Costs of complex litigation in presumptively costs-free consumer tribunals

A Queensland District Court judgment (Saunders v Paragon Property Investments Pty Ltd [2009] QDC 19) about the costs provision in a Queensland consumer tribunal has alerted me to a passage from a decision of the Queensland Court of Appeal (Tamawood Limited v Paans [2005] 2 Qd R 101) which might be useful in arguing for costs if you are successful in a complex VCAT proceeding. It runs contrary to the tenor of certain decisions of VCAT’s President Morris noted in Pizer’s Annotated VCAT Act, (3rd ed.) at points 6 and 7 on pp 426-7 in para [4039.1D], e.g. Buttigieg v Melton SC [2006] VCAT 1058, Mornington Peninsula SC v Fox, unreported, 24 October 2003.

Also, Ballymont Pty Ltd v Ipswich City Council [2002] QCA 454 at [19] to [20] is said to be authority for the proposition that the costs provisions of the consumer tribunal should not be thought to infect the costs provisions of an appellate forum. That is, the costs of an appeal from a consumer tribunal will be dealt with consistently with the costs of appeals generally. The useful passage from Tamawood, and a comparison between the Queensland costs provisions and VCAT’s are set out below.

Justice of Appeal Keane, Justice of Appeal Williams and Justice Philippides said in Tamawood:

‘[32] If orders for costs were not to be made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the Tribunal.

[33] To say this is not to ignore s71(5)(b) of the Act. There is a clear distinction, in terms of the interest of achieving justice, between the mere fact of having representation and the fact of having reasonably obtained that representation because of the complexity of the case. In the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interest of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome. Finally in this regard, it should also be borne in mind that s71(4)(a) of the Act expressly recognises that “the outcome of the proceeding” is a consideration which is relevant to the exercise of the discretion conferred by s71(1) of the Act.’

Relevant provisions

Section 109 of the VCAT Act, 1998 says ‘each party is to bear their own costs in the proceeding’ unless it is fair to make an order that a party pay all or a specified part of the costs of another party in the proceeding having regard to ‘the nature and complexity of the proceeding’ amongst other things.

Section 70 of the Commercial and Consumer Tribunal Act, 2003 (Qld.) says ‘The main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise.’ Section 71 says

‘(4) In deciding whether to award costs, and the amount of the costs, the tribunal may have regard to the following– (a) the outcome of the proceeding; (b) the conduct of the parties to the proceeding before and during the proceeding; (c) the nature and complexity of the proceeding; (d) the relative strengths of the claims made by each of the parties to the proceeding; (e) any contravention of an Act by a party to the proceeding; (f) for a proceeding to which a State agency is a party, whether the other party to the proceeding was afforded natural justice by the State agency; (g) anything else the tribunal considers relevant.’

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