Winn v Boss Lawyers Pty Ltd[2018] QCAT 54

APPEARANCES and REPRESENTATION (if any):

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]
   The applicant seeks to have the tribunal’s order of 12 October 2017 awarding the respondent its costs thrown away for 3 May and 30 August 2017 totalling $3894.98 stayed pending the outcome of an application for correction. 
2. [2]
   The applicant failed to attend a hearing on 3 May 2017 without reasonable explanation or excuse.
3. [3]
   Then, two days before the postponed hearing resumed on 30 August, she provided a sparse, elliptical GP’s certificate dated 8 August 2017 – 2 weeks after the hearing date was fixed – stating that she would be unfit for court until 14 September 2017.
4. [4]
   The hearing of the original dispute over a costs agreement (brought by the applicant) has been continually plagued by the applicant’s unsatisfactorily explained delays and objections, which, as outlined in the tribunal’s earlier decision, are unsupported by sufficient proof.

Application to stay the decision of 12 October 2017

5. [5]
   The applicant has applied to stay the tribunal’s decision for costs thrown away pending the determination of the application for correction of those orders. In her application she says the orders are subject to a request for written reasons, however, full written reasons accompanied the order the applicant takes objection to. 
6. [6]
   She says she has an arguable case and the balance of convenience favours her, therefore justifying the stay.^[1]
7. [7]
   She says the tribunal must observe the rules of natural justice^[2] and that she was denied procedural fairness further justifying the stay on the basis that because she did not attend the 30 August 2017 hearing she did not have the opportunity to present facts and make submissions opposing the costs order and the opportunity to prevent the alleged miscalculation was missed.
8. [8]
   However, her non-attendance at the 30 August 2017 hearing was the reason a costs order was made. She did not take advantage of the opportunity she had to be heard by not turning up. If she had there would not have been any need to be heard on the question of costs. The tribunal cannot essentially re-make its finding as per the 12 October 2017 reasons about the sufficiency of her explanation for non-attendance to now justify staying its own decision.
9. [9]
   She also relies on the well-established principle that a stay operates to preserve the subject matter of the litigation pending review and that a stay may be granted where a failure to do so would render the appeal against the order nugatory.^[3]
10. [10]
    This argument undermines her position on the application to correct, practically admitting that it is, in fact, an appeal against that decision rather than a true correction.
11. [11]
    She says the order is prima facie incorrect and no stay would mean the order can be enforced before it is has been re-examined for error. The miscalculation she says is not insubstantial and the respondent should not hold the benefit of a significantly miscalculated order.
12. [12]
    She says that the respondent is now seeking enforcement and it would be “oppressive, onerous and unfair” for her to have to defend the enforcement of an incorrect, overstated order, whereas there is no detriment to the respondent if the order is stayed.
13. [13]
    It is difficult to see, however, how paying the order would render success in the application to have the order corrected nugatory. The applicant has not pointed to any evidence indicating how payment of the money order would have that effect.
14. [14]
    The respondent opposes the stay and says that the request for reasons is unusual because reasons were published on 12 October 2017 and if the correction is rejected also then there is no basis at all for a stay.
15. [15]
    The application to stay the decision ordering the applicant to pay the respondent’s costs thrown away is refused. If it is overturned an equivalent amount plus interest can always be repaid.

Application for correction

16. [16]
    The applicant contends that the tribunal may correct a decision if it contains a “material miscalculation of figures or a material mistake in the description of a matter, person or thing mentioned in the decision”.^[4]
17. [17]
    The applicant was granted an extension of time to file her application for correction.^[5] She claims not to have had adequate opportunity to address the respondent’s claim for costs in preparing for the hearing.
18. [18]
    With regards to the 3 May 2017, the applicant objects to the costs order essentially because no hearing took place, therefore the costs claimed by the Mr Harley and Ms Humzy are not legitimate. Furthermore, she says that as Ms Humzy is an office employee and not a solicitor she is not able to claim legal costs.
19. [19]
    She objects to the following costs because they were incurred after 3 May and do not relate to the original application to set aside the costs agreement:

• $36.67 on 4 May 2017 (read orders – Mr Harley)
• $12.50 on 16 May 2017 (send email – Ms Humzy)
• $37.50 on 24 May 2017 (telephone call – Ms Humzy)
• $183.33 on 24 May 2017 (send letter – Mr Harley)
• $660.00 on 30 may 2017 (prepare submission – Mr Harley)
• $293.33 on 31 May 2017 (amend submissions – Mr Harley)
• $183.33 on 31 May 2017 (prepare affidavit – Mr Harley)

20. [20]
    With respect to the 30 August 2017 hearing, the applicant says that the respondent did not provide evidence to substantiate any costs thrown away and instead stated that the costs would be “about the same” as those for 3 May 2017.
21. [21]
    She says this claim is baseless and the same (itemised) costs were not incurred again for 30 August 2017. She reiterates that the costs are not relevant to the application to set aside a costs agreement.
22. [22]
    The applicant’s objection to the costs ordered on the basis they are not related to the original application to set aside the costs agreement cannot be accepted. The applicant’s conduct in prosecuting her own case (or failing to) is the cause of the delays, adjournments and non-attendance related to the substantive hearing. To now draw a line in the sand between her substantive and procedural applications is to miss the point of the order entirely.
23. [23]
    She also objects to Mr Ben Cohen of Bartley Cohen Lawyers representing the respondent because she says he has not sought or been given leave to represent the respondent as required by the QCAT Act.^[6] There being no grant of leave, she claims, disentitles the respondent to claim any costs associated with his legal representation in relation to the proceeding on 30 August 2017.
24. [24]
    The respondent was granted leave to be represented on 15 November 2017.
25. [25]
    In conclusion, the applicant says no costs were thrown away for the 30 August 2017 hearing and accordingly the order should be “corrected” to an order for no costs. She says it is unjust for the respondent to hold the benefit of an order that has clearly been miscalculated or is incorrect.
26. [26]
    The respondent counters by stating that both applications – to have the order corrected and stayed in the meantime – are “completely misconceived”.
27. [27]
    It claims that even if s 135 QCAT Act was activated, the reasons for decision show that the order was appropriately made. Having failed in her attempt to re-open the costs decision at the 15 November 2017, the applicant is merely seeking the same relief under a different guise.
28. [28]
    The correction provision, argues the respondent, is not a “de facto appeal provision” but is the statutory manifestation of the “slip rule” limited to circumstances where the order does not accurately express the tribunal’s intention.
29. [29]
    The tribunal has the power to award all or a stated part of the costs of the other party if the interests of justice require it.^[7] The reasons of 12 October 2017 more than adequately explain why the tribunal considered this such a case.
30. [30]
    The tribunal must fix costs, if possible.^[8] The costs submitted by the respondent were used by the tribunal, having regard to the nature of the proceeding, to fix costs against the applicant as it is required to do, having decided it is in the interests of justice to do so.
31. [31]
    The application for correction is dismissed.