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  • Unreported Judgment

JKL Limited v STU

 

[2019] QCATA 150

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

JKL Limited v STU & Ors [2019] QCATA 150

PARTIES:

JKL LIMITED

(appellant)

v

STU

(first respondent)

JKL (QLD) PTY LTD

(second respondent)

GHI

(third respondent)

APPLICATION NO:

APL446-19

MATTER TYPE:

Anti-discrimination matters/Appeals

DELIVERED ON:

21 October 2019

HEARING DATE:

On the papers

DECISION OF:

Member Roney QC

ORDERS:

  1. The Appellant shall pay the First Respondent’s costs of and incidental to the appeal including the application for costs disposed of in these reasons on the standard basis on the District Court Scale applicable to the amount recovered here, as agreed or, failing agreement, to be assessed.
  2. The First Respondent’s costs will be assessed as follows:
  1. (a)
    The First Respondent will deliver to the Appellant itemised claim for costs referenced to the relevant items contained in the Scale; and
  2. (b)
    If within 14 days of that delivery, the parties have not agreed to an amount for costs, the costs shall be assessed by a Legal Costs’ Assessor to be agreed by the parties, or failing agreement, by a person appointed by this Tribunal. For the purposes of that nomination, the parties shall have liberty to apply to nominate a person whom that party submits ought be appointed.
  1. The Appellant will pay the First Respondent's costs (as agreed or assessed) within 14 days of such agreement or assessment.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – appeals – procedure – costs – whether interests of justice require an order for costs – costs in appeals

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86

Cairns Regional Council & Ors v Carey [2012] QCATA 150

Cooke v Plauen Holdings Pty Limited [2001] FMCA 91

Escobar v Rainbow Printing Pty Limited (No. 3) [2002] FMCA 160

Grasso & Anor v CMG Consulting Engineers Pty Ltd (No 2) [2011] QCATA 326

Johanson v Michael Blackledge Meats (2001) 163 FLR 58

McEwen v Barker Builders Pty Ltd [2010] QCATA 49

Medical Board of Australia v Wong [2017] QCA 42

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412

Ricchetti v Landbuilt Pty Ltd [2012] QCATA 111

State of Queensland & Anor v Bell [2016] QCATA 176

Tamawood Limited & Anor v Paans [2005] 2 Qd R 101; [2005] QCA 111

Williams v Body Corporate for Circle on Cavill CTS 39918 [2013] QCATA 39

Whitlock v Bunnings, DP and DF [2009] QADT 14

REPRESENTATION:

 

Applicant:

DP O’Gorman SC, with RE Reid, instructed by Maurice Blackburn Lawyers

Respondent:

R Perry QC, with J Merrell, instructed by Aitken Legal Solicitors

APPEARANCES:

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. [1]
    In its decision of 14 March 2018, this Appeal Tribunal dismissed an appeal by the Appellant against a decision of Member Ann Fitzpatrick handed down on 6 December 2016 and a further decision on 3 January 2017 in favour of the First Respondent, who is referred to as the Applicant in places in these reasons. In turn, the Appellant here appealed to the Court of Appeal, on one of the principal outcomes in the appeal, although not on others, and which related to the question of whether the Appellant was vicariously liable to the First Respondent for contravention of the Anti-Discrimination Act by the Third Defendant. The Court of Appeal dismissed that appeal in its reasons dated 2 August 2018.
  2. [2]
    The ultimate effect of the dismissal of the appeals in this Tribunal, and in the Court of Appeal was that the Applicant below succeeded in recovering an award by way of compensation for the discriminatory conduct in the sum of $291,983.67 comprising an award of general damages of $70,000.00 with the balance made up of an allowance for future economic loss, superannuation lost, special damages and other medical costs and interest.
  3. [3]
    In Reasons of the Tribunal handed down on 5 March 2019, Member Ann Fitzpatrick gave reasons on the hearing of an application by the First Respondent in this appeal that the costs of the proceeding below be paid on a standard basis up until the date when a relevant offer to settle was made, and on an indemnity basis after that date, and that the costs be on the District Court Scale as agreed, or failing agreement to be assessed at the expense of the party which was the Appellant in this appeal.
  4. [4]
    The successful First Respondent to the Appeal now applies to this Appeal Tribunal for an order that the Appellant pay her costs of the appeal on a standard basis, to be assessed on the Supreme Court Scale. The Appellant opposes such an order, but contends, that if such an order is to be made, it ought to be made on the basis that the assessment be on the District Court Scale.
  5. [5]
    The First Respondent submits that the Appeal Tribunal should exercise its discretion under s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and order that she be paid the costs of the appeal as set out above.
  6. [6]
    The relevant provisions of s 100 and 102 of the QCAT Act are well known, and their application has been widely discussed in the jurisprudence of QCAT, and this Tribunal.
  7. [7]
    The basic provisions in the Queensland Civil and Administrative Tribunal Act 2009 concerning costs, in particular section 100 and 102, apply to both the primary proceedings and to these appeals. Those sections provide:

100 Each party usually bears own costs

Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.

102 Costs against party in interests of justice

  1. (1)
    The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.
  2. (2)
    However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.
  3. (3)
    In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
  1. (a)
    whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the Proceeding, including as mentioned in section 48(1)(a) to (g);
  2. (b)
    the nature and complexity of the dispute the subject of the proceeding;
  3. (c)
    the relative strengths of the claims made by each of the parties to the proceeding;
  4. (d)
    for a proceeding for the review of a reviewable decision—
  1. (i)
    whether the applicant was afforded natural justice by the decision-maker for the decision; and
  2. (ii)
    whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
  1. (e)
    the financial circumstances of the parties to the proceeding;
  2. (f)
    anything else the tribunal considers relevant.
  1. [8]
    In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, the then President Justice Wilson was considering the costs question where the proceeding had been commenced when a different statutory costs regime applied, but concluded under the QCAT Act. He said:
  1. [21]
    The respondent relies on the decision of the Court of Appeal in Tamawood Ltd & Anor v Paans [2005] QCA 111], a case decided under the costs provision of the now repealed Commercial and Consumer Tribunal Act 2003 (CCT Act). Although those provisions are not analogous to the equivalent provisions under the QCAT Act, the principles found in Tamawood provide guidance about the circumstances in which it may be in the interests of justice for this Tribunal to award costs against parties.
  2. [22]
    In Tamawood, Ms Paans commenced proceedings in the CCT for damages against Tamawood Ltd and another party. The two matters were heard together and Ms Paans was awarded monetary damages. The CCT, however, refused to order costs in her favour.
  3. [23]
    All parties then sought leave to appeal to the District Court, where the appeals from the respondents were refused, but Ms Paans was awarded her costs in the proceedings. The respondents than sought leave to appeal that costs decision to the Court of Appeal, contending that the decision of the District Court was based on an erroneous construction of ss 70 and 71 of the CCT Act. Those provisions state:

70 Purposes of div 7

The main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise.

71 Costs

  1. (4)
    In deciding whether to award costs, and the amount of the costs, the Tribunal may have regard to the following—
  1. (a)
    the outcome of the proceeding;
  1. (b)
    the conduct of the parties to the proceeding before and during the proceeding;
  1. (c)
    the nature and complexity of the proceeding;
  1. (d)
    the relative strengths of the claims made by each of the parties to the proceeding;
  1. (e)
    any contravention of an Act by a party to the proceeding;
  1. (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;
  1. (g)
    anything else the Tribunal considers relevant.

Examples of paragraph (g)

The Tribunal may consider whether a party to a proceeding is acting in a way that unreasonably disadvantages another party to the proceeding.

The Tribunal may consider whether the proceeding, or a part of the proceeding, has been frivolous or vexatious.

  1. (5)
    A party to a proceeding is not entitled to costs merely because—
  1. (a)
    the party was the beneficiary of an order of the Tribunal; or
  1. (b)
    the party was legally represented at the proceeding.
  1. [24]
    The similar QCAT Act provision to s 70 is, it might be said, in terms that more plainly indicate that the legislature had turned its face against awards of costs in this Tribunal: s 100 says that ‘Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding’.
  2. [25]
    In considering ss 70 and 71 Keane JA (as his Honour then was) referred, however, to two matters relevant here. First, his Honour held that the CCT provisions negated the traditional proposition that costs should prima facie follow the event (unless of course that the Tribunal considers that another order is more appropriate) and that the nature and extent of the power to award costs could only be discerned by close consideration of the terms of the statute which created and prescribed the occasions and conditions for its exercise 7. Sections 100 and 102 of the QCAT Act attract the operation of the same principles.
  3. [26]
    Second, Keane JA was of the view that where the complexity of the matter justified legal representation, it would not be in the interests of justice to bar the successful party from recovering costs that were reasonably necessary to achieve a satisfactory outcome.
  4. [27]
    That conclusion must, here, be considered in the light of the difference between s 70 of the CCT Act and s 100 of the QCAT Act. Section 70 speaks of a ‘main purpose’, but s 100 mandates that parties shall bear their own costs. Section 70 contains, within itself, a reference to the condition or circumstance in which the main purpose may be subsumed to the interests of justice; s 100 has no such proviso, although it appears later, in s 102(1).
  5. [28]
    Under that subsection QCAT has a discretion to make a costs order ‘…if the Tribunal considers the interests of justice require it…’. Section 102(3) says that, in deciding whether to award costs, the Tribunal may have regard to matters not dissimilar to those set out in s 71 of the CCT Act including, in particular for present purposes, the nature and complexity of the dispute and the relative strength of each party’s claims.
  6. [29]
    Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.
  7. [30]
    I am satisfied that is the case here. As the voluminous supporting material indicated, the application brought in Ralacom’s name involved a complex history of disputes between it, and the body corporate. Urgent injunctive relief was sought, as was relief under the BCCMA, which on any view involved some complexity, and urgency, and warranted the instruction of solicitors and counsel by the body corporate. The standing of the company was unclear, and confused by the applicant’s failure to inform this Tribunal about the real outcome of the Supreme Court Proceedings. (citations omitted)
  1. [9]
    Later, in McEwen v Barker Builders Pty Ltd [2010] QCATA 49, President Justice Wilson further said in an Appeal heard on the papers:
  1. [13]
    As to costs, the starting point in this Tribunal is that each party must bear its own: QCAT Act, s 100. The statutory presumption may be displaced if the Tribunal considers it in the interests of justice to order a party to pay all or part of the costs of another party: s 102(1). The phrase “in the interests of justice” is not defined in the Act but is to be construed according to its ordinary and plain meaning, conferring a broad discretionary power on the decision-maker.
  2. [14]
    In determining whether it is in the interests of justice to award costs against another party, the Tribunal may have regard to the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; and, whether a party has acted in a way that unnecessarily disadvantages another party: QCAT Act, s 102(3).

  1. [17]
    The language of s 100 plainly indicates that the legislature has turned its face against awards of costs in this Tribunal. The question that will usually arise in each case in which costs are sought is, then, whether circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ have arisen; and, whether or not they point to a costs award in a sufficiently compelling way to overcome the statutory hurdle. (citations omitted) (emphasis added)
  1. [10]
    The starting point for consideration of an application for costs is s 100 of the QCAT Act, which is in terms that plainly indicate that the legislature has turned its face against awards of costs in this Tribunal. However, the presumption that each party must bear its own costs may be displaced if the Tribunal considers that the interests of justice require it to make an order for costs.[1]
  2. [11]
    The phrase ‘in the interests of justice’ is not defined in the Act, but is to be construed according to its ordinary and plain meaning, which obviously confers a broad discretionary power on the decision maker. The question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.
  3. [12]
    In Williams v Body Corporate for Circle on Cavill CTS 39918 [2013] QCATA 39, Member Barlow QC found as follows:
  1. [16]
    As I said in paragraph [16] of my principal reasons, there were essentially 4 real issues raised in the appeal. Ms Williams succeeded on 2 of those issues and the body corporate succeeded on the other 2. The degree of success of the parties on the issues raised in the appeal is clearly a relevant consideration. Given that Ms Williams succeeded on 2 of the 4 issues, it would not be appropriate to order that she pay all of the body corporate’s costs of the appeal.
  2. [17]
    In considering whether the Tribunal should order that Ms Williams pay any part of the body corporate’s costs of the appeal, I have taken into account the following factors:

a. Ms Williams succeeded on 2 of the 4 real issues, despite the body corporate’s strong opposition;

b. the body corporate refused to concede that Mr Urquhart was Ms Williams’ spouse and was not engaged in a letting business, despite having offered to appoint him to the committee (apparently on the basis that he was not in fact disqualified from being a member) – a refusal which I consider to have been wholly unreasonable (having regard to the apparent basis of the offers) and which has necessitated referring the matter back to the adjudicator to determine those facts;

c. a large part of the material and submissions put before the Tribunal on behalf of Ms Williams was irrelevant to the issues and orders which the Tribunal could consider;

d. most of that material was directed to the issues on which Ms Williams did not succeed;

e. it ought to have been obvious to a reasonable appellant that her case in those respects in which she failed could not succeed; and

f. it ought also to have been obvious that the application for the Tribunal to disqualify itself from making a decision could not succeed.

  1. [18]
    The costs claimed are on the indemnity basis. Because of the matters referred to in paragraphs [17]c) to [17]f), I consider that, on the issues on which Ms Williams failed, it is appropriate in the interests of justice to order that she pay the body corporate’s costs, and on the indemnity basis…
  1. [13]
    Based on what has been said above, the relevant task is to proceed on the basis that there is a statutory presumption that parties will bear their own costs in a proceeding for the Tribunal, but that presumption may be displaced if the Tribunal considers it in the interests of justice to order a party to pay some or all of the costs of another.
  2. [14]
    More recently the Court of Appeal has reinforced that approach and the necessity to show unreasonableness as a foundation for the making of such orders. In Medical Board of Australia v Wong [2017] QCA 42, Philip McMurdo JA, with whom the other members of the Court (Morrison and Mullins JJ) agreed, set aside costs orders made on an indemnity basis in a disciplinary matter.
  3. [15]
    Philip McMurdo JA said at [32]-[35]:
  1. [32]
    Her Honour made no finding as to whether the Board, when referring the matter to QCAT, held a reasonable belief that Dr Wong’s sexual misconduct had constituted professional misconduct. And as already noted, there had been no finding about that matter by Horneman-Wren SC DCJ. Absent a finding that the Board had commenced the proceeding without such a belief, there could be no criticism of the Board’s doing so. Moreover if the Board held that reasonable belief, it was bound to bring the proceeding which it did. In my respectful opinion, her Honour erred in law by not recognising the importance of that mandatory nature of the then s 193 to the question of whether this proceeding had been properly brought. If it was to be determined that the Board should pay costs because it had unnecessarily commenced the proceeding, a necessary consideration was whether the Board had been bound to do so.
  2. [33]
    That same matter should also have been considered in assessing the relevance, on the question of costs, of the correspondence in December 2014. The response by the Board could not be described as perfunctory without a consideration of the reasonableness of the Board’s view that there had been professional misconduct. And the same may be said of her Honour’s criticism of the Board’s dismissal “out of hand [of] a reasonable course of action proposed on behalf of a practitioner”. At that point of the judgment, her Honour said that the Board had then ignored expert opinion. That expert opinion was not identified but it could not have been that of Dr Harden, whose report was requested subsequently and which was provided in June of the following year.
  3. [34]
    In my respectful opinion, there was also an error in attributing to Dr Harden’s opinion a legal consequence which it did not have. Dr Harden’s opinion was important evidence of the nature and extent of the risk that Dr Wong would relapse. That was highly relevant to QCAT in its consideration of a different question, namely whether the public could be adequately protected by the conditional registration which Dr Wong was proposing. It required a value judgment by QCAT which was not simply a question of psychiatric opinion. Similarly, it must be said that one comment by Horneman-Wren SC DCJ may have suggested that Dr Harden’s opinion was conclusive on the ultimate question of whether Dr Wong’s registration should remain. But as Dr Harden’s opinion was not conclusive on the ultimate question, the Board could not be fairly criticised for continuing to prosecute a case for deregistration after receipt of that opinion.
  4. [35]
    As to the Board’s conduct after the 2015 decision, her Honour found that the position taken by the Board was not “wholly unreasonable”. There was no respect in which the Board’s position was identified as unreasonable, in pressing for the conditions which it proposed. Absent any finding of unreasonableness, there could not have been a basis for departing from the default position, according to s 100, that each party bear its own costs. (citations omitted) (emphasis added)
  1. [16]
    Unlike the position in Medical Board of Australia v Wong, the Applicant below/First Respondent here was not of course bound to bring or maintain the proceeding which it did and was not acting in pursuance of any function to protect the public interest.
  2. [17]
    In short, the First Respondent contends that the nature of the dispute which arose for determination on the appeal raised complex matters of both fact and law. The Appellant contends that the issues were of relatively limited complexity.
  3. [18]
    The First Respondent also points to the fact that the Member’s findings on quantum and other issues that went to the method of assessment of compensation were challenged, and that these involved matters of legal principle and required a review of medical evidence.
  4. [19]
    In the Reasons of this Tribunal for refusing leave to appeal and dismissing the appeal, it was held as follows;
  1. [15]
    The Appellant raised 15 grounds of appeal. Seven of the grounds were characterised as errors of law, with the remaining grounds said to be either errors of fact or mixed errors of law and fact. Two of the grounds concern the appeal on the assessment of economic loss. Those grounds will be considered separately.
  2. [16]
    The Notice of Appeal is prolix and repetitive as are the submissions supposed to support them.
  3. [17]
    In large part, the Appeal was conducted as an attempt to re-argue a multiplicity of issues which were raised at trial, both in evidence and in law, and as to the proper interpretation to be placed upon evidence where it fell into some particular context or other.
  4. [18]
    The central proposition of the Appellant is that the Tribunal found that the factor establishing vicarious liability was that, as the ‘Night Caretaker’ was on call during the hours of 10.00 pm to 6.00 am, he was ‘working’ during all of that period, and necessarily, that an assault, which occurred about 5.00 am in the Unit provided to the Night Caretaker, was an event occurring in the course of work. That is a challenge to the learned Member’s conclusion in law for which the leave of this Tribunal is not required.
  5. [19]
    Although some of the grounds of appeal are expressed to be against findings of fact or mixed findings of law and fact for which leave is required, they essentially relate, in one way or another, to that central issue.
  6. [20]
    The Appeal was primarily conducted on the basis of the findings made by the learned Member. The primary evidence was not in dispute. The Appeal, even though said to involve errors of fact, was conducted as a challenge to the characterisation of the events and circumstances found by the learned Member, rather than as a challenge to the primary facts found by the Member.
  7. [21]
    For the reasons that follow, those challenges cannot be accepted and leave to appeal on questions of fact and/or mixed questions of law and fact is refused”.
  1. [20]
    The appeal on the question of law was held to have failed.
  2. [21]
    The Appellant also contended that an award of economic loss in an amount of $145,714.90 ought to be reduced to an amount of $116,213.65 on the basis that past economic loss was allowed from 12 December 2010 to the date of re-hearing, namely 12 May 2016. The Appellant contends that it should be reduced because the evidence was that the Complainant was only totally incapacitated up to 15 March 2015 and that was the date that she ceased to have a loss of earning capacity. The Appellant argues that there is no evidence that she had a loss of earning capacity which was productive of financial loss after March 2015. A related award of compensation in a global award of $25,000 for future economic loss is challenged on a similar basis, namely that there was no future economic loss because there was no diminution in earning capacity after March 2015.
  3. [22]
     The Appellant has contended, in its written submissions, that the Member found in relation to loss of earning capacity associated with impairment to March 2015, including any in the future, that the medical evidence demonstrated that the sexual assault caused the Complainant’s impairment and inability to work until she commenced work in a new job in late March 2015, as opposed to a later period in May 2016 for which allowance was made in the judgment for past loss.
  4. [23]
    Each of these grounds also failed. Hence the First Respondent succeeded entirely on all of the grounds raised in the appeal.
  5. [24]
    It may be readily accepted that this appeal raised a complex issue in relation to the scope of the responsibilities of the Appellant over other staff, and as to the scope of its vicarious liability for that staff. Both parties engaged senior and junior Counsel, both at the initial hearing stage, in this Tribunal, and also in the Court of Appeal, and the decision of the parties to do so in part informs an understanding of the complexity of the issues which arose in this Tribunal for its determination.
  6. [25]
    In this context, both parties made reference to comments by Keane JA in Tamawood Limited & Anor v Paans [2005] 2 QdR 101. The approach taken in Tamawood Ltd & Anor v Paans provides ‘guidance about the circumstances in which it may be in the interests of justice for this tribunal to award costs against parties’ under the QCAT Act.
  7. [26]
    These comments are perhaps most relevant to a consideration of the issue about whether it is a relevant consideration that an award of compensation for discriminatory conduct ought be permitted to be eroded by non-reimbursed incurring of legal costs associated with achieving success on those issues. It is however also relevant to the question of whether the interests of justice require an order for costs in a case such as the present.
  8. [27]
    The Appellant submits that in the decision of this Appeal Tribunal in State of Queensland & Anor v Bell [2016] QCATA 176 that those observations by Justice Keane in Tamawood could not be construed as requiring an unsuccessful party to be the subject of an adverse costs order as though the UCPR applied. That is undoubtedly the case, however no one suggested that the comments by Justice Keane should be construed in some different way.
  9. [28]
    One of the contentions made for the Respondent in this context is that given the award of compensation which was made by the Tribunal at first instance, it cannot reasonably be said that the First Respondent is sufficiently impecunious as might justify an order for costs. Put another way, the submission seems to be that it is not conceptually a matter to be taken into consideration in the interests of justice that a party has incurred significant legal costs to solicitor and Counsel in arriving at a successful outcome for compensation for serious discriminatory conduct because one has in fact achieved a significant compensatory award.
  10. [29]
    The relevant issue is not whether a party is, after a successful outcome in the proceeding, impecunious, but whether it is in the interests of justice for a party which has received a significant compensatory award, but in the process incurred significant legal cost in achieving that outcome but which, unless such an order is made, might seriously erode the amount of the award of compensation in a way which would result in injustice.
  11. [30]
    I reject the contention made by the Appellant that the fact that there was a significant award of compensation is a factor which operates against the proposition that it is in the interests of justice to award a successful Applicant for that compensation her costs.
  12. [31]
    The second aspect relied upon by the First Respondent is that she was wholly successful both below, in this Tribunal and in the Court of Appeal.
  13. [32]
    The findings that were made by this Tribunal on the question of the conduct of the Appellant, vicariously through its worker have been set out at paragraph 19 above.
  14. [33]
    Whilst it can certainly not be said that the First Respondent’s case was overwhelmingly strong, the decision of this Tribunal, and that of the Court of Appeal on the issue of vicarious liability make clear that the arguments in favour of a finding of liability against the Appellant were strong, indeed ultimately compelling.
  15. [34]
    On this issue the Court of Appeal held; per Fraser JA, Gotterson JJA and Bond J agreeing:
  1. [12]
    Section 117 of the Anti-Discrimination Act provides that one of that Act’s purposes is to promote equality of opportunity for everyone by protecting them from sexual harassment, and amongst the ways in which that purpose is to be achieved is the prohibition of sexual harassment. The particular statutory purpose underlying s 133 is expressed in s 132. It is “to promote equality of opportunity for everyone by making a person liable for certain acts of the person’s workers or agents”, such purpose being achieved “by making a person civilly liable for a contravention of the Act by the person’s workers or agents”. When that is understood in the context of the defence in s 133(2) for a respondent who proves on the balance of probabilities that the respondent took reasonable steps to prevent the worker or agent contravening the Act, it can be seen that the policy underlying s 133 comprehends persons described in s 133(1) taking positive steps to eliminate sexual harassment by those who work for them. The reasoning in Trainor supports the view that the word “work” in the limiting requirement in s 133(1) that vicarious liability for a contravention by a person’s worker is imposed only if the contravention occurs “in the course of work” should not be given the narrow construction advocated by the applicant.
  2. [13]
    The consequences of the applicant’s construction also militate against its acceptance. To take just one of the innumerable obvious examples that spring to mind, it seems most unlikely that, for example, although s 133(1) imposes vicarious liability upon an employer whose employee sexually harasses a passer-by whilst painting a building, it would not apply whilst the painter is waiting for a co-worker to finish some task which is required before the paint may be applied. Such a construction would be distinctly inapt to achieve the purpose expressed in the Act of “promoting equality of opportunity for everyone”.
  3. [14]
    Accordingly, the construction of “work” propounded by the applicant should be rejected. That word comprehends the more general meaning “employment” or “job”.
  4. [15]
    I would add that it should not be assumed that the applicant would escape liability in this case even if the narrower construction were adopted. The third respondent’s obligations during his work hours were not confined to passively waiting for calls and actively performing tasks in response to calls. He was obliged at all times during his working hours to remain sober, to stay in or near the hotel, and to be vigilant for situations that could cause a safety risk. The applicant emphasised that the third respondent’s contract did not preclude him from sleeping during the hours he was on-call. But whether the third respondent was awake or asleep, by being in his unit in the hotel he was fulfilling his contractual obligation to be in or near the hotel; and his obligation to be vigilant for situations that could cause a safety risk (to take the most obvious example) was as much a part of his work under the contract for services as was his obligation to respond to calls.
  1. [35]
    The Court of Appeal held that:
  1. [17]
    It is inappropriate to construe the Anti-Discrimination Act by analogy with common law principles about the vicarious liability of an employer for the negligent or intentional criminal acts of an employee. One reason why that is so is that the Act was enacted in circumstances in which there was considerable uncertainty about the content of those principles. More fundamentally, and consistently with the statutory purposes expressed in the Act, the expression “in the course of work” in s 133(1) appears in a context in which “work” is not confined to an employee’s work for an employer. ...
  1. [36]
    The Court granted leave to appeal limited to ground 1 in the draft notice of appeal, and not the 11 others and dismissed the appeal, and ordered the Appellant to pay the Respondent’s costs of the application and the appeal.
  2. [37]
    One matter that is relied upon by the First Respondent in seeking her costs concerns the way in which the appeal was conducted. In that regard, she points to the findings of this Tribunal at paragraph 16 and 17 set out above.
  3. [38]
    There can be no doubt that the adoption of this approach to the appeal by the Appellant would have increased to some degree, although to what degree cannot be precisely identified, the costs of resolving the appeal. Undoubtedly it also added to the costs of the hearing per se, which was conducted over a period which took the hearing on the Appeal into a second day. The Appeal material involved lengthy written and oral submissions. It is relevant to a consideration of the exercise of discretion under s 102 that the Appellant conducted the appeal in the way set out at paragraph 16 and 17 of the reasons, although it is by no means determinative or even necessarily significant to the decision I make.
  4. [39]
    Both parties pointed to the decision of this Tribunal in State of Queensland & Anor v Bell in support of their arguments both for or against the making of a costs order. For the First Respondent, it was contended that that decision supported the proposition that it was a relevant matter that the proceeding was brought under anti-discrimination legislation to obtain remedies for a violation of the First Respondent’s human right to be protected from unlawful sexual harassment, and that the legislation was socially beneficial.
  5. [40]
    In that regard reference was made to the decision in Bell for the proposition at [49].
  1. [49]
    We consider the objectives of the anti-discrimination legislation under which the proceedings were commenced to have a human rights focus, intended to be socially beneficial. This legislation should not be seen as analogous to commercial claims where citizens seek redress for civil wrongs by way of financial compensation. Complainants with genuine claims of unlawful discrimination and harassment should not be discouraged in their pursuit of human rights based objectives by fear of adverse costs consequences, and granting costs to the respondent here is consistent with policy aims.
  1. [41]
    I respectfully agree with that statement of principle.
  2. [42]
    Reliance was also made to the decision of the Appeal Tribunal in Ricchetti v Landbuilt Pty Ltd [2012] QCATA 111 at [26], citing Grasso & Anor v CMG Consulting Engineers Pty Ltd (No 2) [2011] QCATA 326 to the effect that if an Appellant fails, the Respondent has had to face the additional burden and expense of the appeal, and litigation in which he or she has already been successful. This is matter the QCAT Appeal Tribunal is entitled to take into account under s 102(3)(f) of the QCAT Act.
  3. [43]
    In response to that contention the Appellant:
    1. (a)
      Concedes that the Anti-Discrimination Act is socially beneficial legislation and that there is authority for the proposition that complainants with genuine claims of unlawful discrimination and harassment should not be discouraged in the pursuit of human rights based objectives by fear of adverse costs consequences; and
    2. (b)
      That this is a case where the First Respondent has been ordered a considerable sum by way of compensation;

The Appellant nevertheless contends that the fact that she has been awarded that compensation mitigates against making a costs order.

  1. [44]
    There is some authority for the proposition that in relation to the issue of costs in human rights proceedings, where an applicant is successful, it is regarded as desirable that there be an award of costs in favour of the successful applicant, so as to avoid an award of damages being swallowed up by the costs of litigation; Johanson v Michael Blackledge Meats (2001) 163 FLR 58, Cooke v Plauen Holdings Pty Limited [2001] FMCA 91 and Escobar v Rainbow Printing Pty Limited (No. 3) [2002] FMCA 160. In Whitlock v Bunnings, DP and DF [2009] QADT 14, the then President of the Anti-discrimination Tribunal, Mr Savage SC said, in this context:

The rights given under the Act to people in Ms Whitlock’s position as an ordinary member of our community becomes theoretical, if they cannot obtain a vindication of those rights other than by risking what on any view must be a goodly portion of an ordinary person’s available assets.

  1. [45]
    This Appeal Tribunal said in State of Queensland & Anor v Bell:

Complainants with genuine claims of unlawful discrimination and harassment should not be discouraged in their pursuit of human rights based objectives by fear of adverse costs consequences…[2]

  1. [46]
    Counsel for the Appellant points to remarks made by this Tribunal in Cairns Regional Council & Ors v Carey at [14]. In that judgement. The Tribunal said as follows:
  1. [14]
    It should not be thought however that successful anti-discrimination claimants should prima face expect to obtain orders for costs any more readily than claimants in any other jurisdiction as to which there is no particular legislation that detracts from the basic QCAT Act costs provisions.
  1. [47]
    The context in which that statement was made in the Cairns Regional Council & Ors v Carey decision was that the Tribunal had identified that the original claim had been for $800,000.00 and that the claim which succeeded was some $480,000.00 less, but held that this could still be treated as having been litigation which had been substantially successful. In that context, the Tribunal went on to warn that the mere fact of success, even in anti-discrimination cases, did not prima facie mean that costs orders would be more readily achieved in that jurisdiction.
  2. [48]
    No one has suggested that the mere fact of success, even in anti-discrimination cases, prima facie means that costs orders would be more readily achieved in this jurisdiction. It is rather a different proposition to contend that it is not a relevant consideration that the complaint in question which has been upheld was held to be a genuine claim for unlawful discrimination and harassment in circumstances in which significant sums were undoubtedly incurred in arriving at a successful outcome on such a claim.
  3. [49]
    It seems to me that there is no reason in principle why in an appropriate case, the fact that a complaint upheld involved legislation designed to protect human rights would not be a relevant consideration under s 102, falling within the broad category contemplated by s 102(3)(b) or by s 102(3)(f) as something else that the Tribunal considered relevant to whether the interests of justice require a costs order to be made.  In saying that, I should not be construed as suggesting that every case or appeal brought in the Human Rights Division of this Tribunal would attract that consideration, favourable or otherwise. 
  4. [50]
    A further but more significant relevant consideration in this case is that the harassment which was the subject of the complaint occurred in December 2010.
  5. [51]
    The judgment in which she succeeded below was handed down six years later in December 2016. The Court of Appeal’s decision finally upholding her claims occurred in August 2018, so that this relatively young woman who was subjected to harassment and which it was found by the Member to have been unable to work for a period from December 2010 until March 2015 due to the psychological effects of the sexual harassment, and only obtained part time work in May 2016. And that she was a person of relatively insignificant financial strength, which can be contrasted with the position of the Appellant, which is a public listed company, with significant assets and resources to conduct a matter such as this.
  6. [52]
    There are a number of other significant issues however which arise from the findings of the learned Member below and which she took into account in making an order for costs and which are also relevant to consider in this Tribunal.
  7. [53]
    In the Reasons of the Member handed down on 5 March 2019, she found as follows:
  1. [26]
    In this case, I consider that there are compelling circumstances which overcome the statutory hurdle in s 100 of the QCAT Act.[3]
  2. [27]
    Many factors are relevant to the exercise of my discretion under s 102 of the QCAT Act including the matters set out in s 102(3) of the Act.
  3. [28]
    The compelling factors are that:
  1. (a)
    the Applicant succeeded in the hearing before me, on appeal to this Tribunal’s Appeal Tribunal and on appeal to the Court of Appeal;
  2. (b)
    the Third Respondent failed in all respects in its defence of the matter;
  3. (c)
    the Applicant had a strong case;
  4. (c)
    the Applicant had a strong case;
  5. (d)
    the proceeding was complex. The parties were represented by Queen’s Counsel instructed by experienced lawyers. The hearings extended over a number of days and raised difficult issues as to vicarious liability, credit, analysis of medical evidence and questions in relation to mitigation of loss and discounting of damages.  The material considered by the Tribunal and the submissions made by the parties was voluminous. Engagement of lawyers was justified in this case;
  6. (e)
    a refusal to order costs would diminish or exhaust the award in favour of the Applicant;[4]
  7. (f)
    the sexual assault giving rise to this proceeding took place on 1 December 2010.  The Applicant has persevered in her claim over an extraordinarily long period of time. She has had to bear the stresses and difficulties of litigation over that period. If her award of compensation is diminished by the need to meet her own costs it would not be unreasonable to conclude the system of justice has failed her as a genuine applicant for relief;
  8. (g)
    the Third Respondent is a large commercial concern. Plainly, it has the financial circumstances to conduct proceedings of this type and to bear the costs of its numerous appeals. The Applicant is a young woman who does not have those financial circumstances, particularly given the injuries she suffered as a consequence of the sexual assault to which she was subjected;
  9. (h)
    as the Appeal Tribunal said in State of Queensland & Anor v Bell:
    Complainants with genuine claims of unlawful discrimination and harassment should not be discouraged in their pursuit of human rights based objectives by fear of adverse costs consequences [[2016] QCATA 176, [49].]
  10. (i)
    Finally, the Applicant made an offer of settlement falling within Rule 86 of the QCAT Rules, which was more favourable to the Third Respondent than the ultimate decision. This issue is more fully discussed later in this decision.
  1. [29]
    The Third Respondent submits that the First and Third Respondents did not act in a way that unnecessarily disadvantaged the Applicant. I accept that the First and Third Respondents at the earlier hearing and the Third Respondent at the rehearing conducted their defence in a way open to them.
  2. [30]
    However, when weighed against the other factors which suggest that it is in the interests of justice that an order for costs be made, the fact that the Respondents may have conducted themselves appropriately is not a sufficient reason to refuse to award costs to the successful Applicant.

...

  1. [33]
    It is not the case that I have determined the Third Respondent should pay the Applicant’s costs of the proceeding simply because the Applicant was successful. The factors referred to in this decision are all matters considered by me in the exercise of my discretion.
  2. [34]
    In relation to the Third Respondent’s submissions as to the financial circumstances of the parties, I agree that simply because a party is in a poor financial position, they do not have a basis to seek an order for costs. However, it is a relevant factor and in particular goes to diminution of the award made in a party’s favour if their financial circumstances are such that they cannot bear the costs of the proceedings from their own resources.
  3. [35]
    The Third Respondent makes the point that the award in favour of the Applicant was not modest. I agree. Nevertheless, I accept the submissions of the Applicant that the costs of the proceeding, given its length and complexity, are high.  It is not just that a party should be forced to erode compensatory orders in a case involving a sexual assault, in order to meet costs. That would defeat the purpose of the compensation.
  1. [54]
    For the reasons given, she accepted the submissions of the First Respondent that the Third Respondent pay the First Respondent’s costs of the proceeding.
  2. [55]
    The learned Member then went on to consider whether to order them on an indemnity basis.
  3. [56]
    The Applicant was awarded the sum of $291,983.67 comprising $70,000.00 for general damages and the balance comprised of interest, past and future economic loss, lost superannuation, special damages and future medical costs.
  4. [57]
    The Member found that the decision is not more favourable to the Third Respondent than the offer by the Applicant. The upshot is that this Tribunal could under Rule 86(2), award the Applicant all reasonable costs incurred in the proceeding after the offer was made, i.e. costs on an indemnity basis.[5]
  5. [58]
    She concluded that it was not reasonable for the Third Respondent to reject the Applicant’s offer of settlement made on 6 April 2016 and found that the Third Respondent should pay the Applicant’s costs of the proceeding on an indemnity basis from 6 April 2016.
  6. [59]
    In my opinion, having regard to the relevant principles recited earlier, the circumstances of this case , including those listed at (a) to (g) of the members decision as set out above, clearly justify an order for costs because the making of such an order against the Appellant is in the interests of justice. I have set out some of the relevant considerations above.
  7. [60]
    It is also a relevant consideration that an offer to settle the matter, which the learned Member below held was more advantageous to the Appellant than the award, was made six weeks before the trial held in May 2016. The costs of the appeal were incurred after that offer had been made, and to extent to which the fact of the making of that offer is relevant generally to the question of what costs should be ordered, albeit below in considering whether to award costs on an indemnity basis, is nevertheless a relevant consideration to whether to allow the costs of this appeal. Even if the offer to settle the matter was not more advantageous to the Appellant than the award it was a very reasonable offer and was made six weeks before the trial held in May 2016. Properly advised, the Appellant ought to have given serious consideration to the amount and timing of that offer. There is nothing to suggest that the First respondent would not have been prepared to renew or remake that offer during or after the trial itself, or indeed whilst the appeal was being conducted.
  8. [61]
    The learned Member below ordered that the costs be assessed on the District Court Scale, and I am not persuaded that any different scale methodology for assessing costs ought to apply to this appeal. I did not accept the First Respondent’s submission that they should be paid on the Supreme Court Scale because under the regime which existed before the establishment of QCAT, by which appeals from the former Anti-Discrimination Tribunal were made to a single Judge of the Supreme Court, and by analogy seeking to suggest that this Tribunal is the equivalent of a Supreme Court hearing such an appeal.
  9. [62]
    Ultimately the issue is most simply determined by reference to the amount recovered, and that sum is a sum which falls within the District Court Scale and that therefore is in my view the appropriate scale to apply.
  10. [63]
    In the circumstances I make the following orders:
  1. The Appellant shall pay the First Respondent’s costs of and incidental to the appeal including the application for costs disposed of in these reasons on the standard basis on the District Court Scale applicable to the amount recovered here, as agreed or, failing agreement, to be assessed.
  2. The First Respondent’s costs will be assessed as follows:
    1. (a)
      The First Respondent will deliver to the Appellant itemised claim for costs referenced to the relevant items contained in the Scale; and
    2. (b)
      If within 14 days of that delivery, the parties have not agreed to an amount for costs, the costs shall be assessed by a Legal Costs’ Assessor to be agreed by the parties, or failing agreement, by a person appointed by this Tribunal. For the purposes of that nomination, the parties shall have liberty to apply to nominate a person whom that party submits ought be appointed.
  3. The Appellant will pay the First Respondent's costs (as agreed or assessed) within 14 days of such agreement or assessment.

Footnotes

[1]QCAT Act, s 102(1).

[2][2016] QCATA 176, [49].

[3]McEwen v Barker Builders [2010] QCATA 49, [17].

[4]State of Queensland & Anor v Bell [2016] QCATA 176, [34]-[41]; Tamawood Limited & Anor v Paans [2005] 2 QdR 101; [2005] QCA 111, [33].

[5]Lyons v Dreamstarter Pty Ltd [2012] QCATA 071 Justice Alan Wilson, President, [24]; Hill-Douglas v Area Square Pty Ltd [2012] QCATA 068; Richetti and Ors v Lanbuilt [2012] QCATA 111.

Close

Editorial Notes

  • Published Case Name:

    JKL Limited v STU, JKL (Qld) Pty Ltd and GHI

  • Shortened Case Name:

    JKL Limited v STU

  • MNC:

    [2019] QCATA 150

  • Court:

    QCATA

  • Judge(s):

    Member Roney

  • Date:

    21 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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