Seirlis v Queensland Building Services Authority (No. 2)
[2011] QDC 134
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Seirlis v Queensland Building Services Authority (No. 2)[2011] QDC 134
- Add to List
Seirlis v Queensland Building Services Authority (No. 2)[2011] QDC 134
Seirlis v Queensland Building Services Authority (No. 2)[2011] QDC 134
DISTRICT COURT OF QUEENSLAND
CITATION: | Seirlis v Queensland Building Services Authority (No. 2) [2011] QDC 134 |
PARTIES: | TERRY SEIRLIS (Appellant) AND QUEENSLAND BUILDING SERVICES AUTHORITY (Respondent) |
FILE NO/S: | BD2756/08 |
PROCEEDING: | Application for costs |
ORIGINATING COURT: | Queensland Commercial and Consumer Tribunal, Brisbane |
DELIVERED ON: | 22 July 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers, submissions closing 28 June 2011 |
JUDGE: | Jones DCJ |
ORDER: | 1. That the appellant pay the costs of and incidental to the filing of the notice of appeal and any transcript in connection with the hearing of the appeal to the District Court. 2. That the respondent otherwise pay the appellant’s costs of and incidental to the application for leave to appeal and the appeal to be assessed on the standard basis. 3. That the respondent be granted an indemnity certificate pursuant to s 15(2) of the Appeal Costs Fund Act 1973 in respect of the cost orders made against it. |
CATCHWORDS: | APPEAL FROM COMMERCIAL AND CONSUMER TRIBUNAL – COSTS – appropriate cost orders in circumstances where neither of the parties was responsible for the appeal – whether respondent entitled to be indemnified with respect to costs under the Appeal Costs Fund Act 1973 Seirlis v Queensland Building Services Authority 2011 QDC 107 Appeals Costs Fund Act 1973 Queensland Building Services Authority Act 1991 |
COUNSEL: | Mr D.J. Ryan for the appellant Mr G. Thomson for the respondent |
SOLICITORS: | Shan Taylor Lawyers for the appellant Queensland Building Services Authority, Legal Division for the respondent |
- [1]This decision is concerned with the costs of and incidental to an appeal to this court from a decision of the tribunal member below. For the following reasons the orders of the court are:
- That the appellant pay the costs of and incidental to the filing of the notice of appeal and any transcript in connection with the hearing of the appeal to the District Court.
- That the respondent otherwise pay the appellant’s costs of and incidental to the application for leave to appeal and the appeal to be assessed on the standard basis.
- That the respondent be granted an indemnity certificate pursuant to s 15(2) of the Appeal Costs Fund Act 1973 in respect of the cost orders made against it.
Background
- [2]The substantive proceedings involved an appeal from a decision of a member of the Commercial and Consumer Tribunal concerning a complaint made by the appellant in respect of defective construction works and a claim made by him under a certificate of insurance issued by the respondent pursuant to the Queensland Building Services Authority Act 1991.
- [3]On 15 June 2011 I delivered judgment in respect of the substantive proceedings and ordered that:
- Leave to appeal is granted.
- The appeal is allowed.
- I will hear from the parties in respect of further orders including those addressing remittal of the proceedings to the Commercial and Consumer Tribunal and costs.[1]
- [4]In essence the appeal was allowed on the basis that in the proceedings below the appellant was denied natural justice.[2] The denial of natural justice occurred because the member below, on an application concerned with a preliminary issue, went on to determine the merits of the appellant’s complaint to the tribunal. This was done in circumstances where neither of the parties’ representatives urged that course of action and where the member did not give any (or any sufficient) warning of what he intended to do. In paragraph 27 of the substantive decision I concluded:
“On balance, I have reached the conclusion that there probably has been a denial of natural justice in this case. The appellant was not afforded sufficient clear notice or warning of what the member was intending to do and, accordingly, was not given sufficient opportunity to be heard or otherwise present his case in an appropriate way.”
- [5]It is also of relevance that in the proceedings below neither of the parties urged the member to proceed in the way that he did. In fact, on a number of occasions the representatives of both the appellant and the respondent pointed out that the real purpose of the hearing was to determine whether the appellant was an affected party under the relevant legislative scheme and not to determine the merits of his complaint.[3] That is, neither the appellant nor the respondent were directly responsible for the matter having to come before this court by way of an appeal. That said, the respondent appeared and argued that the appeal should have been dismissed.
The positions of the parties
- [6]The appellant seeks his costs essentially on the basis that, subject to statutory limitations, costs should follow the event. The orders contended for by the appellant are materially the same as the orders I have made.
- [7]The respondent’s primary position was that there should be no orders as to costs. In this context it is pointed out that no blame for the appeal could be laid at its feet. In the written submissions of Mr Thomson, counsel for the respondent, it is asserted that:
“7. However, and importantly for the present costs argument, the approach taken by the Member at first instance was not urged upon the member by either party. …
- In other words, to the extent that the Member misdirected himself, this was not something urged upon him by the Respondent.
- Faced with this situation, the Respondent nonetheless in this court attempted to defend the result at first instance on certain alternative grounds. Such grounds have variously been described in the judgment in this court as follows… (having force if not being compelling).
- In short, the fundamental error in respect of which the Appellant succeeded did not arise from an approach urged on the Member by the Respondent, and the arguments then relied upon by the Respondent in this court to support the decision at first instance on other grounds were fairly made and not without some cogency and strength.
- These considerations in themselves would lead to the conclusion that an appropriate order in this court … would be no order as to costs”.”
Other arguments were advanced in support of an order in those terms.[4]
- [8]Alternate submissions were made on behalf of the respondent:[5]
“If on the other hand costs orders are to be made in the proceedings, then:
- (a)Any cost order in favour of the Appellant should be strictly limited to the costs of and incidental to the day of the appeal; and
- (b)There should be separate costs orders in favour of the respondent in respect of the appearances on 17 February 2009, 10 March 2009 and 16 November 2009. These appearances in effect form part of the Appellant’s vacillation over who should be prosecuting the appeal, leading ultimately to the abandonment of the joinder application which had its first return date before Judge Botting.”
- [9]In the event that any costs orders were to be made against the respondent, it was contended that it should be indemnified in respect of those costs pursuant to s 15(2) of the Appeal Costs Fund Act 1973.
Conclusions
- [10]Generally speaking, subject to there being any statutory limitations, costs should follow the event. On the other hand, the argument advanced by the respondent that neither party should be required to bear the costs of the appeal has some merit in circumstances where neither party was responsible for the appeal. However, to adopt that course would be to require the appellant to bear his costs in circumstances where he was not responsible for the appeal and was successful despite the appeal being opposed. It needs to be borne in mind in this regard that costs orders are, again speaking generally, not to punish the unsuccessful litigant but to compensate the successful litigant for the costs he incurred in having to prosecute his case. It is also relevant that the legislature has seen fit to introduce remedial legislation such as the Appeal Costs Fund Act 1973. I should also note that in my view there is no conduct on the part of the appellant (quite apart from not being responsible for the appeal in the first place) which would deny him, as a successful litigant, an appropriate order as to costs.
- [11]As to the “separate costs orders” sought by the respondent in respect of appearances on 17 February, 10 March and 16 November 2009, I do not consider that I have sufficient material before me to allow me to determine those matters in favour of the respondent.
- [12]For the reasons given the orders of the court are:
- That the appellant pay the costs of and incidental to the filing of the notice of appeal and any transcript in connection with the hearing of the appeal to the District Court.
- That the respondent otherwise pay the appellant’s costs of and incidental to the application for leave to appeal and the appeal to be assessed on the standard basis.
- That the respondent be granted an indemnity certificate pursuant to s 2(15) of the Appeal Costs Fund Act 1973 in respect of the cost orders made against it.