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Queensland Building and Construction Commission v B&L Constructions Qld Pty Ltd (No 2)[2023] QCATA 107

Queensland Building and Construction Commission v B&L Constructions Qld Pty Ltd (No 2)[2023] QCATA 107

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland Building and Construction Commission v B&L Constructions Qld Pty Ltd (No 2) [2023] QCATA 107

PARTIES:

queensland building and construction commission

(applicant/appellant)

v

B&L constructions Qld pty ltd

(respondent)

APPLICATION NO/S:

APL105-22

ORIGINATING

APPLICATION NO/S:

GAR298-21

MATTER TYPE:

Appeals

DELIVERED ON:

28 August 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

Senior Member S Traves

ORDERS:

The appellant pay the legal costs of the respondent of and incidental to the application for leave to appeal and appeal, to be assessed on the scale appropriate for a proceeding in the District Court under the UCPR.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – appeal from decision on preliminary point as to jurisdiction – discretion to award costs – whether relevant offer to settle for purpose of rule – whether provision in enabling Act applies – whether order for costs in the interests of justice 

Queensland Building and Construction Commission Act 1991 (Qld) s 77(3)(h)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100, s 102, s 105 

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 86

Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364

Brisbane Marine Pilots Pty Ltd v General Manager of Maritime Safety Queensland [2022] QCAT 225

CH v Queensland Police Service [2021] QCATA 137

Cowen v Queensland Building and Construction Commission [2021] QCATA 103

Grasso v CMG Consulting Engineers Pty Ltd [2011] QCATA 326 

Lee v Medical Board of Australia (No 2) [2016] QCAT 321

Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327

Marzini v Health Ombudsman (No 4) [2020] QCAT 365

McEwan v Barker Builders Pty Ltd [2010] QCATA 49

McGee v Queensland Building and Construction Commission [2018] QCATA 124

Medical Board of Australia v Wong [2017] QCA 42

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

Rao v Medical Board of Australia (No 2) [2021] QCAT 391

Tamawood v Paans [2005] QCA 111

Thompson v Cannon [2020] QCAT 109

Valuers Board of Queensland v Murphy [2022] QCAT 295

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 – Judicial Member McGill

  1. [1]
    This was an application for leave to appeal from the decision of a Member of the Tribunal on a preliminary point in a review brought by the respondent from a decision of the appellant.[1]  The matter at issue was whether the Tribunal has jurisdiction to decide a review brought by the respondent, a point involving the interpretation of the Queensland Building and Construction Commission Act 1991 (Qld) (“the Act”) of general application, at least in similar circumstances.  For the reasons published, the Appeal Tribunal decided that the Tribunal has jurisdiction to decide the review.  Leave to appeal was granted, but the appeal was dismissed.[2]  Directions were given for submissions as to any order for costs.
  2. [2]
    The parties have since provided submissions in writing as to costs.  The respondent sought costs of the appeal, under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 102, on the basis that it was in the interests of justice for costs to be awarded, and under s 105 and Rule 86, on the basis that the respondent made a written offer to settle which was not accepted by the appellant.  The appellant in submissions resisted an order for costs, and also raised a conflict between decisions of the tribunal as to the correct approach to the exercise of discretion under s 102.  I propose to deal first with the question of the correct approach to the discretion as to costs. 

The QCAT Act s 102

  1. [3]
    In Marzini v Health Ombudsman (No 4) [2020] QCAT 365 (“Marzini”) I discussed the legislative provisions relevant to costs and the various authorities which had considered the test for awarding costs under s 102 at [2], [6] – [37], and concluded at [36] that the test to be applied was that expressed in the statute, that the question was whether, in a particular case, the interests of justice required a costs order to be made.  I added at [37] that I did not consider that there was any justification in the words of the statute for any further constraint on the application of the power to order costs under s 102.  I had noted that the approach I adopted was essentially the same as that expressed by the Hon P Lyons QC in Thompson v Cannon [2020] QCAT 109, and by the Hon J B Thomas QC in Lee v Medical Board of Australia (No 2) [2016] QCAT 321 at [38].  I regard both of these judicial members as deserving considerable respect.  
  2. [4]
    In Cowen v Queensland Building and Construction Commission [2021] QCATA 103 (“Cowen”) I adopted my reasoning in Marzini, subject to acknowledging the failure to discuss the QCAT Act s 105 and Rule 86,[3] and a failure to consider the significance of the heading to the QCAT Act s 100, which I discussed in that decision: [25] – [27].  In that matter a member had on a review overturned a decision to reject a claim on the statutory insurance scheme, but had refused to make an order for costs in favour of the appellants, relying in part on the proposition that the factors favouring such an order were not “compelling”, relying on Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [29] (“Ralacom”).  I rejected that approach as unjustified by the wording of the relevant sections, and held it was one of a number of errors made in the exercise of the discretion as to costs.  The appeal was allowed, and a costs order was made. 
  3. [5]
    In CH v Queensland Police Service [2021] QCATA 137 (“CH”) Allen DCJ, then Deputy-President of the Tribunal, allowed an appeal from the decision of a member to refuse an order for costs in favour of a successful complainant in relation to a privacy complaint made under the Information Privacy Act 2009 (Qld) to the Information Commissioner and referred to the Tribunal.  The application for costs had been refused by the member, on the ground that the argument for costs, although convincing, did not rise to the level of being so compelling that they overcome the strong contra-indication against costs orders in s 100, relying on Ralacom.  His Honour expressed his agreement with my decisions in Marzini and in Cowen, and on that basis allowed the appeal and ordered costs for counsel before the member, and the filing fee for the application for leave to appeal.[4] 
  4. [6]
    I adhere to the views that I expressed in Marzini and Cowen.  I remain completely unable to detect in the words of s 100 (including the heading) any “strong contra-indication against costs orders.”  That is not provided by saying that the usual position was be that no costs order is made, because that says nothing about how unusual a costs order is to be.  Apart from that, all the section says is that, unless a costs order is to be made under some other provision, there would not be one.  One test for a costs order is that set out in s 102(1), that the interests of justice require it.[5]  As I have said, the word “require” does provide some indication that costs orders under that section should not be made lightly, but that is all.  To constrain the award of costs to cases where the interests of justice are compelling is to impose a limitation on the statutory discretion unjustified by the terms of the QCAT Act.  Subject to that, I do not propose to repeat what I have set out in previous decisions. 
  5. [7]
    The appellant relied on the subsequent decision of Brisbane Marine Pilots Pty Ltd v General Manager of Maritime Safety Queensland [2022] QCAT 225 (“BMP”), where a member declined to follow my decisions and that of Allen DCJ, and argued that Ralacom provided the correct approach under the QCAT Act.  In that matter the applicant sought to have reviewed a decision to licence certain individuals as pilots, and sought a stay of the decision pending the review.  The member held that the applicant did not have standing to apply for a review of the decision, and hence could not apply for a stay, and that in any case, had the applicant had standing, a stay would not have been granted.  The respondents sought an order for costs on the standard basis.  The costs were substantial, since the applicant had been represented by counsel, and each of the departmental respondent and the private respondents had been represented by senior and junior counsel.  All parties had been given leave to be legally represented: [6].  The issues were described by the member as largely technical: [8].  The matter was apparently heard on one day.[6] 
  6. [8]
    In the costs decision, at [52] to [84] the member considered what were said to be two lines of authority on the question of costs, which he identified as the Ralacom and Marzini approaches.  The relevant passage from Ralacom was cited, and the reasons discussed the decisions in Marzini, Cowen and CH, and quoted the costs provisions from the earlier legislation considered in Tamawood v Paans [2005] QCA 111 (“Tamawood”). The member accepted the view expressed in Ralacom that the legislature had by s 100 “more plainly … turned its face against awards of costs in this Tribunal.”  Reference was then made to the decisions in Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327 and McEwan v Barker Builders Pty Ltd [2010] QCATA 49, and it was said at [72] that these decisions had not been cited in Marzini.  In fact, the decision in Magill was considered, and quoted from, in Marzini at [33] – [35], where I noted that Ralacom had been quoted, and that at [7] his Honour had expressed the test in terms with which I would agree.  The decision in McEwan was cited in footnote 2, to [14] where I summarised Ralacom, with a note that the same view had been expressed in McEwan by Wilson J, who had again made a costs order in that matter.  It may be noted that his Honour did make costs orders in both Ralacom and McEwan, in the former case, for indemnity costs against persons who had continued litigation in the name of a company after they had lost the authority to do so following the appointment of a receiver.   
  7. [9]
    The member then referred to a list of appeal tribunal decisions which had applied the Ralacom approach.  I did not refer to them in Marzini, although I did refer to a number of decisions of judicial members on the question of the approach to the discretion to award costs, and I did acknowledge at [17] that the formulation in Ralacom had “subsequently been widely accepted as stating the correct approach to these provisions”, for which I cited four decisions of the tribunal, which were to that effect. 
  8. [10]
    I do not consider that the mere age of Ralacom serves to make it more reliable as an exercise in statutory interpretation, or that the doctrine of communis error facit jus applies.  There is nothing in Tamawood to discourage the making of a costs order where the interests of justice require it, and the decision contains relevant general statements about when it is in the interests of justice to make a costs order.  I do not consider that the QCAT Act s 4(h) requires me to follow blindly earlier decisions regardless of whether I regard them as wrong in law.  The provisions of the QCAT Act s 50 and 50A, and Rule 64, do not suggest that the legislature turned its face against awards of costs in the Tribunal.  The application of the QCAT Act s 61 would be significantly limited by subsection (3) if orders for costs to cure prejudice were to be confined to compelling circumstances. 
  9. [11]
    In BMP the member referred to some other matters, said to support a restrictive approach to orders for costs in the Tribunal.  It was said that some would be deterred from approaching the Tribunal if they feared having to pay legal costs to an opponent if unsuccessful: [102].  It could equally be said that some would be deterred from approaching the Tribunal if they were unable or unwilling to pursue their claim without legal assistance, and if they had to bear the cost of that assistance even if they were successful.  Particularly in a money claim, I cannot see how it can be just, or enhance accessibility to justice, for people to face the prospect of any success they achieve being eroded, or even exceeded, by the cost of achieving it. 
  10. [12]
    The member complained of the high cost of legal representation.  People have been doing that for as long as there have been lawyers, and various means have been adopted down the years to attempt to restrain such costs, all of which have failed.  There is no reason to think that the current approach in England, which has not been adopted in Queensland, will fare any better.  The fact that some parties spend a lot on lawyers in Tribunal matters is largely a function of the range of matters which can come before the Tribunal.  The idea that they will be deterred from doing so, or that lawyers will be persuaded to moderate their charges, by a reluctance on the part of the Tribunal to make costs orders is in my opinion fanciful.[7]  Obviously the question of what is in the interests of justice in a particular case will vary greatly depending on the circumstances, justifying a broad discretion to award costs in the interests of justice.[8] 
  11. [13]
    The member at [120] referred to the QCAT Act s 47 and the power it contained to order costs, as though that was a sufficient protection for respondents against applications made to the Tribunal which ought not to have been made.  But the fact that the legislature made special provision in s 47 for costs, on a more generous basis that the costs allowable under s 102, clearly indicates that s 102 was intended to cover situations which were not so extreme as to fall within the scope of s 47.  I note that in Ralacom the respondent sought costs under s 47, on the basis that the proceeding was vexatious, as well as under s 48, which refers to the power under s 102. 
  12. [14]
    The member at [128] quoted a passage from my decision in Cowen to support the proposition that I was advancing a different approach from one with the “starting point” in relation to costs being that no order as to costs be made.  What I said there, as he emphasized, was that “the starting point as to the identification of the interests of justice” was what had been said in Tamawood.  When considering whether to make a costs order, it is necessary, in terms of s 100, to consider whether one is appropriate in terms of an applicable provision of the QCAT Act, or another Act, if relevant.  For an order to be made under s 102(1), the issue is whether the interests of justice require one.  So when considering whether a costs order is appropriate under s 102, the starting point is a consideration of the interests of justice, in the particular circumstances of the case.  Where, as in Cowan, the proceeding is essentially a money claim, the interests of justice are appropriately informed by what was said by Keane JA in Tamawood. 
  13. [15]
    The member did not mention that earlier, at [17], I had said: “The terms of [sections 100 and 102] make it clear that the starting point is that no order for costs is to be made, but authorises a costs order if the interests of justice require it.”   I was not, in Marzini, in fact advocating a different starting point for consideration of whether to make a costs order, although, having given the matter further consideration, perhaps I should have.  “No order for costs” is really not the starting point; it is the end point, the default position if it is not appropriate to make an order for costs under some provision - in the case of s 102(1), if the interests of justice do not require one.  
  14. [16]
    I do not need to say anything further about BMP.  The appellant also relied on Valuers Board of Queensland v Murphy [2022] QCAT 295, where a similar approach was taken.  I regard that decision as also wrong, for the same reasons.  The applicant submitted that these decisions should be followed, essentially by adopting the reasoning expressed in BMP, to which I have already responded.  The appellant also referred to Medical Board of Australia v Wong [2017] QCA 42.  I adhere to what I said about that decision in Marzini at [27], [28].  Nothing was said by the Court of Appeal by way of endorsement of the approach in Ralacom. 
  15. [17]
    In submissions the appellant correctly identified that the issue raised on the appeal had been raised as a preliminary point in the proceedings before the Tribunal, and that the general application of the point was accepted by giving leave to appeal, although the appeal was dismissed.  The substantive review has not yet been considered.  That is true, but all that arises at present is the question of whether the respondent should have its costs of the appeal.  The appellant had, prior to the review, a decision of a member of the Tribunal which, in the reasons for the decision, contained a thorough analysis of the issues and the arguments, and which was not shown to contain any error during submissions on the appeal.  There was nothing about those reasons which could be said to have invited an appeal. 
  16. [18]
    The position of the appellant as regulator for the building industry was referred to, but the present dispute, in relation to the acceptance of a claim on an insurance policy where the appellant has the benefit of a statutory indemnity from the respondent, has as a result a strong commercial flavour.  In substance the respondent is resisting a money claim, because it is challenging a decision of the appellant which will lead to its having to pay the appellant whatever amount is payable to the claimant.  The appellant submitted that it was doing no more than appropriately testing the claim brought against it by the respondent, and cited previous decisions of the Tribunal where this had been recognised as providing it with protection from a costs order.  It is clear that those decisions reflected the Ralacom approach, but I accept that there is some force in the proposition that it was reasonable for the appellant to raise the issue of the standing of the respondent.  But it already had the benefit of a well reasoned decision of the Tribunal dealing with that issue, obtained without an order for costs having been made. 
  17. [19]
    The special interest the appellant had, in seeking to settle the question of the correct interpretation of the statute, was of course not shared by the respondent.  It had no interest other than in avoiding having to pay money to the appellant in relation to this particular claim.  The general significance of the issue, which was the basis of the grant of leave to appeal, applied only to the appellant.  I regard that as a factor favouring an award of costs in favour of the respondent. 
  18. [20]
    I note that in Grasso v CMG Consulting Engineers Pty Ltd [2011] QCATA 326 Wilson J, after repeating the Ralacom test, said at [13] that costs in an appeal may be viewed differently from costs in a proceeding.  It has subsequently been pointed out that this was not authority for making an order for costs just because the matter is an appeal,[9] but I consider that there is a good deal of justification in the Appeal Tribunal being more willing to make an order for costs in favour of a successful respondent than a Tribunal at first instance. 
  19. [21]
    The parties had been given leave to be legally represented, and both were legally represented on the appeal, the appellant by counsel.  It was reasonable for the respondent to obtain the benefit of legal representation to argue a technical issue of statutory construction, and by applying for leave to appeal the appellant was in effect putting it in a position of having to incur additional legal expenses to defend its success at first instance. 
  20. [22]
    It is true that the current form of the legislation led to a situation which was anomalous, as accepted in the substantive reasons, but that situation arose from giving the words of the statute their natural meaning.  The relevant provisions were largely those introduced by an amendment, and that made it difficult to conclude that the intention expressed in the Act as amended should not be given effect to, but the words of the statute should in effect be significantly modified so as to preserve this aspect of the operation of the Act prior to the amendment.  As we said at [20]:

This is the sort of change which is too much at variance with the language in fact used by the legislature. Both of these provisions were inserted by the amending act in 2014. They provide a consistent indication that the legislative intention then was to confer a general right to external review of internal review decisions. The scheme thus created is by no means unworkable

  1. [23]
      We concluded at [23]:

The appellant’s position is essentially that some implication must be made to prevent an operation that cannot have been intended by the legislature. We consider that in this case any adjustment to the wording of the legislation is properly a matter for the legislature, and not something which can be achieved by the Tribunal as an exercise in statutory interpretation

  1. [24]
    In the circumstances, this was never a strong case for a successful appeal.  The proposition that a statute means what it says is not a novel one. 
  2. [25]
    The respondent, in seeking costs, submitted that the appellant had unnecessarily disadvantaged the respondent, by seeking an oral hearing, and by a reluctance to resolve the matter.  As to the former, the appellant relied on the forensic advantages of an oral hearing, in providing an opportunity for Socratic debate on the issues raised, and potentially avoiding the cost of supplementary written submissions.  My own experience suggests that oral hearings by no means avoid supplementary written submissions.  Attracted though I am personally to oral hearings, given my background, in circumstances where the practice of the Tribunal is to require full written submissions[10] to be filed before a hearing anyway, the proposition that having an oral hearing increases costs strikes me as obvious.   The latter issue is more conveniently dealt with in connection with a consideration of Rule 86. 

Rule 86

  1. [26]
    Rule 86, so far as is relevant, provides as follows: 
  1. This rule applies if—
  1. a party to a proceeding, other than a proceeding for a minor civil dispute, makes another party to the proceeding a written offer to settle the dispute the subject of the proceeding; and
  1. the other party does not accept the offer within the time the offer is open; and
  1. in the opinion of the tribunal, the decision of the tribunal in the proceeding is not more favourable to the other party than the offer.
  1. The tribunal may award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.
  1. [27]
    It is immediately obvious that, although this Rule is similar to the provisions in the UCPR r 360 and r 361, there are significant differences.  The latter provide separate rules for plaintiffs and defendants, and each provides that the starting point is the costs order specified by the rule, with the plaintiffs rule providing that this is, prima facie, to cover the costs of the whole proceeding, and to be on the indemnity basis.  As well, there are formal requirements for an offer to settle under the UCPR, whereas under Rule 86 the only formal requirement is that the offer to settle be in writing.  Rule 86 confers a discretion to make an order for “all reasonable costs incurred after the offer was made” so as to provide an alternative basis from s 102 for departing from the default position in s 100.  That is what s 105 says.  It follows that it is not necessary to satisfy the requirements of s 102 in order to make an order for costs under Rule 86. 
  2. [28]
    The first issue raised by the appellant is whether the letter of 30 August 2021, which is relied on by the respondent, was in fact an offer to settle.  The letter, after setting out in detail the position of the respondent in relation to the question of its liability to indemnify the appellant under s 71 of the Queensland Building and Construction Commission Act 1991 (Qld) , concluded by offering to enter into a deed of settlement on certain terms, which need not be set out except to say that they were terms designed to prevent any pursuit of any claim for an indemnity under s 71.  In short, this was an offer to settle the whole dispute between the parties.  It was not an offer to settle the appeal, or the application for leave to appeal. 
  3. [29]
    Rule 6 refers to a party to a proceeding offering to settle the dispute the subject of the proceeding, and the offer being compared to the decision of the tribunal in the proceeding.  The rule permits an order for costs in relation to costs incurred in conducting the proceeding.  The substantive review proceeding in the Tribunal can be seen to be a proceeding of which the dispute was the subject, but that was a different proceeding from the proceeding of the appeal.  The dispute the subject of that proceeding was the dispute as to whether or not the respondent had standing to apply to the Tribunal to review the decision of the appellant, on the internal review, to accept the claim of the claimant.  The offer to settle was not an offer to settle that dispute.  That is so, even though, if that offer had been accepted, that dispute would have become irrelevant. 
  4. [30]
    I consider that an appeal (and for that matter an application for leave to appeal) is a separate proceeding from the proceeding at first instance. The term “proceeding” is defined, in Schedule 3 to the QCAT Act, as (relevantly): “a proceeding before the tribunal, including an appeal before the appeal tribunal and a proceeding relating to an application for leave to appeal to the appeal tribunal.”  So a proceeding before the Tribunal is a proceeding, an appeal before the Appeal Tribunal is also a proceeding, and an application for leave to appeal to the Appeal Tribunal is also a proceeding.  That implies that they are different proceedings.  I also note that an appeal is regarded as a separate proceeding under the UCPR r 8(2).
  5. [31]
    The QCAT Act s 33, which speaks about making an application, and s 143, about commencing an appeal or application for leave to appeal, are in very similar terms, and although s 36, dealing with when a proceeding starts, speaks of an application or referral, it would be consistent with the overall scheme of the Act for the same thing to indicate when an appeal starts.  In the present matter, the proceeding commenced by the appellant’s application for leave to appeal started when its application was accepted by the principal registrar: s 36.   
  6. [32]
    It follows that the offer to settle relied on by the respondent was not a relevant offer to settle for the purposes of the appeal, and the first requirement for the application of Rule 86 was not met.  The power to award costs under Rule 86 does not arise.  In the circumstances, it is unnecessary to consider whether the offer to settle was on terms which can be characterised as a compromise, and whether that is a necessary requirement for such an offer.[11] 
  7. [33]
    The respondent also relied on the unwillingness of the appellant to settle as a factor favouring an award of costs under s 102, on the basis that it was part of the process of causing unnecessary disadvantage to the respondent.  I do not consider that the failure to accept the offer to settle the entire dispute on the terms proposed in that open offer to settle could be characterised as causing unnecessary disadvantage to the respondent.  Although the QCAT Act undoubtedly favours the resolution of disputes by negotiation, if that is possible, I do not consider that that put the appellant under any obligation to accept any offer of settlement, including one highly favourable to the respondent.  If it turns out, at the end of the day, that the proceeding which resolves the dispute the subject of the offer of settlement ends so favourably to the respondent, that offer will be available to be relied on for the purpose of that proceeding, to the extent that it satisfies the requirements of Rule 86. 

Building dispute

  1. [34]
    In its submissions in reply, the respondent submitted that a costs order could also be made under the Queensland Building and Construction Commission Act 1991 (Qld) s 77(3)(h), on the basis that the proceeding in the Tribunal amounted to a building dispute.  That is not the case.  Although s 77(3)(h) does provide for orders for costs to be made in a building dispute before the Tribunal, it is clear from the definitions of “building dispute”, “domestic building dispute” and “commercial building dispute” that this aspect of the Tribunal’s jurisdiction is concerned with disputes between participants in the building industry and their customers, not with disputes between the appellant and participants in the building industry such as the respondent.  The former are dealt with in Divisions 1 and 2 of Part 7 of the Act.  The latter are dealt with in Divisions 3, 5 and 6 of Part 7.  The proceeding from which the appeal was brought was a proceeding for review of a decision of the appellant, and hence was covered by Division 3.  That Division contains no special provision about costs.  The provision about orders for costs in s 77(3)(h) applies only to proceedings in Division 2.  It follows that there is no substance to this submission. 

Consideration

  1. [35]
    Turning to the matters which are mentioned in the QCAT Act s 102(3), as I have said there was some unnecessary disadvantage caused to the respondent, in terms of its having to incur additional costs, by requiring an oral hearing.  The dispute was one of law, involving issues of statutory interpretation with some complexity, so that it was reasonable, and in a practical sense necessary, for the respondent to have legal representation, otherwise those running the company would have been at a disadvantage in even knowing what was going on.  As I have said, I did not regard it as a strong case for the appellant, particularly when no criticism was, or so far as I can see could have been, levied at the reasons at first instance.  Paragraph (d) does not apply to this appeal.  In terms of financial strength, the appellant as a government body has as much financial resources as the government chooses to give it.  The respondent is a builder, and I am prepared to take notice that builders in general are having a hard time financially at the moment, as a result of a combination of fixed price contracts and rapidly rising input costs of building materials and labour.  That consideration also favours an order for costs.
  2. [36]
    Finally, this was an appeal, and although it was a matter of some general importance to the appellant, there is no suggestion that it was of any general importance to the respondent.  It is one thing to say that the appellant should be able to have one costs free hearing of the preliminary point, but to pursue an appeal in a way which put the respondent to additional legal expense had the practical effect of eating away at the respondent’s resources before even beginning the review on the merits. 
  3. [37]
    In all the circumstances, therefore, I consider that in this case the interests of justice do require that the appellant pay the legal costs of the respondent of and incidental to the application for leave to appeal and appeal, to be assessed on the scale appropriate for a proceeding in the District Court under the UCPR.  For the avoidance of doubt, I should add that that includes the costs of the submissions about costs. 

SENIOR MEMBER TRAVES:

  1. [38]
    In Ascot v Nursing & Midwifery Board of Australia[12]Judge Kingham (then Deputy President of QCAT) said:

The intended purpose of the costs provisions of the QCAT Act is clear enough. Parties must bear their own costs unless the interests of justice require otherwise.[13]

  1. [39]
    With respect, I agree. However, because it is said that there are now two different approaches to the interpretation of ss 100 and 102,[14] it is necessary to address the meaning of the costs provisions further.
  2. [40]
    In Marzini v Health Ombudsman (No 4)[15] Judicial Member McGill SC said (footnotes omitted):

The terms of the sections [ss 100 and 102] make it clear that the starting point is that no order for costs is to be made, but authorises a costs order if the interest of justice require it. The use of the word “require” suggests that the interests of justice must clearly support a costs order; but to say that they must do so “compellingly”, and to treat s 100 as having “a strong contra-indication against costs orders”, is to read into the statutory discretion restrictions which are not based on the terms of the Act.

  1. [41]
    That case[16] is authority for the following propositions in relation to ss 100 and 102: that the starting point is the position identified by s 100, that no order for costs is to be made; that there is nothing in s 100 to show a “strong contra-indication” against costs orders; the position is that no order for costs is to be made unless the tribunal considers the interests of justice require it to do so; the use of the word ‘require’ suggests that the interests of justice must clearly support a costs order, but that it is to go too far to say that they must do so “compellingly”.
  2. [42]
    I agree with the above observations of Judicial Member McGill and with those propositions. With great respect to others who have expressed a different view, I prefer the reasoning of Judicial Member McGill in Marzini to the approach taken in Ralacom.
  3. [43]
    The approach in Marzini is consistent with the approach that Senior Member Brown and I took in McGee v Queensland Building and Construction Commission.[17] Contrary to the observations of the learned Member in Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads & ors (costs)[18] McGee did not support the approach in Ralacom.
  4. [44]
    The difference between the two approaches reduces to the meaning of “require” and the level of satisfaction necessary as to “the interests of justice” before the Tribunal should make a costs order. There is, it must be said, danger in attempting to place on one word the meaning of another. The word “require” is capable of standing on its own, and should be construed as doing so. This is the basis upon which her Honour Judge Kingham proceeded in Ascot v Nursing & Midwifery Board of Australia.[19] But, if it be necessary to look for synonyms, the relevant standard falls short of “compelling”. That is so because to require a costs order in the interests of justice, read in the context of the Act as a whole, does not mean the need for an order has to be shown to be “compelling”: it means, more closely, that it is “needed”. I agree with Judicial Member McGill that the word ‘require’ provides some indication that costs orders under that section should not be made lightly.[20]
  5. [45]
    I am in agreement with Judicial Member McGill in his application of s 102 and the factors in s 102(3) and with his conclusion that the ‘interests of justice’ require an order for the costs of the appeal to be made in favour of the respondent.
  6. [46]
    I also agree, for the reasons expressed by Judicial Member McGill, that Rule 86 and s 77(3)(h) of the Queensland Building and Construction Commission Act 1991 (Qld) do not apply in these circumstances.

Footnotes

[1]  We shall refer to the Commission as “the appellant” and to B & L Constructions Qld Pty Ltd as the respondent. 

[2]  [2023] QCATA 71. 

[3]  Which were also not relevant to that matter. 

[4]  His Honour adopted the same approach when making an order for costs in Rao v Medical Board of Australia (No 2) [2021] QCAT 391.

[5]  Other sections of the QCAT Act under which a costs order may be made are s 47, s 50A, s 51, s 63, s 72, s 103, s 104, s 105, s 112 and s 215.  Note also that certain costs are automatic under the QCAT Act s 50. 

[6]  [2021] QCAT 436. 

[7]  Apart from anything else, this is shown by the fact that all but one of the examples quoted at [103] predated my decision in Manzini, and occurred in a period when Ralacom ruled.

[8]  As pointed out by Wilson J in Ralacom at [4]. 

[9]Queensland All Codes Racing Industry Board v Abbott (No 2) [2016] QCATA 49 at [10]. 

[10]  Not just a brief outline. 

[11]  Compare, under the UCPR, Jones v Millward [2005] 1 Qd R 498.

[12]  [2010] QCAT 364.

[13]  Ibid at [34].

[14]Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads & ors [2022] QCAT 225 at [53]-[55].

[15]  [2020] QCAT 365 at [17].

[16]  And the subsequent decision of Judicial Member McGill in Cowen v Queensland Building and Construction Commission [2021] QCATA 103 and of Judge Allen in CH v Queensland Police Service [2021] QCATA 137. 

[17]  [2018] QCATA 124 at [23], [24], [28], [29].

[18]  [2022] QCAT 225 at [72], [74].

[19]  [2010] QCAT 364.

[20]  Above at [6].

Close

Editorial Notes

  • Published Case Name:

    Queensland Building and Construction Commission v B&L Constructions Qld Pty Ltd (No 2)

  • Shortened Case Name:

    Queensland Building and Construction Commission v B&L Constructions Qld Pty Ltd (No 2)

  • MNC:

    [2023] QCATA 107

  • Court:

    QCATA

  • Judge(s):

    Member D J McGill SC, Senior Member S Traves

  • Date:

    28 Aug 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
3 citations
Jump To
Cite 1 - [2010] QCAT 364
Cite 2 - [2010] QCAT 364
Cite 3 - [2010] QCAT 364
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
4 citations
Jump To
Cite 1 - [2022] QCAT 225
Cite 2 - [2022] QCAT 225
Cite 3 - [2022] QCAT 225
Cite 4 - [2022] QCAT 225
Brisbane Marine Pilots Pty Ltd v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads [2021] QCAT 436
1 citation
Jump To
Cite 1 - [2021] QCAT 436
CH v Queensland Police Service [2021] QCATA 137
3 citations
Jump To
Cite 1 - [2021] QCATA 137
Cite 2 - [2021] QCATA 137
Cite 3 - [2021] QCATA 137
Cowen v Queensland Building and Construction Commission [2021] QCATA 103
3 citations
Jump To
Cite 1 - [2021] QCATA 103
Cite 2 - [2021] QCATA 103
Cite 3 - [2021] QCATA 103
Grasso & Anor v CMG Consulting Engineers Pty Ltd (No 2) [2011] QCATA 326
2 citations
Jump To
Cite 1 - [2011] QCATA 326
Cite 2 - [2011] QCATA 326
Jones v Millward[2005] 1 Qd R 498; [2005] QCA 76
1 citation
Jump To
Cite 1 - [2005] 1 Qd R 498
Lee v Medical Board of Australia (No 2) [2016] QCAT 321
2 citations
Jump To
Cite 1 - [2016] QCAT 321
Cite 2 - [2016] QCAT 321
Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327
2 citations
Jump To
Cite 1 - [2020] QCAT 327
Cite 2 - [2020] QCAT 327
Marzini v Health Ombudsman (No 4) [2020] QCAT 365
3 citations
Jump To
Cite 1 - [2020] QCAT 365
Cite 2 - [2020] QCAT 365
Cite 3 - [2020] QCAT 365
McEwen v Barker Builders Pty Ltd [2010] QCATA 49
2 citations
Jump To
Cite 1 - [2010] QCATA 49
Cite 2 - [2010] QCATA 49
McGee v Queensland Building and Construction Commission [2018] QCATA 124
2 citations
Jump To
Cite 1 - [2018] QCATA 124
Cite 2 - [2018] QCATA 124
Medical Board of Australia v Wong [2017] QCA 42
2 citations
Jump To
Cite 1 - [2017] QCA 42
Cite 2 - [2017] QCA 42
Queensland All Codes Racing Industry Board v Abbott (No. 2) [2016] QCATA 49
2 citations
Jump To
Cite 1 - [2016] QCATA 49
Cite 2 - [2016] QCATA 49
Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd [2023] QCATA 71
1 citation
Jump To
Cite 1 - [2023] QCATA 71
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
2 citations
Jump To
Cite 1 - [2010] QCAT 412
Cite 2 - [2010] QCAT 412
Rao v Medical Board of Australia (No 2) [2021] QCAT 391
2 citations
Jump To
Cite 1 - [2021] QCAT 391
Cite 2 - [2021] QCAT 391
Tamawood Ltd v Paans[2005] 2 Qd R 101; [2005] QCA 111
2 citations
Jump To
Cite 1 - [2005] QCA 111
Cite 2 - [2005] QCA 111
Thompson v Cannon [2020] QCAT 109
2 citations
Jump To
Cite 1 - [2020] QCAT 109
Cite 2 - [2020] QCAT 109
Valuers Board of Queensland v Murphy [2022] QCAT 295
2 citations
Jump To
Cite 1 - [2022] QCAT 295
Cite 2 - [2022] QCAT 295

Cases Citing

Case NameFull CitationFrequency
Haimes v Queensland Building and Construction Commission [2025] QCAT 882 citations
Independent Assessor v FJS (No 2) [2023] QCAT 3531 citation
Medical Board of Australia v TXA (No 4) [2023] QCAT 3602 citations
Mokbel v Queensland Police Service [2023] QCATA 1581 citation
Neller & Anor v Queensland Building and Construction Commission [No 2] [2024] QCATA 462 citations
Neller v Queensland Building and Construction Commission [No 2] [2023] QCATA 1701 citation
Queensland Building and Construction Commission & Benton v Egan (No 2) [2023] QCATA 1633 citations
Queensland College of Teachers v Duffin [2024] QCAT 2983 citations
Tuck v Kanti-Paul [2024] QCATA 571 citation
Yeo & Anor v Queensland Building and Construction Commission [2025] QCAT 902 citations
1

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