Dovedeen Pty Ltd v GK[2013] QCA 194

SUPREME COURT OF QUEENSLAND

[1] FRASER JA:  The court earlier granted leave to appeal to the appellants and allowed their appeal: Dovedeen Pty Ltd & Anor v GK [2013] QCA 116.  That appeal was brought against a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal setting aside a first instance decision in the Tribunal which had rejected the respondent’s complaint of discrimination.  It was ordered that GK’s appeal to the Appeal Tribunal instead be dismissed and the parties were given leave to make written submissions about costs.  The appellants seek an order that the respondent pay the appellants’ costs in the Court of Appeal and in the Appeal Tribunal.

[2] As to the costs in the Court of Appeal, the respondent submits that an order for costs against an unsuccessful party is not always appropriate in the context of discrimination complaints.  The power to order costs of an appeal is discretionary,[1] but the respondent did not point to any ground justifying departure from the usual approach that costs of the appeal follow the event.  The appellants should have the costs of their successful appeal to the Court of Appeal.

[3] As to the costs in the Appeal Tribunal, s 100 of the Queensland Civil and Administrative Tribunal Act 2009 provides that “[o]ther 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.”  The appellants submit that a successful appellant is usually awarded costs both in the appellate court and in the court below, but s 100 precludes any such general approach in the case of an appeal within the Tribunal.  The provision which the appellant submitted might justify departure from the general rule in s 100 was s 102 of the same Act.  Section 102(1) provides that 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.”  Section 102(3) lists circumstances to which the Tribunal may have regard:

“(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);

(b)the nature and complexity of the dispute the subject of the proceeding;

(c)the relative strengths of the claims made by each of the parties to the proceeding;

(d)for a proceeding for the review of a reviewable decision—

(i)whether the applicant was afforded natural justice by the decision-maker for the decision; and

(ii)whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;

(e)the financial circumstances of the parties to the proceeding;

(f)anything else the tribunal considers relevant.”

[4] The appellants submit that this was an appropriate case for an exception to the usual approach that each party bears its own costs to the Tribunal for these reasons:

(a) The appellants succeeded in their appeal to the Court of Appeal upon the grounds which they argued. This demonstrates that the appellants should be regarded as the successful parties for the purpose of the costs discretion. It does not otherwise substantially advance the case for departing from the general rule under s 100 that each party to a proceeding in the Tribunal must bear the party’s own costs.

(b) The matter involved complex questions of law. This was submitted to be acknowledged by the respondent’s successful application for leave to be legally represented in the Appeal Tribunal. I accept that the cause should be regarded as complex for present purposes.

[5] My judgment is that in all of the circumstances there is sufficient ground for departing from the usual rule under s 100 that parties to proceedings in the Tribunal bear their own costs.  I would order that the respondent pay the appellants’ costs of the appeal to the Appeal Tribunal of the Queensland Civil and Administrative Tribunal.

[6] In the event that the respondent is ordered to pay any of the appellants’ costs either in the appeal to the Court of Appeal or in the internal appeal within the Tribunal, the respondent has applied for an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973.  That section provides:

“(1)Where an appeal against the decision of a court—

(a)to the Supreme Court;

(b)to the High Court of Australia from a decision of the Supreme Court;

on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.

(2)Where an appeal against the decision of a court to the District Court on a question of law succeeds, the District Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.”

[7] The appeal to the Court of Appeal succeeded on a question of law, the Court adopting a construction of the relevant provisions of the Anti-Discrimination Act 1991 which was consistent with that which was propounded by the appellants at all stages in the Tribunal.  There is no suggestion that the respondent’s opposition to that construction in the Tribunal or in the appeal to the Court of Appeal was unreasonable, even though the last appeal succeeded, or that she conducted her case in any unreasonable or inefficient manner.  In these circumstances it is appropriate to grant the respondent an indemnity certificate in respect of the appeal to the Court of Appeal.

[8] As to the respondent’s application for an indemnity certificate in relation to the appellants’ costs it might be ordered to pay in the Appeal Tribunal, it is not difficult to accept the respondent’s submission that the Queensland Civil and Administrative Tribunal is a “court” for the purpose of s 15(1).  That term is defined in s 4 of the Appeal Costs Fund Act 1973 to include “any board, other body or person from whose decision there is an appeal to a superior court on a question of law or which may state a case for the opinion or determination of a superior court on a question of law or reserve any question of law in the form of a special case for the opinion of a superior court”.  The Appeal Tribunal plainly falls within that definition.[2]  The appellants should now be regarded as having succeeded in the Appeal Tribunal on a question of law.  However s 15(1) empowers the grant of an indemnity certificate only “in respect of the appeal”, meaning an appeal to the Supreme Court, or to the High Court of Australia from a decision of the Supreme Court.  The Court of Appeal is of course a division of the Supreme Court and is thus comprehended within s 15(1).  The presently relevant point is that there is no power to grant an indemnity certificate in respect of an appeal to the Appeal Tribunal of the Queensland Civil and Administrative Appeal Tribunal.

[9] However an indemnity certificate in respect of the appeal to the Court of Appeal would appear to comprehend the costs incurred in the Tribunal.  I express this in tentative terms because the respondent’s application did not advert to the relevant provisions and the Court heard only from the respondent.

[10] Section 16(1) of the Appeal Costs Fund Act 1973 relevantly provides:

“(1)Subject to this Act, where a respondent to an appeal has been granted an indemnity certificate under section 15, the certificate shall entitle the respondent to be paid from the fund—

(a)where the respondent has been ordered to pay the appellant’s costs an amount equal to the appellant’s costs (if any)—

(i)of the appeal in respect of which the certificate was granted; and

…

(iii) where that appeal is an appeal in a sequence of  appeals, of any appeal in the sequence that preceded the appeal in respect of which the certificate was granted;

as assessed or agreed upon by—

(iv)the board; and

(v)the respondent or the respondent’s solicitor; and

(vi)the appellant or the appellant’s solicitor;

and actually paid by or on behalf of the respondent; and

(b)an amount equal to the respondent’s costs—

(i)of the appeal in respect of which the certificate was granted; and

…

(iii)where that appeal is an appeal in a sequence of appeals, of any appeal in the sequence that preceded the appeal in respect of which the certificate was granted;

as assessed or agreed upon by the board and the respondent or the respondent’s solicitor and not ordered to be paid by any other party; and

(c)where the costs referred to in paragraph (b) are assessed at the instance of the respondent, an amount equal to the costs incurred by the respondent or on the respondent’s behalf in having those costs assessed.”

[11] Applying those provisions to the present case, the internal appeal within the Queensland Civil and Administrative Tribunal apparently falls within the inclusive definition of “appeal” in s 4 of the Appeal Costs Fund Act 1973 as “an order to review, a case stated for the opinion or determination of a superior court on a question of law, a question of law reserved in the form of a special case for the opinion of a superior court, a motion for a new trial and any other proceeding in the nature of an appeal”.  The appeal to the Appeal Tribunal then could be regarded as the first appeal in a “sequence of appeals”, an expression which is defined in s 4 to mean “a sequence of appeals in which each appeal that follows next after another appeal in the sequence is an appeal against the decision in that other appeal.”  Accordingly, it appears that the grant of an indemnity certificate in respect of the appeal to the Court of Appeal in this matter carries with it an entitlement in the respondent to the prescribed payments from the fund up to a maximum total amount of $15,000[3] in relation to:

(a) any costs of the appeal to the Court of Appeal which the respondent is ordered to pay to the appellants (s 16(1)(a)(i));

(b) any costs of the appeal to the Appeal Tribunal which the respondent is ordered to pay to the appellants (s 16(1)(a)(iii));

(c) the respondent’s own costs of resisting the appeal to the Court of Appeal (s 16(1)(b)(i)); and

(d) the respondent’s own costs of the appeal to the Appeal Tribunal (s 16(1)(b)(iii)).

[12] That seems to result from the provisions I have mentioned even though various machinery provisions in the same Act refer to the Supreme Court, the District Court, and the Magistrates Court,[4] there is no mention in the Act of the Queensland Civil and Administrative Tribunal, and no indemnity certificate could be ordered by that tribunal or any court in respect of proceedings which terminated in the Appeal Tribunal.  However, for the reasons already mentioned I would refrain from reaching any final conclusions on this topic.

Proposed order

[13] In my opinion the appropriate orders are:

1. The respondent is to pay the appellants’ costs of the appeal to the Appeal Tribunal of the Queensland Civil and Administrative Tribunal and of the appeal to the Court of Appeal.

2. The respondent is granted an indemnity certificate in respect of the appeal to the Court of Appeal.

[14] GOTTERSON JA: I agree with the further orders proposed by Fraser JA and with the reasons given by his Honour.

[15] MARGARET WILSON J: I agree with the costs orders proposed by Fraser JA, and with his Honour’s reasons for judgment, subject to the following observations.

[16] The respondent points to some dilatoriness on the appellants’ part in complying with the procedural requirements of the Court of Appeal proceedings.[5]  In my view that is not a sufficient basis to deprive the appellants of an order for their costs of that appeal.  Whether the quantum of those costs was unnecessarily inflated by that dilatoriness is a matter for resolution on the costs assessment.

[17] I take the same view in relation to any dilatoriness on the present appellants’ part in the Appeal Tribunal of the Queensland Civil and Administrative Tribunal.[6]

[18] For the reasons given by Fraser JA, the respondent should be granted an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 in respect of the appeal to the Court of Appeal.

[19] His Honour has made observations about the scope of the indemnity certificate without expressing a final conclusion.  My preliminary view is that an “appeal” within s 4 of the Appeal Costs Fund Act is a proceeding in a superior court.  If this is correct, then the appeal to the Appeal Tribunal was not an “appeal” within s 4, and it was not “an appeal in a sequence of appeals” within the meaning of s 15.  It would follow that the indemnity would not include indemnity in relation to any of the costs of the appeal to the Appeal Tribunal which the respondent is ordered to pay the appellants.  However, I reserve my position on that question.