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  • Unreported Judgment

AIC Gold Coast Pty Ltd v Queensland Building and Construction Commission

 

[2020] QCAT 9

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

AIC Gold Coast Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 9

PARTIES:

AIC Gold Coast Pty LTd

 

(applicant)

 

v

 

Queensland building and construction commission

 

(respondent)

APPLICATION NO/S:

OCR 301-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

9 January 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Paratz

ORDERS:

  1. The application for costs filed by AIC Gold Coast Pty Ltd on 28 July 2019 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL –where an application for costs was made following a reconsideration by the decision-maker – whether the interests of justice require a costs order to be made

Queensland Building and Construction Commission Act 1991 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100, s 102

Arcon Constructions Pty Ltd v Queensland Building Services Authority [2013] QCAT 573

Ezra Constructions Pty Ltd & Ors v Queensland Building and Construction Commission & Ors [2019] QSC 47

Queensland Building and Construction Commission & Ors v Ezra Constructions Pty Ltd & Ors [2019] QCA 304

REPRESENTATION:

 

Applicant:

Mr J.A.S. Ford of Counsel, instructed by JML Rose, Solicitors

Respondent:

Legal Services, Queensland Building and Construction Commission

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

 

REASONS FOR DECISION

  1. [1]
    This matter has a long history. It has now been resolved for practical purposes, and an issue as to costs remains.
  2. [2]
    AIC Gold Coast Pty Ltd is a building company (‘the Company’). The Queensland Building and Construction Commission (‘the QBCC’) have issued three sequential decisions relating to the Company. The Company applied for a Review in the Tribunal of the first two decisions, and the third decision has effectively resolved the matter.
  3. [3]
    The Company has unsuccessfully applied on two previous occasions for costs, whilst the issues were still on foot. The Company filed this Application for miscellaneous matters on 28 July 2019, seeking an order that the QBCC pay the Company’s costs of the proceeding.

History of the matter

  1. [4]
    It is convenient to set out in full the chronology prepared by the Company which was attached to the Application to Review filed on 22 December 2017:
    1. Mr James Lionel Vallis was appointed as a director of PMQS Pty Ltd (‘PMQS’) on 19 June 2007 and remained a director until 23 August 2015 when PMQS was deregistered.
    2. Mr Vallis was appointed as a director and secretary of Austval Pty Ltd (‘Austval’) on 3 December 2013 and remained as director and secretary until 7 April 2017 when Austval was deregistered.
    3. Mr Nigel Markey and Mr Bradley Hellen of Pilot Partners were appointed liquidators of PMQS on 17 June 2014.
    4. Mr Markey and Ms Ann Fordyce of Pilot Partners were appointed liquidators of Austval on 29 July 2016.
    5. Mr Vallis was appointed as a director of the Company on 18 January 2017 and secretary on 30 June 2017. He continues to hold those offices.
    6. The Company holds a building licence. Mr Vallis does not.
    7. On 20 October 2017, Mr Darryl Miller from the QBCC issued, by letter, a notice of proposed reasons to cancel the building licence of the Company.
    8. The decision to issue that letter was related to Mr Vallis’ previous involvement with PMQS. On 20 October 2017, Mr Miller also issued a letter to Mr Vallis. It set out why Mr Miller considered Mr Vallis to be an excluded individual. The reason given was that the appointment of Pilot Partners as liquidators to PMQS was a ‘relevant company event’ for the purpose of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’).
    9. On 20 October 2017, Mr Miller from the QBCC issued, by letter, a notice of proposed reasons to cancel the building licence of the Company in relation to Mr Vallis’ relationship with Austval.
    10. The decision to issue that letter was related to Mr Vallis’ previous involvement with Austval. On 20 October 2017, Mr Miller also issued a letter to Mr Vallis. It set out why Mr Miller considered Mr Vallis to be an excluded individual. The reason given was that the appointment of Pilot Partners as liquidators to Austval was a ‘relevant company event’ for the purpose of the QBCC Act.
    11. The Company, by its solicitors, sought to have the decisions of Mr Miller reviewed.
    12. The decisions were reviewed and decision reference number SF00000000325751 was delivered by letter dated 11 December 2017, including reasons.
  1. [5]
    The decision of the QBCC made on 11 December 2017 was an internal review decision ('the first decision'), and determined that the Company was an excluded company. The decision-maker was Ms Debbie White, a Senior Internal Review Officer.
  2. [6]
    The decision notice of 11 December 2017noted[1] that it was submitted, on behalf of the Company, that Mr Vallis should not be considered an excluded individual as:
    1. (a)
      more than three years had elapsed since liquidators were appointed to PMQS on 17 June 2014; and
    2. (b)
      Austval was not a construction company and did not undertake building work.
  3. [7]
    Ms White determined that she was unable to consider the consideration of Mr Vallis as an excluded individual, and therefore had to find that the Company was an excluded company:[2]

Subsequently, as Mr Vallis is not a QBCC licensee, I have no jurisdiction or legislative power to consider the agent’s submissions that Mr Vallis is not an excluded individual. Therefore the only matter I am able to consider is whether or not the review applicant is an excluded company.

In this circumstance, I have not received any evidence to confirm that Mr Vallis is no longer a director, secretary or influential person for the review applicant and while Mr Vallis continues to be a director, secretary or influential person for the review applicant, the only decision available to me is to determine that the review applicant is an excluded company.

  1. [8]
    The parties filed material in accordance with directions of the Tribunal, and the Application to Review was listed for hearing in Brisbane on 22 and 23 November 2018. That hearing was vacated at a Directions Hearing held on 5 November 2018. A hearing was subsequently held on 21 February 2019.
  2. [9]
    At the hearing on 21 February 2019, directions were made inviting the QBCC to reconsider its first decision, and for the QBCC to advise the Tribunal and the Company as to the outcome of the reconsideration.
  3. [10]
    The QBCC made a further decision on 21 March 2019 (‘the second decision’). At a Directions Hearing held on 16 April 2019, it was directed that the Application to Review a decision was taken to be a review of the decision made on 21 March 2019.
  4. [11]
    The second decision was made by Ms White, Senior Internal Review Officer, as follows:[3]

I have decided to:

  • set aside my decision of 11 December 2017 to determine that the review applicant is an excluded company.
  • substitute a new decision to determine that the review applicant is an excluded company.
  1. [12]
    The reasons and conclusion for the second decision were as follows:[4]

I have reconsidered the decision and confirm that I have received verification to confirm that the review applicant no longer has a director or secretary that is currently an excluded individual.

However, on 27 February 2019, QBCC requested information from the review applicant to demonstrate that Mr James Lionel Vallis is no longer influential in the affairs of the company. No response was received from the review applicant and therefore on 8 March 2019, QBCC served a document production notice under s 105Q of the Act.

On 14 March 2019, the review applicant (via its solicitor) responded to the s. 105Q notice, requesting an extension to provide the documents. An extension was granted until close of business 19 March 2019. At 9:58 pm, on 19 March 2019, the review applicant (via its solicitor) provided QBCC with a copy of its Constitution and a link to a bundle of redacted company documents which QBCC has been unable to access.

As the information provided is unable to be accessed or reviewed, and as no submission has been provided to verify that Mr Vallis is not currently an influential person for the review applicant, I have decided to determine that the review applicant is an excluded company.

Conclusion

In accordance with s. 23 (4) of the QCAT Act, this new decision is taken to be the reviewable decision under the QCAT Act and the QBCC Act, and the applicant’s external review must continue for the reviewable decision unless the applicant for the external review withdraws the application for review.

  1. [13]
    Directions were given on 30 April 2019, in an ‘on the papers’ hearing as to an Application for miscellaneous matters filed 29 April 2019, that the QBCC was invited to reconsider the decision made on 21 March 2019.
  2. [14]
    The QBCC made a further decision on 28 May 2019 (‘the third decision’), which was as follows:[5]

I have decided to:

  • set aside my decision of 21 March 2019 to determine that the review applicant is an excluded company.
  • substitute a new decision to determine that the review applicant is not an excluded company.
  1. [15]
    The reasons and conclusion for the third decision were as follows:[6]

Reasons

I have reconsidered the decision and based upon the evidence before me, as there is insufficient evidence to confirm that Mr James Lionel Vallis is influential in the affairs of the company and as I have received verification to confirm that the review applicant no longer has a director or secretary that is currently an excluded individual, I am satisfied that the review applicant is not an excluded company.

Conclusion

In accordance with s. 23 (4) of the QCAT act, this new decision is taken to be the reviewable decision under the QCAT Act and the QBCC Act, and the applicants external review must continue for the reviewable decision unless the applicant for the external review withdraws the application for review.

  1. [16]
    At a Directions Hearing held on 16 July 2019 it was directed that the Application to Review a decision was to be taken to be an Application to Review the decision dated 28 May 2019. Directions were also given for the filing of submissions in relation to an anticipated costs application, and for the hearing of the application for costs on the papers.
  2. [17]
    The Senior Member who conducted the Directions Hearing on 16 July 2019 noted that the Company indicated an intention to withdraw the Application to Review in light of the third decision.
  3. [18]
    The Company has not yet withdrawn the Application to Review, but no advice has been received from the Company since that time indicating that is not still its intention.
  4. [19]
    This is the decision as to the costs application filed on 28 July 2019.

Submissions of the Company

  1. [20]
    The Company filed submissions on 9 August 2019, and submissions in reply on 3 September 2019.
  2. [21]
    The Company noted that the Application for costs is made on the following bases:[7]
    1. (a)
      QBCC was doomed to fail, even before it remade the review decision; and
    2. (b)
      QBCC, by its conduct during the proceedings, unnecessarily disadvantaged and created additional costs for the Company.

‘Doomed to fail’

  1. [22]
    The Company notes that liquidators were appointed to Austval on 29 July 2016, and that at that time, the relevant QBCC Act was the version current as at 24 March 2016[8]. It refers to section 56AG(1) which provided that the section applies ‘if the commission considers that a company that is a licensee is an excluded company’.
  2. [23]
    The Company notes that section 56AC(2)(a) stated that it applies to an individual if ‘a construction company’ has a liquidator appointed; and that by section 56AC(6) a company is an excluded company ‘if an individual who is a director or secretary of, or an influential person for, the construction company is an excluded individual for a relevant event’.
  3. [24]
    The Company submits that wording is substantively the same as the current version of the QBCC Act (current from 1 January 2019); and that a key requirement of the definition of ‘excluded individual’ in section 56AC(2)(a) is that the company of which the relevant individual was a director, secretary or influential person, was a construction company.[9]
  4. [25]
    The Company submits that despite the ‘construction company’ element being a clear requirement for the QBCC’s decision, there was no evidence placed before the tribunal that Austval was a construction company[10]. It notes that the matter was listed for hearing on 21 February 2019, and that even by that time, there was no evidence placed before the tribunal that Austval was a ‘construction company’ within the meaning of the QBCC Act.
  5. [26]
    The Company submits that the tribunal could not have found that, under section 56AG, the Company was an excluded company because of Mr Vallis’ directorship of Austval; and that as related to the Austval decision, the QBCC’s case was not only weak, but doomed to fail.[11]
  6. [27]
    As to the ‘PMQS decision’, the Company submits that Mr Vallis was a director of PMQS Pty Ltd between 19 June 2007 and 23 August 2015; that liquidators were appointed to that company on 17 June 2014; and that at that time the relevant QBCC Act was the one current on 1 December 2013.
  7. [28]
    The Company submits that the QBCC Act as at 1 December 2013 required notice to be given to the company that its relevant ‘excluded individual’ might apply to be characterised as a ‘permitted individual’.
  8. [29]
    The Company refers to the recent decision in Ezra Constructions Pty Ltd & Ors v Queensland Building and Construction Commission & Ors[12] (‘Ezra’) and submits that Boddice J determined that:[13]
    1. (a)
      the Amendment Act (which commenced operation on 1 July 2015) took away a substantive right to apply to be made a permitted individual;
    2. (b)
      there was a presumption that the Amendment Act was not to have retrospective operation;
    3. (c)
      so the QBCC was obliged to give the relevant written notice that the excluded individual may apply to be categorised as a permitted individual for the relevant event;
    4. (d)
      that as the commission did not include that written notice in its notice to the building company, the notice given was not valid; and
    5. (e)
      the court therefore exercises jurisdiction to set aside the invalid notice.
  9. [30]
    The Company submits that the same reasoning applies as to the PMQS ‘excluded company’ notice which arose from pre-amendment act events, but was issued post- amendment act; and that following the reasoning in Ezra, the tribunal could not have upheld the QBCC’s decision based on the invalid PMQS notice.
  10. [31]
    The Company notes that the Ezra decision was delivered on 12 March 2019, which was after the matter was listed for hearing for 21 February 2019, but before the respondent remade its decisions on 21 March 2019 and 28 May 2019.[14]
  11. [32]
    The Company submits that had the QBCC considered Ezra before it made its decision of 21 March 2019, its remade decision ought to have been that as the original decision was founded on an invalid notice, it had no authority to make the original decision, and so should have withdrawn its original decision.[15]
  12. [33]
    The Company submits that both parts of the reviewable decision, both the Austval and PMQS decisions, were doomed to fail.[16]
  13. [34]
    The Company refers to Arcon Constructions Pty Ltd v Queensland Building Services Authority[17] where the tribunal awarded costs against the QBCC on the basis that while the review proceedings were in progress, a relevant decision of the Supreme Court was made which should have caused the authority to withdraw its decision:

[4] While the review proceedings were making their way through the tribunal, on 14 March 2013 the decision of the Supreme Court in McNabb Constructions Australia Pty Ltd v the Queensland Building Services Authority was handed down…

and

[29] Once McNabb was handed down, the merits of resisting the review proceedings were zero. The QBSA prevaricated in facing the inevitable in these proceedings. What should have happened is that soon after McNabb was published and certainly by 9 April 2013 when prompted by Arcon’s solicitors to do so, the decision to issue the scope of works should have been reversed and the scope of works should have been withdrawn. Instead, the scope of works was only withdrawn two months later. As a result Arcon was unnecessarily disadvantaged because it incurred further legal expense. Arcon had no choice but to incur that further legal expense since it had to comply with the orders of the tribunal and to continue to prosecute the review proceedings. In the circumstances I regard it as in the interests of justice to make an order for costs in Arcon’s favour in relation to the costs incurred after 9 April 2013. This is because I regard the circumstances as pointing so compellingly to a costs award that they overcome the strong contra-indication against costs orders in section 100 of the QCAT act.

QBCC’s conduct of the matter’

  1. [35]
    The Company submits that the QBCC’s conduct of the proceedings has prolonged them, created additional and unnecessary costs for the Company, and at times risen to a vexatious level.[18]
  2. [36]
    The Company refers to conduct of the QBCC which should be considered in terms of the section 102(3) factors of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) as to awarding costs:
    1. (a)
      Requiring the Company to submit its internal management accounts, which it did on 14 June 2018, and the QBCC then immediately on 15 June 2018 issuing a notice of a compliance audit, apparently on the basis that the Company’s ‘current ratio’ was 0.98:1 as opposed to a minimum 1:1.
    2. (b)
      The QBCC brought on two apparently unnecessary applications to file its evidence, requesting two extensions for material originally directed to be made at a Directions Hearing on 2 January 2018, and ultimately producing only a perfunctory statement of evidence on 20 December 2018. It contends that:[19]

[73] It is clear that the (QBCC) twice failed to comply with tribunal orders, and brought on unnecessary applications for more time. This created delays and additional costs of (the Company) who was naturally required to respond to those applications.

  1. (c)
    The QBCC is familiar with the Tribunal’s practices and procedures, and as a model litigant and experienced party in the Tribunal, the QBCC ought not to have conducted itself or the proceedings as it did.[20]
  2. (d)
    There is an obvious disparity in the financial resources of the parties between the private trading company and the QBCC which is a state funded litigant.
  3. (e)
    That with the third decision, the Company was successful in the proceeding, and that even if the decision had not been remade, the Company would also have succeeded.
  1. [37]
    The Company summarises its submissions in support of an award of costs as being that the QBCC:[21]
    1. (a)
      was doomed to fail;
    2. (b)
      delayed proceedings unnecessarily;
    3. (c)
      appeared to target the Company during proceedings with financial audits;
    4. (d)
      disingenuously remade a decision for which it did not have authority because of an invalid notice;
    5. (e)
      not behaved as a model litigant; and
    6. (f)
      clearly increased unnecessarily the Company’s costs.

Submissions of the QBCC

  1. [38]
    The QBCC filed submissions in response on costs on 19 August 2019.
  2. [39]
    The QBCC opposes the costs application on the grounds that there is no basis for awarding costs and further it is not a matter where the interests of justice require the tribunal to override the strong statutory mandate that each party to a tribunal proceeding bear its own costs.[22] It also notes that this is the third application for costs made by the Company, which it submits is on an almost identical basis.[23]
  3. [40]
    The QBCC submits what it says is relevant information in its submissions. It is convenient to note that information as follows:[24]
    1. On 30 October 2018, the (Company) applied to vacate a final hearing listed for 22 to 23 November 2018. The (QBCC) did not oppose the application.
    2. On 21 November 28, the (Company) notified (QBCC) that it did not intend to file any evidence in the proceedings. The (QBCC) filed its evidence (namely, the statement of Ms White) on 20 December 2018.
    3. On 13 December 2018, the (Company) filed a miscellaneous application (‘first application’) for costs and an order pursuant to section 48(2)(b)(i) of the QCAT Act. On 15 January 2019, Senior Member Aughterson refused the first application. In these reasons, the Senior Member set out the timeline of the proceedings and found that:
  1. (a)
    the (QBCC) did not fail to comply with the Tribunal directions;
  2. (b)
    the (QBCC) did not act in a way that would attract application of the provisions of section 48(1) of the QCAT Act; and
  3. (c)
    the (Company) had provided no detail about how, and to what, extent the (Company) had been disadvantaged.
    1. By miscellaneous application dated 3 January 2019 (‘second application’), the (Company) again requested costs and an order pursuant to section 48(2)(b)(i) of the QCAT Act. Senior Member Aughterson identified that the second application was in the same terms as those of the first application, but for the (Company’s) erroneous assertion that the (QBCC) had failed to comply with Directions of the tribunal to file its material by 2 January 2019.
    2. On 17 January 2019 Senior Member Aughterson refused the second application, and found that:

‘The (QBCC) filed its material in the Tribunal on 20 December 2018. It is noted that the covering letter to that material indicates a copy of the material was sent by email to the (Company’s) solicitors. The given email address on that letter is the same as the email address shown on email correspondence received by the Tribunal from the (Company’s) solicitors.’

  1. Senior Member Aughterson goes on to say at paragraph [5] ‘even if the (Company) did not receive that material by the due date because of an oversight or other administrative error that would not warrant the making of the orders sought by the (Company)’.
  2. By email dated 18 January 2019, the (Company’s) solicitor conceded it had been provided the (QBCC’s) material, by email dated 20 December 2018.

By email dated 4:58pm on 20 February 2019, the (Company) provided the (QBCC) with an affidavit informing that Mr Vallis had resigned as director of the Company. This letter was served on the (QBCC) during the morning of the final hearing during the (Company’s) opening submissions. The (QBCC) was taken by surprise by this evidence, which was filed late and without the leave of the tribunal.

  1. Based on the fresh evidence, the (QBCC) made an application for the tribunal to revert the decision back for reconsideration. By Directions made at the hearing on 21 February 2019, the tribunal invited the (QBCC) to reconsider its decision by 21 March 2019.
  2. By letter dated 27 February 2019, the (QBCC) requested information from the (Company) relating to control of the Company. No response was received. On 8 March 2019, pursuant to section 105Q of the QBCC Act, the QBCC served a document production notice requiring the same information.
  3. By letter dated 14 March 2019, the (Company) requested an extension to comply with the document production request. The (QBCC) extended the time to comply until close of business 19 March 2019. At 9:58pm on 19 March 2019, the (Company) sent the (QBCC) a copy of the Company constitution and an Internet link to a bundle of documents. That link was not accessible by the (QBCC).
  4. Accordingly, on 21 March 2019, the (QBCC) reconsidered its decision based on the information it had at hand. The (QBCC) notified the (Company) of the decision the same day (‘first reconsideration’). Attached hereto and marked annexure D is a copy of the first reconsideration.
  5. By letter dated 22 March 2019, the [Company) provided the (QBCC) with a USB containing voluminous documents relating to control of the (Company).
  6. By email dated 4 April 2019, the (Company) notified the (QBCC) that it intended to proceed with the review application. By miscellaneous application dated 29 April 2019, the (QBCC) requested the tribunal revert the decision of 21 March 2019, back for reconsideration.
  7. On 30 April 2019, the tribunal invited the (QBCC) to reconsider its decision made 21 March 2019, by 28 May 2009. The (QBCC) considered the fresh information contained in the USB and made the second reconsidered decision (second reconsideration) on 28 May 2019. Attached hereto and marked annexure E is a copy of the second reconsideration.
  8. By Directions dated 16 April 2019, the proceedings were scheduled for a Directions Hearing on 16 July 2019. On 16 July 2019, the Tribunal directed that the (Company) file submissions in report of their costs application by 26 July 2019. The (QBCC) received the submissions by email dated 9 August 2019 (being some two weeks late).
  9. The costs submissions are largely in the same terms as the first and second application, which have already been dismissed by Senior Member Aughterson.
  1. [41]
    The QBCC submits that the Company’s submission that the QBCC’s case in the proceeding ‘was doomed to fail’ cannot be sustained in circumstances where the Company only adduced evidence that the excluded individual, Mr Vallis, had been removed as a director on the day of the hearing.[25]
  2. [42]
    The QBCC rejects any allegation that the compliance audit was vexatious, and submits such matters are irrelevant and simply cannot sound in costs in this proceeding.[26]
  3. [43]
    The QBCC submits that any delays in the proceedings were caused by the Company’s conduct:
  1. (a)
    delayed adduced evidence of, or in fact giving any notice of, the decision to remove Mr Vallis as director until 20 February 2019, being the evening before the final hearing;
  2. (b)
    failed to provide to the [QBCC] information relevant to control of the Company to enable the commission to carry out a reconsideration of the original decision; and
  3. (c)
    delayed in providing information to the [QBCC] as required by the section 105Q document production notice.
  1. [44]
    The QBCC submits that it met its obligations under the QBCC Act, and that it was not unreasonable for it to act on the information it had been provided, particularly given the speed with which it remade its decision when additional information was provided on 21 February 2019 and 22 March 2019.[27]
  2. [45]
    The QBCC submits that the proceeding was relatively short, considering the fact two hearing dates were scheduled, and the Company sought and was granted extensions to file its evidence, and requested further delays to facilitate a right to information request made to the QBCC.[28]
  3. [46]
    The QBCC submits that despite now claiming the QBCC’s decision was ‘doomed to fail’, the Company has now removed Mr Vallis as director rather than proceed to a final hearing which could have finally determined the legal issues raised for the first time in its costs application.[29]
  4. [47]
    The QBCC submits that this is not a case where an application for costs has been made following a final determination in a proceeding party’s favour, but rather these proceedings have yet to be finally determined, and it cannot be said that the QBCC’S case was without merit.[30]
  5. [48]
    Further, the QBCC submits that the costs application is premature and should be dismissed until the proceedings are finalised, by way of a final hearing or the Company withdraws their application.

 

Discussion

  1. [49]
    Section 100 of the QCAT Act provides that each party usually bears their own costs for the proceeding. The tribunal may however 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, under section 102(1) of the QCAT Act, if the tribunal considers the interests of justice require it to make the order.
  2. [50]
    Section 102(3) of the QCAT Act sets out a number of matters which the tribunal may have regard to in deciding whether to award costs in the interests of justice. Matters under that subsection which have particular relevance in this proceeding include the following:
  1. (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)

.....

  1. (d)
    for a proceeding for the review of a reviewable decision –
  1. (ii)
    whether the applicants generally attempted to enable and help the decision-maker to make a decision on the merits

…..

  1. (f)
    anything else the tribunal considers relevant
  1. [51]
    The Application to Review was filed on 22 December 2017. These proceedings have therefore been on foot for 2 years.
  2. [52]
    The Company has rigorously maintained that the proceedings were without merit, and has sought costs on two previous occasions. The mere fact that costs have previously been sought and not allowed, is not determinative.
  3. [53]
    It is usual for a costs application to be brought at the conclusion of proceedings, unless it is a discrete interlocutory application which is seen as a self-contained step. Costs may be awarded at any stage of a proceeding, or after the proceeding has ended.[31]
  4. [54]
    This matter has not eventuated to being heard on the merits.
  5. [55]
    The third decision of the QBCC provides the determination which the Company sought at the outset. The cost provisions under which the Tribunal acts, do not follow the model adopted by courts as a principle, where costs follow the event (although courts still retain a discretion as to costs), so it does not follow that the Company would be awarded costs simply on the basis that the final result was in its favour.
  6. [56]
    The QBCC argues that it has proceeded with due expedition, and that the Company has been the cause of delay by failing to provide information promptly, and by failing to adhere to timetables directed by the tribunal.
  7. [57]
    The Company submits that the position of the QBCC was doomed to fail from the outset. That contention however is made in hindsight, having regard to the information that the Company has now provided.
  8. [58]
    A large body of material was provided by the Company on 22 March 2019 when it provided further information to the QBCC on a USB device.
  9. [59]
    It is significant that the resignation of Mr Vallis was only disclosed to the QBCC at the opening of the hearing on 20 February 2019. That circumstance was fundamental to the QBCC reconsidering the matter, and ultimately making the third decision that was the opposite of its previous decisions.
  10. [60]
    The Company had modified its position by the resignation of Mr Vallis, and there must be a strong suggestion that that this was a step that was taken in response to the steps taken by the QBCC.
  11. [61]
    The reconsiderations by the QBCC would have been influenced by further material that has been provided by the Company, in response to the issues raised in the course of the proceedings.
  12. [62]
    The ‘turning points’ in this proceeding, leading to the eventual third decision by the QBCC, appear to be:
    1. (a)
      the resignation of Mr Vallis which was advised on 20 February 2019; and
    2. (b)
      the provision of the large volume of documents by the Company on 22 March 2019.

Those steps were both in the control of the company, and both were taken by the Company some months after the initial listed hearing date of 22 November 2018.

  1. [63]
    Some reasonable period of time would have been required for the QBCC to go through and assess the documentation provided by the Company on 22 March 2019.
  2. [64]
    The QBCC filed the miscellaneous application dated 29 April 2019 requesting that the tribunal refer the decision of 21 March 2019 back for reconsideration. That was only about five weeks after the material is provided by the Company, which is a reasonable time to consider and respond to the material.
  3. [65]
    The matter would have been expedited if the Company had provided all its material in a timely manner, and had provided the statements as to management of the Company, at the outset, or early in the proceedings. In this regard, a question arises as to whether the Company generally attempted to enable and help the decision-maker to make a decision on the merits as referred to in section 102(3)(d)(ii) of the QCAT Act.
  4. [66]
    I note that in the previous cost decisions, made on 15 January 2019 and 17 January 2019, the Senior Member discussed the filing of material between 20 September 2018 and 20 December 2018, and discussed the vacating of the hearing listed for 22 and 23 November 2018, and concluded that the QBCC had not been shown to have failed to comply with a tribunal order or direction without reasonable excuse, or acted in any other way that would attract the provisions of section 48(1) of the QCAT Act.
  5. [67]
    It is unusual that two separate hearing dates had been allocated for this matter, and that it did not proceed on either of those dates. The adjournment on the first occasion was granted with the agreement of the company, and on the second occasion arose from the Company’s introduction of new material in the form of advice of the resignation of Mr Vallis on the day of the hearing.
  6. [68]
    Whilst the second and third decisions of the QBCC are obviously at odds with each other, and the reasoning as to the onus of proof as to whether Mr Vallis was an influential person in relation to the Company appears confused between the two decisions, the matter was never tested as to the extent of influence by Mr Vallis.
  7. [69]
    The submissions by the Company that the QBCC should have reacted promptly to the decision made in Ezra, have to be seen in the context of the chain of disclosure of information, and whether the decision was specifically drawn to the attention of the QBCC as having application in this matter, and whether the issue as to the original notice being defective had been raised prior to the second and third decisions.
  8. [70]
    Significantly however, the decision in Ezra has recently been overturned on appeal by the Court of Appeal[32] and the orders made at first instance were set aside.
  9. [71]
    McMurdo JA held that the notices in question were validly given under the terms of section 56AF of the QBCC Act at that time,[33] and said as follows:[34]

[41] It will be evident that I respectfully disagree with his Honour’s reasoning. Even if the repeal of s 56AD, and the amendment of provisions so as to remove the references to a permitted individual, might be thought to affect an accrued right to apply for categorisation, in my view the legislation unambiguously removed that right. It did so not only by the terms of s 58 of the Amendment Act, but also by the absence of any express preservation of the operation of the former s 56AF.

[42] Consequently, I disagree with his Honour’s conclusion that the right to seek categorisation as a permitted individual continued, and that the notices given in April 2018 were invalid because they purported to preclude that process.

  1. [72]
    The argument by the Company that the decision of the QBCC was ‘doomed to fail’ because the notice given was invalid, based upon the Ezra decision at first instance, is therefore no longer of any weight.
  2. [73]
    I am not satisfied that:
  1. (a)
    The proceedings were ‘doomed to fail’ from the outset; or
  2. (b)
    The conduct of the QBCC has been demonstrated to have ‘unnecessarily disadvantaged and created additional costs for the company’ as submitted by the Company.
  1. [74]
    I do not consider that the interests of justice require departure from the usual provision provided in the QCAT Act of each party bearing their own costs.
  2. [75]
    The application for costs filed by the Company on 28 July 2019 is dismissed.

Footnotes

[1]  Decision of QBCC, 11 December 2017, p 2.

[2]  Ibid p 3.

[3]  Reconsideration of decision, 21 March 2019, p. 1.

[4]  Ibid p. 1 and 2.

[5]  Reconsideration of decision, 28 May 2019, p. 1.

[6]  Ibid p.1.

[7]  Applicant’s outline of submissions as to costs, filed 9 August 2019, at [4].

[8]  Ibid [16].

[9]  Ibid [19].

[10]  Ibid [23].

[11]  Ibid [26], [30].

[12]  [2019] QSC 47.

[13]  Op cit [43].

[14]  Ibid [47].

[15]  Ibid [49].

[16]  Ibid [52]

[17]  [2013] QCAT 573, [4], [29].

[18]  Ibid [57].

[19]  Ibid [72].

[20]  Ibid [74].

[21]  Ibid [77] ­–[78].

[22]  Respondent’s submissions in response on costs, filed 19 August 2019 at [2].

[23]  Ibid [3].

[24]  Ibid [5]– [22].

[25]  Ibid [25].

[26]  Ibid [26].

[27]  Ibid [33].

[28]  Ibid [35].

[29]  Ibid [37].

[30]  Ibid [38].

[31] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 106.

[32] Queensland Building and Construction Commission & Ors v Ezra Constructions Pty Ltd & Ors [2019] QCA 304.

[33]  Ibid [52].

[34]  Ibid [41]–[42].

Close

Editorial Notes

  • Published Case Name:

    AIC Gold Coast Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    AIC Gold Coast Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2020] QCAT 9

  • Court:

    QCAT

  • Judge(s):

    A/Senior Member Paratz

  • Date:

    09 Jan 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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