Crime and Corruption Commission v NDZ

Case [2024] QCAT 21

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

CRIME AND CORRUPTION COMMISSION V NDZ [2024] QCAT 21

PARTIES:
CRIME AND CORRUPTION COMMISSION 

(applicant)

v
NDZ

(respondent)

APPLICATION NO/S:

OCR071-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 January 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

1.     The application for costs is dismissed.

2. Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of:

(a)     the contents of a document or thing filed in or produced to the Tribunal;

(b)     evidence given before the Tribunal; and

(c)     any order made or reasons given by the Tribunal,

is prohibited to the extent that it may identify or lead to the identification of the respondent, or any third party to the proceedings, save as is necessary for the parties to engage in and progress these proceedings.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – costs – statutory basis – where disciplinary referral filed by Crime and Corruption Commission included allegations of corrupt conduct – where disciplinary referral discontinued by applicant – where costs application by respondent – approach to costs orders in the Tribunal – whether order for costs should be made

Commercial and Consumer Tribunal Act 2003 (Qld), s 70
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 66, s 100, s 102
South Australian Civil and Administrative Tribunal Act 2013 (SA), s 8

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
Cantamessa v Queensland Building and Construction Commission (No 2) [2021] QCAT 213
Cowen v Queensland Building and Construction Commission [2021] QCATA 103
Fairfield Services Pty Ltd (in liq) v Leggett [2020] 5 Qd R 50
Fuge v Queensland Building and Construction Commission [2014] QCAT 383
Lee v Medical Board of Australia (No 2) [2016] QCAT 321
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Marzini v Health Ombudsman (No 4) [2020] QCAT 365
Medical Board of Western Australia and Roberman [2005] WASAT 81 (supplementary decision)
Medical Board of Australia v Wong [2017] QCA 42
Motor Vehicle Industry Board v Dawson [2006] WASAT 8
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Porteous v Pharmacy Board of Australia (No 2) [2021] QCAT 390
Pound v Queensland Building and Construction Commission [2023] QCAT 298
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
Richards & Anor v Queensland Building and Construction Commission & Anor (No 2) [2019] QCAT 372
Stuart v Queensland Building and Construction Commission [2016] QCATA 135
Tamawood Ltd v Paans [2005] 2 Qd R 101
Young v Legal Profession Complaints Committee [2022] WASCA 52

APPEARANCES & REPRESENTATION:

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

  1. The respondent, an officer…

Continue reading Crime and Corruption Commission v NDZ

Sign in free to access the full text

Details
AGLC
Crime and Corruption Commission v NDZ [2024] QCAT 21
Case
[2024] QCAT 21
Decision Date

CaseChat Overview and Summary

The respondent, an officer of the Queensland Police Service, applied for costs after the Crime and Corruption Commission discontinued a disciplinary referral involving eight charges of corrupt conduct. The alleged misconduct related to the respondent's role in police recruiting, specifically in implementing the Queensland Police Service's recruitment strategy. The referral was initially filed on 5 April 2022, but the hearing was scheduled for 18 March 2024. The Commission discontinued the referral on 26 October 2023. The respondent applied for costs under the Queensland Civil and Administrative Tribunal Act 2009. The primary legal issue was whether the respondent was entitled to an order for costs in the circumstances, considering the statutory basis for such orders and the principles developed in relevant case law.

The court considered the statutory framework for costs under the QCAT Act, specifically sections 100 and 102. It noted that while section 100 generally mandates that each party bears its own costs, section 102 allows for a costs order if the interests of justice require it. The court acknowledged differing views on the interplay between these sections but focused on the interests of justice considerations outlined in section 102(3). It rejected the view that a strong contra-indication against costs orders, as implied in section 100, should be overcome, as this approach does not adequately account for the diverse jurisdictions of the Tribunal. Instead, the court considered whether the interests of justice simply required a costs order, without needing to overcome a strong contra-indication.

The court concluded that the respondent was not entitled to an order for costs. It considered factors such as the nature and complexity of the dispute, the relative strengths of the parties' claims, and the financial circumstances of the parties. The court found that the discontinuance of the referral did not compel a costs order in the interests of justice. The court also noted the prohibition on publication of the proceedings to protect the privacy of the parties.

The court dismissed the respondent's application for costs and prohibited the publication of the proceedings to the extent that it may identify the respondent or any third party.

Orders

Orders of the court

1. The application for costs is dismissed.

2. Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of:

(a) the contents of a document or thing filed in or produced to the Tribunal;

(b) evidence given before the Tribunal; and

(c) any order made or reasons given by the Tribunal,

is prohibited to the extent that it may identify or lead to the identification of the respondent, or any third party to the proceedings, save as is necessary for the parties to engage in and progress these proceedings.

Background

Background to the litigation

The respondent, an officer of the Queensland Police Service (‘the QPS’), has made an application for costs following the filing of a notice of discontinuance of a disciplinary referral by the applicant. Consistent with the right under s 43(2)(b)(ii) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the respondent was legally represented in the proceedings.Background The application or referral – disciplinary proceeding was filed by the applicant on 5 April 2022. The referral involved eight charges of corrupt conduct. The alleged conduct of the respondent related to her role in relation to police recruiting and, in particular, in implementing the QPS recruitment strategy to achieve a target in relation to the number of females per intake. The allegations included that the respondent approved offers to female applicants who had not yet passed relevant tests; implemented different standards for cognitive tests for male and female applicants; authorised dishonest and misleading correspondence and feedback to applicants; and provided dishonest and/or misleading information in relation to recruitment to QPS senior executive members, the Board of Management, other members of the QPS and external agencies, as well as for ministerial briefings and correspondence. There were delays in progressing the matter, including in relation to the filing of an agreed statement of facts, and on 27 April 2023 it was listed for a three-week Tribunal Hearing commencing on 18 March 2024. The notice of discontinuance of the disciplinary referral was filed by the applicant on 26 October 2023. Following the application for costs made by the respondent, directions were made for the parties to file written submissions. There have been a number of decisions of the Tribunal in relation to the proper basis for the award of costs under the QCAT Act, including in relation to disciplinary matters.The QCAT Act Section 100 of the QCAT Act is headed ‘Each party usually bears own costs’ and provides: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. Section 102 is headed ‘Costs against party in interests of justice’ and provides:(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. (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.(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following— (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); (b) the nature and complexity of the dispute the subject of the proceeding; (c) the relative strengths of the claims made by each of the parties to the proceeding; (d) for a proceeding for the review of a reviewable decision—(i) whether the applicant was afforded natural justice by the decision-maker for the decision; and (ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits; (e) the financial circumstances of the parties to the proceeding; (f) anything else the tribunal considers relevant.Costs decisions

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 102 is headed ‘Costs against party in interests of justice’ and provides:(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. (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.(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following— (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); (b) the nature and complexity of the dispute the subject of the proceeding; (c) the relative strengths of the claims made by each of the parties to the proceeding; (d) for a proceeding for the review of a reviewable decision—(i) whether the applicant was afforded natural justice by the decision-maker for the decision; and (ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits; (e) the financial circumstances of the parties to the proceeding; (f) anything else the tribunal considers relevant.Costs decisions There have been ongoing divergent views expressed in the decisions of the Tribunal as to the effect of those provisions. Those views, as well as the approaches adopted in other Australian jurisdictions, were canvassed in Pound v Queensland Building and Construction Commission.[1] On one view expressed in the Queensland Tribunal decisions, each party should bear their own costs unless the interests of justice ‘point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100’ (of the QCAT Act): see Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2).[2] On another view, the relevant test is simply whether the interests of justice require a costs order, though allowing that the word ‘require’ in s 102(1) of the QCAT Act shows that an order for costs should not be too readily made: see Marzini v Health Ombudsman (No 4)[3] and Cowen v Queensland Building and Construction Commission.[4] On the latter view, it is not necessary to overcome any imputed (by s 100 of the QCAT Act) ‘strong contra-indication’ against a costs order.[1][2023] QCAT 298, [8]-[32].[2][2010] QCAT 412, [4]. See also cases cited in Pound, [10].[3][2020] QCAT 365, [17].[4][2021] QCATA 103, [25]-[27]. See also cases cited in Pound, [13]. In their submissions, the parties make no direct reference to these opposing views. The focus of their submissions is on the interests of justice considerations outlined in s 102(3) of the QCAT Act. In Pound, I expressed reservations in relation to both of those views. A difficulty with the first approach is that the prescription of a strong contra-indication against costs orders in all cases does not provide a clear reference point for the interplay between s 100 and s 102 of the QCAT Act and does not take account of the diverse jurisdictions of the Tribunal, which include civil disputes, administrative review and disciplinary proceedings. In Pound it is stated, at [34]-[35] (footnote omitted):One difficulty with a generally applicable test expressed in terms of whether the interest of justice are so compelling or clear that they overcome the ‘strong contra-indication’ against a costs order, is that, taken in isolation, it provides no discernible foundation to enable its impact to be measured relative to the interests of justice considerations in s 102(3) of the QCAT Act.That difficulty is magnified by the fact of QCAT’s diverse jurisdiction and the potentially differing considerations that might arise in assessing the interplay between s 100 and s 102(3) of the QCAT Act in any given case. As noted in South Australian Housing Trust v Brady & Milera, at [26], with reference to the diverse jurisdiction of that Tribunal: ‘In some of its areas of work, the nature of the proceedings and the circumstances that bring the parties to the Tribunal may lend themselves more than others to a ready finding that it is appropriate to make an award of costs’. On that basis, it is evident that different factors come into play with each jurisdiction, such that might influence any starting point as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.