Woodrange Pty Ltd v Le Grande Broadwater Body Corporate [2004] QDC 215

[3] The appellant sought from the specialist adjudicator an order that the respondent pay the appellant's costs of the adjudication. That order was sought under s 280 of the Act, or in the alternative under s 276 of the Act. The adjudicator, for reasons which he gave, concluded that s 280 of the Act did not give any power to award costs other than in respect of the fee payable to himself, which he ordered to be paid by the respondent. He does not appear in his reasons to have dealt with the question of whether there was power under s 276, but he did not purport to make any order for costs under that section. In effect he held there was no jurisdiction on the part of a specialist adjudicator to award costs in the ordinary sense, that is legal costs incurred by a party in relation to the proceeding before the specialist adjudicator. He did not decline to make an order in the exercise of a discretion in relation to costs.

[4] The question of law sought to be raised by the appellant on the appeal is whether the conclusion that there was no jurisdiction to make an order for professional costs was correct. That is plainly a question of law. The appellant sought to submit that, under either of those provisions, there was a power to make an order in relation to the professional costs. The respondent on the other hand submitted that the decision of the adjudicator was correct in relation to s 280, and that there was no power under s 276(1) to make such an order. In any case, the respondent resisted the grant of an extension of time within which to file the appeal.

[5] The decision of the adjudicator was given on 27 August 2003 to the commissioner, who gave notice of the adjudicator's order to the solicitors for the appellant by letter dated 28 August 2003.[5] That was received by the solicitors for the appellant on 29 August 2003, and forwarded to the appellant by email the same day.[6] In the light of the reasons given by the adjudicator, which were apparently confirmed in a conversation with an employed solicitor on 1 September 2003, the solicitors for the appellant advised their client on 16 September 2003 that they could see no reasonable legal basis on which their client's legal costs could be recovered from the respondent.[7] Nothing else happened until after the expiration of the six week period, when on or about 16 October 2003 the appellant's officers consulted the appellant's solicitors about the question of costs. They were told that the six week period had expired, but that if they wished Queen's Counsel's opinion could be obtained, and instructions were given to do so.[8] There is no explanation of the failure on the part of the appellant to seek more promptly to investigate the question of an appeal.

[6] A brief was sent to Senior Counsel, but only on 10 December 2003, almost two months later.[9] The explanation for the delay at this point is that there was a substantial dispute within the firm of solicitors acting for the appellants, which particularly involved the partner who had been working, with the employed solicitor, on the appellant's file. The dispute involved litigation, and was evidently quite acrimonious, and ultimately the partner handling the appellant's matter and a number of other people left the firm, taking with them a number of files but not the file dealing with this matter for the appellant. It then took a further period of 11 days to obtain that file, after which there was a reasonably prompt attempt to file an application for an extension of time, which the solicitor sought to file on 1 April 2004.

[7] The dispute within the firm of solicitors was responsible for almost all of the delay from 16 October 2003 until then. Once the brief was actually sent to counsel it was returned with the advice within 14 days, and there was then some further delay until 11 February 2004 before the advice was forwarded to the client. The client then took until 10 March 2004 to get back to the solicitors as to the costs of the appeal, and then to give instructions to proceed with the appeal.[10]

[8] There was the further complication that the solicitors originally sought to file an originating application seeking an extension of time. The registry refused to accept the document, on the basis that the correct procedure to follow in such circumstances is to file a notice of appeal subject to leave, under r 786(5).[11] The procedure of a notice of appeal subject to leave was introduced in order to prevent a situation which occurred previously where there was an appeal to the District Court with the leave of that court, where two separate files were opened, one dealing with the application for leave and then one dealing with the appeal if leave were granted. I was not asked to decide whether that procedure is applicable in circumstances where the appellant requires an extension of time rather than "leave" in the strict sense, but the considerations which make the procedure convenient in the latter case make it equally convenient in the former. In any case, the notice of appeal subject to leave was made returnable on 15 June 2004, when it was adjourned to 29 June 2004 for hearing. On 7 June there was a separate application filed by the appellant seeking an extension of time within which to appeal, which also came on at the same time, and was also adjourned. Accordingly if a separate application is required there is one before me. As contemplated by r 786(8) the parties were agreeable to presenting their arguments on the appeal at the same time as arguing the application for the extension of time, which is also convenient.

[9] Most of the delay after 1 April was caused by the uncertainty about the procedure to adopt, and in arranging to have the matter brought on for hearing at a time which was convenient for both parties.

[10] I am not aware of any particular decisions on the extension of time under s 290(2) of the Act, but the subsection gives a general discretion to the court to allow an appeal to be started at a later time, and therefore presumably cases which have considered the correct approach to the exercise of such a discretion would be equally applicable. One case which is frequently referred to is Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 at 459 per McHugh J, where His Honour said that it was necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences for the parties of the grant or refusal of the application, and the prospects of the applicant succeeding in the appeal. The test is whether it would be an injustice to refuse the application. There is also authority that is relevant to consider the length of the delay and whether it has been satisfactorily explained, whether the delay is attributable to the appellant or the appellant's legal advisers, and whether the delay will cause prejudice to the respondent.[12]

[11] The delay in the present case is substantial, a period of almost eight months instead of the six weeks which is the ordinary limit of time within which to appeal. There has been a reasonably satisfactory explanation for the delay, in that there are only relatively short periods of delay which are not explained, although the most significant delay, during the six week period, is essentially unexplained other than by the fact that the appellant's solicitors initially advised in effect that the decision in this respect was correct. Most of the delay was attributable to the appellant's solicitors, and to particular and extraordinary difficulties which they were facing, which provide a reasonable excuse for their distraction from the attention which might otherwise be expected to expedition in relation to an appeal.

[12] As to prejudice, the respondent points out that since notice was given of the decision and the six week period expired there have been 16 (out of 94) lots in the community title scheme which have changed hands,[13] and those lots are now owned by people who purchased them presumably without notice of a potential liability in respect of costs arising out of a possible appeal from the decision of the adjudicator. There is evidence before me that following the expiration of the appeal period the body corporate assumed that the litigation was at an end, and did not make a point of informing potential purchasers of it in the event of an enquiry,[14] and I think it is a reasonable inference from that that potential purchasers were not informed of a possible liability in the event of a successful appeal. Had they been they may well have taken this into account in deciding whether to buy, or in negotiating the terms on which they did buy, their lots in the scheme.

[13] At one stage counsel for the respondent suggested that the prejudice might perhaps be overcome if the amount of any costs order were reduced by the proportion of the new lot owners. However it appears to be impossible for the body corporate to pass on any such savings specifically to the new lot owners in a way which would be consistent with the legislation. Accordingly this prejudice could not be overcome. On the other hand, as Senior Counsel for the appellant pointed out, the burden of the order sought by the appellant is only $160 per lot.

[14] I think it is also a relevant consideration that the issue is a question of law of general application, that is, it is not one which is relevant only to this dispute. It is potentially relevant to every dispute which falls within s 265 of the Act, or perhaps any dispute which has to be resolved by an adjudicator. Accordingly there is some public interest in the resolution of the question. The amount involved is not large; the claim is for a total of $14,878.76, on the basis that this was the total of the amounts charged to the appellant by its solicitors.[15] The result of the adjudication was that the respondent was ordered to pay the appellant an amount of about $72,000, together with some further monthly amount which had fallen due between the time when a draft order was circulated and the time when the final order was made. It is not immediately apparent from the reasons of the adjudicator what that amount is, but presumably it was relatively small. It is not a case therefore where the costs so far as these parties are concerned amounted in themselves to the major or a major aspect of the whole dispute. They were however not insignificant.

[15] Overall but for the consideration of the public interest in the resolution of the question of whether there is jurisdiction in a specialist adjudicator to deal with the legal costs of the parties to an adjudication I would not give leave to appeal, bearing in mind the length of time which has elapsed, the fact that apparently there was initially a decision not to appeal which was not reconsidered until after the time limited for appeal, a relatively generous time, had expired, and because of the potential prejudice to some lot owners who have purchased lots in the building without notice of the potential exposure to this additional liability. Although a good deal of the delay is not attributable to the appellant personally, some of it is, and significantly the failure to do anything to carry forward an appeal during the first six weeks after the decision appears to be essentially attributable to the appellant personally. There was no information given to the respondent that an appeal was even under consideration, and there is no suggestion that the respondent in any way contributed to the delay.

[16] There is another consideration which is said to be of some significance, namely the prospects of success of the appeal.[16] In this matter I heard full argument on the merits of the appeal, and therefore I am in a position in effect to decide the merits as if I were hearing and determining the appeal. Commonly that is not done on an application to extend time; in that situation there is usually only limited attention paid to the merits, so that a court will not be able to say too much about them unless the outcome seems pretty clear, one way or the other.

[17] In the present case however, having heard full argument on the appeal I am not persuaded that the decision of the adjudicator was wrong. In those circumstances, it seems to me logically to follow that the appropriate course is to refuse to extend time in which to appeal. Had I been of the contrary view however I would have given leave to appeal, because of the general importance of the question.

[18] The appellant relied on two separate sections as the source of power, and it is convenient to deal with each of them separately. I should however say something first about the general scheme of the Act in relation to dispute resolution.

[19] The primary object of the Act is to provide for flexible and contemporary communally based arrangements for the use of freehold land, having regard to the secondary objects: s 2. The secondary objects of the act include "to provide an efficient and effective dispute resolution process": s 4(h). Dispute resolution is dealt with in Chapter 6 of the Act, the purpose of which is explained in s 228 as establishing arrangements for resolving, in the context of community title schemes, disputes about various matters arising under the Act or community management statements, and involving the engagement of persons as body corporate managers or service contractors, or letting agents: s 228(1). If a dispute may be resolved under Chapter 6 by a dispute resolution process, it must be resolved in that way unless the application is dismissed because the commissioner is satisfied that the dispute should be dealt with in a court or tribunal of competent jurisdiction[17] or, presumably, if an adjudicator is satisfied that the dispute should be dealt with in a court or tribunal of competent jurisdiction under s 270(1)(b). One exception to this is where there is a dispute about an adjustment of a lot entitlement schedule; that dispute may be brought either to the District Court or to a specialist adjudicator under Chapter 6: s 48(1).

[20] The main elements of the dispute resolution process provided by the chapter are set out in s 230(3) as follows:

• dispute resolution recommendations, especially at the preliminary stage of the dispute resolution process

• orders, including interim orders, by adjudicators

• enforcement of orders through the Magistrate [sic] Court

• appeals to the District Court on questions of law.

[21] An application is initially made to the commissioner under ss 238 and 239, and the commissioner may require further material to be given by the applicant: s 240. In certain circumstances the commissioner may reject the application (s 241) but otherwise notice must be given to the body corporate and any other affected person: s 243, (other than a person to whom the body corporate is required to give notice under subsection (4)). The commissioner then seeks the view that the parties, and perhaps other information, before deciding on a dispute resolution process: s 251. Assuming the application is not then dismissed under s 250, the commissioner makes a dispute resolution recommendation under s 248, essentially by choosing for the dispute one of the following dispute resolution processes:

[22] The first three processes are dealt with in Parts 6 and 7. Specialist mediation and conciliation appears to require the agreement of the parties under s 257(a) on the person who is to be the dispute resolution officer for the application, and, if they are agreed on the amount to be paid for mediation or conciliation, how it is to be paid and by whom it is to be paid: s 257(c). Where there is specialist mediation or conciliation parties to the application may be represented by an agent only if the dispute resolution officer approves: s 261(1), although it is apparent from subsection (2) that this provision is essentially concerned to restrict the use of legal representatives.

[23] Department adjudication means adjudication before a person appointed as a department adjudicator under s 236 of the Act; this is a public service appointment so presumably the adjudicator is remunerated by a departmental salary. If the application is referred to a department adjudicator the fee prescribed under a regulation becomes payable, and has to be paid before the matter can proceed: s 268. An adjudicator is required to investigate the application to decide whether it will be appropriate to make an order on the application, and must act quickly, with as little formality and technicality as is consistent with a fair and proper consideration of the application, and is not bound by the rules of evidence but must observe natural justice: s 269. In the case of an adjudication a party to the application has the right to be represented by an agent, presumably including a lawyer: s 273.

[24] Specialist adjudication can arise in one of two ways: if the parties agree on the person who is to be the adjudicator for the application, and the other things referred to in s 264, the commissioner may recommend an application be the subject of specialist adjudication. One of the matters which the parties have to agree on is either how and by whom the amount agreed to be paid for the adjudication is to be paid, or that the amount is to be paid in the way decided by the adjudicator: s 264(d). In such circumstances, the amount to be paid for the adjudication, that is to the specialist adjudicator (who will presumably not be a departmental officer and would not be otherwise remunerated) is to be dealt with in the agreement, which may be an agreement that the adjudicator can decide who pays his or her fee.

[25] Section 264 is however subject to s 265, which provides that the adjudication of one of the disputes set out in subsection (1) must be specialist adjudication. Under this section the specialist adjudicator must be the person chosen by the commissioner, and need not be a person nominated by a party to the application: s 265(2). It was submitted on behalf of the appellant that, although the dispute in question fell within s 265, that did not mean that s 264 did not also apply to it; accordingly, although the dispute had to be by specialist adjudication pursuant to s 265, the requirement of s 264 that there be an agreement between the parties as contemplated by that section still applied. There was no evidence of any such agreement in the present case, but it was submitted that I should assume that the requirements of the Act had been complied with and that there was such an agreement.

[26] I do not accept that construction of the Act. In my opinion, the introductory words "subject to s 265" in s 264 mean that the commissioner's discretion to make a recommendation for a specialist adjudication under s 264 does not apply in circumstances where s 265 applies. In other words, the commissioner may make a recommendation under s 264 provided that the requirements of s 264 apply, and the case is not one within s 265. If the case is within s 265, the adjudication must be by a specialist adjudication, and there is therefore no question that the commissioner having a discretion to recommend a specialist adjudication, or for that matter having a discretion to recommend department adjudication. (Presumably it would still be open to the commissioner to recommend dispute resolution centre mediation, specialist mediation or specialist conciliation; the restriction in s 265 is only on the sort of adjudication which may apply in relation to those particular disputes.)

[27] Overall therefore if adjudication is required, either because the other forms of dispute resolution have been attempted and failed or because the commissioner decides that it is not worth trying them, if a dispute falls within s 265 the adjudication must be by specialist adjudication and by subsection (2) the commissioner chooses the specialist adjudicator. Otherwise there is specialist adjudication if the parties agree with the commissioner's approval under s 264; otherwise the commissioner is left with no alternative to department adjudication. But there is nothing to indicate that the terms of s 264 apply when s 265 applies, and indeed in my view it would be contrary to the structure of the part, and to the fact that in certain circumstances specialist adjudication is mandatory, for there to be some sort of additional mandatory requirement that the parties agree to things. In my opinion the whole of s 264 is inapt in circumstances where s 265 applies.

Power under s 280

[28] The appellant relied first on the proposition that this section gave power to an adjudicator, and in particular a specialist adjudicator, to make an order for the legal costs of parties to an adjudication. The section provides as follows:

"(1) This section applies to an application dealt with by specialist adjudication mentioned in s 265.

(2) Unless the adjudicator otherwise orders, the applicant is responsible for the costs of the adjudication."

[29] The expression "the costs of the adjudication" at first sight would be apt to mean the legal costs of the parties of participation in the adjudication. That impression is perhaps strengthened by the contrast with the wording in s 264, where the reference to "the amount to be paid for the adjudication" is plainly a reference to the fee payable to the adjudicator. On the other hand, there is also a contrast with the expression used in s 270(3) which was "legal expenses reasonably incurred by the person in relation to the application" to refer to costs in the ordinary sense. For that matter, s 48(2)(c) uses the expression "the parties own costs of the application" as a clear reference to legal costs in connection with an application made for an adjustment of a lot entitlement schedule, whether the application is made to the District Court or to a specialist adjudicator under chapter 6. That provision in its application to a specialist adjudicator also suggests that in the absence of a specific provision such as that the specialist adjudicator has the power to make an order dealing with the parties' own costs of the application. There is also the consideration that the presence of s 273 indicates that the legislature contemplated that there could well be legal assistance provided to a party to an adjudication.

[30] On the other hand, there is the difficulty that, unless s 280 deals with the payment of the adjudicator's fee, there does not appear to be a provision in the Act for that purpose. The cost of the department adjudicator is required to be paid under s 268 by way of a fee, and although anyone can pay the fee, for practical purposes the applicant has to pay it otherwise the adjudication will not take place. Section 264 indicates that specialist adjudication by agreement will occur only when the parties are agreed as to how the adjudicator is to be paid. Under s 265 the specialist adjudicator is chosen by the commissioner, so that on the face of it an obligation to pay falls on the commissioner, but it is unlikely that the legislature intended that as a consequence the specialist adjudication will be free to the parties, given the "user pays" approach of the balance of chapter 6.[18]

[31] There is also the consideration that, if s 280 is a power to deal with professional costs, it is a surprisingly limited one. Although it is in part 9 dealing with adjudication generally, it applies only to specialist adjudication under s 265; it does not apply to department adjudication, or specialist adjudication under s 264. Senior Counsel for the appellant submitted to the contrary, and that subsection (2) was a provision of general application, with subsection (1) merely having the effect of emphasising that subsection (2) applied to an adjudication under s 265, as well as others. However, modern drafting practice in Queensland is that, where a section has some particular application, that application is defined in the first subsection, in the way used in subsection (1) of s 280. One may compare the terms of s 71, which is a section dealing with the application of a particular part, and the terms of s 77, a section dealing with the application of a particular division of a part. In each case the question of application is dealt with in a separate section. But where the legislature has to deal with the application of only a single section, a separate section is not used, and the application of the section is dealt with in the first subsection.

[32] Another recent Act which illustrates the pattern is the Civil Liability Act 2003. The application of the Act as a whole is dealt with in part 2 of chapter 1. The application of a particular chapter, chapter 3, is dealt with in s 50. The application of a particular part, part 2 of chapter 2, is dealt with in s 28. The application of a particular division, division 4 of part 1 of chapter 2, is dealt with in s 17, and the application of a particular section, for example s 36, is dealt with in s 36(1). In each case the approach is the same, and the wording is similar to that used in s 280(1). It follows in my opinion that the correct construction of s 280 is that it applies, and therefore only applies, to specialist adjudication under s 265. It follows that if s 280(2) does deal with the question of professional costs, the Act provides a power to deal with professional costs in the case of specialist adjudication under s 265, but does not provide a specific power to deal with such costs in the case of a specialist adjudication under s 264, or in the case of a department adjudication. On the other hand, unless s 280 deals with the question of the fee payable to the adjudicator, the specialist adjudication under s 265 is the only type of adjudication for which there is no such provision.

[33] Reference may also be made to the history of the section. The Act as passed in 1997[19] provided for only four dispute resolution processes, then called case management recommendations, but they included both department adjudication and specialist adjudication: s 198(2). Specialist adjudication could occur by agreement of the parties under s 215, or under s 216 if the commissioner thought specialist adjudication was appropriate but there was no agreement, under which circumstances the commissioner would agree with the specialist adjudicator on an amount to be paid for the adjudication, and undertook to pay that amount. Section 226, which applied if the application was referred to specialist adjudication under s 216, provided in subsection (2): "The order of the adjudicator for the application must include an order stating the extent to which each party to the application must reimburse the commissioner for all amounts the commissioner is required to pay for the adjudication." The section then went on to make such amount payable as a debt by that party to the commissioner. It is clear that s 226 dealt with the fee payable to the adjudicator, not the question of professional costs of the parties to the adjudication; there was then no specific provision which dealt with those costs.

[34] Section 280 came into its present form as a result of amendments made by the Body Corporate and Community Management and Other Legislation Amendment Act 2003, which commenced on 4 March 2003. Clause 96 of the Bill for that Act, introduced in 2002, was for the replacement of s 226 with the section that is now s 280. The explanatory notes for the Bill said at p.60: "Clause 96 provides that in respect of an application which must be referred to specialist adjudication, the applicant to the application is liable for the costs of adjudication unless the adjudicator decides otherwise. This is consistent with the existing provisions of the Act concerning disputes which must be the subject of specialist adjudication."

[35] The first sentence of this is entirely unhelpful. The second sentence suggests that what was intended was no change to the existing provision, although it is a little puzzling in that, under the Act as it originally stood, there were no disputes which had to be the subject of specialist adjudication. As I mentioned earlier, under s 216 the commissioner had a discretion to recommend specialist adjudication in certain circumstances in the absence of agreement of the parties. That provision was also replaced, and the explanatory notes deal with that change in relation to clause 87 of the Bill as follows (at pp.57-8): "The existing provision relating to the commissioner having the power to recommend specialist adjudication without the agreement of the parties to an application has been omitted due to problems associated with the commissioner being exposed to the payment of the fees of the specialist adjudicator. This provision has been replaced by a specific identification of the particular disputes which must be resolved by specialist adjudication." The note summarised the particular disputes which would have to be dealt with in that way and then continued: "For applications of this nature, even though the applicant must nominate an appropriate person to act as a specialist adjudicator, the commissioner chooses the specialist adjudicator."

[36] The reference to concern about the commissioner being exposed to payment of fees of the specialist adjudicator suggests that it is unlikely that the legislature intended that after the amendment there be no provision dealing with the question of how the fees of the specialist adjudicator were paid. Yet if the arguments of the appellant is correct, that is the outcome which has been achieved. On the other hand, this indicates that part of the pattern of the 2002 amendments was that the Act would be amended so that there were certain disputes which, as a result of the amendment, must be the subject of specialist adjudication.

[37] Accordingly the last sentence of the memorandum dealing with clause 96 makes sense if it is interpreted as saying that "this will make the provision concerning disputes which must be the subject of specialist adjudication as a result of the amendments made by the Bill consistent with the existing provisions of the Act dealing with specialist adjudication without agreement." Understood in that way, it indicates that s 280 was intended to be consistent in its operation with the former s 226. That suggests that it was intended to deal with the same thing, namely payment of the fee for the adjudicator. The difference of course is that there is no longer a provision making the commissioner initially responsible for payment of the adjudicator's fee, with the party ordered by the adjudicator to pay the fee being required to reimburse the commissioner. That is consistent with the concern about the liability of the commissioner for the fee, and suggests that the legislature contemplated that the adjudicator would be entitled to recover a fee only under s 280, from the applicant unless the adjudicator ordered otherwise. It reveals no intention to introduce a power to deal with legal costs.

[38] The argument for the appellant was that the change in the wording from the former s 226, which clearly referred to the fee payable to the adjudicator, to the wording now used in s 280(2) indicated an intention of the legislature to refer to something different. It is true that there is some presumption to that effect, although there is also authority that it is a fairly weak presumption.[20] In my view however it is a particularly weak presumption when dealing with modern legislation in Queensland.[21] When an Act is being amended, the opportunity is sometimes taken to simplify or modernise the wording, without changing the meaning. In this case I think that the change is more plausibly explained in the way I have indicated.

[39] Senior Counsel for the appellant submitted that the adjudicator erred in saying that there was a policy not to allow parties to recover their costs from other parties in dispute resolution under the Act. However, if s 280 applies only to specialist adjudication under s 265, which I think it does, there is no equivalent provision dealing with other specialist adjudication, or department adjudication (unless there is a general power given to order costs under s 276, which question I will deal with separately). To some extent the matters dealt with by s 265 are special, as recognised in the explanatory memorandum and by the fact that there is a requirement for such specialist adjudication, and they are matters which by their nature would be particularly likely to require the assistance of lawyers, so there may be some justification for a different course being taken. On the other hand, as I have indicated unless s 280 deals with the adjudicator's costs, there is that gap in the legislation as well. In the circumstances I think it most unlikely that that would have been left open.

[40] Although s 48(2)(c) is the only provision in the Act which states expressly that parties bear their own legal costs, that is a provision which can apply to a proceeding in the District Court, and was intended to effect a change in the law in that respect, as shown by p.19 of the explanatory notes dealing with clause 11 which amended s 46; there was concern about people being threatened with orders for costs if they opposed applications, as shown on p.4 of the explanatory notes. That however does not throw any real light on the question of whether ordinarily costs should be payable in respect of dispute resolution procedures under chapter 6. All that can be said is that, with one exception, there is no provision which clearly expressly confers on anyone a power to deal with legal costs in relation to such a dispute resolution procedure, unless s 280 is such a provision.

[41] The one exception is s 270(3) which applies in circumstances where an adjudicator dismisses an application because it appears to the adjudicator that the application is frivolous, vexatious, misconceived or without substance. In such circumstances the adjudicator "may order costs against the applicant to compensate the person against whom the application was made for loss resulting from the application." An example was inserted to make it clear that this was intended to cover legal costs, although it may well also cover other expenses incurred by a respondent. It is however subject to the limitation in subsection (4), that the amount must not be more than $2,000. It would perhaps be a little odd if the power to make an order for costs under s 270 were so limited, but the Act contained elsewhere a power to make an order for costs which was not so limited; a respondent might be disadvantaged by a conclusion that the application was frivolous, vexatious, misconceived or without substance, if the respondent had incurred costs in excess of $2,000. I am not persuaded that the adjudicator's analysis of the Act was wrong.

[42] I was not referred to any decision on the meaning of s 280, and I am not aware of any. Overall, although the considerations are not all one way, my conclusion is that, when s 280 as seen in the context of the legislation as a whole, and in particular of chapter 6 as a whole, and importantly in the light of the legislative history, the reference to "a cost of the adjudication" is properly seen as a reference to the amount payable to the specialist adjudicator, and does not include legal expenses incurred by either party in connection with the adjudication.

[43] This section is the provision which empowers an adjudicator to resolve the dispute. Relevantly it provides in subsection (1) that: "An adjudicator to whom the application is referred may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute ..." The subsection goes on to identify the three kinds of disputes, but it is unnecessary to set out that part. On this basis the adjudicator's power is to make whatever order is just and equitable to resolve the dispute referred to the adjudicator. The section goes on to confirm that the order may require a person to act or prohibit a person from acting in a particular way (subsection (2)), and that the adjudicator may make an order mentioned in schedule 5. Schedule 5 lists 23 examples of orders, although they are not merely typical orders; some of them have qualifications, suggesting that that particular order can be made by an adjudicator only if the adjudicator is satisfied of something. But none of them say anything about legal costs. One of the orders that may be made is an order appointing an administrator: subsection (4), and see order 23 in schedule 5. I accept that the orders in schedule 5 do not limit subsections (1) and (2) of s 276, but that really does not throw any light on the crucial question of whether s 276 confers a power to deal with legal costs.

[44] The term "dispute" is in chapter 6 defined by s 227, but by reference to the particular parties to a dispute, rather than by reference to the subject matter of the dispute. Provided that a dispute is one between the parties identified in s 227, or falls within subsection (2) where there can be an application for a declaratory order about the operation of the Act even if there is no party contending to the contrary, the subject matter is not confined by s 227, but is confined to some extent by reference to subject matter of disputes by s 228, which deals with the chapter's purpose, and by s 276 itself. Section 228 does not deal specifically with the question of legal professional costs, though some of its wording may be thought to be wide enough to encompass disputes about who would pay the costs of the dispute. There is nothing else in the Act which throws any light on the question of whether s 276, when conferring a power in general terms to resolve a dispute, confers a power which extends to making an order dealing with the legal costs of a party to the dispute.

[45] This is not an unfamiliar problem. In Queensland Fish Board v Bunney [1979] Qd R 301 the Full Court had to consider whether a power conferred on the Magistrates Court under the Fish Supply Management Act 1972, in certain circumstances, to "make any other order it considers just" extended to a power to make an order in respect of legal costs of parties to a proceeding. Connolly J with whom the other members of the court agreed at p.303 noted that costs were entirely a creation of statute, and that there were older cases suggesting that a power to award costs must be conferred in express terms, although "the better view would seem to be that the power can be conferred expressly or by necessary implication ... Having regard to this principle, however, the power must at least clearly appear. The language of [the provision quoted] does not in terms refer to costs at all and it contains no clear indication of an intention to confer the power." In Phillips v Morris [1998] QCA 47; [1999] 1 Qd R 89 the Court of Appeal at p.91 said: "There is a body of authority against the implication of the power in a Magistrates Court to award costs, except perhaps incidentally to the prevention of an abuse of its process or otherwise protecting its function as a court." Authority was cited including Queensland Fish Board v Bunney (supra). The passage in Queensland Fish Board v Bunney was also cited with approval in Canceri v Taylor [1994] IRCA 12; (1994) 123 ALR 667 at 672, [22] by Moore J who added that his own review of the authorities led him to the same general conclusion.

[46] I am not aware of any later authority in Queensland to contradict this approach. In my opinion, if a statutory body concerned with resolution of disputes, such as a specialist adjudicator, is to be given power to make an order in relation to legal professional costs of the adjudication, that power must be conferred expressly or clearly appear, and it does not clearly appear merely because the adjudicator is given power in general terms to make such order as may be just and equitable in order to resolve the dispute. To decide otherwise would in my opinion involve departure from an established approach to statutory interpretation which has the approval of the Queensland Full Court and the Queensland Court of Appeal. As counsel for the respondent pointed out, there are plenty of examples where the legislature has expressly conferred a power to deal with costs on statutory tribunals.[23]

[47] As Senior Counsel for the appellant pointed out an inability to order costs may often lead to serious injustice, because of the way in which the proceedings are conducted. Unless the application is dismissed on the ground that it is vexatious etc under s 270, there would be no costs penalty if one party is put to additional legal costs as a result of the conduct of the other. That may well be correct, but is really a reason why the legislature should have provided a power to award costs, as it often has with other tribunals, rather than a reason why a power in general terms should be treated as extending to a power to award costs, contrary to an established approach of statutory construction. Even if it be the case that it is necessarily fair and equitable for a body required to resolve a dispute to have power to deal with legal professional costs incurred by a party to the dispute, it does not necessarily follow that I should assume that that was the legislative intention.[24] It is a matter for the legislature to decide whether or not this power is to be conferred; if it is, that is normally done expressly. Indeed the specific, limited provision in s 270 suggests that ordinarily an adjudicator does not have a power to make an order for costs.

[48] It is true that the adjudicator's powers under s 271(1) include powers which would result in parties incurring costs, though not I think necessarily legal costs. It was submitted that the legislature could not have intended that such costs be incurred and not be recoverable under normal principles, but it seems to me, particularly from an examination of the explanatory notes, that the legislature's principal preoccupation was in avoiding cost to the government of the operation of the dispute resolution procedures under chapter 6.

[49] The other feature which strikes me about the procedure of dispute resolution by an adjudicator is that it is essentially inquisitorial rather than adversarial. Section 269 requires the adjudicator to investigate the application to decide whether it would be appropriate to make an order on the application, rather than to hear and determine a dispute. Section 271 refers to the "investigative powers of an adjudicator". In circumstances where the procedure is essentially inquisitorial rather than adversarial, the legislature may well have taken the view that there was less need for parties to incur legal costs in relation to the investigation, and therefore if parties choose to do so they should be left to bear those costs themselves. There is no particular indication that that was the approach of the legislature, but there is no particular indication to the contrary. This really just shows that the existence of a power to deal with legal professional costs is not in the present circumstances a matter of necessary implication.

[50] There is also the consideration that there is nothing in the Act to indicate how costs are to be fixed or assessed, if an order for costs is made. The Act provides for the enforcement of orders for payment of money by registering the order in the Magistrates Court, after which it may be enforced as a judgment of that court in the exercise of its civil jurisdiction: s 286. But there is no mechanism in that court for the assessment of costs; magistrates assess costs themselves, and give judgment for an amount inclusive of any costs. I suppose an adjudicator could assess the legal professional costs of a party, but it strikes me as a little surprising, if the legislature intended that such orders could be made, that it provided no guidance to an adjudicator as to the basis upon which costs should be allowed.[25] The fact that no guidance was provided in relation to s 270(3) is perhaps of less significance, bearing in mind that there is a statutory cap of $2,000. Although this circumstance is not necessarily inconsistent with a power to award costs, it is the sort of matter one would have expected the legislature to address had there been a legislative intention to confer a power to award costs in the present case.

[51] In all the circumstances, I am not persuaded that the general provision in s 276(1) extends to such a power. In these circumstances it is unnecessary to consider what I should do if persuaded that there was a power to deal with professional costs, but I suspect the appropriate course would be to set aside the decision and refer the order back to the adjudicator with an appropriate direction under s 294(1)(c).

[52] In my opinion the decision of the adjudicator on the question of costs was correct. He had no jurisdiction under the Act to make an order that one party pay the legal costs incurred by another party in connection with the adjudication. For that reason there is no good purpose in allowing an extension of time within which to appeal, and the application for an extension of time is refused.

[1] The relevant provisions are quoted from Reprint No 2 of the Act.

[2] For convenience I shall refer to the parties as appellant and respondent. The appellant was the applicant to the commissioner, and the applicant for an extension of time.

[3] The term is defined in s 227 of the Act.

[4] It is unnecessary to say anything more about the dispute between the parties.

[5] Affidavit of Jenkins filed 11 June 2004, Exhibit A.

[6] Affidavit of Jenkins filed 7 June 2004 para 2.

[9] Affidavit of Jenkins filed 7 June 2004, para 8; for the balance of the paragraph see paras 9-21; affidavit of Jenkins filed 16 April 2004 para 18.

[10] Affidavit of Jenkins filed 7 June 2004, paras 17, 18.

[11] Affidavit of Jenkins filed 7 June 2004, para 21.

[12] Buderim Ginger Ltd v Booth [2002] QCA 177; [2003] 1 Qd R 147 at 156. For the significance of the delay being caused by the lawyers, see also Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 at 190-1; Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441 at 443; Maitland v Nationwide News Pty Ltd [2004] NSWCA 155 at [17].

[13] Affidavit of Wardlar sworn 28 June 2004 and filed by leave.

[14] Affidavit of Djurovitch sworn 25 June 2004 and filed by leave, paras 8, 9.

[15] Affidavit of Jenkins filed 16 April 2004 para 10.

[16] Gallo (supra) at p.459; Wykanak v Rockdale City Council [1999] NSWCA 191 at [8].

[18] See also the part of the Explanatory Note to the 2002 Bill quoted at [35] below.

[20] Pearce and Geddes "Statutory Interpretation in Australia" (5th Ed 2001) at [4.4], [4.5].

[21] Acts Interpretation Act 1954 s 14C. For a specific example of this, see Judicial Review Act 1991 s 16(1).

[22] This is a good example of a case where, for much stronger reasons that appear here, the power did clearly appear.

[23] See for example Commercial and Consumer Tribunal Act 2003, s 71; Industrial Relations Act 1999, s 335; Anti Discrimination Act 1991, s 213.

[24] The legislature certainly did not think that in relation to applications under s 48 of the Act.

[25] Contrast Anti-Discrimination Act 1991 s 213(2). The Building Tribunal used to assess costs by reference to the scale applicable to the court appropriate for the amount in dispute.