Irvine and Porter v Mermaids Café and Bar Pty Ltd and Ingall (No 3)
[2011] QCAT 461
•16 September 2011
| CITATION: | Irvine and Porter v Mermaids Café and Bar Pty Ltd and Ingall (No 3) [2011] QCAT 461 |
| PARTIES: | Cheryth Irvine David Porter |
| v | |
| Mermaids Café and Bar Pty Ltd Jon Ingall |
| APPLICATION NUMBER: | ADC040-09 / ADC041-09 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 15 and 18 August 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | P Roney SC, Member |
| DELIVERED ON: | 16 September 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | That there be no orders for costs in the proceeding. |
| CATCHWORDS: | PROCEDURE – COSTS – DISCRETION TO AWARD COSTS in anti-discrimination matters to a successful Applicant and successful Respondent in a second claim associated with the first – whether prima facie position in s 100 should be displaced and costs ordered against unsuccessful Respondent pursuant to s 102(3) Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102(3) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Cheryth Irvine and David Porter represented by Mr Trost of Stephens and Tozer, Solicitors |
| RESPONDENT: | Mermaids Café and Bar Pty Ltd and Jon Ingall represented by Mr A Collins of Counsel, instructed by Fitz-Walter Lawyers |
REASONS FOR DECISION
The present application
After a four day hearing in August and September 2010, on 27 September 2010 I upheld a complaint in favour of the first Applicant Irvine against the Respondents, awarding her compensation for sexual harassment of $2,650, and the further sum by way of compensation for unlawful discrimination on the basis of pregnancy of $53,047.60 inclusive of interest.[1] The latter sum has since been reduced by agreement between the parties to take account of WorkCover payments which that Applicant received subsequent to judgment being delivered, and some other matters. The reduced figure in respect of the claim of pregnancy discrimination was an amount of $15,900. The complaint by the Applicant Porter against the Respondents was dismissed. His claim, which was also against the same Respondents against whom his de facto partner, the First Applicant, succeeded was based upon the contention that he was dismissed from the employment of the First Respondent on the basis of his association with Ms Irvine or because of his victimisation within the terms of section 130 of the Anti-Discrimination Act 1991. The successful Applicant, Ms Irvine seeks orders that the Respondents pay her costs of the proceeding, and indeed that those costs be paid on an indemnity basis. The Respondents resist that application and are content for orders that in effect there be no orders as to costs, either in favour or of the successful Applicant Irvine, or in favour of the Respondents against the unsuccessful Applicant Porter.
[1] See [2010] QCAT 482.
The starting point of course in this Tribunal is that each party must bear its own costs. That much is clear from the terms of section 100 of the QCAT Act. This statutory presumption maybe displaced if the Tribunal considers it in the interests of justice to order a party to pay all or part of the costs of another party; section 102(1).
The statutory position is of course that set out in ss 100 and 102 of the QCAT Act. They provide as follows:
100 Each party usually bears own costs
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.
102 Costs against party in interests of justice
(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.
The relevant principles have now been discussed in a number of decisions of this Tribunal, including, recently, in the Human Rights division, [in Carey v Cairns Regional Council and others(No 2) [2011] QCAT 372] having regard to the specific circumstances that prevail in respect of proceedings which involve human rights claims. In that decision I referred to the analysis of the President, Justice Wilson in two earlier decisions of the Tribunal, namely Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments(No 2) [2010] QCAT 412, and McEwen v Barker Builders Pty Ltd [2010] QCATA 49.
In this contest involving whether any, and if so, what costs orders should be made, the parties each filed a considerable body of affidavit and other material in support of their respective contentions. From the Applicant’s point of view alone, there were, apart from written submissions which were made at the time of trial as to what should occur with costs, three other outlines of submissions filed between May and 9 August 2011, and in addition oral submissions were made to the Tribunal on 18 August 2011. There were 4 affidavits filed in support of the matters set out in those submissions. Associated with those affidavits, were objections from the Respondents to the admissibility of parts of those affidavits. In addition, the Respondents filed Affidavit material and outlines of submissions, including supplementary submissions in support of their contentions.
Un-necessary applications and Appeals in the Tribunal
For the Applicant Irvine it was first submitted that she should be awarded her costs, indeed costs on indemnity basis, because there were numerous requests for, and indeed Applications to the Tribunal for disclosure of documents which were relevant to the proceedings, and that these requests and Applications were vexatious and unreasonable. This submission was made despite the fact that in response documents were actually produced by the Applicants which, it was conceded, were relevant to the subject matter of the proceedings, and were responsive to those requests. It was submitted that much of the activity of the Respondents was an attempt at fishing for evidence of prior inconsistent statements which might have been useful for the purposes of cross-examination of the Applicants’ witnesses and were therefore relevant only to credit and were not directly relevant. In that regard, one of my specific findings was that although Ms Irvine made a WorkCover claim on 4 February 2009 in which she made no mention of having been subjected to any sexual harassment, there were other earlier complaints that she had made which did reference that sexual harassment.
Whilst it is true to say that at times that the Respondents were tactically engaged in an attempt to find evidence to discredit the Applicants, that by itself does not seem to me to be a matter in this case which should either attract any specific costs order, a certainly would not attract an order for indemnity costs of the proceedings as a whole.
The second basis for the Application is that the Respondents unsuccessfully attempted on a number of occasions to strike out the proceedings on the basis of alleged non-disclosure of documents. Reliance was also placed on the fact that they also lodged an Appeal against a decision of the Senior Member Ms Endicott not to dismiss or strike out the proceeding on that basis and the cost of that Appeal, eventually abandoned, had not been dealt with by any order of the Tribunal. It is true that this matter took a considerable time to get to a hearing, in part because that numerous obstacles were placed in the path of that result. Amongst other matters which led to that result were multiple requests for the production of documents, the parties’ requests for various extensions of time, and arguments and counter-arguments associated with those matters.
The Respondents sought on more than one occasion to have the allocated hearing dates adjourned, or for dismissal of the proceeding on the basis of the alleged failure of the Applicants to produce relevant documents. All of these attempts failed. On 6 August 2010 the Respondents filed an Application to have the hearing dates vacated, and for dismissal of the proceedings. On 9 August 2010, that Application was dismissed on the basis that the Tribunal was not persuaded that a pre-hearing dismissal under section 48 of the QCAT Act was a just or appropriate remedy. The member did not consider it appropriate to make any further orders for disclosure or to vacate trial dates on the basis of contentions that there had been inadequate disclosure. In her view the QCAT Act did not require an opportunity for the resolution of the claim by hearing to be delayed while the parties “parry arguments back and forth about the relevancy of documents” nor was she satisfied that the Respondents had been prejudiced in the preparation for the hearing by failure of the Applicants to make disclosure.
On 20 August 2010 the Respondents sought leave to appeal that decision on the basis of the contention that she had made errors of fact and law. Yet another Application to adjourn or vacate the trial dates was brought before the Tribunal and heard by the President on the morning of the first day of hearing. It is difficult to image that this could have been anything other than intended to cause a level of disruption and uncertainty in the conduct of the proceeding. The President dismissed that application and the hearing proceeded. During the course of the hearing there were a number of other occasions when the Respondents complained that in some way or another they were prejudiced by the way in which the proceeding was being conducted or as to the want of disclosure. It did not seem to me that any of these contentions had any merit whatsoever. Even when final submissions were made on behalf of the Respondents they saw fit to have their Counsel submit that the Respondents had suffered a “serious denial of natural justice” because of non-compliance by the Applicants with directions from the Tribunal. There seemed to me to be no substance whatsoever to that submission.
That said, it seems to me that successful Applicant probably incurred some costs which were unnecessarily incurred by reason of those various applications, including the appeal, but the circumstances are not such as to justify a specific order that because of those matters the Respondents ought to pay the successful Applicant’s costs of the proceeding as a whole. I invited the solicitor for Ms Irvine to provide an indication of what the costs associated with those interlocutory applications and the appeal were, however, no figure was able to be provided.
Matters directed to the interests of justice
The third matter submitted on behalf of the successful Applicant was that it was in the interests of justice that such an order be made having regard to the following four matters.
First, that in consequence of the Respondents’ conduct in contravention of the Anti-Discrimination Act 1991 Ms Irvine had suffered a depressive disorder; I take that matter into account.
Secondly, it was submitted that the manner in which the proceeding had been conducted had involved an attack on the morality, honesty and decency of the Applicants. I dealt with some of these issues in my reasons, and in particular paragraphs 26 and 27 of those reasons where I observed that there were submissions made on behalf of the Respondents that the Applicants’ case was based on collaboration, reconstruction, and tailoring of evidence to fit the relevant events, without there having been any attempt to establish by evidence that they had in fact engaged in such conduct. I also found that that approach was consistent with the approach generally adopted by the Respondents to the resistance of the claims, namely to expose the Applicants themselves to an attack upon their own morality, honesty and decency.
There were other respects in which the Respondents’ conduct of their case was criticised as being without basis, and being inappropriate. In that regard the Applicant’s submission referenced paragraphs 24, 25 and 26 of my reasons, which concerned personal attacks upon the character, morality and honesty of the Applicants, and some of their witnesses.
It may fairly be said that there may be some cases in this jurisdiction in which the level of compensation which might be awarded would reflect the manner in which the case may have been conducted against an Applicant, particularly where the manner in which it was conducted was such as to aggravate the effects of the unlawful conduct in the first place. It does not seem to me, however, that those matters by themselves, or together with the other relevant factors in this case should result in an order for costs being made, or a finding that the interests of justice support the making of such an order.
The financial position of the successful Applicant was the third important matter relied upon by Applicant in support of her Application. She finds herself considerably in debt as a result of this proceeding. There has been incurred on behalf of both Applicants, that is both the successful, and unsuccessful Applicants solicitors’ costs in excess of $48,000. Of that, 60% has been incurred in the prosecution of her case and 40% in the Second Applicant’s case. She is personally responsible for that component of the costs incurred to her solicitor and also to her Counsel. She also incurred costs of $8,800 to her Counsel and a further $9,000 to her solicitors in bringing this Application for orders as to costs.
Whilst it is clearly a relevant consideration under section 102 of the Act that I have regard to the financial circumstances of the parties to the proceeding, it does not seem to me that there is anything that might be regarded as exceptional or unusual about the amount of costs which have been incurred in prosecuting the proceeding, or the fact that to have incurred such costs would cause an ordinary litigant to have their financial position significantly adversely affected. In my view the fact that the successful Applicant is financially disadvantaged as a result of having brought this Application, albeit a relevant consideration, particularly in a proceeding of this kind, for the reasons I mentioned in the decision in Carey v Cairns Regional Council, and particularly at paragraph 25 of those reasons, I do not regard this as a case which, because of the disadvantaged financial position of the successful Applicant, the interests of justice require a costs order to be made in her favour. One might well sympathise with the plight of the Applicant in this situation. She is a person who was wronged by the unlawful discriminatory conduct of the Respondents, by to have brought the proceeding and having sought to have these important laws upheld, she faces the difficulties which section 102 of the Act place in her path in seeking her costs in having done so.
Fourthly, it was submitted that this was a matter which had some considerable complexity. It was submitted that there was voluminous disclosure. There were aforementioned pre-emptive strikes to dismiss the proceeding, the matter involved immigration laws, it involved discrimination, and it involved some complexity of fact. It does not seem to me that this matter involved any particular complexity, when compared to other matters of a similar nature. There was relatively little complexity as to the factual matters, particularly in relation to the sexual harassment claims, and the matters of law were relatively straight forward. The circumstances of her dismissal, interwoven with the claims of Mr Porter carried some greater complexity, but in the end the matter does not seem to me to be of such complexity that an order for costs ought be made.
The effect of the failed case for the Second Applicant
There is one other critical factor that I take into account in my determination on this issue. The Respondents have submitted that it is appropriate that in effect both Applicants meet their own costs and the Respondents meet theirs, in circumstances in which the successful Applicant was only in part successful on her claim, and the other Applicant, her de facto partner entirely unsuccessful. As I have already noted, the submission made on behalf of Ms Irvine that this was a matter of such complexity as to justify a costs order. But were that accepted, the same argument would support the making of a costs order in favour of the Respondents against her de facto partner Mr Porter, who was wholly unsuccessful in his claim. Mr Porter’s claim had its own features, although associated with some of the circumstances which founded Ms Irvine’s claim, but by itself took a significant amount of time during the hearing in its prosecution. Both Applicants were represented by the same firm of solicitors and the same Counsel in the prosecution of their respective claims. Similarly, the Respondents in resisting both claims were represented by the same firm of solicitors and the same Counsel. In general terms, were such orders to be made in favour of the successful parties, they would be likely to largely cancel the other out.
In all of the circumstances, it seems to me that the interests of justice are best served by there being no order as to costs in favour of the successful Applicant, and no order for costs in favour of the Respondents against the unsuccessful Applicant. I therefore order that there be no order as to costs in either Application.
0
4
1