Holgar v Chief Executive, Department of Justice and Attorney-General
[2022] QCATA 27
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- Holgar v Chief Executive, Department of Justice and Attorney-General[2022] QCATA 27
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Holgar v Chief Executive, Department of Justice and Attorney-General[2022] QCATA 27
Holgar v Chief Executive, Department of Justice and Attorney-General[2022] QCATA 27
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Holgar v Chief Executive, Department of Justice and Attorney-General & Ors [2022] QCATA 27 |
PARTIES: | Teresa Halina Holgar (applicant/appellant) v The Chief Executive, Department of Justice and Attorney General, office of Fair Trading (first respondent) And THE REAL ESTATE EXHCHANGE (BRISBANE) PTY LTD (second respondent) And ROBERT IAN HYDE (third respondent) |
APPLICATION NO/S: | APL009-20 |
ORIGINATING APPLICATION NO/S: | GAR343-17 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 2 March 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Howard, Presiding Member Member Fitzpatrick |
ORDERS: | The second and third respondent’s application for payment of their costs of the appeal proceeding is dismissed. |
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where appeal from review of decision refusing access to fund under Agents Financial Administration Act 2014 (Qld) – whether it is in the interests of justice to award costs – effect of offer to settle Agents Financial Administration Act 2014 (Qld), s 25, s 103(2)(c) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 106, s 107 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 65, r 86 Campbell v Queensland Building and Construction Commission [2021] QCATA 34 Cowen v Queensland Building and Construction Commission [2021] QCATA 103 Owltown Pty Ltd v Norwinn Commercial (costs) [2020] QCATA 145 Queensland Racing Integrity Commission v Vale [2017] QCATA 110 Tamawood Ltd & Anor v Paans [2005] QCA 111 |
APPEARANCES & REPRESENTATION: | |
Applicant: | K Gover of Counsel, instructed by W Cusack of Lillas and Loel Lawyers |
First Respondent: | A Tan, Acting Manager, Claims and Recoveries, Office of Fair Trading |
Second and Third Respondents: | B Heath, Solicitor, Carter Newell 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]By decision delivered on 15 September 2021, the appellant’s application for leave to appeal or appeal was dismissed.
- [2]The second and third respondents filed an application seeking an order that the appellant Ms Holgar pay the second and third respondent’s costs of the appeal proceedings. The second and third respondents have also sought their costs of the review application, which will be dealt with by the Member below.
- [3]The first respondent has not filed any application seeking its costs of the appeal and has not filed any submissions in this application.
- [4]Ms Holgar, the second respondent, and the third respondent have filed submissions in relation to the application. The solicitor for the second and third respondents filed an affidavit setting out the history of the matter and addressing the quantum of his clients’ claim for costs.
Power to award costs
- [5]The question of costs is dealt with under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
- [6]Section 100 of the QCAT Act relevantly provides that other than as provided under the QCAT Act each party to a proceeding must bear the party’s own costs for the proceeding.
- [7]Section 102 of the QCAT Act provides that the appeal tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party if the appeal tribunal considers the interests of justice require it to make the order. The appeal tribunal may have regard to a number of factors set out in section 102(3)(a) – (f) of the Act. These are not grounds for awarding costs, but factors to be considered as a whole, within the context of the facts and circumstances of each case.[1]
- [8]The second and third respondents have referred to the outcome of costs applications in a range of cases. Although helpful to a degree, an award of costs arises from the exercise of a discretion conferred by section 102(a) of the QCAT Act and is exercised judicially on a case by case basis.[2]
Submissions
- [9]The second and third respondents submit that:
- (a)By reference to section 102(3)(a) Ms Holgar acted in a way which unnecessarily disadvantaged them in the proceeding. They point to:
- Ms Holgar requiring the grant of an extension of time for the filing of her application for leave to appeal or appeal. We note that the delay in filing the application for leave to appeal or appeal was a short delay of 8 days.
- Delays in compliance with the Appeal Tribunal’s directions timetabling steps to be taken in preparation for determination of the application for leave to appeal or appeal. We note that the Appeal Tribunal granted extensions of time to Ms Holgar for compliance and extended time for compliance with responsive steps by the respondents. It is not contended that the respondents’ case was compromised by any delays.
- An increase in the second and third respondents’ costs in dealing with the appeal as a result of delays. Mr Heath’s affidavit refers to correspondence with Ms Holgar’s solicitors and the registry of the Tribunal. The second and third respondents opposed Ms Holgar’s applications for extension of time and pressed for the dismissal of Ms Holgar’s application by way of correspondence. No submissions have been made as to the amount of any extra costs incurred as a result of Ms Holgar’s delays, however Ms Holgar submits that Mr Heath’s affidavit refers to seven letters from his firm in relation to the delay issues.
- More broadly, that a decision of the Chief Executive of 19 October 2017 to reject Ms Holgar’s claim on the claim fund, has taken four years to be litigated and finalised and that this delay is largely due to Ms Holgar’s conduct. The allegation is not particularised other than by reference to the appeal proceeding. In fairness to Ms Holgar the matter has taken some time to be determined by both the tribunal below and this appeal tribunal. We recognise the inconvenience and stress associated with being a party to a legal proceeding, however the second and third respondents have not pointed to any substantial disadvantage as a result of delay in concluding the matter, nor significant contribution to the delay occasioned by Ms Holgar’s actions.
- (b)By reference to section 102(3)(b) complexity in the appeal arose from Ms Holgar’s pursuit of arguments not supported by the evidence or the law and which failed on appeal;
- (c)By reference to section 102(3)(c) Ms Holgar’s case was weak. Ms Holgar failed to convince the Chief Executive, the tribunal below or the appeal tribunal that she had any entitlement to make a claim on the claim fund;
- (d)By reference to section 102(3)(e) evidence given in the Tribunal below included that Ms Holgar’s financial circumstances were such that she is the owner of two residential properties and was financially secure enough to afford to service a high interest bridging loan. We note that no submissions are made as to the financial circumstances of the second and third respondents.
- (e)Finally, reference is made to Ms Holgar’s rejection of an offer made by the second and third respondents on 26 May 2020. The terms of the offer were that Ms Holgar pay a sum of $35,000 in satisfaction of the second and third respondents’ costs of the initial hearing in the Tribunal, that the appeal proceedings be withdrawn and that each party bear their own costs incurred on the appeal to that date. The letter setting out the offer stated that if the offer was not accepted and Ms Holgar was unsuccessful in prosecuting her appeal the letter would be presented to the Appeal Tribunal on the issue of costs at the appropriate time. The second and third respondents have not submitted that the offer of settlement should be considered pursuant to rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009.
- (a)
Consideration
- [10]For the reasons noted in the preceding discussion of the submissions, we do not consider that the second and third respondents have demonstrated any unnecessary disadvantage to them as a result of delays on the part of Ms Holgar in the conduct of the appeal proceeding.
- [11]We are of the view that the appeal raised important issues of statutory interpretation not previously considered by the tribunal or on appeal. Legal representation was reasonable given the issues raised and the importance to the second and third respondents of protecting their professional standing and potential exposure to re-imbursement of the fund, if Ms Holgar succeeded in her claim.
- [12]The question is whether legitimate protection of the second and third respondents’ interests, means that the interests of justice require that they should be awarded their costs of the appeal proceeding.
- [13]Counter-balanced against those interests is the public entitlement to review administrative decisions made by the Chief Executive and to pursue reasonably available arguments on appeal. The Agents Financial Administration Act 2014 (Qld) (AFA Act), which gives this Tribunal its jurisdiction, does not make any specific provision for the awarding of costs by the Tribunal in its review or appeal process nor does the legislation provide a right to legal representation. The appeal tribunal has previously observed this means that the appeal tribunal’s usual starting point applies, that is parties are not to be legally represented without leave of the appeal tribunal, and that even if legally represented, each side shall usually pay their own costs.[3]
- [14]We do not think that Ms Holgar put an ill-advisedly weak case to the appeal tribunal. She was unsuccessful, but that does not mean her arguments could not be maintained. We accept Ms Holgar’s submission that, as framed by her, the grounds of appeal involved errors of law or mixed errors of fact and law. We do not think that she sought to merely re-visit findings of fact open on the evidence.
- [15]In her submissions, Ms Holgar addresses the factors raised at section 102(3)(d) relevant to a proceeding for the review of a reviewable decision. We accept that Ms Holgar does not say she was not afforded natural justice by the decision-maker in this matter and that she genuinely attempted to enable and help the decision-maker to make the decision on the merits.
- [16]We do not think that any question of impecuniosity of either party bears on the exercise of our discretion in this matter.
- [17]As to the second and third respondent’s offer to settle the appeal proceedings, we note that the offer was predicated on payment of a sum for the respondents’ costs of the proceedings below, in circumstances where no decision had been made to award costs and given the relevant provisions of the QCAT Act, may not have been made. The offer also required Ms Holgar to walk away from the appeal in order to be spared a possible order for costs if she did not succeed in the appeal.
- [18]We do not think that the offer of settlement can be taken into account under Rule 86 in determining whether the decision of the appeal tribunal is not more favourable to Ms Holgar than the offer, because it involves the imponderable of what might be the outcome of the application for costs before the tribunal below. That is not a matter before the appeal tribunal. Because the question of costs across the two proceedings are interlinked in the offer, the fact that the offer was rejected has limited bearing on the broader interests of justice question before us.
- [19]In all, based on the submissions made we do not think that the interests of justice “require” the appeal tribunal to make an order for costs in favour of the second and third respondents.
- [20]In addition to the factors addressed:
- (a)We do not think it is in the interests of justice for a party seeking review of an administrative decision to be burdened with a costs order when issues of broad application and importance are dealt with on an appeal. In this case the appeal tribunal’s interpretation of section 25(1)(b) of the AFA Act has implications for how real estate agents deal with trust funds and affects the industry as a whole. The proceedings were not a wasteful exercise which might justify the imposition of a costs order.
- (b)The proceedings arise out of a review application. As a result, different considerations are relevant to the question of the interests of justice than, for example, in a civil claim for damages which the Tribunal might determine.[4] Judges have referred to the “chilling effect” of too readily ordering costs against regulatory complainants.[5]
- (c)This is not a case where the benefits of successfully resisting Ms Holgar’s appeal will be eroded by a failure to be awarded costs.[6] In cases where that consideration has prevailed it is fair to observe that a party would have been better off not pursuing their legal rights given the cost involved. In this case the outcome of the review proceedings directly affected the second and third respondents. They had a genuine interest in the Chief Executive’s decision being confirmed. The second and third respondents were able to protect their interests by being automatically joined to the proceeding as parties.[7] We do not think their joinder should impact Ms Holgar, whose entitlement under the AFA Act is to a review of the Chief Executive’s decision, with consequent appeal rights. The interests of the second and third respondents were in fact protected by confirmation of the original decision. That outcome is not eroded by no award of costs in their favour.
- (a)
- [21]For these reasons we do not think that the interests of justice require the making of a costs order. The application for costs of the appeal proceeding is dismissed.
Footnotes
[1] Queensland Racing Integrity Commission v Vale [2017] QCATA 110, [37].
[2] Ibid, [45].
[3] Owltown Pty Ltd v Norwinn Commercial (costs) [2020] QCATA 145, [12].
[4] Campbell v Queensland Building and Construction Commission [2021] QCATA 34, [36], [37].
[5] Queensland Racing Integrity Commission v Vale [2017] QCATA 110, [41].
[6] Tamawood Ltd & Anor v Paan [2005] QCA 111; Cowen v Queensland Building and Construction Commission [2021] QCATA 103, [27], [67].
[7] Agents Financial Administration Act 2014 (Qld) s103(2)(c).