Deans v Queensland College of Teachers [2011] QCAT 607

CITATION: Deans v Queensland College of Teachers [2011] QCAT 607 PARTIES: Sandra Ann Deans v Queensland College of Teachers APPLICATION NUMBER: OCR014-10 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 25 November 2011 DELIVERED AT: Brisbane ORDERS MADE: Application for costs is refused. CATCHWORDS: COSTS – review of an administrative decision – where applicant was successful – whether in interests of justice to order decision maker to pay applicant’s costs Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Tamawood Ltd & Anor v Paans [2005] QCA 111 APPEARANCES and REPRESENTATION (if any): APPLICANT: Sandra Ann Deans represented by Maurice Blackburn Lawyers RESPONDENT: Queensland College of Teachers represented by Mark Pollock, Principal Legal Officer The hearing of the costs application was conducted on the papers in accordance with the directions made by the tribunal and under section 32 of the Queensland Civil and Administrative Tribunal Act 2009. -- 1 of 5 -- 2 REASONS FOR DECISION [1] Ms Deans successfully sought a review by QCAT of a decision made by the Queensland College of Teachers to refuse her registration as a teacher. Ms Deans has sought an order that the College pay her costs of the QCAT proceedings. The application for costs is opposed by the College. [2] In QCAT proceedings each party must bear their own costs unless the tribunal considers the interests of justice require a costs order to be made.1 The phrase “in the interests of justice” is not defined in the Queensland Civil and Administrative Tribunal Act 2009. Justice Wilson, the President of QCAT in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) stated “the phrase is to be construed according to its ordinary and plain meaning, which obviously confers a broad discretionary power on the decision-maker.”2 [3] It is clear that the statutory position in the QCAT Act that parties must bear their own costs negates the position usually applying in courts that costs follow the event. Furthermore Justice Wilson stated in Ralacom: “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.”3 [4] Submissions were made on behalf of Ms Deans that the interests of justice required the making of a costs order in favour of Ms Deans. It was submitted that the presumption against costs hinders access to justice for persons such as Ms Deans by erecting a serious financial barrier to the achievement of justice. The College responded by categorising that submission as a classic “costs follow the event” argument. The College submitted that given the legislative scheme in the QCAT Act, the argument is necessarily misconceived. [5] I accept the submission made by the College. Section 100 is clear in its language and intent. A party must make a compelling argument in favour of a costs award to overcome the strong contra-indication against awarding costs in the Act. [6] It was submitted on behalf of Ms Deans that the review involved a complex question of law relating to the construction of sections of the Education (Queensland College of Teachers) Act 2005. It was submitted that QCAT should be persuaded to make a costs award as the complexity in the proceeding was a factor that weighs in favour of an award of costs. In 1 Sections 100 and 102(1) of the Queensland Civil and Administrative Tribunal Act 2009. 2 [2010] QCAT 412 at paragraph 4. 3 Ibid at paragraph 29. -- 2 of 5 -- 3 making this argument, reliance was made on the decision of the Court of Appeal in Tamawood Ltd & Anor v Paans.4 [7] In that case Justice Keane had found that where the complexity of the matter justified legal representation, it would not be in the interests of justice to preclude the successful party from recovering costs that were reasonable.5 Ms Deans and the College had been granted leave to be legally represented in this review application. [8] The Tamawood case was decided under the costs provision of the now repealed Commercial and Consumer Tribunal Act 2003. As Justice Wilson in Ralacom had pointed out, the cost provisions in section 70 of the repealed Act are not analogous to the equivalent cost provisions in the QCAT Act. “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).”6 [9] Justice Wilson considered that the principles found in Tamawood can provide guidance about the circumstances in which it may be in the interests of justice for QCAT to award costs against parties.7 [10] I accept that there was some complexity in the issues considered in the review application. However it is commonly the case that proceedings about the construction and application of legislation do involve some complexity. At the same time, cases involving civil disputes or disciplinary matters may similarly involve complexity. QCAT since its commencement has declined to make costs orders in many complex matters across its wide jurisdiction as complexity is merely one factor among several referred to in section 102 that QCAT may take into account to determine whether in a given case the interests of justice require the making of a costs order.8 [11] It was submitted on behalf of Ms Deans that the correct interpretation of a legislative provision not previously the subject of consideration is a complex matter in and of itself. [12] I do not accept that submission. While the existence of other decisions providing some authority on an issue of statutory interpretation is undoubtedly useful, the absence of earlier authorities does not by way of corollary inevitably render QCAT’s task of interpreting legislation more difficult than is the case in other proceedings coming on for decision before QCAT. [13] It was submitted that the disparity between the financial resources of the parties weighs in favour of making of a costs order. I accept the evidence adduced by Ms Deans that she has modest financial means. However she 4 [2005] QCA 111. 5 Ibid at paragraph 33. 6 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at paragraph 27. 7 Ibid at paragraph 21. 8 See for example Irvine & Porter v Mermaids Cafe and Bar Pty Ltd and Ingall (No 3) [2011] QCAT 461, QBSA v Johnston [2011] QCATA 265. -- 3 of 5 -- 4 was able to work and earn income while the review was proceeding.9 She does not state that she is unable to afford to pay her own legal costs of the proceeding. [14] There is nothing exceptional or unusual about a successful party to QCAT proceedings finding themselves in a position where they have a responsibility to pay legal fees to their legal representatives. It is a common fact that a party’s financial position can be significantly adversely affected by that responsibility. I am not persuaded that the fact that Ms Deans may experience some financial disadvantage in paying her legal fees compels me to conclude that the interests of justice require a costs award to be made in her favour. [15] It was submitted that another factor that QCAT may take into account from section 102 is whether Ms Deans had genuinely attempted to assist the College to make the decision about her registration on its merits. As to this factor, the College in its submissions highlighted the reliance by Ms Deans on a second basis for registration that was an argument first raised just prior to the hearing. This additional basis for registration was open to Ms Deans to raise in her initial application to the College but was not part of her original application for registration and therefore not considered by the College. It was submitted that Ms Deans had not made a genuine attempt to assist the College in its decision making role. [16] It was submitted for Ms Deans that the submissions by the College fail to acknowledge practical reality. It was submitted that Ms Deans could not have anticipated the refusal of her application for registration at the time she applied to the College and that applicants for registration would not ordinarily rely on more than one ground for registration. [17] I do not accept the submissions made by the College that Ms Deans had failed to assist the College in its task of making a decision about her registration. She did what was generally expected of applicants for registration. She did not obstruct or prolong the decision making process. It was her right (as was acknowledged by the College) to raise an additional ground for registration when the decision of the College was under review by QCAT. [18] However neither the presence of some complexity in the issues in the review or the general level of assistance provided by Ms Deans in the decision making process are sufficiently cogent factors in this case to compel me to make a costs order. These factors in this case do not in my view take the matter outside the starting position that each party must pay their own costs in a QCAT proceeding. [19] Further submissions made on behalf of Ms Deans were that the public interest was advanced by the QCAT decision and should weigh in favour of costs being awarded. It was submitted that the review had elements of a test case. [20] I accept the submissions made on behalf of Ms Deans that there was a legitimate public interest in what qualifications are sufficient for a person to 9 Paragraph 18 of the statement of Sandra Ann Deans dated June 2011. -- 4 of 5 -- 5 be registered as a teacher in Queensland but primarily the private interests of Ms Deans were promoted in the review and were upheld by the QCAT outcome. It is always in the public interest that administrative bodies make the correct decision on matters before them and interpret legislation correctly and fairly. There was nothing in my view in this case to elevate the public interest beyond the normal level of interest in justice being done. [21] The remaining factors set out in the submissions have been considered but have failed to persuade me that costs should be awarded in the interests of justice. In particular it was submitted that costs should be awarded to Ms Deans as she had made an offer to settle her dispute with the College, the offer was not accepted and QCAT’s decision to grant unconditional registration to Ms Deans was not more favourable to the College than the offer made by Ms Deans which was essentially to accept conditional registration. [22] Under Rule 86 of the QCAT Rules, the tribunal may award all reasonable costs to the party who makes an offer which turns out to be not more favourable to the other party than the outcome reached by the tribunal. [23] I note the submissions made by the College that the significance of the failure to accept the offer was rendered nugatory by the findings made by QCAT that conditions of the type involved in the offer could not be validly imposed on Ms Deans’ registration. The legal representatives for Ms Deans have submitted that the finding that conditions could not be imposed did not affect the position regarding offers to settle. It was argued that the parties were capable of entering into an arrangement whereby Ms Deans was registered subject to conditions and that the refusal to accept the offer was not predicated on whether or not QCAT had power to impose conditions on Ms Deans’ registration. [24] Rule 86 does not change the nature of the power in QCAT to award costs. That power is discretionary and must also be exercised in the context of section 100. I am satisfied that it is a relevant factor to the exercise of discretion that the offer made was in terms that were later found to be invalid and inadvertently unlawful. It would be contrary to public policy to give significance to an offer in those circumstances when exercising discretion to depart from the clear statutory intention that costs of a QCAT proceeding are to be borne by each party. [25] I have not been satisfied that a compelling argument in favour of a costs award has been made out to overcome the strong contra-indication against awarding costs in this QCAT proceeding. The application for costs is refused. -- 5 of 5 --