Solar Water Pumping v Cameron

[2014] QCATA 29

CITATION: Solar Water Pumping v Cameron [2014] QCATA 029

PARTIES:	Malcolm John Taylor t/as Solar Water Pumping (Appellant)
v
Gail Dorothy Cameron Albert Cameron (Respondents)

APPLICATION NUMBER: APL245-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Alexander Horneman-Wren SC, Deputy President

DELIVERED ON: 27 February 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal is granted.

2.    The order of the Tribunal of 15 May 2013 requiring Malcolm John Taylor to pay Gail Dorothy Cameron and Albert Cameron $15,200.00 is set aside.

3.    Malcolm John Taylor pay Gail Dorothy Cameron and Albert Cameron $13,775.00 within 14 days.

CATCHWORDS:

PROCEDURE – COSTS – APPEALS AS TO COSTS – MISTAKE OF LAW – the learned Magistrate awarded costs against the appellant for an expert witness – in a Minor Civil Dispute r 83 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) precludes costs being awarded beyond filing fees incurred by the applicant – whether the learned Magistrate mistakenly awarded expert witness costs against the respondent

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28, s 97(1), s 97(3), s 102(2)

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 83

Taylor t/as Solar Water Pumping v Cameron & Anor [2014] QCATA 010

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 (Qld).

REASONS FOR DECISION

1. On 23 January 2014, the QCAT Appeals Tribunal, constituted by me, published reasons in this appeal.[1]

   [1]Taylor t/as Solar Water Pumping v Cameron & Anor [2014] QCATA 010.

2. In those reasons I indicated that I would refuse leave to appeal on each of the grounds raised by Mr Taylor in his application.  I also indicated that, in so far as Mr Taylor also raised a denial of natural justice in his submissions as a further ground, the allegation was without merit.  It could not support a grant of leave to appeal.[2]

   [2]Ibid [19] – [20].

3. In those reasons the Tribunal did, however, raise a further issue.  That issue was whether the Tribunal Member who heard the original application exceeded his jurisdiction, or otherwise erred in law, in ordering Mr Taylor to pay the sum of $15,200.00 which included an amount of $1,425.00 in respect of expert witness expenses.  This issue had been identified by the Tribunal because it had been required to consider how the total amount of $15,200.00 ordered to be paid had been comprised.

4. The Tribunal had observed that the amounts of $675.00 paid for the expert’s report, and $750.00 for his attendance to give evidence, may not have been allowable under either s 97(3) of the Queensland and Civil Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) as an allowance to an expert witness (the relevant expert not having been required to attend under s 97(1)), or as costs pursuant to s 102(2) of the QCAT Act and r 83 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld).

5. Having identified this possible error, the Tribunal invited submissions from the parties on that issue, and the related issue of whether Mr Taylor should now be permitted to raise it as a ground of appeal.

6. The parties have now filed submissions.  Mr Taylor, other than raising the error as a ground of appeal, makes no submissions on the issue.  Rather, Mr Taylor has taken the invitation for further submissions as an opportunity to reargue the appeal; to raise further grounds of appeal; to seek to adduce further evidence on the appeal (not relevant to the issue of the expert’s costs); and to make further submissions on the substantive appeal.  He also raises what he considers to be errors in the earlier reasons.

7. The opportunity for the parties was not an opportunity to raise or argue those other issues.

8. The Cameron’s make further submissions about the circumstances by which the expert evidence came about.  These were touched upon in the earlier reasons.  They submit that in those circumstances, which included the indication from a Magistrate who had handled the application on an earlier occasion that expert evidence would be required, and that it was not for them, but rather Mr Taylor, to obtain an experts report, that they should have those costs.

9. Those are matters which might favour the exercise of any power which the learned Magistrate may have had to award them costs.  However, they are not matters which go to the issue raised; whether there was any power in the Magistrate to award the costs.

10. Nothing which has been raised persuades me that there was any such power.

11. In my opinion, for the reasons identified in the earlier decision[3], the learned Magistrate erred and acted beyond jurisdiction in ordering Mr Taylor to pay an amount which represented those expert witness expenses.

    [3]Ibid [25] – [27].

12. Nothing has been raised which would persuade me that Mr Taylor should not now be allowed to raise that error as a ground of appeal. Allowing him to do so, having accorded the parties the opportunity to be heard on the issue, is consistent with the obligations imposed upon the Tribunal by s 28 of the QCAT Act.

13. Leave to appeal will be granted.  The appeal will be allowed to the extent that the order requiring the payment by Mr Taylor to the Cameron’s of $15,200.00 will be set aside.  In lieu it will be ordered that Mr Taylor pay to the Cameron’s the sum of $13,775.00 within 14 days of today.