Fox v Queensland Building and Construction Commission
[2024] QCAT 456
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- Unreported Judgment
- Fox v Queensland Building and Construction Commission[2024] QCAT 456
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Fox v Queensland Building and Construction Commission[2024] QCAT 456
Fox v Queensland Building and Construction Commission[2024] QCAT 456
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Fox v Queensland Building and Construction Commission [2024] QCAT 456 |
PARTIES: | richard thomas fox (applicant) v queensland building and construction commission (respondent) |
APPLICATION NO/S: | OCR009-24 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 18 October 2024 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application for a Builder-Low Rise licence refused – where subsequent reconsideration of the decision and licence granted – where applicant withdrew review application and applied for costs – approach to costs orders in the Tribunal – whether order for costs should be made Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 100, s 102 Atanaskovic v Birketu Pty Ltd [2023] NSWCA 312 Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333 Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs) [2022] QCAT 225 Cantamessa v Queensland Building and Construction Commission (No 2) [2021] QCAT 213 Fuge v Queensland Building and Construction Commission [2014] QCAT 383 Lourey v Legal Profession Complaints Committee [2012] WASCA 112 Marzini v Health Ombudsman (No 4) [2020] QCAT 365 Medical Board of Australia v Wong [2017] QCA 42 Motor Vehicle Industry Board v Dawson [2006] WASAT 8 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 Porteous v Pharmacy Board of Australia (No 2) [2021] QCAT 390 Pound v Queensland Building and Construction Commission [2023] QCAT 298 Richards & Anor v Queensland Building and Construction Commission & Anor (No 2) [2019] QCAT 372 Stuart v Queensland Building and Construction Commission [2016] QCATA 135 Young v Legal Profession Complaints Committee [2022] WASCA 52 |
APPEARANCES & REPRESENTATION: | 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
- [1]The applicant has applied for costs in relation to his application to review the initial decision of the respondent (‘the QBCC’) to disallow a licence application for a Builder-Low Rise. Following a reconsideration of that decision and the approval of the licence, the applicant withdrew his review application before the Tribunal and made an application for costs in the sum of $19,031.49, of which $15,375 is for ‘professional fees’.
- [2]Sections 100 to 109 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) deal with the issue of costs. Section 100 of the QCAT Act is headed ‘Each party usually bears own costs’ and provides:
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.
- [3]Section 102 is headed ‘Costs against party in interests of justice’ and provides:
- 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.
- 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.
- In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
- 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);
- the nature and complexity of the dispute the subject of the proceeding;
- the relative strengths of the claims made by each of the parties to the proceeding;
- 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;
- the financial circumstances of the parties to the proceeding;
- anything else the tribunal considers relevant.
- [4]
[36] The approach taken in the Victorian cases in particular, is that the ‘general rule’ that each party bears their own costs reflects the objects of the Act and is designed to promote access to justice generally and minimise the overall level of costs in tribunal proceedings as far as is practicable.
[37] That approach also seems appropriate to the Queensland legislation, where, by s 3(b), the objects include ‘to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick’.
[38] The link between the s 3 objects and s 100 of the QCAT Act is evident from the Explanatory Note to the QCAT Bill, which states: ‘The Bill will achieve its objective of dealing with matters in a way that is accessible, fair, just, economical, informal and quick’, including by ‘providing that parties bear their own costs in proceedings unless the tribunal considers the interests of justice require it to order otherwise’.
- [5]In relation to the interplay between s 100 and s 102 of the QCAT Act, in Pound it is further stated:[3]
[41] The objects of the QCAT Act, including the issues of access to the Tribunal and the minimisation of costs, provide an appropriate reference point for s 100 of the QCAT Act and, in that context, may be placed in the balance along with the s 102(3) interests of justice considerations. The interplay between s 100 and s 102(3) may well vary, depending on the impact a costs order in the case at hand might have on access to justice and the other objectives in s 3 of the QCAT Act.
[42] For example, the prospect of an adverse costs order is likely to weigh heavily on any decision to seek review of certain administrative decisions, which will potentially have a significant impact on access to justice. On the other hand, in relation to body corporate disputes involving significant monetary or other considerations, the interests of justice in awarding costs, as alluded to by Keane JA in Tamawood, might weigh heavily in favour of a costs order. In those circumstances, the disincentive of a potential costs order in bringing a matter before the Tribunal is less likely to loom so large and, accordingly, considerations of access to justice might weigh relatively lightly in the balance against a costs order.
[43] On that basis, the underlying concern of s 100, in particular of not impeding access to justice and maintaining a low cost jurisdiction, may simply be placed in the balance along with the s 102(3) considerations, with the weight accorded to it being largely dependent on the nature and scope of the proceedings.
- [6]There have been a number of decisions dealing with the award of costs against regulatory bodies. In a decision of the Queensland Court of Appeal in Medical Board of Australia v Wong,[4] it was stated:
Absent a finding, which this Court was not asked to make, that the Board’s characterisation of Dr Wong’s conduct as professional misconduct was unreasonable, there can be no proper criticism of the Board for bringing and prosecuting this proceeding as it did. No finding was sought here that the Board acted in bad faith. It must be kept in mind that the Board has a statutory responsibility for the protection of the public in this context and the fact that the outcome was not that which was sought should not of itself burden the Board with an order for costs, especially in a proceeding in QCAT where the starting position is that prescribed by s 100. I would add that the Board’s concern for the protection of the public in the present case was clearly reasonable from Dr Wong’s very serious misconduct in 2012.
- [7]
… the Tribunal considers that, ordinarily, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against a vocational regulatory body simply because the application was not successful.
- [8]In a decision of this Tribunal in Fuge v Queensland Building and Construction Commission,[7] it was stated:
I reiterate that under the QBCC Act, the Commission has a dual function in administrating the Act. That is, to protect the public interest and also the interests of building contractors. In doing so it must not be reticent in discharging its obligations for fear of adverse costs orders against it if it is unsuccessful in responding to an application for review of its decisions unless it can be demonstrated, there is some specific conduct on the part of the Commission, that would ‘so compellingly’ overcome the strong contra-indication against costs orders in s 100 of the QCAT Act. I am not satisfied that this is the case here.
- [9]Also, in Porteous v Pharmacy Board of Australia (No 2),[8] in which case the decision of the respondent to suspend the registration of the applicant was set aside, after referring to the ‘default position’ in s 100 of the QCAT Act, Judicial Member J Robertson stated that in ‘the absence of a finding that the Board acted unreasonably, or in bad faith, the default position should not be readily departed from’.[9]
- [10]The decisions in Wong, Young, and Porteous involved disciplinary proceedings, while the decision in Fuge dealt with the question of whether Mr Fuge should be categorised as an excluded individual under the QBCC Act. The above passage in Fuge has been adopted in other decisions of the Tribunal dealing with non-disciplinary regulatory decisions of the respondent.[10]
- [11]Central to the decisions noted above is the idea that a regulatory body should not be reticent in discharging functions that include an element of public protection, which might be compromised if a consequence of its decisions is that it could be faced with adverse costs orders. On the other hand, a costs order might be appropriate where the regulatory body has acted unreasonably or in bad faith.[11]
- [12]It is in that context that the present application for costs is considered. The applicant submits that his application has had a ‘tortuous history’. It is said that the licence was refused four months after the application was made on 14 June 2023 and the internal review process took a further two months. Reference is also made to extensions of time allowed for the respondent to file its material in the Tribunal. In essence, the applicant says that he had provided sufficient material to justify the granting of the licence at the outset and that the only additional material provided by him after the compulsory conference, which was held on 23 April 2024, was some photographs of work he had completed. It is added that at least prior to the commencement of the QCAT proceedings on 11 January 2024, the respondent had all of the information that it considered in its reconsidered decision, which was made on 29 May 2024.
- [13]On the other hand, the respondent submits that the applicant revised his licence application on 19 July 2023 and that there were communications between the parties over August and September 2023 in relation to further required information. Its decision of 18 October 2023 refusing the application was on the basis that the prescribed experience requirements had not been satisfied. By Tribunal directions dated 23 April 2024, following a compulsory conference, the applicant was directed to file any further material in relation to two specified projects. The applicant filed a further 20 pages of material on 7 May 2024, which included an ‘Experience Report and Declaration’ and references in relation to the two projects. The respondent filed its reconsidered decision on 29 May 2024. The respondent submits that at the time of the initial decision the applicant had provided material that substantiated only 29 months of the requisite 48 months of experience and that it was only upon the provision of the additional material that it could be satisfied that the applicant had the requisite experience to be granted a licence. While the two referees had provided earlier reports, the later reports differed in detail. It is not the case that the additional material filed on 7 May 2024 was confined to some photographs of work completed.
- [14]On the material filed, it is not evident that the respondent acted unreasonably or in bad faith. While that factor is not conclusive, other factors are not supportive of a costs order in favour of the applicant. The applicant’s submissions that the respondent unnecessarily disadvantaged him, that the respondent’s conduct of the Tribunal proceedings was vexatious, that there was a denial of natural justice, and as to the relative strength of his claim are largely based on the premise, which is rejected, that the respondent had not properly considered his application in the first place. Reference is also made to the financial position of the applicant, but no detail in that regard has been provided.
- [15]Weighing the considerations outlined in relation to the operation of s 100 and s 102 of the QCAT Act, in the circumstances of the present matter a costs order is not appropriate.
- [16]Given that it has been concluded that a costs order should not be made, it is not necessary to draw any conclusions in relation to the costs claimed by the applicant. Nevertheless, brief comment is made in relation to the claim for $15,375, described as ‘Fennec Services professional fees’. In the ‘charge out sheet’, the fees are recorded as incurred by the applicant as Manager of Fennec Services and describe work carried out in conducting the present proceedings. It is evident that the applicant is not a legal practitioner. Also, there was no application by the applicant for leave to be represented.
- [17]As a general rule, at common law a self-represented litigant will not be awarded costs for the value of their time spent in litigation and, since the decision in Bell Lawyers Pty Ltd v Pentelow,[12] that general rule extends to legal practitioners who represent themselves.[13] There is nothing in the QBCC Act or QCAT Act that indicates an intention to abrogate that general rule. Accordingly, where a litigant appears in person, generally there is an entitlement to out of pocket expenses only.[14]
- [18]The application for costs is dismissed.
Footnotes
[1] [2023] QCAT 298 (‘Pound’).
[2] Ibid, [36]-[38] (citations omitted).
[3] Ibid, [41]-[43] (citations omitted).
[4] [2017] QCA 42, [37] (McMurdo JA, with whom Morrison JA and Mullins J agreed) (‘Wong’).
[5] [2022] WASCA 52, [260] (‘Young’).
[6] Motor Vehicle Industry Board v Dawson [2006] WASAT 8, [47]. See also Paridis v Settlement Agents Supervisory Board [2007] WASCA 97, [36]; Lourey v Legal Profession Complaints Committee [2012] WASCA 112, [81]-[82].
[7] [2014] QCAT 383, [28] (‘Fuge’).
[8] [2021] QCAT 390, [19], [21] (‘Porteous’).
[9] Compare Marzini v Health Ombudsman (No 4) [2020] QCAT 365, [27]-[29]. Though in that case, in effect, the findings were that the regulator had not acted reasonably: see at [90].
[10] See, for example, Stuart v Queensland Building and Construction Commission [2016] QCATA 135, [58]; Cantamessa v Queensland Building and Construction Commission (No 2) [2021] QCAT 213, [20]-[21]; Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs) [2022] QCAT 225, [117].
[11] See, for example, Richards & Anor v Queensland Building and Construction Commission & Anor (No 2) [2019] QCAT 372, where costs were awarded against the QBCC in circumstances where it was considered that there had been a denial of procedural fairness to the applicants, who were also disadvantaged by the way in which the QBCC progressed their matter.
[12] (2019) 269 CLR 333 (‘Bell Lawyers Pty Ltd’).
[13] In Bell Lawyers Pty Ltd, the High Court held that the so-called Chorley exception, which allowed solicitors to charge for their own time in representing themselves, was not part of the common law of Australia. One issue, in Bell Lawyers Pty Ltd, was whether the Chorley exception should extend to barristers. In the event, the High Court abolished the Chorley exception altogether. Compare Atanaskovic v Birketu Pty Ltd [2023] NSWCA 312, which considered the question of whether the partners of an unincorporated law firm could recover costs for work done by employed solicitors of that firm in prosecuting legal proceedings brought by the partners of the firm.
[14] Bell Lawyers Pty Ltd (n 10) [17], per Kiefel CJ, Bell, Keane and Gordon JJ.