Wolfgram v Racing Queensland
[2012] QCAT 44
•7 February 2012
| CITATION: | Wolfgram v Racing Queensland [2012] QCAT 44 |
| PARTIES: | Mrs Tracey Anne Wolfgram |
| v | |
| Racing Queensland |
| APPLICATION NUMBER: | OCR020-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra G Deane, Member |
| DELIVERED ON: | 7 February 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] The application for costs is allowed. [2] Racing Queensland is to pay Mrs Wolfgram’s costs of and incidental to the proceeding, including reserved costs (if any) on the standard basis of assessment in accordance with the District Court Scale of Costs less Racing Queensland’s costs on the standard basis of assessment in accordance with the District Court Scale of Costs thrown away as a result of the late disclosure of Dr Wright’s report on 15 April 2011. [3] If the amount of Mrs Wolfgram’s costs less Racing Queensland’s costs are not agreed between Mrs Wolfgram and Racing Queensland within 14 days, the costs are to be assessed by Hickey & Garrett, Legal Costs Consultants, Level 21, 141 Queen Street, Brisbane. [4] Racing Queensland is to pay Mrs Wolfgram’s costs less Racing Queensland’s costs (as agreed or assessed) within 14 days of such agreement or assessment. |
| CATCHWORDS: | COSTS – application allowed Queensland Civil and Administrative Tribunal Act 2009, ss 48(1)(a)-(g ), 100, 102, 107 Tamawood Limited & Anor v Paans [2005] QCA 111 TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267 Malay Industries Pty Ltd v Queensland Building Services Authority [2010] QCAT 310 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This is an application for costs by Mrs Wolfgram consequent upon her successful application to review a decision of Racing Queensland.
Mrs Wolfgram seeks an order that Racing Queensland pay all Mrs Wolfgram’s costs on a standard basis on the Supreme Court scale as agreed between the parties or failing agreement to be assessed in accordance with UCPR. Racing Queensland opposes the application for costs and submits it ought to be dismissed.
The QCAT Act provides ‘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 proceedings.’[1]
[1] Queensland Civil and Administrative Tribunal Act 2009, s 100.
The Racing Act 2002 is the relevant enabling Act. Chapter 5[2] sets out the powers of QCAT to review certain decisions. There is no express provision in relation to the awarding of costs. Therefore the relevant provisions governing this application are those contained in the QCAT Act.
[2] Sections 150- 154 Racing Act 2002.
Section 102(1) states ‘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.’
Costs in this context include costs of legal representation as well as outlays. Mrs Wolfgram was represented by solicitors who instructed senior counsel and engaged Dr Craig Wright to give expert evidence.
The applicability of the decision in Tamawood Limited & Anor v Paans[3] to the cost provisions in the QCAT Act was considered by the President in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2).[4]
[3] Tamawood Limited & Anor v Paans [2005] QCA 111.
[4]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412.
The President’s analysis demonstrates that the sections in the Commercial and Consumer Tribunal Act 2003 (CCT Act) which were considered in Tamawood and those in the QCAT Act are relevantly different. He said:
“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.’’
It is necessary to consider the matters referred to in section 102(3) of the QCAT Act, to the extent they are relevant to a particular case, to determine if the interests of justice point so compellingly to a costs award to overcome the starting position that each party bear their own costs.
Whether a party is acting in a way that unnecessarily disadvantages another party[5]
[5] Queensland Civil and Administrative Tribunal Act 2009, ss 48(1)(a)-(g), 102(3)(a).
[10] This factor was not expressly relied upon by Mrs Wolfgram in her submissions.
The nature and complexity of the dispute[6]
[6] Queensland Civil and Administrative Tribunal Act 2009, s 102(3)(b).
[11] The review application involved allegations of fraud and dishonesty and evidence of quite complex IT matters.
[12] This is a factor in favour of an award of costs.
Relative Strengths of the claims[7]
[7] Queensland Civil and Administrative Tribunal Act 2009, s 102(3)(c).
[13] Racing Queensland’s decision that Mrs Wolfgram had breached Australian Rule of Racing 175A by engaging in dishonest and fraudulent conduct was:
a)largely founded on an inference from the evidence given by Mr Foreman in circumstances where there was evidence before the Stewards’ Inquiry that the RISA system was flawed in certain other respects.
b)not founded on any direct evidence or admissions.
[14] The applicable standard of proof in such matters is the civil standard. It is not applied as a mathematical or scientific exercise, but as a reasonable search for the truth in the circumstances of each particular case[8]. It is well established that when serious allegations such as fraud are involved it is necessary for a decision-making body, such as Racing Queensland or this Tribunal standing in its place, to be comfortably satisfied that the evidence supports a finding of fraud.[9]
[8] TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267.
[9] Briginshaw v Briginshaw (1938) 60 CLR 336.
[15] As is plain from the comments of the Tribunal at [9] of its Reasons to allow the review, the Tribunal struggled to understand why Racing Queensland persisted with the investigation and prosecution given the circumstances and the evidence before it.
[16] Mrs Wolfgram had strong grounds for seeking a review.
[17] The additional evidence placed before the Tribunal served to strengthen Mrs Wolfgram’s claims.
[18] This is a factor in favour of an award of costs.
Whether Mrs Wolfgram was afforded natural justice
[19] Mrs Wolfgram submits that taking into account the findings of the Tribunal at [9] of its Reasons the decision made by the Stewards was against the weight of the evidence.
Whether Mrs Wolfgram genuinely attempted to enable and help the Decision-maker to make the decision on the merits
[20] There are no matters before this Tribunal to suggest that Mrs Wolfgram did not make genuine attempts to assist Racing Queensland in the original investigation and Stewards’ Inquiry.
The financial circumstances of the parties[10]
[10] Queensland Civil and Administrative Tribunal Act 2009, s 102(3)(e).
[21] Mrs Wolfgram gave some, though not extensive, evidence of her financial circumstances.[11] That evidence was that she had:
a)two mortgages, a business overdraft and car payments to make;
b)two dependant children (one of which was living at home);
c)three full time staff, two part time staff and one casual staff member.
[11] T294-295 of Stewards’ Inquiry.
[22] The evidence was also that her husband, a jockey, helps with the mortgages but due to his weight is limited to mainly riding on Saturdays.
[23] There is no express evidence as to Racing Queensland’s financial circumstances, although it is the control body established under the Racing Act 2002 to control racing in Queensland. Its financial resources are likely to be more extensive than those of Mrs Wolfgram.
[24] Mrs Wolfgram has been put to quite considerable expense in bringing the successful review application.
Anything else that the Tribunal considers relevant[12]
[12] Queensland Civil and Administrative Tribunal Act 2009, s 102(3)(f).
[25] Mrs Wolfgram was completely successful in her review application. This is a factor in favour of an award of costs but not in itself sufficient.
[26] Racing Queensland is a body tasked by the Racing Act 2002 to regulate the racing industry. One of the main purposes of the Racing Act 2002 is to ensure the integrity of all persons involved with racing.[13] The awarding of costs against such a body may act as a deterrent to it fulfilling its duties. Such an outcome is not desirable and is a factor against awarding costs.
[13] Section 4 Racing Act 2002.
[27] On 15 April 2011, the first day of the review hearing, Mrs Wolfgram produced an expert report and as a consequence the hearing was adjourned to 15 July 2011. Racing Queensland submits that any costs order made ought to take into account the costs thrown away as a result of the late disclosure of Dr Wright’s report. I accept that submission.
Conclusion
[28] In my view having regard to the above factors most of which are in favour of an award of costs, the interests of justice do point compellingly to a costs award such as to overcome the starting position that each party bear their own costs.
Fixing or assessing costs
[29] If the Tribunal makes a costs order it must fix the costs if possible.[14] If it is not possible the Tribunal may make an order requiring costs be assessed by reference to a scale under the rules applying to a court.[15]
[14] Section 107(1) QCAT Act.
[15] Section 107(2) and (3) QCAT Act.
[30] Mrs Wolfgram has not provided to the Tribunal any evidence of her costs for example in the form of a short form assessment prepared by a costs assessor and therefore it is not possible for the Tribunal to fix the costs.
[31] Mrs Wolfgram submits that the Supreme Court scale should be used. This Tribunal has previously accepted that an itemised scale such as the District or Supreme Court scale may be preferable to a lump sum scale such as the Magistrates Court. This Tribunal and the Commercial and Consumer Tribunal often considered the District Court Scale as appropriate.[16]
[16]Malay Industries Pty Ltd v Queensland Building Services Authority [2010] QCAT 310; Wulf v Cooper [2008] CCT BD247-06.
[32] I agree that the District Court Scale is appropriate.
Orders
The application for costs is allowed.
Racing Queensland is to pay Mrs Wolfgram’s costs of and incidental to the proceeding, including reserved costs (if any) on the standard basis of assessment in accordance with the District Court Scale of Costs less Racing Queensland’s costs on the standard basis of assessment in accordance with the District Court Scale of Costs thrown away as a result of the late disclosure of Dr Wright’s report on 15 April 2011.
If the amount of Mrs Wolfgram’s costs less Racing Queensland’s costs are not agreed between Mrs Wolfgram and Racing Queensland within 14 days, the costs are to be assessed by Hickey & Garrett, Legal Costs Consultants, Level 21, 141 Queen Street, Brisbane.
Racing Queensland is to pay Mrs Wolfgram’s costs less Racing Queensland’s costs (as agreed or assessed) within 14 days of such agreement or assessment.
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