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Williams v Queensland Building and Construction Commission[2016] QCATA 5

Williams v Queensland Building and Construction Commission[2016] QCATA 5

CITATION:

Williams v Queensland Building and Construction Commission [2016] QCATA 5

PARTIES:

Neil Joseph Williams

(Appellant)

V

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

APL096-15

MATTER TYPE:

Appeals

HEARING DATE:

4 November 2015

HEARD AT:

Brisbane 

DECISION OF:

Senior Member O'Callaghan

Member Hughes

DELIVERED ON:

7 January 2016

DELIVERED AT:

Brisbane

ORDERS MADE: 

  1. Neil Joseph Williams shall pay the Queensland Building and Construction Commission’s costs of the appeal and the application for stay on a standard basis calculated on the District Court Scale within 28 days of agreement or assessment.
  2. The Queensland Building and Construction Commission shall deliver an assessment of its costs to Neil Joseph Williams by 8 February 2016.
  3. Neil Joseph Williams shall deliver any response to the assessment by 8 March 2016.
  4. If the parties cannot agree on an amount for costs by 15 March 2016, costs shall be determined by an assessor appointed by the Principal Registrar.

CATCHWORDS:

COSTS – whether in the interests of justice to award costs – where leave to appeal refused – where relative strengths of parties’ cases may loom large in later proceedings – where lack of merit in appeal and application for stay – where requiring a successful party to pay all their own costs in meeting arguments fundamentally without merit unnecessarily burdens successful party – where statutory authority primarily funded by members of industry – where responding to unmeritorious appeal directs resources of statutory authority away from other important statutory functions – where not in interests of justice for members of industry to share costs of unmeritorious appeal by one member

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 100, 102, 103

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Body Corporate for Sunnybank v Coming Home Pty Ltd ATF The Coming Home Trust [2014] QCAT 192

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39

Fox v Percy (2003) 214 CLR 118

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77

Lida Pty Ltd v Miller & Anor [2011] QCATA 219

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412

Waterford v The Commonwealth (1987) 163 CLR 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).

REASONS FOR DECISION

What is this Application about?

  1. [1]
    Neil Joseph Williams is a builder who unsuccessfully applied for leave to appeal the Tribunal’s decision to confirm him as an ‘Excluded Individual’ because he was a Director, secretary or ‘influential person’ of a company with a liquidator appointed.
  2. [2]
    The Appeal Tribunal considered that all but one of Mr Williams’ grounds of appeal lacked merit. The Appeal Tribunal considered the remaining ground did not affect the learned Member’s ultimate finding and therefore did not lead to a ‘substantial injustice’.
  3. [3]
    The Appeal Tribunal therefore refused leave to appeal.
  4. [4]
    The Queensland Building and Construction Commission has now applied for its costs of responding to Mr Williams’ unsuccessful appeal and application for stay pending appeal.

Do the “interests of justice” require a party to pay another party’s costs?

  1. [5]
    Costs in the Tribunal are not awarded as a matter of course. Each party must pay their own legal costs,[1] unless the “interests of justice” require the Tribunal to order a party to pay the costs of another party.[2]
  2. [6]
    Despite this strong indicator against awarding costs,[3] the Tribunal has a broad discretion to award costs[4] and may regard prescribed circumstances.[5]
  3. [7]
    The apposite circumstance here is the lack of merit in most of Mr Williams’ appeal and related application for a stay. The relative strengths of the parties’ cases[6] may loom large when considering the costs of proceedings in later stages,[7] such as the costs of an appeal.
  4. [8]
    Although Mr Williams successfully argued that the learned Member erred in finding no evidence of personal loans to the business, it had no bearing on the outcome of the appeal. Appealing on the basis of an error which, even if proven, has no effect on the outcome places an unnecessary burden on the successful party.
  5. [9]
    Mr Williams also contended that the definition of “affairs of a company” in the context of an “influential person” is ambiguous and by implication, it was not unreasonable for him pursue proceedings in the Tribunal where his livelihood is at stake. However, the Tribunal had already made findings of fact based on the evidence without needing to define the term. Mr Williams’ appeal largely and unsuccessfully targeted those findings.
  6. [10]
    Mr Williams’ appeal was mainly devoted to individually isolating each of the learned Member’s findings to try to demonstrate that the evidence leading to that individual finding, can lead to other alternative inferences. However, the stay was previously refused on the grounds that Mr Williams had not shown an arguable case.
  7. [11]
    Merely because some evidence may support a different finding does not demonstrate an arguable case and is not a valid ground of appeal. Unfortunately for Mr Williams, an appeal is not an opportunity to re-argue the case.[8] The learned Member’s findings need only have been open on the evidence.[9] Overwhelmingly, they were.
  8. [12]
    By continuing to pursue an appeal on grounds that did not approach the legal threshold to overturn findings of fact, Mr Williams’ appeal was fundamentally without merit. His appeal thereby unnecessarily required the Commission to expend time and resources to respond.
  9. [13]
    Mr Williams also contended that the financial circumstances of the parties[10] did not warrant a costs order. He submitted that the Commission has ‘all the power and wealth of the State behind it’, whereas he is a small concreting business owner. However, Mr Williams did not present any evidence of his financial circumstances.
  10. [14]
    Moreover, the Commission is a statutory authority primarily funded by members of the industry, rather than the State. Responding to appeals fundamentally without merit directs resources away from its other important statutory functions, including educative functions to assist the industry as a whole. It is therefore not in the interests of justice that other members of the industry share the costs of an unmeritorious appeal by one of its members.
  11. [15]
    The purpose of a costs order is not to punish Mr Williams but to compensate the successful party for costs it has needlessly incurred.[11] Although Mr Williams’ appeal was fundamentally without merit, the issues were sufficiently complex to warrant the Commission engaging legal representation.
  12. [16]
    The interests of justice therefore warrant that Mr Williams pay the Commission’s costs of the appeal and the application for stay on a standard basis on the District Court scale.  
  1. [17]
    The appropriate Orders are therefore:
    1. Neil Joseph Williams shall pay the Queensland Building and Construction Commission’s costs of the appeal and the application for stay on a standard basis calculated on the District Court Scale within 28 days of agreement or assessment.
    2. The Queensland Building and Construction Commission shall deliver an assessment of its costs to Neil Joseph Williams by 8 February 2016.
    3. Neil Joseph Williams shall deliver any response to the Commission’s assessment by 8 March 2016.
    4. If the parties cannot agree on an amount for costs by 15 March 2016, costs shall be determined by an assessor appointed by the Principal Registrar.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100.

[2] Ibid, s 102.

[3]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 at paragraph [29].

[4]Body Corporate for Sunnybank v Coming Home Pty Ltd ATF The Coming Home Trust [2014] QCAT 192 at [16].

[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102(3).

[6]  Ibid, s 102(3)(c).

[7]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77 at [10].

[8]Lida Pty Ltd v Miller & Anor [2011] QCATA 219 at [12]; Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 at [9].

[9]Fox v Percy (2003) 214 CLR 118 at 125-6; Waterford v The Commonwealth (1987) 163 CLR 54 at 77; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341; Dearman v Dearman (1908) 7 CLR 549 at 561.

 

[10] Queensland Civil and Administrative Tribunal Act 2009 (Qld), section 103(e).

[11]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 at [56].

Close

Editorial Notes

  • Published Case Name:

    Neil Joseph Williams v Queensland Building and Construction Commission

  • Shortened Case Name:

    Williams v Queensland Building and Construction Commission

  • MNC:

    [2016] QCATA 5

  • Court:

    QCATA

  • Judge(s):

    Senior Member O'Callaghan, Member Hughes

  • Date:

    07 Jan 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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