Holley v Queensland Building and Construction Commission
[2015] QCAT 424
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- Unreported Judgment
- Holley v Queensland Building and Construction Commission[2015] QCAT 424
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Holley v Queensland Building and Construction Commission[2015] QCAT 424
Holley v Queensland Building and Construction Commission[2015] QCAT 424
CITATION: | Holley v Queensland Building and Construction Commission [2015] QCAT 424 |
PARTIES: | Gary John Holley (Applicant) |
v | |
Queensland Building and Construction Commission (Respondent) | |
APPLICATION NUMBER: | OCR034-13 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Dr Cullen, Member |
DELIVERED ON: | 26 October 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | Costs in the Tribunal – Reprimand of private building certifier – unmeritorious review – circumstances mandate award in favour of regulator in the interests of justice. Building Act 1975 (Qld), s 204, Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 100, s 102, s 107 Kay v Queensland Building and Construction Commission [2014] QCAT 421 Chandra v QBSA [2009] QCCTB 181 (19 August 2009) |
APPEARANCES: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). |
REASONS FOR DECISION
- [1]On 20 May 2015, the Tribunal decided that the Queensland Building and Construction Commission had proper grounds for the taking of disciplinary action against Mr Gary John Holley, a private building certifier. Following a hearing where both Mr Holley and the QBCC were legally represented, the Tribunal determined that My Holley’s conduct in failing to classify 8 Ryena Street as a multi-unit dwelling was unsatisfactory, and imposed a penalty of a reprimand in accordance with s 204(4)(a) of the Building Act.
- [2]The QBCC now seeks that Mr Holley pay its costs of the disciplinary proceedings on the standard basis, to be assessed by the District Court Scale.
- [3]In order to afford both parties, but particularly Mr Holley, procedural fairness, the Tribunal issued directions following the disciplinary proceedings in relation to the QBCC’s application for costs. Those directions required that the QBCC file and serve any written submissions in support of its application by 3 June 2015, and provided Mr Holley the opportunity to reply by 17 June 2015.
- [4]As has been noted in 18 June 2015 correspondence sent to the Tribunal by Mr Holley’s solicitors, neither party complied with these directions. The QBCC’s submissions in relation to costs were not received by the Tribunal until 31 July 2015.
- [5]The 18 June 2015 letter from Mr Holley’s solicitors complains that these procedural factors afford a basis upon which s 102 of the QCAT Act would require that the Tribunal decline to award costs. I do not accept this submission. On 18 June 2015, the Tribunal extended the time for both parties to comply with these directions. The QBCC complied with the directions as extended, filing its submissions in relation to costs on 31 July 2015.
- [6]Mr Holley did not comply, and has not filed any submissions in relation to costs, save for the 18 June 2015 letter from his solicitors to the Tribunal. Unfortunately, the letter only addresses the substantive issues in relation to costs in asserting that:
Whilst the learned Member concluded that Mr Holley’s conduct in this instance was unsatisfactory, Mr Holley’s evidence and that of his Town Planner was not challenged or contradicted as to this [sic] efforts at the time to clarify the matter with relevant Officers from Brisbane City Council and subsequently to provide all relevant information to the Decision Maker for purposes of s.102(3)(d)(ii) QCAT Act.
Costs in the Tribunal
- [7]The ordinary position in relation to costs in Tribunal proceedings is set out in s 100 of the QCAT Act and provides:
100 Each party usually bears own costs
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.
- [8]However, despite this, the Tribunal may award costs against a party if it is satisfied that it is in the interests of justice to do so. Relevantly, s 102 of the QCAT Act provides that:
102 Costs against party in interests of justice
- The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.
***
- In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
- 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);
- the nature and complexity of the dispute the subject of the proceeding;
- the relative strengths of the claims made by each of the parties to the proceeding;
- for a proceeding for the review of a reviewable decision—
- whether the applicant was afforded natural justice by the decision-maker for the decision; and
- whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
- the financial circumstances of the parties to the proceeding;
- anything else the tribunal considers relevant.
The interests of justice require an award of costs against Mr Holley
- [9]As outlined in the submissions received from the QBCC,[1] the position of the QBCC in seeking its costs focuses upon ‘Mr Holley’s exceedingly poor conduct as a certifier, as a litigant and (perhaps most tellingly) as a witness.’
- [10]I do not think it is appropriate to consider Mr Holley’s conduct as a certifier as a factor that would, in isolation, attract an award of costs. That conduct happened outside of the Tribunal process, and is a matter for which Mr Holley has been reprimanded.
- [11]That said, in failing to accept the exceedingly obvious outcome of his conduct, once it was brought to light, and in putting the QBCC to the costs of pursuing him in the Tribunal, Mr Holley has, in the Tribunal’s view, engaged in conduct that does warrant an order of costs against him. Simply because one has a right of review in the Tribunal does not mean that it should be exercised in circumstances where it is apparent that a review of the regulator’s disciplinary decision in the Tribunal has no reasonable prospects of success, as was the case here with Mr Holley’s application for review.
- [12]Mr Holley should have carefully considered the practical utility of lodging the application for review, if not at the time of filing then certainly in advance of the hearing. It is the Tribunal’s view that at no stage of these proceedings was there any genuine basis to believe that the Tribunal could make any decision other than to confirm the QBCC’s decision.
- [13]Briefly, the conduct for which Mr Holley was disciplined arose from his decision to issue a development permit for building work to be carried out at 10 Ryena Street in Stafford. This resulted in the inappropriate certification of the dwelling, which was obviously intended to be student share-house accommodation, and should have been classified as a multi-unit dwelling.
- [14]Naturally, neighbours were not pleased about the impact that Mr Holley’s actions had upon neighbourhood amenity, including their own property values, and they complained to the Brisbane City Council. Through this process, Mr Holley’s conduct in the debacle was uncovered.
- [15]At the hearing, Mr Holley endeavoured to justify his failure to properly certify the dwelling in question on the basis that the building was intended to be habited by ‘disabled persons and their carers,’ and therefore escaped the multi-unit dwelling planning requirements by virtue of a loophole that would allow it to be classified as a house.
- [16]The basis for Mr Holley’s defence was simply that he had certified a similar development next door, and had conducted a site inspection there where he saw people he thought were disabled and their carers helping them. There was no evidence called in support of this claim; rather the Tribunal was left to consider Mr Holley’s bald assertion that he could tell these people, who did not have discernable physical disabilities, and with whom he did not speak, were “disabled” simply by looking at them.
- [17]Mr Holley’s own evidence was implausible, farcical, and ridiculous at points, as outlined in the Tribunal’s previous decision. There was no genuine basis upon which Mr Holley could have believed that 10 Ryena Street was be housing for disabled persons and their carers. He had no paperwork indicating that there were any approvals for the building to be used for disabled care, and there were no disability modifications made to the plans.
- [18]Rather, Mr Holley turned a blind eye to the obvious mischief of his developer client, Mr David Manteit (who did not give evidence at the final hearing).
- [19]The conduct that resulted in the development approval of 10 Ryena Street was so galling that, once exposed, it should have been apparent to Mr Holley that it was of a lesser standard than what the public would expect from a licensed building certifier.
There was no corroborating evidence
- [20]Even if Mr Holley genuinely believed he would be successful in a review, once it became apparent to him that Mr Manteit could not be located for purposes of giving evidence that would corroborate his version of events, he should have then considered the utility of proceeding to a hearing. With no corroborating evidence, Mr Holley would have been sensible to accept the penalty that had been imposed by the QBCC, and move on. This is particularly so where the impact of the reprimand imposed upon him has no actual impact upon his ability to continue working as a private building certifier. The only tangible impact of the reprimand is the possible, and difficult to measure, impact upon his professional reputation.
- [21]In this sense, it may well have made more sense for Mr Holley to quietly accept the obvious, rather than proceeding with a review where it was inevitable that the Tribunal would find that his conduct was lesser than that which would be expected of a building certifier. In proceeding in the fashion he has chosen to, Mr Holley has made the shortcomings of his own conduct entirely more public.
- [22]At the same time, he has put the QBCC, funded through public money, to significant cost in responding to his application. As the QBCC says in its submissions, ‘Mr Holley proceeded to a final hearing of the matter knowing that were he to be questioned about his basis for assessing the proposed use of the subject premises, he would be unable to give any meaningful answer.’
Just because a right of review exists, does not mean it should be taken
- [23]Simply because a legal right of review exists, does not mean that a rational person should take it. Applications for review should only be taken where there exists a genuine and reasonable basis for believing that another decision could be made. In that regard, litigants in the Tribunal should consider carefully whether their own evidence can be corroborated on any level, either through corroborating oral evidence or through written documentation.
- [24]Of course, it can be difficult for litigants who become entrenched in their views to see the reality of their positions. In this respect, the compulsory conference process utilised by the Tribunal is vital. At a compulsory conference, a Tribunal member will reality test parties about the likely outcome, and possible risks, in moving forward to a hearing.
- [25]In this matter, the Tribunal convened compulsory conferences on 28 May 2013, 25 July 2013, 13 September 2013 and 20 November 2013. Even if Mr Holley considered that he had prospects before the compulsory conferences, it is hard to image that, after four compulsory conferences, he could not have appreciated the risks of moving forward to a hearing, particularly in relation to costs.
- [26]It has long been the case that in disciplinary matters in the Tribunal, unsuccessful applicants may be ordered to pay costs. In Kay v Queensland Building and Construction Commission[2] Acting Senior Member Paratz declined to order costs against an unsuccessful certifier, and observed that it is the case that ‘the QBCC do not regularly seek costs, except in a matter where the conduct of the case by the applicant is unmeritorious or unduly prolonged.’[3] That is certainly the case here, with respect to Mr Holley’s conduct. He did not present a cogent case, and there was no supporting evidence for his assertions.
- [27]Section 102(3)(f) of the QCAT Act allows the Tribunal to consider ‘anything else the Tribunal considers relevant,’ in contemplating a costs order. The Tribunal considers it relevant that the QBCC is funded through public money. Tax-payers should not be required, albeit indirectly, to subsidise unmeritorious proceedings such as this, in the Tribunal.
- [28]There are other cases where the egregious conduct of a building certifier has attracted costs, in particular Chandra v QBSA.[4] In that case, then Member Lohrisch rejected a submission made by the certifier that the then Queensland Building Services Authority should ‘accept the burden of costs for what is effectively a prosecution,’ and awarded costs against Mr Chandra.
- [29]For these reasons, the Tribunal considers that an award of costs in favour of the QBCC is mandated by the interests of justice, on the District Court Schedule, on the standard basis.
- [30]The Tribunal will fix costs in accordance with s 107(1) of the QCAT Act.
Orders
- [31]Gary John Holley, t/as Applied Building Approvals is ordered to pay the Queensland Building and Construction Commission’s costs of and incidental to the proceedings in OCR034-13, on the standard basis on the District Court Scale.
- [32]The QBCC is directed to file two copies in the Tribunal and give to Mr Holley one copy, of a detailed claim for its costs of and incidental to these proceedings, together with a solicitor’s affidavit verifying the claim, within 28-days of the date of this Order.
- [33]Mr Holley is directed to file and serve any submissions in response within 28 days thereafter. The amount of costs to be fixed will then be determined on the papers by the Tribunal.