Setschnjak v Derek Geddes Pty Ltd (No 2)
[2017] QCAT 157
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- Unreported Judgment
- Setschnjak v Derek Geddes Pty Ltd (No 2)[2017] QCAT 157
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Setschnjak v Derek Geddes Pty Ltd (No 2)[2017] QCAT 157
Setschnjak v Derek Geddes Pty Ltd (No 2)[2017] QCAT 157
CITATION: | Setschnjak v Derek Geddes Pty Ltd (No 2) [2017] QCAT 157 |
PARTIES: | Nicole Helen Setschnjak Mitchell Peirre Setschnjak (Applicant) v Derek Geddes Pty Ltd t/as Derek Geddes Lawyers, Derek & Dwyer Lawyers (Respondent) |
APPLICATION NUMBER: | OCR073-14 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Justice DG Thomas, President |
DELIVERED ON: | 23 May 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROCEDURE – COSTS – DISCRETION TO ORDER COSTS – whether the position as to costs under section 100 QCAT Act is altered by operation of section 328(9A) Legal Profession Act 2007 (Qld) – whether an order for costs should be made in favour of the applicant, or respondent, or at all Legal Profession Act 2007 (Qld) ss 308, 315, 328 Queensland Building and Construction Commission Act 1991 (Qld) s 77 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 100, 102 Pivovarova v Michelsen [2016] QCATA 45 Turner v Macrossan & Amiet Pty Ltd (No 2) [2016] QCAT 255 |
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- [1]The parties were allowed the opportunity to file submissions in relation to the question of costs.
- [2]Both parties have now filed submissions.
- [3]The applicant seeks an order for payment of the applicant’s costs fixed in the amount of $76,837.20.
- [4]The applicant submits that the starting point is section 100 QCAT Act, which provides that, other than as provided under the QCAT Act or an enabling Act, each party must bear the parties own costs for the proceedings.
- [5]Section 102(1) QCAT Act provides that an order for costs may be made if the Tribunal considers the interests of justice require it to make the order.
- [6]The applicant refers to section 328(9A) of the Legal Profession Act 2007 (Qld) (‘LPA’) which provides that the Tribunal may make a costs order under the QCAT Act in relation to a hearing such as the current proceedings.
- [7]The applicant submits that there is some conflict in the authorities as to how a section such as section 328(9A) impacts upon the determination of costs.
- [8]Reference was made to the decision in Turner v Macrossan & Amiet Pty Ltd (No 2),[1] where it was said:
“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.”
- [9]
“The Tribunal’s discretion to award costs in a building dispute is a broader and more general discretion than the one conferred by the QCAT Act because there is an express power to award costs conferred by the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), the relevant enabling Act. Unlike in the QCAT Act, there is no strong contra-indication in section 77 of the QBCC Act against a costs order.”
- [10]Whilst it is submitted that these decisions give rise to some conflict, that does not seem to be the case.
- [11]Section 100 QCAT Act indicates that other than as provided under this Act or an enabling Act, each party must bear the parties own costs.
- [12]The passage in Pivovarova highlights the fact that the QBBC Act (which is an enabling Act) provides a broader and more general discretion than that conferred by the QCAT Act.
- [13]The Turner decision deals with the requirements of section 328(9A) and is, with respect, correct. The starting point for any analysis must be the power to order costs in the ordinary jurisdiction of the QCAT Act. This follows because section 238(9A) allows the Tribunal to make a costs order under the QCAT Act. Under the QCAT Act, costs do not, generally, follow the event.
- [14]As was said in Pivovarova, considerations like those which are set out in section 102 QCAT Act, are in the nature of what might be called “entitling” or “disentitling” factors.[4]
- [15]When considering whether costs should be awarded “in the interests of justice” pursuant to section 102(1) QCAT Act, the Tribunal may have regard to the factors set out in section 102(3) QCAT Act. Those factors include (in (f)) “anything else the Tribunal considers relevant”.
- [16]One of those factors is whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding.[5]
- [17]The respondent refers to the fact that the proceedings, as originally framed, did not seek to challenge the first costs agreement, nor did they raise arguments concerning disclosure under sections 308(1)(c) and 315 LPA.
- [18]The applicant was allowed to attend and both parties were allowed to serve further submissions. These further submissions and the further hearing followed because, in the respondent’s submissions, of the failings on the part of the applicant and which was in no way attributable to any conduct of the respondent.
- [19]The respondent submits that the applicants should not benefit from their own failures in having a costs order made, as has been sought by the applicants, in relation to the proceedings.
- [20]On that basis, the respondent seeks orders for costs, or in the alternative, submits that, at the very least, no order for costs of any sort should be made in favour of the applicants for the reasons associated with the need to amend the application.
- [21]The starting point is that each party bear their own costs for the proceedings. This is the default position unless the interests of justice require otherwise.
- [22]As has been pointed out by the applicants, they were ultimately successful in achieving an order that the costs agreements be set aside.
- [23]On the other hand, the fact that the original application was deficient in a number of respects and required leave to amend, and that additional steps were taken as a result of the amendment are factors which must be taken into account.
- [24]In view of those factors, the Tribunal does not believe it is in the interests of justice that any costs order be made in these proceedings. Rather, as is contemplated by section 100 QCAT Act, there should be no order as to costs.