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BB v State of Queensland (No 2)

BB v State of Queensland (No 2)

Case [2021] QCAT 148

Jurisdiction

Costs

Anti-Discrimination Act 1991 (Qld)

Administrative Law

Anti-Discrimination Law

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

BB v State of Queensland & Ors (No 2) [2021] QCAT 148

PARTIES: BB ON BEHALF OF RB

(applicant)

v

STATE OF QUEENSLAND

(respondent)

GD

(respondent)

MD

(respondent)

APPLICATION NO/S:

ADL017-19

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

19 April 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDER:

Each party pays their own costs.

CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – GENERALLY - where strong contra-indicator against costs – where interests of justice do not require costs order – where complaint not without substance and at least arguable – where effect of a costs order would be to impose a considerable impost on pursuing redress for an arguable case of alleged breach of human rights – where costs provisions construed beneficially to give full effect to objects and purposes of the Anti-Discrimination Act 1991 (Qld) - where key to Respondents’ success was findings of fact from preferring their evidence – where not unreasonable to test this evidence at hearing

Anti-Discrimination Act 1991 (Qld), s 6, s 191
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48, s 66, s 100, s 102, s 103, s 105

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

Alexander v State of Queensland & Anor [2016] QCAT 142

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

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

BB on Behalf of RB v State of Queensland & Ors [2020] QCAT 496

Carey v Cairns Regional Council & Ors (No. 2) [2011] QCAT 372

Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226

Harrison v Terra Search Ltd & Ors [2014] QCAT 128

McKinnon v State of Queensland and Anor (No 2) [2012] QCAT 566

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

Simonova v State of Queensland [2021] QCAT 45

Tracey v Olinderidge Pty Ltd & Anor [2015] QCAT 7

Virgtel Ltd & Anor v Zabusky & Ors [2008] QSC 213

Yeo v Brisbane Polo Club Inc. [2013] QCAT 261

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

S Hamlyn-Harris instructed by Crown Law

REASONS FOR DECISION

On 17 December 2020, the Tribunal dismissed BB’s application that a School’s treatment of his student son discriminated against him. Although the Respondents submitted that BB should pay their costs,[1] the Tribunal has decided not to depart from the strong contra-indicator against awarding costs.[2]
[1]Respondents’ Submissions on Costs dated 1 March 2021.
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100; Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364, [9] (Kingham DCJ); Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412, [29] (Wilson J).
The Tribunal accepts that BB is a ‘party’ for the purposes of awarding costs.[3] However, the Tribunal does not consider that the interests of justice[4] require a costs order. A person seeking relief for an alleged breach of human rights should be afforded a reasonable opportunity to have their case heard and determined according to law.[5] BB’s complaint was not without substance[6] and was at least arguable.[7]
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102; Simonova v State of Queensland [2021] QCAT 45. It is therefore unnecessary to determine whether BB is a representative against whom costs should be awarded, as the criteria to award costs in those circumstances is more limited: Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 103; Tracey v Olinderidge Pty Ltd & Anor [2015] QCAT 7.
[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102.
[5]Harrison v Terra Search Ltd & Ors [2014] QCAT 128, [8].
[6]Harrison v Terra Search Ltd & Ors [2014] QCAT 128, [10].
[7]Alexander v State of Queensland & Anor [2016] QCAT 142, [31].
The effect of a costs order against BB would be to impose a considerable impost on pursuing redress for an arguable case of alleged breach of human rights. While unmeritorious claims should be discouraged due to the costs on the parties and the community as a whole,[8] the Tribunal has consistently expressed its reticence to too readily prevent an independent hearing about an alleged breach of human rights.[9] That would be contrary to the overarching tenets of a jurisdiction that contemplates self-representation, embraces cost-effectiveness and eschews an unnecessarily technical approach:
The Parliament of Queensland in the Anti-Discrimination Act 1991 expressly stated that everyone should have the right to equal protection and benefit of the law without discrimination, that the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society and that the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone.[10]
[8]Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.
[9]McKinnon v State of Queensland and Anor (No 2) [2012] QCAT 566, [7]; Yeo v Brisbane Polo Club Inc. [2013] QCAT 261, [14] - [16]; Alexander v State of Queensland & Anor [2016] QCAT 142, [54].
[10]Harrison v Terra Search Pty Ltd & Ors [2014] QCAT 128, [9].
The Tribunal dismissed each of the allegations and made no findings that were critical or unfavourable to the Respondents’ conduct. The Tribunal accepts that the proceedings were complex, requiring a five-day hearing. The Tribunal also accepts that the Respondents were put to considerable expense in responding to the allegations. The Tribunal also notes that the Respondents offered to settle the proceedings on 27 April 2020 encompassing a letter of regret and refresher training.[11]
[11]Respondents’ Submissions on Costs dated 1 March 2021, [31] to [33]; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 105; Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86.
However, the Tribunal does not accept that these circumstances amount to ‘unnecessary disadvantage’ sufficient to outweigh the strong contra-indicator against costs in a human rights jurisdiction where parties are often not legally represented and the adequacy of the contentions are to be considered in a reasonable, realistic and pragmatic way.[12] The costs provisions are therefore construed beneficially to give full effect to the objects and purposes of the Anti-Discrimination Act 1991 (Qld).[13]
[12]Virgtel Ltd & Anor v Zabusky & Ors [2008] QSC 213, [15] (Daubney J).
[13]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48, s 102(3)(a); Tracey v Olinderidge Pty Ltd & Anor [2015] QCAT 7; Carey v Cairns Regional Council & Ors (No. 2) [2011] QCAT 372, [13], [19] - [20]; Anti-Discrimination Act 1991 (Qld), s 6.
BB’s case was arguable and did not lack merit. Key to the Respondents’ success was the Tribunal’s findings of fact from preferring the evidence of the Respondents over the student’s parents.[14] However, this did not mean the parents’ evidence was not honest or genuine.[15] Moreover, the Respondents’ evidence was untested. BB did not unnecessarily disadvantage the Respondents by proceeding to a hearing on that basis.
[14]BB on Behalf of RB v State of Queensland & Ors [2020] QCAT 496, [22] – [23].
[15]BB on Behalf of RB v State of Queensland & Ors [2020] QCAT 496, [22].
Because the Tribunal has previously ordered that any reasons or orders are not to identify relevant persons, these reasons are published in a de-identified format.[16]
[16]Directions 5, 6 of 27 April 2020; Anti-Discrimination Act 1991 (Qld), s 191; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.
The appropriate Order is that each party pays their own costs.

Details

AGLC: BB v State of Queensland (No 2) [2021] QCAT 148
Case: [2021] QCAT 148
Decision Date

CaseChat Overview and Summary

The applicant, BB on behalf of his son RB, filed an application against the State of Queensland and others, alleging that a school's treatment of RB constituted discrimination. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining the matter. The legal issues that the Tribunal needed to resolve included whether BB, as the applicant, was entitled to have his costs covered by the respondents and if the respondents had acted in a manner that warranted a costs order against BB. The Tribunal had to weigh the principles of fairness, the nature of the complaint, and the potential impact on BB's ability to seek redress for the alleged breach of human rights.

The Tribunal examined the criteria for awarding costs under the Queensland Civil and Administrative Tribunal Act 2009 and the Anti-Discrimination Act 1991. The Tribunal noted that while the respondents argued that BB should bear their costs, it was mindful of the strong contra-indicator against awarding costs in human rights cases. The Tribunal also considered that BB's complaint, although dismissed, was not without substance and was at least arguable. The Tribunal recognised the importance of allowing individuals to have their cases heard and determined according to law, especially in matters involving alleged breaches of human rights. Consequently, the Tribunal decided not to order BB to pay the respondents' costs, as it would impose a considerable burden on BB in pursuing redress for an arguable case. The Tribunal also noted that the respondents' success in the case was largely due to the Tribunal's preference for their evidence over that of BB, and that BB had not acted unreasonably by proceeding to a hearing on that basis.

The Tribunal concluded that the interests of justice did not require a costs order against BB. The Tribunal emphasised that the costs provisions should be construed in a manner that aligns with the objects and purposes of the Anti-Discrimination Act 1991. The Tribunal recognised that parties in such cases are often not legally represented, and the adequacy of the contentions should be considered in a reasonable, realistic and pragmatic way. The Tribunal found that the circumstances did not amount to 'unnecessary disadvantage' sufficient to outweigh the strong contra-indicator against costs in a human rights jurisdiction. Therefore, the Tribunal ordered that each party pay their own costs.

This decision highlights the importance of balancing the need to discourage unmeritorious claims with the necessity to allow individuals to seek redress for alleged breaches of human rights. The Tribunal's approach demonstrates a commitment to ensuring that the costs provisions are applied in a manner that supports the overarching tenets of a jurisdiction that contemplates self-representation, embraces cost-effectiveness, and eschews an unnecessarily technical approach. The Tribunal's decision also underscores the importance of considering the adequacy of contentions in a reasonable and pragmatic way, particularly in cases involving alleged breaches of human rights.

Orders