Bode v Queensland All Codes Racing Industry Board (No 2) - [2017] QCAT 84

CITATION:
Bode v Queensland All Codes Racing Industry Board (No 2) [2017] QCAT 84

PARTIES:
Gerald Lansborough Bode

(Applicant)

v

Queensland All Codes Racing Industry Board (Respondent)

APPLICATION NUMBER: OCR224-15

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Townsville

DECISION OF: Member Pennell

DELIVERED ON: 3 March 2017

DELIVERED AT: Townsville

ORDER MADE:

The application for costs is dismissed.

CATCHWORDS:
PROCEDURE – COSTS – DISCRETION TO ORDER COSTS – principles applied – presumption is that each party must bear the party’s own costs – rebuttal of legislative presumption only if in the interests of justice – must be sufficiently compelling grounds to depart from legislative presumption – in the interests of justice phrase is subjective and may vary depending on the facts, circumstances and the parties involved – award of costs is an exception rather than a rule – where Tribunal set aside a decision – natural justice – where a party acted without fairness – where party failed to make available a witness for cross examination but that conduct did not unnecessarily disadvantage the other party – decision maker must use best endeavours to assist the Tribunal – Tribunal’s power to require witnesses to attend – factors to be taken into account –Tribunal undertaking a detailed assessment of the dispute is not enough to rebut presumption to award costs –disparity in financial resources between the parties – circumstances and facts not complex in nature – Applicant’s genuine attempts to enable and help the decision maker to make a decision on the merits

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 21, s 28(4), s 48(1)(a), s 48(1)(b), s 48(1)(c), s 48(1)(d), s 48(1)(e), s 48(1)(f), s 48(1)(g), s 97, s 98, s 100, s 102(1), s 102(3)(a), s 102(3)(b), s 102(3)(c), s 102(3)(d)(i), s 102(3)(d)(ii), s 102(3)(e), s 102(3)(f) and s 107(1).
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 85.

Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601
Latoudis v Casey (1990) 170 CLR 534
McEwen v Barker Builders Pty Ltd [2010] QCATA 49

Queensland All Codes Racing Industry Board v Abbott (No 2) QCATA 49

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

Warren v Queensland Law Society Incorporated (No 2) [2013] QCAT 234

Wolfgram v Racing Queensland [2012] QCAT 44

APPEARANCES and REPRESENTATIONS:
Pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”), the Applicant’s application for costs was heard and determined by the Tribunal on the papers by way of written submissions from the parties; and without an oral hearing.
REASON FOR DECISION
Introduction
[1]On 5 December 2016, the Tribunal set aside the conviction and penalty imposed by the Respondent upon the Applicant arising out of an incident at the Herbert River Jockey Club at Ingham on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QCAT 84
Decision Date: 3 March 2017

CaseChat Overview and Summary

Bode v Queensland All Codes Racing Industry Board (No 2) involved a dispute between the Applicant and the Board concerning the allocation of costs under the Queensland Civil and Administrative Tribunal Act. The Applicant sought an order for costs, arguing that the disparity in financial resources between the parties and the Board's reliance on industry funding warranted a departure from the statutory presumption that each party bears its own costs. The Board, on the other hand, argued that there were no compelling reasons to shift from the legislative presumption, and that the Tribunal should not make an order for costs.

The key legal issues before the Tribunal were whether the disparity in financial resources and the Board's funding source constituted sufficiently compelling grounds to depart from the legislative presumption of each party bearing their own costs. The Tribunal had to consider the statutory provisions, the principles governing the award of costs, and the specific circumstances of the case. The Tribunal also needed to assess whether the Applicant's conduct, such as failing to make a witness available for cross-examination, warranted a costs order.

In its reasoning, the Tribunal noted that the statutory presumption places the burden of costs on each party and that an award of costs is an exception rather than a rule. The Tribunal found that the Applicant had not provided sufficiently compelling reasons to shift from this presumption. While the disparity in financial resources was a factor that could be taken into account, it was not a ground in itself for awarding costs. The Tribunal also considered the potential deterrent effect on the Board's duties if costs were awarded against it. The Tribunal concluded that the Applicant's arguments were not compelling enough to overcome the legislative presumption and that it was not in the interests of justice to order costs.

The Tribunal dismissed the Applicant's application for costs, and each party was ordered to bear its own costs. The Tribunal's decision was based on the lack of compelling reasons to depart from the statutory presumption and the absence of any significant unfair conduct by the Board.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Applicant’s counter argument,[54] which the Tribunal accepts, is to say that it is not necessary for him to adduce anything more than what he has already provided in the annexure attached to the submissions. The amount sought in in that annexure is within range. [54]Applicant’s submissions in reply at paragraph 4.[56]Another issue that the Respondent asked the Tribunal to consider was its own reliance upon funding by industry participants, and had previously been acknowledged by the Tribunal[55] in Queensland All Codes Racing Industry Board v Abbott (No. 2) [2016] QCATA 49 at [18] where is was observed that in many cases, a party appears before the Tribunal with little or no financial support. This circumstance is not a reason for making an order for costs. The Tribunal’s attention is also drawn to the observations of the Tribunal in Wolfgram v Racing Queensland [2012] QCAT 44 at [26] where the Tribunal determined that a factor which may weight against an award of costs in racing matters is that an undesirable outcome in awarding costs against such a body is that it may act as a deterrent to the body fulfilling its duties. [55]Decision of Justice Thomas and Senior Member Stilgoe OAM.[57]Both parties have effective arguments, however when turning to consider this point, it must be recognised that disparity in financial positions is not a ground for awarding costs, although it is a factor that can be taken into account whether it is in the interests of justice to award costs. The financial impact upon a successful party must be sufficiently compelling to justify a shift from the legislative presumption as provided in section 100 of the QCAT Act. The Tribunal is not convinced that there are significantly compelling reasons to rule otherwise. Anything else that the Tribunal considers relevant[56][56]Queensland Civil and Administrative Tribunal Act, s 102(3)(f).[58]This factor gives the Tribunal a very wide discretion to award costs. There have been no other factors, outside the ones already discussed above, which have been advanced in this application which has influenced the Tribunal to order costs.Conclusion[59]The presumption as provided in the legislation tends to place an award of costs as an exception rather than as a rule. There must be a sufficiently compelling or persuasive reasons for the Tribunal to depart from the legislative presumption. [60]Having regard to all the circumstances of this matter, it is the Tribunal’s view that the factors relied upon by the Applicant are not sufficiently compelling enough to overcome the strong contra-indication against costs or compelling enough to convince the Tribunal that it is in the interest of justice to rebut the presumption as provided in section 100 of the QCAT Act. [61]Each party must bear their own costs and the application is dismissed.ORDER[62]That application for costs is dismissed.

Ratio Decidendi

Legal Principle Established

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CITATION:	Bode v Queensland All Codes Racing Industry Board (No 2) [2017] QCAT 84
PARTIES:	Gerald Lansborough Bode (Applicant)
v
Queensland All Codes Racing Industry Board (Respondent)
APPLICATION NUMBER:	OCR224-15
MATTER TYPE:	Occupational regulation matters
HEARING DATE:	On the papers
HEARD AT:	Townsville
DECISION OF:	Member Pennell
DELIVERED ON:	3 March 2017
DELIVERED AT:	Townsville
ORDER MADE:	The application for costs is dismissed.
CATCHWORDS:	PROCEDURE – COSTS – DISCRETION TO ORDER COSTS – principles applied – presumption is that each party must bear the party’s own costs – rebuttal of legislative presumption only if in the interests of justice – must be sufficiently compelling grounds to depart from legislative presumption – in the interests of justice phrase is subjective and may vary depending on the facts, circumstances and the parties involved – award of costs is an exception rather than a rule – where Tribunal set aside a decision – natural justice – where a party acted without fairness – where party failed to make available a witness for cross examination but that conduct did not unnecessarily disadvantage the other party – decision maker must use best endeavours to assist the Tribunal – Tribunal’s power to require witnesses to attend – factors to be taken into account –Tribunal undertaking a detailed assessment of the dispute is not enough to rebut presumption to award costs –disparity in financial resources between the parties – circumstances and facts not complex in nature – Applicant’s genuine attempts to enable and help the decision maker to make a decision on the merits Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 21, s 28(4), s 48(1)(a), s 48(1)(b), s 48(1)(c), s 48(1)(d), s 48(1)(e), s 48(1)(f), s 48(1)(g), s 97, s 98, s 100, s 102(1), s 102(3)(a), s 102(3)(b), s 102(3)(c), s 102(3)(d)(i), s 102(3)(d)(ii), s 102(3)(e), s 102(3)(f) and s 107(1). Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 85. Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601 Latoudis v Casey (1990) 170 CLR 534 McEwen v Barker Builders Pty Ltd [2010] QCATA 49 Queensland All Codes Racing Industry Board v Abbott (No 2) QCATA 49 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Warren v Queensland Law Society Incorporated (No 2) [2013] QCAT 234 Wolfgram v Racing Queensland [2012] QCAT 44