Independent Assessor v FJS (No 2)
[2023] QCAT 353
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- Unreported Judgment
- Independent Assessor v FJS (No 2)[2023] QCAT 353
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Independent Assessor v FJS (No 2)[2023] QCAT 353
Independent Assessor v FJS (No 2)[2023] QCAT 353
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Independent Assessor v FJS (No 2) [2023] QCAT 353 |
PARTIES: | independent assessor (applicant) v councillor conduct tribunal (first respondent) FJS (second respondent) |
APPLICATION NO/S: | GAR377-21 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 15 September 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: | The applicant is to pay the costs of the second respondent of and incidental to this review, to be assessed on the standard basis by a costs assessor appointed by the Registrar of the Tribunal, on the scale appropriate to a matter in the District Court under the Uniform Civil Procedure Rules. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – costs – test for costs order – whether shown to be in the interest of justice – order made Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100, s 102 CH v Queensland Police Service [2021] QCATA 137 Cowen v Queensland Building and Construction Commission [2021] QCATA 103 Goldfields Projects Pty Ltd v Queensland Building and Construction Commission (No 2) [2016] QCAT 495 Marzini v Health Ombudsman (No 4) [2020] QCAT 365 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Tamawood Pty Ltd v Paans [2005] 2 Qd R 101 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | Office of the Independent Assessor |
Respondent: | J Dillon, instructed by King & Co, Solicitors |
REASONS FOR DECISION
- [1]The applicant sought a review of the decision of the first respondent on 17 May 2021 that each of ten allegations made against the second respondent by the applicant, alleging misconduct for the purposes of the Local Government Act 2009 (Qld) (“the Act”), was not sustained. On 11 July 2023 I confirmed the decision of the first respondent, and gave directions as to costs.[1] The second respondent sought costs from the applicant; the applicant did not resist an order for costs, but made submissions as to the form of the order for costs. No party sought costs from the first respondent. For convenience, I shall refer to the second respondent just as “the respondent”.
Approach to an application for costs
- [2]There is no provision of the Act dealing with the costs of a review of a decision of the Conduct Tribunal. Hence the applicable provisions are those of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 100 and s 102. The position is that no order for costs is to be made, unless, relevantly, the Tribunal considers, in accordance with s 102, that the interests of justice require such an order.[2] It follows that it is necessary for the party seeking an order for costs to show that there is a sufficient basis under s 102 to depart from the position that there be no order as to costs. It is relevant that this is a proceeding in which the parties have a right to be legally represented.[3] The circumstances of and issues in the proceeding were set out in the earlier reasons.
Respondent’s submissions
- [3]The respondent, after outlining the applicable provisions and authorities, relied on three matters as showing that the interests of justice required an order for costs in her favour. These were:
- The nature and complexity of the dispute.
- That it was reasonable for the respondent to obtain legal representation.
- The relative strengths of the parties’ cases.
- [4]It was submitted that the matter involved difficult questions of statutory interpretation, on which there was no direct authority, and that this matter was in the nature of a test case. In those circumstances, and because the respondent was resisting allegations of misconduct as a councillor, it was reasonable to have legal representation. On the major issue, as to the interpretation of the Act, and on the issue of whether there was a conflict of interest, the applicant had been wholly unsuccessful. The decision of the Tribunal upheld the position taken by the respondent before the Conduct Tribunal, and did so convincingly. The applicant should be ordered to pay the respondent’s costs of the proceeding on the standard basis, to be agreed or assessed.
Applicant’s submissions
- [5]In written submissions the applicant agreed that this was a matter in which the applicant should be ordered to pay the respondent’s costs, but sought an order that those costs be assessed under the rules. Reference was made to the QCAT Act s 107. The applicant accepted that the matter was complex, and that it was necessary and reasonable for the respondent to engage legal representation. It was submitted however that the relative strengths of the cases should not be assessed with the benefit of hindsight, that success in the proceeding should not be regarded as the indicator of relative strengths, and that the applicant’s case was not such that the outcome of the proceeding was foreseeable or likely. The applicant also relied on the fact that some of the submissions advanced by the respondent were not accepted.
- [6]The applicant also referred to the decision on costs in Goldfields Projects Pty Ltd v Queensland Building and Construction Commission (No 2) [2016] QCAT 495. Although there is much in that decision with which I would agree, it relied on the earlier decision of Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412. I regard that decision, so far as it purported to speak of the approach to any order to costs under s 102(1), as involving an error of law, in imposing on a statutory discretion a constraint not arising from the statute. The practical effect of the Ralacom approach was to confine orders for costs to extreme cases. That is not what the QCAT Act says.
Consideration
- [7]Although much time was spent on the review working out the true construction and operation of certain transitional provisions of the Act, which had become opaque through the interaction of two separate amending acts, what this matter was really about was whether the respondent had committed misconduct as alleged by the applicant, by failing on a number of occasions to declare a conflict of interest. At some point, I do not know when, it was accepted by the applicant that at the relevant time the respondent did not know a fact which was relied on as showing the existence of the personal interest relied on for the conflict of interest. Once that position was reached, it should have been obvious to the applicant that its case against the respondent was a waste of time.
- [8]Just reading the definition of “conflict of interest” should have been enough to show that. As well, the applicant’s position involved the conclusion that the Act had imposed on the respondent an obligation to disclose something of which she was not aware. That is such an absurd outcome that it would have required pellucid and unambiguous legislative wording to impose it. To include something like that would deprive the concept of misconduct of all meaning. It strikes me as strange that the applicant was not able to work this out.
- [9]The respondent should never have been put in the position of having to defend herself, let alone resist a review. Accepting that this was a test case, that adds to the justification for her to have legal assistance, including counsel, and the applicant was represented by counsel including senior counsel. The fact that some of the issues raised by the respondent were not successful did not, in my view, matter. In defending herself against the charges, particularly in a test case, it was reasonable for her to raise every arguable point she could, even if some of them failed.
- [10]I have said so much just in response to the submissions for the applicant. In substance the parties are both seeking the same order, which I regard as appropriate. In the circumstances, it is unnecessary to consider if costs could be awarded on another basis. In view of the amount spent, and the absence of a breakdown of the figures given by the solicitor for the applicant, I do not feel in a position to fix the costs myself, and it would be better for them to be assessed under the rules. It is always open for the parties to short circuit that process, which is itself time consuming and expensive, by agreeing on a figure, but there is no need to mention that in the decision.
- [11]The decision of the Tribunal is that the applicant is to pay the costs of the second respondent of and incidental to this review, to be assessed on the standard basis by a costs assessor appointed by the Registrar of the Tribunal, on the scale appropriate to a matter in the District Court under the Uniform Civil Procedure Rules.
Footnotes
[1] [2023] QCAT 244.
[2] Marzini v Health Ombudsman (No 4) [2020] QCAT 365; Cowen v Queensland Building and Construction Commission [2021] QCATA 103; CH v Queensland Police Service [2021] QCATA 137; Queensland Building and Construction Commission v B&L Constructions Qld Pty Ltd (No 2) [2023] QCATA 107.
[3] The QCAT Act s 43(2)(b)(ii). See Tamawood Pty Ltd v Paans [2005] 2 Qd R 101 at [30].