Matthews v Spence[2021] QCAT 85

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr Matthews commenced an Application for a tree dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘ND Act’) in April 2019 by filing it in the Bundaberg Magistrates Court seeking orders in respect of trees located on Mr and Mrs Spence’s land.  He also sought the filing fee of $338.20 and ‘attendance cost for Brisbane $300.’  Mr and Mrs Spence’s Response filed 8 May 2019 essentially submitted that the parties had reached an agreement and that the application was unnecessary.
2. [2]
   Mr Matthews filed an Application for miscellaneous matters on 24 May 2019 seeking additional costs including for title searches, a copy of the registered plan and postage costs.  The documents had been directed to be filed and served.^[1]
3. [3]
   In September 2019 Mr Mathews requested a refund of the $500 tree assessor fee he had paid as Mr and Mrs Spence had trimmed the trees the subject of the dispute and he requested that final orders requiring maintenance of the trees be made.  The refund was subsequently processed.
4. [4]
   The Application for miscellaneous matters filed 24 May 2019 was dismissed by direction dated 13 September 2019.
5. [5]
   The matter was listed for a compulsory conference by telephone on 21 February 2020. The terms of an agreement were reached at or shortly after the compulsory conference by all parties signing and returning a copy of the agreement by 5 March 2020.  The agreement essentially provides for Mr and Mrs Spence to engage an arborist yearly and for them to carry out the recommended work to maintain the trees along the boundary.  Another term of the agreement was that Mr Matthews reserved his right to seek his costs. 
6. [6]
   Member Gordon, who convened the Compulsory Conference, essentially ordered that if all parties signed the agreement reached at the compulsory conference that the proceeding would be regarded as withdrawn.^[2]
7. [7]
   On 3 July 2020 Mr Matthews filed an Application for miscellaneous matters seeking all costs applied for in the application filed 5 April 2019 and in the Application for miscellaneous matters filed 24 May 2019.
8. [8]
   Directions were made to facilitate the determination on the papers of this application for an order for costs.^[3]
9. [9]
   I now proceed to determine the costs application.
10. [10]
    The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides, ‘[o]ther 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.’^[4] The starting point may be displaced, if the Tribunal considers it is in the interests of justice to do so.^[5] 
11. [11]
    The then President, Justice Wilson in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)^[6] stated at [4]:

This presumption may, however, be displaced if the Tribunal considers it is in the interests of justice to order a party to pay all or part of the costs of another party: s 102(1). 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 obviously confers a broad discretionary power on the decision-maker.

12. [12]
    The then Deputy President, Judge Kingham in Ascot v Nursing & Midwifery Board of Australia^[7] stated at [9]:

The public policy intent of the provisions in the QCAT Act is plain. The tribunal was established as a no costs jurisdiction. That may be departed from where the interests of justice require it. 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.

13. [13]
    I consider the factors referred to in section 102(3) of the QCAT Act, to the extent they are relevant, to determine if the interests of justice point to a costs award.  Those considerations are largely in the nature of what may be regarded as ‘entitling’ or ‘disentitling’ factors.  The parties’ submissions do not clearly address these factors.
14. [14]
    If an order is made, the Tribunal should fix the costs if possible.^[8]   Mr and Mrs Spence take issue with at least some of the costs, in particular the claimed attendance costs and point to lack of evidence as to such costs and their participation in the Tribunal proceedings by telephone.
15. [15]
    The Tribunal may award costs at any stage of a proceeding or after the proceeding has ended.^[9]

Whether a party acts in a way that unnecessarily disadvantages another party^[10]

16. [16]
    I am not satisfied that Mr and Mrs Spence acted in a way which unnecessarily disadvantaged Mr Matthews in the proceedings.  This is not a factor in favour of an award of costs.
17. [17]
    Mr Matthews’ submissions appear to rely upon this factor.  He refers to ‘bad behaviour’ by Mr and Mrs Spence.  The evidence submitted in support of this contention demonstrates a further dispute between them in relation to a dividing fence and demonstrates that Mr Matthews has made complaints about certain alleged behaviour to various authorities including police.  Mr and Mrs Spence dispute the allegations as to bad behaviour on their part and point to there being no evidence of them being charged or fined.
18. [18]
    This factor refers to disadvantage to the person in their capacity as a party to the tribunal proceeding, rather than disadvantage generally.^[11]
19. [19]
    The proceedings were disposed of at a reasonably early stage, in that no final hearing had been set down at the time of its resolution by agreement. 
20. [20]
    The Tribunal file indicates that most, if not all, proceedings were conducted by telephone.
21. [21]
    As an agreement was reached a determination of the merits of the Application for a tree dispute after a final hearing was not made. 
22. [22]
    One of the factors enlivening the Tribunal’s jurisdiction to make orders is whether the applicant made a reasonable effort to resolve the matter by agreement prior to bringing the proceedings.^[12]  The material filed by the parties shows that this was an issue in dispute in the proceedings about which no final determination was made.  When deciding costs, the Tribunal is not obliged to decide what the outcome of a dispute would have been if it had been finally determined in the proceedings.^[13]

The nature and complexity of the dispute^[14]

23. [23]
    This is not a factor in favour of the award of costs. 
24. [24]
    The dispute was not overly complex. 

The relative strengths of the claims^[15]

25. [25]
    This is not a factor in favour of an award of costs.
26. [26]
    The Appeal Tribunal in Barnett & Anor v Pirrone & Anor ^[16] confirmed that ‘the issue of prospects of success is not central’ where the proceeding was withdrawn.^[17]

For a proceeding for the review of a reviewable decision – whether the applicant was afforded natural justice by the decision-maker and whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits^[18]

27. [27]
    This factor is not relevant to an Application for a tree dispute.

The financial circumstances of the parties^[19]

28. [28]
    This is not a factor in favour of an award of costs.
29. [29]
    There is little evidence about either party’s financial position.

Anything else the Tribunal considers relevant^[20]

30. [30]
    A relevant factor is often whether a settlement offer was made, and that the decision of the Tribunal is not more favourable to the other party than the offer.^[21]  There was no decision of the Tribunal as to the merits of the dispute, so this factor is not applicable.

Summary

31. [31]
    The factors are not in favour of an award of costs.
32. [32]
    I am not satisfied that it is in the interests of justice to make an order for costs.