Introduction

In matters before a court, the general rule is that the party who is successful is entitled to an order that the unsuccessful party pay their legal costs. Tribunals however, are established to offer an economic process for people to resolve disputes without having to obtain legal representation and incur associated cost risks. As a result, the rules and considerations in relation to tribunal cost orders are different from those that apply at the courts.

The following information refers to provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). An enabling Act may set out requirements which override these provisions. An enabling Act is another Act which gives the Tribunal jurisdiction to hear a particular matter. For example, if the matter relates to guardianship and administration, then the enabling Act is the Guardianship and Administration Act 2000 (Qld).

General rule as to costs

Under s 100 of the QCAT Act, the general rule is for parties to bear their own costs.

However, under s 102, costs can be awarded if the Tribunal finds the interests of justice require it having regard to the following factors:

  • Whether a party has acted in a way that unnecessarily disadvantages another party, including (as mentioned in s 48(1), QCAT Act):
       a) Not complying with a Tribunal order or direction without reasonable excuse; or
       b) Not complying with this Act, an enabling Act or the rules; or
       c) Asking for an adjournment as a result of breaches of (a) or (b); or
       d) Causing an adjournment; or
       e) Attempting to deceive another party or the Tribunal; or
       f) Vexatiously conducting proceedings;
       g) Failing to attend mediation or the hearing of the proceeding without reasonable excuse.
  • The nature and complexity of the dispute;
  • The relative strengths of the claim;
  • The financial circumstances of the parties;
  • For administrative review matters, whether natural justice was afforded by the original decision maker and whether genuine attempts were made to assist the original decision maker; and
  • Anything else the Tribunal considers relevant.

See for example, Kehl v Board of Professional Engineers of Queensland [2010] QCATA 77, where the applicant's application for leave to appeal was misconceived and the applicant was ordered to pay the respondent's costs in responding to the application.

See also for example, Colmer v Queensland Building Services Authority [2012] QCAT 89, where the applicant had failed to comply with the directions of the Tribunal during the course of the proceeding.  He was found to have acted to the disadvantage of the respondent and was ordered to pay the respondent's costs. 

See for example, Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 where the Tribunal concluded that the applicant's case was arguable and the applicant had acted reasonably and not in a way that unnecessarily disadvantaged the respondent so as to justify a costs order being made against the applicant.

See also for example, Gardener & Ors v Office of Liquor and Gaming Regulation & Anor [2012] QCAT 62 where, after considering the factors set out in s 48(1) of the QCAT Act, the respondent's application for costs was dismissed because it had not provided sufficient material to show that the interests of justice required such an order. 

Costs against children - s 101 QCAT Act

The Tribunal can never award costs against children. However, this does not prevent a costs order being made against the child's representative (see below).

Costs in guardianship and administration matters - s 127 Guardianship and Administration Act

Sections 100 (each party bears its own costs) and 102 (costs against a party in the interests of justice) do not apply to guardianship and administration matters (s 101 Guardianship and Administration Act 2000 (Qld)).

Rather, the general rule provided in s 127 of the Guardianship and Administration Act 2000 states:

  • Each party bears its own costs of the proceedings; and
  • QCAT may order an applicant to pay an active party's costs and the costs of the tribunal in exceptional circumstances, for example, if the Tribunal considers the application is frivolous or vexatious.

Costs in minor civil disputes - s 102(2) QCAT Act

In minor civil disputes, costs must be awarded in accordance with the QCAT Rules. See rules 83 and 84 of the QCAT Rules 2009 for more information.

For examples of what a minor civil dispute is, see http://www.qcat.qld.gov.au/minor-civil-disputes.htm. Minor debt claims are a type of minor civil dispute which claim to recover a debt or liquidated demand of money up to $25,000. 

Additional costs orders against respondents - Rule 85 QCAT Rules

An order against a respondent in a proceeding may include an order for the respondent to pay the applicant the prescribed filing fee for lodging the application (see Rules 83-85 of the QCAT Rules 2009).

This rule does not apply to minor civil disputes.

Costs where an offer to settle has been rejected - Rule 86 QCAT Rules

If a party makes an offer to settle which is not accepted by a second party and, in the opinion of QCAT, the decision of QCAT is not more favourable to the second party than the offer, then QCAT may award the first party their reasonable costs incurred in conducting the proceeding after the order was made.

This rule does not apply to minor civil disputes.

Costs orders against non parties

Costs against representatives - s 103, QCAT Act

If the Tribunal considers a representative of a party to a proceeding, rather than the party, is responsible for unnecessarily disadvantaging another party (see above under General rule as to costs), the Tribunal may make a costs order requiring the representative to pay a stated amount to the other party as compensation for unnecessary costs.

However, before such an order is made, the Tribunal must give the representative a reasonable opportunity to be heard in relation to making the order.

While a costs order cannot be made against a child, a costs order can still be made against a child's representative.

Cost against interveners - s 104 QCAT Act

If the Attorney-General or another person intervenes in proceedings, the Tribunal may order the intervener to pay a stated amount to a party as compensation for all or part of the costs reasonably incurred by the party as a result of the intervention.

See for example, Levy v State of Victoria (1997) 146 ALR 248. The interveners in this case were ordered to pay a proportion of costs based on the increased length of hearing due to their intervention.

Timing of costs orders

Costs can be ordered at any stage of the proceedings (s 106 QCAT Act).

Amount of costs

Under s 107 of the QCAT Act, if the Tribunal makes an order for costs, then it must fix costs if possible. However, if it is not possible to fix costs, the Tribunal may make an order requiring that costs be assessed under the QCAT Rules.

Under Rule 87 of the QCAT Rules, costs must be assessed by an assessor appointed by QCAT and QCAT may direct that the assessment be conducted by reference to a court's scale of costs. Scales of cost can be found in the Schedules to the Uniform Civil Procedure Rules 1999 (Qld). 

Appealing a costs order

Costs orders (as distinct from cost-amount decisions) may be appealed:

  • If the Tribunal did not include a judicial member - to the appeal division of QCAT with the permission of the Appeal Tribunal (s 142(3) QCAT Act).
  • If the Tribunal includes a judicial member - to the Court of Appeal on a question of law as of right, or otherwise with the permission of the Court of Appeal.

Cost-amount decisions, that is decisions about the amount of costs fixed or assessed under s 107 of the QCAT Act, may be appealed to the Court of Appeal on a question of law only and only with permission of the Court of Appeal. It does not matter whether the Tribunal did or did not include a judicial member (s 149(1) QCAT Act).

For more information about appeals, please see our factsheet on QCAT - Appeals.

Non-compliance with costs orders

If a costs order is not paid, then the party to whom costs are owed can commence enforcement action by filing it in the relevant court registry and following the enforcement procedure of that court (s 131 QCAT Act).  A party has 12 years to commence enforcement proceedings (s 130 QCAT Act and s 104(4) Limitation of Actions Act 1974 (Qld)).

If costs are awarded before proceedings have ended, the Tribunal may stay proceedings until the costs order has been met (s 108(2) QCAT Act).

Under s 108(3) of the QCAT Act, if a party who has been ordered to pay costs starts another proceeding before the Tribunal, the Tribunal may make an order staying the new proceedings until the costs are paid for the previous proceedings. This is similar to Rule 312 of the UCPR where the courts can order a stay of subsequent proceedings until costs are paid.

A failure to pay the costs order may result in proceedings being stayed indefinitely.

Security for costs

Under s 109 QCAT Act, a party to the proceeding may apply for an order that the other party give security for the first party's anticipated costs.

The Tribunal can stay the proceedings until the security is given, or dismiss the proceedings or part of the proceedings if security is not given within the period stated in the security order.

The factors that the Tribunal will consider in making a security order are:

  • The financial circumstances of the parties;
  • The prospects of success or merits of the proceedings against the party applying for the security order;
  • The genuineness of proceedings against the party applying for the security order; and
  • Anything else the Tribunal considers relevant.

See for example, Dreamstarter Pty Ltd t/a Protech Builders v Lyons [2010] QCAT 447, where the Tribunal dismissed an application for security for costs by the respondent.

Fees & Allowances

Apart from costs orders and security for costs orders, parties to QCAT proceedings may also be required to pay filing fees and witness allowances.

Filing fees - s 38, QCAT Act

Commencing proceedings in QCAT may incur a filing fee. These will be set out in the QCAT Regulations. Please see the QCAT website for more information.

There are no filing fees for applications commenced in the human rights division of QCAT (matters formerly heard in the Guardianship and Administration Tribunal, Children Services Tribunal and the Anti-Discrimination Tribunal).

There are fee waiver or reduction arrangements for people for whom paying the fee will cause financial hardship. Please see the QCAT website for more information.

Witness fees and allowances - s 97 QCAT Act

If you compel a witness to appear at a hearing or produce a document as evidence, then you will be required to pay them an entitlement as set out in the QCAT Regulations.

If the Tribunal calls a witness of its own initiative, then the entitlements of the witness are paid by the parties in proportions decided by the Tribunal.