Flanagan v Liew Family Holdings Pty Ltd
[2012] QCAT 570
•2 October 2012
| CITATION: | Flanagan v Liew Family Holdings Pty Ltd and Anor [2012] QCAT 570 |
| PARTIES: | Natalie Gai Flanagan (Applicant) |
| v | |
| Liew Family Holdings Pty Ltd Kerry Buhman (Respondents) |
| APPLICATION NUMBER: | ADL120-11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 2 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for costs by Liew Family Holdings Pty Ltd is dismissed. |
| CATCHWORDS: | ANTI-DISCRIMINATION – where complaint lapsed as complainant no longer wanted to proceed – where costs sought by one respondent – where that respondent had not been legally represented in the proceeding – where not established in interests of justice to award costs Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Ms Flanagan complained that she had been unlawfully discriminated against in her employment by the respondents on the basis of impairment. Her complaint was referred to QCAT for determination. The complaint had been set down for hearing to take place in August 2012.
Ms Flanagan applied for leave to withdraw her complaint as she did not have sufficient confidence that any judgement obtained against the respondents would be capable of enforcement. She told QCAT that lawyers for Liew Family Holdings Pty Ltd had informed her lawyers that the company was in a dire financial circumstance and was unable to defend or oppose the complaint. Ms Buhman had stated to QCAT that she did not have the financial ability to settle the complaint.
The complaint lapsed under section 193 of the Anti-Discrimination Act 1991. Liew Family Holdings Pty Ltd has applied for costs as a result of the complaint not proceeding. The company claimed that it had incurred costs in attending QCAT hearings and in the time taken preparing for its defence of the complaint. The company estimated that the costs were in the order of $2,400.
Ms Flanagan opposes the costs application.
Under sections 100 and 102 of the QCAT Act, a party to a proceeding in QCAT must bear their own costs for the proceeding unless an enabling Act provides for costs or unless it is in the interests of justice that QCAT awards costs. The enabling Act in this case, the Anti-Discrimination Act1991 does not provide a basis for a costs order. The application for costs can only succeed if I am satisfied that the interests of justice require me to award costs to Liew Family Holdings Pty Ltd.
The application for costs did not give particulars of how the claimed costs were estimated. Recovery of costs is generally taken to be recovery of legal costs ie costs incurred by a party being represented in a proceeding by an Australian lawyer as defined in section 5 of the Legal Profession Act 2007.[1]The term “costs” is not specifically defined in the QCAT Act or in the Acts Interpretation Act 1954. Costs are not generally taken to mean compensation for any time incurred by a party directly in a proceeding.
[1] See rules 679 and 691 of the Uniform Civil Procedure Rules 1999.
Liew Family Holdings Pty Ltd was not represented by a lawyer in this complaint. Leave had not been sought by Liew Family Holdings Pty Ltd to be represented in the complaint. Liew Family Holdings Pty Ltd appears to have sought advice from a lawyer early in the proceeding but according to a letter received by QCAT on 13 February 2012, the lawyer had ceased to act for Liew Family Holdings Pty Ltd by that date. In the absence of leave having been granted for legal representation, I am not satisfied that a basis has been established for consideration of an order for costs.
If I am wrong on that point and if it could be established that Liew Family Holdings Pty Ltd had incurred costs capable of being recovered, I have to be satisfied that a departure from the general rule in section 100 of the QCAT ACT should be considered. Justice Wilson, the President of QCAT, in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) has explained that: “Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.”[2]
[2] [2010] QCAT 412 at paragraph 29.
The only specific circumstance that Liew Family Holdings Pty Ltd relies on in its application for costs is the fact that the complaint had been withdrawn by Ms Flanagan. That withdrawal was stated to be based on information provided on behalf of Liew Family Holdings Pty Ltd that it was in a dire financial circumstance and was unable to defend or oppose the complaint. Ms Flanagan opted not to proceed to a hearing of her complaint as she was not confidant that any compensation awarded would be recovered from that company.
I am not satisfied that any circumstance has been established in which the interests of justice point compellingly to QCAT making a costs award in favour of Liew Family Holdings Pty Ltd. Costs do not simply follow the event in QCAT proceedings. Liew Family Holdings Pty Ltd has not established any distinguishing point that would tend to reveal that it had been put to inconvenience and expense outside the usual expectations in defending a complaint of this type.
The application for costs is dismissed.
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