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BB v State of Queensland (No 2)[2021] QCAT 148

BB v State of Queensland (No 2)[2021] QCAT 148

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

BB v State of Queensland & Ors (No 2) [2021] QCAT 148

PARTIES:

BB ON BEHALF OF RB

(applicant)

v

STATE OF QUEENSLAND

(respondent)

GD

(respondent)

MD

(respondent)

APPLICATION NO/S:

ADL017-19

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

19 April 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDER:

Each party pays their own costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD  GENERALLY – GENERALLY – where strong contra – indicator against costs – where interests of justice do not require costs order – where complaint not without substance and at least arguable – where effect of a costs order would be to impose a considerable impost on pursuing redress for an arguable case of alleged breach of human rights – where costs provisions construed beneficially to give full effect to objects and purposes of the Anti – Discrimination Act 1991 (Qld) – where key to Respondents’ success was findings of fact from preferring their evidence – where not unreasonable to test this evidence at hearing

Anti-Discrimination Act 1991 (Qld), s 6, s 191

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48, s 66, s 100, s 102, s 103, s 105

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

Alexander v State of Queensland & Anor [2016] QCAT 142

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364

BB on Behalf of RB v State of Queensland & Ors [2020] QCAT 496

Carey v Cairns Regional Council & Ors (No. 2) [2011] QCAT 372

Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226

Harrison v Terra Search Ltd & Ors [2014] QCAT 128

McKinnon v State of Queensland and Anor (No 2) [2012] QCAT 566

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

Simonova v State of Queensland [2021] QCAT 45

Tracey v Olinderidge Pty Ltd & Anor [2015] QCAT 7

Virgtel Ltd & Anor v Zabusky & Ors [2008] QSC 213

Yeo v Brisbane Polo Club Inc. [2013] QCAT 261

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

S Hamlyn-Harris instructed by Crown Law

REASONS FOR DECISION

  1. [1]
    On 17 December 2020, the Tribunal dismissed BB’s application that a School’s treatment of his student son discriminated against him. Although the Respondents submitted that BB should pay their costs,[1] the Tribunal has decided not to depart from the strong contra-indicator against awarding costs.[2]  
  1. [2]
    The Tribunal accepts that BB is a ‘party’ for the purposes of awarding costs.[3] However, the Tribunal does not consider that the interests of justice[4] require a costs order. A person seeking relief for an alleged breach of human rights should be afforded a reasonable opportunity to have their case heard and determined according to law.[5] BB’s complaint was not without substance[6] and was at least arguable.[7]
  1. [3]
    The effect of a costs order against BB would be to impose a considerable impost on pursuing redress for an arguable case of alleged breach of human rights. While unmeritorious claims should be discouraged due to the costs on the parties and the community as a whole,[8] the Tribunal has consistently expressed its reticence to too readily prevent an independent hearing about an alleged breach of human rights.[9] That would be contrary to the overarching tenets of a jurisdiction that contemplates self-representation, embraces cost-effectiveness and eschews an unnecessarily technical approach:

The Parliament of Queensland in the Anti-Discrimination Act 1991 expressly stated that everyone should have the right to equal protection and benefit of the law without discrimination, that the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society and that the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone.[10]

  1. [4]
    The Tribunal dismissed each of the allegations and made no findings that were critical or unfavourable to the Respondents’ conduct.  The Tribunal accepts that the proceedings were complex, requiring a five-day hearing. The Tribunal also accepts that the Respondents were put to considerable expense in responding to the allegations. The Tribunal also notes that the Respondents offered to settle the proceedings on 27 April 2020 encompassing a letter of regret and refresher training.[11]
  2. [5]
    However, the Tribunal does not accept that these circumstances amount to ‘unnecessary disadvantage’ sufficient to outweigh the strong contra-indicator against costs in a human rights jurisdiction where parties are often not legally represented and the adequacy of the contentions are to be considered in a reasonable, realistic and pragmatic way.[12] The costs provisions are therefore construed beneficially to give full effect to the objects and purposes of the Anti-Discrimination Act 1991 (Qld).[13]
  1. [6]
    BB’s case was arguable and did not lack merit. Key to the Respondents’ success was the Tribunal’s findings of fact from preferring the evidence of the Respondents over the student’s parents.[14] However, this did not mean the parents’ evidence was not honest or genuine.[15] Moreover, the Respondents’ evidence was untested. BB did not unnecessarily disadvantage the Respondents by proceeding to a hearing on that basis.
  2. [7]
    Because the Tribunal has previously ordered that any reasons or orders are not to identify relevant persons, these reasons are published in a de-identified format.[16]
  3. [8]
    The appropriate Order is that each party pays their own costs.

Footnotes

[1]Respondents’ Submissions on Costs dated 1 March 2021.

[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100; Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364, [9] (Kingham DCJ); Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412, [29] (Wilson J).

[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102; Simonova v State of Queensland [2021] QCAT 45. It is therefore unnecessary to determine whether BB is a representative against whom costs should be awarded, as the criteria to award costs in those circumstances is more limited: Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 103; Tracey v Olinderidge Pty Ltd & Anor [2015] QCAT 7.  

[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102.

[5]Harrison v Terra Search Ltd & Ors [2014] QCAT 128, [8].

[6]Harrison v Terra Search Ltd & Ors [2014] QCAT 128, [10].

[7]Alexander v State of Queensland & Anor [2016] QCAT 142, [31].

[8]Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.

[9]McKinnon v State of Queensland and Anor (No 2) [2012] QCAT 566, [7]; Yeo v Brisbane Polo Club Inc. [2013] QCAT 261, [14] - [16]; Alexander v State of Queensland & Anor [2016] QCAT 142, [54].

[10]Harrison v Terra Search Pty Ltd & Ors [2014] QCAT 128, [9].

[11]Respondents’ Submissions on Costs dated 1 March 2021, [31] to [33]; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 105; Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86.

[12]Virgtel Ltd & Anor v Zabusky & Ors [2008] QSC 213, [15] (Daubney J).

[13]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48, s 102(3)(a); Tracey v Olinderidge Pty Ltd & Anor [2015] QCAT 7; Carey v Cairns Regional Council & Ors (No. 2) [2011] QCAT 372, [13], [19] - [20]; Anti-Discrimination Act 1991 (Qld), s 6.

[14]BB on Behalf of RB v State of Queensland & Ors [2020] QCAT 496, [22] – [23].

[15]BB on Behalf of RB v State of Queensland & Ors [2020] QCAT 496, [22].

[16]Directions 5, 6 of 27 April 2020; Anti-Discrimination Act 1991 (Qld), s 191; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.

Close

Editorial Notes

  • Published Case Name:

    BB v State of Queensland & Ors (No 2)

  • Shortened Case Name:

    BB v State of Queensland (No 2)

  • MNC:

    [2021] QCAT 148

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    19 Apr 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Alexander v State of Queensland [2016] QCAT 142
3 citations
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
2 citations
BB v State of Queensland [2020] QCAT 496
3 citations
Carey v Cairns Regional Council and Ors (No 2) [2011] QCAT 372
2 citations
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
2 citations
Harrison v Terra Search Pty Ltd & Ors [2014] QCAT 128
4 citations
McKinnon v State of Queensland and Anor (No 2) [2012] QCAT 566
2 citations
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
2 citations
Simonova v State of Queensland (costs) [2021] QCAT 45
2 citations
Tracey v Olinderidge Pty Ltd [2015] QCAT 7
3 citations
Virgtel Ltd v Zabusky [2008] QSC 213
2 citations
Yeo v Brisbane Polo Club Inc [2013] QCAT 261
2 citations

Cases Citing

Case NameFull CitationFrequency
Hoogendoorn v State of Queensland and Anor No 3 [2024] QCAT 3562 citations
Watego v State of Queensland and ors (costs) [2023] QCAT 2922 citations
WJ [2021] QCAT 4502 citations
1

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