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  4. Polywell Pty Ltd v Brisbane City Council, Environmental Health/Compliance & Regulatory Services - [2017] QCAT 42

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Polywell Pty Ltd v Brisbane City Council, Environmental Health/Compliance & Regulatory Services[2017] QCAT 42

Polywell Pty Ltd v Brisbane City Council, Environmental Health/Compliance & Regulatory Services[2017] QCAT 42

CITATION:

Polywell Pty Ltd v Brisbane City Council, Environmental Health/Compliance & Regulatory Services [2017] QCAT 42

PARTIES:

Polywell Pty Ltd t/as Golden Palace Chinese Resturant

(Applicant)

v

Brisbane City Council, Environmental Health/compliance & Regulatory Services

(Respondent)

APPLICATION NUMBER:

GAR344-14

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

DELIVERED ON:

13 February 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application for miscellaneous matters filed 31 August 2016 is dismissed

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY – COSTS – PARTIES AND NON-PARTIES  LEGAL PRACTITIONER – Where order made in favour of decision-maker on review  – Where applicant company de-registered before decision published – Where costs application made by decision-maker against company and legal representatives – Whether costs orders should be made

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 100, s 102(3)

Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601

Tamawood Ltd & Anor v Paans [2005] QCA 111

Tracey v Olinderidge Pty Ltd & Wagner [2015] QCAT 7

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412

Steindl Nominees P/L v Laghaifar [2003] QCA 157

McEwen -v- Barker Builders [2010] QCATA 49

 

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. [1]
    On 7 July 2016, this tribunal handed down a decision confirming an earlier decision of the Brisbane City Council to cancel the Food Business Licence (‘FBL’) then held by Polywell Pty Ltd for the business the Golden Palace Chinese Restaurant situated in Brisbane’s Fortitude Valley.
  2. [2]
    The hearing of this matter had spanned three days – 24 July and 30 October 2015 and 3 March 2016.  Between the final day’s hearing and the handing down of the decision on the matter on 7 July 2016, and unbeknown to this tribunal at the time of the decision, on 22 May 2016 Polywell Pty Ltd was de-registered. 
  3. [3]
    On 31 August 2016, the Council filed an application for costs against Polywell Pty Ltd (the original applicant) and against Polywell’s legal representatives, Ms Martinovic of Counsel and Mr Arthur Comino, Solicitor of the firm Stephen Comino and Arthur Comino Lawyers.  The Council did not apply for costs against the directors of Polywell personally.
  4. [4]
    The Council was advised of the company de-registration by letter from the Solicitors for the company on 13 September 2016.  QCAT was advised the next day.
  5. [5]
    As a result of the de-registration, effectively the only costs applications that viably remain are those against the lawyers personally.  However, as part of these reasons, I will address  the any order I would have made against the company, if it had not been de-registered.
  6. [6]
    The starting point concerning costs in QCAT is that each party must bear its own.[1]  This presumption may be displaced if the Tribunal considers it in the interests of justice to order a party to pay all or part of the costs of another party.[2] The phrase “in the interests of justice” is not defined in the Act but is to be construed according to its ordinary and plain meaning, which confers a broad discretionary power on the decision-maker.[3]
  7. [7]
    Under section 102 of the QCAT Act, 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.
  8. [8]
    In determining whether it is in the interests of justice to award costs against another party the Tribunal may have regard to the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; and, whether a party has acted in a way that unnecessarily disadvantages another party.[4]
  9. [9]
    The then President, Justice Wilson in Ralacom Pty Ltd, held that:

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 section 100.[5]

Costs against Polywell Pty Ltd

  1. [10]
    Under s 102(3) of the QCAT Act, in deciding whether to award costs, the tribunal may have regard to the following—
    1. 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);
    2. the nature and complexity of the dispute the subject of the proceeding;
    3. the relative strengths of the claims made by each of the parties to the proceeding;
    4. 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;
    5. the financial circumstances of the parties to the proceeding;
    6. anything else the tribunal considers relevant.
  2. [11]
    Submissions in support of the application against Polywell were received from the Council.  Because of its de-registration, no response was received from Polywell.
  3. [12]
    The Council does not submit the proceedings were vexatiously commenced or that there were not matters that warranted consideration.  The Council submits that overall, the discretion to award costs is enlivened because the prospects of success were limited as a result of the conviction of Polywell for offences against the Food Act, the compliance history of the company, the complexity of the matter and the manner in which the proceedings were conducted, in particular, misconceived arguments relied upon by Polywell.
  4. [13]
    In particular, the Council made the following submissions:

Whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding:

  1. [14]
    The Council submitted a multitude submissions from Polywell were demonstrably wrong as matters of fact and law, giving some examples:
  1. the role of the tribunal being defined incorrectly;[6]
  2. incorrectly stating a FBL can only be cancelled if there is a conviction for breaches or there are exceptional circumstances;[7]
  3. arguing the “compliance history” was not relevant or admissible as there was no properly adduced or legally admissible evidence[8] and that prior history to the cancellation of the first FBL in 2012 were irrelevant;[9]
  4. haphazardly using criminal/prosecution proceeding rules and applying them to the matter e.g. that the convictions of Polywell for offences against the Food Act could not be considered as no conviction was recorded;
  5. claiming the granting of the new FBL was an admission by Council that Polywell was a fit and proper person to hold a licence;[10]
  6. misapplying the provisions of the Food Act and the Food Standards Code by relying on the application of the HACCP principles;
  7. submitting the business required an FBL to be sold when an FBL attaches to the person carrying on the food business, not the business itself.[11]
  1. [15]
    The Council submits these errors resulted in unnecessary cross-examination of witnesses to support of positions which were inherently wrong, complicating the matter and lengthening the hearing. 
  2. [16]
    The Council further submits that Polywell’s written submissions were disjointed, rambling and illogical in parts, contained numerous erroneous statements, the misapplication and merging of legal principles, the statement of legal principles that just do not exist, unsubstantiated statements and generally made submissions that were in direct conflict with the legislation and settled case law.  The effect of these submissions was an overly onerous and time consuming process to address the matters and ensure that the Tribunal was provided with the correct information. 
  3. [17]
    The Council finally submits this conduct unnecessarily disadvantaged itself, resulting in it incurring additional legal costs to respond to the litany of submissions that were “unmeritorious, and doomed to fail”.[12]

The nature and complexity of the dispute

  1. [18]
    The Council submits the matter was not overly complex and that conduct caused the complexity.  The Council also refers to Tamawood Ltd v Paans[13] in support of the conclusion that engaging the services of legal representatives to assist in conducting a complex case was a sufficient basis alone “to conclude that the interests of justice warranted the exercise of the discretion to award costs in favour of the successful party, at least in the absence of any countervailing consideration”[14].
  2. [19]
    That case concerned costs in the former Commercial and Consumer Tribunal, and although the Commercial and Consumer Tribunal Act 2003 in s 70 and s 71 created a presumption in favour of parties bearing their own costs, those sections were not in precisely the same terms as s 100 and s 102 of the QCAT Act.
  3. [20]
    In exercising this discretion, account must be taken of the strong contra-indication against costs orders in section 100 of the QCAT Act.

The relative strengths of the claims of each of the parties and natural justice; Whether Polywell genuinely made an attempt to help the decision-maker; the financial circumstances of the parties

  1. [21]
    The Council submits that the prospects of success by Polywell were limited and that almost every single argument and legal position relied on by the company was baseless, unsubstantiated and lacked merit.
  2. [22]
    I consider this a very sweeping submission.  I am satisfied natural justice was afforded to Polywell by the Council.  The Council is also of the view that Polywell did not genuinely attempt to assist this Tribunal to make a decision on the merits.
  3. [23]
    The Council accepts there is a disparity between the financial circumstances of the parties but no evidence was provided by the de-registered company as to its financial position.

Discussion

  1. [24]
    These parties came to this review with fundamental differences of opinion about the interpretation and application of the legislation and food standards involved.  Much of the evidence turned on the difference between compliance with the food standards and risk assessment analysis. 
  2. [25]
    There was detailed expert evidence on both sides provided to assist me to make the correct and preferable decision. The experts were credible and experienced and I was grateful for their assistance, but their views differed substantially.
  3. [26]
    With such a stark contrast, there was always going to be one view not accepted.  Here it was Polywells.
  4. [27]
    I acknowledge that the Council’s representatives, with hindsight, submit that what they perceived as self-evident from the beginning, should have been accepted by Polywell.
  5. [28]
    A review of a decision to this tribunal enhances the quality and consistency of decisions made by decision-makers and the openness and accountability of public administration[15]  This is furtherance of the stated objects of the QCAT Act. The submissions provided by the Council were of assistance to this tribunal.
  6. [29]
    However I am satisfied that, despite the length and complexity of this matter, both the specific and general objects of the QCAT Act were complied with.
  7. [30]
    I am not satisfied that there is a compelling case presented by the Council in this matter to overcome the strong costs indication in the QCAT Act to order that Polywell should bear the Council’s costs.
  8. [31]
    The application for costs against Polywell, were it still registered, would not be granted. The application is dismissed.

Costs against the legal representatives

  1. [32]
    The second costs application in this matter is against the legal representatives personally.
  2. [33]
    The tribunal has a discretion to award costs against a party’s representative as compensation for unnecessary costs.[16]  This discretion is exercisable if the representative unnecessarily disadvantages another party to the proceedings.
  3. [34]
    The principles of such an award of costs against a representative are set out in Tracey v Olinderidge Pty Ltd & Wagner[17] and I respectfully adopt them.  They are that error by a representative is not sufficient to establish unnecessary disadvantage to another party; that there must usually be evidence of bad faith, misconduct or an improper purpose by the representative;[18] and that examples are representatives acting without proper authority in commencing proceedings[19] or continuing with a manifestly untenable action.[20]
  4. [35]
    In support of its application, the Council submits that the conduct of the company described above could be views as almost entirely attributed to the legal representatives.
  5. [36]
    I have already considered and dismissed the Council’s costs application against Polywell itself.
  6. [37]
    In making this submission the Council relies on  In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)[21] where Justice Wilson referred to the comments of Justice Davies,[22] in Steindl Nominees P/L v Laghaifar[23] who stated:

I would prefer to say that it is one thing to present a case which is barely arguable (but arguable nevertheless) but most likely to fail; it is quite another to present a case which is plainly unarguable and ought to be so to the lawyer who presents it. In my opinion, with respect, it is improper for counsel to present, even on instructions, a case which he or she regards as bound to fail because, if he or she so regards it, he or she must also regard it as unarguable. [Emphasis added].

  1. [38]
    It is not suggested by the Council that the application to review the Council’s decision was itself so misconceived it warrants a costs order.
  2. [39]
    The Council has not chosen to identify particular complaints against each legal representative but rather to address submissions against both counsel and solicitor collectively. The onus is on the Council to establish its case against each party to this costs application and the submissions do not do this.
  3. [40]
    Instead, Council submits that the general conduct which occurred as part of that application and misleading and baseless submissions is the conduct identified as unnecessarily disadvantaging the Council.  It says any competent and diligent lawyer who had properly considered the matters could not, and should not, have relied on such a volume of erroneous matters.
  4. [41]
    The Council asserts the representatives’ conduct was frivolous and, while perhaps not intentionally, frustrated the proceedings, causing so many matters of fact and law to be in dispute and needlessly lengthening the hearing.
  5. [42]
    In reply, Ms Martinovic points out that the power to award costs against her is circumscribed by first, the general proposition set out in s 100 of the QCAT Act and then by the limiting  terms of s 102(3)(a) of that Act.
  6. [43]
    Ms Martinovic submits it is implicit in s 103 that there first must be a finding that an applicant for costs has been “unnecessarily disadvantaged” and then a further finding that a representative, rather than the respondent party to the application, be liable for costs.
  7. [44]
    In support of this submission, Ms Martinovic relies on the decision of Wilson P in McEwen v Barker Builders[24] where his Honour states

[17] 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.

[18] I am satisfied that the circumstances here do compel the exercise of the discretion in the respondent’s favour, particularly in light of the factors mentioned in s 102(3). The present applications attempt to go behind a settlement agreement which was intended to finalise the matter, and with which the applicant concurred; and to introduce new evidence that purports, much too late, to question the integrity of the Tribunal’s decisions – but, without raising any reasonably arguable grounds for the relief sought. In the words of s 102(3)(a), the applicant has acted in a way which ‘unnecessarily disadvantages’ the respondent, obliging it to incur additional legal costs to resist applications which were unmeritorious, and doomed to fail.

  1. [45]
    In Ms Martinovic’s view, there is simply no basis in the transcript or in the reasons for identification of the Council’s global criticism of the legal representatives and that “hyperbole” is no substitute to overcoming the statutory hurdle identified by Wilson P in McEwen v Barker Builders.
  2. [46]
    In Mr Comino’s submissions in reply he submits the Council seeks an order against the representatives as there is no utility in an order against the Company, as it is de-registered.
  3. [47]
    Having traversed section 102(3)(a) of the QCAT Act, the principles appearing in Tracey v Olinderidge Pty Ltd & Wagner and Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) (referred to above), Mr Comino submits:
    • the proceedings were commenced with authority of the company;
    • there was no express statement in the original reasons that the proceedings were hopeless or an abuse of process;
    • an application at the beginning of the matter to have the application struck out was refused;
    • the cross-examination of council witnesses focused on council inspections in July and August 2014 and the Council itself brought the regulatory history of the company into evidence.

Discussion

  1. [48]
    I am not informed by the Council’s submissions – other than in a generalised way – of the substantive allegations again each individual legal representative.  It is therefore left to me consider the costs application against the representatives at a generalised level. 
  2. [49]
    I re-iterate and rely on the comments I made above in dismissing the costs application against Polywell.  These parties came to this review with fundamental differences of opinion about the interpretation and application of the legislation and food standards involved and there was always going to be one view not accepted.
  3. [50]
    Again I acknowledge that the Council’s representatives submit that what they perceived as self-evident from the beginning, should have been accepted by Polywell.  This remains the implied major criticism by the Council in all these submissions.
  4. [51]
    I am not satisfied the evidence has proven an error by a representative sufficient to establish unnecessary disadvantage to another party other than any disadvantage arising in the normal course of litigation for the losing party.  This was not a “plainly unarguable” case but rather a fundamental difference of opinion about the interpretation and application of the legislation and food standards involved, where one view would be accepted.
  5. [52]
    I am not satisfied the Council’s application against the legal representatives is made out.  The application for costs against Ms Martinovic and Mr Comino is dismissed.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100.

[2] Ibid, s 102(1).

[3] Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601 at 613 (per Kirby P).

[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102(3).

[5] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412, [29].

[6] Detailed at paragraphs 31 – 36 of Part 3 of the Submissions of Polywell.

[7] Paragraph 28(a) and (b) of Part 1 of the Submissions of Polywell.

[8] Paragraph 23 of Part 1 of the Submissions of Polywell.

[9] Paragraphs 23 – 27 of Part 1 of the Submissions of Polywell.

[10] Paragraph 14 of Part 1 of the Submissions of Polywell.

[11] The wording of s 49 of the Food Act states “A person must not carry on a licensable food business unless the person holds a licence to carry on the business”.

[12] As this term was used in McEwen v Barker Builders Pty Ltd [2010] QCATA 49 at [18].

 [13] [2005] QCA 111 at [30].

[14] Ibid at [32].

[15] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(d)(e).

[16] QCAT Act, s 103(1).

[17] [2015] QCAT 7 at [16].

[18] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 at [39].

[19] Ibid at [48].

[20] Ibid at [56].

[21] [2010] QCAT 412 at [53].

[22] with whom Justices Williams and Philippides agreed.

[23] [2003] QCA 157 at [24].

[24] [2010] QCATA 49 at paras [17] and [18].

Close

Editorial Notes

  • Published Case Name:

    Polywell Pty Ltd t/as Golden Palace Chinese Restaurant v Brisbane City Council, Environmental Health/Compliance & Regulatory Services

  • Shortened Case Name:

    Polywell Pty Ltd v Brisbane City Council, Environmental Health/Compliance & Regulatory Services

  • MNC:

    [2017] QCAT 42

  • Court:

    QCAT

  • Judge(s):

    Member Gardiner

  • Date:

    13 Feb 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Herron v Attorney-General for N.S.W. (1987) 8 NSWLR 601
2 citations
Jump To
Cite 1 - (1987) 8 NSWLR 601
Cite 2 - (1987) 8 NSWLR 601
McEwen v Barker Builders Pty Ltd [2010] QCATA 49
3 citations
Jump To
Cite 1 - [2010] QCATA 49
Cite 2 - [2010] QCATA 49
Cite 3 - [2010] QCATA 49
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
6 citations
Jump To
Cite 1 - [2010] QCAT 412
Cite 2 - [2010] QCAT 412
Cite 3 - [2010] QCAT 412
Cite 4 - [2010] QCAT 412
Cite 5 - [2010] QCAT 412
Cite 6 - [2010] QCAT 412
Steindl Nominees Pty Ltd v Laghaifar[2003] 2 Qd R 683; [2003] QCA 157
2 citations
Jump To
Cite 1 - [2003] QCA 157
Cite 2 - [2003] QCA 157
Tamawood Ltd v Paans[2005] 2 Qd R 101; [2005] QCA 111
3 citations
Jump To
Cite 1 - [2005] QCA 111
Cite 2 - [2005] QCA 111
Cite 3 - [2005] QCA 111
Tracey v Olinderidge Pty Ltd [2015] QCAT 7
2 citations
Jump To
Cite 1 - [2015] QCAT 7
Cite 2 - [2015] QCAT 7

Cases Citing

Case NameFull CitationFrequency
Health Ombudsman v Armstrong (No.2) [2019] QCAT 2541 citation
Health Ombudsman v du Toit [2024] QCA 235 2 citations
Newnham Constructions Pty Ltd v Bernie (No. 2) [2022] QCAT 3203 citations
1

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