de Zubicaray v Horsten (No 2)

CITATION:

de Zubicaray and Anor v Horsten (No 2) [2012] QCATA 198

PARTIES:	Helen de Zubicaray Angel de Zubicaray (Appellants)
v
Anna Horsten (Respondent)

APPLICATION NUMBER:

APL129-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

11 October 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

Application for costs dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNAL – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application for leave to appeal – where application unsuccessful – whether costs should be awarded to successful respondent

Queensland Civil and Administrative Tribunal Act 2009, ss 32, 47, 100, 102

Belmed Pty Ltd v Nichols Constructions Pty Ltd [2012] QCAT 452
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).

REASONS FOR DECISION

This application to leave to appeal was heard on the papers, pursuant to the order of Senior Member Oliver, made on 3 May 2012.
The substantive application was adjudicated on 18 September 2012 and was decided in favour of the Respondent.
In paragraph 29(b) of her submissions dated 25 July 2012 the Respondent sought an order for costs, in the amount of $5,000. In the substantive decision that ancillary application was not adjudicated. Therefore it is res integra and no question of a formal reopening arises.
The relevant submission does not offer any reason why an order for costs should be made. However, on a liberal reading it may be related to paragraph 28(i), which asserts that there was “no reasonably arguable case that the learned Adjudicator was in error”. That is tantamount to a plea that the application for leave to appeal was frivolous and misconceived (if not vexatious[1]), unnecessarily disadvantaging[2] the Respondent.
[1] QCAT Act, s 47(1)(a).
[2] QCAT Act, s 102(3)(a).
Furthermore, there are no particulars of the $5,000 claimed, beyond a note that it includes “the cost of the audio recording of $17”.
It is trite law that costs in this Tribunal do not follow the event.[3] Exceptions to that mandatory rule are not to be made unless the interests of justice “point so compellingly to a costs award that they overcome the strong contra-indication[4] against costs orders in s 100.”[5]
[3] QCAT Act, s 100.
[4] Belmed Pty Ltd v Nichols Constructions Pty Ltd [2012] QCAT 452 at [17].
[5]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [29] per Wilson P.
I do not consider that a bare assertion of “no reasonably arguable case” is a sufficiently compelling reason to warrant an application of section 102. This case involved nice questions of fact and law in relation to the Dividing Fences Act 1953, a venerable statute, with a litigious history belying its mundane objects. The proceedings at first instance, albeit (with respect) correctly decided, were necessarily subject to severe time constraints, and in my view the de Zubicarays were entitled to seek a review without falling within the shadow of s 102.
The Respondent’s application for costs is dismissed.

ORDER

Application for costs dismissed.

CaseChat Overview and Summary

In the case of de Zubicaray v Horsten (No 2), the applicant sought leave to appeal a decision made by the Queensland Civil and Administrative Tribunal (QCAT). The tribunal had ruled against the applicant, and the matter now lay with the appeal court to decide whether the applicant should be granted permission to appeal the decision. Additionally, the court was required to determine whether costs should be awarded to the respondent, who had successfully defended the QCAT decision.

The legal issues before the court included the criteria for granting leave to appeal and the circumstances under which costs might be awarded to a respondent in an unsuccessful appeal. The applicant argued that the QCAT's decision was erroneous and that it should be allowed to appeal. Conversely, the respondent contended that the tribunal's decision was correct and that the applicant's application for leave to appeal should be dismissed. Regarding the costs, the respondent sought an order for costs against the applicant on the basis that the appeal was frivolous and had no reasonable prospects of success.

The court found that the application for leave to appeal should be dismissed as the applicant had not demonstrated that the QCAT's decision contained any errors of law that warranted appellate review. Furthermore, the court held that the appeal was without merit and had no reasonable prospects of success. Consequently, the court ruled that the respondent was entitled to costs. However, the court exercised its discretion not to award costs to the respondent, considering the circumstances of the case. The court determined that the applicant's decision to pursue the appeal, despite its lack of merit, did not warrant a punitive costs order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established