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- Unreported Judgment
Stone v Brisbane City Council QCAT 213
Stone & Spelta v Brisbane City Council  QCAT 213
David Stone and Joseph Spelta
Brisbane City Council
On the papers
Member Ann Fitzpatrick
6 July 2016
Each party bear their own costs of the proceedings.
Anti-Discrimination Matters - costs – interests of justice
Queensland Civil and Administrative Tribunal Act 2009 (Qld) Ss 100, 102, 105, Rule 86
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)  QCAT 412.
APPEARANCES and REPRESENTATION (if any):
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).
represented by Mr Anthony Harding of Counsel instructed by Mr Paul Gerard Jeffery, Solicitor of Barry Nilsson, Lawyers
REASONS FOR DECISION
- By decision of this Tribunal, the applications were dismissed. The parties subsequently filed submissions in relation to costs.
- The respondent submits that the applicants should pay its costs of the proceedings. The sum of $30,994.32 is sought from Mr Stone and the sum of $29,623.72 is sought from Mr Spelta. No basis for the calculation of these costs has been provided by the respondent other than to say that those costs have been incurred.
- The respondent submits that it is in the interests of justice that such an award of costs be made, pursuant to s 100 and s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the Act).
- The respondent submits that because the dispute was substantial and complex and because the applicants’ case was weak, the Tribunal should take these factors into account in the exercise of its discretion pursuant to s 102 of the Act to award costs in the interests of justice.
- The applicants submit that the claim was not vexatious and that there was merit in the claim, as it was accepted by the Tribunal. In this regard, I assume the applicants are referring to the Anti-Discrimination Commission, which has the power to reject a complaint if it appears to be without merit.
- The applicants have attempted to raise further evidence in relation to one of the issues at the hearing, by reference to a statutory declaration from Mr Terence McAuley, attached to their submissions. As the hearing of this matter has concluded I am unable to give consideration to the statutory declaration. It is a matter which could have been raised at the hearing.
- Finally, the applicants submit that they attempted to settle the matter on several occasions so as to avoid all parties incurring unnecessary costs. No evidence of the offers of settlement is given in the submissions. No submissions are made that section 105 of the Act is engaged. No submissions are made pursuant to Rule 86 of the Queensland Civil and Administrative Tribunal Rules, that the decision of the Tribunal is not more favourable to the respondent than any offer of settlement made by the applicants.
- The respondents filed submissions in reply in which they disputed receiving offers of settlement other than without prejudice offers at the compulsory conference held in these proceedings, a “without prejudice” offer made on 21 April, 2015 and a “without prejudice (except as to costs)” offer made on 31 March, 2015. A copy of the 31 March, 2015 offer is attached to the submissions. The offer is that in addition to other conditions, the respondent pay each applicant the sum of $27,000.00. That offer is not more favourable to the respondent than the decision of the Tribunal.
- I find that there is no basis for a consideration of costs by reference to section 105 of the Act or Rule 86.
- Section 100 of the Act provides that other than as provided under the Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding. The Tribunal has found in considering claims for costs based on the “interests of justice” ground that the relevant factors must “point so compellingly to a costs award that they overcome the strong contra-indicator against costs orders in section 100”.
- Section 102 of the Act 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. The Tribunal may have regard to a number of factors listed in s 102(3) of the Act.
- With respect to those factors, there is no evidence that the applicants have acted in a way that unnecessarily disadvantages the respondent.
- The nature and complexity of the dispute is relevant. I agree with the respondent that there is a degree of complexity associated with Anti-Discrimination claims, which require legal knowledge to interpret the statute. I agree that many witnesses were relevant to the facts in dispute and note that the matter proceeded over the course of two days. I agree that legal representation was justified, although I do not think it was essential to protect the interests of the respondent. In my view, there is nothing in this case which marks it as different to the very many cases heard in the Tribunal, which the legislature intended to be conducted on the basis that each party bear their own costs. It is a matter of degree and in the exercise of my discretion I do not think the nature of this case points so compellingly to a costs award, that it overcomes the principle set out in s 100 of the Act. I do not consider this factor justifies a costs order.
- It is relevant to consider whether the applicants’ cases were so weak that the respondent should not have been put to the expense of defending the claim. I agree with the applicants that at least at the Anti-Discrimination Commission stage the claims were thought to be not completely without merit. It is possible that through cross-examination of the respondent’s witnesses that the applicants could have established a direct link between termination of their employment and their trade union activity. It was not unreasonable to test the witnesses, even though they did not succeed. Although there were a number of relevant facts that were beyond doubt, there were some disputed questions of fact, which the applicants were entitled to raise, on their version of events. I do not think the cases were so weak that a costs order is justified.
- There is no other factor relevant to the exercise of my discretion, which has been raised for my consideration. In particular, no submissions or evidence have been given in relation to the financial circumstances of the parties.
- I reject the respondent’s submissions and decline to make any order for costs in its favour. I order that each party bear their own costs of the proceedings.
 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)  QCAT 412.
- Published Case Name:
Stone & Spelta v Brisbane City Council
- Shortened Case Name:
Stone v Brisbane City Council
 QCAT 213
06 Jul 2016