Queensland Civil and Administrative Tribunal v Payne

[2017] QCA 16

[2017] QCA 16

COURT OF APPEAL

PHILIP McMURDO JA

Appeal No 11065 of 2016
QCATA No 42 of 2016

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL  Respondent/Applicant

v

TRACEY PAYNE  Appellant/Respondent

BRISBANE

WEDNESDAY, 22 FEBRUARY 2017

JUDGMENT

PHILIP McMURDO JA:  On the 25th of October last year, two applications were filed by Mrs Tracey Payne in the Court of Appeal to the end of challenging a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal.  That decision arose from a case brought in QCAT by Mrs Payne against the publisher APN News & Media (Australia Regional Media).  The claim there made by Mrs Payne was for relief in consequence of alleged conduct in breach of the anti-discrimination laws.  Mrs Payne’s claim failed in QCAT and in the Appeal Tribunal of QCAT, and it is that decision which she seeks to challenge in this Court.  However, the proceeding is wrongly constituted.  She has not brought it in this Court against APN News & Media.  Rather, the named respondent is QCAT itself.  An application has been made by the Crown solicitor to strike out those applications of 25 October.

The submission for Mrs Payne, made by her husband but obviously with her concurrence, she being present by phone for this hearing, is that she did not receive procedural fairness, either at first instance or on appeal in QCAT.  That question does not arise in this morning’s application.  The decision which must be made to strike out these proceedings is in no way affected by whatever might be the prospects or otherwise of her proposed challenge to the Appeal Tribunal’s decision.

Clearly, the proceeding is wrongly constituted and the order will be that the originating application and the further application filed on 25 October 2016 in the Court of Appeal in proceeding CA 11065 of 2016 be struck out.

The remaining question is one of costs.  Clearly, the applicant, Mrs Payne, should pay the costs.  There is then a question of whether they ought to be on the indemnity basis.  The proceeding in this Court has been brought upon a serious misunderstanding, although it appears to me to be a genuine one.  Nevertheless, there was an opportunity given to Mrs Payne to withdraw the proceeding last November and costs have been quite unnecessarily incurred since.  The order will be that the applicant, Mrs Payne, pay the respondent’s costs of and incidental to the application on the indemnity basis.