Marshall-Holst v Office of the Information Commissioner and Queensland Health (Metro North Hospital and Health Service)
[2017] QCATA 70
•26 June 2017
| CITATION: | Marshall-Holst v Office of the Information Commissioner and Queensland Health (Metro | ||
| North Hospital and Health Service) [2017] QCATA 70 | |||
| PARTIES: | Christine Marshall-Holst (Applicant) | ||
| v | |||
| Office of the Information Commissioner (First Respondent) and Queensland Health (Metro North Hospital and Health Service) (Second Respondent) | |||
| APPLICATION NUMBER: | APL393-15 | ||
| MATTER TYPE: | Appeals | ||
| HEARING DATE: | On the papers | ||
| HEARD AT: | Brisbane | ||
| DECISION OF: | Justice DG Thomas, President | ||
| DELIVERED ON: | 26 June 2017 | ||
| DELIVERED AT: | Brisbane | ||
| ORDERS MADE: |
| ||
| as to costs. | |||
| CATCHWORDS: | PROCEDURE – COSTS – DISCRETION TO ORDER COSTS – whether matter sufficiently complex – whether the relative strengths of the | ||
| claims made by each of the parties reveals | |||
| costs should be ordered – whether one party | |||
| acted in a way that disadvantaged the other | |||
| Queensland Civil and Administrative Tribunal | |||
| Act 2009 (Qld) ss 32, 100, 102 | |||
| Ascot v Nursing & Midwifery Board of Australia | |||
| [2010] QCAT 364 Cairns Port Authority v Albietz [1995] 2 Qd R | |||
| Ralacom Pty Ltd v Body Corporate for | |||
| Paradise Island Apartments (No 2) [2010] QCAT 412 Tamawood Limited & Anor v Paans [2005] QCA 111 | |||
| Warren v Queensland Law Society | |||
| Incorporated (No 2) [2013] QCAT 234 | |||
| APPEARANCES: |
This matter was heard and determined on the papers pursuant to section 32 of
the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
[1] On 15 March 2017, the Appeal Tribunal ordered that the decision of the Information Commissioner, dated 27 August 2015, be set aside and returned for reconsideration taking the factors outlined in Schedule 4, Part
2, Item 12 of the Right to Information Act 2009 (Qld) (‘RTI Act’) into account
with the factors already considered by the Commissioner.[1]
[1] Marshall-Holst v Office of the Information Commissioner and Queensland Health
[2] The parties were further directed to provide submissions on costs and to inform the Tribunal whether an oral hearing was required. All of the parties have now provided those submissions and have consented to a determination on the papers.
Ms Marshall-Holst’s Submissions
[3] Ms Marshall-Holst submits that, as a starting position, the Tribunal may view a relevant consideration to be the fact that she was substantially successful in the appeal to the extent of the finding that the Information Commissioner erred in law.[2] A citation for the case of Queensland Building
Services Authority v Reid,[3] is footnoted to this part of Ms Marshall-Holst’s
submissions. However, the pinpoint of the citation provided and the text of the case itself reveal that the case may have been cited in error, as it is of no relevance to the point made by Ms Marshall-Holst.
[2] Written Submissions of the Applicant as to Costs, filed 18 April 2017 at [8].
[3] [2012] QCAT 199 at [109]-[120], appearing at footnote 4 of the Written Submissions of the Applicant as to Costs, filed 18 April 2017.
[4] Ms Marshall-Holst then refers to section 102(3) of the QCAT Act as a consideration relevant to the award of costs by the tribunal. Ms Marshall- Holst states the dispute was complex and entailed the consideration of large volumes of written, and sometimes redacted, material in the context of the provisions of the RTI Act. Ms Marshall-Host submits that this necessitated her legal representation, with Counsel appearing for the Applicant and First Respondent at the appeal hearing.[4]
[4] Written Submissions of the Applicant as to Costs, filed 18 April 2017 at [9]-[11].
[5] In support of her submission, Ms Marshall-Holst refers to Tamawood Limited & Anor v Paans,[5] where Keane JA stated:
In the absence of countervailing considerations, where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome.
[5] [2005] QCA 111 at [33].
[6] Ms Marshall-Holst also refers to Wilson J’s decision in Ralacom Pty Ltd v
Body Corporate for Paradise Island Apartments (No 2),[6] as applying the Tamawood reasoning in the context of section 102(3) QCAT Act.[6] [2010] QCAT 412 at [26].
[7] In her ultimate submission, Ms Marshall-Holst states that the Information
Commissioner pay Ms Marshall-Holst’s costs. It would not be in the
interests of justice to bar the recovery of the associated costs, given that they were necessary to achieve the substantial success Ms Marshall-Holst achieved in the appeal.[7]
[7] Written Submissions of the Applicant as to Costs, filed 18 April 2017 at [15]-[16].
The Information Commissioner’s Submissions
[8] The Commissioner submits that section 100 of the QCAT Act provides for the usual rule as to costs; that each party bears their own. The Commissioner submits further that nothing in the circumstances of this case warrants departure from the usual rule, nor does the case enliven section 102 QCAT Act.[8]
[8] Submissions of the Information Commissioner Re: Costs, filed 13 April 2017 at [1].
[9] The Commissioner submits that Ms Marshall-Holst was not “unnecessarily disadvantaged” in the proceedings, as the external review process afforded
Ms Marshall-Holst to make submissions supporting her case.[9] Further, the
Commissioner’s submissions in the appeal matter were confined to the
operation of the Commissioner’s own powers and procedures, as reflective
of the quasi-judicial role of the Commissioner on external review.[10]
[9] Submissions of the Information Commissioner Re: Costs, filed 13 April 2017 at [7].
[10] Cairns Port Authority v Albietz [1995] 2 Qd R 470 at 473.
Queensland Health’s Submissions
[10] Queensland Health submit that their argument on appeal was substantially
successful in defeating grounds 1 to 4 and ground 6 of Ms Marshall-Holst’s
application for leave to appeal. As a result, the number of grounds of appeal pressed have added to the time and costs expended by all parties. Queensland Health submit that this enlivens section 102(3)(b) QCAT Act as adding to the nature and complexity of the dispute, and is relevant to the relative strengths of the claims made by Ms Marshall-Holst, to be considered under section 102(3)(c).[11]
[11] Written Submissions of the Second Respondent as to Costs, filed 18 April 2017 at [2]- [5].
[11] Queensland Health refer to the decisions of Warren v Queensland Law Society Incorporated (No 2),[12] and Ascot v Nursing & Midwifery Board of Australia,[13] in further interpretation of when the interests of justice require the making of a costs order.
[12] [2013] QCAT 234 at [11].
[13] [2010] QCAT 364 at [8] and [9].
[12] Queensland Health further submit that the proceedings in this matter have
been protracted to a large extent by Ms Marshall-Holst’s conduct in
asserting five out of six grounds of appeal that subsequently failed. The grounds of appeal lacked merit, such that it cannot be said that the matter points so compellingly to a costs award that overcomes the strong contra-
indication against costs in section 100 QCAT Act. Queensland Health’s
ultimate submission is that no award of costs should be made against either Respondent.[14][14] Written Submissions of the Second Respondent as to Costs, filed 18 April 2017 at [13]- [16].
[13] In the alternative, Queensland Health raise the conduct of the preliminary external review proceedings as relevant to section 102(3)(f), as the
Information Commissioner was given the opportunity to ‘stand in the shoes’
of Queensland Health in making its decision, and that decision was the decision ultimately appealed against. On that basis, Queensland Health submit that any costs award, if the Tribunal were minded to make one, should be made against the Information Commissioner only.[15]
[15] Written Submissions of the Second Respondent as to Costs, filed 18 April 2017 at [16]- [20].
Disposition
[14] Section 100 QCAT Act provides that, other than as provided under the QCAT Act or an enabling Act, each party to a proceeding must bear the party's own costs for the proceeding. This is the starting point.
[15] Section 102(1) QCAT Act provides that 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.
[16] Section 102(3) QCAT Act sets out factors relevant to determining whether the interests of justice require the Tribunal to make a costs order. The Tribunal may have regard to:
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. [17] As Wilson J observed in Warren v Queensland Law Society Incorporated (No 2):[16]
[16] [2013] QCAT 234 at [11].
It has previously been said in this Tribunal that the provisions of the QCAT Act about costs, mentioned above, require that when considering an application for costs the Tribunal should ask itself whether the circumstances relevant to the discretion inherent in the
phrase in s 102(1) ‘the interests of justice’ point so compellingly to a
costs award that they overcome the strong contra-indication against
costs in s 100.
[18] That is undoubtedly the correct approach. The strong indication in section 100 QCAT Act, is that each party to a proceeding must bear the parties own costs of the proceeding.
[19] Costs do not follow the event, although the relative strengths of the claims made by the parties to the proceedings, is a factor to which the Tribunal may have regard.
[20] The applicant submits that the nature of the dispute in these proceedings
was particularly complex in view of the volumes of written “and redacted
material” which required consideration in light of the provisions of the RTI
Act.
[21] The nature and complexity of the dispute which is the subject of the proceedings do not suggest, one way or the other, whether costs should be ordered against any of the parties.
[22] In terms of the Office of the Information Commissioner, the appeal on ground 5 was upheld, but that was a ground which was not previously raised with the Information Commissioner. The Tribunal determines that it is not in the interests of justice that an order be made against the Office of the Information Commissioner in those circumstances.
[23] As to the relative strengths in claims generally, the appeals on 5 of the 6 grounds were not upheld although the matter was returned to the Information Commissioner as a result of the appeal on ground 5 being upheld. In those circumstances, the relative strengths of the claims made by each of the parties to the proceedings do not, in the view of the Tribunal, lead to the conclusion that the interests of justice require it to make an order for costs.
[24] In the circumstances of the case, no one party acted in a way which unnecessarily disadvantaged another party.
[25] Taking all the matters into account, the Tribunal believes that the interests of justice do not require it to make an order in relation to costs and so the provisions of section 100 will apply, with the result that each party bear their own costs of the proceedings.
(Metro North Hospital and Health Service) [2017] QCATA 28.
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