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JCN v James Cook University No 2[2024] QCAT 257

JCN v James Cook University No 2[2024] QCAT 257

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

JCN v James Cook University & Ors No 2 [2024] QCAT 257

PARTIES:

JCN

(applicant)

v

JAMES COOK UNIVERSITY

(first respondent)

PROFESSOR RICHARD MURRAY

(second respondent)

DR RANJIT RASALAM

(third respondent)

MS LAURA-ANNE BULL

(fourth respondent)

APPLICATION NO/S:

ADL005-20

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

2 April 2024

HEARING DATES:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

The parties to the proceeding must bear their own costs for the proceeding.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where applicant made claims against the respondents pursuant to the Anti-Discrimination Act 1991 (Qld) – where application dismissed – where respondents seek costs of the proceeding including costs on an indemnity basis for part of proceeding – whether the interests of justice require a costs order to be made in favour of the respondents – whether costs order justified by applicant not accepting offers to settle

Anti-discrimination Act 1991 (Qld), s 174A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 10, s 11, s 100, s 102, s 105 and Schedule 3

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 83 and r 86

Campbell v Queensland Building and Construction Commission (No 2) [2023] QCAT 54

Oaks Hotels & Resorts Limited v Knauer [2020] QCATA 90

Pound v Queensland Building and Construction Commission [2023] QCAT 298

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Applicant:

Self-represented

Respondents:

CA Massy of Counsel instructed by Colin Biggers & Paisley Lawyers

REASONS FOR DECISION

Introduction

  1. [1]
    This is a determination of the question of costs for the proceeding before the Tribunal.[1]
  2. [2]
    The Respondents seek the following orders:
  1. (a)
    the [applicant] pays the respondents [sic] costs in the proceeding:
  1. (i)
    on a standard basis up until 21 April 2023; and
  1. (ii)
    on an indemnity basis from that time onwards;
  1. (b)
    the costs be assessed pursuant to r. 87 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld);
  1. (c)
    a costs assessor be appointed; and
  1. (d)
    the costs be assessed by reference to the Supreme Court scale.
  1. [3]
    The Respondents submit that an order for costs is warranted by reason of the following matters:
    1. the manner in which the proceeding was conducted by the Applicant;
    2. the lack of merit in many respects of the proceeding;
    3. the Applicant’s failure to accept reasonable offers of settlement.
  2. [4]
    The Applicant submits that he should not be ordered to pay the Respondents’ costs and challenges the Respondents’ contentions.

The relevant statutory provisions

  1. [5]
    Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) provides:

Other 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.

  1. [6]
    Section 102 of the QCAT Act provides:
  1. (1)
    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.
  1. (2)
    However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.
  1. (3)
    In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
  1. (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);
  1. (b)
    the nature and complexity of the dispute the subject of the proceeding;
  1. (c)
    the relative strengths of the claims made by each of the parties to the proceeding;
  1. (d)
    for a proceeding for the review of a reviewable decision—
  1. (i)
    whether the applicant was afforded natural justice by the decision-maker for the decision; and
  1. (ii)
    whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
  1. (e)
    the financial circumstances of the parties to the proceeding;
  1. (f)
    anything else the tribunal considers relevant.
  1. [7]
    Although not referred to by the Respondents, in light of their reliance on the various offers to settle, I consider that the following provisions of the QCAT Act also come into play.
  2. [8]
    Section 105 of the QCAT Act provides:

The rules may authorise the tribunal to award costs in other circumstances, including, for example, the payment of costs in a proceeding if an offer to settle the dispute the subject of the proceeding has been made but not accepted.

  1. [9]
    Rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (the Rules)[2] provides:
  1. (1)
    This rule applies if—
  1. (a)
    a party to a proceeding, other than a proceeding for a minor civil dispute, makes another party to the proceeding a written offer to settle the dispute the subject of the proceeding; and
  1. (b)
    the other party does not accept the offer within the time the offer is open; and
  1. (c)
    in the opinion of the tribunal, the decision of the tribunal in the proceeding is not more favourable to the other party than the offer.
  1. (2)
    The tribunal may award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.
  1. (3)
    If a proceeding involves more than 2 parties, this rule applies only if the acceptance of the offer would have resulted in the settlement of the matters in dispute between all the parties.
  1. (4)
    In deciding whether a decision is or is not more favourable to a party than an offer, the tribunal must—
  1. (a)
    take into account any costs it would have awarded on the date the offer was given to the other party; and
  1. (b)
    disregard any interest or costs it awarded relating to any period after the date the offer was given to the other party.
  1. [10]
    Also, the Applicant submits that this proceeding is a minor civil dispute and refers to rule 83 of the Rules.[3] Rule 83 provides:
  1. For section 102 of the Act, the tribunal may award costs against a party to a proceeding for a minor civil dispute other than a minor debt claim—
  1. (a)
    only if the party is a respondent against whom the tribunal has made a final decision; and
  1. (b)
    only to order the party to pay to the applicant the amount of any prescribed fee paid by the applicant on filing the application for the proceeding.

The issues

  1. [11]
    In my view, the parties’ submissions raise the following issues:
  1. (a)
    whether the subject matter of this proceeding was a minor civil dispute;
  1. (b)
    whether a costs order in favour of the Respondents, pursuant to s 102 of the QCAT Act, is required in the interests of justice;
  1. (c)
    further or alternatively, whether a costs order should be made in favour of the Respondents pursuant to rule 86 of the Rules;
  1. (d)
    if a costs order is justified:
  1. (i)
    whether costs should be ordered on the indemnity basis on and from 22 April 2023;
  1. (ii)
    whether cost should be fixed or assessed;
  1. (iii)
    whether costs should be fixed or assessed by reference to the Supreme Court scale.
  1. [12]
    It is convenient to commence with the Applicant’s contention that the proceeding involved a minor civil dispute.

Minor civil dispute?

  1. [13]
    Section 11 of the QCAT Act provides that the Tribunal has jurisdiction to hear and decide a ‘minor civil dispute’ (see also s 10(1)(a) of the QCAT Act).
  2. [14]
    The phrase ‘minor civil dispute’ is defined in Schedule 3 to the QCAT Act as follows:
  1. 1
    Minor civil dispute means—
  1. (a)
    a claim to recover a debt or liquidated demand of money of up to the prescribed amount; or
  1. (b)
    a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is—
  1. (i)
    for payment of money of a value not more than the prescribed amount; or
  1. (ii)
    for relief from payment of money of a value not more than the prescribed amount; or
  1. (iii)
    for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or
  1. (iv)
    for return of goods of a value not more than the prescribed amount; or
  1. (v)
    for a combination of any 2 or more claims mentioned in subparagraphs (i) to (iv) where the total value of the combined claim is not more than the prescribed amount; or
  1. (c)
    a claim for an amount of not more than the prescribed amount for damage to property caused by, or arising out of the use of, a vehicle; or
  1. (d)
    a tenancy matter; or
  1. (e)
    a claim that is the subject of a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, chapter 2 and is for an amount not more than the prescribed amount; or
  1. (f)
    a matter in relation to which a person may, under the Building Act 1975, chapter 8, part 2A apply to the tribunal for an order.
  1. Note—
  1. A matter mentioned in paragraph (f) would relate to part of a barrier for a swimming pool along a common boundary.
  1. 2
    However, if an enabling Act confers jurisdiction on the tribunal to deal with a claim (however called) within the meaning of paragraph 1(a), the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute.
  1. 3
    A claim mentioned in paragraph 1(b) does not include a claim in a proceeding to which the Fair Trading Act 1989, section 50A applies.
  1. 4
    A claim mentioned in paragraph 1(a) does not include a claim under the Fair Work Act 2009 (Cwlth), section 539.
  1. Note—
  1. See the Fair Work Act 2009 (Cwlth), section 539 for the conferral of jurisdiction on eligible State or Territory courts in relation to the contravention of civil remedy provisions under that Act. In relation to Industrial Magistrates Courts, see the Industrial Relations Act 2016, chapter 11, part 3, division 4. In relation to Magistrates Courts, see the Magistrates Courts Act 1921.
  1. [15]
    The prescribed amount is $25,000.00 (see the definition of ‘prescribed amount’ in Schedule 3 to the QCAT Act).
  2. [16]
    Having regard to the nature of the claims made by the Applicant and the relief sought by the Applicant (including the amount of compensation ultimately claimed),[4] I am of the view that the proceeding did not involve a ‘minor civil dispute’ as defined. None of the categories set out in the definition had application to the proceeding. Rather, the Tribunal exercised the jurisdiction conferred on it by an enabling Act, namely the Anti-discrimination Act 1991 (Qld) (the ADA), to determine the Complaint made by the Applicant (see s 10(1)(a) of the QCAT Act and s 174A of the ADA).
  3. [17]
    I now turn to s 102 of the QCAT Act.

Do the interests of justice require a costs order in favour of the Respondents?

The interaction between s 100 and s 102 of the QCAT Act

  1. [18]
    The interaction between these two provisions, and the degree of satisfaction required for the Tribunal to make a costs order pursuant to s 102, have been the subject of a difference of opinion in the Tribunal over the past few years as summarised by Senior Member Aughterson in Pound v Queensland Building and Construction Commission (Pound).[5]
  2. [19]
    The competing approaches were summarised by Senior Member Aughterson[6] as involving, first, that the starting point is that each party must bear its own costs unless ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders or, second, the relevant test is whether the interests of justice require an order for costs, with the proviso that the terms ‘require’ in s 102(1) and ‘usually’ (bears own costs) in the heading of s 100 show that an order for costs should not be too readily made.
  3. [20]
    Subject to the following paragraph, I adhere to the view I expressed in Campbell v Queensland Building and Construction Commission (No 2),[7] summarised as follows:[8]

In my view, s 102 requires the Tribunal to undertake an evaluative assessment of all circumstances considered to be relevant in forming an opinion as to whether the interests of justice necessitate a costs order being made (in whole or in part) and the default position displaced. The only qualification I would place on the language of s 102 is that it is not sufficient for the Tribunal to conclude merely that it is in the interests of justice to make an order for costs, a stronger foundation is required. Nevertheless, sitting at first instance, I consider I am bound to follow one or other of the respective approaches to s 102. In that event, I prefer the conclusion that the interests of justice must point ‘so compellingly’ to the making of a costs order as to override the default position under s 100. However, in the absence of guidance as to what satisfies the requirement of ‘compellingly’, I consider that it is appropriate to proceed on the basis that the term should be equated with ‘convincingly’.

  1. [21]
    I respectfully adopt the subsequent observations of Senior Member Aughterson in Pound in respect of the potential impact of the nature of the proceeding on whether the interests of justice ‘require’ the making of a costs order:
  1. (a)
    … The interplay between s 100 and s 102(3) may well vary, depending on the impact a costs order in the case at hand might have on access to justice and the other objectives in s 3 of the QCAT Act;[9]
  1. (b)
    For example, the prospect of an adverse costs order is likely to weigh heavily on any decision to seek review of certain administrative decisions, which will potentially have a significant impact on access to justice. On the other hand, in relation to body corporate disputes involving significant monetary or other considerations, the interests of justice in awarding costs, as alluded to by Keane JA in Tamawood, might weigh heavily in favour of a costs order. In those circumstances, the disincentive of a potential costs order in bringing a matter before the Tribunal is less likely to loom so large and, accordingly, considerations of access to justice might weigh relatively lightly in the balance against a costs order.[10]
  1. (citation omitted)
  1. [22]
    I will address each of the factors listed in s 102(3), other than s 102(3)(d) which I consider to have no application in the present case.

Subsection 102(3)(a) (acting in a way that unnecessarily disadvantages another party)

  1. [23]
    The Respondents’ Submissions as to Costs (Respondents’ Submissions) include submissions that combine matters relevant to this factor and also the factor listed in s 102(3)(c).
  2. [24]
    In relation to s 102(3)(a), the Respondents contend that the conduct of the proceeding by the Applicant was characterised by a ‘repeated unwillingness to comply with the directions of the Tribunal’, both during the pre-hearing period,[11] and subsequent to the hearing in relation to the failure to comply with directions regarding the filing of final submissions, necessitating a further mention of the matter on 2 August 2023.[12]
  3. [25]
    The Applicant submits that:[13]
    1. he complied with all of the directions of the Tribunal but required extensions of time because of the complexity of the case, his lack of legal, the lack of legal assistance that he experienced, a lack of funds and support, and a lack of information online in relation to various aspects of the case such as affidavits, subpoenae, and final submissions, a lack of familiarity with a ‘court case’, and his personal responsibilities including his job;
    2. there was delay on the part of the First Respondent in completion of the affidavit material;
    3. there was a disparity in resources, namely he was largely unassisted by lawyers, and the Respondents had a partner and solicitor and Counsel working on the case.
  4. [26]
    The hearing of this matter took place on the following dates: 19, 20 and 21 April 2023, 4, 5 and 30 May 2023, 2 and 13 June 2023, and 3 July 2023.[14]
  5. [27]
    Ms Kavanagh of the Respondents’ solicitors has deposed to a number of matters involving delay on the part of the Applicant commencing on 6 September 2021. As I read the Applicant’s submissions, he does not challenge the factual accuracy of the matters set out in paragraphs 6 to 24 of Ms Kavanagh’s affidavit. On the material provided to me, I am not in a position to determine the particular extent to which the Applicant’s delay in compliance with various directions, or the need to seek adjournments at the pre-hearing stage, was directly attributable to the matters to which the Applicant has referred. However, I accept that, save for the period during which the Applicant had assistance from lawyers, the Applicant would have had difficulty preparing and filing his primary evidence and reply material having regard to the factual complexity of the case and the volume of the Respondents’ material, and the Applicant would have required some time to seek to obtain legal representation or assistance.
  6. [28]
    Nevertheless, given that the proceeding had been on foot in the Tribunal since 6 February 2020,[15] and the Applicant filed an application on 4 November 2022 seeking an additional three weeks to file his reply evidence and the relief sought by him (the Material),[16] the matters relied upon by him do not appear to provide sufficient justification for any delay occurring between approximately the end of November 2022 and the commencement of the hearing, including not filing the Material until 17 February 2023.[17]
  7. [29]
    With respect to the alleged delay on the part of the Respondents, it is sufficiently clear that the Respondents required an extension of the time to comply with Tribunal directions (see Annexure ‘RO-9’) but I cannot identify any evidence that there was a delay of ‘almost 6 months’ as submitted by the Applicant.
  8. [30]
    With respect to the final submissions, there was delay on the part of the Applicant in filing his submissions as directed. The submissions were not ultimately filed until 10 August 2023, and required a directions hearing to be heard on 2 August 2023 in the face of the Applicant’s failure to comply with earlier directions. This is against the background that:
    1. the cross-examination of the Respondents’ witnesses was concluded on 30 May 2023 (although there were some evidential issues subsequently dealt with on 2 June 2023, 13 June 2023, and 3 July 2023);
    2. the Applicant had been provided with the ‘Respondents’ Preliminary Final Submissions’ on or about 1 June 2023 (which were provided in response to the Tribunal’s request that the Respondents address the relevant legal principles and identify the matters which the Respondents submitted the Tribunal needed to determine);
    3. by 13 June 2023, the Applicant had received the transcript for each of the preceding days of the hearing;
    4. the Applicant had been provided with the ‘Respondents’ Secondary Final Submissions’ on or about 15 June 2023;
    5. Mr Massey made oral submissions on 3 July 2023.
  9. [31]
    In short, I accept that there was unjustified delay on the part of the Applicant between the end of November 2022 and the commencement of the hearing, and in relation to his final submissions. However, I do not consider the delays to have been such as to warrant the orders for costs sought by the Respondents, namely all of the Respondents’ costs in the proceeding on a standard basis up until 21 April 2023 and on an indemnity basis thereafter. In this context, a significant proportion of the Respondents’ costs would no doubt have been incurred during the course of the hearing which occupied, in total, approximately 8½ days. The Respondents do not assert that the Applicant acted in a way that unnecessarily disadvantaged them in the course of the hearing. The delay suffered by the Respondents during the latter part of the pre-hearing period, and in relation to the final submissions, is not a factor which would favour an order for costs of the whole proceeding.
  10. [32]
    At most, and subject to a consideration of the other factors, the delay may have justified a limited order for costs arising out of the delays. However, the Respondents have not sought to identify any particular costs attributable to the delays relied upon by the Respondents.

Subsection 102(3)(b) (the nature and complexity of the dispute)

  1. [33]
    As to the nature of the dispute, as noted above, the proceeding involved a complaint under the ADA. The Applicant alleged discrimination (both direct and indirect) and victimisation against the Respondents.
  2. [34]
    In my view, the nature of a complaint made under the ADA does raise an interests of justice consideration in that a complainant should not be dissuaded from pursuing a fairly arguable claim for breach of the ADA for fear of an adverse costs order. However, that consideration needs to be weighed against the other relevant factors set out in s 102(3).
  3. [35]
    As to the complexity of the matter, as I observed in the Reasons for Decision, the Applicant’s case was factually complicated, involving alleged conduct over a lengthy period of time, and raising for consideration the conduct or actions of various staff members employed by the First Respondent. The nature of the case was such that the Tribunal had been persuaded to grant leave to the Respondents to be legally represented. In these circumstances, I consider that the complexity of the case is a factor which favours the making of an order for costs.

Subsection 102(3)(c) (the relative strengths of the claims made by each of the parties)

  1. [36]
    The Respondents submit that:[18]
    1. the Applicant never engaged with various parts of his case, particularly the claims based on indirect discrimination and victimisation and these claims were bound to fail;
    2. that, in this context, the Respondents were required to respond to claims which were ‘inchoate and difficult, in a legal sense, to understand’;
    3. insofar as the Applicant’s case concerned an allegation of direct discrimination on the basis of the race and religion attributes, there was no objective evidence which supported a contention that he had been treated less favourably on account of these attributes;
    4. the Applicant conducted the case on the basis that it was a merits-based review into his treatment which meant that the hearing was prolonged beyond what was necessary and served to increase the costs incurred by the Respondents in defending the proceeding.
  2. [37]
    While I consider that there is some force in the submissions, I find that they do not go particularly far in support of an order for costs of the whole proceeding for the following reasons:
  1. (a)
    with respect to the claims based on indirect discrimination and victimisation, while it is true that the Applicant never articulated the basis upon which these claims should succeed:
  1. (i)
    I cannot identify any evidence that was adduced by either party that went only to those issues; that is, the evidence that was adduced and the cross-examination of the Respondents’ witnesses at the hearing were relevant to the direct discrimination claim;
  1. (ii)
    whilst the Respondents did make written submissions as to the law in relation to the claims based on indirect discrimination and victimisation, those claims were easily dealt with by the Respondents for the reason articulated by them, namely that the Applicant did not mount a reasonably arguable basis for upholding either of those claims. Consequently, in the scheme of the overall costs, I find that the costs attributable to these claims would likely have been very modest;
  1. (b)
    similar observations may be made about the race and religion attributes concerning the allegation of direct discrimination. The bulk of the evidential material addressed the treatment of the Applicant which, as noted in the Reasons for Decision, spanned a lengthy period of time and involved numerous staff members of the First Respondent. The bulk of the Applicant’s cross-examination was directed at the issue of presumed mental illness. I find that the costs attributable to the aspect of the direct discrimination claim concerning the race and religion attributes would likely have been modest;
  1. (c)
    although the Applicant’s claims ultimately failed, I consider that:
  1. (i)
    the Applicant had a reasonably arguable case in relation to the Applicant’s suspension based on the alleged presumption of mental illness by Professor Murray;
  1. (ii)
    with respect to the other aspects of the Applicant’s treatment, it was reasonable for the Applicant to investigate the issue of the alleged presumption of mental illness by various staff members of the First Respondent, particularly in circumstances where that issue turned on the state of mind of the respective persons;
  1. (d)
    whilst the Applicant’s general approach to the case treated it as a merits-based review, I consider that, first, allowance should be made for the fact that the Applicant was representing himself and he did not bring the rigour of analysis that would be expected of a lawyer and, second, it is difficult to ascribe any identifiable additional time (particularly in cross-examination) to the approach adopted by the Applicant.
  1. [38]
    The Applicant points to the fact that he was representing himself and there was a disparity in the legal knowledge and resources available to the respective parties. I accept this. I also accept that the Applicant had a lack of familiarity with the ‘trial process’ and that he did not have a working knowledge of the legal aspects of the case (although I note that the Applicant’s Statement of Contentions was plainly prepared by lawyers then acting on his behalf).
  2. [39]
    The Applicant made a number of other submissions which I consider to be either immaterial to the question of costs or which do not paint the full picture of what in fact occurred.
  3. [40]
    The Applicant asserts that he ‘did not even know that he had to write a final submission until it was mentioned to him during the trial’ (Applicant’s submissions, third page, response to paragraph 13). My recollection is that the Applicant was never required to write a final submission; rather, he wished to provide written submissions (and he also made some oral submissions in response to Mr Massy’s oral submissions). Regardless, from Day 1 of the hearing, the Applicant knew that he would have to make submissions at the end of the case.
  4. [41]
    The Applicant asserts that he continued to prepare his ‘full final submissions’ despite having filed written submissions on 10 August 2023 (Applicant’s submissions, third page, response to paragraph 14). Whether any such further submissions would have had any impact on the primary Decision is purely speculative and I consider it irrelevant to the question of costs. However, for completeness, I refer to the background set out at paragraph [30] above, and I note that the Applicant had not filed any such further submissions by the date of the primary Decision (8 December 2023), which was a period of almost four months after his written submissions were filed.
  5. [42]
    The Applicant seeks to re-argue various aspects of the case (Applicant’s submissions, third, fourth and fifth pages, responses to paragraphs 15 and 17). In my view, these are immaterial to the question of costs in circumstances where the factual findings and legal issues have been determined in the primary Decision.
  6. [43]
    The Applicant also alleges that the First Respondent discouraged a witness from coming forward (Applicant’s submissions, third page, response to paragraph 11) and that evidence had been ‘hidden’ from the Tribunal (Applicant’s submissions, fifth page, response to paragraph 17). If there is any substance in these allegations, they are matters which may potentially be raised upon any application that the Applicant may choose to bring in relation to the primary Decision (subject to addressing any procedural matters), but I consider that they are extraneous to the determination of the question of costs at this time.

Section 102(3)(e) (the financial circumstances of the parties)

  1. [44]
    The Respondents did not address this factor.
  2. [45]
    The Applicant submitted that his case was brought against a ‘well resourced, multimillion dollar university with unlimited resources’. In the absence of any submissions made by the Respondents on this issue (particularly in relation to its resources for funding the defence of the proceeding and whether or not it had insurance that covered part or all of its litigation costs), I am satisfied that the First Respondent had sufficient financial resources to fund the services of a Brisbane city law firm (including a partner and senior associate) and to brief Counsel, and that it would not suffer any adverse impact to its overall financial position in the event that no order for costs was made in the proceeding (even if there was some prospect that the Applicant could pay even a proportion of the costs).
  3. [46]
    The Applicant submits that he does not have the financial means to pay for any legal costs. He states he does not have a stable job, has no career, has no income, he does not own a car, he lives with his brother, and he is almost $83,000 in debt to ‘HECS’. In this latter respect, the Applicant produced an extract dated 25 March 2024 which identifies his name and states that there is a ‘Student start-up loan’ owing in the amount of $6,059.81 and a further amount owing in respect of a ‘Higher education loan program’ of $76,245.48. I am satisfied that the Applicant does not have the financial means to meet any order for costs made against him.
  4. [47]
    Having regard to the respective financial circumstances of the parties, I consider that this factor points against making an order for costs in favour of the Respondents.

Section 102(3)(f) (anything else the tribunal considers relevant)

  1. [48]
    I consider that the relevant matters have been addressed in relation to the earlier factors.

Conclusion as to whether the interests of justice require a costs order

  1. [49]
    Regardless of which of the respective tests in relation to s 102 of the QCAT Act is applied, I am satisfied that it is appropriate to apply the starting or default position under s 100, and that the interests of justice do not require that an order for costs be made in favour of the Respondents pursuant to s 102. This conclusion is justified by the following: the respective financial circumstances of the parties, including the Applicant’s limited financial circumstances; the nature of the proceeding brought by the Applicant; that the issue at the core of the Applicant’s real case (whether the relevant staff members presumed that he had a mental health illness or condition) turned on the state of mind of the relevant staff members and it was reasonable for the Applicant to pursue this issue at a final hearing; and that the Applicant had a reasonably arguable case based on direct discrimination in relation to the suspension of the Applicant as discussed above. I consider that these factors countervail other factors that may otherwise justify the making of a costs order, such as the success enjoyed by the Respondents in the proceeding; the factual complexity of the subject matter of the proceeding; and the grant of leave for the Respondents to be legally represented.
  2. [50]
    I now address the offers to settle.

The offers to settle

The offers

  1. [51]
    The Respondents rely on five offers to settle the proceeding:
  1. (a)
    By correspondence headed ‘Without Prejudice save as to Costs’ dated 4 October 2019 from the First Respondent to the Applicant (the first offer), the First Respondent offered to confer upon the Applicant a Bachelor of Life Sciences together with payment of $20,000.00 subject to the terms of an enclosed deed (the affidavit material included only the first two pages of the deed). No time was specified for acceptance of the offer.
  1. (b)
    By correspondence headed ‘Without Prejudice save as to Costs’ dated 9 July 2021 from the Respondents’ solicitors to the lawyers then acting for the Applicant (the second offer), the Respondents made an offer that involved one of two ‘Options’. No time was specified for acceptance of the offer. The Options were in the following terms:
  1. Option 1 – Oceania University
  • Your client will prepare an application for enrolment at Oceania University;
  • Ranjlt Rasalam will make an introduction for your client at Oceania University, to assist with the acceptance of his enrolment at the university;
  • Dr Rasalam will assist your client in the preparation of his Record of Prior Learning;
  • JCU will confer upon your client a Bachelor of Life Sciences in view of the courses already successfully completed; and
  • On the submission of the application, your client will discontinue the QCAT proceedings.
  1. Option 2 - University of Western Sydney
  • Your client will prepare an application for enrolment at the University of Western Sydney;
  • Richard Murray will make an introduction for your client at the University of Western Sydney, to assist with the acceptance of his enrolment at the university;
  • [The First Respondent] will confer upon your client a Bachelor of Life Sciences; and
  • On the submission of the application, your client will discontinue the QCAT proceedings.
  1. (c)
    By correspondence headed ‘Without Prejudice save as to Costs’ dated 8 September 2021 from the Respondents’ solicitors to the Applicant (the third offer), the Respondents made an offer in the terms of the second offer but included an additional term that subject to the Applicant being accepted into either of the universities, the First Respondent would pay to the Applicant $32,000.00 to assist him with his study expenses. No time was specified for acceptance of the offer.
  1. (d)
    By correspondence headed ‘Without Prejudice save as to Costs’ dated 31 March 2023 from the Respondents’ solicitors to the Applicant (the fourth offer), the Respondents made an offer in the following terms:
  1. (i)
    The Respondents will pay you a gross sum of $70,000 as general damages, within 30 days of receiving an executed deed from you (Settlement Sum);
  1. (ii)
    Payment of the Settlement Sum is conditional on the parties entering a Deed of Settlement and Release, on agreed terms, Including:
  1. (A)
    no admission of liability by the Respondents;
  1. (B)
    mutual confidentiality between the parties;
  1. (C)
    mutual non-disparagement between the parties;
  1. (D)
    you will release the Respondents as well their associated entitles, employees and officers from all claims;
  1. (E)
    The Respondents release you from any liability the Respondents might incur arising out of this Complaint, including Its legal costs;
  1. (F)
    You must not contact or make comment about the Respondents or any JCU staff member (current or former} or any of their family members.
  1. (iii)
    Within 7 days of receiving the Settlement Sum, you will discontinue the proceedings with the Queensland Civil and Administrative Tribunal in matter number ADL005-20.
  1. The offer was left open for acceptance until 5.00pm (Qld time) on 7 April 2023.
  1. (e)
    By correspondence headed ‘Without Prejudice save as to Costs’ dated 14 April 2023 from the Respondents’ solicitors to the Applicant (the fifth offer), the Respondents made an offer in terms of the fourth offer save that the amount offered was $100,000.00. The offer was left open for acceptance until 10.00am (Qld time) on 18 April 2023 (which was the day prior to the first day of the hearing).

The relevant principles

  1. [52]
    In assessing the impact of the offers to settle, the relevant principles are set out in Oaks Hotels & Resorts Limited v Knauer:[19]
  1. [76]
    Rule 86 is made under the authority of ss 105 and 224 of the QCAT Act. The subject matter of the Rules may include costs generally, including ‘additional circumstances’ for which costs may be awarded. Section 105 is headed ‘Other power to award costs’. It provides that the Rules may authorise the Tribunal to award costs in other circumstances, including, for example, the payment of costs in a proceeding if an offer to settle the dispute the subject of the proceeding has been made but not accepted. The phrase ‘other circumstances’ is not defined. Reading Division 6 of Chapter 2 as a whole, we consider that the phrase refers to circumstances other than those identified in ss 102, 103 and 104 respectively, each of which provides for an exception to the presumption set out in s 100 that each party to a proceeding must bear the party’s own costs for the proceeding. In particular, we consider that the combined operation of s 105 and rule 86 stands independently of the operation s 102, such that it is unnecessary to establish that it is in the interests of justice to order costs in favour of one of the parties if an operative offer to settle was made falling within the scope of rule 86. If the operation of s 105 and rule 86 required a finding that it was in the interests of justice within the meaning of s 102 that costs be awarded, we consider that this would limit the operation of rule 86 in a manner not intended by the legislature.
  1. [77]
    We make the following further observations about the operation of rule 86.
  1. [78]
    First, it does not contain the same level of prescriptive provisions for offers to settle contained in Part 5 of Chapter 9 of the Uniform Civil Procedure Rules 1999 (Qld), particularly in relation to the costs ramifications of a failure to accept an offer under the Rules.
  1. [79]
    Second, it provides, by subsection (1), three preconditions to its operation, there must be a written offer, by a party to a proceeding to another party to that proceeding, to settle the dispute the subject of the proceeding; the other party does not accept the offer within the time the offer is open; and in the opinion of the Tribunal, the decision of the Tribunal in the proceeding is not more favourable to the other party than the offer.
  1. [80]
    Third, in deciding whether a decision is or is not more favourable to a party than an offer (as provided by sub-rule 86(1)(c)), sub-rule 86(4) prescribes two matters which the Tribunal must address; it must take into account any costs it would have awarded on the date the offer was given to the other party; and it must disregard any interest or costs it awarded relating to any period after the date the offer was given to the other party.
  1. [81]
    Fourth, a written offer to settle made in accordance with the Calderbank principles (including an offer described as ‘Without prejudice save [or except] as to costs’) qualifies as an offer for the purposes of rule 86 regardless of whether it is expressed to be made under rule 86 and we reject Oaks’ submission that express reference to the rule is required. Rule 86 contains no such express requirement and there is nothing in its language that a statement of reliance on rule 86 is required.
  1. [82]
    Fifth, if the Tribunal is satisfied that preconditions have been satisfied, a discretion arises as to whether costs should be awarded against the party failing to accept the offer. In our view, sub-rule 86(2) plays a dual role. In the first instance, it may provide a basis for ordering costs in favour of one party in circumstances where the usual order for costs under s 100 would apply, absent the offer to settle. That is, costs may be awarded under rule 86 (by virtue of s 105) even if the interests of justice do not other justify an award of costs under s 102. In the second instance, the Tribunal has a discretion whether to award such costs on the standard basis or on the indemnity basis. It is settled law in the Appeal Tribunal that the reference in rule 86(2) to ‘all reasonable costs incurred’ includes an order for costs on the indemnity basis. We are of the view that, if sub-rule 86(2) is engaged, the Tribunal is not required to award costs on the indemnity basis but may award costs on the standard basis. In the present case, the Offer was material to the question of indemnity costs only, the Member having found that it was in the interests of justice to award Ms Knauer the (standard) costs of the first and second hearings.
  1. [83]
    Sixth, in exercising its discretion under sub-rule 86(2), we consider that the applicable test is whether the offeree acted unreasonably or imprudently in rejecting the offer and that the onus is on the offeror to demonstrate the unreasonableness of rejection by the other party (consistently with the principle applied to Calderbank offers). In determining this question under sub-rule 86(2), we also consider that, consistently with the approach adopted by the Queensland Court of Appeal in relation to Calderbank offers on appeal, account must be taken of all relevant considerations, including (without limitation):
  1. (a)
    the stage of the proceeding at which the offer was received;
  1. (b)
    the time allowed to the offeree to consider the offer;
  1. (c)
    the extent of the compromise offered;
  1. (d)
    the offeree’s prospects of success, assessed as at the date of the offer;
  1. (e)
    the clarity with which the terms of the offer were expressed; and
  1. (f)
    whether the offer foreshadowed an application for an indemnity costs in the event of the offeree rejecting it.
  1. [84]
    The factor in subparagraph (f) above will only be material to rule 86 in circumstances where, as here, costs are sought on the indemnity basis.
  1. …
  1. [94]
    ... A failure to put the opposing party on notice may not, of itself, be necessarily fatal to an application for costs on the indemnity basis but we consider it an important consideration where an offer to settle is relied upon not only to displace the presumption that each party bear his or her own costs but that the costs be awarded on the indemnity basis.
  1. [95]
    As was said by Kirby P (as he then was) in the context of an unsuccessful appeal in Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd:

The merit of the present motion is that it calls attention to the distinct possibility that, in some circumstances, a special costs order will be made, including for indemnity costs. If such an order is to be made, it would be preferable that it should follow due and timely warning by the successful party to the unsuccessful that indemnity costs will be sought: cf Insurers' Guarantee Fund NEM General Insurance Association Ltd (In Liq) v Baker (Court of Appeal, 10 February 1995, unreported).

  1. [96]
    The failure to warn of an intent to seek indemnity costs tipped the scale against making such an order in Danidale Pty Ltd v Abigroup Contractors Pty Ltd (No 2).
  1. (citations omitted)
  1. [53]
    In my view, each of the offers satisfied the requirements of subrule 86(1) of the Rules.
  2. [54]
    First, as found above, the proceeding is not a proceeding for a minor civil dispute.
  3. [55]
    Second, each offer was a written offer to settle the dispute the subject of the proceeding.
  4. [56]
    Third, the Applicant did not accept the respective offers (at all or within the time that the fourth and fifth offers were left open).
  5. [57]
    Fourth, in circumstances where the Application was dismissed and, by each offer, the Applicant was offered something tangible, I am of the opinion that the primary Decision was not more favourable to the Applicant than each offer. I reject the Applicant’s contention (in the sixth and seventh pages of his submissions) that for an offer to be accepted by the Applicant it had to meet his ‘requirements’, namely to be reinstated into the Bachelor of Medicine, a guaranteed transfer to a public university, or a guaranteed transfer to a private university, with the Respondents to cover all costs for the period of the Applicant’s studies. In determining the worth of an offer to settle, I consider that a comparison is to be made between the terms of the offer and the result achieved by the Applicant, and not the result that the Applicant wished to achieve.
  6. [58]
    In these circumstances, a discretion arises as to whether costs should be awarded against the Applicant at all and, if so, whether costs should be on the standard basis or the indemnity basis for the respective periods claimed by the Respondents.
  7. [59]
    I consider the following matters to be relevant to the exercise of discretion.
  8. [60]
    First, with respect to each of the offers, the Respondents did not put the Applicant on notice that if he did not accept the offer and did not better the offer, the Respondents would seek an order for costs against him at all, let alone on the indemnity basis. Whilst the second offer (which contained no monetary component) was made at a time when the Applicant was receiving legal assistance, there is no basis to conclude that the Applicant was given advice as to the meaning and consequences of the phrase ‘Without Prejudice save as to Costs’. At the time of each of the other offers, the Applicant was representing himself. In my view, it was incumbent upon the Respondents to make clear to the Applicant, as a self-represented litigant, that a consequence of refusing to accept the offer may be an adverse costs order against him. This conclusion applies with greater strength in relation to the claim for costs on the indemnity basis. The observations in Oaks Hotel at [94]-[96] cited above are apposite in this regard.
  9. [61]
    Second, I refer to my observations above in relation to:
    1. the nature of the claim;
    2. the Applicant’s reasonably arguable case concerning his suspension;
    3. the issue of the presumption of mental illness which raised the state of mind of the relevant staff members of the First Respondent;
    4. the Applicant’s financial circumstances.
  10. [62]
    Third, as to the stage of the proceeding at which each offer was received:
    1. the first offer was made at a time prior to the filing of the Respondents’ affidavit material and, consequently, I consider it material that the Applicant would not have been in a position to assess his prospects of success in the absence of such material;
    2. the second and third offers were made after the filing of the Respondents’ material but before the interlocutory steps had been completed;
    3. each of the fourth offer and the fifth offer was received shortly prior to the first day of the hearing and I consider that the Applicant was in a position to assess his prospects of success at this time. This is one factor supporting an order for costs.
  11. [63]
    As to the time allowed to the Applicant to consider each offer:
    1. the first, second, and third offers did not specify any time period for acceptance. In my view, such offers would have remained open until withdrawn by the Respondents, expressly rejected by the Applicant, or impliedly rejected by the making of a subsequent offer or counter-offer by the Applicant;
    2. the fourth offer was left open for a period of seven days. In my view, given the timing of the offer (with the hearing approaching), and the Applicant being self-represented, a reasonable period for an offer to be left open would have been 14 days;
    3. the fifth offer was left open for no more than four days (the Respondents’ material does not identify the time at which the offer was served on 14 April 2023). In my view, the time period allowed was unrealistically short, particularly given that the Applicant was self-represented and would likely have been fully occupied in preparing for the first three days of the hearing.
  12. [64]
    With respect to the extent of the compromise offered in each case:
    1. the first offer was to confer a Bachelor of Life Sciences on the Applicant and make a payment of $20,000.00. While I accept that the conferral of such a degree would have had some tangible benefit, the offer was made against the background that the Applicant was seeking reinstatement to the First Respondent to continue with the MBBS degree or to secure a place at another university to undertake a medical degree. The Applicant submits that this offer was against ‘the background of an exclusion and it appears on the applicant [sic] transcript’ (twelfth page of his submissions, subparagraph (i)). Accepting this to be the case, it does not mean that the conferral of the degree would not have been of value; the Applicant would have been conferred a university degree. The additional offer of $20,000.00 was a superior outcome to the Decision in the proceeding. Insofar as the Respondents refer to the precautionary assessment of compensation of $8,000.00 in relation to the suspension (Respondents’ Submissions, [24]), the amount of compensation that would have been awarded, had the Applicant established that his exclusion was on the basis of direct discrimination, would have been substantially in excess of $8,000.00 (however, I consider it neither necessary nor appropriate to make an assessment of same in the present context);
    2. the second offer also offered a conferral of the Bachelor of Life Sciences and my observations above apply here. The offer of making an introduction to the respective universities and to assist in the preparation of a ‘Record of Prior Learning’ in relation to Oceania University may not have amounted to any ultimate benefit to the Applicant, and I place little weight on that aspect of the offer. I also note that no monetary compensation was offered as part of this offer;
    3. the third offer was on similar terms to the second offer but added an offer of payment of $32,000.00. However, this payment was conditional upon the Applicant being accepted into either University. There is no evidence that if the Applicant had taken up the third offer, he would have been accepted into either University. In the circumstances, I do not consider that the conditional offer of a monetary payment supports the making of any costs order in favour of the Respondents;
    4. subject to the other factors addressed above, I consider that each of the fourth and fifth offers contained a substantial offer of compensation to the Applicant, and is a factor in favour of making a costs order.
  13. [65]
    As to the Applicant’s prospects of success, assessed as at the date of each offer, I rely upon my observations made above at paragraphs [36] to [43].
  14. [66]
    With respect to the clarity with which the terms of each offer were expressed, I consider that the offers were framed in terms that were amply clear for the Applicant to understand the scope of each offer.
  15. [67]
    Taking into account the various factors discussed above, I consider that the discretion under rule 86 of the Rules should be exercised to decline to make any order for costs against the Applicant. The factors that I find persuasive are: the Applicant’s limited financial circumstances; the absence of any financial hardship to the First Respondent if a costs order is not made; the nature of the proceeding brought by the Applicant; that the issue at the core of the Applicant’s case (whether the relevant staff members presumed that he had a mental health illness or condition) turned on the state of mind of the staff members (and it was reasonable for the Applicant to pursue this issue at the hearing); the reasonably arguable case in respect of the Applicant’s suspension; the limited time that the fourth and fifth offers were left open for acceptance; and the Respondents’ failure to state in clear terms (as distinct from the legal language of ‘Without Prejudice save as to Costs’, given that the Applicant was self-represented for the bulk of the proceeding) that the Respondents would seek an order for costs against the Applicant in the event that he did not accept the respective offers and did not ultimately better such offers. In these circumstances, I consider that no order for costs should be made, notwithstanding, in particular, the dismissal of the Application, the quantum of the fourth and fifth offers, and some delay on the part of the Applicant as addressed above.

Other matters

  1. [68]
    In light of my conclusion in respect of the appropriate costs order, it is unnecessary to address the matters identified in paragraph [11](d) above.

Order

  1. [69]
    For the reasons set out above, I order that the parties to the proceeding must bear their own costs for the proceeding.

Footnotes

[1]  The primary Decision of the Tribunal (the primary Decision) was made on 8 December 2023.

[2]  Which provision is referred to by the Applicant.

[3]  Applicant’s submissions on costs, paragraph 1 on the seventh page of the submissions.

[4]  See the Reasons for Decision in the primary Decision, [5], [403].

[5]  [2023] QCAT 298, [6]-[19].

[6]  At [19].

[7]  [2023] QCAT 54, esp. [20]-[26].

[8]  At [26].

[9]  At [41].

[10]  At [42].

[11]  Details of which are set out in the affidavit of Ms Kavanagh affirmed on 18 December 2023.

[12]  Respondents’ Submissions, esp. [11], [12], [14].

[13]  Applicant’s response to [11], [12] and [14] of the Respondents’ Submissions.

[14]  I sat on a directions hearing in the matter held on 12 April 2023, one week prior to the commencement of the hearing, but had no earlier involvement in the matter.

[15]  Affidavit of Ms Kavanagh, [4].

[16]  Affidavit of Ms Kavanagh, [21].

[17]  Affidavit of Ms Kavanagh, [23].

[18]  Respondents’ Submissions, [13]-[20].

[19]  [2020] QCATA 90, at [76]-[84], [94]-[96].

Close

Editorial Notes

  • Published Case Name:

    JCN v James Cook University & Ors No 2

  • Shortened Case Name:

    JCN v James Cook University No 2

  • MNC:

    [2024] QCAT 257

  • Court:

    QCAT

  • Judge(s):

    Member Lumb

  • Date:

    02 Apr 2024

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
Campbell v Queensland Building and Construction Commission (No 2) [2023] QCAT 54
2 citations
Jump To
Cite 1 - [2023] QCAT 54
Cite 2 - [2023] QCAT 54
Oaks Hotels & Resorts Ltd v Knauer [2020] QCATA 90
2 citations
Jump To
Cite 1 - [2020] QCATA 90
Cite 2 - [2020] QCATA 90
Pound v Queensland Building and Construction Commission [2023] QCAT 298
2 citations
Jump To
Cite 1 - [2023] QCAT 298
Cite 2 - [2023] QCAT 298

Cases Citing

Case NameFull CitationFrequency
Clark v Queensland Building and Construction Commission (No 2) [2024] QCAT 4542 citations
1

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