Kelson v Queensland Police Service

[2019] QCATA 103

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Kelson v Queensland Police Service & Anor [2019] QCATA 103

PARTIES:

BRUCE ALEXANDER KELSON
(appellant)

v

QUEENSLAND POLICE SERVICE

(first respondent)

OFFICE OF THE INFORMATION COMMISSIONER

(second respondent)

APPLICATION NO/S:

APL106-17

ORIGINATING APPLICATION NO/S:

312820

MATTER TYPE:

Appeals

DELIVERED ON:

12 July 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

ORDERS:

1.   Bruce Alexander Kelson’s application for miscellaneous matters filed 21 June 2019 is refused.

2.   Each party is to bear its own costs of and incidental to the appeal.

CATCHWORDS:

ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – RIGHT OF ACCESS – REVIEW OF DECISIONS – where the appeal was allowed in respect of one ground only and otherwise dismissed – where the appellant has applied for costs – whether the interests of justice require an order of costs pursuant to s 102 of the Queensland Civil and Administrative Tribunal Act 2009

Queensland Civil and Administrative Tribunal Act 2009, s 100, s 102
Right to Information Act 2009 (Qld), s 119, s 122

Kelson v Queensland Police Service & Anor [2019] QCATA 67

REPRESENTATION:

Applicant:

Self-represented

First Respondent:

Self-represented

Second Respondent:

Self-represented

APPEARANCES:

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. On 10 June 2019, the Appeal Tribunal determined to allow the appeal in this matter in respect of one ground and to remit the decision to the Information Commissioner for reconsideration in that respect, and the appeal was otherwise dismissed.[1]

   [1]See Kelson v Queensland Police Service & Anor [2019] QCATA 67.

2. The parties were given the opportunity to file any submissions as to costs by 21 June 2019. No submissions were filed by or on behalf of either respondent. On 21 June 2019, the appellant, Mr Kelson, filed an application for miscellaneous matters seeking directions to amend the original application filed to add the application fee to his claimed costs.

3. By directions dated 2 July 2019, the Appeal Tribunal dismissed that application and ordered that each party bear its own costs of and incidental to the appeal. Mr Kelson then requested reasons for that decision on 8 July 2019. Those reasons are as follows.

   The relevant law

4. The default position on costs in proceedings before this Tribunal is set out at s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’), which provides that ‘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’. The Right to Information Act 2009 (‘RTI Act’) is an ‘enabling act’ for the purposes of the QCAT Act.[2] The RTI Act makes no provision as to costs in appeals on questions of law under s 119 and indeed s 122 states that ‘anything done under this Act involving QCAT must be done in accordance with QCAT rules and procedures’.

   [2]See the definition of ‘enabling Act’ in s 6 of the QCAT Act.

5. Section 102 of the QCAT Act gives the Tribunal discretion to require a party to a proceeding to pay all or part of the costs of another party to the proceeding if the Tribunal considers that the interests of justice require it. In deciding whether the interests of justice so require, the Tribunal may have regard to matters including:

   (a)whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding;

   (b)the relative strengths of the claims made by each of the parties to the proceeding;

   (c)the financial circumstances of the parties to the proceeding.

   Mr Kelson’s application

6. Mr Kelson has not filed submissions on costs as such. Instead, as noted above, he has filed an application for miscellaneous matters seeking a direction that his original application be amended such as to include the application fee in the costs he has claimed. It is unclear which costs he asserts to have already claimed. In the original application, he sought only a refund of application fees.

7. To the extent this application can be considered submissions on costs, Mr Kelson refers to the fact the Appeal Tribunal allowed the appeal and his low income as the reasons for the directions he seeks.

8. Having regard to the factors set out above, I was not satisfied that the interests of justice required a departure from the standard position that each party bears its own costs. The appeal was allowed only in respect of one ground and was otherwise dismissed. While Mr Kelson’s financial circumstances may have entitled him to apply for a fee reduction they are not such as to require a departure from the standard position. This is particularly so in circumstances where neither of the respondents have acted in a way that unnecessarily disadvantaged Mr Kelson.

9. For those reasons, I did not consider that the interests of justice required me to make an order of costs against either of the other parties.

10. Accordingly, the following orders were made:

    1. Bruce Alexander Kelson’s application for miscellaneous matters filed 21 June 2019 is refused.

    2. Each party is to bear its own costs of and incidental to the appeal.