Four separate reasons for costs in the Commissioner’s Office

Frivolous, vexatious, misconceived, and without substance are not synonyms.


In the Commissioner’s Office, there is no right to an award of legal costs if you are successful. The only costs that can be awarded are up to $2,000 in compensation to the respondent if the application is dismissed for being frivolous, vexatious, misconceived or without substance.


However, it is important to note that the legislation uses the conjunctive word ‘or’. The words ‘frivolous’, ‘vexatious’, ‘misconceived’ and ‘without substance’ are not synonyms. They are four separate grounds and mean completely different things. An application could be dismissed for being any one of those grounds, or any combination of them.


The words have their ordinary meaning. For example:

  • Frivolous: an application that serves no real purpose.

  • Vexatious: an application that serves to use the legal system to harass others.

  • Misconceived: an application that is fundamentally flawed, misapplying the law.

  • Without substance: an application that cannot be supported by facts or law.

Of the four grounds, ‘vexatious’ the most egregious type of conduct, as it contemplates an abuse of process. In Queensland, it is possible for an application to be made to the Supreme Court to have someone declared as a ‘vexatious litigant’, preventing them from instituting proceedings. It is then a high bar to find an application to be vexatious as it could be grounds to have someone declared to be a vexatious litigant.


Seabreeze on Reid [2022] QBCCMCmr 209 is an example of an application that was dismissed for being all four: it was frivolous, vexatious, misconceived, and without substance in many respects. Costs of $2,000 were awarded to the body corporate. In that case, the applicant challenged the lodgement of a new CMS, the new by-laws within it, and the decision of the committee to obtain a new exclusive use sketch plan.


Misconceived and without substance


In relation to the new CMS and exclusive use sketch plan, the applicant said that the CMS that was lodged was not correct as it did not include a certain exclusive use area. The applicant also wanted to overturn a CMS from 2015 and challenged the committee’s decision to engage a surveyor to prepare an exclusive use sketch plan.


The adjudicator found that the CMS was in accordance with the body corporate’s special resolution and that the surveyor was validly engaged by the committee. The exclusive use area that was omitted did not actually exist anymore, so could not be included on the plan. The adjudicator dismissed this part of the application for being misconceived and without substance.


Frivolous, misconceived and without substance


The applicant argued against some by-laws, but in doing so, they substituted their own words into the by-laws. For example, a by-law required persons to be ‘adequately clothed’ and for people to ensure their children are ‘supervised’, but the applicant instead argued against the phrases ‘suitably attired’ and ‘accompanied’. The adjudicator found that the applicant was arguing against by-laws that did not exist.


Further, the applicant also argued against a health and safety reporting scheme, despite the applicant threatening to hold the committee liable if it did not implement the reporting scheme. The by-laws were all found to be valid. The adjudicator dismissed this part of the application for being frivolous, misconceived and without substance. Unlike the dismissal earlier, this part of the application was also frivolous as there was no real dispute concerning the reporting scheme being required by the applicant.


Frivolous and misconceived


The applicant argued against a by-law that prevented people from attempting to direct body corporate contractors. The committee said that the applicant had been directing body corporate contractors without authority. After considering the extent of the by-laws, the adjudicator found them to be valid. The by-laws were valid and this part of the application was dismissed for being frivolous and misconceived.


Vexatious


The application was found to be vexatious for two related reasons. The first reason was the challenge against the by-law that created rules for committee contact. These rules were suggested to be implemented by an adjudicator in a previous decision, particularly in light of the ‘sheer volume of correspondence from, and applications made by, the applicant’. The by-laws were found to be valid.


The second reason was perhaps more serious. It was said that there had been 10 previous applications by the applicant in the past few years. Further, the adjudicator found that the 255-page application and the 85-page reply were ‘unnecessarily verbose, repetitive, and at times, irrelevant and confusing’ and that the applicant’s ‘method of communicating is pugnacious and her minutiae, bewildering’. The adjudicator then said that ‘the sheer volume of material and minutiae submitted by the applicant alone is an abuse of process and renders the application vexatious’. As such, the application as a whole was also dismissed for being vexatious.

The adjudicator ‘dismissed the application in its entirety’ as the ‘bulk of it is frivolous, misconceived and without substance’. Note that the word ‘vexatious’ was not used. It was only after considering the applicant’s overall conduct was the application considered to be an abuse of process, and therefore vexatious as a whole. The application was dismissed upon all four grounds.


Remember


It’s important to remember that ‘frivolous’, ‘misconceived’, ‘without substance’, and ‘vexatious’ are not synonyms. An application may be dismissed for any one or any combination of those four reasons. It is a high bar for an application to be ‘vexatious’, as it contemplates an abuse of process – a misuse of the legal system. Some people may have genuine disputes but may get the law wrong. Some people might respond to the tiniest genuine grievance with an application. However, an application that is dismissed for being frivolous, misconceived or without substance does not mean it is vexatious.


If you are seeking costs against an applicant before the Commissioner’s Office, you need to consider why each requested outcome should be dismissed and argue why it is frivolous, or misconceived, or without substance, or vexatious, or any combination of them.



 

This article is intended as general information only and should not be relied upon as legal advice. For specific legal advice please contact us here.