Thorne v Toowoomba Regional Council (No 2)
[2018] QCATA 101
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- Thorne v Toowoomba Regional Council (No 2)[2018] QCATA 101
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Thorne v Toowoomba Regional Council (No 2)[2018] QCATA 101
Thorne v Toowoomba Regional Council (No 2)[2018] QCATA 101
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Thorne v Toowoomba Regional Council and Another (No 2) [2018] QCATA 101 |
PARTIES: | LAUREN EDWINA THORNE (appellant) |
| v |
| TOOWOOMBA REGIONAL COUNCIL (first respondent) KELVIN TYTHERLEIGH |
APPLICATION NO: | APL255-16 |
ORIGINATING APPLICATION NO: | ADL053-15 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 9 July 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Guthrie |
ORDERS: | The application for costs by Lauren Edwina Thorne is refused. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the appeal relates to the basis and quantum of damages – where the starting point is parties bear their own costs – whether a costs award in favour of the appellant is in the interests of justice – whether the interests of justice overcome the strong contra-indication against a costs order – where the respondents were not required to alert the Tribunal to what was found to be a failure to accord procedural fairness – where there is a contingency factor – where the contingency factor does not prevent a costs award if one is in the interests of justice – where the costs award is not in the interests of justice – where the application for costs is refused Anti-Discrimination Act 1990 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 29, 100, 102 Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364 Carey v Cairns Regional Council and Ors (No 2) [2011] QCAT 372. Cairns Regional Council and Ors v Carey [2012] QCATA 151. Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 |
REPRESENTATION: |
|
Applicant: | A Boe of Counsel, with P Kinchina of Counsel, instructed by Caxton Legal Centre |
Respondent: | Mr K Watson of Counsel instructed by D Clifford, Clifford Gouldson Lawyers |
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]Lauren Thorne successfully appealed that part of the decision of the learned hearing member which declined to award compensation for economic loss and against the amount of general damages. The Appeal Tribunal has received submissions as to whether an order for costs should be made in the appeal.
- [2]Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that each party to a proceeding must bear their own costs for the proceeding. However, that section also provides that different provisions on costs may be found in other sections of the QCAT Act or in an enabling Act. The enabling Act relevant to anti-discrimination complaints is the Anti-Discrimination Act 1990 (Qld). There are no costs provisions contained in that Act. If an order for costs of the successful appeal is to be made, then a section in the QCAT Act other than s 100 must be successfully invoked.
- [3]Section 102 of the QCAT Act contains the grounds which may allow a party such as Lauren Thorne to recover costs in the appeal. Section 102(1) provides that QCAT 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. It has been held by A Wilson J that the circumstances, relevant to the exercise of discretion inherent in a finding of what is in the interest of justice in any given case, must point so compellingly to a costs award that they overcome the strong contra-indication against a costs order set out in s 100.[1]
- [4]In deciding whether to make a costs order in favour of a party to a proceeding, QCAT may have regard to the factors set out in s 102(3) of the QCAT Act. The matters set out in subsection 3 are not grounds for awarding costs but are factors which may be taken into account.[2] Ms Thorne has submitted that the Appeal Tribunal should take into account the relative strength of the claims of the parties, the nature and complexity of the dispute, the actions of the respondents in the proceeding and her financial position, being some of the factors specifically set out in subsection 3 of s 102. Ms Thorne also submits that there are two other factors that should result in the exercise of discretion in her favour: namely that she was not legally represented at the initial hearing when she was denied natural justice, and the nature of the complaint upheld by the Tribunal involved the protection of her human rights.
- [5]In order to consider properly how the factors in s 102(3) should be applied, it is necessary to look at why the appeal by Ms Thorne was successful. The appeal was not about the finding of unlawful discriminatory conduct by the respondents. The appeal was about the basis and quantum of damages. There was found to be error at the original hearing of the complaint when the Tribunal did not explain to Ms Thorne that she needed to provide evidence to substantiate the recovery of damages for past economic loss and for general damages. It was also found that an inference could be drawn that the Tribunal had erred in how it had exercised its discretion in determining the award made for general damages.
- [6]While an error made by the Tribunal in denying Ms Thorne procedural fairness at the hearing was ultimately the factor which resulted in success of the appeal against quantum, it was the failure of Ms Thorne to produce adequate evidence about her past economic loss and non-economic loss which was causative of the member making the findings she did and not the actions or arguments of the respondents. As the respondents raised in their submissions on costs, the Appeal Tribunal had been significantly motivated by its view that the hearing member had failed to adequately apply the obligations set out in s 29 of the QCAT Act to ensure each party to the proceeding understood the practices and procedures of the Tribunal and the nature and implication of the legal assertions at the hearing.
- [7]Neither Ms Thorne nor the respondents raised in their submissions in the appeal an argument that the hearing member had failed to discharge the obligations in s 29 of the QCAT Act. This issue was raised by the Appeal Tribunal at the oral hearing of the appeal and the parties were given the opportunity to consider the impact that the issue may have on the outcome of the appeal. Despite the reliance of the Appeal Tribunal on s 29 in finding that there had been a failure to accord procedural fairness to Ms Thorne, she had clearly relied on a lack of procedural fairness in general terms as the grounds of her appeal against the quantum findings of the hearing member. In that respect, the appeal would have been allowed even if the Appeal Tribunal had not considered that s 29 had a role to play in its determination.
- [8]In addressing the s 102(3) factors, Ms Thorne submitted that the respondents should have been aware that Ms Thorne was being denied natural justice and should have alerted the member to the issue. The respondents submitted that they did not cause or contribute to the miscarriage of the matter. They submitted that Ms Thorne chose to be unrepresented which carried the risk that her case might not have been properly articulated or that there might be a lack of proper evidence from the claimant to establish her claim. They submitted that none of this was the fault of the respondents.
- [9]Ms Thorne submitted that the first respondent had a duty to act as the model litigant. Ms Thorne did not specify how the first respondent failed to apply the Model Litigant principles in this case. The Appeal Tribunal has been given no basis to find that those principles are capable of being interpreted as requiring a State agency to actively seek to repair deficiencies in another party’s case.
- [10]The Appeal Tribunal is not persuaded that arguments (to assist the Tribunal with the presentation of issues in a legal framework supported by authoritative references to legislation and case law) put by the respondents in favour of their being granted leave to be legally represented can be interpreted as giving rise to a positive obligation to alert the Tribunal to what was found to be a failure to accord procedural fairness to Ms Thorne. The Appeal Tribunal is satisfied with the argument made by the respondents that the best course is to rely on the Tribunal to discharge its responsibilities correctly.
- [11]The parties have correctly submitted that the appeal raised matters of law which have a degree of complexity. The Appeal Tribunal was assisted by the legal representatives of the parties in the appeal, as the complex issues inherent in the appeal were able to be comprehensively considered.
- [12]Ms Thorne succeeded in three out of four grounds of appeal. Her grounds of appeal were obviously sound, even if they did not rely on s 29 of the QCAT Act. However, the respondents submitted that they had not sought to uphold a weak or obviously untenable position in the appeal. They argue that they should not suffer a costs penalty in the appeal in the absence of any conduct on their part which founded the procedural error.
- [13]The Appeal Tribunal does not attribute any action on the part of the respondents to the procedural error that determined the appeal in favour of Ms Thorne. However, it is not unusual that when errors of law are made, there is no direct contribution to that error by one or more of the parties. Such a circumstance does not forestall a party being held liable for costs of the appeal if it is in the interests of justice that a costs order is made and when the interests of justice may in such a case require an outcome where the successful appellant avoids the imposition of their costs of the appeal.
- [14]Ms Thorne is employed and owns real property. She has submitted that her liability to pay legal costs to her counsel for their retainer in the appeal and for the costs of her solicitors is largely contingent on an order for costs being made against the respondents. Ms Thorne has not had to pay the cost of obtaining the transcript of the hearing as those costs were paid by LawRight although she may have to refund those costs if the Appeal Tribunal makes an order for costs in her favour.
- [15]Ms Thorne also submitted that a further relevant factor for the Appeal Tribunal to take into account arose from the nature of her proceeding, namely a complaint seeking to protect her human rights. It has been recognised that there may be a public interest factor in making an order for costs in such cases.[3] However, while such a factor can be taken into account, there is no general rule that successful anti-discrimination claimants should, on a prima facie basis, expect to obtain orders for costs more readily than claimants in other QCAT jurisdictions.[4]
- [16]Weighing up the factors in s 102(3), the Appeal Tribunal cannot reach a conclusion that the circumstances in this case point so compellingly to the making of a costs award so that the strong contra-indication against a costs order set out in s 100 is overcome. The actions of the respondents could not be said to be causative of the error made at the original hearing. While it is not denied that the issues in the appeal were complex and the case put forward by Ms Thorne in her appeal was strong, Ms Thorne is not facing an untenable financial burden if an order for costs of the appeal were not to be made.
- [17]The parties do not deny that the primary position set out in the QCAT Act is for each party to bear their own costs. It is a reasonable inference that they were aware of that position at the time that they engaged legal representation in the appeal. Ms Thorne will not have the fruits of her successful complaint and appeal swallowed up by a costs liability as her liability is contingent on a costs order being made. In some cases the presence of that contingency factor would not inevitably prevent a costs order being made if there are sufficient factors to satisfy the Appeal Tribunal that the interests of justice require the making of a costs order. This is not such a case.
- [18]However, as the appeal arose essentially from an error being made by the Tribunal when trying to find the correct balance between assisting an unrepresented claimant to properly present her case and giving advice that did not overstep the bounds of neutrality, the Appeal Tribunal cannot find that the factors in s 102(3) are such as to make a compelling basis for a costs order in favour of Ms Thorne.
- [19]The application for costs by Ms Thorne is dismissed.