QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
CH v Queensland Police Service [2021] QCATA 137
PARTIES: CH (applicant/appellant)
v
QUEENSLAND POLICE SERVICE (respondent)
APPLICATION NO/S:
APL267-20
ORIGINATING APPLICATION NO/S:
OCL049-18
MATTER TYPE:
Appeals
DELIVERED ON:
23 November 2021
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Judge Allen QC, Deputy President
ORDERS: 1. Grant leave to appeal the decision of the Tribunal of 7 August 2020.
2. Set aside the decision of the Tribunal that the application for costs is dismissed.
3. Substitute a decision that, pursuant to section 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the respondent pay the applicant’s costs of the proceeding OCL049-18 fixed in the sum of $6,875.
4. Order that the respondent pay the applicant’s filing fee of $704.10 for the application for leave to appeal or appeal.
CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – costs – test for costs order – whether order in the interest of justice – costs – order made
ADMINISTRATIVE LAW – ADMINISTATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – non-publication orders – non-publication order made in original proceeding – such order subsisting at time of appeal – interim non-publication order made in appeal proceeding – where non-continuance of interim non-publication order in appeal proceeding would render nugatory subsisting non-publication order made in original proceeding – whether interim non-publication order in appeal proceeding should continue
Information Privacy Act 2009 (Qld), s 176, s 178
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66, s 100, s 102, s 142Campbell v Queensland Building and Construction Commission [2021] QCATA 34
CH v Queensland Police Service [2019] QCAT 297
CH v Queensland Police Service [2020] QCAT 309
Cowen v Queensland Building and Construction Commission [2021] QCATA 103
Crime and Corruption Commission v Lee [2019] QCATA 38
House v The King (1936) 55 CLR 499
Marzini v Health Ombudsman (No 4) [2020] QCAT 365
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Queensland Police Service Legal Services
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
Introduction
The applicant made a privacy complaint which was referred to the Tribunal by the Information Commissioner pursuant to s 176 of the Information Privacy Act 2009 (Qld) (IP Act). The Tribunal found part of the complaint to have been substantiated and, pursuant to s 178 of the IP Act, ordered that the respondent provide a written apology to the applicant and pay the applicant compensation in the sum of $17,806.75. That sum included an amount of $10,000 compensation for loss and damage suffered by the applicant, “including the psychological consequences of the disclosure”, pursuant to s 178(a)(v) of the IP Act.[1] It further included an amount of $5,000, pursuant to s 178(d) of the IP Act, for reimbursement of expenses occurred in connection…
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- Case
- [2021] QCATA 137
- Decision Date
CaseChat Overview and Summary
The legal issues before the QCAT Appeal centred on the exercise of discretion by the QCAT in dismissing CH’s application for costs of the proceeding below, and the appropriateness of the QCAT’s order for non-publication. The appeal hinged on whether the QCAT had erred in law or acted unreasonably in dismissing the costs application and in making the non-publication order.
The QCAT Appeal found that the QCAT had constrained its discretion in dismissing CH’s costs application by adopting a wrong principle and thereby erred in law. The Appeal Tribunal considered that the QCAT’s conclusion was unreasonable and unjust, warranting a rehearing of the costs application. On the merits, the Appeal Tribunal determined that the interests of justice required an order for the respondent to pay CH’s costs of the proceeding below, fixed at $6,875. Regarding the non-publication order, the Appeal Tribunal found no basis to disturb the order made by the QCAT in the original proceeding, which remained in effect.
In conclusion, the QCAT Appeal granted leave to appeal and set aside the QCAT’s decision dismissing CH’s application for costs. The Appeal Tribunal ordered the respondent to pay CH’s costs of the proceeding below in the sum of $6,875 and also ordered the respondent to pay CH’s filing fee for the application for leave to appeal or appeal, amounting to $704.10.
Orders
Orders of the court
1. Grant leave to appeal the decision of the Tribunal of 7 August 2020.
2. Set aside the decision of the Tribunal that the application for costs is dismissed.
3. Substitute a decision that, pursuant to section 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the respondent pay the applicant’s costs of the proceeding OCL049-18 fixed in the sum of $6,875.
4. Order that the respondent pay the applicant’s filing fee of $704.10 for the application for leave to appeal or appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Judicial Member McGill SC was referring to the limits of appellate review of an exercise of discretion where an appeal will only succeed if House v The King[16] error is established. I accept as accurate the submissions of the respondent as to the limits of appellate review of an exercise of judicial discretion.[16](1936) 55 CLR 499.Consideration I consider that the Tribunal, in the adoption of the quoted comments of the then President in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)[17], unduly constrained the discretion to be exercised pursuant to s 102 of the QCAT Act in determining the applicant’s application for costs of the proceeding. The Tribunal acted upon a wrong principle and erred in law in so doing. Further, the conclusion of the Tribunal was, upon the facts of the case, so unreasonable and unjust that the Appeal Tribunal may infer that there has been a failure to properly exercise the discretion pursuant to s 102 of the QCAT Act.[17][2010] QCAT 412 at [29]. Leave to appeal should be granted. The appeal is to be decided by way of rehearing.[18] The Appeal Tribunal must re-exercise the discretion pursuant to s 102 of the QCAT Act in determining the applicant’s application for costs of the proceeding below. Having considered the respondent’s rejection of the applicant’s offer to settle, the nature and complexity of the dispute the subject of the proceeding and the success of the applicant in the proceeding, along with those other matters prescribed by s 102(3) of the QCAT Act, I consider that the interests of justice require an order that the respondent pay the applicant’s costs of the proceeding fixed in the sum of $6,875.[18]QCAT Act, s 147. The applicant sought the costs of the appeal in his application for leave to appeal or appeal. Although he was granted leave to be legally represented in the appeal, there is no indication that the applicant has incurred the costs of legal representation on the appeal. All correspondence with the Tribunal has been from the applicant personally and he is the author of written submissions filed on behalf of the applicant. In his written submissions, the applicant confines his claim for the costs of the appeal to the filing fee for the application for leave to appeal and appeal. The applicant should be recompensed the filing fee for the application for leave to appeal or appeal. A non-publication order was made in the original proceeding upon the application of the applicant and not opposed by the respondent at that time. Neither party sought the discharge of that non-publication order at any time and it has not been the subject of appeal. That order continues to have effect. The reason for decision in the proceedings below were anonymised in compliance with such order. Given that it was not the subject of dispute in the original proceeding or the subject of subsequent appeal, the Appeal Tribunal could only speculate as to the reasons why the Tribunal exercised the discretion pursuant to s 66 of the QCAT Act to make a non-publication order in the original proceeding. Submissions by the applicant contend that it was made pursuant to s 66(2)(b) of the QCAT Act so as to avoid endangering the mental health of the applicant. References in the reasons in the primary decision as to psychological harm suffered by the applicant as a consequence of the breach of his privacy[19] suggest that might be the case. [19]CH v Queensland Police Service [2019] QCAT 297 at [42] and [48].