CITATION:	Whalley v Queensland Building and Construction Commission (No 2) [2017] QCAT 188	
PARTIES:	Peter Whalley
(Applicant)	
	v	
	Queensland Building and Construction Commission
(Respondent)	
APPLICATION NUMBER:	GAR112-16	
MATTER TYPE:	General administrative review matters
	
HEARING DATE:	On the papers
	
HEARD AT:	Brisbane	
DECISION OF:	Member Paratz	
DELIVERED ON:	2 June 2017	
DELIVERED AT:	Brisbane	
ORDERS MADE:	The Queensland Building and Construction Commission is to pay to Peter Whalley the amount of $3,622.70 for costs.
	
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL - COSTS – Where a decision was set aside – Where it was found that the decision-maker did not afford natural justice – Where the internal review decision-making process was flawed – Whether the applicant was entitled to recover costs – Where it was held in the interest of justice that the applicant should recover costs – Where the difference between solicitor and own client costs, and party and party costs was considered – Where costs were reduced for possible double-charging for perusal where two firms of solicitors were engaged

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, 102	
		
APPEARANCES 		
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
[1]	This is a decision as to costs.
[2]	I gave a decision, and made Orders, in this matter on 20 January 2017 as follows:
1)	The decision of the Queensland Building and Construction Commission made on 5 April 2016, that work under Direction to Rectify and/or Complete No 40913 had not been satisfactorily rectified, is set aside.
2)	The Direction to Rectify and/or Complete No 42267 issued by the Queensland Building and Construction Commission on 5 April 2016 is set aside.
3)	Peter Whalley, or the Queensland Building and Construction Commission, may make an application for costs consequent upon this decision, by the filing of a Miscellaneous Application together with supporting submissions, if desired.
[3]	Peter Whalley filed an Application in the Tribunal on 2 February 2017, seeking Orders as follows:
Cost in the sum of $5,750.32 from QBCC under Section 102 of the QCAT Act. Invoices attached.
[4]	I gave Directions on 21 February 2017 for the filing of a response to the application by the Queensland Building and Construction Commission (QBCC) by 16 March 2017, and for the application to be heard on the papers.
[5]	The QBCC filed an Application on 15 March 2017 seeking orders as follows:
1)	That the Applicant be directed to provide to the respondent full details and documentation in relation to the costs claimed in the Applicant’s Miscellaneous Application dated 1 February 2017.
2)	That the date for compliance by the Respondent with item 2 of the Tribunal’s Directions dated 21 February 2017 be extended to a date which is 14 days from the date of receipt by the Respondent of the details and documentation referred to in numbered paragraph 1 above.

[6]	I gave directions on 22 March 2017 for the filing by Peter Whalley of full details and documentation in relation to the costs claimed in his application; for the QBCC to file its response to the application, and for the application to be heard on the papers. 
[7]	Peter Whalley filed submissions on 4 April 2017 comprising:
1)	A Tax Invoice No B43915 from Wilson/Ryan/Grose dated 24 October 2016, headed ‘QCAT External review of QBCC Decision’ for $1,650.00, and detailed as:
T/O to Peter Whalley to discuss QCAT submissions and issue of misleading statements
Review of client supplied documents
Review of client supplied documents
Preparing submissions for QCAT hearing on the papers
Preparing submissions for QCAT hearing on the papers
Settling submissions to QCAT
Email to Peter Whalley with final QCAT submissions
2)	A Tax Invoice No 50541 dated 2 June 2016 from The Brad Robins Legal Centre for the amount of $4,500.32 in relation to QCAT Case Number GAR112-16 (but which had a hand written notation that $4,100.32 would be accepted as full payment by 24 June 2016)
[8]	The QBCC filed submissions on 27 April 2017 which were prepared by Gadens Lawyers.
[9]	The QBCC discussed a claim for costs by a self-represented litigant and noted that:
8. The leading decision on the entitlement of self-represented parties to claim for costs incurred in legal proceedings is the High Court decision of Cachia v Hanes [1994] HCA 14. However, that case was concerned with whether a litigant in person can recover compensation for time spent in preparing their own case. The High Court did indicate that the ‘costs’ (at least provided for in the applicable rules of court) were confined to ‘money paid or liabilities incurred for professional legal servcies’. On that basis it appears at least open for Mr Whalley to argue that even though he did not seek or obtain an order for legal representation, and the solicitors he engaged did not appear for him at the review proceedings, the costs he incurred did relate to the provision of professional legal services.
[10]	The power of the Tribunal to order costs is contained in Division 6 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act). The basic provision is Section 100 which provides that each party usually bears their own costs as follows:
100 Each party usually bears own costs
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.
[11]	The basic provision is subject to Section 102 which provides that a costs order may be made in the interests of justice as follows;
102. Costs against party in interests of justice
(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.
And
(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following –
(a) 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);
(b) the nature and complexity of the dispute the subject of the proceeding;
(c) the relative strengths of the claims made by each of the parties to the proceeding;
(d) for a proceeding for the review of a reviewable decision –
(i) whether the applicant was afforded natural justice by the decision-maker for the decision; and 
(ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
(e) the financial circumstances of the parties to the proceeding;
(f) anything else the tribunal considers relevant
[12]	The QBCC addressed the factors as to the making of a costs order ‘in the interests of justice’.
[13]	As to whether a party acts in a way that unnecessarily disadvantages another party, the QBCC submits that it endeavoured to facilitate the determination by the Tribunal by assisting the Tribunal in the preparation of the list of issues and agreements.
[14]	As to the nature and complexity of the dispute, the QBCC submitted that there was a degree of factual and legal complexity to the Review Application - but that this arose because of the manner in which Mr Whalley sought to challenge the validity of the decisions and actions of the Commission in coming to its decision concerning the issuing of the directions to rectify, instead of seeking a review by way of a full hearing on the merits.
[15]	As to the relative strength of the claims, the QBCC submits that whilst Mr Whalley was successful in having the Commission’s decision set aside, he was unsuccessful in obtaining determinations against the Commission in relation to issues 1, 3 and 6.
[16]	As to whether Mr Whalley was afforded natural justice, the QBCC submits that the findings by the Tribunal that Mr Whalley was denied natural justice can only be relevant if the Tribunal is able to conclude that had Mr Whalley been afforded natural justice in these matters, the Commission would not have proceeded to issue the Directions to Rectify and therefore Mr Whalley would not have incurred the costs that he had in relation to the proceedings. It submits that it was not open to the tribunal to draw such a conclusion. 
It further submits that there was no suggestion that the decisions that the commission’s officers made were made otherwise than in good faith.
[17]	As to whether Mr Whalley genuinely attempted to enable and help the decision-maker to make the decision on the merits, the Commission submits that it accepts that Mr Whalley did genuinely attempt to enable and help the commission to make its decision on the merits by, for example, obtaining advices from an engineer - but that this is not a significant factor in favour of the interests of justice requiring that a costs order be made against the Commission.
[18]	As to other relevant matters, the QBCC submitted that had a fresh hearing on the merits occurred, that the Tribunal may have considered it appropriate for Mr Whalley to be directed to rectify, and that this is a factor against making a costs order against the Commission.
Should costs be awarded?
[19]	This matter involved complex questions of fact and law, as conceded by the QBCC. There were significant technical issues as to sound building practice, and as to the meaning and application of sections of the Building Code of Australia in dispute, with differing expert opinion. The matter itself had been through multiple decision making and review processes in the Commission.
[20]	I have found that the review process under consideration was not properly initiated, should not have been conducted by Mr Ferguson, was not fairly conducted, and failed to consider the issue of whether it was fair to issue a Direction to Rectify in the circumstances.
[21]	Mr Whalley has been put to considerable effort and expense in dealing with the matter, and I have found that the Direction to Rectify should not have been issued. He therefore must be seen to have substantially, if not wholly, succeeded in his Review Application.
[22]	The basic principle in the Act that each party bears their own costs is applicable where matters are uncertain and require consideration and decision, and where there are valid arguments and evidence being proposed by each party.
[23]	However, where a matter is fundamentally flawed, and a party is put to the expenditure of time and expense to defend themselves against an unmeritorious or flawed decision, then issues as to justice arise. That is the situation in this matter.
[24]	I do not accept the submission of the QBCC that Mr Whalley had the option of a ‘hearing on the merits’ in these proceedings, or that the Tribunal could in some way have considered the merits, or should have conducted a fresh hearing on the merits in relation to the question as to whether Mr Whalley should have been directed to rectify. 
[25]	The Directions made by the Tribunal at the Compulsory Conference in this matter on 19 August 2016 provide that:
2. The issues which will be decided at the QCAT hearing of this application are as set out in the List of issues and Agreements attached. 
[26]	The Preamble to the ‘List of Issues and Agreements’ provides:
The only decision under review is that of 5 April 2016 and it is challenged solely on the grounds that in reaching that decision the QBCC failed to comply with the QBCC Act or follow its internal procedures.
In this application, the decision about unsatisfactory work as expressed in the decision of 5 April 2016 is not being challenged.
[27]	The List of Issues and Agreements is clear that only the compliance of the procedural steps of the decision of 5 April 2016 is to be considered and determined in this matter. The List of Issues and Agreements therefore precludes consideration of the decision ‘on the merits’, as submitted by the QBCC.
[28]	The technical questions as to proper building practice, and the proper application and interpretation of the Building Code of Australia were not otherwise before the Tribunal for consideration. Mr Whalley did seek orders dealing with those aspects, by seeking orders affirming the decision of Mr Bill Piper dated 21 April 2015, but I made no order to that effect, as the decision of Mr Piper had not been brought to the Tribunal to be reviewed. 
[29]	This is a matter in which it is appropriate to consider the interests of justice. Mr Whalley was not afforded natural justice by the decision-maker for the decision. He genuinely attempted to enable and help the decision-maker to make the decision on the merits. This was a complex matter. The processes of the decision-maker were significantly flawed, and Mr Whalley was substantially successful in his application.
[30]	In all the circumstances I am satisfied, having regard to the considerations provided for in Section 102(3) of the Act, that it is in the interests of justice, and appropriate, to order that Mr Whalley recover allowable costs.
What costs should be awarded?
[31]	Mr Whalley is seeking the costs of Solicitors who provided him advice in pursuing his Application, in the amount of $5,750.32.
[32]	The QBCC submits that the costs being sought by Mr Whalley are his costs on a solicitor and own client basis which, if awarded in full, would equate to an award of costs on a full indemnity basis. It submits that that it would not be appropriate for costs to be awarded on such a basis.
[33]	The QBCC submits that the Tribunal should fix the amount of costs, and submits that the following matters are relevant:
a)	As stated, the costs sought by Mr Whalley are on a solicitor and own client basis and it is appropriate to adjust these costs to reflect an amount that might be awarded on a party and party basis. As a rule of thumb, party and party costs can be between 50% - 70% of a solicitor and own client costs. It is submitted that a reduction of 35% to reflect the difference between party and party costs and the solicitor and own client costs that Mr Whalley is claiming would be appropriate.
b)	There also appears to be costs claimed by Mr Whalley that might otherwise be allowable on a party and party basis but should not be allowed because they were not costs that were necessary and properly incurred in the prosecution of the review proceeding. For example, there would be costs not claimable on a party and party basis as a result of Mr Whalley changing firms of solicitors and the new firm of solicitors ‘getting up to speed’ in relation to the dispute. In that regard the account from Wilson Ryan Grose (the second firm of solicitors) dated 24 October 2016 includes, at the bottom of the invoice, a brief description of attendances which includes twice reviewing client supplied documents.
c)	Mr Whalley has been requested to provide a copy of the two page assessment made by Queensland Independent Costing Services Pty Ltd as referred to in the invoice from the Brad Robins Legal Centre dated 2 June 2016 (see email attached), but as at the date of submissions has not provided same. In the absence of this information it is not possible to determine with any detail, exactly what the solicitors did and how much they charged for each attendance and how much depreciation has occurred in respect of the work carried out by the second firm of solicitors. However, the email to Mr Whalley of 2 June 2016 from the Brad Robins legal centre (which is attached as part of the invoice to Mr Whalley) refers to perusal of what appears to be a substantial number of documents. Duplication of such attendances by the second firm of solicitors would not, it is submitted, be allowed on a party and party basis.
It is submitted that it is appropriate, therefore, to reflect this aspect, to further reduce Mr Whalley’s cost claim by 25%.
Accordingly, taking into account the above, if the Tribunal is minded to award Mr Whalley costs, it is submitted the quantum should be in the order of $2,875.16.
[34]	I accept the point made by the QBCC as to whether costs should be awarded on a party and party basis. This matter may be coming close to a suitable matter for award of indemnity costs, having regard to the flawed decision-making process, but in the absence of a demonstrated element of lack of good faith, which is normally associated with an indemnity costs order, I will not order indemnity costs.
[35]	I accept that party and party costs are commonly accepted as being about 70% of solicitor and client costs, but do not accept without evidence that a higher discount should apply. I will therefore apply a discount of 30%.
[36]	The QBCC submit that a further discount of 25% should apply to take into account possible double charging. Mr Whalley has not provided clear analysis of the separate bills, or the costing prepared by Queensland Independent Costing Services. It is therefore difficult to determine if any double charging has occurred.
[37]	In the absence of an explanation as to why two sets of solicitors were engaged, with the attendant risk of double charging for perusal, I accept that costs should be awarded as if one set of solicitors were engaged throughout.
[38]	No basis is given by the QBCC as to why a ‘double-perusal’ discount of 25% should apply. That seems to encompass a high proportion of the work. In the absence of evidence, I am not satisfied that the perusal section of the accounts would exceed 10%, (which is a recognisable, but not disproportionate, discount) and will apply that discount. 
[39]	I therefore will allow Mr Whalley’s claim for costs in the amount of $3,622.70 calculated as follows:
Claim for costs 						$ 5,750.32
Less discount of 30% to party and party basis		$ 1,725.10
Subtotal							$ 4,025.22
Less discount of 10% for double-perusal			$     402.52
Total								$  3,622.70
[40]	I order that the QBCC pay to Mr Whalley the amount of $3,622.70 for costs.