Valuers Board of Queensland v Murphy [2022] QCAT 295

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

Campbell v Queensland Building and Construction Commission [2021] QCATA 34

CH v Queensland Police Service [2021] QCATA 137

Cowen v Queensland Building and Construction Commission [2021] QCATA 103

Fast Access Finance (Beaudesert) Pty Ltd v Charter (No 2) [2012] QCATA 172

Lee v Medical Board of Australia (No 2) [2016] QCAT 321

Marzini v Health Ombudsman (No 4) [2020] QCAT 365

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412

Stuart v Queensland Building and Construction Commission [2016] QCATA 135

Turner v Macrossan & Amiet Pty Ltd (No 2) [2016] QCAT 255

Warren v Queensland Law Society Incorporated (No 2) [2013] QCAT 234

Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327

Tamawood Ltd & anor v Paans [2005] QCA 111

• [1] On 22 March 2022 I determined an interlocutory application filed on 11 November 2021 by Mr Murphy in which he sought to strike out or dismiss the substantive referral in this matter. Mr Murphy's application was dismissed.
• [2] I made directions for the filing of submissions in relation to the costs of that application, which have now been received from both parties. This is the decision and reasons in response to that application.

• [3] The power to award costs is in Division 6 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Section 100 provides that each party to a proceeding must bear the party's own costs for the proceeding. However, s 102 provides 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.
• [4] In deciding whether to award costs in the interests of justice, 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.[1]

• [5] A recent divergence in the case law has been about the "starting point" when considering these two sections and applying the intent. Historically it was said that s100 of the Act was the "starting point" identifying the general rule to be applied, unless the interests of justice require a different order having considered the matters in s102.
• [6] The historical "starting point" interpretation is identified in the 2010 decision of Justice Alan Wilson, President (as he then was) Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2).[2] His Honour said that the question that will usually arise 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 s100.[3]
• [7] This interpretation was applied by the Appeal Tribunal in 2016 in Stuart v Queensland Building and Construction Commission[4], where an appellant was wholly successful in the appeal and sought an order for costs in the interests of justice. It was argued that the "so compellingly" test in Ralacom was unjustified because it interfered with the statutory test of the interests of justice. The Appeal Tribunal was not moved and restated the test as being that the weight of the factors to be considered under s102(3) must be so compelling for the starting position to be overcome.
• [8] Justice Wilson's interpretation has been consistently followed since 2010, examples being Warren v Queensland Law Society Incorporated (No 2),[5] Magill v Queensland Law Society Inc (No 3),[6] where Justice Daubney (the then QCAT President) said that the question is whether 'the interests of justice' point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s100 and Fast Access Finance (Beaudesert) Pty Ltd v Charter (No 2).[7]
• [9] As time progressed however, other opinions were expressed. Justice Carmody in Turner v Macrossan & Amiet Pty Ltd (No 2)[8] said that

"the prescribed condition precedent to ordering costs, the "interests of justice", does not require the circumstances to be exceptional, special, or extraordinary. It is sufficient if the circumstances are such that it would not be just or equitable to the successful party to deny them costs".

• [10] In Marzini v Health Ombudsman (No 4),[9] Judicial Member McGill SC in discussing ss100 and 102 found the wording curious because there was nothing in section 100 to show a 'strong contra-indication' against costs orders and that requiring the 'interests of justice' to support a costs order 'compellingly' was reading into the statutory discretion restrictions which were not based on the terms of the Act. Instead, he considered that sections 100 and 102 should be read together so that the ultimate question was whether it was in the interests of justice to make a costs order.
• [11] In explaining this, the Judicial Member said:

[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.

• [12] The continuing position of two competing approaches was reinforced following Manzini in the Appeal Tribunal decision of Campbell v Queensland Building and Construction Commission[10], where the Appeal Tribunal said that the member at first instance had not been wrong to cite Ralacom. Marzini was not however considered in that context.
• [13] In 2021 Judicial Member McGill SC revisited this in Cowen v Queensland Building and Construction Commission[11] and maintained his opinion that the relevant test was whether the interests of justice require an order for costs.
• [14] Judicial Member McGill's views found support from Deputy President Judge Allen in CH v Queensland Police Service,[12] who agreed with Judicial Member McGill SC's conclusion in Marzini and in Cowen. Judge Allen considered that to say that an order for costs will not be made unless the factors favouring an order are "compelling" does not accurately state the test for making an order for costs laid down by s102(1) and that the test is whether the interests of justice "require" an order for costs. He did not accept that the circumstances favouring an order for costs must be compelling before that test will be satisfied.

• [15] In making this decision I am grateful to the detailed discussion of the learned member in Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs)[13] where, after careful analysis of the two distinct lines of authority, he chose to follow the older. His final reasoning was as follows:

[82] In summary, although normally more recent authority would have greater weight than older authority, the birth of the more recent authority in support of approach (b), that is Marzini, Cowen and CH, happened without the benefit of legal argument on the particular issue involved, that is the correctness of Justice Wilson's description of the effect of sections 100 and 102 as a 'strong contra indication' requiring a 'compelling' interests of justice argument to displace it. They were also decided without citing Appeal Tribunal decisions confirming the correctness of the description where there had been such argument. The sheer longevity of the traditional approach in Ralacom seems to gives it greater weight, and there is nothing in the more recent decisions to guide me one way or another.

[83] On that basis alone I would tend to go with the traditional approach, but having analysed the Court of Appeal decision in Tamawood it can be seen that the suggestion in approach (b) that the starting point in section 100 merges into the real test which should be applied (a test of 'interests of justice') was indeed rejected by the Court of Appeal on the statutory provisions of the CCTA, and the QCAT Act is stronger in that regard.

[84] Obviously with the greatest respect to the decision makers in Marzini, Cowen and CH, for these reasons I find myself unable to follow these cases. It seems to me to be correct to follow the line of authority for approach (a) rather than approach (b).

• [16] I agree with his analysis. The Ralacom reasoning is, in my view, more reflective of the objects of the QCAT Act, in particular with s3(b) and (e) of the Act - to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick and to enhance the openness and accountability of public administration.

• [17] It must first be noted that both parties in this matter are entitled to legal representation as of right under s43(2)(b)(ii) of the QCAT Act as this is a disciplinary proceeding.

• [18] The Board's submissions first follow the Marzini approach, citing the decision of Judicial Member McGill discussed above. Submissions are then also made on the basis of the decision in Tamawood Ltd & anor v Paans[14] (preceding Ralacom and relied upon in that decision) where the Learned Judge discussed the impact of legal representation by all parties. This finding the Court said was sufficient to conclude that the interests of justice should be met by awarding costs to the successful party in the absence of any countervailing considerations. This was said to note deter people from prosecuting just claims in complex cases and to not erode the success of a party by bearing their costs.
• [19] The Board points to the reliance on this particular aspect of the Tamawood decision by the Tribunal in Lee v Medical Board of Australia (No 2).[15]
• [20] In this matter, the Board submits there are no countervailing considerations but rather under s102(3) considerations work in favour of the Board.
• [21] Mr Murphy submits there is no reason to depart from the position set out in s100 of the QCAT Act, in that none of the considerations set out in s102(3) of the QCAT Act arise.
• [22] In reply to these general submissions, the Board notes that Mr Murphy makes no submission against the proposition arising from the decisions in Tamawood and Lee and no countervailing considerations are identified by Mr Murphy.

• [23] Accepting as I have the Ralacom reasoning as more reflective of the objects of the QCAT Act, the question that will usually arise 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 s100. I decline to follow the Tamawood and Lee dicta that success in proceedings where there is legal representation requires the Tribunal to make an order for costs so as not to erode the success.
• [24] I return to the Ralacom decision and the guidance of Justice Wilson, President (as he then was) pointing out that the QCAT costs provisions more plainly indicate (than the provisions being considered in Tamawood) that the legislature had turned its face against awards of costs in this Tribunal. He said Keane JA's dicta should be 'considered in the light of the difference' between the two provisions and that 'the principles found in Tamawood provide guidance about the circumstances in which it may be in the interests of justice for this tribunal to award costs against parties.'[16]
• [25] What then follows is an examination of the "interests of justice" factors outlined in s102(3) of the QCAT Act as are relevant to this matter.

• [26] The Board's submission is that Mr Murphy's conduct unnecessarily disadvantaged the Board as the application was based it says on conduct of the Board that occurred before the proceeding and that he filed material irrelevant to the application (in particular, a limited section of one affidavit concerning complaints about other valuers).
• [27] Mr Murphy submits the conduct of the Board prior to the filing of the Referral is plainly relevant having regard to the requirements of s48(1)(b) of the QCAT Act requiring that Mr Murphy comply with the referring Act - here the Valuers Registration Act 1992 (Qld) (VRA) and the Tribunal made no findings adverse to Mr Murphy or in favour of the Board which can be said to weigh in favour of exercising the discretion.
• [28] In reply, the Board points to the wording of s48 wherein the emphasis of s48 is on the conduct of parties "to a proceeding" and the submission of Mr Murphy being contrary to "well established authority".[17]
• [29] The next submission by the Board is that the matter was not particularly complex, but the nature of the matter favours a costs order because of the volume of material filed. In particular, the Board refers to paragraphs 58 to 60 of an affidavit of LRA sworn 11 November 2021 as being irrelevant.
• [30] Mr Murphy asserts this is a "bald" submission without identifying the basis for the assertion. He says the application was brought on the basis that the approach taken to conduct the Board alleged to constitute a breach of the API Code of Conduct was disproportionate to the approach taken to similar conduct by other valuers. No findings about relevance or criticism were made by the Tribunal of the evidence and the Board had not previously objected or raised relevance issues.
• [31] Mr Murphy says that basis of the dismissal of the application was that the Tribunal considered there were questions of fact and law to be considered and that the discretion in s47 and 48 is not lightly exercised. He says the Board's mere success in the application is, of itself, not sufficient to displace s100's position in relation to costs.[18]

• [32] I do not find sufficient strength in the Board's submissions to displace the strong contra-indication against costs orders in s100 of the QCAT Act. I accept there was a volume of material. I do not see any compelling reason however to depart from s100 in the interests of justice simply because there was a lot of material. Nor do I see the submission of irrelevancy directed at three paragraphs of one affidavit as carrying any weight. In any event the subject of those paragraphs will form part of the arguments in the final hearing of this matter.

• [33] The Board submits the matter has no special complexity other than voluminous submissions and affidavit material, however that and the representation by counsel favours an award of costs.
• [34] Mr Murphy replies that the same submissions produce the opposite result - that does not weigh in favour an award of costs.

• [35] For the same reasons outlined above in the discussion concerning s102(3)(b), I do not find sufficient strength in the Board's submissions to displace the strong contra-indication against costs orders in s100 of the QCAT Act.

• [36] Under this factor, the Board submits under both ss 47 and 48, Mr Murphy's case was weak. It says it ought to have been clear that there was a triable issue such that the matter could not be determined in a summary fashion and that the application only served to delay the progress of the substantive matter and should not have been brought.
• [37] Mr Murphy counters that the ultimate dismissal is not an indication of weakness or that the application should not have been brought. No criticism was made by the Tribunal of bringing the application itself.
• [38] The Board replies saying the Tribunal did conclude "implicitly" that Mr Murphy's application was weak where it was said:[19]

A close examination by way of evidence presented and tested and findings of fact are necessary to either support or refute Mr Murphy's allegations. All of which is, again, well beyond the reach of a summary dismissal application.

• [39] I accept I made no direct criticism of Mr Murphy bringing this interlocutory application and that in my view there is a triable issue. Mr Murphy was entitled to "test the waters". If I had found in his favour, there would have been a substantial personal gain to him by the matter not continuing.
• [40] The more finely balanced question is, was the application so bound to fail that the outcome should have been obvious to Mr Murphy? Overall, I am satisfied that the answer to this question is no. There was not in my view so obviously a clear outcome that would mean the application was futile. An example of this can be seen in the progressive opinions from the QC for the Board, whose view ultimately changed as more facts were presented to him.
• [41] I do not find sufficient strength in the Board's submissions to displace the strong contra-indication against costs orders in s100 of the QCAT Act.

• [42] The Board submits that as most of its income is derived from valuers' registration fees, its financial position is not strong. There was a loss in the 2019-2020 year and a small operating surplus in the 2020-21 year with 11% of its total expenditure that year spent dealing with complaints.
• [43] Mr Murphy says disciplinary processes are a key function of the Board under the VRA, so it is to be expected and required that funds are spent this way. This factor does not weigh in favour an award of costs.
• [44] Mr Murphy submits he is a natural person, not a well-resourced entity and has been put to significant costs in relation to the application and may be adversely affected by the referral, personally and professionally, despite any ultimately favourable outcome.

• [45] I was not provided with any evidence of the financial strength of Mr Murphy to withstand the payment of any costs award. However, the Board is a body established to administer the VRA and I accept Mr Murphy's submission that disciplinary processes are a key function of part of its role under that Act. I do accept that there is always an emotional cost to any person undertaking litigation - whatever the reason and potentially a financial one depending on the outcome of the final hearing.
• [46] On balance, I do not find sufficient strength in the Board's submissions to displace the strong contra-indication against costs orders in s100 of the QCAT Act.

• [47] Finally, the Board submits an insinuation by Mr Murphy against the reputation of a QC engaged by the Board during the process which the Tribunal found to be unreasonable and requiring of an apology to that senior practitioner further supports a costs order.
• [48] Mr Murphy says it was never the intention of Mr Murphy or his legal team to criticise the senior QC and counsel for Mr Murphy has addressed this criticism in the appropriate way.
• [49] Mr Murphy submits the Tribunal's observations were not prejudicial to the Board and not a factor relevant to the consideration of costs, as this would be punitive.

• [50] My criticism of an insinuation against the reputation of a QC engaged by the Board by Mr Murphy has been addressed by counsel for Mr Murphy advising me in submissions that this has been addressed with the QC concerned in an appropriate way.
• [51] I am satisfied with this assurance and place no weight on this matter in the determination of this costs application.

• [52] Section 102 of the QCAT Act allows that 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. Having considered the relevant provisions of s102, I do not any reason in the interests of justice to displace the strong contra-indication against costs orders in s100 of the QCAT Act.
• [53] The application for costs is dismissed and each party will bear their own costs.

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s102(3).

[2] [2010] QCAT 412.

[4] [2016] QCATA 135 at para 18.

[5] [2013] QCAT 234

[6] [2020] QCAT 327 at para 7.

[7] [2012] QCATA 172 at para 10.

[8] [2016] QCAT 255 at para 26.

[9] [2020] QCAT 365 at para 25.

[10] [2021] QCATA 34 at para 37-38.

[11] [2021] QCATA 103 at para 28.

[12] [2021] QCATA 137.

[13] [2022] QCAT 225.

[14] [2005] QCA 111.

[15] [2016] QCAT 321 at para 46.

[16] [2010] QCAT 412 at para 25.

[17] The Board cites Crusty Devil Bakehouses Pty Ltd v W.A.W. Developments Pty Ltd [2013] QCAT 159, McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2013] QCAT 749, Lisa Craig Corporation Pty Ltd v Mintman Pty Ltd [2014] QCAT 243 and Locke & Ors v Stanton Crest Stage 2 Body Corporate [2014] QCAT 433.

[18] Queensland Racing Integrity Commission v Kadniak [2018] QCATA34 at para 9.