Pivovarova v Michelsen[2020] QCATA 148

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This Appeal proceeding (the First Appeal) relates to a dispute between a builder, Mr Michelsen and a homeowner, Ms Pivovarova.  The only substantive issue remaining to be determined in the First Appeal is the question of costs. 
2. [2]
   Ms Pivovarova seeks an order that Mr Michelsen pays $2,658.66 calculated as follows:

   1. (a)
      Appeal Application filing fees $285.00;
   2. (b)
      Transcript costs $2,360.16;
   3. (c)
      Postage fee to serve transcript $13.50.
3. [3]
   The Appeal Tribunal in the First Appeal, as originally constituted, consisted of the then President, Justice Thomas and me. Our view was that:^[1]

The factors in favour of an award of costs and against any order for costs are finely balanced.

4. [4]
   We decided that the question of costs should be adjourned until the final decision of the matters remitted to the Tribunal by order dated 10 June 2015 had been made.^[2] 
5. [5]
   The learned Member delivered a decision on the matters remitted (the Remitted Decision).^[3]  Ms Pivovarova was ordered to pay Mr Michelsen $40,990 together with interest.  The Remitted Decision was on its face more favourable to Ms Pivovarova than the learned Member’s initial decision, which was that she pay Mr Michelsen $47,800 plus interest and costs of $275.
6. [6]
   Ms Pivovarova appealed the Remitted Decision to the Appeal Tribunal (the Second Appeal).  The Appeal Tribunal dismissed the Second Appeal. ^[4]  Ms Pivovarova sought leave to appeal the Appeal Tribunal’s decision in the Second Appeal to the Court of Appeal.  The Court of Appeal dismissed Ms Pivovarova’s application for leave to appeal.^[5]  Ms Pivovarova then applied for Special Leave to Appeal to the High Court of Australia, which was also dismissed.^[6]
7. [7]
   Ms Pivovarova’s submissions on the issue of costs indicated that I should disqualify myself.  Directions allowing Ms Pivovarova to apply for such orders were made.^[7]
8. [8]
   By Application for miscellaneous matters dated 2 November 2017, Ms Pivovarova sought the following orders:

   1. (a)
      Member Deane recuses herself as part of the appeal tribunal;
   2. (b)
      Member Deane should be removed from the appeal APL337-13 pursuant to sections 4(f) to (g) and 166(2) of the QCAT Act.

9. [9]
   The Application for miscellaneous matters and the question of costs of the First Appeal were adjourned pending the outcome of the appeals process, including most recently the Application for Special Leave to Appeal to the High Court of Australia.^[8]  It is now appropriate that these matters be determined. 

Should I disqualify myself?

10. [10]
    I am not satisfied that I should disqualify myself from deciding the question of costs of the First Appeal. 
11. [11]
    The High Court of Australia considered the issue of judicial bias in Ebner v The Official Trustee in Bankruptcy^[9] and acknowledged that it is fundamental to our system of law that hearings are ‘conducted by an independent and impartial tribunal.’^[10]
12. [12]
    The High Court of Australia outlined the principles as follows:^[11]

    1. (a)
       the first step is to identify what interest or fact might lead a decision maker to decide a case other than on its legal and factual merits. 
    2. (b)
       the second step is to outline the logical connection between the matter identified and the possibility of departure from impartial decision making.
    3. (c)
       the third step is to assess the reasonableness of the apprehension of bias i.e. whether a fair-minded and well-informed lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to determining the question to be decided on its merits.
13. [13]
    It noted:^[12]

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong.  They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause.  Judges do not choose their cases; and litigants do not choose their judges.  If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

…. if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench.  That would be intolerable.

14. [14]
    Ms Pivovarova’s submissions do not expressly deal with these matters.

Not qualified and experienced

15. [15]
    The Appeal Tribunal was constituted in accordance with the usual practice of the Tribunal.^[13]
16. [16]
    Ms Pivovarova contends that as an ordinary member I am not qualified and sufficiently experienced to make any decision on the appeal matters even in combination with a judicial member where the decision appealed from was a decision of another ordinary member and that I made ‘many basic errors in law’ in my reasons^[14] and that if the then President had conducted the Appeal and written the reasons it is highly likely such errors would not have been made.^[15]  In this part of her submissions, Ms Pivovarova does not specify the errors to which she refers nor does she refer to any subsequent judicial or tribunal findings or commentary to substantiate such a contention. 
17. [17]
    It is not uncommon for one member of a decision-making panel to write draft reasons for decision and other members to record their agreement or otherwise.  This approach was taken by the Court of Appeal in Ms Pivovarova’s application for leave to appeal.^[16] 
18. [18]
    The then President expressly agreed with the reasons and the orders proposed.^[17] If he had not agreed he would have stated his disagreement and as the presiding member his decision would have prevailed.^[18] 
19. [19]
    The President is empowered to choose suitably qualified members to constitute the tribunal for a particular appeal or application whether or not in combination with a judicial member.^[19]  The then President chose to constitute the Appeal Tribunal for the First Appeal having regard to the matters set out in section 167 of the QCAT Act, which include the nature, importance and complexity of the mater and the need to have special knowledge, expertise or experience relating to the matter. 
20. [20]
    As stated earlier in these reasons, the only substantive issue remaining to be determined in the First Appeal is the question of costs. 
21. [21]
    The current President chose to reconstitute the Appeal Tribunal having regard to the matters set out in section 167 of the QCAT Act, subsequent to the resignation of the former President, to deal with the remaining issue of the costs of the First Appeal.^[20]
22. [22]
    It is a well-accepted principle that the decision maker who heard the substantive proceeding is normally the most suitable person to hear and decide a costs application.  As we noted in our reasons, we accepted Ms Pivovarova’s submission that due to the complexities of the appeal we were better placed to decide the issue of costs of the appeal than to allow the issue to be decided on the redetermination.^[21] 
23. [23]
    I accept that adverse remarks made during a proceeding or in reasons for decision by a decision maker may indicate partiality, but Ms Pivovarova does not suggest adverse remarks were made.
24. [24]
    The Appeal Tribunal in the First Appeal did not allow all her grounds but rather overturned a number of findings at first instance primarily because of the inadequacy of the learned Member’s reasons.  Ms Pivovarova’s submissions are reliant upon the contention that the Appeal Tribunal’s decision was in error in not accepting all her grounds and submissions.
25. [25]
    As His Honour Crow J stated:

An allegation of bias against any tribunal is a serious matter and ought not to be brought without particulars.  Simply because a party’s arguments are not accepted and their case rejected does not establish bias.’^[22]

Breach of section 4(f) to (g) of the QCAT Act

26. [26]
    Ms Pivovarova contends that the Tribunal is in breach of these provisions and that I should be removed from this matter due to:

…incompetence, unprofessionalism, inappropriate and bias conduct, deliberate disregarding the law in favour of Mr Michelsen against Ms Pivovarova, not maintaining specialist knowledge, expertise and failing to ensure the appropriate use of the knowledge, expertise and experience.^[23]

27. [27]
    Section 4 of the QCAT Act provides:

To achieve the objects of this Act, the tribunal must –

…

(f) maintain specialist knowledge, expertise and experience of members and adjudicators; and

(g) ensure the appropriate use of the knowledge, expertise and experience of members and adjudicators;

…

28. [28]
    Ms Pivovarova contends that I am in breach of:

    1. (a)
       sections 3(c) to (d) of the QCAT Act by failing to promote and enhance the quality and consistency of decisions;
    2. (b)
       sections 3(b) and 28(2) of the QCAT Act by failing to deal with matter in a way that is fair and just;
    3. (c)
       section 4(d) of the QCAT Act by treating unlike cases alike;
    4. (d)
       section 4(f) to (g) of the QCAT Act in not maintaining specialist knowledge, expertise and experience and in not ensuring the appropriate use of the knowledge, expertise and experience.
29. [29]
    The First Appeal Tribunal previously dealt with similar submissions and identified that such submissions are misconceived.^[24] This is an attempt to reargue submissions not previously accepted.
30. [30]
    Ms Pivovarova identifies 10 grounds.  She contends by way of summary that every ‘error’ made by the Appeal Tribunal in the First Appeal was in favour of Mr Michelsen and that leads her to believe there is a conflict of interest or corruption.  She does not specify what the conflict of interest might be.  A bald assertion of corruption is an extremely serious allegation. 
31. [31]
    As I understand her submissions, Ms Pivovarova essentially contends that the findings made by the Appeal Tribunal in the First Appeal and my reasons in the First Appeal, with which she disagrees, is conduct which causes her to fear that I will decide the question of costs other than on its legal and factual merits.

Grounds 1, 2, 3, 5, 9, 10

32. [32]
    Ms Pivovarova contends that I treated Mr Michelsen more favourably in relation to the issue of substantial performance than I treated her in relation to the issue of liquidated damages including by disregarding the rules of natural justice and by applying unlike cases alike in breach of section 4(d) of the QCAT Act. 
33. [33]
    This is an attempt to reargue submissions that were not accepted by the Appeal Tribunal.

Ground 4

34. [34]
    Ms Pivovarova contends that I treated her unfairly by failing to adequately address her submissions that the learned Member falsified evidence in favour of Mr Michelsen.
35. [35]
    This is an attempt to reargue submissions that were not accepted by the Appeal Tribunal as raising an appellable error. 

Ground 6

36. [36]
    Ms Pivovarova contends that I erred in law by not finding that Mr Michelsen was in breach of the contract by installing bamboo flooring and by failing to provide adequate reasons and thereby benefitted Mr Michelsen rather than Ms Pivovarova. 
37. [37]
    This is an attempt to reargue submissions that were not accepted by the Appeal Tribunal.

Ground 7

38. [38]
    Ms Pivovarova contends that I failed to treat like cases alike in breach of section 4(d) of the QCAT Act by rejecting her submission and failing to provide adequate reasons for rejecting her submission relating to Radcliff and Anor v Walker.^[25] 
39. [39]
    This is an attempt to reargue submissions that were not accepted by the Appeal Tribunal.

Ground 8

40. [40]
    Ms Pivovarova contends that I misinterpreted the contract and the Domestic Building Contracts Act 2000 (Qld) in relation to the issue of minor omissions or minor defects in favour of Mr Michelsen.
41. [41]
    This is an attempt to reargue submissions that were not accepted by the Appeal Tribunal.

Summary

42. [42]
    The various reasons for decision demonstrate that Ms Pivovarova has raised a number of allegations of lack of competence, unfair treatment and bias by Tribunal Members throughout the course of this dispute.^[26]
43. [43]
    I have been unable to identify any substantiated allegations of this nature in the reasons for decisions of the Appeal Tribunal in the Second Appeal or the Court of Appeal. 
44. [44]
    In all of the circumstances, I am not satisfied that the matters raised would lead a fair-minded well-informed lay observer to reasonably apprehend that I might not bring an impartial mind to determining the question of costs of the First Appeal.  
45. [45]
    The Application for miscellaneous matters is therefore dismissed. 

Costs of the First Appeal

46. [46]
    I find that Mr Michelsen is to pay Ms Pivovarova’s costs of the First Appeal fixed in the amount of $1,329.33.
47. [47]
    The Appeal Tribunal in its decision of 25 February 2016 set out the parties’ submissions^[27] and the relevant considerations. It is not necessary to repeat those matters.  The relevant legislative provisions are found in the QCAT Act^[28] and the Queensland Building and Construction Commission Act 1991 (Qld).^[29]
48. [48]
    As stated earlier, the Appeal Tribunal considered that the factors in favour of and against a costs award were finely balanced.^[30]
49. [49]
    The Appeal Tribunal found the following factors are in favour of an award of costs:

    1. (a)
       the Appeal was a matter of some complexity.^[31]
    2. (b)
       the relative strength of Ms Pivovarova’s claim in the appeal, upon which she succeeded. Noting that she had strong grounds for overturning a number of findings because of the inadequacy of the learned Member’s reasons.^[32]
50. [50]
    The Appeal Tribunal noted that the factors against an award of costs are that:

    1. (a)
       Ms Pivovarova did not succeed on all grounds.^[33]
    2. (b)
       the inadequacy of reasons, the primary error established, was not a matter over which Mr Michelsen had any influence.^[34]
51. [51]
    The ultimate outcome is a factor, which the Appeal Tribunal previously found should also be weighed in the exercise of the discretion.^[35]  The Remitted Decision was somewhat, but not significantly, more favourable to Ms Pivovarova. 
52. [52]
    I accept that Ms Pivovarova’s ultimate success in reducing the amount awarded against her will be partly eroded through the costs incurred in the First Appeal.
53. [53]
    Another factor in favour of deferring the question of costs identified by the Appeal Tribunal was the inability to compare the ultimate outcome with any offers to settle.^[36]
54. [54]
    Further submissions were received from Ms Pivovarova.^[37] Mr Michelsen’s previous submissions indicated he did not intend to make further submissions as to costs.^[38]
55. [55]
    No offers to settle were brought to the Appeal Tribunal’s attention. 
56. [56]
    Ms Pivovarova submits that Mr Michelsen ought to be ordered to pay the costs of the First Appeal as he had benefitted from it as he was able to rely upon the doctrine of substantial performance rather than his claim as originally framed relying upon his reaching Practical Completion.  This is not a factor in favour of an award of costs.  In the Remitted Decision the learned Member clearly found that Practical Completion had been reached, which finding was not disturbed in the Second Appeal.^[39]
57. [57]
    Weighing all the factors, some of which favour an award and some of which do not, I consider that it is in the interests of justice for the costs of the First Appeal to reflect the ultimate outcome, being a measure of success by both parties with neither party being completely successful. 
58. [58]
    Where costs are awarded, they are to be fixed if possible.^[40]  I fix the costs at $1,329.33, being half of the costs claimed by Ms Pivovarova.