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Graham v Queensland Racing Integrity Commission (Costs)[2023] QCATA 97

Graham v Queensland Racing Integrity Commission (Costs)[2023] QCATA 97

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Graham v Queensland Racing Integrity Commission (Costs) [2023] QCATA 97

PARTIES:

Darrel william graham

(applicant)

v

queensland racing integrity commission

(respondent)

APPLICATION NO:

APL 229-19

ORIGINATING APPLICATION NO:

OCR 174-16

MATTER TYPE:

Appeals

DELIVERED ON:

30 May 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

The applicant’s application for costs of the proceeding in the Tribunal at first instance and on appeal is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – costs – where applicant unsuccessful in the Tribunal at first instance but successful on appeal – whether the interests of justice require an order for costs

Commercial and Consumer Tribunal Act 2003 (Qld) (now repealed), s 70

Racing Act 2002 (Qld)

Queensland Civil and Administrative Tribunal Act 2009, s 43(2)(b)(ii), s 100, s 102, s 102(3), s 105, s 107

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 65, r 86, r 86(2), r 87, r 87(2)

ACDG Pty Ltd trading as Swimin Construction v Bryant (No. 2) [2017] QCAT 216

Anderson v Nick Ruhle Holmes Pty Ltd & Anor (No. 2) [2012] QCAT 530

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

Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs) [2022] QCAT 225

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

CH v Queensland Police Service [2021] QCATA 137

Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225

Cowen v Queensland Building and Construction Commission [2021] QCATA 103

Di Carlo v Dubois & Ors [2002] QCA 225

Fast Track Access Financial (Beaudesert) Pty Ltd v & Anor v Charter & Anor (No. 2) [2012] QCATA 172

Graham v Queensland Racing Integrity Commission [2018] QCAT 198

Graham v Queensland Racing Integrity Commission [2021] QCATA 125

Health Ombudsman v Barber (No.2) [2019] QCAT 252

Health Ombudsman v Kennedy (No.2) [2021] QCAT 88

Magill v Queensland Law Society [2020] QCAT 327

Marzini v Health Ombudsman (No. 4) [2020] QCAT 365

Medical Board of Australia v Putha [2014] QCAT 159

Medical Board of Australia v Wong [2017] QCA 42

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments CTS 17653 (No. 2) [2010] QCAT 412

Rattray v Queensland Racing Integrity Commission [2016] QCAT 439

Rattray v Queensland Racing Integrity Commission [2018] QCATA 39

Rao v Medical Board of Australia (No. 2) [2021] QCAT 391

Tamawood Ltd & Anor v Paans [2005] QCA 111

Warren v Queensland Law Society Incorporated (No. 2) [2003] QCAT 234

REASONS FOR DECISION

Introduction

  1. [1]
    The applicant, Darrel William Graham, has made application to the Appeal Tribunal for an order requiring the respondent, Queensland Racing Integrity Commission, to pay his costs following his successful appeal to the Appeal Tribunal[1] against the decision of the Tribunal at first instance[2].
  2. [2]
    The order of the Appeal Tribunal, for the reasons following, is that the applicant’s application for costs of the proceeding in the Tribunal at first instance and on appeal is dismissed.

Background

  1. [3]
    The background to the appeal is summarised by Senior Member Howard (as her Honour then was) in the Appeal Decision.[3]
  2. [4]
    The applicant was a member of the horse racing industry as a licenced driver and trainer.  He was charged with a disciplinary offence following the presentation of the gelding Mafuta Vautin for a harness race at Albion Park raceway on 30 May 2015.  A sample of urine taken from the horse prior to the race was analysed and found to contain cobalt above the maximum level allowed under the Australian Harness Racing Rules (AHR Rules).
  3. [5]
    The racing stewards found the applicant guilty of the offence charged and disqualified him for a period of fifteen months.  An internal review by the respondent confirmed the decision of the stewards.

Review of the internal review decision

  1. [6]
    The applicant applied to the Tribunal for a review of the internal review decision.  The central issue in the review was the validity or evidentiary value of four certificates of analysis:
  1. (a)
    a certificate of Racing Science Centre (RSC) dated 26 June 2015 (first RSC certificate);
  2. (b)
    a certificate of ChemCentre dated 7 July 2015 (ChemCentre certificate);
  3. (c)
    a certificates of RSC date 5 January 2016 (second RSC certificate); and
  4. (d)
    a certificate of Racing Analytical Services Ltd (RASL) dated 8 March 2018 (RASL certificate).
  1. [7]
    The Tribunal held the first RSC certificate and RASL certificate are valid and, by virtue of rule 191(3) of the AHR Rules, conclusive evidence the horse was not presented free of a prohibited substance above the prescribed threshold.[4]  In effect, the Tribunal confirmed the internal review decision but reduced the period of suspension to twelve months.

Appeal

  1. [8]
    The applicant appealed to the Appeal Tribunal (constituted by the then Deputy President, Allen DCJ, Presiding Member, and Senior Member Howard) against the decision of the Tribunal at first instance.[5]  The Presiding Member held that none of the certificates are prima facie evidence of the matters certified[6] or otherwise proof of the offence[7].
  2. [9]
    Senior Member Howard held the Tribunal at first instance erred in the construction of the statutory scheme in deciding the first RSC certificate and RASL certificate constituted conclusive evidence the horse was not presented free of a prohibited substance.  None of the four certificates were admissible as prima facie or conclusive evidence for the purposes of rules 191(1) – (3) of the AHR Rules, nor, to the extent the Tribunal concluded otherwise, pursuant to rule 191(6), as proof of the charge being “... established in other ways ...”[8]
  3. [10]
    The appeal was allowed, the decisions of the respondent and Tribunal at first instance were set aside, and a decision the applicant is not guilty of the offence charged substituted for the decision of the respondent.
  4. [11]
    The applicant now applies to the Tribunal for an order requiring the respondent to pay his costs of the proceeding in the Tribunal at first instance and in the Appeal Tribunal.

Legislation

  1. [12]
    Division 6 of Chapter 2 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) provides for the costs of the parties to a proceeding before the tribunal.  Sections 100 and 102 provide:
  1. 100
    Each party usually bears own costs
  1. 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. 101
    ...
  1. 102
    Costs against party in interests of justice
  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. [13]
    Section 105 contains a further power to award costs.  It 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. [14]
    The tribunal must fix the costs, if possible.[9]  If it is not possible to fix the costs having regard to the nature of the proceeding, the tribunal may make an order requiring that the costs be assessed under the rules.[10]   The rules may provide that costs must be assessed by reference to a scale under the rules applying to a court.[11]
  1. [15]
    Also of relevance to costs is rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (QCAT Rules).  It contains an additional power to award costs if an offer to settle is rejected, in the following terms:
  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. [16]
    Rule 87 of the QCAT Rules provides for how costs are to be assessed under section 107 of the QCAT Act if the tribunal makes a costs order that requires the costs be assessed under the rules.  The costs must be assessed by an assessor appointed by the tribunal and, if the tribunal directs the costs be assessed by reference to a scale of costs applying to a court, by reference to the scale of costs directed by the tribunal.[12]

Two lines of authority

  1. [17]
    As has been said in several decisions of the Tribunal, there are two lines of authority on the approach to be adopted by the Tribunal in deciding an application for costs under section 102 of the QCAT Act.  The first, or traditional, approach is that articulated by Alan Wilson J, then the President of the Tribunal, in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments CTS 17653 (No. 2)[13].  His Honour, at [4] and [5], said:
  1. 4.
    The starting point concerning costs in QCAT is that each party must bear its own: QCAT Act, s 100.  This presumption may, however, be displaced if the Tribunal considers it in the interests of justice to order a party to pay all or part of the costs of another party: s 102(1).  The phrase “in the interests of justice” is not defined in the Act but is to be construed according to its ordinary and plain meaning, which obviously confers a broad discretionary power on the decision-maker.
  1. 5.
    In determining whether it is in the interests of justice to award costs against another party the Tribunal may have regard to the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; and, whether a party has acted in a way that unnecessarily disadvantages another party: QCAT Act, s 102(3).
  1. (Citation omitted and emphasis added)
  1. [18]
    Later, after referring to comments by Keane JA (as his Honour then was) in Tamawood Ltd & Anor v Paans[14], decided under the costs’ provision of the Commercial and Consumer Tribunal Act 2003 (Qld) (now repealed), and observing the comments must be considered bearing in mind the differences between section 70 of that Act and section 100 of the QCAT Act, his Honour continued:

Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.[15]

  1. [19]
    The second, or more recent approach, is that sections 100 and 102 of the QCAT Act should be read together.  The relevant test, it is said, is whether the interests of justice require a costs order.
  2. [20]
    In Marzini v Health Ombudsman (No. 4)[16], Judicial Member McGill reviewed, in detail, the decided cases on the operation of sections 100 and 102 of the QCAT Act, starting with Ascot v Nursing and Midwifery Board of Australia[17].  There, the then Deputy President of the Tribunal, Kingham DCJ, said:

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.[18]

  1. [21]
    After referring to several further cases on costs, Judicial Member McGill commented on the formulation of the test by Alan Wilson J in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments CTS 17653 (No. 2)[19] in the following terms:

The formulation of A Wilson J has subsequently been widely accepted as stating the correct approach to these provisions, but the wording is curious.  There is nothing in the terms of s 100 to show a “strong contra-indication” against costs orders.  Leaving aside the reference to a provision of another Act, when s 100 and s 102 are read together, the position is that no order for costs is to be made unless the Tribunal considers the interests of justice require it to do so.  This is in essence the interpretation attributed to the terms of the earlier Act in Tamawood at [28].  The QCAT Act provisions could have been drafted to entrench that approach.  The terms of the sections make it clear that the starting point is that no order for costs is to be made, but authorises a costs order if the interest of justice require it.  The use of the word “require” suggests that the interests of justice must clearly support a costs order; but to say that they must do so “compellingly”, and to treat s 100 as having “a strong contra-indication against costs orders”, is to read into the statutory discretion restrictions which are not based on the terms of the Act.[20]

  1. [22]
    The Judicial Member later referred to Medical Board of Australia v Wong[21].  There, the Queensland Court of Appeal (Philip McMurdo JA, with whom Morrison JA and Mullins J agreed), described section 100 of the QCAT Act as “... the default position ...”[22]
  2. [23]
    Further decisions were referred to by the Judicial Member, including Magill v Queensland Law Society[23] where the then President of QCAT, Daubney J, at [6] – [8], said:
  1. [6]
    It is, therefore, clear that the Tribunal retains a discretion to award costs if it “considers the interests of justice require it to make the order”.  Section 102(3) enumerates a number of matters to which the Tribunal may have regard when considering the interests of justice in a particular case.  Those matters and their utility have been described in the following terms:

The factors listed in s 102 are a guide to the considerations the Tribunal may take into account in deciding whether this is an appropriate case in which to award costs. In any given case, the relative importance of each criterion will vary. Further, their significance may relate to what stage the proceedings have reached. For example, questions about the relative strengths of the parties’ cases may assume less significance upon an initial hearing, yet loom large when it comes to the costs of an application for leave to appeal.

  1. [7]
    These factors, individually and collectively, are not determinative, and go only to informing the exercise of a broad discretion, the touchstone of which remains the Tribunal’s assessment of the interests of justice in a particular case.  The discretion to award costs will only be exercised when the interests of justice in a particular case outweigh the prima facie “no costs” position under s 100.  In that regard, Alan Wilson J, when President of the Tribunal, said in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2):

Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.

  1. [8]
    That proposition has since been consistently adopted and applied in the Tribunal, including in Warren v Queensland Law Society Incorporated (No 2) and Fast Access Finance (Beaudesert) Pty Ltd v Charter (No 2). (Citations omitted)
  1. [24]
    His Honour later described the Tribunal’s review jurisdiction as existing “... in a prima facie “no costs” environment…”[24]
  2. [25]
    Judicial Member McGill then summarised his conclusion on the correct approach to the operation of sections 100 and 102 of the QCAT Act in the following terms:
  1. [36]
    In my opinion the correct approach to the operations of s 100 and s 102 of the QCAT Act is similar to that formulated by the Hon P Lyons QC in Thompson v Cannon (supra): The ultimate question posed by the statutory provisions is whether in a particular case the interests of justice require the Tribunal to make a costs order.  That is the effect of the terms of the statute.  Because of the use in s 102(1) of the word “require”, the default position of no order as to costs should not be too readily departed from.  I respectfully agree with the approach of the Hon J B Thomas QC in Lee (supra) to the comments of Keane JA in Tamawood (supra), and with his analysis of the considerations relevant to the interests of justice in disciplinary proceedings in Antley (supra).
  1. [37]
    I do not consider that there is any justification in the words of the statute for any further constraint on the operation of the power to order costs under s 102, although the section directs attention to a number of matters which may in a particular case be usefully considered.  The reference to “any other matter the Tribunal considers relevant” shows that this list is not to be read in a confining sense.  One matter which is relevant is that this proceeding is one where there was a right to legal representation.

Decisions since Marzini v Health Ombudsman

  1. [26]
    There have been several decisions on costs since the decision in Marzini v Health Ombudsman (No. 4)[25].  In Cowen v Queensland Building and Construction Commission[26], Judicial Member McGill adhered to his views on the interpretation and application of sections 100 and 102 of the QCAT Act, adding:
  1. [25]
    There are two particular matters I should mention.  One is that in Marzini I did not particularly discuss the QCAT Act s 105, and Rule 86 of the QCAT Rules, which did not arise in that matter.  The other relates to my comment on the statement of A Wilson J, the then President of the Tribunal, in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) that the question when a costs order was sought was “whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.”  I said that this was curious, as I did not consider that there was any such strong contra-indication in the words of s 100.
  1. [26]
    In saying that I had overlooked that the heading to that section is part of the Act, and hence relevant to the interpretation of the Act.  Presumably his Honour found the strong contra-indication in the wording of the heading: “Each party usually bears own costs”. Even so, I consider that it goes a long way to draw that proposition from the expression of a legislative expectation that the application of the terms of the statute will “usually” mean that no order for costs will be made. The expectation must have been directed to the operation of the Tribunal as a whole.  In any particular case, either there will be an order for costs or there will not, and it is meaningless to talk of the “usual” order in a particular case.  To say that an order for costs will be unusual, in a context where parties are ordinarily not to be legally represented anyway, is not a particularly strong statement.  It was not said, for example, that such an order is to be made only in exceptional circumstances.
  1. [27]
    Having considered that matter, I remain of the view that the relevant test is that in s 102(1): whether the interests of justice require that order.  As I said in Marzini, the use of the term “require” shows that an order for costs should not be too readily made, and I accept that it may fairly be said that the wording of the heading to s 100 is another indication to the same effect.  In so far as his Honour went further in Ralacom at [29], I consider that his statement cannot confine the discretion conferred on the Tribunal under s 102(1), or modify the test in that section.

(Citations omitted)

  1. [27]
    Allen DCJ, in CH v Queensland Police Service[27], agreed with Judicial Member McGill in Marzini on the interpretation and application of sections 100 and 102 of the QCAT Act.  He also agreed with the observations of the Judicial Member in Cowen, “I consider that to say that an order for costs will not be made unless the factors favouring an order are “compelling” does not accurately state the test for making an order for costs laid down by s 102(1) ... The test is whether the interests of justice “require” an order for costs, but I do not accept that the circumstances favouring an order for costs must be compelling before that test will be met.”[28]
  2. [28]
    The Tribunal, in Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs)[29], summarized the two approaches to the interpretation and application of sections 100 and 102 of the QCAT Act as follows:
  1. (a)
    Section 100 is the usual rule (a starting point) which, when read with section 102, means that each party bears their own costs unless the interests of justice require otherwise (as explained in McGee).  So the question that will usually arise is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in section 100 (traditional line of authority in Ralacom and Magill).
  2. (b)
    Section 100 should be read together with section 102 so that the overall rule is that the tribunal will award costs if the interests of justice require it to make the order (recently developed line of authority in Cowen and CH).  This also means that section 100 is not a starting point; instead there is a new starting point where the successful party had good reason to be legally represented: in those circumstances costs should follow the event unless there are relevant countervailing considerations (Cowen).
  1. [29]
    Then, after reviewing the cases on costs, the Tribunal summarized its conclusions on the correct approach in the following terms:
  1. [82]
    In summary, although normally more recent authority would have greater weight than older authority, the birth of the more recent authority in support of approach (b), that is Marzini, Cowen and CH, happened without the benefit of legal argument on the particular issue involved, that is the correctness of Justice Wilson’s description of the effect of sections 100 and 102 as a ‘strong contra indication’ requiring a ‘compelling’ interests of justice argument to displace it.  They were also decided without citing Appeal Tribunal decisions confirming the correctness of the description where there had been such argument.  The sheer longevity of the traditional approach in Ralacom seems to gives [sic] it greater weight, and there is nothing in the more recent decisions to guide me one way or another.
  1. [83]
    On that basis alone I would tend to go with the traditional approach, but having analysed the Court of Appeal decision in Tamawood it can be seen that the suggestion in approach (b) that the starting point in section 100 merges into the real test which should be applied (a test of ‘interests of justice’) was indeed rejected by the Court of Appeal on the statutory provisions of the CCTA, and the QCAT Act is stronger in that regard.
  1. [84]
    Obviously with the greatest respect to the decision makers in Marzini, Cowen and CH, for these reasons I find myself unable to follow these cases.  It seems to me to be correct to follow the line of authority for approach (a) rather than approach (b).
  1. [30]
    Recently, in Campbell v Queensland Building and Construction Commission (No 2)[30], the Tribunal expressed the view section 100 of the QCAT Act, on its proper construction, “... mandates that the parties must bear their own costs save as otherwise provided in the QCAT Act ...”; it is the default position on costs.[31]  I agree.  Were it otherwise, the section would be left with no work to do.
  2. [31]
    Section 102 gives the Tribunal a discretion to make an order requiring a party to a proceeding to pay costs to another party to the proceeding.  The exercise of the discretion is conditional on the tribunal considering the interests of justice require it to make the order.  The matters the tribunal may have regard to in deciding whether to award costs are spelt out in subsection (3) of section 102 and include anything else the tribunal considers relevant.  In other words, it is a wide discretion.
  3. [32]
    In Campbell, the Tribunal expressed the view the section “... 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.”  It then continued:

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. [33]
    With respect, I disagree and agree with what was said by Judicial Member McGill in Cowen v Queensland Building and Construction Commission[32].  The test for determining whether 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 is whether the interests of justice “require” an order for costs.  There is nothing in the language of section 102 to suggest the wide discretion given the tribunal by section 102 is qualified by a requirement the matters favouring an award of costs must be “convincing” or “compelling”; the relevant test is whether the interests of justice require an award of costs.
  2. [34]
    The default position, or starting point, in my opinion, is section 100 of the QCAT Act.  Each party to a proceeding before a tribunal must bear the party’s own costs for the proceeding.  The tribunal should not lightly depart from the default position or starting point.  However, if the interests of justice require the tribunal to make an award of costs, it has a wide discretion to order a party to the proceeding to pay all or a stated part of the costs of another party to the proceeding.  It may have regard to the matters in section 102(3)(a) – (e) of the Act and anything else it considers relevant.

Mr O'Connor’s affidavit

  1. [35]
    Mr O'Connor is the applicant’s lawyer  He acted for the applicant in the stewards’ inquiry, the internal review by the respondent, the application to the Tribunal at first instance and the appeal.  He deposes, at length, to the history of the proceeding.
  2. [36]
    On about 30 June 2015 the applicant received a letter from the respondent informing him a sample of urine taken from the gelding Mafuta Vautin presented for a harness race at Albion Park raceway on 30 May 2015 was analysed and found to contained cobalt above the maximum level allowed under the AHR Rules.
  3. [37]
    Earlier, Mr O'Connor had acted for two licensed harness trainers charged with a similar offence as the applicant.  In each case, the A sample was analysed by the RSC, Brisbane for the presence of cobalt. The B sample was sent to the Racing Chemistry Laboratory in Western Australia (RCLWA) for confirmatory analysis.  At the time, RCLWA was not an accredited facility or a secondary facility within the meaning of those terms in the Racing Act 2002 (Qld).  Despite submissions the certificates of analysis were inadmissible, the stewards found both trainers guilty and disqualified each of them.
  4. [38]
    The trainers appealed to the Racing Disciplinary Board against the decisions and penalties.  In due course, the Board made orders by consent setting aside the decisions and penalties and ordered Racing Queensland to pay the appellants costs of the appeals.
  5. [39]
    Correspondence passed between the Chief Stipendiary Steward - Harness of the respondent and Mr O'Connor.  On 22 February 2016 Mr O'Connor received a letter from the respondent confirming it would not allow the applicant legal representation at the inquiry but would allow legal representatives to attend as observers.
  6. [40]
    In response to a request for exculpatory material, the respondent said:

Racing Queensland does not have any knowledge of any matters, facts, circumstances or omissions which may prove or tend to prove that the certification procedure of any act or omission forming part of or relevant to the process resulting in the issue of the Certificate was flawed.

Racing Queensland had previously obtained legal advice about the certification procedures adopted by the Racing Science Centre. That advice was subject to legal professional privilege and Racing Queensland did not waive the benefit of that privilege.

  1. [41]
    In response to a request for a copy of the agreement between the RSC and Racing Queensland, the respondent said:

Racing Queensland is not able to provide a copy of the agreement between the Racing Science Centre and Racing Queensland because of the disclosure of the information could reasonably be expected to prejudice the private business, professional, commercial and financial affairs of Racing Queensland or the Racing Science Centre and may constitute a breach of confidence between the Racing Science Centre and Racing Queensland.

  1. [42]
    On 23 February 2016, the applicant made application to the Supreme Court of Queensland against the respondent for the following:
  1. (a)
    an order quashing the respondent’s decision not to permit the applicant legal representation at the stewards’ inquiry; and
  2. (b)
    an order the respondent disclose a copy of the section 40 agreement to the applicant.

The application was settled, and documents were provided by the respondent to the applicant.

  1. [43]
    Further correspondence passed between the parties and further documents were produced by the respondent to the applicant.
  2. [44]
    The stewards’ inquiry took place on 28 July 2016 following which the applicant was informed it had been decided to charge him with an offence against rule 190(1) of the AHR Rules.  On 25 August 2016, the applicant was found guilty of the offence charged and disqualified for a period of fifteen months.  An internal review by the respondent, on 21 September 2016, confirmed the decision of the stewards.
  3. [45]
    On 28 September 2016 the applicant made application to the Tribunal for a review of the internal review decision and a stay of the decision.  The stay was granted by consent on 30 September 2016.
  4. [46]
    Correspondence passed between the parties in relation to disclosure of documents and a urine specific gravity test.  Further documents were provided by the respondent to the applicant.  On 17 July 2017 the parties filed a joint statement of agreed facts.
  5. [47]
    Directions for an experts’ conclave were given on 1 March 2018 and the proceeding was fixed for hearing.  The applicant, on 11 May 2018, made application to the Tribunal for directions for the urine specific gravity test.  The respondent consented to the test.  The reports on the tests were filed in the Tribunal.  There was then further correspondence between the parties about witnesses and the issues to be determined by the Tribunal.
  6. [48]
    The application for a review was heard by the Tribunal over four days.

Applicant’s submissions

  1. [49]
    The applicant submits the starting position under section 100 of the QCAT Act is each party to a proceeding usually bears their own costs.  I agree.  The circumstances in this proceeding, it is submitted, are such that the interests of justice require the respondent be ordered to pay the applicant’s costs of both the review by the Tribunal at first instance and the appeal.[33]
  2. [50]
    The respondent, it is submitted:
  1. (a)
    ignored submissions, consistently made on behalf of the applicant, which detailed the fundamental flaws in the case brought against him; and
  2. (b)
    resisted the review by the Tribunal at first instance and the appeal on the grounds the applicant’s submissions about the defects in the laboratory credentials of RSC and ChemCentre in Western Australia were without merit and legally unsound. The approach, it is submitted, was contrary to the concessions made before the former Racing Disciplinary Board by the predecessor racing regulator such defects rendered inadmissible the certificates of analysis.[34]
  1. [51]
    In support of the submissions, the applicant relies on the decisions in Marzini v Health Ombudsman (No. 4)[35] and CH v Queensland Police Service[36].  The factors which support a conclusion the interests of justice require an order for costs be made identified in Marzini and relied on by the applicant are:
  1. (a)
    the applicant had a right to legal representation;
  2. (b)
    the respondent’s case was weak from the outset;
  3. (c)
    the respondent did not make proper disclosure; and
  4. (d)
    there was nothing done by the applicant which invited the respondent’s action.
  1. [52]
    Expanding on the factors, the applicant submits:
  1. (i)
    the evidentiary case against the applicant was based on several certificates of analysis, each of which was materially flawed[37];
  2. (ii)
    the defects were the subject of submissions by the applicant to the respondent[38];
  3. (iii)
    the respondent declined to concede the certificates of analysis had no evidentiary value[39];
  4. (iv)
    the applicant had a right to representation under section 43(2)(b)(ii) of the QCAT Act before the Tribunal at first instance and on appeal[40];
  5. (v)
    the respondent’s case was weak from the outset[41];
  6. (vi)
    there was nothing done by the applicant which invited the action taken by the respondent.  At the outset, he explained why the certificates of analysis, the only evidence against him, were inadmissible[42];
  7. (vii)
    disputes about disclosure were drawn out and significantly added to the applicant’s costs[43];
  8. (viii)
    the issues in dispute were complex requiring expert and professional evidence from several witnesses[44]; and
  9. (ix)
    prior to the hearing of the review by the Tribunal at first instance, the applicant made an offer of settlement under rule 65 of the QCAT Rules.  The offer was not accepted by the respondent[45].
  1. [53]
    The applicant applies for an order for indemnity costs of the proceeding in the Tribunal at first instance on the ground the conduct of the respondent in the review was one that manifested a wilful disregard for known facts and was unreasonable in that matters of critical importance were contested when it was obvious on established principle, and the provisions of the Racing Act, the certificates of analysis sought to be used as evidence to support the charge against the applicant under the Rules of Racing were inadmissible as evidence.[46]  He finds support for the entitlement to indemnity costs in the decision of the Court of Appeal (Williams JA and White and Wilson JJ) in Di Carlo v Dubois & Ors[47].
  2. [54]
    The orders sought by the applicant are:
  1. (a)
    in APL229-19, Graham v Queensland Racing Integrity Commission (the appeal), pursuant to section 102 of the QCAT Act, the respondent pay the applicant’s costs of and incidental to the proceeding to be assessed on the Supreme Court Schedule of Costs on a standard basis;
  2. (b)
    in OCR174-16, Graham v Queensland Racing Integrity Commission (the proceeding in the Tribunal at first instance), the respondent pay the applicant’s costs of and incidental to the proceeding to be assessed on an indemnity basis by reference to the District Court Schedule of Costs;
  3. (c)
    the applicant deliver to the respondent itemised costs statements;
  4. (d)
    within one month of receipt of the itemised costs statements, the respondent deliver to the applicant any objections; and
  5. (e)
    if the parties are unable to reach agreement as to the costs payable, the Tribunal appoint a costs assessor from the list of approved costs assessors in the Supreme Court to assess the costs.[48]

Respondent’s submissions

  1. [55]
    The respondent does not dispute the history of the proceeding deposed to by Mr O'Connor.  It submits:
  1. (a)
    by section 100 of the QCAT Act, each party must bear their own costs unless the Act (or an enabling Act) permits otherwise;
  2. (b)
    section 102 enables a discretion to award costs, the touchstone for which is whether the interests of justice require it;
  3. (c)
    the considerations identified in section 102(3) are not grounds for awarding costs, they are matters that may be considered in determining whether, in a particular case, the interests of justice require the Tribunal to make a costs order (Ascot v Nursing and Midwifery Board of Australia[49]); and
  4. (d)
    determining that a costs order ought to be made in fact is unusual and requires a proper case to justify doing so.[50]

Reference is made to the decision of Wilson J in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments CTS 17653 (No. 2)[51], at [29], and Judicial Member McGill in Marzini v Health Ombudsman (No. 4)[52], at [36].[53]

  1. [56]
    The gravamen of the applicant’s case for costs, it is submitted, is that “... QRIC ignored submissions, consistently made on behalf of the Applicant, which detailed the fundamental flaws in the case brought against the Applicant ...”[54]  The respondent points to its success at first instance and there being no suggestion in the Appeal Tribunal decision there were “... fundamental flaws in the respondent’s position ...”[55]
  2. [57]
    The respondent then addresses the non-exhaustive list of matters in section 102(3) of the QCAT Act the Tribunal may have regard to in deciding whether to award costs.[56]  It responds to the applicant’s submissions the respondent acted in a way that unnecessarily disadvantaged the applicant by ignoring submissions concerning flaws in the applicant’s case and in relation to disclosure.[57]
  3. [58]
    The only complexity, it is submitted by the respondent, involved the factual issues relating to the effect of cobalt on the horse, a matter that required the expert evidence of Professors Chapman and Mills and Mr Wenzel to assist the Tribunal.  To the extent there was a matter of any real complexity (which is doubted), it was raised by the applicant but was not a matter of any real assistance to the applicant’s case in the end.[58]
  4. [59]
    It is submitted by the respondent that whilst the applicant ultimately succeeded in having the Tribunal decision set aside, there was nothing remarkable about the process, and certainly no disparity in the strengths and weaknesses of the arguments sufficient to support an award of costs.[59]
  5. [60]
    The respondent concedes the rejection of an offer of settlement is a relevant matter to consider but submits that of itself is of no particular moment.  If of a higher order consideration, the submissions continue, it would be referred to expressly in the Act or Rules.  It does not justify a finding that in the interests of justice there should be a departure from the mandatory starting position that each party bear their own costs.[60]
  6. [61]
    Indemnity costs orders, the respondent submits, have always required special or unusual features in the case to justify an uplift over a standard costs order.  No such special circumstances exist here.  Further, there is no justification for orders that one set of costs (the appeal) be assessed on the Supreme Court scale, and the first instance proceeding on the District Court scale.  If there is to be an order for costs, reference should be made only to the District Court.[61]

Applicant’s submissions in reply

  1. [62]
    The applicant briefly responded to the respondent’s submission that rejection of the offer of settlement is not a “...higher order consideration ...” drawing attention to rule 86 of the QCAT Rules.  The rule, the applicant submits, manifests a clear intent that cases in which an offer by a successful party has been rejected are to be regarded as a higher order consideration in costs applications than would otherwise be the case.[62]

Directions

  1. [63]
    Changes in the Tribunal gave rise to a need to reconstitute the Appeal Tribunal.  On 10 February 2023 the parties were directed to notify the Tribunal, by 24 February 2023, if they want to make oral submissions on costs to the reconstituted Appeal Tribunal in addition to the written submissions already filed.  Neither party did so.

Discussion

Introduction

  1. [64]
    As has been said, the applicant relies on the decisions in Marzini v Health Ombudsman (No. 4)[63] and CH v Queensland Police Service[64]. The matters which support a conclusion the interests of justice require an order for costs be made identified in Marzini and relied on by the applicant are set out in paragraph [51] of these reasons for decision.  The specific matters relied on by the applicant are set out in paragraphs 7 – 26 of the applicant’s submissions on costs and summarised in paragraph [52] of these reasons for decision.  The matters, and the respondent’s response to the matters, are addressed under the following headings:
  1. (a)
    certificates;
  2. (b)
    legal representation;
  3. (c)
    strength of case;
  4. (d)
    disclosure;
  5. (e)
    complexity;
  6. (f)
    offer of compromise; and
  7. (g)
    indemnity costs.

Certificates

  1. [65]
    The applicant asserts that at an early point in time the respondent was invited to make “appropriate concessions”.  It points to a letter sent by the applicant’s lawyers to the respondent’s lawyers dated 1 November 2016 in which they were asked to concede the first RSC certificate and the ChemCentre certificate have no evidentiary value.  The respondent declined to make the concessions sought.
  2. [66]
    The respondent’s lawyers, on 9 December 2016, sent to the applicant’s lawyers a letter containing an offer of settlement.  The letter explains why it is said the certificates have evidentiary value, citing the decision of the Tribunal in Rattray v Queensland Racing Integrity Commission[65] (upheld by the Appeal Tribunal in Rattray v Queensland Racing Integrity Commission)[66].  The offer of settlement, in summary, was on the following terms:
  1. (a)
    the decision of the stewards is confirmed;
  1. (b)
    the period of suspension is reduced from fifteen months to twelve months; and
  1. (c)
    there be no order for costs.
  1. [67]
    The offer was rejected.
  2. [68]
    The respondent responds asserting the submissions ignore the applicant was unsuccessful at first instance.  Further, it is submitted, there is nothing in the Appeal Tribunal decision suggesting there were fundamental flaws in the respondent’s position.
  3. [69]
    The effect of the concessions sought was to concede the decision of the respondent should be quashed.  The respondent took a different view of the evidentiary value of the certificates, a view upheld by the Tribunal at first instance but rejected by the Appeal Tribunal.
  4. [70]
    In my opinion, it cannot be said the respondent defended a case in the Tribunal at first instance, and on appeal, that was clearly implausible, manifestly weak or incredible.[67]  Its view of the evidentiary value of the certificates was not without merit.

Legal representation

  1. [71]
    The parties, by virtue of the section 43(2)(b)(ii) of the QCAT Act, were entitled to representation by someone else in the proceeding.  Both parties were represented by solicitors and Queens Council before the Tribunal at first instance and on appeal. 
  2. [72]
    The weight to be given legal representation in deciding an application for an award of costs, it is submitted by the applicant, is apparent from the decisions of the Tribunal in Rao v Medical Board of Australia (No. 2)[68] and CH v Queensland Police Service[69].  In the former case, Allen DCJ, at [24(b)], expressed the view legal representation and the proceeding being necessary for the applicant to return to unrestricted practice weighs in favour of an award of costs.
  3. [73]
    In the latter case, Allen DCJ refers to the parties being represented by counsel but does not discuss the weight to be given to legal representation.
  4. [74]
    In my opinions, legal representation is a matter to have regard to in deciding whether to award costs and I have done so.

Strength of case

  1. [75]
    The applicant submits the case was weak from the start.  Support for the submission, it is said, is found in the decisions of the Presiding Member, at [25], and the Senior Member, at [139] – [142].  At [25], the Presiding Member said:

For the reasons already discussed above in respect of the RSC certificate dated 26 June 2015, the ChemCentre certificate dated 7 July 2015 was not produced according to the requirements of the Racing Act applicable to the use of certificates in proof of proceedings such as those brought against the applicant. It was not admissible as proof, pursuant to rule 191 of the Rules, in those proceedings.

  1. [76]
    The Senior Member, at [139] – [142], said:
  1. [139]
    It is uncontentious that the reserve or B sample was sent to ChemCentre. The Tribunal concluded that the ChemCentre certificate was not able to be relied upon under AHRR 191(2) and (3).  I agree. ChemCentre was not an accredited facility or a relevant secondary facility for an accredited facility and the person who opened the container interfered with it within the meaning of s 145.
  1. [140]
    However, in my respectful view, the learned Senior Member erred in concluding that, putting aside the intended reach of s 145(2), the AHRR did not preclude sending a sample for analysis to a laboratory which is not ‘approved.’  On a proper construction of the scheme, the Racing Act precluded delivery to a facility which is not an accredited facility or a secondary facility for an accredited facility.  The Tribunal rejected the argument that s 145(2) operated to render the B sample sent to ChemCentre ‘unlawfully compromised’ without considering the mandatory requirements of the Racing Act.  In my view, delivery of the sample to ChemCentre and ChemCentre’s analysis of the reserve or B sample were not in compliance with the mandatory provisions of the Racing Act for use in disciplinary proceedings.
  1. [141]
    In my view, for the reasons identified earlier, the consequence is that there is a material flaw in the ChemCentre certification procedure within the meaning of AHRR r 191(7)).  It follows that the certificate has no evidentiary value and is inadmissible.
  1. [142]
    Further, on a proper construction, the dealings with the sample inconsistently with the mandatory provisions of the Racing Act also had the effect of rendering the reserve or B sample compromised for use in any further testing for the purpose of disciplinary action.
  1. (Citations omitted)
  1. [77]
    In the passages of the Appeal decision relied on by the applicant, the members constituting the Appeal Tribunal make findings urged on them by the applicant.  However, in my opinion, it is an overstatement to say the findings illustrate the respondent’s case was weak from the outset.  Its view of the evidentiary value of the certificates, in my opinion, was not without merit.

Conduct of litigation

  1. [78]
    The applicant submits nothing done by him invited the action taken.  On the contrary, the submissions continue, he was at pains to what point out the certificates were inadmissible, from an early point in time.
  2. [79]
    The submissions, in effect, repeat what is said earlier about the certificates and the concessions sought by the applicant.  As I have said, in my opinion it cannot be said the respondent defended a case in the Tribunal at first instance, and on appeal that was clearly implausible, manifestly weak or incredible.[70]  Its view of the evidentiary value of the certificates was not without merit.

Disclosure

  1. [80]
    The respondent, it is submitted by the applicant, did not provide timely disclosure of documents.  The pursuit of relevant documents, it is submitted, gave rise to a need for an application to the Supreme Court of Queensland and interlocutory applications to the Tribunal at first instance.  Reference is made to paragraphs 12 and 34 – 53 of the Mr O'Connor’s affidavit.
  2. [81]
    The respondent responds pointing out:
  1. (a)
    an application by the applicant for disclosure was dismissed;
  1. (b)
    the Tribunal did not comment adversely on the respondent’s disclosure; and
  1. (c)
    there is no evidence of disadvantaged visited on the applicant by reason of the respondent’s disclosure.
  1. [82]
    The application to the Supreme Court was to review a decision of the respondent to refuse the applicant legal representation before the stewards’ inquiry and refusing disclosure of a document.  The application was made prior to the filing of the application for review in the Tribunal.  In the circumstances, I am of the opinion it is not a matter to have regard to in deciding whether to award costs.
  2. [83]
    In paragraphs 34 – 53 of his affidavit, Mr O'Connor deposes to correspondence passing between the parties about disclosure.  On 27 January 2017 the applicant made application to the Tribunal at first instance for an order for disclosure of documents, including documents in respect of which the respondent claimed legal professional privilege.  Further disclosure was forthcoming.  The application, on 18 April 2017, was dismissed.  The applicant pressed the respondent for further disclosure.  The respondent resisted, on the ground the documents sought are irrelevant to the issues between the parties.
  3. [84]
    I accept disclosure was drawn out.  However, disputes about disclosure, and the relevance of documents sought, frequently arises in litigation.  Whilst it may be accepted the disputes increased costs, the material filed does not disclose whether the respondent acted in a way that unnecessarily disadvantaged the applicant.

Complexity

  1. [85]
    The issues in proceeding, it is submitted by the applicant, were complex.  The complexity is evidenced by the need for expert and professional evidence.  Much, but not all, of the evidence, it is submitted, concerned the laboratory tests returning “false positives”.  Senior Member Howard, it is further submitted, at paragraphs [178] - [187], was critical of the decision of the Tribunal at first instance for not addressing the issue.
  2. [86]
    The Senior Member held that determining the issue was necessary for determining whether the certificates were admissible in evidence and the charge was established by proof in other ways.  In failing to do so, the Senior Member further held, the Tribunal erred in law.
  3. [87]
    The case, the applicant submits, was “manifestly complex” requiring representation by solicitors and senior counsel for the parties.
  4. [88]
    The respondent submits the only complexity was the effect of cobalt on the horse, an issue requiring expert evidence.  It was an issue raised by the applicant.
  5. [89]
    A need for expert and professional evidence does not necessarily evidence complexity.  Likewise, the Appeal Tribunal holding a finding concerning the laboratory tests returning “false positives” was necessary for determining whether the certificates were admissible in evidence and the charge was established by proof in other ways does not necessarily evidence complexity.
  6. [90]
    A reading of the Tribunal decision and the Appeal Tribunal decision makes clear the dispute was complex.  The degree of complexity, of itself, is not sufficient to require an award of costs in the interests of justice.  However, it is a matter to have regard to in deciding whether to award costs.

Offer of settlement

  1. [91]
    On 7 September 2018, shortly prior to the hearing of the proceeding by the Tribunal at first instance, the applicant’s lawyers sent to the respondent’s lawyers a facsimile transmission containing an offer of settlement in the following terms:

This letter is sent as a closed offer to settle the proceeding pursuant to Rule 65 of the QCAT Rules 2009.  This offer is open for acceptance until 4:00 pm 17 September 2018 after which it will lapse.

The applicant offers to settle the proceeding on the basis that QRIC consents to the Tribunal making the following orders:

  1. That the internal review decision of QRIC of 11 September 2016 confirming the original decision by the stewards finding the applicant guilty of a breach of AHRR190 and disqualifying him for a period of fifteen months be set aside.
  2. There be no order as to costs.

This offer must be accepted in writing.

  1. [92]
    Rule 65 of the QCAT Rules provides:
  1. (1)
    An offer to settle a proceeding:
  1. (a)
    must be made in writing; and
  1. (b)
    may be:
  1. (i)
    an open offer, meaning that any party may mention the offer, or any terms of the offer, at any time during the proceeding; or
  1. (ii)
    a closed offer, meaning that the tribunal should not be told the offer has been made until after it has made its final decision in the proceeding.
  1. (2)
    If an offer does not state it is an open offer or closed offer, the offer is taken to be a closed offer.
  1. [93]
    The offer was not accepted by the respondent.
  2. [94]
    The applicant submits that by not accepting the offer, the respondent “... caused the Applicant to incur further significant costs for the QCAT review and the later appeal ...”[71]
  3. [95]
    The respondent concedes the making of the offer, and its non-acceptance, are matters the Tribunal may have regard to in deciding whether to award costs, but submits “... of itself, it is it is of no particular moment ...”[72]
  1. [96]
    In Medical Board of Australia v Putha[73] Judicial Member Thomas said:

I therefore do not think that the without prejudice offer and its rejection provide any basis for depriving the Board of costs or reducing them.  It is in any event difficult to think that the offer should be regarded as an “offer to settle” under r 86 of the Queensland Civil and Administrative Tribunal Rules 2009, because the parties cannot settle disciplinary proceedings.  These are proceedings in which the Tribunal must make its own decision in the public interest.  Even so, I acknowledge that an offer made during such negotiations may be relevant and admissible in relation to the conduct of the litigation, and may in an appropriate case be taken into account by the Tribunal in the exercise of its discretion ...[74]

  1. [97]
    Similar views were expressed by Sheridan DCJ in Health Ombudsman v Barber (No.2)[75]:
  1. [23]
    That r 86 is directed towards the proceedings in the nature of civil proceedings is apparent by the use of the word ‘dispute’.  That word is not apt to describe proceedings by a regulatory body in the public interest against a practitioner for the protection of the public.  Neither is the use of the word ‘settle’.  Even if an agreed position is reached as to the facts or even sanction, the ultimate result must be determined by the Tribunal.  A proceeding by a regulatory body is not usually regarded as one which could be ‘settled’.  The concept of an order which is more favourable to the other party is also not apt to describe the situation of a statutory regulator.
  1. [24]
    Obviously, even in disciplinary proceedings, the parties should be encouraged to limit the issues in dispute and resolve, as far as possible, the matters in issue in the proceedings, and the conduct of both parties in the course of those proceedings may be relevant to the discretion to award costs under s 102.  Those matters do not, however, require that a statutory provision designed to settle civil proceedings between different parties should apply to disciplinary proceedings brought in the public interest and for the protection of the public, and where the ultimate result, even if agreed, is not one dictated by the parties, but subject to the approval of the tribunal. 
  1. [25]
    Even if s 105 and r 86 applied, the Tribunal is not required to award costs to the party who made the offer.  Rule 86(2) leaves the matter in the discretion of the Tribunal.  The ‘offer’ (if it can be so described) was close to the order made by the Tribunal as to sanction, though the letter did not contain an admission that the conduct amounted to professional misconduct.  The ‘offer’ was not, however, so much ‘more favourable’ that would justify, in any event, the exercise of the power under s 105.[76]
  1. (Citation omitted)
  1. [98]
    With respect, I agree with what was said by Sheridan DCJ in Barber and Judicial Member Thomas in Putha.  Section 105 of the QCAT Act and rule 86 of the QCAT Rules do not apply to deciding whether to award costs in a disciplinary proceeding.
  2. [99]
    The offer, however, is a matter to which the Tribunal may have regard under section 102(3)(f) of the QCAT Act in deciding whether to award costs, and I have done so.

Conclusion on whether the interests of justice require an award of costs

  1. [100]
    Having regard to each of the matters spelt out in section 102(3) of the QCAT Act and the submissions of the parties, in respect of the proceeding in the Tribunal at first instance, I am of the opinion the circumstances here do not justify departure from the default position, or starting point, that each party to the proceeding must bear the party’s own costs for the proceeding.
  2. [101]
    While additional or other considerations may be relevant to deciding whether the interests of justice require an award of costs in an appeal, the default position or starting point remains each party must bear the party’s own costs.  In Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors[77], Applegarth J (with whom McMurdo P and Henry J agreed) said:

Campaigntrack had a stronger argument in the appeal to this Court than that advanced by the Chief Executive.  However, the Chief Executive’s arguments were not without merit, and the relative strength of the arguments made before the Appeal Tribunal is not a sufficient reason to displace the usual rule as to costs contained in s 100 of the QCAT Act.

  1. [102]
    Likewise here, whist the applicant’s arguments on appeal may have been stronger, the respondent’s arguments were not without merit.  In my opinion, the interests of justice do not require departure from the default position, or starting point, each party bear the party’s own costs for the appeal.

Indemnity costs

  1. [103]
    It is unnecessary to decide whether the applicant is entitled to an award of indemnity costs of the proceeding in the Tribunal at first instance.  In case I am wrong in finding each party must bear the party’s own costs for the proceeding in the Tribunal at first instance and on appeal, I have done so.
  2. [104]
    The applicant submits the conduct of the respondent manifested “... wilful disregard for known facts ...” and was “unreasonable” justifying an award of indemnity costs.[78]  The decision of the Court of Appeal (Williams JA and White and Wilson JJ) in Di Carlo v Dubois[79] is cited in support of the submission.
  3. [105]
    In Colgate Palmolive Co v Cussons Pty Ltd[80], Sheppard J distilled out of the authorities to which he referred the following principles or guidelines for a court exercising the discretion to award indemnity costs:

...

  1. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis.  The circumstances of the case must be such as to warrant the Court in departing from the usual course.  That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England.  The tests have been variously put.  The Court of Appeal in Andrews v Barnes said the Court had a general and discretionary power to award costs as between solicitor and client ‘as and when the justice of the case might so require’.  Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston; namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice.  Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule.  But as French J said in Tetijo, ‘The categories in which the discretion may be exercised are not closed’.  Davies J expressed similar views in Ragata.
  1. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion.  [For] instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (e.g. Messiter v Hutchinson; Maitland Hospital v Fisher (No 2) (Court of Appeal); Crisp v Keng (unreported, Court of Appeal, NSW, Kirby P, Priestley JA, Cripps JA, No 40744/1992, 27 September (1993) and an award of costs on an indemnity basis against a contemnor (e.g. Megarry V-C in EMI Records.  Other categories of cases are to be found in the reports.  Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis.  The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
  1. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order.  The costs are always in the discretion of the trial judge.  Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.

(Emphasis added and citations omitted)

  1. [105]
    In my opinion, applying the relevant principles here, there is nothing in the facts and circumstances of this proceeding to warrant an award of costs on other than a party and party basis.

Scale of costs

  1. [106]
    I have also considered which scale of costs is  appropriate, in case I am wrong in finding each party must bear the party’s own costs for the proceeding in the Tribunal at first instance and on appeal.
  2. [107]
    The applicant submits an award of costs of the proceeding at first instance should be assessed by reference to the District Court of Queensland scale of costs.  The award of costs of the appeal, it is further submitted, should be assessed by reference to the Supreme Court scale of costs. 
  3. [108]
    In Fast Track Access Financial (Beaudesert) Pty Ltd v & Anor v Charter & Anor (No. 2)[81], in awarding costs in an unsuccessful appeal, it was said, “... the Tribunal has usually applied the District Court scale ...”  An example of an award of costs assessed by reference to the District Court scale is Rattray v Queensland Racing Integrity Commission (No. 2)[82].  There, as here, the applicant was charged with an offence against rule 190 of the AHR Rules.  He entered a plea of guilty to the charge, was convicted and disqualified for six months.  An application to the Tribunal to review the decision was unsuccessful, as was an appeal to the Appeal Tribunal.
  4. [109]
    In other proceedings, costs were awarded on the Magistrates Court of Queensland scale of costs (see, for example, Anderson v Nick Ruhle Holmes Pty Ltd & Anor (No. 2)[83] and ACDG Pty Ltd trading as Swimin Construction v Bryant (No. 2))[84] and on the Supreme Court scale of costs (see, for example, Warren v Queensland Law Society Incorporated (No. 2))[85].
  5. [110]
    In my opinion, what has happened in other proceedings is of little assistance in deciding the appropriate scale of costs in a particular proceeding.  The appropriate scale must be decided having regard to the circumstances of the proceeding.  Here, given the complexity of the issue raised in the proceeding, had I awarded costs I would have ordered that they be assessed by reference to the District Court scale of costs.

Decision

  1. [111]
    The order of the Appeal Tribunal is that the applicant’s application for costs of the proceeding in the Tribunal at first instance and on appeal is dismissed.

Footnotes

[1]Graham v Queensland Racing Integrity Commission [2021] QCATA 125 (Appeal Tribunal decision).

[2]Graham v Queensland Racing Integrity Commission [2018] QCAT 198 (Tribunal decision).

[3] (supra), at [41]–[44].

[4]Graham v Queensland Racing Integrity Commission (supra), at [45].

[5]Graham v Queensland Racing Integrity Commission (supra) [125].

[6]Graham v Queensland Racing Integrity Commission (supra), at [33].

[7]Graham v Queensland Racing Integrity Commission (supra), at [34] and [35].

[8]Graham v Queensland Racing Integrity Commission (supra), at [155].

[9] Section 107(1) of the QCAT Act.

[10] Section 107(2) of the QCAT Act.

[11] Section 107(3) of the QCAT Act.

[12] Rule 87(2) of the QCAT Rules.

[13] [2010] QCAT 412.

[14] [2005] QCA 111.

[15] (supra), at [29].

[16] [2020] QCAT 365.

[17] [2010] QCAT 364.

[18] (supra), at [9].

[19] (supra).

[20] (supra), at [17].

[21] [2017] QCA 42.

[22] (supra), at [35].

[23] [2020] QCAT 327.

[24] (supra), at [17].

[25] (supra).

[26] [2021] QCATA 103.

[27] (supra).

[28] (supra), at [37].

[29] [2022] QCAT 225.

[30] [2023] QCAT 54.

[31] (supra), at [18].

[32] (supra), at [28].

[33] Paragraph 1 of the applicant’s submissions on costs.

[34] Paragraph 2 of the applicant’s submissions on costs.

[35] (supra), at [90].

[36] (supra), at [15] and [16]; Paragraph 3-5 of the applicant’s submissions on costs.

[37] Paragraphs 7–11 of the applicant’s submissions on costs.

[38] Paragraphs 12 and 13 of the applicant’s submissions on costs.

[39] Paragraphs 14-16 of the applicant’s submissions on costs.

[40] Paragraph 17 of the applicant’s submissions on costs.

[41] Paragraphs 18 and 19 of the applicant’s submissions on costs.

[42] Paragraph 20 of the applicant’s submissions on costs.

[43] Paragraphs 21 and 22 of the applicant’s submissions on costs.

[44] Paragraphs 23–25 of the applicant’s submissions on costs.

[45] Paragraph 26 of the applicant’s submissions on costs.

[46] Paragraphs 27-29 of the applicant’s submissions on costs.

[47] [2002] QCA 225, at [37]–[39].

[48]  Paragraph 30 of the applicant’s submissions on costs.

[49] (supra).

[50] Paragraph 1 of the respondent’s submissions on costs.

[51] (supra).

[52] (supra).

[53] Paragraph 1 of the respondent’s submissions on costs.

[54] Paragraph 3 of the respondent’s submissions on costs.

[55] Paragraph 4 of the respondent’s submissions on costs.

[56] Paragraph 6 of the respondent’s submissions on costs.

[57] Paragraph 6(a) of the respondent’s submissions on costs.

[58] Paragraph 6(b) of the respondent’s submissions on costs.

[59] Paragraph 6(c) of the respondent’s submissions on costs.

[60] Paragraph 6(f) of the respondent’s submissions on costs.

[61] Paragraph 7 of the respondent’s submissions on costs.

[62] Paragraphs 1-3 of the applicant’s rely submissions on costs.

[63] (supra), at [90].

[64] (supra), at [15] and [16]; Paragraph 3-5 of the applicant’s submissions on costs.

[65] [2016] QCAT 439.

[66] [2018] QCATA 39.

[67]Delekta v Moorabool Shire Council & Ors [2003] VCAT 30, at [12].  See also Queensland Racing Integrity Commission v Vale [2017] QCATA 110, per Carmody J at [61].

[68] [2021] QCAT 391.

[69] (supra).

[70]Delekta v Moorabool Shire Council & Ors [2003] VCAT 30, at [12].  See also Queensland Racing Integrity Commission v Vale [2017] QCATA 110, per Carmody J at [61].

[71] Paragraph 26 of the applicant’s submissions on costs.

[72] Paragraph 6(f) of the respondent’s submissions on costs.

[73] [2014] QCAT 159.

[74]  ibid, at [47].

[75] [2019] QCAT 252.

[76] See also Health Ombudsman v Kennedy (No.2) [2021] QCAT 88, per Allen DCJ, at [19].

[77] [2016] QCA 37.

[78]  paragraph 27 of the applicant’s submissions on costs.

[79] (supra), at [37]–[39].

[80] [1993] FCA 801; (1993) 46 FCR 225.

[81] [2012] QCATA 172.

[82] (supra).

[83] [2012] QCAT 530, per Member Wood at [22].

[84] [2017] QCAT 216, per Member Kanowski at [25].

[85] [2003] QCAT 234.

Close

Editorial Notes

  • Published Case Name:

    Graham v Queensland Racing Integrity Commission (Costs)

  • Shortened Case Name:

    Graham v Queensland Racing Integrity Commission (Costs)

  • MNC:

    [2023] QCATA 97

  • Court:

    QCATA

  • Judge(s):

    Member Scott-Mackenzie

  • Date:

    30 May 2023

Appeal Status

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

Cases Cited

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ACDG Pty Ltd trading as Swimin Construction v Bryant (No 2) [2017] QCAT 216
2 citations
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Cite 1 - [2017] QCAT 216
Cite 2 - [2017] QCAT 216
Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
2 citations
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Cite 1 - [2010] QCAT 364
Cite 2 - [2010] QCAT 364
Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs) [2022] QCAT 225
2 citations
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Cite 1 - [2022] QCAT 225
Cite 2 - [2022] QCAT 225
Campaigntrack Victoria Pty Ltd v Chief Executive, Department of Justice and Attorney-General [2016] QCA 37
1 citation
Jump To
Cite 1 - [2016] QCA 37
Campbell v Queensland Building and Construction Commission (No 2) [2023] QCAT 54
2 citations
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Cite 1 - [2023] QCAT 54
Cite 2 - [2023] QCAT 54
CH v Queensland Police Service [2021] QCATA 137
1 citation
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Cite 1 - [2021] QCATA 137
Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 801
2 citations
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Cite 1 - [1993] FCA 801
Cite 2 - [1993] FCA 801
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 F.C.R 225
2 citations
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Cite 1 - (1993) 46 F.C.R 225
Cite 2 - (1993) 46 F.C.R 225
Cowen v Queensland Building and Construction Commission [2021] QCATA 103
2 citations
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Cite 1 - [2021] QCATA 103
Cite 2 - [2021] QCATA 103
Delekta v Moorabool SC & Ors [2003] VCAT 30
2 citations
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Cite 1 - [2003] VCAT 30
Cite 2 - [2003] VCAT 30
Di Carlo v Dubois [2002] QCA 225
2 citations
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Cite 1 - [2002] QCA 225
Cite 2 - [2002] QCA 225
Fast Access Finance (Beaudesert) Pty Ltd and Anor v Charter and Anor (No 2) [2012] QCATA 172
2 citations
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Cite 1 - [2012] QCATA 172
Cite 2 - [2012] QCATA 172
Gill v Queensland [2018] QCAT 198
2 citations
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Cite 1 - [2018] QCAT 198
Cite 2 - [2018] QCAT 198
Graham v Queensland Racing Integrity Commission [2021] QCATA 125
2 citations
Jump To
Cite 1 - [2021] QCATA 125
Cite 2 - [2021] QCATA 125
Health Ombudsman v Barber (No.2) [2019] QCAT 252
2 citations
Jump To
Cite 1 - [2019] QCAT 252
Cite 2 - [2019] QCAT 252
Health Ombudsman v Kennedy (No.2) [2021] QCAT 88
2 citations
Jump To
Cite 1 - [2021] QCAT 88
Cite 2 - [2021] QCAT 88
HG [2012] QCAT 530
2 citations
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Cite 1 - [2012] QCAT 530
Cite 2 - [2012] QCAT 530
Magill v Queensland Law Society Inc (No 3) [2020] QCAT 327
2 citations
Jump To
Cite 1 - [2020] QCAT 327
Cite 2 - [2020] QCAT 327
Marzini v Health Ombudsman (No 4) [2020] QCAT 365
2 citations
Jump To
Cite 1 - [2020] QCAT 365
Cite 2 - [2020] QCAT 365
Medical Board of Australia v Putha [2014] QCAT 159
2 citations
Jump To
Cite 1 - [2014] QCAT 159
Cite 2 - [2014] QCAT 159
Medical Board of Australia v Wong [2017] QCA 42
2 citations
Jump To
Cite 1 - [2017] QCA 42
Cite 2 - [2017] QCA 42
Queensland Racing Integrity Commission v Vale [2017] QCATA 110
2 citations
Jump To
Cite 1 - [2017] QCATA 110
Cite 2 - [2017] QCATA 110
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
2 citations
Jump To
Cite 1 - [2010] QCAT 412
Cite 2 - [2010] QCAT 412
Rao v Medical Board of Australia (No 2) [2021] QCAT 391
2 citations
Jump To
Cite 1 - [2021] QCAT 391
Cite 2 - [2021] QCAT 391
Rattray v Queensland Racing Integrity Commission [2018] QCATA 39
2 citations
Jump To
Cite 1 - [2018] QCATA 39
Cite 2 - [2018] QCATA 39
Rattray v Queensland Racing Integrity Commission [2016] QCAT 439
2 citations
Jump To
Cite 1 - [2016] QCAT 439
Cite 2 - [2016] QCAT 439
Tamawood Ltd v Paans[2005] 2 Qd R 101; [2005] QCA 111
2 citations
Jump To
Cite 1 - [2005] QCA 111
Cite 2 - [2005] QCA 111
Warren v Queensland Law Society Incorporated (No. 2) [2003] QCAT 234
2 citations
Jump To
Cite 1 - [2003] QCAT 234
Cite 2 - [2003] QCAT 234

Cases Citing

Case NameFull CitationFrequency
HRE v Chief Executive, Department of Child Safety, Seniors and Disability Services [2024] QCAT 2211 citation
Pound v Queensland Building and Construction Commission [2023] QCAT 2982 citations
Southern Cross Educational Enterprises Ltd t/a Redwood College v Non-State Schools Accreditation Board (Costs) [2024] QCAT 5292 citations
Watego v State of Queensland and ors (costs) [2023] QCAT 2922 citations
1

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