BB v State of Queensland (No 2)

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.