Queensland Racing Integrity Commission v Kadniak
[2018] QCATA 34
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- Queensland Racing Integrity Commission v Kadniak[2018] QCATA 34
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Queensland Racing Integrity Commission v Kadniak[2018] QCATA 34
Queensland Racing Integrity Commission v Kadniak[2018] QCATA 34
CITATION: | Queensland Racing Integrity Commission v Kadniak [2018] QCATA 34 | |
PARTIES: | Queensland Racing Integrity Commission (Applicant) | |
| v |
|
| George Kadniak (Respondent) | |
APPLICATION NUMBER: | APL192-16 | |
MATTER TYPE: | Appeals | |
HEARING DATE: | On the papers | |
HEARD AT: | Brisbane | |
DECISION OF: | Justice Carmody | |
DELIVERED ON: | 7 March 2018 | |
DELIVERED AT: | Brisbane | |
ORDERS MADE: | THE APPEAL TRIBUNAL ORDERS THAT:
| |
CATCHWORDS: | ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – GENERALLY – where the respondent was the successful party in an appeal against the dismissal of disciplinary charges against him for procedural irregularity – where there is a strong contra indication against costs being awarded in tribunal proceedings – whether there is sufficient reason for departing from the statutory rule – where the applicant is ordered to pay the respondents costs in a fixed amount Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 102(1), 102(3) 107(1), 107(2) Bode v Queensland All Codes Racing Industry Board (No 2) [2017] QCAT 84 McEwen v Barker Builders Pty Ltd [2010] QCATA 49 Medical Board of Australia v Alroe [2016] QCA 120 Queensland All Codes Racing Industry Board v Abbott (No 2) [2016] QCATA 49 Racing Queensland Ltd v Cassidy (No. 2) [2012] QCAT 220 Tamawood Ltd & Anor v Paans (2005) 2 Qd R 101 Wolfgram v Racing Queensland [2012] QCAT 44 | |
APPEARANCES and REPRESENTATION (if any): |
|
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]The successful respondent to an appeal from the dismissal of misconduct charges by a disciplinary board (the applicant) applies for his costs of the proceeding calculated at $22,749.93.
The context
- [2]The applicant, a greyhound trainer, was initially disqualified for 18 months after pleading guilty to a presentation offence based on uncontradicted certificates of analysis issued by the same testing laboratory despite official assurances that the reserve sample would be independently tested. He later withdrew his plea and successfully appealed to a disciplinary board against both conviction and penalty. The control body, Racing Queensland, appealed from the board’s decision to the tribunal on questions of law.
- [3]The commission is party to the proceedings since replacing Racing Queensland on 1 July 2016. Its statutory role is to maintain standards within and the integrity of the racing industry and is funded by industry registration fees.
- [4]Both parties were represented at the appeal by Senior Counsel and solicitors.
The costs discretion
- [5]The tribunal has a discretion to make a costs order for all or a stated part of the costs of and incidental to proceedings, on either a standard or indemnity basis, if it considers the interests of justice require it.[1]
- [6]
The statutory bias against costs orders
- [7]Unlike civil litigation in the regular court system tribunal costs do not generally follow the event unless there is disqualifying conduct. On the contrary, the QCAT Act stipulates that ordinarily each party bears their own costs.[4]
- [8]The applicant relies on:
- legal complexity on the basis that the dispute involved compliance with a technical statutory testing regime;
- the control body’s persistence in prosecuting him despite having breached its own independent testing protocols for ensuring the integrity of analysis certificates;
- the loss of any other way of effectively questioning or rebutting the conclusivity of the certificate; and
- being misled that his interests were being protected by an independent laboratory when they were not.
- [9]Whether the cumulative effect of all these circumstances is compelling enough to overcome the statutory “contra indication against costs”[5] is a matter of judgment and degree. The s 102(3)(a)-(e) matters the tribunal may have regard to in deciding whether to award the respondent costs, relevantly, include whether the applicant acted vexatiously, obstructively or prejudicially in conducting the proceeding (or, conversely, there was any disqualifying conduct on the respondent’s part), the nature and complexity of the issues in dispute, the relative strengths of the rival claims and the parties’ comparative financial circumstances. A respondent’s success on appeal is clearly not sufficient in itself.
- [10]It is also true, as the commissioner points out, that a wholly successful party is not entitled to tribunal costs simply for experiencing financial hardship generally or as a result of the proceedings,[6] but, by the same token, depriving a successful party of appeal costs reasonably and necessarily incurred to protect his economic interests from attack by a taxpayer funded agency hardly serves the interests of justice.[7]
- [11]Regulators are not commonly forced to pay costs unless they have been unreasonable in some way and not merely unsuccessful in case it acts as a deterrent to fulfilling public duties.[8] A substantial merits disparity is unlikely to result in a costs order against a regulator where there was a real issue to be tried. However, one that takes unnecessary action or brings a weak or unmeritorious case on appeal may be.
- [12]Even where, as here, legal representation for both sides was justified the issue for the tribunal is whether justice demands that the respondent’s cost of retaining lawyers be borne by the commission instead of him.[9]
- [13]In Wolfgram v Racing Queensland[10] the costs of review proceedings were awarded despite late disclosure of an expert report because the control body had alleged dishonesty despite knowing that the system it relied on for guilty inferences was unsound and the application involved evidence of “quite complex IT matters”.[11] The applicant in that case also had multiple mortgages, a business overdraft, two dependent children and staff members.
- [14]The applicant says that he had no option to resist the appeal because of the threat of disqualification to his livelihood and considering his age any temporary suspension from the industry would have effectively ended his career. The applicant’s net assets and income positions are not disclosed but it can be implied that although he continued to train greyhounds in the interim he had no capacity to fund the entire appeal from his own resources. He had already absorbed the costs of the disciplinary board proceeding and he says denying him costs would impose an inordinate financial burden.
- [15]The commission submits that the applicant is no different from any other successful respondent to a tribunal appeal to the extent that he has little or no financial support or reduced earnings and, in any event, he has not provided any documentary evidence to substantiate his claim that he will suffer undue financial hardship unless costs are granted.
- [16]Like any other model litigant racing control bodies are obliged to try to avoid rather than provoke or pursue litigation wherever possible but there is no suggestion here that Racing Queensland acted capriciously, arbitrarily or needlessly to the disadvantage of the respondent in appealing.
- [17]It characterises the appeal as a genuine attempt to correct arguable legal errors. It argues that the appeal was “not so palpably weak, unreasonable or without support in the evidence that it ought not to have been pursued”[12] and that “it had strong claims” for taking action against the respondent for a rule violation based on two positive samples even though the appeal tribunal ruled that they were inadmissible or, at least, inconclusive.
- [18]The commission claims that[13] the tribunal was not faced with any novel or difficult questions and was not required to wrestle with unique or intricate legal or technical concepts nor did it have to engage in sophisticated reasoning to reach the result.
- [19]However, at [17] of its costs submissions the commission seems to concede at least in part that the basis of its appeal was “subject to the technicalities of (its own) testing regime”.
- [20]In my view, given the nature of the appeal and balance of relevant s 102(3) factors the application should be granted and the respondent should pay the applicant’s costs in the interests of justice.
- [21]The purpose of an appeal is to correct demonstrated error. To meet that challenge the commission had to persuade the appeal tribunal that the disciplinary board had misstated, misunderstood or misapplied any legal principle test or exercised a discretion to dismiss the charges it did not have based on a convention that had been overtaken or displaced by mandatory statutory procedures. It failed to do that.
- [22]At issue was whether a detailed statutory testing regime had been complied with so as to make certificates virtually conclusive of stated facts and almost impossible to successfully challenge. The reasons of judgment extend over 22 pages. Evidentiary principles and discretions are dealt with in 55 paragraphs and detailed consideration is given to estoppel issues and the admissibility of statutory certificates in strict liability cases.
- [23]The role of the independent analysis of the reserve sample is not only protective of greyhound owners and trainers against contamination or handling errors but guards against internal testing anomalies or systemic flaws but Racing Queensland insisted on using a certificate that on a plain reading and by convention it could (or should) not have.
- [24]The commission is ordered to pay the respondents costs of and incidental to the appeal proceeding in the amount fixed at $22,749.93 within 30 days.
Footnotes
[1] QCAT Act s 102(1).
[2] QCAT Act s 107(1).
[3] QCAT Act s 107(2); Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 86(2).
[4] QCAT Act s 100; Medical Board of Australia v Alroe [2016] QCA 120 [19]; Tamawood Ltd & Anor v Paans (2005) 2 Qd R 101.
[5] Bode v Queensland All Codes Racing Industry Board (No 2) [2017] QCAT 84 [59]-[60].
[6]Queensland All Codes Racing Industry Board v Abbott (No. 2) [2016] QCAT 49 [21].
[7] Tamawood Ltd & Anor v Paans (2005) 2 Qd R 101.
[8] Wolfgram v Racing Queensland [2012] QCAT 44 [26].
[9] Racing Queensland Ltd v Cassidy (No 2) [2012] QCAT 220.
[10] [2012] QCAT 44.
[11] Ibid [11], [15].
[12] Racing Queensland Ltd v Cassidy (No 2) [2012] QCAT 220 [8].
[13] Queensland All Codes Racing Industry Board v Abbott (No. 2) [2016] QCATA 49 [13].