BB v State of Queensland & Ors (No 2) [2021] QCAT 148

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: BB v State of Queensland & Ors (No 2) [2021] QCAT 148 PARTIES: BB ON BEHALF OF RB (applicant) v STATE OF QUEENSLAND (respondent) GD (respondent) MD (respondent) APPLICATION NO/S: ADL017-19 MATTER TYPE: Anti-discrimination matters DELIVERED ON: 19 April 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes ORDER: Each party pays their own costs. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – GENERALLY - where strong contra-indicator against costs – where interests of justice do not require costs order – where complaint not without substance and at least arguable – where effect of a costs order would be to impose a considerable impost on pursuing redress for an arguable case of alleged breach of human rights – where costs provisions construed beneficially to give full effect to objects and purposes of the Anti-Discrimination Act 1991 (Qld) - where key to Respondents’ success was findings of fact from preferring their evidence – where not unreasonable to test this evidence at hearing Anti-Discrimination Act 1991 (Qld), s 6, s 191 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48, s 66, s 100, s 102, s 103, s 105 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86 Alexander v State of Queensland & Anor [2016] QCAT -- 1 of 4 -- 2 142 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 BB on Behalf of RB v State of Queensland & Ors [2020] QCAT 496 Carey v Cairns Regional Council & Ors (No. 2) [2011] QCAT 372 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 Harrison v Terra Search Ltd & Ors [2014] QCAT 128 McKinnon v State of Queensland and Anor (No 2) [2012] QCAT 566 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 Simonova v State of Queensland [2021] QCAT 45 Tracey v Olinderidge Pty Ltd & Anor [2015] QCAT 7 Virgtel Ltd & Anor v Zabusky & Ors [2008] QSC 213 Yeo v Brisbane Polo Club Inc. [2013] QCAT 261 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: S Hamlyn-Harris instructed by Crown Law REASONS FOR DECISION On 17 December 2020, the Tribunal dismissed BB’s application that a School’s treatment of his student son discriminated against him. Although the Respondents submitted that BB should pay their costs,1 the Tribunal has decided not to depart from the strong contra-indicator against awarding costs.2 The Tribunal accepts that BB is a ‘party’ for the purposes of awarding costs.3 However, the Tribunal does not consider that the interests of justice4 require a costs order. A person seeking relief for an alleged breach of human rights should be afforded a reasonable opportunity to have their case heard and determined according to law.5 BB’s complaint was not without substance6 and was at least arguable.7 1 Respondents’ Submissions on Costs dated 1 March 2021. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100; Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364, [9] (Kingham DCJ); Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412, [29] (Wilson J). 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102; Simonova v State of Queensland [2021] QCAT 45. It is therefore unnecessary to determine whether BB is a representative against whom costs should be awarded, as the criteria to award costs in those circumstances is more limited: Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 103; Tracey v Olinderidge Pty Ltd & Anor [2015] QCAT 7. 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102. 5 Harrison v Terra Search Ltd & Ors [2014] QCAT 128, [8]. 6 Harrison v Terra Search Ltd & Ors [2014] QCAT 128, [10]. -- 2 of 4 -- 3 The effect of a costs order against BB would be to impose a considerable impost on pursuing redress for an arguable case of alleged breach of human rights. While unmeritorious claims should be discouraged due to the costs on the parties and the community as a whole,8 the Tribunal has consistently expressed its reticence to too readily prevent an independent hearing about an alleged breach of human rights.9 That would be contrary to the overarching tenets of a jurisdiction that contemplates self-representation, embraces cost-effectiveness and eschews an unnecessarily technical approach: The Parliament of Queensland in the Anti-Discrimination Act 1991 expressly stated that everyone should have the right to equal protection and benefit of the law without discrimination, that the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society and that the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone.10 The Tribunal dismissed each of the allegations and made no findings that were critical or unfavourable to the Respondents’ conduct. The Tribunal accepts that the proceedings were complex, requiring a five-day hearing. The Tribunal also accepts that the Respondents were put to considerable expense in responding to the allegations. The Tribunal also notes that the Respondents offered to settle the proceedings on 27 April 2020 encompassing a letter of regret and refresher training.11 However, the Tribunal does not accept that these circumstances amount to ‘unnecessary disadvantage’ sufficient to outweigh the strong contra-indicator against costs in a human rights jurisdiction where parties are often not legally represented and the adequacy of the contentions are to be considered in a reasonable, realistic and pragmatic way.12 The costs provisions are therefore construed beneficially to give full effect to the objects and purposes of the Anti-Discrimination Act 1991 (Qld).13 BB’s case was arguable and did not lack merit. Key to the Respondents’ success was the Tribunal’s findings of fact from preferring the evidence of the Respondents over the student’s parents.14 However, this did not mean the parents’ evidence was not honest or genuine.15 Moreover, the Respondents’ evidence was untested. BB did not 7 Alexander v State of Queensland & Anor [2016] QCAT 142, [31]. 8 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217. 9 McKinnon v State of Queensland and Anor (No 2) [2012] QCAT 566, [7]; Yeo v Brisbane Polo Club Inc. [2013] QCAT 261, [14] - [16]; Alexander v State of Queensland & Anor [2016] QCAT 142, [54]. 10 Harrison v Terra Search Pty Ltd & Ors [2014] QCAT 128, [9]. 11 Respondents’ Submissions on Costs dated 1 March 2021, [31] to [33]; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 105; Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86. 12 Virgtel Ltd & Anor v Zabusky & Ors [2008] QSC 213, [15] (Daubney J). 13 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48, s 102(3)(a); Tracey v Olinderidge Pty Ltd & Anor [2015] QCAT 7; Carey v Cairns Regional Council & Ors (No. 2) [2011] QCAT 372, [13], [19] - [20]; Anti-Discrimination Act 1991 (Qld), s 6. 14 BB on Behalf of RB v State of Queensland & Ors [2020] QCAT 496, [22] – [23]. 15 BB on Behalf of RB v State of Queensland & Ors [2020] QCAT 496, [22]. -- 3 of 4 -- 4 unnecessarily disadvantage the Respondents by proceeding to a hearing on that basis. Because the Tribunal has previously ordered that any reasons or orders are not to identify relevant persons, these reasons are published in a de-identified format.16 The appropriate Order is that each party pays their own costs. 16 Directions 5, 6 of 27 April 2020; Anti-Discrimination Act 1991 (Qld), s 191; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66. -- 4 of 4 --