Crime and Corruption Commission v NDZ [2024] QCAT 21

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crime and Corruption Commission v NDZ [2024] QCAT 21 PARTIES: CRIME AND CORRUPTION COMMISSION (applicant) v NDZ (respondent) APPLICATION NO/S: OCR071-22 MATTER TYPE: Occupational regulation matters DELIVERED ON: 16 January 2024 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Aughterson ORDERS: The application for costs is dismissed. Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of: (a) the contents of a document or thing filed in or produced to the Tribunal; (b) evidence given before the Tribunal; and (c) any order made or reasons given by the Tribunal, is prohibited to the extent that it may identify or lead to the identification of the respondent, or any third party to the proceedings, save as is necessary for the parties to engage in and progress these proceedings. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – costs – statutory basis – where disciplinary referral filed by Crime and Corruption Commission included allegations of corrupt conduct – where disciplinary referral discontinued by applicant – where costs application by respondent – approach to costs orders in the Tribunal – whether order for costs should be made Commercial and Consumer Tribunal Act 2003 (Qld), s 70 -- 1 of 11 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 66, s 100, s 102 South Australian Civil and Administrative Tribunal Act 2013 (SA), s 8 Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs) [2022] QCAT 225 Cantamessa v Queensland Building and Construction Commission (No 2) [2021] QCAT 213 Cowen v Queensland Building and Construction Commission [2021] QCATA 103 Fairfield Services Pty Ltd (in liq) v Leggett [2020] 5 Qd R 50 Fuge v Queensland Building and Construction Commission [2014] QCAT 383 Lee v Medical Board of Australia (No 2) [2016] QCAT 321 Lourey v Legal Profession Complaints Committee [2012] WASCA 112 Marzini v Health Ombudsman (No 4) [2020] QCAT 365 Medical Board of Western Australia and Roberman [2005] WASAT 81 (supplementary decision) Medical Board of Australia v Wong [2017] QCA 42 Motor Vehicle Industry Board v Dawson [2006] WASAT 8 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 Porteous v Pharmacy Board of Australia (No 2) [2021] QCAT 390 Pound v Queensland Building and Construction Commission [2023] QCAT 298 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Richards & Anor v Queensland Building and Construction Commission & Anor (No 2) [2019] QCAT 372 Stuart v Queensland Building and Construction Commission [2016] QCATA 135 Tamawood Ltd v Paans [2005] 2 Qd R 101 Young v Legal Profession Complaints Committee [2022] WASCA 52 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] The respondent, an officer of the Queensland Police Service (‘the QPS’), has made an application for costs following the filing of a notice of discontinuance of a disciplinary referral by the applicant. Consistent with the right under s 43(2)(b)(ii) of the -- 2 of 11 -- 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the respondent was legally represented in the proceedings. Background [2] The application or referral – disciplinary proceeding was filed by the applicant on 5 April 2022. The referral involved eight charges of corrupt conduct. The alleged conduct of the respondent related to her role in relation to police recruiting and, in particular, in implementing the QPS recruitment strategy to achieve a target in relation to the number of females per intake. The allegations included that the respondent approved offers to female applicants who had not yet passed relevant tests; implemented different standards for cognitive tests for male and female applicants; authorised dishonest and misleading correspondence and feedback to applicants; and provided dishonest and/or misleading information in relation to recruitment to QPS senior executive members, the Board of Management, other members of the QPS and external agencies, as well as for ministerial briefings and correspondence. [3] There were delays in progressing the matter, including in relation to the filing of an agreed statement of facts, and on 27 April 2023 it was listed for a three-week Tribunal Hearing commencing on 18 March 2024. The notice of discontinuance of the disciplinary referral was filed by the applicant on 26 October 2023. Following the application for costs made by the respondent, directions were made for the parties to file written submissions. [4] There have been a number of decisions of the Tribunal in relation to the proper basis for the award of costs under the QCAT Act, including in relation to disciplinary matters. The QCAT Act [5] Section 100 of the QCAT Act is headed ‘Each party usually bears own costs’ and 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 proceeding. [6] Section 102 is headed ‘Costs against party in interests of justice’ and provides: (1) 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. (2) However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section. (3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following— (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; -- 3 of 11 -- 4 (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. Costs decisions [7] There have been ongoing divergent views expressed in the decisions of the Tribunal as to the effect of those provisions. Those views, as well as the approaches adopted in other Australian jurisdictions, were canvassed in Pound v Queensland Building and Construction Commission.1 On one view expressed in the Queensland Tribunal decisions, each party should bear their own costs unless the interests of justice ‘point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100’ (of the QCAT Act): see Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2).2 On another view, the relevant test is simply whether the interests of justice require a costs order, though allowing that the word ‘require’ in s 102(1) of the QCAT Act shows that an order for costs should not be too readily made: see Marzini v Health Ombudsman (No 4)3 and Cowen v Queensland Building and Construction Commission.4 On the latter view, it is not necessary to overcome any imputed (by s 100 of the QCAT Act) ‘strong contra- indication’ against a costs order. [8] In their submissions, the parties make no direct reference to these opposing views. The focus of their submissions is on the interests of justice considerations outlined in s 102(3) of the QCAT Act. [9] In Pound, I expressed reservations in relation to both of those views. A difficulty with the first approach is that the prescription of a strong contra-indication against costs orders in all cases does not provide a clear reference point for the interplay between s 100 and s 102 of the QCAT Act and does not take account of the diverse jurisdictions of the Tribunal, which include civil disputes, administrative review and disciplinary proceedings. In Pound it is stated, at [34]-[35] (footnote omitted): One difficulty with a generally applicable test expressed in terms of whether the interest of justice are so compelling or clear that they overcome the ‘strong contra-indication’ against a costs order, is that, taken in isolation, it provides no discernible foundation to enable its impact to be measured relative to the interests of justice considerations in s 102(3) of the QCAT Act. That difficulty is magnified by the fact of QCAT’s diverse jurisdiction and the potentially differing considerations that might arise in assessing the interplay between s 100 and s 102(3) of the QCAT Act in any given case. As noted in South Australian Housing Trust v Brady & Milera, at [26], with reference to the diverse jurisdiction of that Tribunal: ‘In some of its areas of work, the nature of 1 [2023] QCAT 298, [8]-[32]. 2 [2010] QCAT 412, [4]. See also cases cited in Pound, [10]. 3 [2020] QCAT 365, [17]. 4 [2021] QCATA 103, [25]-[27]. See also cases cited in Pound, [13]. -- 4 of 11 -- 5 the proceedings and the circumstances that bring the parties to the Tribunal may lend themselves more than others to a ready finding that it is appropriate to make an award of costs’. On that basis, it is evident that different factors come into play with each jurisdiction, such that might influence any starting point as to costs. [10] On the other hand, a difficulty with the second noted approach is that it tends to discount s 100 of the QCAT Act or does not ascribe it any clear purpose. As stated in Pound at [33]: Under the QCAT Act it is evident that the question is not simply whether the interests of justice warrant an award of costs. If s 102 stood alone that would be the case. However, some effect should be given to s 100, otherwise it would be superfluous. In the case law in this State, including in the decisions in Marzini and Cowen,5 it has been generally accepted that s 100 is the starting point, or, at least, impacts the interests of justice considerations under s 102. However, the issue has been one of the nature or content of that impact. [11] On that basis, the question arises as to what is the intended purpose of s 100 of the QCAT Act. In Pound, in adopting the approaches taken in other jurisdictions, particularly Victoria, it is stated: [36] The approach taken in the Victorian cases in particular, is that the ‘general rule’ that each party bears their own costs reflects the objects of the Act and is designed to promote access to justice generally and minimise the overall level of costs in tribunal proceedings as far as is practicable.6 [37] That approach also seems appropriate to the Queensland legislation, where, by s 3(b), the objects include ‘to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick’. [38] The link between the s 3 objects and s 100 of the QCAT Act is evident from the Explanatory Note to the QCAT Bill, which states: ‘The Bill will achieve its objective of dealing with matters in a way that is accessible, fair, just, economical, informal and quick’, including by ‘providing that parties bear their own costs in proceedings unless the tribunal considers the interests of justice require it to order otherwise’.7 … [41] The objects of the QCAT Act, including the issues of access to the Tribunal and the minimisation of costs, provide an appropriate reference point for s 100 of the QCAT Act and, in that context, may be placed in the balance along with the s 102(3) interests of justice considerations. The interplay between s 100 and s 102(3) may well vary, depending on the impact a costs order in the case at hand might have on access to justice and the other objectives in s 3 of the QCAT Act. 5 See Marzini v Health Ombudsman (No 4) [2020] QCAT 365, [17]; Cowen v Queensland Building and Construction Commission [2021] QCATA 103, [27]. 6 As to the objects of those Acts, see South Australian Civil and Administrative Tribunal Act 2013 (SA), s 8 and, in relation to Victoria, see (as per fn. 17 of Pound) Stonnington CC v Blue Emporium Pty Ltd [2004] VCAT 1441, [13]. It is noted that there is no provision in the Victorian Civil and Administrative Tribunal Act 1998 (Vic) equivalent to s 3 of the QCAT Act. 7 It is also noted that s 4(c) of the QCAT Act provides that to achieve the objects of the Act, the tribunal must ‘ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice’. -- 5 of 11 -- 6 [42] For example, the prospect of an adverse costs order is likely to weigh heavily on any decision to seek review of certain administrative decisions, which will potentially have a significant impact on access to justice. On the other hand, in relation to body corporate disputes involving significant monetary or other considerations, the interests of justice in awarding costs, as alluded to by Keane JA in Tamawood,8 might weigh heavily in favour of a costs order. In those circumstances, the disincentive of a potential costs order in bringing a matter before the Tribunal is less likely to loom so large and, accordingly, considerations of access to justice might weigh relatively lightly in the balance against a costs order. [43] On that basis, the underlying concern of s 100, in particular of not impeding access to justice and maintaining a low cost jurisdiction, may simply be placed in the balance along with the s 102(3) considerations, with the weight accorded to it being largely dependent on the nature and scope of the proceedings. Disciplinary proceedings [12] The present matter involves disciplinary proceedings. The case law in relation to the award of costs in disciplinary proceedings was also considered in Pound.9 As there noted, relevant to the issue of access to justice, it has been said in Western Australian decisions that a regulatory body might feel inhibited in commencing disciplinary proceedings if costs were awarded to a successful respondent. In Young v Legal Profession Complaints Committee,10 the Western Australia Court of Appeal cited with approval the following observations made by the State Administrative Tribunal:11 … the Tribunal considers that, ordinarily, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against a vocational regulatory body simply because the application was not successful. [13] A similar approach has been taken in Queensland decisions. In Pound,12 reference is made to the decisions in Fuge v Queensland Building and Construction Commission13 and Porteous v Pharmacy Board of Australia (No 2).14 In Fuge it was stated: I reiterate that under the QBCC Act, the Commission has a dual function in administrating the Act. That is, to protect the public interest and also the interests of building contractors. In doing so it must not be reticent in discharging its obligations for fear of adverse costs orders against it if it is unsuccessful in 8 It is noted that the decision in Tamawood Ltd & Anor v Paans [2005] 2 Qd R 101 concerned a dispute in relation to the construction of a house and where damages were awarded against Tamawood Limited. 9 [2023] QCAT 298, [45]-[50]. 10 [2022] WASCA 52, [260]. 11 Motor Vehicle Industry Board v Dawson [2006] WASAT 8, [47]. See also Paridis v Settlement Agents Supervisory Board [2007] WASCA 97, [36]; Lourey v Legal Profession Complaints Committee [2012] WASCA 112, [81]-[82]. 12 [2023] QCAT 298, [53]-[54]. 13 [2014] QCAT 383, [28]. See also Stuart v Queensland Building and Construction Commission [2016] QCATA 135, [58]; Richards & Anor v Queensland Building and Construction Commission & Anor (No 2) [2019] QCAT 372, [48]; Cantamessa v Queensland Building and Construction Commission (No 2) [2021] QCAT 213, [20]-[21]; Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs) [2022] QCAT 225, [117]. 14 [2021] QCAT 390, [19], [21]. -- 6 of 11 -- 7 responding to an application for review of its decisions unless it can be demonstrated, there is some specific conduct on the part of the Commission, that would ‘so compellingly’ overcome the strong contra-indication against costs orders in s 100 of the QCAT Act. I am not satisfied that this is the case here. [14] In Porteous, where, upon review, the decision of the respondent to suspend the registration of the applicant was set aside, Judicial Member J Robertson, in ordering that each party bear its own costs, referred to the ‘default position’ in s 100 of the QCAT Act and stated, at [21], that in ‘the absence of a finding that the Board acted unreasonably, or in bad faith, the default position should not be readily departed from’.15 Reference was then made to a passage from the decision of the Court of Appeal in Medical Board of Australia v Wong:16 Absent a finding, which this Court was not asked to make, that the Board’s characterisation of Dr Wong’s conduct as professional misconduct was unreasonable, there can be no proper criticism of the Board for bringing and prosecuting this proceeding as it did. No finding was sought here that the Board acted in bad faith. It must be kept in mind that the Board has a statutory responsibility for the protection of the public in this context and the fact that the outcome was not that which was sought should not of itself burden the Board with an order for costs, especially in a proceeding in QCAT where the starting position is that prescribed by s 100. I would add that the Board’s concern for the protection of the public in the present case was clearly reasonable from Dr Wong’s very serious misconduct in 2012. The present case [15] The allegations underlying the disciplinary referral are summarised at [2], above. [16] In their submissions in relation to costs, the parties addressed each of the factors set out in s 102(3) of the QCAT Act: see [6], above. Each of those are now dealt with in turn. [17] In relation to s 102(3)(a), whether a party acts in a way that unnecessarily disadvantages another party, the respondent submits that she was continually disadvantaged over the 18 months it took for the discontinuance decision to be made. It is submitted: ‘It appears, given the manner in which the CCC communicated its decision to discontinue, that it simply realised at a certain point that the proceedings should never have been brought’. [18] Reference is made to a communication from the Director of Litigation of the applicant of 17 October 2023, wherein it is stated that he had taken over carriage of the matter and that: ‘I have appraised myself of the matters relevant to the trial. As a consequence, I have received instructions to offer to discontinue the matter …’. [19] The applicant submits that the conclusion of the respondent that there was a realisation that the proceedings should never have been brought is ‘entirely speculative’. Reference is made to the role of the applicant as an independent government agency, with the function of investigating and dealing with allegations of corrupt conduct. It is then submitted: 15 Compare Marzini v Health Ombudsman (No 4) [2020] QCAT 365, [27]-[29]. Though in that case, in effect, the findings were that the regulator had not acted reasonably: see at [90]. 16 [2017] QCA 42, [37] (McMurdo JA, with whom Morrison JA and Mullins J agreed). -- 7 of 11 -- 8 The decision to prosecute or bring proceedings against an individual is made on the basis of an assessment of the sufficiency of evidence and the public interest in pursuing a prosecution of proceedings. Any decision to discontinue must also be guided by these dual considerations. Those considerations will themselves require having regard to factors such as: a. delay and the consequential impact on the reliability of witnesses; b. intervening events and developments which inform the assessment of public interest considerations; and c. whether the cost incurred in running a lengthy hearing is an efficient use of public resources. [20] While the applicant does not indicate which particular factors came into play in the present case, it is submitted that there was an investigation in relation to more than one person and that the respondent was a person of interest in the investigation. [21] In the circumstances, from the single communication from the applicant noted above the Tribunal is not in a position to draw any inference one way or the other as to the reason for the discontinuance. There could have been any number of issues that lay behind the reappraisal and there is no other material, evidence or submission upon which the inference sought by the respondent might be based. [22] In relation to s 102(3)(b) of the QCAT Act, the nature and complexity of the dispute, the respondent refers to the decision in Tamawood Ltd v Paans,17 which concerned a dispute in relation to the construction of a house and where damages were awarded against Tamawood Limited. With reference to the, then, Commercial and Consumer Tribunal Act 2003 (Qld), Keane JA, with whom Williams JA and Philippides J agreed, stated, at [32]: If orders for costs were not to be made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the Tribunal. [23] In relation to that decision three observations are made. First, there is a difference in the relevant statutory provisions regarding costs. Section 70 of the legislation considered in Tamawood provided: ‘The main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise’. However, as noted by Alan Wilson J, the President of the Tribunal, in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2),18 s 100 of the QCAT Act ‘is, it might be said, in terms that more plainly indicate that the legislature had turned its face against awards of costs in this tribunal’. It was added, at [27]: Section 70 speaks of a ‘main purpose’, but s 100 mandates that parties shall bear their own costs. Section 70 contains, within itself, a reference to the condition or circumstance in which the main purpose may be subsumed to the interests of justice; s 100 has no such proviso, although it appears later, in s 102(1). [24] Second, Tamawood was a commercial case and not disciplinary proceedings. The quite different approach taken in relation to disciplinary proceedings has been noted 17 [2005] 2 Qd R 101. 18 [2010] QCAT 412, [24]. -- 8 of 11 -- 9 above. Third, in Tamawood the applicant was successful in the action against the respondent. In the present case the matter was discontinued and the relative merits of the case are unknown. [25] On the other hand, it is evident that the matter did involve some complexity, it having been set down for a three-week hearing. Accordingly, it is a relevant consideration in terms of s 102(3)(b) of the QCAT Act. [26] In relation to s 102(3)(c), the relative strengths of the claims made by each of the parties, this is an unknown factor, given the filing of the discontinuance. The applicant refers to Fairfield Services Pty Ltd (in liq) v Leggett,19 in support of the submission that where a party ‘effectively surrenders or capitulates’ that will usually provide a strong reason for costs, notwithstanding the absence of any hearing on the merits. However, that case involved a civil proceeding and an application of the Uniform Civil Procedure Rules, which deal with costs upon discontinuance and the general rule, at rule 681, that costs follow the event unless the Court orders otherwise. [27] Nevertheless, Bond J stated at [21]: … where the proceedings are discontinued prior to any hearing on the merits, the r 681 general rule cannot be applied in terms. As McHugh J observed in Lai Qin, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. The Court cannot try a hypothetical action between the parties to determine the question of costs… [28] The respondent also refers to Lee v Medical Board of Australia (No 2).20 However the circumstances of that case are quite different, in that it involved an application to review a decision of the Board and it was the Board rather than the applicant who was seeking costs. It was said that the Board had a strong case for an award of costs, in circumstances where it had defeated a stay application, prepared for hearing, and the notice of withdrawal was filed by Dr Lee shortly before the hearing date. It is evident that what was in issue was the conditions that should be imposed on Dr Lee’s practice. Ultimately, an endeavour to reach a compromise at a compulsory conference failed, following which the applicant instructed his solicitor to withdraw the proceedings. [29] As noted, it was not a case where costs were sought against the Board, which raises the considerations referred to in cases such as Porteous and Wong referred to above, but rather costs were sought by the Board. In that regard, as noted in Lee at [47]: It has also been recognised as relevant in professional discipline matters that professional Boards are entrusted with the maintenance of appropriate conduct by practitioners, may incur considerable expense in investigation and prosecution, and are funded by their practitioner members. It is undesirable that professionals of good standing bear the full burden of costs arising from the unprofessional conduct of others. It was recognised in former cases under s 195 of the National Law (before it was repealed) that in the usual course practitioners against whom a disciplinary charge was established would be ordered to pay the Board’s costs unless other factors or considerations emerged. 19 [2020] 5 Qd R 50. 20 [2016] QCAT 321, [50]-[53]. -- 9 of 11 -- 10 [30] See also Motor Vehicle Industry Board and Dawson,21 where the Western Australia State Administrative Tribunal stated: ‘Where proceedings are commenced by a vocational regulatory body (such as the Board) against a person affected by a vocational Act (such as Mr Dawson), the Tribunal will usually make an order for costs in favour of the vocational regulatory body where it is successful in obtaining an order in the proceedings’. Reference is then made to an observation made in an earlier decision of the Tribunal in Medical Board of Western Australia and Roberman:22 Where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case. [31] The factor at s 102(3)(d) relates to review proceedings and is not applicable to the present matter. [32] In relation to s 102(3)(e), the financial circumstances of the parties, the respondent submits that there is a material disparity in the financial position of the parties, the applicant being resourced by the State while the respondent is a private individual, a police officer. However, nothing is otherwise said about the financial circumstances of the respondent and it is acknowledged that, although she is ultimately responsible for her legal fees, she has union support to meet those fees. [33] In relation to s 102(3)(f), anything else the Tribunal considers relevant, the respondent submits that the respondent conducted herself as a cooperative litigant and refers to the adverse psychological or health impacts of such proceedings. In relation to the latter, the respondent provides some detail as to health and reputational impacts arising from the proceedings. However, it remains that such impacts are almost an inevitable consequence of any disciplinary proceedings and this is not a case where it has been submitted that the applicant acted in bad faith. Also, in the context of the discussion at [17]-[21] above, it is not evident that the respondent acted unreasonably in conducting the proceedings. [34] The question is whether, taking into account s 100 and s 102 of the QCAT Act and all of the factors and considerations outlined above, an order for costs should be made. [35] It is relevant that the QCAT Act recognises the potential need for legal representation in disciplinary proceedings: see s 43(2)(b)(ii) of that Act. Also relevant are the complexity of the case and the potential liability of the respondent for perhaps considerable legal fees. Though the latter is qualified by the fact that the financial 21 [2006] WASAT 8, [44] (Justice M L Barker (President), Mr M Allen (Senior Member) and Mr A Townsend (Sessional Member)). 22 [2005] WASAT 81 (supplementary decision), [30]. -- 10 of 11 -- 11 circumstances of the respondent have not been made clear and it seems that the fees will be met through union support. [36] On the other hand, it is not evident that the applicant acted in a way that unnecessarily disadvantaged the respondent in terms of s 102(3)(a) of the QCAT Act, while, with reference to s 102(3)(c), the relative strength of claims made cannot be readily discerned. Importantly, as noted in Pound at [76], ‘the case law recognises that the Tribunal should not readily make a costs order against a party in the position of the [regulator], given its statutory duty to conduct disciplinary proceedings in the public interest, lest it be dissuaded from that endeavour or unduly burdened by such an order’. Relevant to s 100 of the QCAT Act, that is consistent with the s 3 object of access to justice. [37] In the circumstances, the factors against the making of a costs order outweigh those in favour of an order. Accordingly, the application for costs is dismissed. [38] The non-publication order made by the Tribunal on 29 August 2022 is continued. -- 11 of 11 --