Stuart v Queensland Building and Construction Commission

This case considers whether an order as to costs is a “final decision” for the purpose of an appeal from the QCAT Appeal Tribunal to the Court of Appeal under s 150 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act). The Court of Appeal, in the leading judgment delivered by Sofronoff P, held that the proper construction of the section required that the phrase “final decision” be limited to the final determination of the matters in issue. Therefore, it does not include an ancillary decision in the nature of a costs order, with the result that a costs order cannot be the subject of an appeal to the Court of Appeal under s 150 of the Act.

Sofronoff P, Morrison JA and Applegarth J

2 June 2017

The primary issue arising in this matter was whether an order as to costs is a “final decision” for the purpose of s 150 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act). [11]. That provision limits appeals from QCAT to the Court of Appeal to three matters: (a) decisions to refuse an application for leave to appeal to the appeal tribunal; (b) a cost-amount decision; (c) the final decision. The applicant, a builder, sought leave to appeal against a decision of the Appeal Tribunal of the QCAT dismissing an application for costs. [1].

In addressing whether the Appeal Tribunal’s decision dismissing the application for costs was a final decision for the purposes of s 150, the court observed that the term “the final decision” is defined in the Dictionary of the Act to mean the Tribunal’s decision that “finally decides the matters the subject of the proceeding”. In general terms that would not include an ancillary decision in the nature of a costs order. [12]. In the President’s view, that construction was reinforced by the way in which the term was also applied elsewhere in the Act. [13]. In particular, s 142 of the Act, which provides for the right of appeal from the QCAT to the Appeal Tribunal, differentiates between “(ii) a decision that is not the tribunal’s final decision in a proceeding; and (iii) a costs order”. [19].

The “not surprising” conclusion arrived at by the court was that an order of the Appeal Tribunal dismissing an application for costs is not a final decision that may be made the subject of an appeal under s 150 of the Act. In disposing of the matter the President acknowledged that it was a “hard case” which unfortunately had resulted in financial detriment to the successful applicant. [30].  In those circumstances, the court made no order as to the costs of the appeal.

A de Jersey