties, this rule applies only if the acceptance of the offer would have resulted in the settlement of the matters in dispute between all the parties.

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

(a) take into account any costs it would have awarded on the date the offer was given to the other party; and

(b) disregard any interest or costs it awarded relating to any period after the date the offer was given to the other party.

• [10] The submissions of both parties can be distilled to the following:

(a) The Applicant submitted that they have incurred legal fees and seek indemnity costs.

(b) The QBCC, the First Respondent, submits that there should be no order as to costs.

• [11] The submissions of the QBCC are reliant upon Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)[1] as opposed to the approach in Marzini v Health Ombudsman (No 4).[2] I take note that the submissions of the QBCC were settled on 21 November 2024. The court of appeal in Health Ombudsman v du Toit[3] disapproved of the approach in Ralacom. This decision was delivered on 22 November 2022. The QBCC submissions in this matter were filed in the tribunal on 22 November 2024.
• [12] Further submissions were requested. The tribunal received these submissions from the parties, the First Respondent's received on 31 January 2025 and the Applicant's on 3 February 2025.

• [13] The Applicant made two offers of settlement to the First Respondent on 26 June 2023, three (3) months after the applications were filed in the Tribunal. It is noted in the submissions of the First Respondent that this was two (2) weeks before the statement of reasons was provided to the Applicant.
• [14] The two offers of settlement were for the decision by the QBCC to continue with the direction to rectify GAR239-23 and the second for the GAR245-23 failure to rectify.
• [15] There was no response to the offers of settlement as outlined in Mr Turnbull's affidavit.[4]
• [16] Mr Turnbull includes in his affidavit a position paper filed in the Tribunal on 28 August 2023. This was then emailed to the Respondent. The compulsory conference in this matter was held on 30 August 2023. The material contained in the position paper, was for nearly its entirety the Applicant's submissions in the hearing. The submission of the Applicant is that it should have indemnity costs from either the beginning of the matter, or from the date of service of the position paper 28 August 2023 or from the last of its evidence on 28 November 2023.
• [17] The Applicant also addresses the factors to be considered in Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2).[5] The submissions are as follows:

(a) the QBCC would have been required to assess whether it had sufficient evidence as outlined in the decision of the tribunal at paragraphs [21] to [24] inclusive;

(b) upon receipt of the internal review application, the QBCC was on notice as to Rainvale's position, specifically the argument that it did not carry out the relevant building work; and

(c) upon deciding to resist the application the QBCC had a further opportunity to review the direction to rectify.

• [18] The offers were open for fourteen (14) days. The offers provided a compromise in that QBCC would not be exposed to a costs order. Finally, the offers foreshadowed an application for indemnity costs would be made.

• [19] The QBCC sets out the law as relates to costs for the first part of its submissions.[6]
• [20] The QBCC stated that the proceedings were not complex and did not necessitate legal representation.
• [21] The QBCC submits that the offer was at a time when the QBCC was yet to develop its position (in the form of the statement of reasons) and it had not yet been served with all of the Applicant's evidence. The QBCC also states that fourteen (14) days in this circumstance, did not provide adequate opportunity to assess whether the offer was reasonable.
• [22] The QBCC submits that the offer sought was a complete capitulation and made no compromise.
• [23] The QBCC further submits that limited information was available to assess prospects at the time of the offer.
• [24] The QBCC submits that the Applicant's reliance on the case of Sentinel does not assist the Applicant.
• [25] The QBCC submits that there is no evidence of Rainvale's financial circumstances. Stating that a register of licencees provides that Rainvale has a maximum revenue of between $120 million and $240 million per year. Contrasting that the Commission is a state agency, and its resources are not unlimited.
• [26] Further, QBCC submits that the brief cross examination of witnesses saved the tribunal and parties time and costs and should weigh in favour of the QBCC.
• [27] The QBCC also submits that the offer on the final day of hearing was open for less than three days and that there was limited utility in accepting that offer as the costs of both parties had already been incurred.
• [28] The QBCC opines that there is no special circumstance that indemnity costs should be awarded to the Applicant.
• [29] There is an objection raised by the QBCC that the position paper is subject to privilege governing settlement negotiations. The QBCC states that the material was exchanged on a without prejudice basis.
• [30] The QBCC opines that if costs are to be awarded to Rainvale that these costs should be awarded on standard basis and not an indemnity basis.

• [31] The Applicant has made application for its costs to be awarded. Awarding costs would be a departure from section 100 of the QCAT Act and the usual position that each party within the tribunal bears its own costs. Section 102 qualifies this section and enables a department from the usual position. The qualifications are outlined in the submissions of both parties.
• [32] The consideration for the tribunal in this matter is: "Does the interest of justice require it to make a costs order?" Marzini v Health Ombudsman (No 4)[7] provide the approach when considering s 100 and s 102 of the QCAT Act. The relevant paragraphs are below and approved in Health Ombudsman v Du Toit:[8]

"[36] In my opinion the correct approach to the operations of s100 and s102 of the QCAT Act is similar to that formulated by the Hon P Lyons QC in Thompson v Cannon.....: 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 s102(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 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 works 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 is a right to legal representation."

• [33] The QBCC is a statutory body. The QBCC's position in a review of its reviewable decision is to assist the tribunal to make the correct and preferable decision.[9] The QBCC was not acting in a disciplinary function, as opposed to that of the Health Ombudsman which was acting in its disciplinary function. The QBCC was not under an obligation to continue in the matter, although the objects of the QBCC as a statutory body are also an important consideration.
• [34] Both parties in this matter were given leave to be legally represented, by consent. There is no submission before the tribunal that the QBCC objected to leave. Section 43(3) of the QCAT Act outlines the circumstances for leave to be granted to parties. The assertion that the applicant did not require legal representation as the matter was not complex as a submission to object to a costs order is a flimsy submission. The QBCC had an earlier opportunity to ventilate any concern about the grant of legal representation, as there is not a right to legal representation for this type of matter in the tribunal. This submission is rejected.
• [35] The Applicant made its first two offers to the QBCC at an early stage in the process, after application to the tribunal. Prior to the tribunal process, the Applicant had also sought an internal review of the decision of the QBCC.
• [36] The QBCC maintained the same position from the internal review through to its final submissions to the tribunal after hearing, adopting the limited analysis from the internal review decision. This is a factor that the tribunal considers relevant.
• [37] The QBCC did not respond to the written offers by the Applicant at any time, either during the open fourteen (14) day period or at any time after this period. This is a factor the tribunal considers relevant.
• [38] The QBCC submits that accepting the offer at that time would amount to a complete 'capitulation'. The QBCC gives no explanation as to what the capitulation of the QBCC would've been in circumstances where the purpose of an external review determination, is to either confirm, amend or set aside the decision and substitute a new decision. The tribunal does not accept the QBCC's submission.
• [39] The QBCC provides that there was limited information to assess the prospects of the Applicant at the time of the offers. The QBCC, in all the circumstances, had undertaken its determination and an internal review of its decision. At the time of the application to QCAT, it had considered its position on two occasions. The tribunal does not accept that there was limited information to assess its prospects at the time of the offer. The information that the tribunal relied on at hearing was already known to the QBCC throughout both the internal and external reviews.
• [40] The Applicant had raised in hearing that the cross-examination of the witnesses was a point of contention, the QBCC submits that the brief cross examination of witnesses saved the tribunal and parties time and that this should weigh in favour of the QBCC. This submission is a sweeping generalisation by the QBCC and is not helpful to the tribunal in the determination of costs. The position, whilst generally sound, does not apply to the circumstances of this hearing.
• [41] The objection by the QBCC to the position paper does not assist the tribunal. The QBCC characterises the position paper as one that was exchanged on a without prejudice basis and that the consideration of the position paper is one that would breach the privilege governing settlement negotiations and that section 74(1) of the QCAT Act "does not abrogate common law without prejudice privilege."[10]
• [42] The position paper asserts the position of the Applicant. The Applicant relied on the same assertions in the hearing and in its filed material. The position paper was filed in the tribunal and served on the QBCC prior to the compulsory conference. The filing of the document and the lack of "without prejudice" marking support that this is not a document that should be subjected to privilege. The position paper does not disclose any confidential discussions, or any information that would disadvantage the QBCC. It is not an agreement between the parties that is to be kept confidential. It is also noted that "without prejudice" privilege, is not an absolute privilege. The QBCC submission does not address why "without prejudice" privilege attaches to this document. There is no reference to a settlement offer nor statement of compromise within the paper. This submission holds no weight and is not accepted by the tribunal.
• [43] There is reliance by the QBCC on its position as a statutory authority and the tribunal should afford significant weight to the QBCC's statutory role. As identified above, the QBCC does not have a disciplinary function in this matter. During the external review to QCAT the QBCC's role was not to "defend" its position, for the purpose of the tribunal it was to assist the tribunal to the correct and preferable decision. The QBCC did not resile or amend its position at any time in the external review. This is a factor that the tribunal considers significant.
• [44] The QBCC further contends that the significant financial resources of Rainvale is matter that the tribunal should also consider. This position is not advantageous to the QBCC, on this occasion. In many cases, the position of the statutory authority may disadvantage a smaller business and many meritorious cases may not be run on the basis that the business may not be able to afford to obtain adequate representation. It seems absurd that the position of a business to pay for adequate representation and absorb this cost, should therefore not enable a departure from section 100, "in the interests of justice".
• [45] The tribunal finds in all the circumstances that it is in the interests of justice, in accordance with the factors in section 102 of the QCAT Act, that a departure from the position of section 100 is warranted in this matter.
• [46] It is also noted that section 105 of the QCAT Act authorises the tribunal to award costs in other circumstances, separately from section 102, including in accordance with Rule 86 of the QCAT Rules, where for example, an offer has been made that was not accepted. In this instance, it is appropriate to consider the factors in section 102, given that the First Respondent in this matter is a statutory authority.

• [47] The QBCC opines that if costs are awarded that they should be on a standard basis.
• [48] Rainvale's position in relation to costs is cascading in that they identify different points in the litigation that indemnity costs should be award to it. Rainvale is heavily reliant upon the offers that it made at an early stage to the QBCC, and the conduct of the QBCC.
• [49] The submissions of the QBCC have been of little assistance in this matter. Rainvale has not shown that the QBCC's actions have reached the high bar that is required for indemnity costs as outlined in Colgate Palmolive Company and Another v Cussons Pty Ltd [11] and restated in Di Carlo v Dubois & Ors.[12] There is no element of fraud or misconduct or wilful disregard of known facts or established law[13] in this matter.
• [50] The tribunal determines that Rainvale is entitled to costs from the date of the review applications to QCAT. Such costs to be assessed on a standard basis in reference to the District Court scale.

[1] [2010] QCAT 412.

[2] [2020] QCAT 365.

[3] [2024] QCA 235.

[4] Paragraph 6 Affidavit of Mr Brent Turnbull dated 28 October 2024.

[6] Paragraph 1 to 19 inclusive, submissions of QBCC dated 21 November 2024.

[7] [2020] QCAT 365 at [36] and [37].

[8] [2024] QCA 235 at [50].

[10] Paragraph 46 submissions of QBCC filed on 22 November 2024.

[12] [2002] QCA 225 at [36] and [37].