Racing Queensland Ltd v Cassidy (No 2)
[2012] QCAT 220
•25 May 2012
| CITATION: | Racing Queensland Ltd v Cassidy (No 2) [2012] QCAT 220 |
| PARTIES: | Racing Queensland Ltd (Applicant) |
| v | |
| Larry Victor Cassidy (Respondent) |
| APPLICATION NUMBER: | OCR222-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Kate Buxton, Member |
| DELIVERED ON: | 25 May 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for costs is dismissed. |
| CATCHWORDS: | Costs – whether interests of justice require costs order – consideration of factors Queensland Civil and Administrative Tribunal Act 2009, s 100 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Racing Queensland Ltd was represented by Mr Byrne QC and Mr James, instructed by Mr Orchard from Racing Queensland |
| RESPONDENT: | Mr Larry Victor Cassidy was represented by Mr Murdoch SC, instructed by Emanate Legal |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Racing Queensland sought, in QCAT, a review of the decision of the First Level Appeals Committee, made on 6 October 2011, overturning its original decision to charge Mr Cassidy with a breach of Australian Racing Rule 135(b) in that he had failed to take all reasonable and permissable measures throughout the race to ensure that his horse was given the full opportunity to win or obtain the best possible place in the field. On 29 November 2011 QCAT confirmed the decision of the First Level Appeals Committee. Mr Cassidy now seeks to recover his costs of and incidental to the application from Racing Queensland.
Section 100 of the QCAT Act provides the starting point for any application for costs in a QCAT proceeding. It is headed “each party usually bears own costs” and mandates that position, other than as provided under the QCAT Act or an enabling Act. Each party must bear their own costs for the proceeding.
Section 102 of the QCAT Act creates an exception to that position if, in the interests of justice, QCAT considers that another order should be made. Section 102 goes on to provide a non exhaustive list of matters to which QCAT may have regard when considering an application for costs. These include whether a party acts in a way which unnecessarily disadvantages the other party, the nature and complexity of the proceedings and the relative strengths of the claims made. In particular, in review applications, consideration may be had as to whether or not the applicant was afforded natural justice and whether there was a genuine attempt to assist the decision maker to come to its decision. The financial circumstances of the parties to the proceeding are also relevant.
Notwithstanding the exceptions provided for in section 102 of the QCAT Act this Tribunal must have regard to the fact that an award of costs is the exception rather than the rule. In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments [No.2][1] the President stated, in relation to the relevant costs provisions:
“Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstance is 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 indicator against costs orders in section 100.”
[1] [2010] QCAT 412.
Mr Cassidy has urged this Tribunal to consider the matters referred to in section 102(3) of the QCAT Act as pointing compellingly to the need to award costs in the interests of justice. In the case of each of the relevant factors, Racing Queensland has urged against the exercise of that discretion.
When a party is acting in a way that unnecessarily disadvantages another party[2]
[2] QCAT Act, s 102(3)(a).
This factor was not expressly relied upon by Mr Cassidy in his application for costs and supporting submissions.
Nature and complexity of the dispute[3]
[3] QCAT Act, s 102(3)(b).
Mr Cassidy submitted that complex evidential issues required him to engage lawyers to assist him for the hearing and accordingly he was justified in engaging that legal assistance. The question for this Tribunal to determine is not whether Mr Cassidy was justified in securing legal advice or a presentation but whether, in the interests of justice, the cost of doing so should be passed to Racing Queensland. The oral evidence presented by Mr Cassidy, together with that in his written statement, was similar to that which he provided at the initial stewards inquiry without the benefit of legal representation. There is nothing in these facts, or in the legal issues arising from the application of those facts to the law, which make this review application of a particularly complex nature.
Relative strengths of the claims[4]
[4] QCAT Act, s 102(3)(c).
Mr Cassidy relies upon the fact that he succeeded at the First Level Appeal Committee and also succeeded before this Tribunal as an indication that Racing Queensland’s case was necessarily weak and ought not to have been pursued. If the success of a party was the only factor relevant in determining the strength of the other side’s case every applicant for costs would be entitled to them and section 100 of the QCAT Act would have no work to do. Whilst Racing Queensland did not ultimately make out to the requisite standard a breach of AR135(b) in this instance, their case was not so palpably weak, unreasonable or without support in the evidence that it ought not to have been pursued.
Was Mr Cassidy afforded natural justice?[5]
[5] QCAT Act, s 102(3)(d)(i).
There is no material suggesting that Mr Cassidy was treated by Racing Queensland in a way other than provided for natural justice.
Did Mr Cassidy genuinely attempt to enable and help the decision maker?[6]
[6] QCAT Act, s 102(3)(d)(ii).
The material is supportive of the conclusion that Mr Cassidy was cooperative with Racing Queensland at the stewards inquiry and he did not depart from this version at the subsequent hearings, including the review hearing before QCAT.
Financial circumstances of the parties[7]
[7] QCAT Act, s 102(3)(e).
Mr Cassidy has provided to the Tribunal information about his assets and liabilities. Whilst he has substantial property assets the Tribunal accepts that the information indicates that he is also heavily indebted to the bank. His dependants are his wife and two children. He also took a break from earning income following an injury on 28 November 2011 and did not resume until 28 January 2012.
Mr Cassidy has not demonstrated that these proceedings have impacted so significantly upon his financial circumstances that he is presently unable to meet his obligations and liabilities.
Any other factors the Tribunal considers relevant
Mr Cassidy has submitted that his success in the action should also be taken into account as a relevant discretionary consideration. In this instance, we would refer to our observations in relation to the relative strengths of the parties’ cases. There is nothing in the particular circumstances of the success of this case that would lead to a departure from the strong contra indication to the award of costs provided in section 100 of the QCAT Act.
Conclusion
Having regard to the factors identified in section 102 and any other considerations identified by the parties as relevant, the interests of justice do not point compellingly to a departure from the position set out in section 100 of the QCAT Act. Each party to this proceeding will bear its own costs.
Mr Cassidy’s application for costs is dismissed.
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