Bell v State of Queensland [2014] QCAT 495

CITATION: Bell v State of Queensland & Anor [2014] QCAT 495 PARTIES: Karen Bell (Applicant) v State of Queensland (First Respondent) And Lindy Ralph (Second Respondent) APPLICATION NUMBER: ADL099-12 MATTER TYPE: Anti-discrimination matters HEARING DATE: 30 September, 2013; 1-3 and 25 October, 2013 HEARD AT: Brisbane DECISION OF: Member Fitzpatrick DELIVERED ON: 18 September 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The applicant, Karen Bell’s application for costs is allowed. 2. The respondents, State of Queensland and Lindy Ralph are to pay Karen Bell’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. 3. If the amount of Karen Bell’s costs is not agreed between the parties within 14 days, the costs are to be assessed by Hickey & Garrett, Legal Costs Consultants, Level 21, 141 Queen Street, Brisbane at the respondents’ cost. 4. The respondents are to pay Karen Bell’s costs (as agreed or assessed) within 14 days of such agreement or assessment. -- 1 of 6 -- 2 CATCHWORDS: Application for costs – interests of justice – offers to settle Queensland Civil and Administrative Tribunal Act 2009 (Qld)ss 100, 102, 105,107 Queensland Civil and Administrative Tribunal Rules 2009 r 86. Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No2) [2010] QCAT 412 Tamawood Ltd & Anor v Paans [2005] QCA 111 Malay Industries Pty Ltd v Queensland Building Services Authority [2010] QCAT 310 APPEARANCES and REPRESENTATION (if any): APPLICANT: Karen Bell represented by Mr D Pratt of Counsel, instructed by Ms N Strijland of NR Barbi Solicitor Pty Ltd. RESPONDENT: State of Queensland and Lindy Ralph represented by Mr CJ Murdoch of Counsel, instructed by Ms R Corones of Crown Law. REASONS FOR DECISION Orders made at trial [1] It has been found that on 17 December, 2011, comments were made to the applicant, Mrs Bell by the second respondent, Ms Ralph, which amounted to sexual harassment under section 119 of the Anti- Discrimination Act 1991. It was found that this sexual harassment played a material role in causing the psychological injury suffered by Mrs Bell. [2] Mrs Bell was awarded the sum of $9,000.00 as against both respondents. [3] The parties were invited to make submissions in relation to costs of the proceedings. Principles governing awards of costs in QCAT [4] Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) sets the basic principle that each party to a proceeding must bear the party’s own costs for the proceeding, unless in the proper exercise of its discretion on the grounds set out in the QCAT Act, it is appropriate for an award to be made. -- 2 of 6 -- 3 [5] This Tribunal may make an order for costs if the interests of justice require it. The Tribunal may have regard to whether a party acted in a way that unnecessarily disadvantaged another, the nature and complexity of the dispute, the relative strengths of the claims, the financial circumstances of the parties and anything else the Tribunal considers relevant.1 [6] The Tribunal has found in considering claims for costs based on the “interests of justice” ground that the relevant factors must “point so compellingly to a costs award that they overcome the strong contra- indicator against costs orders in section 100”2. However, the phrase “in the interests of justice” is to be construed according to “its ordinary meaning, which obviously covers a broad discretionary power on the decision maker.”3 [7] The Tribunal may also order costs pursuant to section 105 of the QCAT Act and Rule 86 of the QCAT Rules, if an offer to settle the dispute the subject of the proceedings has been made but not accepted and the offer is more favourable to the other party than the ultimate decision. Parties’ submissions [8] Mrs Bell seeks recovery of her costs under section 102 and under Rule 86. [9] In relation to section 102 of the QCAT Act, Mrs Bell raises a number of factors to influence the exercise of the Tribunal’s discretion in the interests of justice. [10] Mrs Bell submits that the respondents placed her at an unnecessary disadvantage by refusing to accept reasonable offers to settle the dispute. [11] Further, Mrs Bell says that the case was complex and necessitated legal representation. Mrs Bell relies on the principle expressed by Kean JA in Tamawood Pty Ltd & Anor v Paans4 that where a party has reasonably incurred the cost of legal representation, and has been successful before the Tribunal, it could not rationally be said to be in the interests of justice to allow that success to be eroded by requiring that party to bear the costs of the representation which was reasonably necessary to achieve that outcome. [12] Mrs Bell also submits that the respondents should have recognized two weaknesses in their case - that Mrs Bell was not raising complaints of sexual harassment to deflect management of poor performance; and the problems inherent in the investigation conducted by Mr Suter. If they had done so they would have been prompted to settle the proceedings. Mrs 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102. 2 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No2) [2010] QCAT 412 at [29]. 3 Ibid at [4]. 4 [2005] QCA 111. -- 3 of 6 -- 4 Bell says that it was unnecessary for the respondents to run a case attempting to destroy her credit and reputation as a hard worker. [13] Finally, she points to the disparity in financial position of the respondents and her. Mrs Bell has sworn an affidavit as to the detrimental impact the costs of the proceeding have had on her and her family. [14] Of these submissions, I am most persuaded by the submission that having succeeded in her claim, it is not in the interests of justice to allow that success to be eroded by requiring Mrs Bell to bear the costs of representation which was reasonably necessary to achieve that outcome. [15] The case was complex, it took 5 days to complete and both parties were represented by experienced counsel. There were many witnesses, voluminous material and difficult issues of credit to resolve. I note the respondents’ contention that some of the applicant’s evidence was unnecessary and of itself needlessly inflated the costs of the applicant and the respondent. There were three short affidavits from witnesses Hubber, Fullick and Eyles which were attributed no weight. I do not consider the length of the hearing was affected by their evidence. [16] A substantial part of the hearing was dedicated to cross examination of Mrs Bell and to Mrs Bell meeting the allegations raised against her. To successfully prosecute her claim Mrs Bell had no choice but to participate in lengthy proceedings. She should not be penalised for doing so by being denied her reasonable costs. [17] I find that Mrs Bell is entitled to payment of her costs on the basis that it is in the interests of justice. [18] In this respect I rely upon the decision of the then President of the Tribunal Wilson J., in Ralacom Pty ltd v Body Corporate for Paradise Island Apartments (No.2)5 and His Honour’s statement that: “the principles found in Tamawood provide guidance about the circumstances in which it may be in the interests of justice for this tribunal to award costs against parties.” 6 [19] The respondents suggest that the Ralacom decision is distinguishable. The case may be distinguishable on its facts, however, it provides a solid basis for interpreting and applying sections 100 and 102 of the QCAT Act. The decision has been relied upon many times in the Tribunal and in the Appeal Tribunal. [20] The respondents submit that Tamawood’s case is distinguishable on its facts and that it applies to a different statutory framework. That is acknowledged. However, the principle extracted from the judgment of Keane JA, relied upon by the applicant, remains relevant to provide 5 [2010] QCAT 412. 6 Ibid at [21]. -- 4 of 6 -- 5 guidance in the exercise of the broad discretionary power to award costs where it is in the interests of justice to do so. [21] I reject the submissions of the respondents that a costs order in favour of the applicant would not be in the interests of justice. The length and complexity of the case and the range of allegations Mrs Bell was required to meet in relation to her performance, her credit, her motivation being affected by the relationship between her son and Mrs Ralph and her medical condition all point compellingly to it being in the interests of justice that a costs order be made in her favour. [22] As to the other submissions, I do not criticize the respondents for failing to settle the matter prior to hearing, given the significant issues of credit played in this case. [23] I acknowledge that Mrs Bell as an individual is less able to bear the costs of litigation than the State of Queensland which has indemnified the second respondent. I think that is a self-evident proposition. I have not attributed so much weight to the submission that cross examination of the applicant in relation to her financial position is justified, as proposed by the respondents. [24] The second basis on which Mrs Bell relies to claim costs, relates to the failure of the respondents to accept offers of settlement which were more favourable to the respondents than the ultimate decision of the Tribunal. I reject the applicant’s submissions in this regard. [25] The first “possible solution” made on 30 May, 2012 was expressed to be a “preferable outcome”, with a full reservation of rights. The second proposal made on 19 September, 2012 included an unspecified amount for monetary compensation for hurt, humiliation, aggravated damages and medical expenses. I do not consider these proposals to be certain offers able to compromise the dispute or the proceedings. Nor are they able to be analysed as to whether they amount to a more favourable outcome for the respondents than the ultimate decision. The last offer made on 22 April, 2013 was expressed as an offer inclusive of both claim and costs but not specifying the amount sought for each, making it difficult for the respondents to make an informed decision about the nature of the offer.7 I do not consider it to be effective for the purpose of Rule 86. Orders [26] If the Tribunal makes a costs order it must fix the costs if possible. 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.8 7 Holloway Nominees (Q) P/L v George & Ors (No2) [2008] QSC 71. 8 QCAT Act s107. -- 5 of 6 -- 6 [27] I have no evidence on which to fix the costs. The Tribunal has often considered the District Court Scale as an appropriate scale, accordingly I will order that costs be assessed on that scale on a standard basis.9 [28] I order that: (a) The applicant, Karen Bell’s application for costs is allowed. (b) The respondents, State of Queensland and Lindy Ralph are to pay Karen Bell’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. (c) If the amount of Karen Bell’s costs is not agreed between the parties within 14 days, the costs are to be assessed by Hickey & Garrett, Legal Costs Consultants, level 21,141 Queen Street, Brisbane at the respondents’ cost. (d) The respondents are to pay Karen Bell’s costs (as agreed or assessed) within 14 days of such agreement or assessment. 9 Malay Industries Pty Ltd v Queensland Building Services Authority [2010] QCAT 310. -- 6 of 6 --