CH v Queensland Police Service [2021] QCATA 137

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CH v Queensland Police Service [2021] QCATA 137 PARTIES: CH (applicant/appellant) v QUEENSLAND POLICE SERVICE (respondent) APPLICATION NO/S: APL267-20 ORIGINATING APPLICATION NO/S: OCL049-18 MATTER TYPE: Appeals DELIVERED ON: 23 November 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Allen QC, Deputy President ORDERS: Grant leave to appeal the decision of the Tribunal of 7 August 2020. Set aside the decision of the Tribunal that the application for costs is dismissed. Substitute a decision that, pursuant to section 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the respondent pay the applicant’s costs of the proceeding OCL049-18 fixed in the sum of $6,875. Order that the respondent pay the applicant’s filing fee of $704.10 for the application for leave to appeal or appeal. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – costs – test for costs order – whether order in the interest of justice – costs – order made ADMINISTRATIVE LAW – ADMINISTATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – non-publication orders – non-publication order made in original proceeding – such order subsisting at time of appeal – interim non- -- 1 of 7 -- 2 APPEARANCES & REPRESENTATION: Applicant: Respondent: publication order made in appeal proceeding – where non- continuance of interim non-publication order in appeal proceeding would render nugatory subsisting non- publication order made in original proceeding – whether interim non-publication order in appeal proceeding should continue Information Privacy Act 2009 (Qld), s 176, s 178 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66, s 100, s 102, s 142 Campbell v Queensland Building and Construction Commission [2021] QCATA 34 CH v Queensland Police Service [2019] QCAT 297 CH v Queensland Police Service [2020] QCAT 309 Cowen v Queensland Building and Construction Commission [2021] QCATA 103 Crime and Corruption Commission v Lee [2019] QCATA 38 House v The King (1936) 55 CLR 499 Marzini v Health Ombudsman (No 4) [2020] QCAT 365 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Self-represented Queensland Police Service Legal Services 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 Introduction [1] The applicant made a privacy complaint which was referred to the Tribunal by the Information Commissioner pursuant to s 176 of the Information Privacy Act 2009 (Qld) (IP Act). The Tribunal found part of the complaint to have been substantiated and, pursuant to s 178 of the IP Act, ordered that the respondent provide a written apology to the applicant and pay the applicant compensation in the sum of $17,806.75. That sum included an amount of $10,000 compensation for loss and damage suffered by the applicant, “including the psychological consequences of the disclosure”, pursuant to s 178(a)(v) of the IP Act.1 It further included an amount of $5,000, pursuant to s 178(d) of the IP Act, for reimbursement of expenses occurred in connection with making the complaint.2 Such amount did not include legal costs 1 CH v Queensland Police Service [2019] QCAT 297 at [46]. 2 Ibid at [49]. -- 2 of 7 -- 3 pursuant to s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).3 [2] The applicant subsequently sought an order for costs he had incurred in briefing counsel to represent him in the proceeding fixed in the sum of $6,875. The application for costs was opposed by the respondent. Both the applicant and respondent filed written submissions and the application for costs was determined on the papers. The application for costs was dismissed.4 The applicant now seeks leave to appeal the decision to dismiss his application for costs. Reasons for decision subject of appeal [3] The Tribunal noted the terms of ss 100 and 102 of the QCAT Act.5 The Tribunal accepted that the complexity of the matter was such as to justify the briefing of counsel.6 The Tribunal concluded as follows: [10] Although the applicant has made a convincing argument for costs, I still must have regard to the prescriptive words of s.100 of the QCAT Act. In the words of the then President of QCAT, Justice Alan Wilson in Ralacom Pty Ltd v Body Corporate for Paradise Island Island Apartments (no 2) [sic; footnote omitted]: Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances 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- indication against costs orders in s 100. [11] Here I do not consider that the arguments put forward by the applicant are such to enliven the discretion to overcome the strong contra- indication against costs orders in the section. [12] The application for costs is dismissed. [4] In paragraph [10] of the reasons, the Tribunal was quoting from the decision of Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2).7 Legislation [5] The following provisions of the QCAT Act require consideration: 100 Each party usually bears own costs 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. … 102 Costs against party in interests of justice (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. 3 Ibid. 4 CH v Queensland Police Service [2020] QCAT 309. 5 Ibid at [2]. 6 Ibid at [6]-[7] and [9]. 7 [2010] QCAT 412 at [29]. -- 3 of 7 -- 4 (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; (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. Authorities re ss 100 and 102 of the QCAT Act [6] A useful compilation and discussion of the authorities on the operation of ss 100 and 102 of the QCAT Act is to be found in the reasons of Judicial Member McGill SC in Marzini v Health Ombudsman (No 4).8 I agree with the conclusions reached by Judicial Member McGill SC in that decision as to the correct approach to the operation of sections 100 and 102 of the QCAT Act: The ultimate question posed by the statutory provisions is whether in a particular case the interests of justice require the Tribunal to make a costs order. That is the effect of the terms of the statute. Because of the use in s 102(1) of the word “require”, the default position of no order as to costs should not be too readily departed from. … I do not consider that there is any justification in the words of the statute for any further constraint on the operation of the power to order costs under s 102, although the section directs attention to a number of matters which may in a particular case be usefully considered. The reference to “any other matter the Tribunal considers relevant” shows that this list is not to be read in a confining sense.9 8 [2020] QCAT 365 at [6]-[35]. 9 Ibid at [36]-[37]. -- 4 of 7 -- 5 [7] I also agree with the observations of Judicial Member McGill SC in Cowen v Queensland Building and Construction Commission,10 including the following: In so far as his Honour went further in Ralacom at [29], I consider that his statement cannot confine the discretion conferred on the Tribunal under s 102(1), or modify the test in that section. … I consider that to say that an order for costs will not be made unless the factors favouring an order are “compelling” does not accurately state the test for making an order for costs laid down by s 102(1) … The test is whether the interests of justice “require” an order for costs, but I do not accept that the circumstances favouring an order for costs must be compelling before that test will be met.11 Submissions [8] The applicant referred to a written offer he made prior to referral of his complaint to the Tribunal in which he offered to accept an apology, a letter to assist in repairing his reputation, and compensation in the amount of $10,000 to resolve his complaint. The respondent did not accept such offer and made no counter-offer to settle the dispute. [9] The applicant made detailed complaints about the way the respondent conducted the proceeding before the Tribunal. I do not consider those matters to be of consequence. [10] The applicant relied upon his success in the proceeding and the Tribunal’s finding that it was reasonable for him to brief counsel to appear given the complexity of the proceeding. The respondent was represented by Queen’s Counsel. [11] The applicant submitted that the Tribunal, having found a “convincing” case for an award of costs, erred in failing to order costs in the applicant’s favour. [12] The respondent submitted that it is not a sufficient basis to allow an appeal that another tribunal might have exercised the discretion differently. The reasons of the Tribunal did not disclose House v The King12 error so as to permit appellate interference with an exercise of discretion. In the absence of such error, leave to appeal should be refused or the appeal dismissed. Leave to appeal [13] The applicant requires leave to appeal the costs order.13 Usually, leave will be granted only where there is a reasonable argument that the decision sought to be appealed against was in error and an appeal is necessary to correct a substantial injustice to the applicant or where the appeal raises a question of general importance upon which a decision of the Appeals Tribunal would be to the public advantage.14 As stated by Judicial Member McGill SC in Cowen v Queensland Building and Construction Commission: 10 [2021] QCATA 103. 11 Ibid at [27] and [28]. 12 (1936) 55 CLR 499. 13 QCAT Act, s 142(3)(a)(iii). 14 Crime and Corruption Commission v Lee [2019] QCAT 38 at [12] and Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]. -- 5 of 7 -- 6 When leave is sought to appeal against a decision on costs, it is necessary to apply this to the limited basis on which an exercise of discretion can be challenged on appeal, and in a context which recognises the advantage the decision maker at first instance had in familiarity with the circumstances of the whole matter.15 [14] Judicial Member McGill SC was referring to the limits of appellate review of an exercise of discretion where an appeal will only succeed if House v The King16 error is established. I accept as accurate the submissions of the respondent as to the limits of appellate review of an exercise of judicial discretion. Consideration [15] I consider that the Tribunal, in the adoption of the quoted comments of the then President in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)17, unduly constrained the discretion to be exercised pursuant to s 102 of the QCAT Act in determining the applicant’s application for costs of the proceeding. The Tribunal acted upon a wrong principle and erred in law in so doing. Further, the conclusion of the Tribunal was, upon the facts of the case, so unreasonable and unjust that the Appeal Tribunal may infer that there has been a failure to properly exercise the discretion pursuant to s 102 of the QCAT Act. [16] Leave to appeal should be granted. The appeal is to be decided by way of rehearing.18 The Appeal Tribunal must re-exercise the discretion pursuant to s 102 of the QCAT Act in determining the applicant’s application for costs of the proceeding below. Having considered the respondent’s rejection of the applicant’s offer to settle, the nature and complexity of the dispute the subject of the proceeding and the success of the applicant in the proceeding, along with those other matters prescribed by s 102(3) of the QCAT Act, I consider that the interests of justice require an order that the respondent pay the applicant’s costs of the proceeding fixed in the sum of $6,875. Costs of the appeal [17] The applicant sought the costs of the appeal in his application for leave to appeal or appeal. Although he was granted leave to be legally represented in the appeal, there is no indication that the applicant has incurred the costs of legal representation on the appeal. All correspondence with the Tribunal has been from the applicant personally and he is the author of written submissions filed on behalf of the applicant. In his written submissions, the applicant confines his claim for the costs of the appeal to the filing fee for the application for leave to appeal and appeal. The applicant should be recompensed the filing fee for the application for leave to appeal or appeal. Non-publication order [18] A non-publication order was made in the original proceeding upon the application of the applicant and not opposed by the respondent at that time. Neither party sought the discharge of that non-publication order at any time and it has not been the subject of appeal. That order continues to have effect. The reason for decision in the proceedings below were anonymised in compliance with such order. 15 [2021] QCATA 103 at [24]. 16 (1936) 55 CLR 499. 17 [2010] QCAT 412 at [29]. 18 QCAT Act, s 147. -- 6 of 7 -- 7 [19] Given that it was not the subject of dispute in the original proceeding or the subject of subsequent appeal, the Appeal Tribunal could only speculate as to the reasons why the Tribunal exercised the discretion pursuant to s 66 of the QCAT Act to make a non- publication order in the original proceeding. Submissions by the applicant contend that it was made pursuant to s 66(2)(b) of the QCAT Act so as to avoid endangering the mental health of the applicant. References in the reasons in the primary decision as to psychological harm suffered by the applicant as a consequence of the breach of his privacy19 suggest that might be the case. [20] The applicant filed an application for miscellaneous matters seeking a non-publication order in the appeal proceeding. An interim non-publication order pursuant to s 66 of the QCAT Act was made on 8 June 2021. The applicant seeks that that non- publication order continue. [21] The need for a further non-publication order arises only because of the applicant needing to seek leave to appeal to correct an error by the Tribunal. The non- publication order in the original proceeding would be rendered nugatory if the applicant’s application for a non-publication order in the appeal proceeding was refused. It would be contrary to the interests of justice if a successful appellant were to consequently lose the benefit of a subsisting non-publication order in the original proceeding. The discretion to make a non-publication order is enlivened pursuant to the terms of s 66(2) of the QCAT Act and that discretion should be exercised to continue the non-publication order made on 8 June 2021. The interim non-publication order will continue according to its terms and these reasons for decision have been accordingly anonymised. 19 CH v Queensland Police Service [2019] QCAT 297 at [42] and [48]. -- 7 of 7 --