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Williams v Queensland Building and Construction Commission (No 2)[2016] QCAT 62

Williams v Queensland Building and Construction Commission (No 2)[2016] QCAT 62

CITATION:

Williams v Queensland Building and Construction Commission (No 2) [2016] QCAT 62

PARTIES:

Neil Joseph Williams

(Applicant)

v

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

OCR206-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

7 April 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. No further Order as to the costs of the initial application is made.
  2. It is noted for clarity that the Order of the Tribunal as to the costs of the adjourned hearing made on 6 March 2014 stands, and is unaffected by this Order.

CATCHWORDS:

COSTS – Where a decision of the QBCC to declare a builder to be an “excluded individual” pursuant to s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) was confirmed – Where the QBCC sought its costs of the application – Whether it was reasonable for the builder to seek a review of the decision of the QBCC – Where the initial premise that each party should bear their own costs was not displaced

Queensland Building and Construction Commission Act 1991 (Qld), s 56AC

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

Williams v Queensland Building and Construction Commission [2015] QCAT 042

Williams v Queensland Building and Construction Commission [2015] QCATA 138

Williams v Queensland Building and Construction Commission [2016] QCATA 5

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).

REPRESENTATIVES:

APPLICANT:

Mr S B Whitten of Counsel

Instructed by Walker Lender Group

RESPONDENT:

Mr R J Anderson of Counsel

Instructed by Robinson Locke Litigation Lawyers

REASONS FOR DECISION

  1. [1]
    This is a further decision in a line of decisions in relation to this Application and Appeals.
  2. [2]
    I heard the Application in this matter, which was a review of the decision of the QBCC of its intent to declare Mr Williams to be an ‘excluded individual’ pursuant to s 56AC of the Queensland Building and Construction Commission Act 1991 (Qld) on 13, 14 and 15 October 2014.
  3. [3]
    I delivered written Reasons for my decision on 6 February 2015, and made an Order confirming the decision of the QBCC.[1]
  4. [4]
    Mr Williams filed an Appeal against my decision on 11 March 2015 in APL096-15.
  5. [5]
    The Appeal Tribunal heard the Appeal on 14 September 2015, and delivered its reasons for decision on 21 September 2015.[2] The Order of the Appeal Tribunal was that ‘Leave to appeal is refused’.
  6. [6]
    The QBCC filed an Application for Costs of the Appeal and an associated Application for Stay on 26 October 2015 Those Applications were heard by the Appeal Tribunal on 4 November 2015. The Appeal Tribunal delivered its Reasons for Decision on those applications on 7 January 2016.[3] The order of the Appeal Tribunal was as follows:
  1. Neil Joseph Williams shall pay the Queensland Building and Construction Commission’s costs of the appeal and the application for stay on a standard basis calculated on the District Court Scale within 28 days of agreement or assessment.
  2. The Queensland Building and Construction Commission shall deliver an assessment of its costs to Neil Joseph Williams by 8 February 2016.
  3. Neil Joseph Williams shall deliver any response to the Commission’s assessment by 8 March 2016.
  4. If the parties cannot agree on an amount for costs by 15 March 2016, costs shall be determined by an assessor appointed by the Principal Registrar.
  1. [7]
    The QBCC had filed an Application for Costs in relation to the original application on 4 March 2015. That application was not determined, pending the outcome of the Appeal. I held a Directions Hearing as to that application on 22 October 2015, and made Directions as follows:
    1. (1)
      Neil Joseph Williams is to file in the Tribunal, and give a copy to the Queensland Building and Construction Commission, of any submissions in response to the application for costs filed by the Queensland Building and Construction Commission on 4 March 2015, by: 4:00pm on 20 November 2015
    2. (2)
      The Queensland Building and Construction Commission is to file in the Tribunal, and give a copy to Neil Joseph Williams, of any submissions in reply to the submissions of Neil Joseph Williams on costs, by: 4:00pm on 4 December 2015
    3. (3)
      The application of the Queensland Building and Construction Commission for costs filed on 4 March 2015 will be determined by the Tribunal on the papers, not before 7 December 2015.
  1. [8]
    Submissions were filed by Mr Williams as directed on 20 November 2015, and by the QBCC on 25 November 2015. In each case, the submissions encompassed the applications for costs in both the Appeal and the initial Application.
  2. [9]
    The Appeal, and the Application for costs of the Appeal and the Stay, having been determined, the matter was referred back to me on 10 March 2016 for determination of the Application for costs of the initial Application.
  3. [10]
    This is the decision in relation to Costs of the initial Application and Hearing.

The initial decision

  1. [11]
    Mr Williams filed an application to review a decision on 8 August 2013. The subject was the decision of the QBCC made on 11 July 2013 to consider Mr Williams to be an ‘excluded individual’ pursuant to s 56AC of the Queensland Building Services Authority Act 1991 (Qld).
  2. [12]
    The matter was initially set for hearing before me on 6 March 2014. On that day the matter was unable to proceed due to unavailability of witnesses, and absence of filed witness statements, on behalf of the QBCC, and I adjourned the hearing to a date to be fixed, and made the following Order as to costs:

The Queensland Building and Construction Commission is to pay Mr Williams costs thrown away by the adjournment of the proceedings on 6 March 2014, such costs to be as agreed, or failing agreement, as to be ordered by the tribunal on further consideration.

  1. [13]
    I subsequently heard the matter over three days on 13, 14 and 15 October 2014. I delivered my decision on 6 February 2015, and ordered that the decision of the QBCC was confirmed.

The submissions of the QBCC as to costs

  1. [14]
    The QBCC filed submissions dated 4 March 2015, as to costs of the initial application.
  2. [15]
    The QBCC referred to s 102(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), and submitted that the considerations in (a), (c) and (d) are relevant. Those sections provide as follows:

(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);

(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 ...

  1. [16]
    In relation to s 102(3), the QBCC submits that the conduct of Mr Williams in the course of the proceeding unnecessarily disadvantaged the QBCC. It refers to two aspects:[4]
    1. That the evidence of Mr Morgenstern, Mr Dilger and Mr Major was accepted by the Tribunal as correct; and that Mr Williams would have known that the evidence of those witnesses was true.
    2. That Mr Williams required Mr Heath to attend the hearing for cross-examination, but that at the commencement of the hearing Mr Williams counsel advised that Mr Heath was no longer required for cross-examination, which caused the QBCC to incur the cost of Mr Heath’s return trip from the Gold Coast to Brisbane.
  2. [17]
    In relation to s 102(3)(c) the QBCC refers to various comments in my reasons for decision,[5] and submits that they are indicative of the fact that Mr Williams case was unsupported by evidence, and that the application was bound to fail.
  3. [18]
    In relation to s 102(3)(d)(ii) the QBCC submit that the evidentiary burden was on Mr Williams to show that he was not a Director, Secretary or influential person, and that he made no genuine attempt to assist the original decision-maker or the Tribunal in making a decision on the merits. It refers to various matters[6] including:
  • denials of fact by Mr Williams;
  • not disclosing that he had trouble reading;
  • making no attempt to have the disputed signatures tested, and requesting the Tribunal to require the QBCC to obtain an expert report which cost $8,000.00.
  1. [19]
    The QBCC phrased its overall submissions as follows:[7]

It is in the interests of justice that costs be awarded because the review procedure is not intended to be used by parties who are simply dissatisfied with a correct decision. Where, as here, the Applicant persisted in the review on the basis of unsupported denials and made no attempt to assist the decision maker or the tribunal in its decision-making, all that was achieved was the outlay of unnecessary expense by a public authority.

The submissions of Mr Williams as to the costs application of the QBCC

  1. [20]
    Counsel for Mr Williams noted that Mr Williams made no separate submission regarding the QBCC application for costs of the initial application, and referred to the submission filed for matter APL096-15, and submitted that the principles and arguments covered in that submission also applied to Application number OCR206-13.[8]
  2. [21]
    Mr Williams submitted that the nature of the dispute revolved around the legislative sanction of excluding Mr Williams from his means of livelihood by removing his licence, and that he should not be sanctioned again by a costs order in favour of the State[9].
  3. [22]
    Mr Williams refers to the evidence of Mr Dilger as to Mr Williams playing a mentoring role. He submits that the QBCC did not have that evidence when it excluded him, and that this evidence was first given in the actual hearing, and was preferred over an earlier inconsistent statement by Mr Dilger.[10]
  4. [23]
    He submits that it was to his disadvantage that he had no prior notice of this evidence of Mr Dilger, and therefore no prior opportunity to obtain evidence to challenge Mr Dilger.
  5. [24]
    He submits that his financial resources must be ‘infinitely more limited’ than that of the QBCC.[11]
  6. [25]
    He also submits that the legislation was ambiguous as to what is meant by the ‘affairs of a company’ in the context of the definition of an ‘influential person’.
  7. [26]
    Mr Williams concludes that it is not in the interests of justice for him to be required to pay any part of the QBCC costs of the application.

Costs Order on the Appeal

  1. [27]
    The Appeal Tribunal ordered that Mr Williams was to pay the QBCC costs of the Appeal and the application for a stay on a standard basis calculated on the District Court Scale.[12]
  2. [28]
    The Appeal Tribunal referred to the ‘lack of merit in most of Mr Williams’ appeal and related application for a stay’.[13]
  3. [29]
    It noted that the argument of Mr Williams as to the error in the findings as to evidence of personal loans to the business, had no bearing on the outcome of the appeal.[14]
  4. [30]
    It also noted that the argument of Mr Williams that the definition of ‘affairs of a company’ was ambiguous, did not have application, as ‘the Tribunal had already made findings of fact based on evidence without needing to define the term’, and that Mr Williams appeal largely and unsuccessfully targeted those findings.[15]
  5. [31]
    The Appeal Tribunal noted that:

[12] By continuing to pursue an appeal on grounds that did not approach the legal threshold to overturn findings of fact, Mr Williams’ appeal was fundamentally without merit. His appeal thereby unnecessarily required the Commission to expend time and resources to respond.

  1. [32]
    The Appeal Tribunal concluded that:

[14] Moreover, the Commission is a statutory authority primarily funded by members of the industry, rather than the State. Responding to appeals fundamentally without merit directs resources away from its other important statutory functions, including educative functions to assist the industry as a whole. It is therefore not in the interests of justice that other members of the industry share the costs of an unmeritorious appeal by one of its members.

[15] The purpose of a costs order is not to punish Mr Williams but to compensate the successful party for costs it has needlessly incurred. Although Mr Williams appeal was fundamentally without merit, the issues were sufficiently complex to warrant the Commission engaging legal representation.

[16] The interests of justice therefore warrant that Mr Williams pay the Commission’s costs of the appeal and the application for a stay on a standard basis on the District Court scale.

Discussion of the Costs on the initial Application

  1. [33]
    The basic provision in the QCAT Act is that each party usually bears their own costs.[16] This is subject to the Tribunal being able to make a costs order if it considers the interests of justice require it to make an order.[17]
  2. [34]
    The consideration of the costs of the initial application are quite separate to the considerations of the Appeal Tribunal as to the costs of the appeal and the application for a stay. The Tribunal is not bound in any way in considering the costs of the initial application by any costs orders made by the Appeal Tribunal on the Appeal and the stay application.
  3. [35]
    My considerations of the application for costs of the initial application are based solely on the hearing before me.
  4. [36]
    If Mr Williams had a reasonable basis to seek a review of the decision of the QBCC, then he was entitled to have that decision reviewed in the Tribunal.
  5. [37]
    Whilst the Tribunal substantially accepted the evidence of Mr Morgenstern, Mr Dilger and Mr Major, that does not mean that Mr Williams was not reasonably entitled to test their evidence by cross-examination. Mr Williams largely did not personally agree with much of their evidence. He was entitled to put his contrary version, and to have it considered. It is the role of the Tribunal to determine on the balance of probabilities what it accepted.
  6. [38]
    When the application first came on for hearing on 6 March 2014, the QBCC did not have comprehensive statements of evidence filed from Mr Morgenstern, Mr Dilger or Mr Major, who were witnesses whose evidence I ultimately substantially accepted. Those witnesses were also not available to give evidence in person and be cross-examined.
  7. [39]
    Mr Williams was entitled to have advance notice of the evidence to be relied on by way of statements of evidence under the QCAT Act and Rules, and to have them attend in person for cross-examination if required.
  8. [40]
    The QBCC was not in a position to proceed on the first hearing, whereas Mr Williams was prepared to proceed on the basis of the material then before the Tribunal. As the QBCC was unable to proceed, and Mr Williams had been put to the cost of attending the first hearing, I ordered that the QBCC pay Mr Williams costs thrown away by the adjournment.
  9. [41]
    My order for costs of the adjournment is independent of any subsequent order as to costs for the subsequent hearing, and stands, irrespective of any further costs order.
  10. [42]
    The QBCC submit that it was put to costs of $8,000.00 in obtaining an expert report of Mr Heath as to handwriting. The issue of the handwriting was complex, and ultimately the expert opinion was that Mr Williams was correct in some of his contentions that he did not sign particular documents, but was incorrect as to other particular documents.
  11. [43]
    The QBCC proposition was that relevant documents were ‘on their face’ signed by Mr Williams, and should be accepted as such. As that proposition was contested by the sworn evidence of Mr Williams, then it fell to the QBCC to counter the evidence of Mr Williams by expert evidence if it could. A similar situation regularly applies as to expert evidence as to Directions to Rectify in matters involving decisions of the QBCC, that the QBCC adduces expert evidence as to its contentions as to alleged defects.
  12. [44]
    As the evidence eventuated, neither the QBCC nor Mr Williams was found in the expert’s opinion to be wholly correct in their propositions or assumptions.
  13. [45]
    I consider that Mr Williams was entitled to have the decision reviewed. The decision had significant effects upon his livelihood, and involved marked and contrary contentions of fact.
  14. [46]
    I do not consider that it was unreasonable of Mr Williams to test the evidence of witnesses with whom he disagreed on his own sworn evidence.
  15. [47]
    The basic principle of the Tribunal is that each party bear their own costs, and is only displaced when the interests of justice require. I do not consider that basic proposition is displaced as to the hearing of the initial application.
  16. [48]
    I consider that the most appropriate result as to the costs of the hearing of the initial application are that each party should bear their own costs.
  17. [49]
    I make no further Order as to the cost of the initial application, but note for clarity that my Order as to the costs of the adjourned hearing made on 6 March 2014 stands, and is unaffected by this Order.

Footnotes

[1]Williams v Queensland Building and Construction Commission [2015] QCAT 042.

[2]Williams v Queensland Building and Construction Commission [2015] QCATA 138.

[3]Williams v Queensland Building and Construction Commission [2016] QCATA 5.

[4]QBCC Submissions on Costs, 4 March 2015, para [11].

[5]QBCC Submissions on Costs, 4 March 2015, para [12](a) to (d).

[6]QBCC Submissions on Costs, 4 March 2015, para [13].

[7]QBCC Submissions on Costs, 4 March 2015, para [14].

[8]Mr Williams Submissions on Costs, 19 November 2015.

[9]Mr Williams Submissions on Costs, 19 November 2015, para [11].

[10]Mr Williams Submissions on Costs, 19 November 2015, para [16].

[11]Mr Williams Submissions on Costs, 19 November 2015, para [25].

[12]Williams v Queensland Building and Construction Commission [2016] QCATA 5.

[13]Ibid, at para [7].

[14]Ibid, at para [8].

[15]Ibid, at para [9].

[16]QCAT Act, s 100.

[17]Ibid, s 102.

Close

Editorial Notes

  • Published Case Name:

    Neil Joseph Williams v Queensland Building and Construction Commission (No 2)

  • Shortened Case Name:

    Williams v Queensland Building and Construction Commission (No 2)

  • MNC:

    [2016] QCAT 62

  • Court:

    QCAT

  • Judge(s):

    Member Paratz

  • Date:

    07 Apr 2016

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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