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- Unreported Judgment
Chapple v Queensland Building and Construction Commission QCAT 175
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Chapple v Queensland Building and Construction Commission  QCAT 175
MARK ANDREW CHAPPLE
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
General administrative review matters
18 June 2019
On the papers
The application for miscellaneous matters filed on 17 May 2019 is dismissed.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where respondent reconsidered decision at early stage in proceedings – whether a costs order should me made
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 23, s 43, s 100, s 102
Ascot v Nursing and Midwifery Board of Australia  QCAT 364
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)  QCAT 412
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- On 17 May 2019, Mr Chapple filed an application for miscellaneous matters, seeking that the Queensland Building and Construction Commission (‘the QBCC’) pay his costs of and incidental to the proceedings.
- Section 100 of the Queensland Civil and Administrative Act 2009 (Qld) (‘the QCAT Act’) sets out the starting point in relation to 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.
- Section 102 of the QCAT Act permits the Tribunal to depart from this position if the interests of justice require it to make a costs order:
- (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.
- (2)However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.
- (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.
- In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2), Wilson J stated:
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.
- In Ascot v Nursing and Midwifery Board of Australia, Kingham DCJ noted:
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.
History of the dispute
- On 27 August 2018, the QBCC determined that a domestic building contract between Mr Chapple and the home owners was validly terminated by the home owners. This decision had the consequence of allowing a claim under the statutory insurance scheme.
- On 20 September 2018, Mr Chapple sought an internal review of that decision.
- On 23 October 2018, the QBCC advised Mr Chapple that as 28 days had elapsed without the internal review being completed, a decision had been deemed to have been made that is that is the same as the original decision.
- On 14 November 2018, Mr Chapple filed an application to review the QBCC’s decision with the Tribunal.
- On 9 January 2019, I made standard directions in relation to the conduct of the proceedings.
- On 2 April 2019, the parties filed an application for decision/order by consent with the Tribunal. The orders sought were that relevant directions made on 9 January 2019 were vacated, and the application be returned to the QBCC for reconsideration pursuant to s 23 of the QCAT Act.
- On 12 April 2019, Senior Member Aughterson made directions in the terms sought.
- On 2 May 2019, the QBCC reconsidered its decision and set aside the decision made on 23 October 2018. In its place, the QBCC substituted a decision that the domestic building contract had not been validly terminated by the home owners. This decision had the consequence of disallowing a claim under the statutory insurance scheme.
- I note that throughout the proceedings, Saal and Associates Lawyers have purported to act on behalf of Mr Chapple.
- The effect of s 43 of the QCAT Act is that parties in proceedings in this Tribunal are to represent themselves unless the interests of justice require otherwise. Section 43 relevantly provides as follows:
- (1)The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise.
- (2)In a proceeding, a party—
- (a)may appear without representation; or
- (b)may be represented by someone else if—
- (i)the party is a child or a person with impaired capacity; or
- (ii)the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or
- (iii)an enabling Act that is an Act, or the rules, states the person may be represented; or
- (iv)the party has been given leave by the tribunal to be represented.
- (3)In deciding whether to give a party leave to be represented in a proceeding, the tribunal may consider the following as circumstances supporting the giving of the leave—
- (a)the party is a State agency;
- (b)the proceeding is likely to involve complex questions of fact or law;
- (c)another party to the proceeding is represented in the proceeding;
- (d)all of the parties have agreed to the party being represented in the proceeding.
- In accordance with s 43(2)(b)(iv), Mr Chapple requires the leave of the Tribunal to be legally represented as he does not satisfy s 43(2)(b)(i) to s 43(2)(b)(iii). At no stage was Mr Chapple granted leave to be represented by Saal and Associates.
- Mr Chapple central submission in support of his application for costs is that the QBCC did not afford him procedural fairness during its decision making process, and as a consequence he had no choice but to commence proceedings in the Tribunal. I accept this submission, and this is a relevant consideration under s 102(3)(d) of the QCAT Act.
- I further accept that once Mr Chapple was provided with an opportunity to address the relevant issues with the QBCC, the QBCC made a decision in his favour. This is also a relevant consideration under s 102(3)(c) of the QCAT Act.
- However, I do not accept that the QBCC has acted in a way that unnecessarily disadvantaged Mr Chapple for the purposes of s 102(3)(a). Indeed, a powerful factor against awarding costs is that the QBCC consented at an early stage in the proceedings to reconsidering its decision, which it then did in Mr Chapple’s favour. To the extent that Mr Chapple had no choice but to commence proceedings in the Tribunal, the QBCC’s conduct led to the proceedings being resolved in his favour at an early stage.
- Another powerful factor against awarding costs is that Mr Chapple appears to be seeking the costs of him being legally represented in the proceedings. As noted above, Mr Chapple was not granted leave to be legally represented pursuant to s 43 of the QCAT Act. I note that the only other costs likely incurred by Mr Chapple would be the filing fee.
- I have considered the parties submissions on costs in full. In my view, the circumstances of this case fall well short of the level required to overcome the strong contra-indication against awarding costs contained in s 100 of the QCAT Act.
- Published Case Name:
Chapple v Queensland Building and Construction Commission
- Shortened Case Name:
Chapple v Queensland Building and Construction Commission
 QCAT 175
18 Jun 2019