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N v State of Qld

 

[2007] QSC 208

 

SUPREME COURT OF QUEENSLAND 

 

CITATION:

N (on behalf of her son) v State of Qld (Acting through the Dept of Education and the Arts) [2007] QSC 208

PARTIES:

N (ON BEHALF OF HER SON N)
(appellant)
v
STATE OF QUEENSLAND (ACTING THROUGH THE DEPARTMENT OF EDUCATION AND THE ARTS)
(first respondent)
LOGAN PADAYACHEE
(second respondent)

FILE NO/S:

BS 2258 of 2007

DIVISION:

Trial Division

PROCEEDING:

Appeal against costs decision of Anti-Discrimination Tribunal Queensland

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

25 May 2007

JUDGE:

Lyons J

ORDER:

  1. Appeal dismissed.
  2. Decision of the Anti-Discrimination Tribunal dated 30 March 2007 affirmed.
  3. No order as to costs

CATCHWORDS:

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - appeal from the Anti-Discrimination Tribunal – where appellant did not attend final hearing of claims - where appellant’s claims dismissed and appellant ordered to pay costs – where appellant appealed costs order – where costs order remitted back to the Tribunal – where Tribunal reinstated costs order – where appellant appealed costs order - whether the Tribunal erred in law in making a costs order against the appellant – whether the Tribunal breached the principles of natural justice in making a costs order against the appellant

Anti-Discrimination Act 1991, s 202, s 213, s 217, s 218

Evidence Act 1977, s 44

Recording of Evidence Act 1962, s 10

Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, applied

Dey v Victorian Railways Commissioners (1949) 78 CLR 62, cited

JC on behalf of BC v State of Queensland [2006] QADT 27, cited

N on behalf of N v State of Queensland (No 2) [2007] QADT 12, approved
N v State of Queensland & Anor [2006] QSC 062, approved

NSW Insurance Ministerial Corporation v Abualfoul [1999] FCA 43; (1999) 94 FCR 247, applied

COUNSEL:

Appellant appeared on her own behalf

S J Hamlyn-Harris for the respondents

SOLICITORS:

Appellant appeared on her own behalf

C W Lohe Crown Solicitor for the respondents

  1. LYONS J: This is an appeal by the appellant N on behalf of her son N against a decision by the Anti-Discrimination Tribunal (“the Tribunal”) dated 30 March 2007.  That decision was a costs decision by which the appellant was ordered to pay $28,168.25 in relation to two complaints that were dismissed by the Tribunal on 22 August 2005.

History

  1. The appellant made complaints to the Anti-Discrimination Commission of Queensland (“the Commission”) under the Anti-Discrimination Act 1991 (Qld) (“the Act”) alleging that her son N had been unlawfully discriminated against at two schools.  The appellant made the complaint as the person authorised to do so by the Commissioner under s 134(1)(c) of the Act and has essentially acted as the litigation guardian in relation to these proceedings.  The appellant’s son has never sought to make a complaint on his own behalf and the appellant has had the conduct of the proceedings.  
  1. The first respondent is the respondent pursuant to a complaint involving the Browns Plains State School and the second respondent is the respondent in a separate complaint in relation to the Calamvale Community College. The complaints were not resolved before the Commission and were referred under the Act to the Tribunal. The complaints then proceeded through various stages before the Tribunal and were ultimately set down for a hearing before the Tribunal President Ms Jean Dalton SC on 22 August 2005. On that date the appellant failed to appear and the Tribunal President dismissed the complaints and ordered that the appellant pay the first and second respondent’s costs.
  1. After receiving written submissions from both parties as to the amount of costs, on 24 October 2005 the Tribunal ordered that the appellant pay costs of $25,226 in respect of the Calamvale complaint and $2,942.25 in respect of the Browns Plains complaint, which was a total of $28,168.25.
  1. The appellant successfully appealed pursuant to s 217 of the Act against the decision of the Tribunal that had awarded costs against her. Her Honour, Justice Atkinson, allowed the appeal and ordered that the “…costs order should be remitted to the Tribunal to be decided in accordance with the law set out in these reasons”.[1]  The first respondent was ordered to pay the appellant’s costs of and incidental to that appeal.  The basis of that decision was that the Tribunal was obliged by s 202 of the Act, when making a costs order in default of appearance at the hearing, to consider whether the failure to appear was “without reasonable excuse”.
  1. The remitted hearing on costs was heard in the Anti-Discrimination Tribunal by Member Robert Wensley QC on 11 July 2006 and the appellant was able to address the issues as to whether she had reasonable cause in relation to her failure to appear.
  1. On 30 March 2007, the decision of the member on the costs issue was handed down whereby the appellant was ordered to pay $28,168.25 in relation to the two complaints which had been dismissed on 22 August 2005.
  1. On 23 April 2007 the appellant lodged an appeal against that decision on a number of grounds which can be summarised as follows:
  1. The decision was an improper exercise of the power conferred by the enactment under which it was purported to be made and in particular the Tribunal failed to consider the factors in s 213(3), failed to exercise the discretion as required by the Act and continually failed to appoint legal representation for the appellant and her son.
  1. There has been a breach of the rules of natural justice in relation to the making of the decision in that the appellant’s son was denied youth advocacy, the decision maker was biased and the hearings were complex, intimidating and lengthy.  In particular the appellant alleges that the tapes of the hearing before the Tribunal President were severely edited and were only received by her three weeks before the final hearing.
  1. The decision was unreasonable because the appellant is impecunious and the proceedings related to a child.  The appellant also alleges that the proceedings were complex, stressful and intimidating.  The appellant also states that the Tribunal had indicated that the costs order is only against the appellant’s juvenile son and not the appellant herself. 
  1. The appellant seeks orders that the costs order of Member Wensley QC be quashed, that the identity of the appellant and her son be suppressed, that compensation be awarded, that the Government provide extensive rehabilitation, that all unedited audiotapes and transcripts be released to the appellant, and that a report be prepared in relation to the courtroom evidence and transcripts.
  1. The appeal was heard in the Applications list on 25 May 2007 when the appellant made oral submissions based on her written submissions dated 19 May 2007. Both parties then made further written submissions within 14 days.

Statutory basis for appeal

  1. An appeal lies to the Supreme Court on a question of law. The right of appeal is set out in s 217 of the Act, ss (1) of which provides:

(1)  A party to a proceeding before the tribunal may appeal to the Supreme Court against a tribunal decision on a question of law.”

  1. Section 218 sets out the powers of the Court on an appeal:

“The Supreme Court on the hearing of an appeal may -

(a)affirm, vary or quash the order or decision appealed against; or

(b)substitute, or make, in addition, any order  or decision that should have been made in the first instance; or

(c)remit the matter to the tribunal for further hearing or consideration or for rehearing; or

(d)make any order as to costs or any other matter considers appropriate.”

Power to award costs

  1. The relevant provisions of the Act relating to costs are sections 202 and 213.

202Party fails to attend hearing

(1) If a complainant, without reasonable excuse, does not attend a hearing, the tribunal may dismiss the complaint and order the complainant to pay costs to the respondent.

(2) If a respondent, without reasonable excuse, does not attend a hearing, the tribunal may do 1 or both of the following –

(a)proceed with the hearing in the respondent’s absence;

(b)make such order as it considers appropriate, including an order that the respondent pay costs to the complainant.

(3) A party may enforce an order made under this section by filing a copy of it with a court of competent jurisdiction.

(4) The order is then enforceable as if it were an order of the court.”

“213Costs

(1) The tribunal may order a party to pay such costs as the tribunal considers reasonable.

(2) However, costs must be assessed using the scale of costs for the District Court under the Uniform Civil Procedure Rules 1999 unless the tribunal is satisfied that, because of the complexity of the matter, or because of another reason, costs should be assessed using a higher scale.

(3) In deciding whether to order a party to pay costs, the Tribunal may have regard to –

(a)the reasons for the enactment of this Act as stated in the preamble, and whether these reasons would be compromised or defeated in ordering the party to pay costs; and

(b)the fairness of a costs order, having regard to the following—

(i)whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding, including, for example, by –

  1. failing to comply with an order or direction of the tribunal without reasonable excuse; or
  2. failing to comply with this Act; or
  3. asking for an adjournment as a result of subsubparagraph (A) or (B); or
  4. causing an adjournment; or
  5. attempting to deceive another party or the tribunal; or
  6. vexatiously conducting the proceeding;

(ii)whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(iii)the relative strengths of the claims made by each of the parties;

(iv)whether a party reasonably believed there had been a contravention of this Act;

(v)the nature and complexity of the proceeding;

(vi)any other matter the tribunal considers relevant.

(4) Subsection (3) does not limit subsection (1).

Example of operation of this section--

The tribunal may consider it not to be appropriate to order costs if the subject matter involves issues of particular complexity or if the decision may establish important precedents in the interpretation or application of this Act.

The Tribunal decision on costs

  1. The Tribunal had power under s 202 of the Act to make an order for costs. Whether costs are ordered in a particular case is a matter for the exercise of discretion by the Tribunal if the complainant has failed without reasonable excuse to attend the hearing. In his reasons Member Wensley QC found that the appellant did not have reasonable excuse for failing to attend the hearing before the President of the Tribunal.
  1. In his reasons the member set out the evidence given by the appellant at the costs hearing in relation to why she had not attended the hearing on 22 August 2005. In particular he referred to the fact that the appellant relied on her request to the registrar for a tape recording of an earlier Tribunal hearing on 5 April 2005 and that without that tape she could not explain the pressures that were applied to her and her son which would explain why they did not attend at the Tribunal hearing on 22 August 2005. 
  1. In his reasons the member referred to the evidence given by the appellant in the case to this effect:[2]

“It is evident this Tribunal exists solely to defend the Government against attack or liability and not to ascertain facts of any matter in dispute. (My son) and I have been victims of administrative neglect and attempted cover-up bordering on corruption.  Our lives have been ruined by this maladministration. I have suffered severe emotional and financial distress…”

  1. In particular the appellant stated that without the tape she could not explain what had happened at the hearing and that whilst she had a transcript of the hearing, she asserted that the transcript was not correct and that information was missing.
  1. It was also alleged by the appellant at the costs hearing that she believed she had informed the Tribunal that if her application to the Federal Court against the Human Rights and Equal Opportunity Commission was not successful, they would not come back to the Anti-Discrimination Tribunal. The appellant believed she had advised the Tribunal of this fact at the hearing on 5 April 2005.
  1. The appellant also states that a further reason why she had not appeared at the final hearing was that:[3]

“…I had palpitations I was so scared of the Tribunal at that final hearing.  Not at the other hearings although very intimidating, extremely unpleasant and anxiety-producing, at that final hearing I had heart palpitations because I was just so terrified and just so humiliated.  I am a suburban mother not a suburban lawyer.”

  1. The reasons also indicated that the appellant at the costs hearing indicated that if she did come to the hearing at the Tribunal she would be forced to withdraw the complaint and that she and her son did not wish to withdraw their complaint.
  1. At the costs hearing the appellant also indicated that if she lost the case in the Federal Court she had resolved not to come back to the Tribunal for further hearings because of what had happened at the hearing and further because legal representation had been denied to her son. The appellant told Member Wensley QC that if she came back to the Tribunal she would have been pressured again, intimidated again and that she and her son would have felt abused. The appellant also agreed that she did not inform the Crown Law Office that she and her son would not be attending the final hearing.[4] 
  1. Because of the serious allegations made by the appellant in relation to the conduct of the earlier hearing on 5 April 2005 and the allegations of editing in relation to the tapes and the transcript, the member had inquiries made and obtained both the tape and the transcript and had the tape played in the hearing room. This was considered important by the member given that the appellant placed considerable emphasis on what had occurred at the previous hearing as a reason for her non-appearance at the final hearing on 22 August 2005. The member considered the appellant’s allegations that the presiding member spoke in an “…intimidatory way and in a poisonous way that gave her palpitations.”[5]
  1. In his reasons the member stated[6] that under cross-examination the complainant agreed that the tape did not convey poison in the Tribunal member’s voice and that the member’s tone on the tape sounded very different to the way she recollected it.  She agreed that what was on the tape did not convey aggression. 
  1. The member also fully examined the appellant’s allegations that there were parts missing from the tape. The member specifically turned his mind to the issue and made the following findings:[7]

“I find, therefore, that the tape recording is an accurate aural record of what occurred at the hearing on 5 April 2005, in the sense that it records both the words spoken on that occasion and also the tone, relative volume, inflection and so on, of those spoken words.”

  1. Furthermore the member found that there was nothing poisonous, intimidatory, aggressive or biased about the conduct of the presiding member on that occasion as recorded in the written transcript and as recorded in the tape recording. The member concluded that there was nothing about what happened on 5 April 2005 which objectively should have distressed, overwhelmed, intimidated or humiliated the complainant.
  1. In his reasons the member indicated that the reason why there was no appearance at the final hearing by the appellant was that the appellant and her son had made a private resolution that if the Federal Court proceedings were lost and if legal representation was not granted to them they would no longer participate in the Tribunal process.
  1. The member also found that the appellant feared, having not complied with the Tribunal’s orders as to statements and other evidence which was to be supplied, that if she appeared before the Tribunal again she would be forced to withdraw her complaints and she was unwilling to be placed in that situation. The member found that her position was that she would not withdraw the complaint and would rather have them dismissed by the Tribunal because to the appellant there was a big difference between the two alternatives.
  1. The member found that it was quite likely that the appellant genuinely felt pressured and distressed by the situation she found herself in and that she considered that this was unreasonable, particularly given that she had not been given legal representation. The member concluded however that that this was a situation of the appellant’s own making having made the complaints and pursued them for some time in the Tribunal with the hope she would be given legal representation. The member found that it was because the appellant felt overwhelmed and had not been granted legal representation that she failed to attend at the final hearing.
  1. The member concluded however that many people pursue proceedings in the Tribunal without legal representation and that they not only comply with orders made by the Tribunal but also represent themselves at the final hearing.
  1. The next question the member had to answer was whether this reason amounted to a reasonable excuse. The member put it in these terms:[8]

“That is, was it reasonable for Ms N, having failed in the Federal Court application, having failed to get legal assistance and having been put in the position of having personally to comply with the Tribunal’s directions, to have decided to do nothing more and, in effect, to force the Tribunal to dismiss the complaints, with full knowledge (as she admitted) that that would involve the respondents in having themselves comply with the Tribunal’s direction, and to prepare for the final hearing, at a cost to (ultimately) the State.  To this formulation of the question should be added the view which Ms N espoused in evidence that, in effect, the State could afford it, if it was obliged to do those things, and nobody would be the loser in that event.”

  1. In all of the circumstances the member in his reasons found that it seemed to him that in all of the circumstances there was no reasonable excuse:[9] 

“Not only have I found as a fact that the essence of the excuse offered by the complainant had no factual basis, but also I consider that the actual reason or excuse was not a reasonable one. The complainant began the proceeding or the process.  It must have been apparent to her that the allegations were serious, involving not just the State and its agencies, but individual school teachers, and that they would be seriously responded to. From the various hearings in the Tribunal and, indeed, by her own admission, she appreciated that those who she was seeking to call to account would be put to trouble and expense in seeking to understand what was levelled against them, and what relief was sought against them, and then in seeking to respond, including by way of compliance with directions of the Tribunal.  It was unreasonable, in my view, for the complainant, having decided that she would take no further part in the process, without explanation, and without any communication, to fail to attend the final hearing.”

The exercise of the discretion

  1. In his reasons the member then turned to the exercise of the discretion in s 213(3) of the Act. In coming to a decision the member took into account in particular that the appellant had conducted the proceedings in a way that unnecessarily had disadvantaged the respondents because she failed to comply with orders and directions of the Tribunal. The appellant had also been responsible for prolonging unreasonably the time taken to complete the proceeding because she had not attended the hearing and by failing to respond to correspondence from Crown Law. The member also considered that the appellant’s case was a weak one compared with the respondents’ case. Whilst the member accepted that the appellant believed there had been a contravention of the Act and that was a genuine belief, he doubted whether in all of the circumstances it was reasonable.
  1. The member also considered that it would have been a matter of simple courtesy for the appellant to let the respondents and the Tribunal know that she was not going to participate in the process anymore. In particular the respondents had no choice but to continue to participate in the process, to prepare their statements to comply with the directions of the Tribunal and to appear at the Tribunal hearing including the final hearing in ignorance of what the appellant was or was not going to do. The member considered that the fact that the appellant knew that her actions would cost the State money and had a view that it did not matter was not a reasonable or rational position to adopt.
  1. In his reasons the member states: “The complaints were brought by Ms N as complainant (referred to as such to preserve confidentiality) on behalf of her son, JN”.[10]  The order of the Tribunal on 30 March 2007 was “The complainant is to pay the sum of $28,168.25 in relation to the two complaints which were dismissed on 22 August 2005.”
  1. The member made no order as to costs in relation to the hearing before him on 11 July 2006.

The grounds of appeal

  1. Ground 1 contends in effect that the decision of the Tribunal was an improper exercise of the power conferred by the enactment under which it was purported to be made and in particular the Tribunal;

(a) failed to consider the factors in s 213(3) of the Act;

(b) failed to turn its mind to the question of its discretion to order costs;

(c) failed to exercise its discretion as required by the Act; and

(d) failed to appoint legal representation for the appellant.

  1. In deciding whether to order a party to pay costs, s 213 provides that the Tribunal may have regard to firstly the reasons for the enactment of the Act and whether those reasons would be compromised or defeated in ordering the party to pay costs. Secondly, the Tribunal may have regard to the fairness of the costs order and whether a party conducted the proceeding in a way that unnecessarily disadvantaged another party by, for example, failing to comply with an order of the Tribunal without reasonable excuse, or failing to comply with the Act. The Tribunal may also consider whether a party has been responsible for prolonging unnecessarily the time taken to complete the proceeding, the relative strengths of the claims made by each of the parties as well as the nature and complexity of the proceedings.
  1. Having considered the member’s decision and reasons for decision, I am satisfied that the reasons make it clear that the Tribunal did exercise its discretion on the question of costs and did properly take into account all the relevant factors including those in s 213(3) of the Act.  The reasons expressly refer to the Parliament’s reasons for enacting the Act which refer to the protection and preservation of the principles of dignity and equality for everyone, that everyone should be equal before and under the law and have the right to equal protection and equal benefit of the law without discrimination and that it is Parliament’s intention to make provision, by the special measures enacted by the Act, for the promotion of equality of opportunity for everyone by protecting them from certain conduct.  In that regard the member considered that that factor “weighs in the scales against the making of a costs order against the complaint”[11] because ordinarily laypeople who seek to use the provisions of the Act to challenge what they perceive to be discriminatory behaviour should not be burdened with large costs order.
  1. However having taken those factors into account the member then clearly also considered the other matters he was required to consider under the section particularly the matters relating to the way in which the proceedings were conducted, the failure to comply with orders and the prolonging of the proceedings. In specifically weighing up all these factors the member then exercised his discretion and ordered that the appellant should pay the costs of the proceedings fixed in the sum determined by the President of the Tribunal on 22 August 2005. There has not been an improper exercise of power as alleged by the appellant.
  1. In relation to the failure by the Tribunal to appoint a legal representative for the appellant’s son, it is clear that it is not the Tribunal’s function to do so and there is no right to representation before the Tribunal. There is simply no provision in the Act for a person to be provided with legal representation. Despite the fact that the appellant contends that legal representation was organised in the matter of JC on behalf of BC v State of Queensland[12] there is no duty on the Tribunal to do so and therefore the failure of the Tribunal to appoint a legal representative does not amount to an error of law.  It is clear however from the transcript that the appellant was afforded every opportunity to present the case for the complainant and there has been no breach of the rules of procedural fairness.
  1. The first ground of appeal therefore fails.
  1. Ground 2 alleges that there has been a breach of the rules of natural justice in relation to the making of the decision in that the appellant’s son was denied youth advocacy, the decision maker was biased and the hearings were complex, intimidating and lengthy. In particular the appellant alleges that the tapes of the hearing before the Tribunal President were severely edited and were only received by her three weeks before the final hearing. The appellant sets out 15 paragraphs in support of this ground, many of which are repetitive. The substance of this ground can be summarised as follows:
  • Ground 2(b):  The appellant was not heard because he was denied youth advocacy;
  • Ground 2(e): The decision maker was “overtly biased, intimidating, demeaning, condescending” and demonstrated “extreme bias in favour of the respondent”;
  • Ground 2(g): The audio tapes and transcripts of 5 April 2005 before Ms Dalton SC have been severely edited;
  • Ground 2(h): The audio tapes and transcripts of 11 July 2006 before Mr Wensley QC have been severely edited;
  • Ground 2(i): The appellant was forced to enter the witness box and to repeatedly endure aggressive cross-examination at the 11 July 2006 hearing;
  • Ground 2(k): Mr Wensley QC was overtly biased and intimidating;
  • Ground 2(1): The appellant was bullied and badgered by both bench and bar, and was forced to repeatedly testify;
  • Ground 2(m): The appellant was forced to cross-examine Ms Smeaton even though she did not want to.
  1. The submissions in relation to the failure to appoint a youth advocate have already been dealt with.
  1. At the hearing of the appeal the respondents tendered a certified copy of the transcript of the proceedings before Member Wensley QC. Pursuant to s 44 of the Evidence Act 1977 a certified copy is admissible in evidence for any purpose and s 10 of the Recording of Evidence Act 1962 provides that a transcription of a record under that Act that is certified as being a transcription “is to be received by a court … as evidence of anything recorded in the record.”
  1. Having considered the transcript, I can find no basis for the allegations made by the appellant that the member was overtly biased and intimidating. The allegations are inconsistent with what appears in the certified copy of the transcript of proceedings held before Member Wensley QC on 11 July 2006. The transcript indicates that the member showed the appellant every courtesy, was very patient and went to great lengths to ensure that she had every opportunity to present her case. For example the member stated:[13]

“From what you’ve said in your-in your statement on affirmation, there’s very little information about why you didn’t come on the 22nd…and I want to give you the maximum possible opportunity to address that issue…”

  1. The member listened to the appellant’s concerns about the editing of the audio tapes of the 5 April 2005 hearing. He expressed the appellant’s concerns in these terms:[14]

“You think that there may be some difference between the tape recording of what happened and the transcription of what happened but you don’t have any particular point in mind in that regard”

The member then made arrangements for the tapes to be obtained and played in the hearing room and a copy of the transcript was also provided to the appellant.  I consider that this indicates that the member was in fact going to great lengths to ensure that the appellant had every opportunity to present her case on 11 July 2006.  It is clear from the transcript that the member dealt in an appropriate way with the allegations made in relation to the hearing on 5 April 2005 and I can find no breach of the rules of natural justice as alleged by the appellant.

  1. The appellant has argued in this appeal that the audiotapes and transcript of 11 July 2006 have been edited and are not an accurate record and again argues that the audiotape and transcript of the hearings on 5 April 2005 have been edited and are not an accurate record.  In support of this allegation the appellant played parts of the audiotape of 5 April 2005 and submitted:[15]

“…this tape, it’s of such poor quality because it’s been chopped and changed so many times, that’s why the echoes are there.  This is nothing like what my son and I endured and my son will give testimony to that.  This is nothing like what we endured”.

  1. The appellant’s submission, as I understand it, is that the occasions when she alleges she was bullied, badgered and intimidated on both 5 April 2005 and 11 July 2006 have been “severely edited”[16] out of the audiotapes and therefore do not appear on the transcript.  The only basis for this allegation would appear to be that the appellant considers that there are ‘echoes’ on the tape and that this therefore equates with tampering with the tape in some way. 
  1. I have listened to the audiotape of 5 April 2005 and I can find no irregularities and no basis for the appellant’s allegations that the audiotapes were severely edited. I do not consider either of the allegations of the appellant in relation to the audiotapes and the transcripts are made out by any evidence before me. The certified copy of the transcript is the evidence of what was recorded on those two occasions. I can see no basis for acceding the appellant’s request that the tapes “be independently analysed by an independent specialist, because there is no doubt they have been severely edited”.[17] 
  1. As previously indicated the member dealt with the issues raised in relation to the accuracy of the recording of the hearing in an appropriate way and I do not consider that there is any evidence to indicate an breach of the rules of natural justice in the way these allegations were dealt with or the manner in which they were dealt with.
  1. Furthermore, an analysis of the transcript does not reveal any evidence of the member being biased, intimidating, demeaning or condescending. In fact the record shows that a great deal of consideration was given to the appellant.[18] The member also ensured that the appellant had a full opportunity to put her version of events and explained to her that if she wished to challenge a witness’s version of events then those matters needed to be put to the witness.[19] Rather than being forced to cross examine Ms Smeaton the member in fact said to the appellant,[20] “Yes Mrs N, its now your opportunity to ask questions and can I just, for your assistance….”
  1. The appellant alleges that there have been breaches of various United Nations Conventions in the way in which the hearing was conducted. I can find no evidence of any such breaches. Furthermore the appellant had every opportunity to call whatever witnesses she required in relation to the issue of costs and whether she had a reasonable excuse but she did not do so.
  1. The appellant is correct however when she states that the hearing was long and arduous. It would appear that the hearing commenced at 10am and did not conclude until 5.43 pm. There was however a break from 11.25 am until 12.15 pm and there was then a further forty-nine minute break from 1.34 pm until 2.25 pm. The last session did however continue for some three and a quarter hours which was onerous on all parties. A normal hearing day in a Court or Tribunal excluding breaks lasts for approximately five hours. In this case the actual hearing excluding breaks lasted some six hours. In essence therefore the hearing on the day was in the order of an hour longer than a usual hearing day. This was however required to allow procedural fairness to both sides and was due in a large part to the appellant’s constant interruptions which the member handled in a very patient manner.[21] A hearing day which is an hour longer than normal is not unusual. I do not consider adopting a longer than usual sitting day was a breach of the rules of natural justice. 
  1. It is also clear that the hearing on the day was not conducted with any undue formality or technicality and the member went to great lengths to ensure that the appellant understood the proceedings. The member also ensured that the counsel for the respondents made allowances for the fact that the appellant was a “lay opponent” and stated “I’m not going to impose anything other than an appropriate burden on her”.[22]
  1. I do not consider that the appellant has shown that there was any breach of the rules of natural justice. Ground two must therefore fail.
  1. Ground 3 alleges that the decision was unreasonable, and includes the following allegations in support of it:
  • Ground 3(a): The appellant is known to be impecunious, resulting in the costs order operating unfairly and oppressively against the appellant.
  • Ground 3(i): The appellant and complainant were badgered during a marathon 7½ hour hearing despite repeatedly asking for an adjournment; Mr Wensley QC denied them any break after lunch recess.
  • Ground 3 (l): The Tribunal had previously clarified that the costs order is only against the appellant’s juvenile son and not his mother (the appellant) as the decision maker’s judgment claims.
  • Ground 3(m): The appellant was attacked from the bench and from the Crown Law Barrister for hours on end.
  • Ground 3 (n): “By selectively deleting court room conversation and many of the intimidating questions and statements and many of her answers it was possible to completely distort the nature of proceedings and render a Judgment making things appear different from the reality experienced by her and witnessed by her son, her two witnesses and the rest of the court room.”
  1. The third ground that the member acted unreasonably in many ways repeats the allegations contained in ground 2. Once again, having considered the transcript I am not satisfied that there is any substance to the allegations in relation to set out above. The allegations are not supported by a review of the tapes or the transcript.
  1. The appellant also essentially contends that the member made an error of law in making the costs order against her and not her son. The appellant also states she had “clarification” from the Tribunal that the costs order was against her son and not her personally. The appellant provides no evidence in support of this specific allegation of clarification.
  1. The order of 30 March 2007 clearly orders the complainant to pay costs in the sum of $28,168.25. The expression the “complainant” is defined in the Schedule to the Act to relevantly mean “the person who is the subject of the alleged contravention of the Act” and s 134(1) of the Act then provides that a number of people may make a complaint and that includes an agent or the person or a person authorised by the Commissioner to act on behalf of the person who was subjected to the alleged contravention.
  1. Counsel for the respondents has referred me to correspondence that indicates that such authorisation was in fact given for the appellant to act. In addition, the member’s reasons make it very clear that “the complaints were brought by Ms N as complainant”[23] and that the costs order is indeed against the appellant and not her son.
  1. The function of a person who is authorised to act under s 134(1)(c) is the same as that of a litigation guardian or next friend and it enables proceedings to be brought on behalf of a person who does not have capacity but it also means that that person is liable for costs.[24]  As Sackville J stated in NSW Insurance Ministerial Corporation v Abualfoul:[25]

One reason for requiring an infant plaintiff to sue by a next friend was so that there would be a person answerable to the defendant for the costs of the litigation, although the defendant could waive this benefit: Daniell's Chancery Practice, p 116; Ex parte Davis (1901) 1 SR (NSW) 187 at 189. The next friend was liable for all costs incurred in the actions brought by the infant, until the infant attained his or her majority: Bligh v Tredgett (1851) 5 De G & SM 74; 64 ER 1024; Simpson on the Law of Infants (3rd ed, 1909), p 391. The next friend could be attached for the non-payment of the costs of an action in which the defendant obtained a verdict: Radford v Cavanagh (1899) 15 WN (NSW) 226.”

  1. The member clearly identified the appropriate party and made the appropriate order having come to the conclusion that the complainant had failed to appear “without reasonable excuse”.

Conclusion

  1. The High Court in Craig v The State of South Australia[26] examined what constitutes an error of law and stated:[27]

“In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court.”

  1. Having considered the appellant’s grounds of appeal in this matter, I am not satisfied that the appellant has made out any error of law on the part of the decision maker. The member correctly identified the issues and the evidence and then made a determination on the question of costs. There has been no breach of the rules of natural justice.
  1. The appellant has really sought in this application to reargue the merits of the factual determination by Member Wensley QC that she had no reasonable cause for failing to attend the final hearing and the merits of his exercise of discretion on the questions of costs. I am not satisfied that the appellant has been able to demonstrate that the member has made any error of law.
  1. In all of the circumstances therefore, I am satisfied that the appeal should be dismissed.
  1. Accordingly the appropriate orders are:

1. That the appeal should be dismissed.

2. That the decision of the Tribunal dated 30 March 2007 be affirmed.

Footnotes

[1] N v State of Queensland & Anor [2006] QSC 062 at [10].

[2] N on behalf of N v State of Queensland (No 2) [2007] QADT 12 at [19].

[3] N on behalf of N v State of Queensland (No 2) [2007] QADT 12 at [23].

[4] Transcript of Proceedings, Anti-Discrimination Tribunal, 11 July 2006, p 85.

[5] N on behalf of N v State of Queensland (No 2) [2007] QADT 12 at [33].

[6] N on behalf of N v State of Queensland (No 2) [2007] QADT 12 at [35].

[7] N on behalf of N v State of Queensland (No 2) [2007] QADT 12 at [57].

[8] N on behalf of N v State of Queensland (No 2) [2007] QADT 12 at [63].

[9] N on behalf of N v State of Queensland (No 2) [2007] QADT 12 at [64].

[10] N on behalf of N v State of Queensland (No 2) [2007] QADT 12 at [3].

[11] N on behalf of N v State of Queensland (No 2) [2007] QADT 12 at [70].

[12] [2006] QADT 27.

[13] Transcript of Proceedings, Anti-Discrimination Tribunal, 11 July 2006, p 9, l 48.

[14] Transcript of Proceedings, Anti-Discrimination Tribunal, 11 July 2006, p 13, l 23.

[15] Transcript of Proceedings, Supreme Court, 25 May 2007, p 21, l 5.

[16] Transcript of Proceedings, Supreme Court, 25 May 2007, p 21, l 32.

[17] Transcript of Proceedings, Supreme Court, 25 May 2007, p 21, ll 30-31.

[18] Transcript of Proceedings, Anti-Discrimination Tribunal, 11 July 2006, p 75, l 18; p 105, ll 20-30; pp 121-124.

[19] Transcript of Proceedings, Anti-Discrimination Tribunal, 11 July 2006, p 67.

[20] Transcript of Proceedings, Anti-Discrimination Tribunal, 11 July 2006, p 67.

[21] Transcript of Proceedings, Anti-Discrimination Tribunal, 11 July 2006, p 69.

[22] Transcript of Proceedings, Anti-Discrimination Tribunal, 11 July 2006, p105, l 26.

[23] N on behalf of N v State of Queensland (No 2) [2007] QADT 12 at [3].

[24] See Dey v Victorian Railways Commissioners (1949) 78 CLR 62.

[25] [1999] FCA 43 at [27]-[29].

[26] [1995] HCA 58. 

[27] [1995] HCA 58 at [15].

Close

Editorial Notes

  • Published Case Name:

    N (on behalf of her son) v State of Qld (Acting through the Dept of Education and the Arts)

  • Shortened Case Name:

    N v State of Qld

  • MNC:

    [2007] QSC 208

  • Court:

    QSC

  • Judge(s):

    Lyons J

  • Date:

    02 Aug 2007

Litigation History

No Litigation History

Appeal Status

No Status