Queensland Building and Construction Commission v Williams (No 2)
[2015] QCAT 425
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Queensland Building and Construction Commission v Williams (No 2)[2015] QCAT 425
- Add to List
Queensland Building and Construction Commission v Williams (No 2)[2015] QCAT 425
Queensland Building and Construction Commission v Williams (No 2)[2015] QCAT 425
CITATION: | Queensland Building and Construction Commission v Williams (No 2) [2015] QCAT 425 |
PARTIES: | Queensland Building and Construction Commission (Applicant) |
| v |
| Barry Kenneth Williams (Respondent) |
APPLICATION NUMBER: | OCR428-12 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Guthrie |
DELIVERED ON: | 3 November 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | COSTS – consideration of circumstances in which order for costs will be made – whether appropriate in the interests of justice to make costs order Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 48, s 100, s 102 Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 Demac Homes (Qld) Pty Ltd v Queensland Building Services Authority & Ors [2011] QCAT 331 McEwen v Barker Builders Pty Ltd [2010] QCATA 049 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Queensland Building and Construction Commission v Williams [2015] QCAT 355 Williams v Queensland Building Services Authority [2013] QCAT 589 |
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
Background
- [1]The Queensland Building and Construction Commission (QBCC) applied to the tribunal for disciplinary action against Mr Williams, a builder. Following an oral hearing, the tribunal determined on 24 August 2015 that grounds for disciplinary action existed. Directions for the filing of submissions on costs were also made on 24 August 2015. The QBCC seeks an order that Mr Williams pay its costs as agreed or, if opposed, based on an assessment by an assessing agent. To support its application, the QBCC filed written submissions dated 14 September 2015. Mr Williams has not filed any submissions.
- [2]The disciplinary proceedings arose from building work performed by Mr Williams at a home in Brighton. As a result of a dispute between the Mr Williams and the home owners, the home owners terminated the contract between themselves and the respondent and made a claim under the QBCC’s statutory insurance scheme. The QBCC accepted that claim. Mr Williams applied to the tribunal for review of the QBCC’s decision in relation to termination of the contract. The tribunal, in a separate proceeding, found that the contract had been validly terminated and so affirmed the decision of the QBCC.[1]
- [3]The QBCC engaged a rectifying builder to rectify and complete the building works at the Brighton address. While that work was being carried out the QBCC formed the view that Mr Williams’ workmanship had been sub-standard.
- [4]The QBCC ordered a report from engineer, Mr Peter Wright. His report became the basis for the QBCC’s pursuit of disciplinary action. The items of defective work, identified by Mr Wright as items 3.1.4 and 3.1.7 were the focus of the disciplinary proceedings.
Applicable law
- [5]Costs in this Tribunal are governed by the provisions in Chapter 2 Part 6 Division 6 of the QCAT Act. Section 100 of the QCAT Act 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.
- [6]Section 102(1) of the QCAT Act provides:
- (1)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.
- [7]Section 102(3) of the QCAT Act provides:
- (3)In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
- (a)whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
- (b)the nature and complexity of the dispute the subject of the proceeding;
- (c)the relative strengths of the claims made by each of the parties to the proceeding;
- (d)for a proceeding for the review of a reviewable decision—
- (i)whether the applicant was afforded natural justice by the decision-maker for the decision; and
- (ii)whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
- (e)the financial circumstances of the parties to the proceeding;
- (f)anything else the tribunal considers relevant.
- [8]Section 102(3)(a) refers to s 48(1). Section 48(1) applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding including by attempting to deceive another party or the tribunal or vexatiously conducting the proceeding.
- [9]
The public policy intent of the provisions in the QCAT Act is plain. The tribunal was established as a no costs jurisdiction. That may be departed from where the interests of justice require it. The considerations identified in s 102(3) are not grounds for awarding costs. They are factors that may be taken into account in determining whether, in a particular case, the interests of justice require the tribunal to make a costs order.
- [10]
The language of s 100 plainly indicates that the legislature has turned its face against awards of costs in this Tribunal. The question that will usually arise in each case in which costs are sought is, then, whether circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ have arisen; and, whether or not they point to a costs award in a sufficiently compelling way to overcome the statutory hurdle.
- [11]In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)[5] the then President said:
Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.
Submissions of the Applicant
- [12]The QBCC submits that Mr Williams, by ‘creating a positive defence’ to the QBCC’s claims of grossly defective work identified as items 3.1.4 and 3.1.7, forced the QBCC to call evidence to address his claims. The QBCC called evidence from the homeowner, Mr Hayes, the engineer, Mr Wright, the rectifying builder, Mr Roberts and a QBCC building inspector, Mr Hulme.
- [13]In relation to the defect known as item 3.1.4, the QBCC says that Mr Williams first stated that the bearers in question had been cut short in situ by Mr Hayes or someone he instructed. The QBCC says that he then said that they had been installed that way as part of a hybrid system but conceded in cross-examination that the house plans did not call for a hybrid system.[6] The tribunal rejected those contentions.[7]
- [14]In relation to item 3.1.7, the QBCC says that Mr Williams initially said that the wall had been shifted by either the homeowner, Mr Hayes, or somebody under his instruction. Later, it says, Mr Williams’ defence evolved to the statement that he had installed the blue board, the outer covering of the lower storey of the house in order to bring the house to enclosed stage. Mr Williams stated that he intended to remove the blue board and place a further bearer parallel to the existing bearer in order to rectify the overhang of the upper storey in much the same way as the eventual rectifications.
- [15]The QBCC submits that the evidence provided to the tribunal demonstrated that there was no evidence that rationally supported the contention that the blue board was not permanently fixed in place.[8]
- [16]The QBCC contends that the positive defences put forward by Mr Williams in relation to items 3.1.4 and 3.1.7 were complete fabrications designed to avoid the consequences of the disciplinary proceedings brought due to his poor workmanship.
- [17]The QBCC submits that Mr Williams’ actions ‘in creating a false line of argument which was clearly unsustainable in the context of the objectively available evidence forced the QBCC to engage in extra costs, difficulties and expenditure proving its case.’ Further, it is submitted that Mr Williams forced the QBCC to call witnesses that would not otherwise have been required had he either not put forward any defence, or not put forward false statements in his defence.[9] The QBCC submits that on both facts it was unnecessarily disadvantaged by Mr Williams.[10]
- [18]
- [19]Finally, the QBCC submits that when the relative strengths of the claims are assessed on an objective basis, its decision to commence disciplinary proceedings against Mr Williams was justified and the items identified by it as forming the basis of the disciplinary proceedings were so grossly negligent and incompetent that there was no arguable defence to the application.[13]
- [20]Therefore, the QBCC submits that, in the particular circumstances of the case, the interests of justice sufficiently override the ordinary situation as outlined in s 100 of the QCAT Act that the parties should bear their own costs. [14]
Consideration
- [21]The starting point for the tribunal is that each party should bear their own costs. 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 proceedings if the tribunal considers the ‘interests of justice require it to make the order.’ In deciding whether to award costs, the tribunal may have regard to the matters listed in s 103(a) to (f) inclusive. The QBCC relies on s 102(3)(a), (b) and(c) and s 48(1)(e) of the QCAT Act.
- [22]The tribunal may also consider the financial circumstances of the parties to the proceeding and anything else the tribunal considers relevant.[15]
- [23]It is clear from the reasons for its decision that the tribunal found the QBCC’s case to be superior to that of Mr Williams. The tribunal did not believe some of Mr Williams’ evidence, particularly in relation to defect 3.1.4, and that is a matter to be considered under s 102(3)(c).
- [24]The tribunal does not consider that the QBCC was unnecessarily disadvantaged in the substantive proceedings.[16] The proceedings were commenced by the QBCC. Prior to the hearing, Mr Williams had filed and provided to the QBCC, his contentions in relation to the grounds for disciplinary action relied upon by the QBCC. The QBCC also had the advantage of having participated in the proceedings relating to the decision to terminate the contract between Mr Williams and the homeowners.[17] In those proceedings, the QBCC called the same witnesses to give evidence. In preparing its case in the disciplinary proceedings, the QBCC relied, to a large extent, on statements and reports already in existence and had the benefit of the Transcript of the previous proceedings. The same counsel appeared for the QBCC in both proceedings.
- [25]The tribunal accepts that at the hearing it became apparent that Mr Williams’ written contentions did not set out with sufficient detail all that he intended to say at the hearing. However, the witnesses called by the QBCC were able to respond to his contentions. It was unnecessary for any additional witnesses to be called to respond to the contentions and the QBCC did not seek an adjournment or make any submissions at the hearing that it had been disadvantaged in responding to Mr Williams’ evidence or contentions.[18] While the tribunal accepts that there was a level of complexity due to the contentions of Mr Williams, it was also a complex matter for Mr Williams to defend.
- [26]The QBCC sought orders not only to have Mr Williams’ builder’s licence suspended indefinitely but also that he pay a penalty, orders which would have a significant impact on Mr Williams’ financial circumstances and his ability to earn a living into the future. It was a very serious matter for Mr Williams. Mr Williams was unrepresented at the hearing and the tribunal’s decision was such that his financial circumstances are likely to have been adversely affected.[19]
- [27]The tribunal has weighed all of the circumstances of the case and has had regard to the matters in s 102(3)(a), (b), (c), (e) and (f). Having regard to those matters the tribunal is not persuaded to exercise its discretion and make a costs order in favour of the QBCC. The application is dismissed.
Footnotes
[1]Williams v Queensland Building Services Authority [2013] QCAT 589: OCR269-11.
[2]Demac Homes (Qld) Pty Ltd v Queensland Building Services Authority [2011] QCAT 331 at [12].
[3] [2010] QCAT 364, at para [9].
[4] [2010] QCATA 49 (15 September 2010), at para [17].
[5] [2010] QCAT 412, at para [29].
[6] QBCC v Williams [2015] QCAT 355: OCR428 at [40]-[42].
[7] Ibid at [34]-[35].
[8] QBCC v Williams [2015] QCAT 355, at [44] – [50].
[9] Written submission of the applicant [31].
[10] Written submission of the applicant [32], QCAT Act s 102(3)(a).
[11] QCAT Act s 102(3)(b).
[12] QCAT Act s 102(3)(a) and s 48(1)(e).
[13] QCAT Act s 102(3)(c).
[14] Written submission of the applicant, [34].
[15] S 102(3)(e) and (f).
[16] S 102(3)(a).
[17]Williams v Queensland Building Services Authority [2013] QCAT 589: OCR 269-11.
[18] S 102(3)(b).
[19] S 102(3)(e) and (f); QBCC v Williams [2015] QCAT 355 [89].