Paties v Tricare (Hostels) Pty Ltd - [2012] QCAT 696

CITATION:

Paties v Tricare (Hostels) Pty Ltd [2012] QCAT 696

PARTIES:	Karen Paties
v
Tricare (Hostels) Pty Ltd

APPLICATION NUMBER:

ADL046-11

MATTER TYPE:

Anti-discrimination matters

HEARING DATES:

27 August 2012

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

31 August 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

Karen Paties is ordered to pay the costs of Tricare (Hostels) Pty Ltd of this proceeding on a standard basis on the District Court Scale.

CATCHWORDS:

ANTI-DISCRIMINATION – COSTS – where complaint dismissed due to non compliance with orders made by the tribunal – whether interests of justice require a costs order

Queensland Civil and Administrative Tribunal Act 2009, sections 48, 100, 102

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412

Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Karen Paties on her own behalf
RESPONDENT:	Tricare (Hostels) Pty Ltd represented by Ashurst Australia

REASONS FOR DECISION

The tribunal had dismissed on 27 April 2012 the complaint made by Karen Paties that she had been unlawfully discriminated against by Tricare (Hostels) Pty Ltd. The dismissal was due to the failure of Ms Paties to comply with orders made by the tribunal.
Tricare seeks the costs incurred by that party in responding to the complaint. In QCAT proceedings, parties must bear their own costs: section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). The public policy intent of the QCAT Act that the tribunal was established as a no costs jurisdiction is plain from the wording used in section 100.[1]
[1] Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364.
Nevertheless, the tribunal can order that a party pay all or part of the costs of another party if the tribunal considers it is in the interests of justice to make such an order.[2] Section 102(3) of the QCAT Act sets out factors that the tribunal may take into account in determining whether the interests of justice require the making of a costs order. Those factors are however not grounds for awarding costs.[3]
[2] Section 102(1) of the QCAT Act.
[3] Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364.
The President of QCAT explained the no costs jurisdiction in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) in the following terms: “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.”[4]
[4] [2010] QCAT 412.
In seeking costs, Tricare relied on the argument that Ms Paties had acted in a way that unnecessarily disadvantaged Tricare by her failure to comply with the directions made by the tribunal on 24 October 2011 and 8 December 2011 without reasonable excuse.[5] The directions sought to have Ms Paties set out essential elements of her complaint and her evidence in support of her complaint. As a result of this failure by Ms Paties, Tricare submitted that it was unable to prepare a timely response to the complaint as it was unclear what case Tricare was being asked to meet.
[5] Section 102(3)(a) of the QCAT Act.
The tribunal had already found when dismissing the complaint under section 48 of the QCAT Act that Ms Paties, as a result of her failure to comply with the tribunal’s directions, had acted in a way that had unnecessarily disadvantaged Tricare. In those circumstances QCAT has the power to make an order under section 48 compensating Tricare for any reasonable costs incurred unnecessarily.[6]
[6] Section 48(2)(c) of the QCAT Act.
Tricare further submitted that the complaint could be considered vexatious, lacking in substance and/or an abuse of process in the absence of evidence from Ms Paties to support her complaint. Tricare submitted that Ms Paties had made no effort to abandon her complaint when she was unable to provide supporting evidence to QCAT. In such circumstances Tricare submitted that the interests of justice point compelling to a costs order being made against Ms Paties as she had ignored more than one set of directions of the tribunal and in the absence of supporting evidence, her complaint was vexatious and an abuse of process.
Tricare submitted that the complaint contained issues of complexity.[7] Despite that, Tricare argued that it had made limited use of legal representation and had initially endeavoured to act directly on its own behalf in order to save costs. However legal advice and then representation was resorted to at a stage when the management staff considered they could no longer reasonably attend to the complex legal issues that needed to be addressed.
[7] Section 102(3)(b) of the QCAT Act.
Tricare submitted that there was a strong defence to the complaint contained in the provisions of the Anti-Discrimination Act 1991. Tricare submitted that the relative position of the parties under that Act would lead to the result that Ms Paties could not have established any unlawful conduct on the part of Tricare. It was submitted that the complaint made by Ms Paties was so palpably weak at law that she should not have proceeded with her complaint after the initial stages at QCAT.
Ms Paties resisted the costs application. She did not file submissions responding to the costs applications as directed. Instead she made some oral submissions at the hearing of the costs application.
She submitted that she had not opened emails sent to her about this matter as she had been depressed. She had decided to drop her complaint and she had sent a letter to QCAT to that effect. Ms Paties had kept no copy of her letter and she had not sent a copy to Tricare. She could not produce a copy of the letter for the costs hearing as it had been prepared on an old computer. She conceded that she had not informed Tricare in any way of her decision to drop her complaint.
No letter was located at QCAT from Ms Paties in which she had indicated any intention of discontinuing her complaint. She had first mentioned the existence of such a letter at the hearing of the costs application on 27 August 2012. I did not accept the assertion of Ms Paties that she had sent such a letter to QCAT. It is incredible that she did not query why QCAT kept on sending her letters about her complaint and kept on making directions in the proceeding and that she did not query why a dismissal application was made and then granted if she had already told QCAT that her complaint had been discontinued by her.
Ms Paties submitted that her financial circumstances were not good but she did not provide any specific information as to her ability to pay any costs order if made by the tribunal.
I was persuaded that in this case the circumstances relevant to exercising discretion to award costs in the interests of justice point so compellingly to a costs award that they have overcome the strong contra-indication against costs orders being made. The complaint had been dismissed due to the failure of Ms Paties to comply with directions, she had caused unnecessary disadvantage to the respondent, she had failed to produce supporting evidence about her complaint, and her assertion that she had informed QCAT of her decision to drop her complaint was not accepted by me.
Her actions were in clear contravention of the obligation on all parties to act quickly in any dealing relevant to a proceeding and were tantamount to an abuse of process.
I was satisfied that this was a case when costs should be ordered to compensate the other party for the disadvantage caused to it by the actions of the complainant. Tricare had not prepared an estimate of its costs and asked that an order be made that would require its costs to be assessed under the rules of the tribunal. I ordered that Tricare’s costs of the proceeding be paid on the District Court scale.