Hoogendoorn v State of Queensland and Anor No 3
[2024] QCAT 356
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- Unreported Judgment
- Hoogendoorn v State of Queensland and Anor No 3[2024] QCAT 356
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Hoogendoorn v State of Queensland and Anor No 3[2024] QCAT 356
Hoogendoorn v State of Queensland and Anor No 3[2024] QCAT 356
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Hoogendoorn v State of Queensland and Anor No 3 [2024] QCAT 356 |
PARTIES: | Michael John Hoogendoorn (applicant) v state of queensland (queensland corrective services) (respondent) SERCO AUSTRALIA PTY LTD (second respondent) |
APPLICATION NO/S: | ADL038-18 |
PARTIES: | Michael John Hoogendoorn (applicant) v state of queensland (queensland corrective services) (first respondent) LUKE MAKEJEV (deceased) (third respondent) Dr CAMERON STIRLING (fourth respondent) |
APPLICATION NO/S: | ADL067-17 |
MATTER TYPE | Anti-Discrimination matters |
DELIVERED ON: | 2 August 2024 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member King-Scott |
ORDERS: | Each party pays their own costs. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – GENERALLY – where interests of justice do not require costs order – where claim not entirely unmeritorious – where mental illness affecting conduct – where costs provisions construed beneficially to give full effect to objects and purposes of the Anti-Discrimination Act 1991 (Qld) – where costs order would cause significant financial hardship Anti-Discrimination Act 1991 (Qld), Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 BB v State of Queensland No 2 [2021] QCAT 148 Carey v Cairns Regional Council and Ors (No 2) [2011] QCAT 372 Harrison v Terra Search Ltd & Ors [2014] QCAT 128 McEwen v Barker Builders Pty Ltd [2010] QCATA 49 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 Watego v State of Queensland and ors (costs) [2023] QCAT 292 |
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) |
REASONS FOR DECISION
- [1]On 30 April 2024 I dismissed both of the Applicant’s applications. I ordered that the parties exchange submissions on costs. All parties have complied.
- [2]Section 100 of the Queensland Civil and Administrative Act 2009 (the Act) provides that the general rule is that each party must bear its own costs for the proceeding.
- [3]The Respondents submits that the Tribunal’s powers to award costs in the interests of justice are enlivened per s 102(3)(a) and (f) of the Act.
- [4]Section 102 of the Act provides the Tribunal with a discretion to order costs in the interests of justice. Section 102 of the Act provides:
- 102Costs against party in interests of justice
- (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.
- (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.
- (3)In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
- (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)…
- (e)the financial circumstances of the parties to the proceeding;
- (f)anything else the tribunal considers relevant.
- [5]The First respondent referred to the decision of Ascot v Nursing & Midwifery Board of Australia[1] where Deputy President Kingham DCJ stated:
The public policy intent of the provisions in the QCAT Act is plain. The Tribunal was established as a no costs jurisdiction. That may be departed from where the interests of justice require it. The considerations identified in s 102(3) are not grounds for awarding costs. They are factors that may be taken into account in determining whether, in a particular case, the interests of justice require the Tribunal to make a costs order.
- [6]Applications for costs in anti-discrimination matters gives rise to special considerations as referred to by Member Roney SC in Carey v Cairns Regional Council and Ors (No 2)[2], he said at [13]:
I respectfully agree with the approach that the President has taken in Ralacom and the McEwen decisions. That means that the relevant task is to proceed on the basis that there is a statutory presumption that parties will bear their own costs in a proceeding for the Tribunal, including those in the Human Rights jurisdiction of the Tribunal but that presumption may be displaced if the Tribunal considers it in the interests of justice to order a party to pay some or all of the costs of another.
- [7]At paragraphs [19] and [20] he said:
… It is submitted that cases under the Anti-Discrimination Act form a special class of cases because they involve claims or applications relating to fundamental human rights. In that context, it is submitted that s 102 should be construed “beneficially” and in a manner which gives effect to the objects and purposes of the Anti-Discrimination Act, and in particular those set out in s 6 to “promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work”.
That such claims are in a special class which give rise to different considerations when questions of costs arise, has been recognised previously in the State in decisions of the Anti-Discrimination Tribunal. … Typically, this consideration has been applied to deny to a successful Respondent orders for the recovery of costs against an unsuccessful complainant.
Respondents’ submissions
- [8]The First Respondent submits that the statutory presumption is displaced as the Applicant has acted in such a way that his conduct of proceeding has unnecessarily disadvantaged the First Respondent. Examples are:
- (a)Relevant to section 48(1)(a) of the Act, the Applicant repeatedly failed to comply with Tribunal orders or directions without reasonable excuse, and this conduct resulted in significant unnecessary delay and expense.
- (b)The Second and Fourth Respondents (with whom the First Respondent agreed) filed submissions advocating for the proceeding to be determined on the papers. At a directions hearing on 20 May 2022, the Applicant objected to the matter being heard on the papers.
- (c)Pursuant to the directions issued by the Tribunal on 18 February 2022, all parties’ submissions ought to have been filed by no later than 29 April 2022, and the matter ought to have been ready for hearing subject to dealing with the removal of Mr Makejev from the proceedings. The Applicant's disregard for compliance with Tribunal directions ultimately resulted in the matter being listed for hearing over 18 months later. In the period between 30 April 2022 and 11 December 2023, the Second Respondent and Fourth Respondent incurred unnecessary cost associated with:
- (i)The application for miscellaneous matters filed by the Applicant on 19 September 2022, by which the Applicant sought leave to file amended contentions and new evidence;
- (ii)The submissions filed by the Applicant on 10 March 2023, by which the Applicant sought leave to file new evidence;
- (iii)The application for miscellaneous matters filed by the Applicant on 6 June 2023, by which the Applicant sought leave to file amended contentions and new evidence;
- (iv)The multiple applications for extensions of time filed by the Applicant on 6 February 2023, 1 July 2023, and 10 August 2023; and
- (v)Appearing at the hearing between 7 and 11 December 2023, in circumstances where it would have been appropriate for the matter to be determined on the papers.
- (d)Since commencing the proceedings in 2017, the Applicant has filed over 900 pages of evidence and submissions (mostly hand-written, which required transcribing by the solicitors acting for the Second and Fourth Respondents). The Applicant made no attempt throughout the course of the proceedings to limit the volume and scope of the evidence upon which he sought to rely, and instead sought at every opportunity to introduce additional evidence and new arguments.
- [9]By reference to the balance of the factors in section 102(3) of the Act, it is submitted on behalf of the Second Respondent and Fourth Respondent that:
- The subject of the dispute ought not to have been complex. However, the way in which the Applicant conducted the proceedings introduced unnecessary complexity;
- The Applicant was wholly unsuccessful in his claims against the Second Respondent and the Fourth Respondent; and
- The Second Respondent and Fourth Respondent are not aware of the Applicant's financial circumstances.
- [10]For the reasons outlined above and the affidavit of Lara Radik affirmed on 23 May 2024, the Second Respondent and the Fourth Respondent sought an order for costs against the Applicant fixed in the amount of $16,350.00.
- [11]The First Respondent advised that its legal costs in defending the two matters is substantially in excess of $200,000.00 excluding GST.
Applicant’s submissions
- [12]The Applicant submits:
- (a)He never intentionally failed to comply with the Tribunal’s directions;
- (b)In 2020 an agreement was reached following a compulsory conference between the parties that was overturned on appeal and the matter was returned to the Tribunal for hearing. He says that delayed the hearing of the matter.
- (c)He was entitled to cross examine the Respondents’ witnesses and hence entitled to a hearing.
- (d)Being self-represented he was disadvantaged by not being legally trained and although he did receive some legal advice it was insufficient.
- (e)He relied upon the decision of member Hughes in Isles v State of Queensland No 2[3] where Member Hughes made the following observations:
- Unmeritorious claims should not be encouraged due to the unnecessary cost to the parties and the whole community. Much material was unnecessary, adding complexity. But these factors do not outweigh the reticence to order costs in the Tribunal’s human rights jurisdiction. In this jurisdiction, parties are often not legally represented, and the adequacy of the contentions are to be considered in a reasonable, realistic and pragmatic way.
- (citations omitted)
- (f)He further relied upon the decisions of BB v State of Queensland No 2 [2021] QCAT 148 and Harrison v Terra Search Ltd & Ors [2014] QCAT 128.
- (g)He has spent 10 years in prison and has been unemployed since his release. His sole source of income has been the Disability Support Pension. He is unemployable because of his mental illness. He is indebted to Centrelink and the value of his personal possessions would not exceed $5,000.00.
Resolution
- [13]Many of the Applicant’s contentions lacked merit and much of his case was barely arguable, however, at the core was a factual issue that required determination. I observed in my reasons that much of the Applicant’s written material was incomprehensible, voluminous, verbose and often repetitive. His oral evidence was given in a similar vein. I observed in my reasons that his behaviour was undoubtedly influenced by his mental illness of schizophrenia and B personality traits characterised by dramatic, overly emotional and/or unpredictable thinking or behaviour.
- [14]I also accept that there was a delay in the matter moving to a hearing due to the agreement following the compulsory conference being overturned on appeal and the delay associated with that procedure.
- [15]Member Gordon in Watego v State of Queensland and ors (costs)[4] considered the meaning of the expression ‘interests of justice’ in section 102 and construed its meaning both in the private sense of what is fair to the parties but also in the public interest sense, which includes the interests of the administration of justice by the tribunal. In that case the applicant was ordered to pay a proportion of the costs. The Member observed that on any objective assessment of her case she had poor prospects. Nevertheless, despite being legally represented she proceeded with her claim for racial discrimination.
- [16]In my opinion the Respondents here are better able to bear the costs of the proceedings (which I accept are significant) than the Applicant. The financial position of the Applicant is not disputed by the Respondents. Any costs order against the Applicant would be otiose. Had the Applicant not been affected by mental illness I may have been minded to make and order for costs in favour of the Respondents. However, in all the circumstances, I do not consider that it is in the interests of justice to do so.
- [17]There will no order as to costs.