Cairns Regional Council and Ors v Carey [2012] QCATA 151

CITATION: Cairns Regional Council and Ors v Carey [2012] QCATA 151 PARTIES: Cairns Regional Council David Egan George Pitt William Bellero Joseph Sciacca (Applicants/Appellants) v David George Carey (Respondent) APPLICATION NUMBER: APL294-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Hon J Thomas AM QC, Member Ms C Endicott, Senior Member DELIVERED ON: 21 August 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave granted to the parties to seek directions for the delivery of further submissions on all questions of costs within 28 days from the date of delivery of these reasons; 2. In the event that no such applications are made by that date, that the following orders take effect from that date: (a) Appeal dismissed; order of the Tribunal dated 20 July 2011 confirmed; (b) That there be no order for costs in APL087-11; (c) That there be no order for costs in APL294-11. CATCHWORDS: Costs – anti-discrimination proceedings – appeal – interests of justice -- 1 of 5 -- 2 Queensland Civil and Administrative Tribunal Act 2009, ss 100,102 APPEARANCES and REPRESENTATION (if any): APPLICANT: Cairns Regional Council represented by Mr R Perry SC and Mr T Bradley of Counsel RESPONDENT: Mr D G Carey represented by Mr D Rangiah SC REASONS FOR DECISION [1] Having determined on 21 January 2011 (in ADC032-09) that the Council should pay Mr Carey compensation in the sum of $368,033.06, the learned Member, in a subsequent judgment (on 20 July 2011) ordered the Cairns Regional Council to pay Mr Carey’s costs of and incidental to the proceeding on the standard basis on the District Court scale applicable to the amount recovered, as agreed, or failing agreement to be assessed. [2] This is an appeal against that costs order. [3] Leave to appeal from that decision was granted on 21 November 2011. [4] In the present matter the appellant Council seeks orders that Mr Carey pay the Council’s costs of the primary hearing, and of the application for leave to appeal and of the appeal. [5] It is convenient that all questions of costs be disposed of at the one time on this appeal, including the question of costs of the principal appeal (APL087-11) in which reasons for judgment are published today. [6] At the conclusion of the principal appeal, with the assent of counsel for both parties, we intimated that we would deliver provisional reasons on all questions of costs, and allow the parties an opportunity to make further submissions if some further aspect needed to be addressed by them. This is intended to minimise further appearances and further costs in what is already protracted and expensive litigation. [7] There are three areas to cover – a. Whether the appeal against the Member’s order for costs should be allowed. b. Costs of the principal appeal (APL087-11), including leave to appeal. c. Costs of this costs appeal, including leave to appeal. [8] The basic provisions in the Queensland Civil and Administrative Tribunal Act 2009 concerning costs, in particular section 100 and 102, apply to both the primary proceedings and to these appeals. Those sections provide: -- 2 of 5 -- 3 100 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. (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. Whether appeal against Member’s order for costs should be allowed [9] So far as this appeal is concerned, we agree with the comments of Wilson J in McEwen v Barker Builders Pty Ltd [2010] QCATA 49 – “The language of s100 plainly indicates that the legislature has turned its face against awards of costs in this Tribunal. The question that will usually arise in each case in which costs are sought is, then, whether circumstances relevant to the discretion inherent in the phrase “in interests of justice” have arisen; and, whether or not they point to a costs award in a sufficiently compelling away to overcome the statutory hurdle.” [10] Whilst different views might be taken on some comments of the learned Member in the course of his reasons for judgment on the issue of costs there does not appear to be any relevant error or misdirection. Inter alia he was bound to take into account, as he did, s 102(3)(e) of the QCAT Act which makes the financial circumstances of the parties a proper matter for -- 3 of 5 -- 4 consideration. Whilst rate-payers are also entitled to sympathetic consideration, the financial disparity of the parties is a genuine factor in the present matter. [11] Likewise the complexity of the dispute and the reasonableness of a serious contest upon it are relevant considerations, although those factors might be thought to cut fairly evenly both ways. [12] The circumstances of offers made before the hearing (referred to in paragraph 30 of the learned Member’s reasons) are a further relevant consideration in favour of the award of costs that was made. [13] In our view there is no sufficient reason to interfere with the Member’s decision to award costs to the substantially successful claimant. It appears to be in the interests of justice to do so. We appreciate that the original claim was for $800,000.00, and that the original judgment was for $368,033.06 which has now been reduced to $322,033.06, but still regard his litigation as having been substantially successful. [14] It should not be thought however that successful anti-discrimination claimants should prima face expect to obtain orders for costs any more readily than claimants in any other jurisdiction as to which there is no particular legislation that detracts from the basic QCAT Act costs provisions. [15] As presently advised, we are not prepared to set aside the primary judgment for costs. Costs of the principal appeal (APL087-11) [16] The appellant Council failed on the most substantial issues the subject of the appeal, mainly the issues concerning liability. Some of the appellant’s complaints were held to be well founded, and the appellant’s liability under the original judgment was upheld on a somewhat different basis to that of the original judgment, although not on any radically different plane. On the other hand the appellant succeeded to a limited extent on the appeal on quantum, thereby causing the judgment to be reduced by a approximately 12%. However the substantial burden of the appeal was directed to the issues concerning liability. [17] An order for assessment of costs according to the respective issues upon which the respective parties succeeded would probably result in favour of the respondent, but of course an order for costs according to issues would involve needless complexity. Such considerations however assist in obtaining a clearer picture of the extent to which the respective parties have been successful in the litigation. [18] We have taken into account the relevant sections of the QCAT Act, the special nature of appeals where different issues may arise to those of hearings at first instance, and the principles adverted to by the learned Member in his reasons for judgment in this matter. -- 4 of 5 -- 5 [19] In our view the interests of justice would best be served by making no order at all on the question of costs of the principal appeal, including those costs involved in the application for leave to appeal. Costs of this costs appeal [20] At this juncture the parties have not engaged in full preparation or presentation of their respective arguments, and the costs of this appeal should be relatively light. Although we have upheld the costs judgment, it was not unreasonable for the Council to have challenged it. [21] In all the circumstances, including the overall combination of the orders proposed, it is appropriate that no order be made for the costs of the present appeal against costs. Orders [22] The parties are granted leave to seek directions for the delivery of further submissions on all questions of costs within 28 days from the date of delivery of these provisional reasons. In the event that no such applications are made, the following orders will take effect from that date: a. Appeal dismissed; order of the Tribunal dated 20 July 2011 is confirmed; b. That there be no order for costs in APL087-11; c. That there be no order for costs in APL294-11. -- 5 of 5 --