Harrison v Terra Search Pty Ltd
[2015] QCAT 167
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- Unreported Judgment
- Harrison v Terra Search Pty Ltd[2015] QCAT 167
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Harrison v Terra Search Pty Ltd[2015] QCAT 167
Harrison v Terra Search Pty Ltd[2015] QCAT 167
CITATION: | Harrison v Terra Search Pty Ltd & Beams [2015] QCAT 167 |
PARTIES: | Esther Aimee Harrison (Applicant) |
v | |
Terra Search Pty Ltd (First Respondent) Simon Beams (Second Respondent) |
APPLICATION NUMBER: | ADL096 – 12 |
MATTER TYPE: | Anti-discrimination matters |
HEARING DATE: | 16 October 2014 with subsequent written submissions in relation to costs |
HEARD AT: | Townsville |
DECISION OF: | Member Johnston |
DELIVERED ON: | 8 April 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | COSTS - Anti-discrimination Act - JURISDICTION Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 Oshlack v Richmond River Council (1998) 193 CLR 72 Queensland Building Services Authority v Johnston [2011] QCATA 265 Velvet Glove Holdings Pty Ltd [2011] QCA 312 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Background
- [1]The Applicant was employed by the First Respondent.
- [2]The Applicant made allegations that she had been discriminated against.
- [3]The Applicant commenced proceedings by way of application to be Anti-Discrimination Commission of Queensland on 16 June 2012.
- [4]The proceedings were referred to the Queensland Civil and Administrative Tribunal (the Tribunal) on 14 November 2012.
- [5]The Applicant’s application was dismissed on 16 October 2014 when the Applicant failed to appear for the hearing of the matter.
- [6]The Respondents seek their costs incurred in defending the Application pursuant to section 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).
Entitlement to costs
- [7]The Respondents seek that costs be ordered and if granted that they be on a standard basis and not an indemnity basis.
- [8]It is material to the application for costs that the matter had not been commenced before QCAT commenced on 1 December 2009.
- [9]Section 100 of the QCAT Act provides that “other than as provided under the QCAT Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.”
- [10]The proceeding arises out of an Anti-Discrimination complaint.
- [11]Deputy President Kingham, in Lyons v Dreamstarter Pty Ltd [2010] QCAT 447 (14 September 2010) stated that the jurisdiction to award costs “allows the Tribunal to make an order as to costs that is justified in the circumstances. It is a broad general discretion which must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with to leading up to the litigation.”
- [12]The QCAT cost provisions (Ch. 2, Pt. 6, Div. 6) commence with s 100 which, on its face, indicates a plain intention that costs orders will not be an integral feature of QCAT’s operations:
‘other than as provided under this Act or an Enabling Act, each party to a proceeding must bear the party’s own costs for that proceeding’.
- [13]However, under s 102 the Tribunal may make an order for costs ‘…if the Tribunal considers the interests of justice require it to make the order’: s 102(1). Under s 102(3) in deciding whether to award costs the Tribunal may have regard to certain matters including:
- Whether a party in a proceedings is acting in a way that unnecessarily disadvantages the other party;
- The nature and complexity of the dispute;
- The relative strengths of the claims made by each party;
- The financial circumstances of the parties;
- Anything else the Tribunal considers relevant.
- [14]As the QCAT Appeal Tribunal has observed about these provisions, 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’ points. They must be such to be so compellingly to a costs order that they overcome the strong contra-indication against costs orders contained in s 100 as per Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at paragraph [29].
Submissions
Applicant’s submissions
- [15]The Applicant has not provided any submissions to the Tribunal in relation to the issue of legal costs.
Respondent’s submissions
- [16]Terra Search Pty Ltd and Mr Simon Beams seek an order that the Applicant pay their costs of the proceedings on the basis that they were the successful party and that, on a proper interpretation of section 100 and section 102 of the Act, the Tribunal should exercise its discretion in favour of the successful party.
- [17]It is submitted that it is appropriate that the Tribunal make in order for costs in favour of the first and second respondents because the interests of justice require such an order to be made based on the following factors:
- the Applicant failed to prosecute her case and the application was struck out;
- the Applicant failed to act expeditiously and generated excessive delay throughout the proceedings
- the Applicant demonstrated a blatant disregard for the process and directions of the Tribunal on numerous occasions by not adhering to filing deadlines or replying to correspondence issued by the Tribunal;
- there is nothing in the manner in which the respondents conducted the case which suggests that they did not do so in a manner which was just and sought an expeditious resolution of the proceedings;
- the complexity of the issues involved justified engagement of legal advice to assist the respondents in preparing their defence and submissions; and
- by failing to act expeditiously and by not adhering to the directions of the Tribunal, the Applicant acted in such a way as to unnecessarily disadvantage the respondents.
- [18]Having regard to all the circumstances, the respondents’ submit that they have displaced the statutory presumption established by section 100 of the Act that the parties ought to bear their own costs.
- [19]The interests of justice in this case require that the Applicant pay the first and second respondents’ costs as compensation for funds expended on account of defending the wholly unsuccessful proceedings and arising out of the excessive delay the respondents were subject to throughout the proceedings.
Submissions on behalf of the third respondent
- [20]Mr Travers Davies seeks to be awarded costs of the proceedings up to and including 16 April 2014 when he was removed as a party to the application.
- [21]It is submitted by the third respondent that it is appropriate that the Tribunal make an order for costs in his favour because the interests of justice require such an order to be made based on the following factors:
- the applicant failed to prosecute the case and the third respondent was removed from the proceedings on 16 April 2014;
- In submissions filed by the Applicant in response to the third-party strikeout application (undated but received 3 September 2013), the Applicant acknowledged that the third respondent “was not directly involved in the case”. The third respondent submits that he never should have been included as a respondent to the proceedings;
- the applicant failed to act expeditiously and generated excessive delay throughout the proceedings;
- the applicant demonstrated a blatant disregard for the processes and directions of the tribunal on numerous occasions by not adhering to filing deadlines or replying to correspondence issued by the Tribunal;
- there is nothing in the manner in which the third-respondent conducted the case which suggests that he did not so in a manner which was just and sought an expeditious resolution of the proceedings;
- the complexity of the issues involved justified engagement of legal advice to assist the third-party in preparing his defence and submissions; and
- by failing to act expeditiously and by not adhering to the directions of the Tribunal, the Applicant acted in a way as to unnecessarily disadvantage the third respondent.
- [22]Having regard to all circumstances, the respondent has displaced the statutory presumption established by section 100 of the Act that the parties ought to bear their own costs.
- [23]The interests of justice in this case require that the Applicant pay the third respondent's costs up to and including 16 April 2014, as compensation for funds expended on account of defending the wholly unsuccessful proceedings and arising out of the excessive delay the third respondent was subject to throughout the proceedings.
Conclusion
- [24]Where a party seeks to use the Tribunal to pursue their application they must do so diligently and in accordance with the directions of the Tribunal
- [25]What is clear is that the Applicant did not prosecute her action diligently and in accordance with the directions of the Tribunal.
- [26]The Applicant has not been able to bring her application to a hearing so that the merits of her case could not be tested.
- [27]The Tribunal accepts the submissions of the first and second respondents and the submissions of the third respondent in relation to the interests of justice. The Respondents have set out in their material details of the Applicant’s inability to comply with the requirements of the Tribunal.
- [28]The Tribunal notes that this was the second occasion that this matter was listed for hearing. The Applicant knew that the matter was listed for hearing and refused to attend.
- [29]The Tribunal notes that this is the second occasion where the first and second Respondents have prepared for a hearing only to find that the Applicant is not ready to proceed.
- [30]The Respondents have clearly been put to significant costs because of the way in this matter has been conducted
- [31]The Tribunal would like to make it quite clear that in awarding costs it has not done so simply because the Applicant's case was dismissed. There are several factors that the Tribunal has accepted that place this matter within the interests of justice for costs to be awarded.
- [32]In relation to Mr Travers Davies, the Respondent submits that costs should be awarded up to and including 16 April 2014 the date he was removed as a party to the application. The Tribunal infers from this action that the Applicant had no case against Mr Davies, that he was wrongly added as a party to the Application. The Tribunal is satisfied that this was clearly unfair on Mr Travers. This is an appropriate factor to consider in the interests of justice.
- [33]The Tribunal is satisfied in the circumstances that it was in the interests of justice for cost orders to be made against the Applicant.
Findings
- [34]The Tribunal finds that:
- the matter was complex
- the Respondents were granted legal representation which occurred both at the proposed hearings in Townsville and throughout the preparation of the matters
- the applicant did not appear at the hearing
- the applicant did not make any submissions in relation to costs
- the Applicant has placed the Respondents in a position that it has been necessary for the respondents to incur significant legal costs
- the Applicant has acted in a way that unreasonably disadvantaged the Respondents by requiring the Respondents to prepare for trial on two occasions and then not being willing to proceed
- the Respondents have demonstrated that it is an appropriate case in the interests of justice for costs against the applicant
- the District Court Scale of costs on a standard basis Is appropriate under the circumstances
- [35]The cases require that if a successful party is to be deprived of their costs there must be very good reasons why it is just do so.
- [36]McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 at paragraph 69 explains the position as follows:
“… Subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or defendant… The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party, the successful party would not have incurred the expense which it did. As between the parties, fairness dictates the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation… The traditional exceptions to the usual order as to costs focus on conduct of the successful party which disentitles it to the beneficial exercise of discretion… A court might properly depart from the usual order as to costs and successful party its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes a matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in a settlement of the dispute… There are few, if any, exceptions to the usual order as to costs outside the area of disentitling conduct.”
- [37]Given the failure of the Applicant to attend the hearing or provide submissions to the Tribunal in relation to costs the Tribunal cannot find any special circumstances which would justify a different order to an order that the Applicant to pay the Respondents costs of defending the Application.