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Commissioner of State Revenue v Telgrove Pty Ltd (No 2)[2023] QCATA 113

Commissioner of State Revenue v Telgrove Pty Ltd (No 2)[2023] QCATA 113

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Commissioner of State Revenue v Telgrove Pty Ltd (No 2) [2023] QCATA 113

PARTIES:

COMMISSIONER OF STATE REVENUE

(applicant/appellant)

v

TELGROVE PTY LTD

(respondent)

APPLICATION NO/S:

APL218-19

ORIGINATING APPLICATION NO/S:

GAR219-18

MATTER TYPE:

Appeals

DELIVERED ON:

5 September 2023

HEARING DATE:

On the papers

DECISION OF:

Senior Member Aughterson

Member Lumb

ORDERS:

  1. The Appellant is ordered to pay to the Respondent the sum of $29,724.00 for costs, within 28 days of the date of this decision.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where appeal from decision of the Tribunal exercising its review jurisdiction – where both parties were legally represented – where appellant had some success – whether an order for costs should be made in favour of respondent – where order for payment of part of the respondent’s costs

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 107

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

Campbell v Queensland Building and Construction Commission (No 2) [2023] QCAT 54

Campbell v The Body Corporate for 70 Bowen St & Ors [2020] QCATA 26

CH v Queensland Police Service [2021] QCATA 137

Commissioner of State Revenue v Telgrove Pty Ltd [2021] QCATA 67

Commissioner of State Revenue v Telgrove Pty Ltd [2022] QCA 132

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

Medical Board of Australia v Wong [2017] QCA 42

Monsour & Anor v C & R Darvill Pty Ltd [2023] QCAT 62

Pound v Queensland Building and Construction Commission [2023] QCAT 298

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

Tamawood Limited & Anor v Paans [2005] QCA 111

Thompson v Body Corporate for Arila Lodge & Anor (No 2) [2018] QCATA 133

The Licensee Pty Ltd v Queensland Building and Construction Commission [2021] QCATA 7

Venga Pty Ltd trading as San Churro and Anor v YFG Shopping Centres Pty Ltd [2020] QCAT 118

Worthington t/as Worthington Simmons Builders v Ryan [2022] QCATA 8

APPEARANCES & REPRESENTATION:

Applicant/appellant:

G Hartridge, of Counsel, instructed by Clayton Utz

Respondent:

H Lakis, of Counsel, instructed by PPM Tax & Legal

REASONS FOR DECISION

Introduction

  1. [1]
    This is a determination of the question of costs of the proceeding before the Appeal Tribunal.[1]
  2. [2]
    The applicant/appellant to the Application for leave to appeal or appeal (the Commissioner) has filed two sets of written submissions on the issue of costs:
    1. ‘Applicant’s Submissions on Costs’ filed on 14 June 2021 (the Commissioner’s primary submissions);
    2. ‘Applicant’s Supplementary Submissions on Costs’ filed on 10 May 2023 (the Commissioner’s supplementary submissions).
  3. [3]
    The respondent (Telgrove) has also filed two sets of written submissions on the issue of costs:
    1. ‘Respondent’s Costs Submissions’ filed on 15 June 2023 (Telgrove’s initial submissions);
    2. ‘Respondent’s Further Costs Submissions’ filed on 10 May 2023 (Telgrove’s further submissions).
  4. [4]
    The Commissioner submits that the order as to costs should be that each party shall bear their own costs of the proceeding (for both leave to appeal and appeal) pursuant to s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’).
  5. [5]
    Telgrove submits that the Commissioner should pay the whole of Telgrove’s costs or, alternatively, two thirds of its costs pursuant to s 102 of the QCAT Act and that such costs should be fixed, pursuant to s 107 of the QCAT Act, in the alternative sum of $81,810.00 (plus GST) or $54,540.00 (plus GST).

The relevant principles re costs

The statutory provisions

  1. [6]
    Section 100 of the QCAT Act provides:

Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.

  1. [7]
    Section 102 of the QCAT Act provides:
  1. The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.
  1. However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.
  1. In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
  1. whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
  1. the nature and complexity of the dispute the subject of the proceeding;
  1. the relative strengths of the claims made by each of the parties to the proceeding;
  1. for a proceeding for the review of a reviewable decision—
  1. whether the applicant was afforded natural justice by the decision-maker for the decision; and
  1. whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
  1. the financial circumstances of the parties to the proceeding;
  1. anything else the tribunal considers relevant.

The interaction between ss 100 and 102

  1. [8]
    We accept the Commissioner’s submissions that:[2]
    1. s 102 is not to be read on its own; rather, it must be read with s 100;[3]
    2. the position provided for by s 100 that each party must bear their own costs has been variously described as, relevantly, ‘the starting position’,[4] ‘the prima facie position’[5] and ‘the usual position’.[6] It has also been described as ‘the default position’.[7]
  2. [9]
    The interplay between s 100 and s 102 of the QCAT Act was considered in Pound v Queensland Building and Construction Commission,[8] where it was stated (footnote omitted):
  1. [41]
    The objects of the QCAT Act, including the issues of access to the Tribunal and the minimisation of costs, provide an appropriate reference point for the operation of s 100 of the QCAT Act and, in that context, may be placed in the balance along with the s 102(3) interests of justice considerations. The interplay between s 100 and s 102(3) may well vary, depending on the impact a costs order in the case at hand might have on access to justice and the other objectives in s 3 of the QCAT Act.
  2. [42]
    For example, the prospect of an adverse costs order is likely to weigh heavily on any decision to seek review of certain administrative decisions, which will potentially have a significant impact on access to justice. On the other hand, in relation to body corporate disputes involving significant monetary or other considerations, the interests of justice in awarding costs, as alluded to by Keane JA in Tamawood, might weigh heavily in favour of a costs order. In those circumstances, the disincentive of a potential costs order in bringing a matter before the Tribunal is less likely to loom so large and, accordingly, considerations of access to justice might weigh relatively lightly in the balance against a costs order.
  3. [43]
    On that basis, the underlying concern of s 100, in particular of not impeding access to justice and maintaining a low cost jurisdiction, may simply be placed in the balance along with the s 102(3) considerations, with the weight accorded to it being largely dependent on the nature and scope of the proceedings.
  1. [10]
    The impact of s 100 of the QCAT Act in the present case is considered further below. In relation to s 102(3), it is noted that those provisions do not provide grounds for awarding costs, merely factors the Tribunal may take into consideration.[9] While the factors in s 102(3) are not stated to be exhaustive, given the breadth of s 102(3)(f) (‘anything else the Tribunal considers relevant’), it is convenient to address the parties’ submissions by reference to each of the respective factors set out in ss 102(3)(a)-(f). Before doing so, there are some preliminary matters arising out of Telgrove’s further submissions that should be dealt with.

Preliminary matters

  1. [11]
    First, Telgrove submits that it took the Appeal Tribunal’s direction that the parties provide submissions on costs (which Telgrove characterised as an invitation) to mean that the Appeal Tribunal ‘saw prima facie the merit in conferring a costs order favouring the successful party’.[10] With respect, the submission is misconceived. The direction was made as a matter of procedural fairness to permit the parties to make submissions as to whether a costs order should be made.
  2. [12]
    Second, Telgrove seeks to rely upon submissions that were made on the ‘remitter’ to the Tribunal pursuant to the orders of the Appeal Tribunal and also settlement offers that were made between the parties after the filing of submissions on the remitter.[11] Save for the costs of the supplementary further submissions of the parties filed subsequent to the AT Decision, all of the relevant costs were incurred by the parties no later than the date of the corrected decision of the Appeal Tribunal on 19 October 2021. Telgrove does not contend, and we cannot identify from the settlement offers filed, that there was an offer to settle the costs of the Appeal Tribunal proceeding. In the circumstances, we consider that the matters relied upon by Telgrove occurring subsequent to 19 October 2021 are not relevant to a consideration of whether a costs order should be made in relation to the Appeal Tribunal proceeding.
  3. [13]
    Third, Telgrove submits that:[12]

The qualifying circumstances of ‘the interest of justice’ have been considered and ruled upon by the Queensland Court of Appeal [Tamawood Limited & Anor v Paans [2005] QCA 111 (Keane JA)], where it was held that, where a party reasonably obtained legal representation because of the complexity of the case, and is successful before a tribunal, it was not in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of representation which was reasonably necessary to obtain that outcome. This principle is regularly cited in the Tribunal [Thomas v Nielson [2012] QCAT 225; Worthington t/as Worthington Simmons Builders v Ryan [2022] QCATA 8 at [21]].

  1. [14]
    The Appeal Tribunal case relied upon by Telgrove (Worthington), concerned the question of costs in building dispute proceedings (including appeals) which the Appeal Tribunal noted were not governed by the QCAT Act but by the Queensland Building and Construction Commission Act 1991 (Qld).[13] Whilst the observations of Keane JA in Tamawood are relevant to a consideration of costs that may be awarded under the QCAT Act, we consider that there is no binding ‘principle’ in the present case; rather, the question of costs is to be determined by the application of ss 100 and 102 of the QCAT Act.

Section 102(3)(a) (acting in a way that unnecessarily disadvantages another party)

  1. [15]
    Telgrove submits that:[14]

the Applicant has disadvantaged the Respondent by failing to discharge its onus as an appellant before the Appeal Tribunal, in particular, by failing to conduct its appeal in respect of Ground 4 (a mixed question of law and fact) by way of a rehearing, as required by section 147 of the QCAT Act.

  1. [16]
    Telgrove also submits that (in referring to s 102(3)(b)):[15]

the Grounds of appeal, and the Applicant’s conduct of the appeal, have added unnecessary complexity.

  1. [17]
    Given the manner in which the second argument is advanced, we consider it is properly to be considered under s 102(3)(a). In support of this further argument, Telgrove submitted that:
    1. the common ‘element’ in support of Grounds 1, 2 and 5 was the Commissioner’s contention that a single isolated factor could prevail over all other competing factors and was contradictory to the approach previously applied by the Commissioner;[16] and
    2. further:[17]

The fact that these new (and unsuccessful) arguments were never raised at first instance would usually favour the award of costs to the Respondent. The additional fact that the contrary argument was advanced in the Applicant’s Exclusion Order, Objection Decision, and submissions at first instance supports that costs in relation to Grounds 1, 2 and 5 should be awarded to the Respondent in the interests of justice.

  1. [18]
    The Commissioner submits:[18]
  1. … that his conduct in the proceedings was not in contravention of any direction by the Appeal Tribunal or otherwise such as to unnecessarily disadvantage the other party to the proceedings. There are no circumstances within the scope of section 48(1)(a) to (g) of the QCAT Act, and no application was brought by Telgrove claiming any such conduct occurred in the course of the proceedings.
  1. It is conceded that leave to appeal was belatedly sought at hearing in regard to Grounds 3 and 5, as up [to] that time the view [had] been taken that these grounds involved only questions of law. Although the Appeal Tribunal ultimately did not grant leave to appeal for Ground 3, leave was granted for Ground 4, and grounds 1 and 2 did not require leave. Ground 5 was largely an example of the legal issues raised in grounds 1 and 2, and was dealt with in that manner by the Appeal Tribunal. It is submitted that the late application for leave, did not unduly prejudice Telgrove, as the question of leave and the merits of the appeal were addressed in submissions by both parties and dealt with at the one hearing.
  1. [19]
    The Commissioner succeeded in relation to Ground 4 (insofar as the unpaid dividends issue was concerned). In this respect, the AT Decision turned on a question of law as is evident from the Reasons of the Appeal Tribunal at [86] (see also [61], [73] and [85]). We consider that Telgrove’s reliance on s 147 of the QCAT Act is misplaced (and, in any event, would not be a matter that would be a factor supporting an award of costs against the Commissioner).
  2. [20]
    With respect to Telgrove’s submissions summarised in paragraph [17] above, we consider that any change in approach on the Appeal Application by the Commissioner would not, of itself, be a circumstance supporting an award of costs against the Commissioner. To the extent that Telgrove refers to the contention that a single isolated factor can prevail over all other competing factors, we note the Appeal Tribunal’s reasons at paragraph [39] of the AT Decision. However, we consider the fact that the Commissioner was unsuccessful in relation to Grounds 1, 2, 3 and 5 to be a relevant consideration (as addressed in relation to s 102(3)(c) below).
  3. [21]
    With respect to the belated application by the Commissioner for leave to appeal in relation to Grounds 3 and 5, we consider that in the context of the hearing of the Appeal Application, there was no demonstrable prejudice caused to Telgrove by the seeking of leave to appeal. We are unable to identify any additional costs incurred by Telgrove in this regard.
  4. [22]
    We are not satisfied that the Commissioner acted in a manner that unnecessarily disadvantaged Telgrove in the Appeal Tribunal proceeding.

Section 102(3)(b) (the nature and complexity of the dispute)

  1. [23]
    Other than the issue raised by Telgrove identified at paragraph [16] above, it has not otherwise addressed this factor.
  2. [24]
    The Commissioner submits:[19]
  1. The original review proceedings were brought by Telgrove to seek to overturn a decision on objection which refused the grant of an exclusion order under section 74 of the PTA. The subsequent Appeal was brought by the Commissioner largely to clarify elements of the Tribunal decision. The Commissioner reasonably considered that these elements had implications for the manner in which section 74 of the PTA was to be applied relevant to both Telgrove’s claim for an exclusion order, how the PTA was interpreted and administered in Queensland, and potentially also how analogous provisions would be interpreted and applied in other jurisdictions, generally.
  1. The nature of the proceedings below, as review proceedings, is relevant to the issue of whether or not the default position of section 100 of the QCAT Act should be altered. The Appeal is in the context of review proceedings, not proceedings as between litigants seeking to recover damages. The role of the Commissioner is akin to a regulator, ensuring that the tax burden is shared by taxpayers in accordance with the legislation, and the public revenue is protected. In view of the role of the Commissioner and the type of proceeding, unless the conduct of the matter by the Commissioner is otherwise considered to be unreasonable or unfair, there should be no basis for departing from the default position specified in section 100 that each party bears their own costs. This was the view taken by the Court of Appeal in the Medical Board of Australia v Wong. Although the medical board in that case was under a statutory obligation to refer the matter to QCAT (when here it is an Appeal from review proceedings instigated by a taxpayer), it is submitted that the attention paid by the Court in that case to the role of the Board in determining the issue of costs is of relevance to the Tribunal’s approach in this matter.
  1. It is conceded that the matter was somewhat complex, which necessitated legal representation on both sides. Such legal representation was a right under section 72 of the TAA. However, it is submitted that the complexity and use of legal representation in this case, does not justify any departure from the usual order as to costs under section 100, as further outlined below under the heading relating to paragraph 102(3)(f).
  1. [25]
    The nature of the dispute involved an application for leave to appeal and an appeal from a decision of the Tribunal in a review proceeding involving an application by Telgrove to review the Commissioner’s decision to disallow objections to an assessment made by the Commissioner.
  2. [26]
    In our view, the issues raised by the Appeal Application required a consideration of a significant volume of material before the Tribunal below and raised issues of some complexity. We consider that this is a factor which is capable of supporting other factors in favour of a costs order. It is also linked to another material factor that both parties were legally represented. The issue of legal representation is further addressed by the Commissioner in the context of s 102(3)(f) and we consider it convenient to deal with it under that heading.
  3. [27]
    We turn to the Commissioner’s contention that unless the conduct of the Commissioner was considered to be unreasonable or unfair, there should be no basis for departing from the default position under s 100, relying, by analogy, upon the approach taken by the Queensland Court of Appeal in Medical Board of Australia v Wong.[20]The Commissioner acknowledges that the Medical Board in that case was under a statutory obligation to refer the matter to the Tribunal. With respect, we consider that the role of the Commissioner is not to be equated with that of the Medical Board when regard is had to the Board’s statutory responsibility for the protection of the public[21] and the ‘mandatory nature’ of the provision pursuant to which the proceeding in that case was brought by the Medical Board.[22] In our view, there is no justification for adopting an approach that requires a finding that the Commissioner has acted unreasonably or unfairly in order to displace the default or starting position under s 100.

Section 102(3)(c) (the relative strengths of the claims made by each of the parties)

  1. [28]
    Telgrove submits that the strength of the claims made by it were ‘superior’ relative to the claims of the Commissioner, and Telgrove asserts that it had success in respect of all grounds argued before the Appeal Tribunal.[23]
  2. [29]
    The Commissioner submits that:[24]
  1. It is conceded that the Commissioner failed in regard to 4 out of the 5 grounds raised. However, ultimately he has been successful in having the review decision overturned and the matter referred back to the Tribunal below. This is not a situation where the Commissioner has only been successful in a minor respect. As was stated in Campbell v Queensland Building and Construction Commission [[2023] QCAT 54]:

“review proceedings are of an entirely different character to civil claims for damages. ‘Success’ in a review proceeding is not measured by reference to an award of damages but rather to whether a particular administrative decision is made”.

  1. Thus, the important result from the Appeal proceedings, is that the Commissioner’s administrative decision under review still stands, pending the determination to be made by the Tribunal below.
  1. [30]
    The Commissioner failed to sustain any of Grounds 1, 2, 3 and 5. While the Commissioner had success in relation to Ground 4, the Commissioner succeeded to the extent of having the decision set aside and returned to the Tribunal for reconsideration according to the reasons of the Appeal Tribunal (that is, the issue upon which the Commissioner had success was not finally determined on the appeal). In this respect, the Court of Appeal described the Commissioner as having had ‘some success’.[25] We consider it material that the Commissioner had partial success. However, there were four Grounds of Appeal in respect of which the Commissioner failed to succeed.[26] Viewed from this perspective, we consider that Telgrove can also be described as having had partial success. It appears evident that proportionally greater resources would have been devoted to the issues in respect of which Telgrove did have success. We consider that this factor provides support for the making of a partial costs order in favour of Telgrove.

Section 102(3)(d) (specified factors in a proceeding for the review of a reviewable decision)

  1. [31]
    Telgrove submits that:[27]

being a proceeding for the review of a reviewable decision:

  1. the Appeal Tribunal may form the view that the Respondent was not afforded natural justice, so far as the Applicant raised arguments on appeal that were not advanced at first instance; and
  1. where the Respondent genuinely attempted to enable and help the decision-maker to make the decision on the merits;
  1. [32]
    The Commissioner submits that:[28]
  1. It is noted that paragraph (d) refers only to a proceeding for review, and the costs issue in this case is only as to the proceedings for leave to appeal or appeal. In Kehl v Board of Professional Engineers of Queensland Her Honour, Kingham J considered that this factor had no relevance to the question of costs of an application for leave to appeal from an interlocutory decision in a review matter. It is submitted that this situation is analogous, such that the Tribunal need not consider this factor.
  1. However, should the Tribunal consider to the contrary, the Commissioner submits that no natural justice issues were raised by Telgrove in the review proceedings, and it is not considered that any arose in the Commissioner’s handling of the decision-making process under the TAA and PTA. In regard to the conduct of Telgrove, it is noted that in the proceedings below, substantial further evidence was led by Telgrove that was not before the original decision-maker. It is submitted that this evidence could have been provided to the decision-maker at the objection stage.
  1. [33]
    In our view, the language of s 102(3)(d) supports the Commissioner’s submission that the provision is directed to a first instance decision rather than as an appeal proceeding (which is a separate proceeding). We conclude that this factor is not material to the question of costs in the Appeal Tribunal proceeding. Even if this conclusion were incorrect, we find no basis for Telgrove’s suggestion that the Commissioner did not afford Telgrove natural justice.

Section 102(3)(e) (the financial circumstances of the parties)

  1. [34]
    Telgrove submits that:[29]

looking at the relative financial circumstances of the parties:

  1. the Applicant, as an arm of the Queensland Treasury, enjoys significantly superior financial resources compared to the Respondent;
  1. in order for the Respondent to commence the review, under section 69 of the Taxation Administration Act 2001 (Qld) (“the TA Act”) the full amount of the disputed assessments was required to first be paid to the Applicant, comprising:
  1. Payroll Tax of $742,776.64
  2. Unpaid Tax Interest of $95,392.76 and
  3. Penalty Tax of $32,302.34;
  1. since commencing the review, from September 2017 to date the Respondent has continued to pay payroll tax to the Applicant of approximately $294,774;
  1. the requirement to pay payroll tax currently remains ongoing at approximately $4,000 each month;
  1. the Respondent has incurred legal costs in the first instance and in the Applicant’s appeal of $136,702.49 (plus GST), of which the costs for the Applicant’s unsuccessful appeal to the Appeal Tribunal are $66,810 (plus GST); …
  1. [35]
    The Commissioner submits that:[30]

The Commissioner represents the public interest, and administers public funds. Telgrove is a commercial entity presumably with some resources. It is not considered that this factor is of relevance in these proceedings.

  1. [36]
    There is no doubt that the Commissioner has ample capacity to meet an order for costs and will not suffer any identifiable financial difficulty if ordered to do so.
  2. [37]
    Telgrove has not provided evidence of, or made submissions in respect of, its financial position. Telgrove has not established that it will suffer any identifiable financial difficulty if an order for costs is not made. In Telgrove’s further submissions, it ‘affirmed’ the submissions made in its initial submissions.[31] Insofar as the items numbered (ii), (iii) and (iv) of paragraph [34] above are concerned, Telgrove has not updated the position in relation to those amounts in its further submissions, but the settlement offers suggest that the bulk of those amounts would have been refunded by the Commissioner. In the absence of evidence in this regard, we consider that there is no sufficient basis to have regard to those matters in relation to the financial circumstances of Telgrove. Further, the fact that the Commissioner may have ‘superior financial resources’ is not, of itself, a factor weighing in favour of awarding costs to Telgrove. The item numbered (v) in paragraph [34] above merely refers to the amount of costs incurred in relation to the Appeal Tribunal and the Court of Appeal proceedings. We consider that in the absence of evidence of the financial position of Telgrove, the mere fact of payment of its own costs is not material to the assessment of whether it is in the interests of justice to make an award of costs pursuant to s 102.

Section 102(3)(f) (anything else the tribunal considers relevant)

  1. [38]
    In support of this factor, Telgrove relies upon paragraphs 4.1 to 6.9 inclusive of Telgrove’s submissions.[32]These paragraphs contain a response to each of Grounds 1 to 5 of the Commissioner’s Application for leave to appeal or appeal. We consider that these matters properly fall within s 102(3)(c) and have been addressed above.
  2. [39]
    The Commissioner submits that:[33]
  1. As indicated above, this paragraph (f) is not to be read ejusdem generis with the other paragraphs, and has been interpreted with the other factors in section 102(3), consistently with a broad discretion overall to assess the interests of justice in a particular case and whether such interests require that the default position of section 100 not apply. However, the Hon P Lyons QC said in Thompson v Cannon in relation to paragraph (f) that:

“the Tribunal could only consider a matter to be relevant, if there is a rational connection between that matter and a conclusion that the interests of justice require an order for costs”.

  1. The fact of a party having reasonably obtained legal representation has been considered to be relevant, as a factor to be considered in the determination of costs of a successful party. There is no dispute in this case, that the complexity of the matter necessitated both parties to have legal representation. It is submitted however, that where the issue is the question of costs to be awarded (if any) to an unsuccessful party to a matter, it would be incongruous for the successful party to be ordered to pay costs solely on the basis of the fact that the unsuccessful party was legally represented. At most in the circumstances of this matter, this factor would only go to reinforcing the appropriateness of an order under section 100 of the QCAT Act, and denying the Commissioner any award of costs, rather than to support of [sic] any claim for costs by Telgrove.
  1. [40]
    In the present case, we consider that the complexity of the issues and the fact that both parties were legally represented go hand in hand. We consider the fact that both parties were legally represented (in a case of complexity) is a material factor that may support the making of a costs order having regard to other relevant circumstances. We also observe that both parties saw the need to engage Counsel. We reject the Commissioner’s contention that the fact of legal representation goes only to ‘reinforcing the appropriateness of an order under section 100 of the QCAT Act’.
  2. [41]
    In relation to the considerations arising under s 100 of the QCAT Act, while the original application was an application to review a decision the present proceeding is an appeal from that decision and involves the payroll tax obligations of a corporation. A costs order in such a case is not likely to have a relatively significant negative impact on the objects of the QCAT Act, including access to justice: see at [9], above.

Conclusion

The interests of justice

  1. [42]
    Having regard to all the circumstances of the case, we are of the view that the interests of justice require or necessitate the making of an order that the Commissioner pay part of Telgrove’s costs. The circumstances which we consider warrant the making of such an order pursuant to s 102 of the QCAT Act comprise the following:
    1. the complexity of the subject matter of the application for leave to appeal;
    2. that both parties were legally represented (including appearance by Counsel);
    3. that the Commissioner failed to sustain any of Grounds 1, 2, 3 and 5;
    4. whilst the Commissioner had success in relation to Ground 4, the Commissioner succeeded to the extent of having the decision set aside and the matter returned to the Tribunal for reconsideration according to the reasons of the Appeal Tribunal (described by the Court of Appeal as the Commissioner having ‘some success’);
    5. however, the partial success enjoyed by the Commissioner tells against an award of costs for the whole of Telgrove’s costs.
  2. [43]
    In all the circumstances, we consider that it is appropriate that the Commissioner pay 60% of Telgrove’s costs, subject to the following matters.

The quantum of costs before deduction

  1. [44]
    We accept Telgrove’s submission that costs should be fixed pursuant to s 107 of the QCAT Act.
  2. [45]
    The quantum of costs claimed by Telgrove is said to comprise $66,810.00 (as contained in Telgrove’s initial submissions) plus further costs of $15,000.00 as Telgrove’s ‘reasonable costs for the application to correct a decision of the Appeal Tribunal filed on 15 June 2021’.[34]
  3. [46]
    We accept that the amount of $66,810.00 (plus GST) was incurred as established by the respective invoices. However, when regard is had to the invoices provided in respect of the additional amount of $15,000.00 (plus GST), it is plain that they include costs additional to those incurred in correcting the decision of the Appeal Tribunal. To the extent that the amounts claimed did relate to the costs of correcting the decision, we consider that the Commissioner should not be burdened with a proportion of those costs in circumstances where fault cannot be sheeted home to the Commissioner in this regard and where the Commissioner would likely have incurred his own costs in relation to that issue.
  4. [47]
    In the tax invoice of PPM Tax & Legal dated 30 June 2021, one of the items of professional fees is stated to be: ‘Our review and consideration of Application to Court of Appeal including affidavit of PG Murray dated 29 June 2021’. We consider that such costs are not properly costs recoverable in relation to the application for leave to appeal and the appeal in the Appeal Tribunal. In the absence of a detailed breakup of costs, we can only make a broad brush assessment of the component of costs relating to the correction of the AT Decision and the ‘review and consideration of Application to Court of Appeal’. On this basis, we attribute one half to such costs, leaving a balance of $7,500.00 (plus GST) to be added to the primary sum. When added to the sum of $66,810.00, a total figure of $74,310.00 for costs is arrived at.

The basis on which the costs should be ordered

  1. [48]
    The costs claimed by Telgrove appear to be claimed on the indemnity basis. Telgrove did not make submissions as to why an order on the indemnity basis ought to be made.
  2. [49]
    The Commissioner did not direct any submissions to this issue (nor did he otherwise make submissions in relation to the quantum of the costs claimed by Telgrove).
  3. [50]
    In our view, Telgrove has not demonstrated a proper basis for an award of costs on the indemnity basis and is entitled to costs on the standard basis. Adopting a broad brush approach, we consider that, consistently with a number of previous decisions of the Tribunal,[35] a deduction of one third of the actual costs should be applied to arrive at a figure representing standard costs.

Amount of costs to be paid by the Commissioner

  1. [51]
    In accordance with the above reasons, we consider that the Commissioner should pay part of Telgrove’s costs fixed[36] in the sum of $29,724.00 (plus GST) calculated as follows: 60% of $74,310.00 (being $44,586.00) less one third to reflect costs on the standard basis.

Order

  1. [52]
    For the above reasons, the Appellant is ordered to pay to the Respondent the sum of $29,724.00 for costs, within 28 days of the date of this decision.

Footnotes

[1]The decision of the Appeal Tribunal was given on 28 May 2021: Commissioner of State Revenue v Telgrove Pty Ltd [2021] QCATA 67 (the AT Decision). Leave to appeal the AT Decision was sought by the Commissioner and leave to cross-appeal was sought by Telgrove, with the Court of Appeal refusing leave in each instance: Commissioner of State Revenue v Telgrove Pty Ltd [2022] QCA 132 (Mullins JA (as her Honour then was), Bond JA and Boddice J) (Telgrove CoA Decision).

[2] Commissioner's primary submissions, paragraph 10.

[3]See McGee v Queensland Building and Construction Commission [2018] QCATA 124, [29].

[4]Medical Board of Australia v Wong [2017] QCA 42, [37].

[5]McGee v Queensland Building and Construction Commission [2018] QCATA 124, [24].

[6]The Licensee Pty Ltd v Queensland Building and Construction Commission [2021] QCATA 7, [39].

[7]CH v Queensland Police Service [2021] QCATA 137, [6].

[8][2023] QCAT 298.

[9]Queensland All Codes Racing Industry Board v Abbott (No. 2) [2016] QCATA 49, [8] (Justice DG Thomas, President, and Senior Member Stilgoe OAM), citing Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364.

[10]Telgrove’s further submissions, paragraph 1.3.

[11]Ibid, paragraphs 1.6 to 1.11.

[12]Ibid, paragraph 2.3 (we have included the footnoted cases in the body of the submission).

[13]Worthington, [18].

[14]Telgrove’s initial submissions, paragraph 3.2(a).

[15]Ibid, paragraph 3.2(b).

[16]Ibid, paragraphs 4.1 to 4.4.

[17]Ibid, paragraph 4.5.

[18]Commissioner’s primary submissions, paragraphs 13 and 14.

[19]Commissioner’s primary submissions, paragraphs 15 to 17.

[20][2017] QCA 42.

[21]Ibid, [37].

[22]Ibid, [32].

[23]Telgrove’s initial submissions, paragraph 3.2(c).

[24]Commissioner’s primary submissions, paragraphs 18 and 19.

[25]Telgrove CoA Decision, [2].

[26]And in relation to Ground 4, the Commissioner failed in relation to one of the two sub-issues, namely ‘the loan issue’.

[27]Telgrove’s initial submissions, paragraph 3.2(d).

[28]Commissioner’s primary submissions, paragraphs 20 and 21.

[29]Telgrove’s initial submissions, paragraph 3.2(e).

[30]Commissioner’s primary submissions, paragraph 22.

[31]Telgrove’s further submissions, paragraph 2.2.

[32]Telgrove’s initial submissions, paragraph 3.2(f).

[33]Commissioner’s primary submissions, paragraphs 23 and 24.

[34]Telgrove’s further submissions, paragraphs 3.2 and 3.3.

[35]See, e.g., Thompson v Body Corporate for Arila Lodge & Anor; Thompson v Body Corporate for Arila Lodge & Anor (No 2) [2018] QCATA 133, [59]; Campbell v The Body Corporate for 70 Bowen St & Ors [2020] QCATA 26, [24] (‘a little more than’ one third was deducted); Venga Pty Ltd trading as San Churro and Anor v YFG Shopping Centres Pty Ltd [2020] QCAT 118, [25]; Monsour & Anor v C & R Darvill Pty Ltd [2023] QCAT 62, [47].

[36]Pursuant to s 107 of the QCAT Act.

Close

Editorial Notes

  • Published Case Name:

    Commissioner of State Revenue v Telgrove Pty Ltd (No 2)

  • Shortened Case Name:

    Commissioner of State Revenue v Telgrove Pty Ltd (No 2)

  • MNC:

    [2023] QCATA 113

  • Court:

    QCATA

  • Judge(s):

    Senior Member Aughterson, Member Lumb

  • Date:

    05 Sep 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
2 citations
Jump To
Cite 1 - [2010] QCAT 364
Cite 2 - [2010] QCAT 364
Campbell v Queensland Building and Construction Commission (No 2) [2023] QCAT 54
2 citations
Jump To
Cite 1 - [2023] QCAT 54
Cite 2 - [2023] QCAT 54
Campbell v The Body Corporate for 70 Bowen St CTS 15330 (costs) [2020] QCATA 26
2 citations
Jump To
Cite 1 - [2020] QCATA 26
Cite 2 - [2020] QCATA 26
CH v Queensland Police Service [2021] QCATA 137
2 citations
Jump To
Cite 1 - [2021] QCATA 137
Cite 2 - [2021] QCATA 137
Commissioner of State Revenue v Telgrove Pty Ltd [2021] QCATA 67
2 citations
Jump To
Cite 1 - [2021] QCATA 67
Cite 2 - [2021] QCATA 67
Commissioner of State Revenue v Telgrove Pty Ltd [2022] QCA 132
2 citations
Jump To
Cite 1 - [2022] QCA 132
Cite 2 - [2022] QCA 132
McGee v Queensland Building and Construction Commission [2018] QCATA 124
3 citations
Jump To
Cite 1 - [2018] QCATA 124
Cite 2 - [2018] QCATA 124
Cite 3 - [2018] QCATA 124
Medical Board of Australia v Wong [2017] QCA 42
3 citations
Jump To
Cite 1 - [2017] QCA 42
Cite 2 - [2017] QCA 42
Cite 3 - [2017] QCA 42
Monsour v C & R Darvill Pty Ltd [2023] QCAT 62
2 citations
Jump To
Cite 1 - [2023] QCAT 62
Cite 2 - [2023] QCAT 62
Pound v Queensland Building and Construction Commission [2023] QCAT 298
2 citations
Jump To
Cite 1 - [2023] QCAT 298
Cite 2 - [2023] QCAT 298
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
Steven Bryan Worthington t/as Worthington Simmons Builders v Dr Andrew William Ryan; Dr Andrew William Ryan v Steven Bryan Worthington t/as Worthington Simmons Builders [2022] QCATA 8
2 citations
Jump To
Cite 1 - [2022] QCATA 8
Cite 2 - [2022] QCATA 8
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
The Licensee Pty Ltd v Queensland Building and Construction Commission [2021] QCATA 7
2 citations
Jump To
Cite 1 - [2021] QCATA 7
Cite 2 - [2021] QCATA 7
Thomas v Nielson [2012] QCAT 225
1 citation
Jump To
Cite 1 - [2012] QCAT 225
Thompson v Body Corporate for Arila Lodge [2018] QCATA 133
2 citations
Jump To
Cite 1 - [2018] QCATA 133
Cite 2 - [2018] QCATA 133
Venga Pty Ltd v YFG Shopping Centres Pty Ltd [2020] QCAT 118
2 citations
Jump To
Cite 1 - [2020] QCAT 118
Cite 2 - [2020] QCAT 118

Cases Citing

Case NameFull CitationFrequency
Commissioner of State Revenue v Sandgate Road Property Pty Ltd (No 2) [2023] QCATA 1202 citations
Mojo Constructions Australia Pty Ltd v Smith [2024] QCAT 492 citations
Smyth v Queensland Racing Integrity Commission (costs) [2024] QCAT 5852 citations
Spedding Estates Pty Ltd as trustee for The Spedding Family Trust t/as Summergrove Estate v Reid No 2 [2023] QCATA 1172 citations
1

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