The case of Berg v Sunshine Coast Regional Council [2025] QMC 28 concerned an interlocutory application to the Magistrates Court of Queensland (Court) under rule 189(4) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) concerning the costs of proving a fact or the authenticity of a document stated in a notice in substantive proceedings commenced by the Sunshine Coast Regional Council (Council) to recover rates in the amount of $1,802.21. 

Rule 189(4) of the UCPR permits a party to recover costs from another party that disputes a fact or the authenticity of a document stated in a notice given by the party if: 

• a party to a proceeding (first party) serves a notice on another party asking the other party to admit for the proceeding the facts or documents stated in the notice; 

• the other party serves a notice on the first party disputing the fact or the authenticity of a document stated in the notice; and  

• the fact or the authenticity of the document disputed is later proved in the proceeding. 

The following questions were considered by the Court and answered in the negative: 

"(a) Whether a fact 'is proved in the proceeding' for the purposes of rule 189 UCPR before there has been any trial of the proceeding simply because the applicant has filed an affidavit asserting the facts?  

(b) Has the applicant (who is not a lawyer) incurred costs of proof which it is entitled to recover under rule 189(4)? 

(c) If the answer to (1) and (2) are yes, is it appropriate to order the plaintiff to pay the costs of proof?" 

The Court held that no facts had been "proved in the proceeding" because the matter had not gone to trial and no factual findings in the proceeding had been made. The Court also held that because the applicant is a lay litigant, no legal charges and disbursements recoverable under the UCPR were incurred by her. The Court therefore dismissed the application for costs. 

The Council commenced proceedings to recover unpaid rates in 2024. The applicant challenged the Council's entitlement to sue and her status to be sued and made an interlocutory application under rule 16 of the UCPR seeking to have the Council's originating application set aside. The applicant filed a notice to admit facts purportedly in support of that application and the Council filed a notice disputing facts in response. The Court dismissed that application and an appeal against that decision was also dismissed which led to the applicant's present costs application. 

The Court had regard to the following well-established principles of statutory construction (see [24] to [32]):  

• The purposive approach stated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 requires the words of a statutory provision to be read in its context and in light of its legislative purpose, and requires that the words be given the meaning that parliament is taken to have intended them to have. 

• The preferred interpretation is one that best achieves the purpose of the Act and the use of extrinsic material in the interpretation of a provision is permitted in the limited circumstances stated in the Acts Interpretation Act 1954 (Qld) but cannot override or displace the clear meaning of the words in a provision (see section 14A and section 14B of the Acts Interpretation Act 1954 (Qld)). Clear and unambiguous words are to be given their ordinary meaning and departure from the literal meaning is appropriate only if the literal meaning would lead to absurdity or inconsistency to the extent necessary to avoid the absurdity or inconsistency.   

The Court considered the meaning of the words "is proved in the proceeding" and "the costs of proof" in section 189(4) of the UCPR having regard to the ordinary meaning of the word "proved" and "proven" which is "to establish the existence truth, or validity of (as by evidence or logic)", "to show that something is true", "to establish the truth or genuineness of, as by evidence or argument: to prove one's connection" (at [34]). 

The Court held that the ordinary meaning of the word "proved" and "proven" and the following matters support a finding that a thing is not "proved in a proceeding" for the purpose of rule 189 of the UCPR before there has been a trial of the proceeding (at [33] to [49]): 

• The context, being that the UCPR are made under section 85 of the Supreme Court of Queensland Act 1991 (Qld) and that the UCPR govern civil practice and procedure in Queensland courts including the process for the commencement and ending of civil proceedings as well as the steps in between. 

• The definition of the word "proceeding" in rule 352 of the UCPR, which is used only in the context of chapter 9, part 5 relating to offers to settle a proceeding, and in this case there was no dispute that a proceeding had been commenced under the UCPR. 

• The purpose in rule 5 of the UCPR, which includes "…to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense".  

• The approach of other courts in relation to matters concerning a notice to admit fact or document, which the court regarded as supporting that in this case the costs application is premature because there were no issues in dispute on any pleading in the proceeding because the applicant had not filed a defence.  

• Determinations of law are beyond what is contemplated by section 189 of the UCPR, which is supported by rule 390(a) of the UCPR that requires oral evidence at a trial unless otherwise permitted, and in this case the matters stated in the applicant's notice to admit facts are matters that require determinations at law. 

• It would be absurd if a fact could be taken to be "proved" by filing of an uncontested affidavit by one party and would undermine the trial process and rules of evidence, which contradicts rule 5 of the UCPR.   

The Court held that the concept of costs under the UCPR is confined to "…professional legal charges and necessary disbursements properly incurred in the conduct of litigation". Accordingly, costs do not include personal time, labour, research or any other cost of a non-legally qualified person. This interpretation also applies to "costs of proof" referred to in rule 189(4) of the UCPR and therefore the applicant's claim of costs for her own labour failed because they are not legal costs (see [50] to [55]). 

The Court held that even if the applicant had established a fact had been proved and the applicant had incurred the "costs of proof" contemplated by rule 189 of the UCPR, the award of costs is discretionary and, if those circumstances existed, the Court would order that the applicant bear her own costs.   

A fact is only "proved in the proceeding" under rule 189 of the UCPR when it is accepted by the Court to the requisite standard of proof and an entitlement to costs under that rule does not arise for a litigant who is without legal representation and thus has not incurred legal charges and disbursements. The Court therefore dismissed the application for costs.