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- Unreported Judgment
Turner v Macrossan & Amiet Pty Ltd (No 2)  QCAT 255
MARKIS SCOTT TURNER
MACROSSAN & AMIET PTY LTD
(ACN 131 659 384)
Occupational Regulation Matters
3 February 2016
5 February 2016
IT IS THE DECISION OF THE TRIBUNAL THAT:
PROFESSIONS AND TRADES – LEGAL PRACTITIONERS – COSTS AGREEMENTS – COSTS ORDER – where the applicant was unsuccessful in his claim to set aside a legal costs agreement under s 328 of the Legal Profession Act 2007 (Qld) – where the respondent filed an application for costs to be assessed on the scale of the Supreme Court – where the respondent claimed that the Tribunal had general jurisdiction to award costs under s 328(9A) of the Legal Profession Act 2007 (Qld) – whether the respondent should receive a favourable order of costs – whether costs should be ordered on the Supreme Court scale.
Body Corporate and Community Management Act 1997 (Qld), s 270
Health Practitioner Regulation National Law Act 2009 (Qld), s 195
Legal Profession Act 2007 (Qld), s 328
Queensland Building and Construction Commission Act 1991 (Qld), s 77
Queensland Building Services Authority Act 1976 (Qld), s 77
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 6(2), 8, 32, 100, 102, sch 3
Queensland Civil and Administrative Tribunal Rules 2009 (Qld)
Lyons v Dreamstarter Pty  QCATA 071
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)  QCAT 412
Samimi v Queensland Building Services Authority  QCAT 133
Tamawood Ltd & Anor v Paans  QCA 111
APPEARANCES and REPRESENTATION: Applications determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the “QCAT Act”).
REASONS FOR DECISION
- This is an application for costs in respect of an unsuccessful application by the applicant under s 328 of the Legal Profession Act 2007 (Qld) to set aside a legal costs agreement. The decision was handed down on 5 January 2016.
- The applicant submits that s 100 of the QCAT Act requires the parties to sustain their own costs, unless, in accordance with s 102 of the Act, the interests of justice require otherwise. The applicant submits the circumstances of OCL007-15 are unexceptional, and thus no costs order should be made by the Tribunal.
- The Tribunal observes that s 100 of the QCAT Act provides that:
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. (emphasis added)
- As correctly submitted by the respondent, the second disjunctive clause within the statement qualifying the general rule expressed in s 100 indicates that the general rule may be displaced by an enabling Act.
- Section 6(2) of the QCAT Act defines an “enabling Act” as including:
… an Act, other than this Act, that confers original, review or appeal jurisdiction to the Tribunal.
- The respondent places reliance on the decision of Lyons v Dreamstarter Pty  QCATA 071, where Justice Wilson held, at -, that:
As the learned Deputy President also identified, this is what ss 6 and 7 of the QCAT Act which must therefore be read, with any necessary changes, as if the modifying provision was part of the QCAT Act…
The effect, as the learned Deputy President went on to say, is to give QCAT a broad general power to award costs in cases caught by these enabling provisions which, in the case of s 77(2)(h), is to be exercised ‘judicially’. (footnotes omitted) (emphasis original)
- The respondent also identifies other legislation with prevailing costs provisions, including the Health Practitioner National Law Act 2009 (Qld) and the Body Corporate and Community Management Act 1997 (Qld).
- The problem for the respondent is that the legislative framework in Dreamstarter is quite different to that provided under the Legal Profession Act 2007 (Qld).
- Section 77(2)(h) of the Queensland Building Services Authority Act 1976 (Qld) (repealed, now s 77(3)(h) of the Queensland Building and Construction Commission Act 1991 (Qld)) provided that:
- (2)Without limiting the tribunal’s powers to resolve the dispute, the tribunal may exercise 1 or more of the following powers:
- (h)award costs.
- Section 195 of the Health Practitioner Regulation National Law Act 2009 (Qld) provides that:
The responsible tribunal may make any order about costs it considers appropriate for the proceedings.
- Section 270 of the Body Corporate and Community Management Act 1997 (Qld) provides that:
- (1)The adjudicator may make an order dismissing the application if:
- (c)it appears to the adjudicator that the application is frivolous, vexatious, misconceived or without substance...
- (2)If the adjudicator makes an order under subsection (1)(c), the adjudicator –
- (a)may order costs against the applicant...
- (3)The total amount of costs ordered under subsection (3) must not be more than $2000.
- As is clear from Dreamstarter, the Queensland Building Services Authority Act 1976 (Qld) established a separate system for costs to that of the QCAT Act. It provided a separate and independent power, incorporated into the QCAT Act, to the ordinary provisions under the QCAT Act providing for costs. The same analysis applies to the Health Practitioner Regulation National Law Act 2009 (Qld) and Body Corporate and Community Management Act 1997 (Qld).
- In contrast, s 328(9A) of the Legal Profession Act 2007 (Qld) provides that the Tribunal “may make a costs order under the QCAT Act in relation to a hearing under this section.” This phrasing is different to that of the Queensland Building Services Authority Act 1976 (Qld) and other cognate statutes, and that of the Supreme Court under s 328(9) of the Legal Profession Act 2007 (Qld).
- Section 328(9A) of the Legal Profession Act 2007 (Qld) subjugates the clause “may make a costs order” to the clause “QCAT Act in relation to a hearing under this section” using the preposition “under”.
- In this context, the word “under” means “with reference to” or “beneath”, and denotes a position of subordination of the power to award costs relative to the QCAT Act. No such subordination or subjection takes place in the other statutes advanced by the respondent as a comparator to s 328(9A).
- If one were to adopt the practice commended by Justice Wilson in Dreamstarter, the effect would be circuitous. It would be such to read s 328(9A) of the Legal Profession Act 2007 (Qld) which refers to the ordering of costs “under the QCAT Act” as part of the QCAT Act, which would have the strange effect of referring the reader iteratively back to the QCAT Act.
- To avoid this bizarre or outlandish result, it is proper to construe s 328(9A) of the Legal Profession Act 2007 (Qld) in accordance with its natural and ordinary meaning, which is not as conferring a discrete and independent power to award costs, as it would under the other legislation described earlier, but to refer the reader to the power to award costs under the QCAT Act.
- This creates a conceptual dichotomy between modifying costs powers, which are provisions conferring an independent jurisdiction to award costs which has the effect of changing the costs powers under the QCAT Act, with referential costs provisions, which permits the invocation of the costs powers under the QCAT Act to the circumstances described in the enabling legislation.
- The respondent might respond that this would have the effect of rendering s 328(9A) of the Legal Profession Act 2007 (Qld) nugatory or redundant, because the Tribunal is vested with such powers under the QCAT Act. As the Parliament should not be assumed to intend statutory redundancies, it would follow that the respondent’s construction should be preferred.
- The limitation of this argument is s 328(8) of the Legal Profession Act 2007 (Qld), which provides that:
The Supreme Court may order the payment of the costs of and incidental to a hearing under this section.
- It could not sensibly be contended that the Supreme Court of Queensland, a superior court of record of plenary jurisdiction, would not have inherent or general statutory powers, apart from s 328(8) of that Act, to order costs. This provision is clearly also, on a strict analysis, superfluous.
- It is also significant that the language used to describe the power in s 328(9A) is no mere replication of the terminology utilised in s 328(8) of the Act. It would be an extraordinary result if, notwithstanding the bifurcation of the provisions and differences in locution, the scope of the costs power of the Tribunal under s 328(9A) was identical to that of the Supreme Court under s 328(8).
- The legislative surplusage of s 328 of the Legal Profession Act 2007 (Qld) would be difficult to explain, were it not for the fact that it is consumer protection legislation. Such clauses assist in ensuring readers, who may not possess an intimate knowledge of law, understand the scope of the powers of the Tribunal or Supreme Court. The provisions also assist in dispelling doubt as to the power to award costs in the Supreme Court and Tribunal in respect of such matters.
- Accordingly, s 328(9A) is declaratory in nature. It has the effect of declaring the existence of the power to order costs, and refers the reader to the costs system prescribed under the QCAT Act. Therefore, notwithstanding s 328(9A) of the Legal Profession Act 2007 (Qld), the starting point for any analysis of the power to order costs is the ordinary jurisdiction of QCAT.
- The QCAT Act provides that each of the parties should, as a general rule, bear their own costs. However, the Tribunal may make an order requiring a party to pay all or part of the stated costs of another party to a proceeding if the Tribunal considers the interests of justice require it to make such an order.
- 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.
- This jurisdiction, of course, must be exercised judicially. Albeit vague, notions such as “interests of justice” are no excuse for the selective invocation of the idiosyncratic or personal values or beliefs of the decision-maker. The power to order costs proceeds from the fount of law; the source of that which is regular should not also be the source of that which is capricious.
- Accordingly, the decision-maker must properly consider that the Parliament has prescribed that each party bears their own costs. There must be some aspect or feature of the case, which does not appear within the ordinary category of such matters, that justifies a departure from the common rule.
- Certain factors relevant to determining the “interests of justice” are enumerated in s 102(3) of the QCAT Act. The following non-exhaustive features are of significance in this case:
- In respect of the former consideration, the procedural and jurisdictional matters raised in the proceedings were of some intricacy, novelty and convolution. In respect of the latter, notwithstanding the procedural and jurisdictional matters, the respondent had a cogent response to the claim brought by the applicant.
- It is significant that the legal complexity of the matters involved in the application required legal representation. In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)  QCAT 412, Wilson J held at  (citing the reasons for decision of Keane J in Tamawood Ltd & Anor v Paans  QCA 111,  with apparent approval) that:
… where the complexity of the matter justified legal representation, it would not be in the interests of justice to bar the successful party from recovering costs that were reasonably necessary to achieve a satisfactory outcome.
- This principle, however, should be treated with some circumspection. As held by Member Fitzpatrick in Samimi v Queensland Building Services Authority  QCAT 133, :
However, I do not think that just because it is reasonable to be legally represented, that costs must necessarily follow without some other compelling reason, such as a party being deprived of an award by the need to pay legal costs...
- The Tribunal is of the view that legal representation was required to ensure that the respondent secured a just result, having regard to the matters in dispute. Although this finding is not conclusive, it remains a significant factor in resolving the subject matter of the costs application.
- On balance, the novelty and complexity of the proceedings, relative strength of the respondent’s case and weakness of the applicant’s claim, and the fact that legal representation was required to achieve a just result, militate strongly in favour of ordering costs in favour of the respondent.
- The respondent submits that, because the Tribunal possesses jurisdiction co-extensive with that of the Supreme Court, costs should be ordered on the scale of the Supreme Court.
- This conclusion does not follow, as a matter of legal principle or logic, from its premise. The mere fact that the applicant might have elected to originate proceedings in the Supreme Court does not, on its own, require the finding that the Tribunal should order costs on the Supreme Court scale. Indeed, the applicant’s decision to file proceedings in the Tribunal, an economic and informal jurisdiction, is a factor militating in favour of a more parsimonious costs order.
- The Tribunal is of the view that the fact that the dispute falls within the monetary jurisdiction of the Magistrates Court, the applicant commenced proceedings in the Tribunal rather than the Supreme Court, and this matter has been determined on the papers, cogently indicates that the appropriate scale on which costs should be ordered is that of the Magistrates Court.
- In such circumstances, the respondent should be awarded its costs of and incidental to the proceedings, to be assessed in accordance with the Magistrates Court scale of costs.
- The applicant must pay the respondent its costs of and incidental to the proceeding, to be assessed in accordance with the Magistrates Court scale of costs.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102(1). Note that, under s 102(2), the Tribunal may only order certain costs prescribed under the QCAT Rules if the matter is a minor civil dispute proceeding. See s 8 and Schedule 3 of the QCAT Act for the definition of “minor civil dispute”. As a category of “minor civil dispute” enumerated under the definition, the statutory constraints on awarding costs in minor civil dispute proceedings prescribed under the QCAT Rules have no application.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102(3)(b).
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102(3)(c).
- Published Case Name:
Turner v Macrossan & Amiet Pty Ltd (No 2)
- Shortened Case Name:
Turner v Macrossan & Amiet Pty Ltd (No 2)
 QCAT 255
05 Feb 2016