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Till v Logan City Council (No. 2)[2020] QCATA 11

Till v Logan City Council (No. 2)[2020] QCATA 11

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Till v Logan City Council (No. 2) [2020] QCATA 11

PARTIES:

SALESHNI SARIKA TILL

(appellant)

 

v

 

LOGAN CITY COUNCIL

(respondent)

APPLICATION NO/S:

APL367-16

ORIGINATING

APPLICATION NO/S:

GAR286-15

MATTER TYPE:

Appeals

DELIVERED ON:

10 January 2020

HEARING DATE:

23 July 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding

Member Hughes

ORDERS:

  1. Each party must pay their own costs in the appeal proceeding.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – GENERALLY – where strong indicator against awarding costs – whether in interests of justice to award costs—

where no disadvantage caused by other party’s actions—where relative strengths of parties’ claims did not support award of costs – where apparent dichotomy in parties’ resources did not support award of costs – where no basis to award indemnity costs – where appellant did not displace strong indicator against awarding costs – whether in interests of justice to award costs

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(c), s 23, s 100, s 102, s 102(3)

Airstrike Industrial Pty Ltd v Robertson & Anor [2014] QCATA 209

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Campbell v Kerry M Ryan Pty Ltd [2014] QCATA 58

Colgate-Palmolive v Cussons (1993) 46 FCR 225

Creek v Raine & Horne Mossman [2011] QCATA 226

Crusty Devil Bakehouses Pty Ltd v WAW Developments Pty Ltd [2013] QCAT 159

Gardener & Ors v OLGR & Anor [2012] QCAT 62

Joanne Baxter and Fifties Food Pty Ltd v Subway Realty Pty Ltd & Anor [2013] QCAT 316

Lowik v Carl Linklater Pty Ltd [2010] QCAT 287

Pierpont v Zanetti & Ors [2012] QCAT 171

QBSA v Johnston [2011] QCATA 265

Queensland All Codes Racing Industry Board v Abbott (No. 2) [2016] QCATA 49

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

Till v Logan City Council [2018] QCATA 150

Wharton v Duffy (QLD) Pty Ltd [2016] QCATA 12

APPEARANCES &

REPRESENTATION:

 

Applicant:

R W Haddrick, instructed by Mahoneys Solicitors

Respondent:

N Lichti, solicitor of Minter Ellison

REASONS FOR DECISION

  1. [1]
    Costs in the Tribunal are not awarded as a matter of course. Each party must pay their own costs,[1] unless the Tribunal considers the interests of justice require it to order a party pay another party’s costs.[2]
  2. [2]
    There is, therefore, a strong indicator against awarding costs:

Under the QCAT Act the question that will 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 cots orders in s 100.[3]  

  1. [3]
    It is within this context that Ms Till applied for Logan City Council (‘the Council’) to pay the costs of her successful appeal. In deciding whether it is in the interests of justice to award costs, the Tribunal may have regard to prescribed circumstances.[4]
  2. [4]
    For the below reasons, we are not satisfied that Ms Till has displaced the strong indication against awarding costs that is provided for in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

Did either party act in a way that disadvantages another party to the proceeding?

  1. [5]
    Ms Till’s submissions on costs focused on the parties’ conduct before and during the review proceeding in GAR286-25. Ms Till has separately applied for costs in that proceeding. The phrase ‘the proceeding’ refers to conduct in the current proceeding before the Tribunal.[5] The relevant proceeding for which the Appeal Tribunal is required to determine costs is the appeal proceeding.[6]
  2. [6]
    Any disadvantage must be ‘unnecessary’, as distinct from a disadvantage experienced in the usual course of litigation.[7] Mere error by the Council and its representatives is not sufficient to establish unnecessary disadvantage to another party. Procedural irregularities and deficiencies are disadvantages experienced in the usual course of litigation.[8] Rather, evidence of bad faith, misconduct or improper purpose is usually required.[9]
  3. [7]
    Nothing in Ms Till’s submissions shows any evidence of bad faith, misconduct or other improper purpose in the Council responding to her appeal, nor was the appeal proceeding necessitated by conduct meeting this threshold.  
  4. [8]
    This circumstance does not supports an award of costs.

What was the nature and complexity of the dispute? 

  1. [9]
    We accept that the nature and complexity of the appeal justified legal representation. The appeal raised complex issues of jurisdiction and statutory construction.
  2. [10]
    Nevertheless, in a jurisdiction that contemplates self-representation, a party’s decision to engage legal representation is to be made carefully and with a modicum of ‘legal costs economy’.[10] Ms Till’s total costs were quantified at $79,047.53, including some $24,393.30 for the appeal proceeding.[11] We consider this amount disproportionate to the nature and complexity of the dispute: the Tribunal is a jurisdiction where ordinary people expect to litigate with a minimal risk of a costs order.[12] 
  3. [11]
    A local council, required to respond to an appeal as a part of its statutory duties relating to the administration of relevant legislation concerning the management of animals, is entitled to proceed on the basis that, perhaps absent any inappropriate conduct on its part not in keeping with the requirement to act as a model litigant, that its risk of exposure to a costs order is low. 

What were the relative strengths of the claims made by each of the parties?

  1. [12]
    Ms Till succeeded in her appeal. However, the error forming the basis for the successful appeal was based on many of Ms Till’s submissions at first instance.[13]
  2. [13]
    Moreover, much of the Appeal Tribunal’s limited resources were devoted to her many submissions on estoppel and the Tribunal’s power to make a declaration about the legal validity of the Council’s decisions. The Appeal Tribunal observed that the ‘validity of the decisions was not relevant to deciding whether they were reviewable decisions’ for the purposes of the QCAT Act,[14] and there was ‘no apparent merit in Ms Till’s argument’.[15]  So, although she succeeded on appeal, her own actions resulted in incurring unnecessary costs in the appeal proceedings.
  3. [14]
    Ms Till’s lengthy submissions about the validity of the Council decisions were neither a successful ground of appeal nor necessary to determine the appeal. They would more properly form the basis for an application for judicial review. Legal representation should have made this evident.
  4. [15]
    In this regard, it is well established that parties must be careful in their dealings with the Tribunal:

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[16]

  1. [16]
    The relative strengths of the parties’ claims do not support an award of costs.

What are the financial circumstances of the parties?

  1. [17]
    Ms Till submitted that the Appeal Tribunal should consider the Council’s ‘far greater resources’ as a circumstance to order costs. It is not unusual in review applications in general,[17] and animal management applications in particular, for the decision-maker to have considerably more resources than the private citizen seeking review. The Tribunal’s mandate to conduct proceedings in a way that minimises costs and is as quick as is consistent with achieving justice[18] is predicated on this dichotomy.    
  2. [18]
    The alleged disparity in the parties’ resources of itself does not support an award of costs. Further, we observe that Ms Till provided no evidence of her own financial position. Although it might be inferred that most individuals have limited financial resources and that a local council may have greater overall resources, this would not be sufficient to support an award of costs on Ms Till’s costs application.

Is anything else relevant to award costs?

  1. [19]
    We do not consider any of Ms Till’s putative offers or the Council’s delay in responding to specified correspondence from Ms Till related to the review proceeding   are  relevant circumstances to support an award of costs. Once the review jurisdiction was enlivened, only the Tribunal (and later, the Appeal Tribunal) could determine the matter or invite the Council to re-consider the matter.[19]
  2. [20]
    Further, Ms Till’s submissions that the Council used its statutory power for an improper purpose because it advised the Tribunal (on 1 March 2016) in the review proceeding that, in effect, it did not propose to argue that the destruction orders should be upheld in the review, are not relevant in the appeal proceeding. In any event, we observe that the Council was obliged to disclose any changes to its views about the correct and preferable decision in the review proceeding.
  3. [21]
    We do not consider that any of the other matters raised in Ms Till’s submissions are relevant to determining costs in the appeal proceeding.

Should the Appeal Tribunal award indemnity costs?

  1. [22]
    The Courts are loathed to make orders for indemnity costs in the absence of some contumelious conduct by a party.[20] No such conduct was evident in the appeal proceeding.
  2. [23]
    There is no basis to award indemnity costs.

What is the appropriate Order?

  1. [24]
    Upon weighing these factors, we are not satisfied that Ms Till has displaced the strong indicator against awarding costs.
  2. [25]
    The appropriate order is that each party pay their own costs of the appeal.

Footnotes

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

[2]  Ibid s 102.

[3] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412, [9].

[4]  QCAT Act s 102(3).

[5] Pierpont v Zanetti & Ors [2012] QCAT 171, [44].

[6]  Decision dated 23 July 2019; Transcript page 1-22, lines 32-41.

[7] QBSA v Johnston [2011] QCATA 265, [31]; Crusty Devil Bakehouses Pty Ltd v WAW Developments Pty Ltd [2013] QCAT 159, [14]; Joanne Baxter and Fifties Food Pty Ltd v Subway Realty Pty Ltd & Anor [2013] QCAT 316, [12]; Campbell v Kerry M Ryan Pty Ltd [2014] QCATA 58, [8]; Airstrike Industrial Pty Ltd v Robertson & Anor [2014] QCATA 209, [7].

[8] Campbell v Kerry M Ryan Pty Ltd [2014] QCATA 58 (fail to comply with directions); Gardener & Ors v OLGR & Anor [2012] QCAT 62 (application made out of time, affidavit with material alleged to be misleading and offensive, late amendment of an application); Joanne Baxter and Fifties Food Pty Ltd v Subway Realty Pty Ltd & Anor [2013] QCAT 316 (seeking an urgent hearing then requesting an adjournment, making objections without putting other party on notice, referring to evidence not previously provided); Airstrike Industrial Pty Ltd v Robertson & Anor [2014] QCATA 209 (failing to progress proceedings in a timely manner).

[9] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412, [39].

[10] Lowik v Carl Linklater Pty Ltd [2010] QCAT 287, [21].

[11]  Affidavit of Mitchell Downes sworn 21 March 2019. 

[12] Wharton v Duffy (QLD) Pty Ltd [2016] QCATA 12, [15].

[13]  Applicant submissions dated 23 June 2016, [43]–[51]; [96].

[14] Till v Logan City Council [2018] QCATA 150, [32].

[15]  Ibid, [36].

[16] Creek v Raine & Horne Mossman [2011] QCATA 226 [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.

[17] Queensland All Codes Racing Industry Board v Abbott (No. 2) [2016] QCATA 49, [18].

[18]  QCAT Act s 4(c).

[19]  QCAT Act s 23.

[20] Colgate-Palmolive v Cussons (1993) 46 FCR 225.

Close

Editorial Notes

  • Published Case Name:

    Till v Logan City Council (No. 2)

  • Shortened Case Name:

    Till v Logan City Council (No. 2)

  • MNC:

    [2020] QCATA 11

  • Court:

    QCATA

  • Judge(s):

    Senior Member Howard, Member Hughes

  • Date:

    10 Jan 2020

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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