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Neller & Anor v Queensland Building and Construction Commission [No 2][2024] QCATA 46

Neller & Anor v Queensland Building and Construction Commission [No 2][2024] QCATA 46

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Neller & Anor v Queensland Building and Construction Commission [No 2] [2024] QCATA 46

PARTIES:

Luke edward neller and leeward management pty ltd atf le Trust t/as Project BA

(appellants)

v

queensland building and constructiOn commission

(respondent)

APPLICATION NO/S:

APL009-22

MATTER TYPE:

Appeals

DELIVERED ON:

21 March 2024

HEARING DATE:

14 April 2023

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

  1. 1.
    The application for costs by both applicants filed on 15 September 2023 in respect of APL009-22 is dismissed.
  1. 2.
    The application for costs filed on 15 September 2023 in respect of OCR207-21 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – COSTS – WHEN APPEAL LIES – where applicants were successful on an appeal – where applicants have applied for costs – where second applicant joined in the proceeding for the appeal – where second applicant utilised the services of an in-house legal officer – where costs sought on an indemnity basis – where costs of in-house legal officer based on charge out rate of an external lawyer – where first applicant engaged external lawyer for advice and preparation of documents – whether interests of justice require the respondent to pay costs of one or both applicants – whether costs of first applicant reasonable – whether self-represented litigant entitled to recover legal costs as an outlay – whether costs of using an in-house legal officer should be reflective of the costs to the employer rather than akin to using an external legal firm – whether in the interests of justice to make any order for costs.

Building Act 1975 (Qld), s 190(2A)

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

State Administrative Tribunal Act 2004 (WA), s 87(1)

South Australian Civil and Administrative Tribunal Act 2013 (SA), s 57(1)

Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 109(1)

Aussie Invest Corporation Pty Ltd v Hobsons Bay City Council (2004) VCAT 2188

Baker v Dubickas & Ors. [2021] QDC 236

Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors [2022] QCAT 225

Brading v Suskova [2017] QCAT 373

Environmental Protection Authority v Taylor Woodrow (Aust) Pty Ltd (1997) 97 LGERA 368

Cachia v Hanes (1994) 179 CLR 403

CH v Queensland Police Service [2021] QCATA 137

Crime and Corruption Commission v NDZ [2024] QCAT 21

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

Chiropractic Board of Australia v Jamieson [2013] QSC 77

Dansur Pty Ltd v Body Corporate for Cairns Aquarius & Anor [2023] QCATA 14

Drane v Taylor No 2 [2022] QCATA 157

Fuge v Queensland Building and Construction Commission [2014] QCAT 383

Legal Services Commissioner v Cooper [2017] QCAT 151

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

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

Merrin v Commissioner of Police [2012] QCA 181

Neller v Queensland Building and Construction Commission [2021] QCAT 426

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

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

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

Sunshine Coast Regional Council v Dwyer & Ors (2388 of 2019)

Whalley v Queensland Building and Construction Commission (No 2) [2017] QCAT 188

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

  1. [1]
    Mr Neller is a private certifier employed by Leeward Management Pty Ltd as trustee for the LE Trust trading as Project BA (‘Project BA’). Project BA carries on business as building certifiers.[1] On 34 May 2021 the Commission made a decision that Mr Neller engaged in unsatisfactory conduct in relation to a Development Application Decision Notice (‘development application’) dated 17 December 2019 in respect of work on the roof of a property at 5 Minyama Island, Minyama owned by Vicki Dwyer.
  2. [2]
    Mr Neller filed an application to review that decision and later in the proceeding, on its own application, Project BA was joined as an applicant. In the review application Mr Neller contended that the Commission’s decision was out of time because of the application of s 190(2A) of the Building Act 1975 (Qld). The section provided that disciplinary action could only be taken against the certifier if it was taken within one year of the complaint being made, the ‘cut-off’ date. There was an exception to the ‘cut-off’ date and that was if “the certifier’s conduct has or may have caused significant financial or other serious harm”.
  3. [3]
    Because this question was pivotal to the review application, the Tribunal directed that there be a preliminary determination of whether the section applied to the complaint against Mr Neller. At first instance the Tribunal found that s 190(2A) was satisfied and the limitation did not apply.[2] Mr Neller appealed that decision. Project BA was joined as an applicant to the appeal mainly because it was Mr Neller’s employer, but did so on its own application.
  4. [4]
    The appeal was successful and the primary decision was set aside. The effect of this was that Mr Neller did get the benefit of the time limitation under s 190(2A). As a consequence, the Commission ultimately withdrew the complaint against Mr Neller for unsatisfactory conduct. There was never any complaint made against Project BA, nor could any orders be made against it in the primary review proceeding.[3] Its joinder was, it seems, to assist Mr Neller in the review application. It is somewhat of a puzzle as to why the joinder was necessary where it could have provided assistance in any event.
  5. [5]
    Both Mr Neller and Project BA have now applied for the costs of the primary proceeding and the appeal. Costs do not follow the event and therefore the applicants must satisfy me that it is in the interests of justice that they have the benefit of a costs order.
  6. [6]
    There have been a number of cases in the Tribunal where attempts have been made to to identify a clear roadmap as to the application of the words in s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’):

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]
    “Other than as provided under this Act” is a reference to s 102 which confers a discretion on the Tribunal to make an order requiring a party to pay costs if it is considered that the interest of justice require it to do so. Until the decision in Marzini v Health Ombudsman (No 4)[4]  the accepted approach to the application of s 100 in the Tribunal was that articulated by the then President Justice Alan Wilson J, in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2),[5] that is:

whether the circumstances relevant to the discretion inherent in the phrase “the interests of justice” point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.

  1. [8]
    The Marzini approach differs because it contends that s 100 should be read with s 102 so that that there is no constraint by the words of s 100, as it were, on the Tribunal’s power to make a costs order providing it is in the interests of justice. The Marzini approach has been followed in Cowen v Queensland Building and Construction Commission[6] and CH v Queensland Police Service.[7] The approach has been reinforced by a recent decision in Queensland Building and Construction Commission v B & L Constructions Pty Ltd (No 2).[8]
  2. [9]
    This then gets perilously close to the general rule, as provided for in the Uniform Civil Procedure Rules,[9] that costs follow the event. If costs follow the success of litigation it is reasonable to assume (or imply) that it is in the interests of justice, not just the rules, that this should be so. There are other decisions which preferred the Ralacom approach[10] and some that simply acknowledged the distinction.[11] However, where it is obvious that the interest of justice are so compelling to warrant a costs order, the distinction in approach is of little significance.[12]
  3. [10]
    The distinction was discussed at some length by Senior Member Aughterson in the two recent decisions of Pound v Queensland Building and Construction Commission [2023] QCAT 298 (‘Pound’) and Crime and Corruption Commission v NDZ [2024] QCAT 21 (‘NDZ’).
  4. [11]
    In Pound the learned Senior Member considered the costs sections in the legislation establishing administrative tribunals in other jurisdictions.[13] He referred to various judicial statements about the application of the costs provisions in those jurisdictions.[14] The general conclusion reached was:

[36] The approach taken in the Victoria cases in particular, is that the ‘general rule’ that each party bears their own costs reflect the objects of the act and is designed to promote access to justice generally and minimise the overall level of costs in tribunal proceedings as far as is practicable.

[37] That approach also seems appropriate to the Queensland legislation, where, by s 3(b), the objects include ‘to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick’.

[38] The link between the s 3 objects and s 100 of the QCAT Act is evident from the Explanatory Note to the QCAT Bill, which states: ‘The Bill will achieve its objective of dealing with matters in a way that is accessible, fair, just, economical informal and quick’ including by ‘providing that the parties bear their own costs in proceedings unless the tribunal considers the interest s of justice require it to order otherwise’.

  1. [12]
    It is apparent from this analysis that proceedings commenced in the Tribunal are done so on the premise that each party will bear their own costs. As a response/s are filed and evidence is put on and issues crystalised, that basic premise may change. It therefore seems to be that the Senior Member’s approach is a more practical way of addressing the question of costs under ss 100 and 102 rather that attempting to identify which of the two approaches should be favoured, i.e. Ralacom or Marzini. As he said:

[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.

[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.

[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. [13]
    For completeness the learned Senior Member reiterated and adopted these observations in NDZ. This was a disciplinary proceeding against a police officer. In that case a costs order was sought by the respondent on the grounds that the Crime and Corruption Commission, late in the day, decided to withdraw the application before it proceeded to a hearing, estimated to take three weeks. There was no final determination on the merits. In this case the learned Senior Member followed and cited Young v Legal Profession Complaints Committee[15] where the Western Australia Court of Appeal approved the following passage from the State Administrative Tribunal:

…the Tribunal considers, that, ordinarily, unless it can be demonstrated what an application made by a vocational body lacked any reasonable basis or was not made in good faith, costs should not be awarded against a vocational regulatory body simply because the application was not successful.

  1. [14]
    There should be no surprise to this approach because a similar approach has been adopted in this Tribunal since at least 2014 starting with Fuge v Queensland Building and Construction Commission[16] cited in Pound and NDZ.[17] For completeness, in Fuge the Tribunal said:

I reiterate that under the QBCC Act, the Commission has a dual function in administering the Act. That is, to protect the public interest and also the interests of building contractors. In doing so it must not be reticent in discharging its obligations for fear of adverse costs orders against it if it is unsuccessful in responding to an application for review of its decisions unless it can be demonstrated, there is some specific conduct on the part of the Commission, that would so compelling overcome the strong contra-indication against costs in s 100 of the QCAT Act. I am not satisfied that this is the case here.

  1. [15]
    Although the references to ‘so compelling’ and ‘strong contra-indication’ may be perceived as applying the Ralacom approach, it is equally consistent with what was said in [12] above by giving such weight as to the nature of, and conduct of a party’s case as is necessary to determine if any of the factors in s 102(3) are satisfied to warrant a costs order in the interests of justice.
  2. [16]
    In weighing the s 102(3) interests of justice considerations with the s 100 factor the Tribunal is also required to be consistent with what the then President of the Tribunal said in Magill v Queensland Law Society Inc (No 3).[18] In that case Daubney J referred to the s 102(3) factors to which the Tribunal may have regard when considering the interests of justice in a particular case and then stated:

These factors, individually and collectively, are not determinative, and go only to informing the exercise of a broad discretion, the touchstone of which remains the Tribunal’s assessment of the interests of justice in a particular case. The discretion to award costs will only be exercised when the interests of justice in a particular case outweigh the prima facie “no costs” position under s 100.

  1. [17]
    With these considerations in mind I will now turn to each party’s submissions on costs.

Mr Neller’s application.

  1. [18]
    At all times Mr Neller was self-represented in both the proceeding below and in the appeal. He has filed an affidavit in which he states, in summary, that:
    1. Since about January 2021 Ms Jacky Soraya Timmins has been his enduring power attorney and authorised to make decisions about his personal and financial matters.
    2. Ms Timmins engaged Hyland Law to provide legal advice in respect of the appealing the primary decision and conducting the appeal.
    3. Hyland Law prepared the application for leave to appeal or appeal and draft submissions on Mr Neller’s behalf.
    4. The total legal costs incurred by Mr Neller are in the sum of $10,252, which includes the filing fee.
  2. [19]
    These costs only relate to the appeal. He was never represented in either the primary application or the appeal. It is contended that Ms Timmins, in-house legal practitioner with Project BA, in representing Project BA, was also the de-facto legal representative for Mr Neller.
  3. [20]
    As for the costs incurred by Mr Neller, recent authority in the Tribunal suggests that, subject to the discretionary considerations in s 102 of the QCAT Act, outlays for legal costs incurred in a proceeding are recoverable.[19] This seems contrary to the general position established in Cachia v Hanes[20] and refined somewhat in such cases as Merrin v Commissioner of Police[21] where it was decided a self-represented litigant could be awarded costs but limited to outlays for filing fees and other court costs. This was later expanded to such costs as a transcript of the evidence, photocopy costs and other reasonable out of pocket expenses.[22] These cases were recently considered and adopted by Sheridan DCJ in Baker v Dubickas & Ors.[23] Her Honour followed what the High Court said in Cachia that self-represented litigants are not entitled to costs[24] but on the basis of what was said in Merrin, did allow for the recovery of  proven out of pocket expenses. Interestingly, she did award some legal costs but only after being informed that the respondents had legal representation for part of the proceeding.
  4. [21]
    In Scott v Stewart, the Appeal Tribunal allowed the recovery of legal costs incurred by a self-represented litigant for engaging lawyers to prepare for the appeal in circumstances where leave for representation was not granted. To include this outlay in “costs” seems inconsistent the cases referred to above that discuss what a self-represented litigant might recover by way of costs. Also, apart from Scott v Stewart, I could not find any authorities where such a course has been adopted under the rules of court, nor any references in academic texts[25] extending the entitlement to recovery of legal costs by a self-represented party.[26]
  5. [22]
    However, that is exactly the position with Mr Neller’s application. The question then is, if Scott v Stewart is followed, whether the discretion should be exercised in his favour.

Project BA’s costs

  1. [23]
    Project BA is the trading name for the respondent, Leeward Management Pty Ltd (‘Leeward’). As at 13 April 2022, Mr Neller was both the sole director and sole secretary of Leeward.[27] Although both Mr Neller and Leeward are separate legal entities, in practical terms the knowledge and interests of Mr Neller are one and the same as the interests of Leeward in operating the business of building certifiers. Even though Mr Neller is employed by the corporate entity, by virtue of his directorship he is the ultimate decision maker for the operation of both the company and the business run by it.
  2. [24]
    Despite the common interest, Leeward applied to be joined to the proceeding purportedly because:
    1. It is in the business of supplying building development approvals;
    2. The application for the development approval was made to Project BA;
    3. The subject building approval was issued by Project BA;
    4. Project BA can provide the Tribunal with all necessary facts, law and materials to assist in determining a fair and reasonable decision.[28]
  3. [25]
    Without, in any way, trying to gainsay the decision of the Tribunal to join Project BA as a party to the proceeding at a time when the appeal was on foot, it is difficult to see how there could be different interests in the way the appeal and subsequently the review proceeding were to be conducted. I will return to this topic later in the reasons.
  4. [26]
    In the appeal Project BA and Mr Neller were represented by Project BA’s in-house solicitor. Ms Timmins has filed an affidavit, sworn 15 September 2023, in which she appends a “calculation for costs for the carriage of this matter”. The Bill of Costs (for the want of a better word) is very detailed and appears to be for indemnity costs rather than standard costs, although there is no distinction in the QCAT Act. An example can be gleaned from the very first line:

Perusing material, including decision, submissions, statement of reason, affidavit, and the like, and consideration of relevant legislation and case law in respect to whether Project BA ought to be a party to the proceedings…

  1. [27]
    The is typical of the type of the particulars for work undertaken as would be seen in a Bill from an independent law firm. I point this out because although some costs can be recovered when using in-house legal officers, it is not the same as recovering costs from external lawyers. This was addressed in Legal Services Commissioner v Cooper[29] in reliance on what was said in Environmental Protection Authority v Taylor Woodrow (Aust) Pty Ltd.[30] That is, where a party receives costs from its in-house legal officers the court will be anxious to ensure the party does not benefit from the litigation, as a private legal firm might. It was suggested that the costs would be a portion of the in-house legal officer’s salary having regard to the time committed to the particular case. By reference to the first line item set out above in the Bill, the charge was $2,955 for 8 hours work, resulting in a charge out rate of $370/hr. There is also reference to the District Court scale of costs in the Bill. The total costs sought to be recovered is $32,329.61.
  2. [28]
    Project BA has not provided any assessment of its actual costs to it by utilising Ms Timmins time in undertaking the work in the primary application or the appeal. Also, I question the utility of Project BA actually applying to be joined in circumstances where Mr Neller was an employee, and the same work could have been undertaken for him in both matters.
  3. [29]
    Submission in support of costs has been filed on behalf of both Mr Neller and Project BA, the joint submissions. The Commission has also filed written submissions. Both parties generally agree that the exercise of discretion to consider the costs application is discharged having regard to those factors under s 102 of the QCAT Act.[31]
  4. [30]
    I propose to address those matters in the order submitted by the applicants rather than sequentially under s 102.

Denial of procedural fairness

  1. [31]
    The applicants contend they, individually and collectively, were denied procedural fairness by the Commission because of the non-disclosure of relevant documents at the time Mr Neller was notified of the complaint against him that he had engaged in unsatisfactory conduct. On 13 January 2021 the Commission provided Mr Neller with a “Complaint Form Building Certifier”, a copy of the letter from the Sunshine Coast Regional Council which detailed the complaint, a final Order from Cash DCJ in Sunshine Coast Regional Council v Dwyer & Ors,[32] a copy of the development approval issued by Mr Neller and a copy of the Code of Conduct for building certifiers.
  2. [32]
    He was invited to make representations to the Commission about the allegation of unsatisfactory conduct. Mr Neller provided a response to the complaint.
  3. [33]
    On 9 March 2021, Mr Stuart of the Commission sent an Information Notice to Mr Neller advising him of the decision of the Commission that he had engaged in unsatisfactory conduct. The only documents referred to in the Information Notice were those sent to him on 13 January 2021.
  4. [34]
    As it has transpired, and it is not really contested, at the time the Commission made its decision it was in possession of other documents which had not been provided to Mr Neller. These included:
    1. Sunshine Coast Regional Council’s Enforcement Notice to Ms Dwyer (the owner of the subject house);
    2. Building development permit issued by Mr Terry Neller of Noosa Building Certifiers;
    3. Judgement of Long SC DCJ in Dwyer v Dwyer v Sunshine Coast Regional Council [2020] QPEC 45;
    4. Sunshine Coast Reginal Council’s Enforcement Notice to Ms Dwyer dated 14 May 2019;
    5. Originating Application in the Planning and Environment Court in Sunshine Coast Regional Council v Dwyer & Ors (2388 of 2019);
    6. Outline of argument for the applicant in Sunshine Coast Regional Council v Dwyer & Ors (2388 of 2019);
    7. Final Orders in Sunshine Coast Regional Council v Dwyer & Ors (2388 of 2019);
    8. Application in pending proceedings filed by the applicant in Sunshine Coast Regional Council v Dwyer & Ors (2388 of 2019);
    9. Originating Application in Sunshine Coast Regional Council v Dwyer & Ors (No 75 of 2020).
    10. Email dated 28 January 2021 from the Sunshine Regional Council which attaches some of the documents referred to above.
    11. Email of 12 February 2021 from Sunshine Coast Regional Council attaching the building development permit of Mr Terry Neller of Noosa Building Certifiers.

These will be referred to as ‘the undisclosed documents’.

  1. [35]
    As he was entitled to do, Mr Neller sought an internal review of the Commission’s decision. When doing so, he remained unaware of the Commission’s possession of the undisclosed documents. He submits that although Mr Blackman’s decision notice on the internal review of 24 May 2021 refers to three of the undisclosed documents, the balance had not been brought to his attention.
  2. [36]
    On receiving the final decision, he then filed the application to review the decision in the Tribunal on 17 June 2021. Pursuant to the usual directions made in a review application, the Commission was directed to file its statement of reasons for its decision. It was only when Mr Neller received the Commission’s statement of reasons that he realised that the Commission was in possession of the undisclosed documents which were included in the statement of reasons.
  3. [37]
    The point he makes is that had he been aware that the Commission had the undisclosed documents, and had it provided him with copies, he could have relied on them in putting forward his submission on the internal review. It is put as follows in paragraph 41 of the applicants’ submission:

Further to paragraph 40 above, the applicants submit that had the QBCC disclosed those documents to Mr Neller and afforded Mr Neller the opportunity to make representation in respect of same, the QBCC may have reached a different conclusion after completion of its investigation and/or its internal review.

  1. [38]
    The applicants further submit that Mr Neller was denied natural justice as a result of the conduct of the Commission in that it:
    1. Failed to properly inform him of the complaint and all of the evidence it relied on in coming to its decision;
    2. Failed to properly ascertain Mr Neller’s position and obtain full representations based on all of the material it was in possession of;
    3. Denied him the opportunity to address the relevance or reliance on the undisclosed documents;
    4. Preferred to liaise with the Sunshine Coast Regional Council in coming to its decision rather than Mr Neller and relied on the undisclosed documents.[33]
  2. [39]
    Because of the above matters, the applicants further submit that it would be in the interests of justice that the Commission pay Mr Neller’s costs and also Project BA’s costs, although it makes a further submission on costs.
  3. [40]
    Before dealing with the Commission’s submission, I would observe that the first applicant’s contention that the consequences of the failure to provide him with the undisclosed documents may have led the Commission to come to a different conclusion, is somewhat speculative. That is because the actual merits of the review application have not been considered either in the primary decision or in the appeal. In other words, whether any evidence, submission or representation, in relation to the undisclosed documents would have been relevant to making the correct and preferable decision on the merits remains unknown because the application never progressed that far. It was resolved on the basis that the requirements of s 190(2A) were not met and Mr Neller, not Project BA, received the protection of the 12-month limitation.
  4. [41]
    The Commission submits that the undisclosed documents were in fact brought to Mr Neller’s attention, not necessarily by production of the documents in a bundle, as it were, but by reference to other documents provided to the applicants.
    1. The enforcement notices were referred to in the Original Decision in the Findings of Fact section.
    2. The development permit issued by Noosa Building Certifiers was also referred to in the Original Decision.
    3. The applicants were aware of proceeding No 2388 of 2019 and documents related to this were referred to in the Original Decision.
    4. In proceeding No 75 of 2020, Mr Neller was a party to the proceeding. Also, the proceeding was referred to in the Original Decision.
    5. The content of the email from the Sunshine Regional Council dated 28 January 2021 is similar to the particulars of the complaint contained in the Information Notice. The email did not add to the information that was provided to Mr Neller. Also, the documents included with the email are referred to in the Original Decision.
    6. The email document of 21 January 2021, not disclosed, but set out at [138] of the Commission’s submissions, again particularises the conduct of Mr Neller which is the substance of the complaint against him.
  5. [42]
    In summary the Commission submits that:

Emphasising that each of the 10 documents and/or the contents of those documents were referred to in the Original Decision, the applicants submissions do not indicate that the applicant requested copies of these documents after receiving the Original Decision, nor do the Commissions records indicate same. In light of this, if it was accepted that there was a denial of natural justice in respect to the documents identified, upon receipt of the Original Decision, the applicant was aware that the Commission had regard to those documents and or the content of those documents. The applicant had an opportunity to request those documents and or make submissions on same if he was of the view that the Commission had misunderstood, misconstrued or overlooked the pertinent matter in respect of same.

  1. [43]
    The Commission also contends that the applicant has failed to identify any link between the non-disclosure (on the applicants’ best case) and the outcome of the proceeding. In other words, because the proceeding was determined on a limitation point having regard to the documents filed, mainly the section 21(2) documents, if there was a link it is tenuous. The effect of the undisclosed documents really only goes to the genesis of the complaint made by the Sunshine Regional Council of which the applicants were fully appraised. I cannot see that Mr Neller was disadvantaged or prejudiced in any way in the determination of the preliminary point.
  2. [44]
    Project BA raised another basis of a denial of natural justice. It is accepted that Mr Neller is an employee of Project BA and the company should have been served with a copy of the Decision Notice dated 25 May 2021 pursuant to s 204(3) of the Building Act 1975 (Qld). However, Mr Neller was given the Decision Notice and he is a director of Leeward Management Pty Ltd trading as Project BA, so his knowledge is the company’s knowledge even though they are separate legal entities.
  3. [45]
    Failing to serve Project BA in the circumstances is not a denial of natural justice. It is a procedural failure on the part of the Commission. However, given Mr Neller’s knowledge of the investigation and the Decision Notice, failure to serve Project BA  did not prevent it from applying for an internal review of the decision. Section 86A(1) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) provides that:

A person who is given or entitled to be given notice of a reviewable decision may apply to the internal review to have the decision reviewed.

  1. [46]
    Clearly Project BA should have been given notice of the decision, whether it was formally served with it or not, and by virtue of s 86A was entitled to apply for an internal review. It does not submit anywhere that it was not aware of the proposed disciplinary action to be taken against Mr Neller, nor could it have by reason of the  relationship. As I said Mr Neller’s knowledge is the company’s knowledge.
  2. [47]
    Similarly, for the same reasons, Project BA could have joined in with Mr Neller in applying to the Tribunal for a review of the Commission’s decision under s 87 of the QBCC Act. At all relevant times during this process, Project BA had the benefit of the legal advice provided by its in-house legal officer Ms Timmins, an employee of Leeward, under the control of Mr Neller as director. Therefore, it was aware of its rights both under ss 86A and 87 of the QBCC Act.
  3. [48]
    Because it failed to join in with Mr Neller when the application was filed, for it to later become a party to the proceeding, it was necessary to apply to be joined as an applicant to the proceeding. An application for joinder was filed on 24 February 2022. By this time the direction had been made about the determination of the preliminary point, and a decision made about that on 1 December 2021.
  4. [49]
    Mr Neller filed an application for leave to appeal or appeal on 6 January 2022. As a result of the appeal, the primary proceeding was effectively stayed until there was a final determination of the appeal. Obviously if the appeal was successful there would be little utility in continuing the review proceeding. As this turned out the be the case, it was ultimately resolved by the parties.
  5. [50]
    Against this background BA Projects pressed on with the application for joinder and an order was made joining it on 20 September 2022. The Tribunal ultimately found that it had an interest in the proceeding and made the order joining BA Projects as an applicant. Therefore, its only involvement in the proceeding thereafter was in relation to the appeal, and the ultimate agreed disposal of the review application.
  6. [51]
    The point here is that despite its entitlement to be a party to the review application it is difficult to see the utility of it wanting to be joined when: firstly, it failed to exercise those rights when the Decision was initially made; secondly, and thirdly, no order could be made in favour of Project BA.[34] When it did ultimately seek to be joined the only live issue for determination before the Tribunal was the appeal. Project BA had all of the resources, it seems in-house, to support its employee/director in the appeal, which it in fact did purportedly acting under his power of attorney, although I don’t see the relevance of the power of attorney in the circumstances. This was all of its own making.
  7. [52]
    Even though the application for joinder was contested, it was not because of any failure to afford Project BA natural justice as contended for. Further, any application for costs of the joinder should have been made before the Tribunal member who decided the application and was in a far better position to make that decision rather than the Appeal Tribunal after the event.
  8. [53]
    Having regard to the history of the proceeding, particularly involving Project BA, I am not satisfied that any denial of procedural fairness, if established, so prejudiced the applicants that the interests of justice warrant the making of a costs order against the Commission.

Strengths of the applicant’s claim.

  1. [54]
    In considering this ground having regard to the interests of justice, the history of the complaint against Mr Neller to the Commission is relevant. Exhibited to Ms Timmins’ affidavit is the letter of complaint from the Sunshine Regional Council. It is specific in its terms and caused the Commission to investigate. Mr Neller was fully aware of the background which required him to issue a development approval so that the proposed rooftop would transition back to a lawful state.
  2. [55]
    The issue for determination in the initial hearing and the appeal was whether the flat rooftop area, as drawn in the development approval was, or could potentially be, used as a recreational area. Although the Appeal Tribunal came to a different conclusion about that issue it could not be said, in my view, that it was blindingly obvious to the internal reviewer Mr Blackman that he should have come to that same conclusion. Clearly the rooftop had had been designed to be used as a tennis court with the shade hoods used as the tennis court fence. The other important feature is that even on the development approval the hoods could still be raised using the hydraulic rams.
  3. [56]
    I do not accept the submission, based on the terms of the complaint, that the content of the Information Notice, nor the Decision Notice was fundamentally flawed.[35] The Commission has an obligation/duty to investigate complaints about the professional conduct of certifiers and come to a decision. That decision can then be reviewed in the Tribunal. The very purpose of the review jurisdiction is to act as a safety net by producing the correct and preferable decision.
  4. [57]
    Here, save for a finding as to the purpose of the development permit to transition the rooftop from a deck to a roof, there were no substantive findings about the conduct of Mr Neller. I should also point out that the fact that Ms Timmins had to direct the Commission to s 190(2A) of the Building Act 1975 (Qld) does not advance the applicants’ case.
  5. [58]
    Once the review application was filed, the Commission, as it is required to do, took an even-handed approach to the application and complied with its obligations to prove a statement of reasons and assisted the Tribunal. There was no substantive decision about Mr Neller’s conduct, only whether the requirements of s 190(2A) were met.
  6. [59]
    I do not accept that the strength of the applicants’ case was so strong as to warrant a costs order in the interests of justice.

Nature and complexity of the dispute.

  1. [60]
    I accept that the this was a case where legal representation was appropriate on both sides. That of itself does not justify a costs order unless it is in the interest of justice to do so.
  2. [61]
    The complexity related to the factual background of the case and the various interventions of the Sunshine Regional Council, the court proceedings and infringement notices. This factual background then informed the Appeal Tribunal as to the purpose of the development approval. Ultimately, the conclusion reached was one of fact having regard to that information. In terms of the application of s 190(2A) there was little complexity in applying the section once the facts were established.
  3. [62]
    The questions of serious harm took on little significance once it was determined that the rooftop was not a deck and would not be used as a recreational area. There was no opportunity for serious harm to occur. Similar considerations apply to the question of causation which was argued before in the Tribunal below.
  4. [63]
    Complexity of itself does not necessarily warrant a departure from the general position in s 100 of the QCAT Act.

Financial Position of the parties.

  1. [64]
    It is accepted by the Commission that this is a relevant factor, but simply because it is a government instrumentality does not mean it has unlimited resources. Its role under the QBCC Act is to ensure there are proper standards in the building industry in Queensland and there is a reasonable balance between the interests of building contractors and consumers.
  2. [65]
    Importantly in review applications, it does not undertake a prosecutorial role, but as a model litigant must ensure all relevant evidence and material is put before the Tribunal. As has been acknowledged above it should not be reticent in taking action for fear of an adverse costs outcome.
  3. [66]
    Apart from incurring the costs for the work done by Hyland Law, no other costs have been outlayed by the applicants. The costs of Project BA were internal costs for work done by its in-house legal officer.
  4. [67]
    I do not see that there is anything out of the ordinary which enlivens the interests of justice when considering this submission.

Other relevant matters

  1. [68]
    The applicants place some significant emphasis that the decision maker at the Commission, Mr Stuart, failed to have regard to s 190(2A) of the Building Act 1975 (Qld) when making his initial decision. This was an obvious mistake on his part and the applicants rightly point out that one could reasonably expect the Commission’s officers to be aware of this important limitation in the section when considering the bringing of disciplinary proceedings.
  2. [69]
    The complaint was clearly out of time, unless of course the requirements of s 190(2A) were met, that is the conduct “ha[d] or may have caused serious financial loss or other harm”. That was one of the key issues for determination in the internal review. Whether that would have caused Mr Stuart to come to a different decision is not known; however, the argument was put in the internal review and considered by Mr Blackman.
  3. [70]
    There is no doubt the point should have been considered by Mr Stuart, as the Commission acknowledges. However, the Decision Notice did fairly raise the issue of the roof/deck being used for recreational purposes. Therefore, without appropriate balustrades around it, which could not be installed if it were used as a tennis court with the hoods in a vertical position, there was a potential issue of serious harm to persons using the roof. Reading the content of the Decision Notice it is unlikely a different decision would have been made with the knowledge of s 190(2A).

Discussion

  1. [71]
    Project BA has sought to recover the amount of costs that might be paid to lawyer, on a time cost basis, in private practice. The Bill of Costs is in the format of that which might be issued by a legal firm. I have no difficulty with the particulars of the work done but the rate charged is a commercial rate for external lawyers charged out at a rate under the District Court scale of costs. Furthermore, it seems to be based on an indemnity costs basis and not standard costs.
  2. [72]
    There is no information about what the legal work actually cost Project BA in utilising the time of Ms Timmins in undertaking the work. Even if an order was made that the costs be assessed, bearing in mind what was said in Environmental Protection Authority v Taylor Woodrow (Aust) Pty Ltd (1997) 97 LGERA 368 referred to above, how would a costs assessor assess costs for in-house legal services? It would seem to me that Project BA would profit significantly if the costs as claimed were awarded.
  3. [73]
    Another factor is that in these circumstances, an opposing party would have no idea what the costs exposure might be if costs were going to be an issue in a proceeding. At least when using external lawyers, they have obligations to provide costs disclosures to clients. That means that an opposing lawyer has a fair idea about what the costs might be for conducting a proceeding and can provide some reasonable estimate to his/her client. Where in-house lawyers are used, there is no way an estimate can be ascertained simply because the rules about costs in the Legal Professional Act 2007 Part 3, Division 3 do not apply to in-house lawyers.
  4. [74]
    Also, even though a decision was made by the Tribunal to join Project BA on their application, I fail to see the utility of such a course when Mr Neller is an employee and director of Leeward Management Pty Ltd as trustee. He is in fact the mind, as it were, of the company, and could have presented the same case with the assistance of Ms Timmins. Project BA added very little to the determination about whether Mr Neller engaged in potentially unsatisfactory conduct, or indeed on the determination of the preliminary point. It was his conduct that was in question, not Project BA’s, although I can see the adverse consequences to the business if there was a finding of unsatisfactory conduct against Mr Neller.
  5. [75]
    What effectively happened here, as I see it, is that Mr Neller could not recover the costs of his own time and effort in conducting the appeal[36] but by substituting Project BA as a party and utilising the services of the in-house lawyer, those legal costs would, potentially, be recoverable.
  6. [76]
    Finally, I do not accept there has been a denial of procedural fairness to Project BA. Nor do I accept that the factual complexity of the history of the Dwyer project was such that costs should follow. I cannot see any basis upon which it is in the interests of justice for Project BA to get its costs, even if a reasonable amount was sought to compensate it for the use of Ms Timmins’ time at an hourly rate commensurate with her salary. Once again there is no evidence which would allow me to fix an amount, if inclined to do so.
  7. [77]
    Mr Neller is in a somewhat different category because it seems he personally incurred some legal costs as an outlay. The evidence he put forward at the initial hearing was the same evidence upon which the Appeal Tribunal concluded that the requirements of s 190(2A) were not met.
  8. [78]
    The submission put, in short, is that the Commission should have conceded after the primary position and before the appeal that the requirements of s 190(2A) were not met. The Commission was in the difficult position that it had a decision from the Tribunal on the preliminary point which essentially gave a green light to continuation of the review application. When the appeal was filed it had to weigh up its responsibility to both the building industry and consumers under the QBCC Act. In view of the reasoning in the decision below in its favour, in my view, it acted reasonably in leaving it to the Appeal Tribunal to make a final decision about the application of s 190(2A). In other words, as the appeal turned on the findings of fact, it was open for the Commission to rely on the facts as found by the Tribunal below. The position taken by the Commission, or its decision based on the material relied upon, could not be said to be fundamentally flawed.
  9. [79]
    Even though it was reasonable for Mr Neller to seek external legal advice and have lawyers prepare documents for filing in the Tribunal in the appeal, this of itself does not justify an order for costs. The work done by Hyland Law between 14 December 2021, after the decision and up to April 2022 was done in conjunction with Ms Timmins, charged to Mr Neller, probably because Project BA was not yet a party to the proceeding.
  10. [80]
    There appears to be conflicting authority about whether legal costs are a recoverable outlay for a self-represented party,[37] the cases against it emanate from the application of either Rules of Court or the Uniform Civil Procedure Rules. They do not apply in QCAT, the effect of which is that there is a broader discretion about awarding costs and outlays. The exercise of discretion must necessarily have regard to those matters in s 102(3) of the QCAT Act but they are not exhaustive. Here I have particular regard to what was said in Fuge, Pound and NDZ about imposing fetters on administrative bodies tasked with regulating a vocational body, here the building industry.
  11. [81]
    Having regard to the discretionary factors and generally as discussed above, it is not in the interest of justice to make a costs order in favour of the applicants in this case.
  12. [82]
    The application for costs by the applicants is dismissed.

ADDENDUM

  1. [83]
    On 15 September 2023 an application was filed in both OCR207-21 (“the review application) and APL009-22 (“the appeal”) in which orders were sought that the Queensland Building and Construction Commission pay the applicants costs in both the review application and the appeal. On 21 March 2024 I published reasons dismissing both applicants application for costs against the Commission.
  1. [84]
    The orders made did not specifically differentiate between the review application and the appeal. Because there is no reference to the review application, Mr Neller has queried[38] if the Appeal Tribunal did make a determination about the costs of the review application. I have been asked to consider his query.
  1. [85]
    Clearly, the reasons demonstrate that the issue under consideration was both the review application and the appeal. At [5] the reasons record that:
  1. Both Mr Neller and Project BA have now applied for the costs of the primary proceeding and the appeal. Costs do not follow the event and therefore the applicants must satisfy me that it is in the interests of justice that they have the benefit of a costs order
  1. [86]
    The reasons go onto consider Mr Neller’s application for costs as a self-represented party at [18] of the Reasons, and subsequent paragraphs. The conclusion as to Mr Neller’s costs is discussed at [80].
  1. [87]
    The conclusion reached is that in respect of both the review application and the appeal the application for costs was dismissed. To remove any doubt, I have amended the orders in this decision to properly reflect the issues under consideration in these reasons, which includes the review application.

Footnotes

[1]  As both entities have a common interest in this application for costs, I will refer to them as the applicants.

[2]Neller v Queensland Building and Construction Commission [2021] QCAT 426.

[3]  QCAT Act, s 24.

[4]  [2020] QCAT 365 (‘Marzini’).

[5]  [2010] QCAT 412 (‘Ralacom’).

[6]  [2021] QCATA 103.

[7]  [2021] QCATA 137.

[8]  [2023] QCATA 107.

[9]  And under the various Court Rules that preceded the UCPR.

[10]Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors [2022] QCAT 225; discussed in Queensland Building and Construction Commission v B & L Constructions (No 2) [2023] 107.

[11]Dansur Pty Ltd v Body Corporate for Cairns Aquarius & Anor [2023] QCATA 14.

[12]  Dansur v Body Corporate for Cairns Acquarius & Anor supra

[13]Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 109(1) (‘VCAT Act’); and State Administrative Tribunal Act 2004 (WA), s 87(1) (‘WA Act’); and South Australian Civil and Administrative Tribunal Act 2013 (SA), s 57(1) (‘SA Act’).

[14]Pound, [21]-[32].

[15]  [2022] WASCA 52, in NDZ, [12].

[16]  [2014] QCAT 383 at [28] (‘Fuge’).

[17]  And the many cases referred to in footnote 13 on page 6.

[18]  [2020] QCAT 327 at [7].

[19]Scott v Stewart [2023] QCATA 130 (‘Scott v Stewart’), adopting what was said by JM McGill in Drane v Taylor (No 2). [2022] QCATA 157.

[20]  (1994) 179 CLR 403 (‘Cachia’).

[21]  [2012] QCA 181.

[22]Chiropractic Board of Australia v Jamieson [2013] QSC 77; see also Brading v Suskova [2017] QCAT 373.

[23]  [2021] QDC 236.

[24]  Ibid at [4]-[6].

[25]  Gino Dal Pont, Law of Costs (LexisNexis, 5th ed, 2021) at 7.24-7.34.

[26]  As will become apparent below, the point is academic but requires further consideration.

[27]  Company search attached to the Commissions submission on joinder filed 14 April 2022.

[28]  Project BA’s submission on joinder filed 28 April 2022.

[29]  [2017] QCAT 151.

[30]  (1997) 97 LGERA 368 at 388.

[31]  Applicant submissions.

[32]  Mr Neller was a party to this litigation.

[33]  Summarised from the applicants’ submission at [31].

[34]  Although it would vicariously get the benefit of any order made in favour of Mr Neller.

[35]Whalley v Queensland Building and Construction Commission (No 2) [2017] QCAT 188.

[36]Aussie Invest Corporation Pty Ltd v Hobsons Bay City Council (2004) VCAT 2188.

[37]   Ibid, [20]-[21];

[38]Correspondence with the Registry, which I have not seen.

Close

Editorial Notes

  • Published Case Name:

    Neller & Anor v Queensland Building and Construction Commission [No 2]

  • Shortened Case Name:

    Neller & Anor v Queensland Building and Construction Commission [No 2]

  • MNC:

    [2024] QCATA 46

  • Court:

    QCATA

  • Judge(s):

    Member Richard Oliver

  • Date:

    21 Mar 2024

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
Baker v Dubickas (No. 2) [2021] QDC 236
2 citations
Jump To
Cite 1 - [2021] QDC 236
Cite 2 - [2021] QDC 236
Brading v Suskova [2017] QCAT 373
2 citations
Jump To
Cite 1 - [2017] QCAT 373
Cite 2 - [2017] QCAT 373
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
2 citations
Jump To
Cite 1 - [2022] QCAT 225
Cite 2 - [2022] QCAT 225
Cachia v Hanes (1994) 179 CLR 403
2 citations
Jump To
Cite 1 - (1994) 179 CLR 403
Cite 2 - (1994) 179 CLR 403
CH v Queensland Police Service [2021] QCATA 137
2 citations
Jump To
Cite 1 - [2021] QCATA 137
Cite 2 - [2021] QCATA 137
Chiropractic Board of Australia v Jamieson [2013] QSC 77
2 citations
Jump To
Cite 1 - [2013] QSC 77
Cite 2 - [2013] QSC 77
Cowen v Queensland Building and Construction Commission [2021] QCATA 103
2 citations
Jump To
Cite 1 - [2021] QCATA 103
Cite 2 - [2021] QCATA 103
Crime and Corruption Commission v NDZ [2024] QCAT 21
2 citations
Jump To
Cite 1 - [2024] QCAT 21
Cite 2 - [2024] QCAT 21
Dansur v Body Corporate for Cairns Aquarius CTS 1439 [2023] QCATA 14
2 citations
Jump To
Cite 1 - [2023] QCATA 14
Cite 2 - [2023] QCATA 14
Drane v Taylor (No 2) [2022] QCATA 157
2 citations
Jump To
Cite 1 - [2022] QCATA 157
Cite 2 - [2022] QCATA 157
Dwyer v Sunshine Coast Regional Council [2020] QPEC 45
1 citation
Jump To
Cite 1 - [2020] QPEC 45
Environmental Protection Authority v Taylor Woodrow (Aust) Pty Ltd (1997) 97 LGERA 368
3 citations
Jump To
Cite 1 - (1997) 97 LGERA 368
Cite 2 - (1997) 97 LGERA 368
Cite 3 - (1997) 97 LGERA 368
Fuge v Queensland Building and Construction Commission [2014] QCAT 383
2 citations
Jump To
Cite 1 - [2014] QCAT 383
Cite 2 - [2014] QCAT 383
Hinterland Express Pty Ltd v Inchcape European Automotive Pty Ltd [2023] QCATA 130
1 citation
Jump To
Cite 1 - [2023] QCATA 130
Legal Services Commissioner v Cooper [2017] QCAT 151
2 citations
Jump To
Cite 1 - [2017] QCAT 151
Cite 2 - [2017] QCAT 151
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
2 citations
Jump To
Cite 1 - [2020] QCAT 365
Cite 2 - [2020] QCAT 365
Merrin v Commissioner of Police [2012] QCA 181
2 citations
Jump To
Cite 1 - [2012] QCA 181
Cite 2 - [2012] QCA 181
Neller v Queensland Building and Construction Commission [2021] QCAT 426
2 citations
Jump To
Cite 1 - [2021] QCAT 426
Cite 2 - [2021] QCAT 426
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 Building and Construction Commission v B&L Constructions Qld Pty Ltd (No 2) [2023] QCATA 107
2 citations
Jump To
Cite 1 - [2023] QCATA 107
Cite 2 - [2023] QCATA 107
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
Whalley v Queensland Building and Construction Commission (No 2) [2017] QCAT 188
2 citations
Jump To
Cite 1 - [2017] QCAT 188
Cite 2 - [2017] QCAT 188
Young v Legal Profession Complaints Committee [2022] WASCA 52
1 citation
Jump To
Cite 1 - [2022] WASCA 52

Cases Citing

Case NameFull CitationFrequency
Croft v Queensland Building and Construction Commission [2025] QCAT 3291 citation
Queensland College of Teachers v Duffin [2024] QCAT 2982 citations
1

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