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Patel v University of Queensland (No 2)[2021] QCATA 122

Patel v University of Queensland (No 2)[2021] QCATA 122

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Patel v University of Queensland & Anor (No 2) [2021] QCATA 122

PARTIES:

ROHAN PATEL

(Appellant)

 

v

 

UNIVERSITY OF QUEENSLAND

(First Respondent)

ROBYN WARD

(Second Respondent)

APPLICATION NO:

APL 301-19

ORIGINATING APPLICATION NO.

ADL 021-18

MATTER TYPE:

Appeals, Anti-Discrimination matters

DELIVERED ON:

30 September 2021

HEARING DATES:

9 August 2021, 17 September 2021

HEARD AT:

Brisbane

DECISION OF:

Member Roney QC

ORDERS:

The Application for Leave to Appeal or Appeal is dismissed.

CATCHWORDS:

APPEALS – HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISABILITY OR IMPAIRMENT – EDUCATION INSTITUTIONS – where applicant was a student at the University of Queensland – where applicant diagnosed with psychiatric illnesses – where applicant disenrolled from the University – whether applicant subject by the respondents to direct and indirect discrimination based on an impairment when compared to a person in substantially the same position who does not suffer from this impairment

APPEAL FROM ORDER MAKING NO ORDER AS TO COSTS – COSTS – where applicant raised numerous claims including for direct discrimination against the university, which were all dismissed. – where applicant brought a complaint of victimisation against the university which was dismissed. – where only one of several claims succeeded – where applicant brought complaints against the Second Respondent, all of which were dismissed. – Relevance of a Calderbank offer by the Respondent – Whether there was error in the exercise of the discretion to order costs.

Queensland Civil and Administrative Tribunal Act 2009, s 100, 102(3), 107

Queensland Civil and Administrative Tribunal Rules 2009, r 86

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

Patel v University of Queensland & Anor [2019] QCAT 108

Queensland Racing and Integrity Commission v Bale [2017] QCATA 110

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

Ricchetti & Ors v Lanbuilt Pty Limited [2012] QCATA 111

McGee v Queensland Building and Construction Commission & Anor [2018] QCATA 214

APPEARANCES &

REPRESENTATION:

 

Appellant:

Self-represented

Respondents:

M Wichlinski, Norton Rose Fullbright

REASONS FOR DECISION

  1. [1]
    This matter concerns an application by the original Applicant in this Tribunal, Mr Rohan Patel, for leave to appeal a decision by Member Kent made on 19 August 2019 that the parties bear their own costs in the proceedings, and implicitly therefore, that no part of any claimed costs sought by the Appellant were to be paid by the Respondent university or Ms Ward.
  2. [2]
    The reasons which stand behind the making of those orders were delivered orally and are not set out in published reasons. They appear in the transcript which recorded the oral delivery of reasons which occurred on 29 August 2019.
  3. [3]
    The proceeding has had a long and difficult history. The Appellant came to Australia from the United States in 2012 to commence studies to complete a Bachelor of Medicine Bachelor of Surgery with the First Respondent the University of Queensland. In November 2013, the medical faculty at the university terminated his enrolment, but he appealed to the University of Queensland Senate, and that appeal was upheld.
  4. [4]
    There was then a long history of what might generally be described as conflict and disputation between him and the university in the period between having commenced the degree, and the events which ultimately led to his bringing an application for claims that he had been exposed to direct and indirect discrimination based upon an impairment that he had.
  5. [5]
    By October 2016, he had not passed the necessary subjects for him to conclude the degree but from his perspective he had one last course requirement, a remaining exam which was a practical exam.
  6. [6]
    The finding of the Tribunal which dealt with his claims of discriminatory conduct against the respondents[1] recite at length the history of his attempts to complete that practical exam and his ultimate exclusion from enrolment from the course in November 2017. He raised numerous claims in the proceeding which tried over a period of three days by this Tribunal on 10, 11 and 12 December 2018.
  7. [7]
    He brought complaints against the Second Respondent, all of which were dismissed. He brought claims of direct discrimination against the university, which were all dismissed. He brought a complaint of victimisation against the university which was also dismissed. He brought one claim of indirect discrimination relating to his being required to sit an examination on 25 January 2017 which concerned a contention that there was a failure to provide him with any feedback on prior unsuccessful attempts to sit the exam, and insisting that he sit an exam on 25 January 2017 despite being a temporary inpatient at a psychiatric ward at the time. There were other complaints of indirect discrimination, each of which was dismissed.
  8. [8]
    In respect of the only ground of discrimination which was upheld, namely that concerning the examination on 25 January 2017, he was awarded the sum of $2,000.00 by way of compensation for that conduct.
  9. [9]
    In the reasons of the Tribunal delivered 12 January 2019, it was identified that there would need to be material filed in respect of what was to occur in relation to costs in the proceeding, and detailed submissions were filed on behalf of both parties concerning the issue of costs.
  10. [10]
    It is unnecessary for present purposes to traverse all of the issues which are raised in those submissions. Suffice it to say that on behalf of the Appellant it was submitted that the First Respondent ought pay his costs to be agreed or assessed. It was contended that the Appellant ’s case was partially successful in the Tribunal and that the Tribunal’s observations concerning the conduct of the university towards him well justified the bringing and prosecution of the application. It was submitted that it was in the interests of justice that a costs order be made because:
    1. (a)
      The Appellant had been successful in obtaining relief on one of his grounds of complaint and costs ought follow the event;
    2. (b)
      The nature of the proceeding and the discriminatory act were significant, and the Appellant was a vulnerable person in a foreign country suffering from a mental health condition;
    3. (c)
      The complexity of the dispute was significant and required significant legal assistance;
    4. (d)
      The financial circumstances of the parties were such that the Appellant was disadvantaged as a young individual while the Respondent was a significant corporation with financial resources;
    5. (e)
      The Respondent had contested the factual basis for the discrimination claims in a way which was directly inconsistent with the position taken by the university at a different time and that this inconsistency of approach was unreasonable.
  11. [11]
    There had been an offer made by the First Respondent on a without prejudice basis save as to costs, on 5 November 2018 by which the Appellant had been offered at the sum of $20,000.00 to settle his claim. It was submitted for the Appellant  below that the making of that offer was an irrelevancy in terms of whether to afford him his costs, notwithstanding that it exceeded significantly the award of compensation given, because it would have resulted in the university avoiding a public finding concerning its conduct and the value to the Appellant  of such a finding far exceeded the difference between what he was awarded and what had been offered and his sense of personal aggrievement had been met by the findings which were made.
  12. [12]
    The Appellant’s costs submissions below included a reply submission dated 13 June 2019. That was directed to responding to the contention that on the basis of the failure to accept the offer, the Appellant ought not be ordered to pay the Respondents’ costs. It did not seek to advance the contention that the Respondents ought pay the Appellant’s costs.
  13. [13]
    In the reasons given by the Member on 29 August 2019, she recited the history of the proceeding broadly and in particular the directions that had been made concerning the filing of material in support of costs and applications. The Member dealt with the framework and terms of s 100 of the QCAT Act, and the factors listed in s 102(3) of the Act. She correctly set out what those provisions contained and referred to the well-known decision of the then President in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 and Queensland Racing and Integrity Commission v Bale [2017] QCATA 110 at [43] and Ascot v The Nursing and Midwifery Board of Australia [2010] QCAT 364 at [9]. The latter was cited for the proposition that the considerations identified in s 102(3) are not grounds for awarding costs, but 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. Reference was also made to costs provisions in s 107 of the QCAT Act concerning the fixing of assessment of costs.
  14. [14]
    The Member also made reference to the significance of the application of Rule 86 of the QCAT Rules, where offers to settle were made under that Rule. Reference was made in this context to the decision of this Tribunal in Ricchetti & Ors v Lanbuilt Pty Limited [2012] QCATA 111 and other authority which had considered the relevance of so called Calderbank offers. The fact that Calderbank offers were capable of having significance to the question of whether costs orders ought be made or as to the nature of what costs orders should be made in McGee v Queensland Building and Construction Commission & Anor [2018] QCATA 214 at 39.
  15. [15]
    The Learned Member set out in detail the submissions that had been made on behalf of the Appellant in support of his receiving an order for costs in the proceeding.
  16. [16]
    The Member also set out at length the submissions which had been made on behalf of the First Respondent in resisting an application for costs and indeed in support of its own application that the Respondents ought be paid their costs by the Appellant.
  17. [17]
    It is unnecessary in my reasons here to traverse the grounds upon which the Learned Member dismissed the Respondents’ application for orders for costs in their favour. In short, those submissions were that the Appellant had a weak case which lacked merit, and it should not have been brought and that the offer made ought to have been accepted.
  18. [18]
    In relation to the Appellant’s submission that the parties’ financial circumstances were significantly different, and this was some sort of David and Goliath contest in relation to availability of resources, the Member referenced the fact that the Appellant led no evidence concerning the financial circumstances of the university. She held that the parties’ respective financial positions was not the sole determinant of what should be the outcome of a costs application and that there was an absence of evidence containing any detail about the parties’ respective financial circumstances. She therefore concluded that those circumstances were not a factor which could have a significant impact upon the decision to order costs either way.
  19. [19]
    In relation to the Appellant’s contention that he was in debt because of legal costs in bringing the proceeding, she found there was again no evidence in relation to the issue from either side.
  20. [20]
    She referenced the fact that this had been a three day hearing with Senior Counsel representing parties on each side. She did not consider this to disclose a level of disadvantage by itself and that it was not a novel circumstance. She concluded that even if there was a level of disadvantage, that by itself did not displace the s 100 presumption.
  21. [21]
    In relation to the settlement offer, she accepted that the offer fell within the operation of Rule 86 in that it was a formal offer and in writing. It was an offer to settle the dispute between all parties. In relation to the Appellant ’s contention that the proceeding was not necessarily in aid of compensatory outcome alone, and the defining of discrimination as a valuable outcome independently of the amount of compensation, she accepted the significance of that submission and found that claims raising contentions of discriminatory conduct were not necessarily matters whose significance could be measured in monetary terms. She found that an offer that the Appellant withdraw his proceeding prior to the hearing on the basis that it would be a full settlement but with attendant restrictions on discussion of the matter placed upon him was not a better outcome than what the Tribunal found for the Appellant. She accepted that the Appellant’s case was not without merit. In the exercise of her discretion, having regard to the matters that were set out in those reasons, she concluded that an appropriate order was that each party pay their costs in the proceedings.
  22. [22]
    Specifically, in relation to the settlement offer, it was made approximately five weeks before the hearing proceeded and after a compulsory conference had been held. The offer had been left open for two weeks. It was what she described as one dimensional in that it went only to monetary outcomes.
  23. [23]
    After reciting the factors that the member regarded as relevant to exercise of the discretion to award costs to any award, she determined that none of them were such as to lead to a departure from the s 100 presumption that there be no order as to costs in the Tribunal and she therefore ordered that each party bears their own costs.
  24. [24]
    The bases upon which the Appellant seeks to challenge those findings on this Appeal were elusive at the time that he filed the application, and remained elusive throughout the course of the conduct of his application, including during the course of argument before me in a lengthy hearing of the present application which occurred on 9 August 2021 and in written material filed in support of his application.
  25. [25]
    In the application for leave to appeal filed 28 October 2019, he contended that he strongly disagreed with her conclusions on that issue. The rest of the grounds of appeal set out in that application do not however deal with the basis for what that frustration was, or for that matter, identify in any way any error that might be attributed to that decision. Indeed, in the four and a half pages of material said to set out the grounds of appeal, the findings in relation to costs are not otherwise referenced in any way. Instead, the grounds focus upon the complaints that he has about the findings which were made in the principal decision in which in large part his claims were dismissed.
  26. [26]
    Doing the best I can with those submissions for the Appellant, it seems that the essence of them was that there was behaviour on the part of the University which he regarded as harassment, bullying, inappropriate, discriminatory conduct, a breach of a duty of care and other such conduct. Those submissions set out criticisms of individual university staff members concerning various types of conduct about which he felt aggrieved.
  27. [27]
    At one point within those submissions for the Appellant, one can find the proposition that “the argument that parties bear own costs may well be fine within commercial litigation cases; nonetheless; the pattern of bullying and harassment from the then director of [the program] who refused to meet with my parents seems totally unacceptable (sic)”.
  28. [28]
    There were further submissions for the Appellant which made reference to the costs decision and about his need to be compensated for pain and suffering due to the negligence of the University. He referenced the fact that he had incurred legal costs for which he was in debt and that he did not have access to an inhouse legal team like the university and that this disparity between the parties “needs to be address in some manner (sic)”.
  29. [29]
    He concluded this summary of contentions by reciting a list of seven individuals against whom he sought there be a finding of accountability for their “adverse effect on [his] wellbeing”.
  30. [30]
    It was on those bases that he said he applied to appeal the costs decision.
  31. [31]
    I pause to mention that on 28 January 2021, this Tribunal dismissed an application for an extension of time to appeal the primary decision of 12 April 2019, on the basis that it was out of time, and that it was not appropriate to grant an extension of time for the appeal to proceed. The reasons for the refusal of that application were delivered on 28 January 2021 by Member Gordon. One of those grounds was that the proposed grounds of appeal had no apparent merit.
  32. [32]
    The Appellant was given numerous opportunities to file any further submissions that he sought to rely upon in support of his contention that his application for leave to appeal the costs order should be granted. He had that opportunity prior to the hearing which was originally listed before me on 9 August 2021. He then addressed the issue in argument on 9 August 2021, and I have taken into consideration everything that he said on that occasion about the basis for his application.
  33. [33]
    Because he had evidently failed to focus precisely upon the issues which he sought to raise in challenging the no costs order in that regard, the hearing of the application was adjourned from 9 August 2021 to 17 September where it resumed and the matter heard.
  34. [34]
    On 10 August 2021, the parties were notified of the new hearing date of 17 September. I made orders on 9 August, which were provided to the Appellant shortly thereafter, that he was to file any submissions he sought to rely on in the appeal and which are limited to the issues arising in the appeal from the costs decision of 19 August 2019 and 29 August 2019, and that he was to do so by 16 August 2021. He failed to file any such submissions and failed to explain that failure in any correspondence to the Tribunal.
  35. [35]
    The Appellant then sought an adjournment of the further hearing which was listed for 17 September. On 14 September, Member Howard ordered, and there was served on the Appellant, a, direction that he must file any application to adjourn the hearing together with supporting documents by 15 September and that his application would be heard on the papers.
  36. [36]
    On 16 September, Senior Member Howard refused that application and the matter proceeded before me on 17 September. The Appellant did not appear by telephone link-up from the United States where he resides during the hearing on 17 September, although he was emailed during the course of the hearing, again providing him with the dial-in details and indicating that the matter was being heard. He did not respond and did not appear during that hearing. The reasonable explanation for this is that he had decided that he would not appear. This is to be derived from email correspondence that he sent to the Tribunal on the day prior to the hearing in which he:
    1. (a)
      Contended that he was not sure why the adjournment application was refused;
    2. (b)
      Suggesting that QCAT was “corrupt”;
    3. (c)
      Contending that he had other professional responsibilities and that he was not prepared to extract himself from what he described as “essential pre-arranged professional agreements” to appear on the hearing;
    4. (d)
      Contending that QCAT was a “kangaroo court” and that this reflected the refusal to provide him with an adjournment;
    5. (e)
      Contending that the Anti-Discrimination Act was “archaic and obsolete at best” and contending that Australia was “a little behind the curve compared to the US in all facets of life, including discrimination – especially QCAT (sic)”;
    6. (f)
      Contending that he was physically unable to attend the hearing.
  37. [37]
    He was of course not required to physically attend the hearing and he never intended to appear physically at it. He had every opportunity to dial-in to the Tribunal hearing just as he had in the earlier hearing, but chose not to. He failed to take advantage of the opportunity to file submissions following the 9 August hearing which focused upon the basis upon which he sought to challenge the costs decision.
  38. [38]
    In my view the Appellant has failed to demonstrate on any coherent basis that there was any error attendant upon the finding made by the Member that the First Respondent ought not be subjected to an order that it pay his costs of the proceeding. Not only has he failed to articulate a basis to challenge those findings in any material filed, or in oral submissions, there is nothing in the Learned Member’s analysis of the relevant factors to be considered under s 100 of the QCAT Act which indicates that there was any error in her analysis of those factors or as to how they were relevant to the exercise of the discretion whether to award costs.
  39. [39]
    It might be fairly said that the First Respondent University was substantially, although not entirely successful in defending the various claims that it had engaged in discriminatory conduct, and that the Second Respondent was entirely successful in that regard.
  40. [40]
    To the extent that the Appellant succeeded, the only outcome that he achieved was a compensatory one, namely an award of $2,000.00, and no doubt a sense of satisfaction at there being a public finding adverse to the university. Whilst those two factors are not without significance, it is not difficult to arrive at the conclusion that in a hearing which occurred over three days and in which the Appellant was represented by very experienced Senior Counsel, and Junior Counsel as well, and the Respondents represented by Senior Counsel, that the costs would be very significant when compared to the compensatory amount awarded. Whilst it was relevant to consider non-compensatory success that the Appellant achieved, in my view it was not unreasonable for the Member to conclude, as she did, that the relevant factors she took into account in exercising her discretion properly led to the conclusion that there should be no order as to costs.
  41. [41]
    There was also the issue of the fact that an offer made five weeks before the hearing could have led to his achieving a compensatory award which was ten times that which he in fact recovered, although without being attended with a sense of satisfaction of an adverse finding against the university.
  42. [42]
    In all of the circumstances, it seems to be that the Appellant has failed to demonstrate any error on the part of the Member in refusing to grant him an award of costs against the university, and I therefore dismiss the application to leave to appeal and the Appeal.
  43. [43]
    Although the parties have not been heard in relation to the question of the costs of this application for leave to appeal, I should indicate that it is my preliminary view that any application for costs by either party would face considerable impediment.

Footnotes

[1] Patel v University of Queensland & Anor [2019] QCAT 108.

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Editorial Notes

  • Published Case Name:

    Patel v University of Queensland & Anor (No 2)

  • Shortened Case Name:

    Patel v University of Queensland (No 2)

  • MNC:

    [2021] QCATA 122

  • Court:

    QCATA

  • Judge(s):

    Member Roney QC

  • Date:

    30 Sep 2021

Appeal Status

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

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