Carey v Cairns Regional Council and Ors (No 2) [2011] QCAT 372

CITATION: Carey v Cairns Regional Council and Ors (No 2) [2011] QCAT 372 PARTIES: David George Carey (Complainant) v Cairns Regional Council (First Respondent) David Egan (Second Respondent) George Pitt (Third Respondent) William Bellero (Fourth Respondent) Joseph Sciacca (Fifth Respondent) APPLICATION NUMBER: APL104-11 ADC032-09 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: P Roney SC, Member DELIVERED ON: 20 July 2011 DELIVERED AT: Brisbane ORDERS MADE: The First Respondent shall pay the Applicant's costs of and incidental to the proceeding on the standard basis on the District Court Scale applicable to the amount recovered here, as agreed or, failing agreement, to be assessed. The Applicant's costs will be assessed as follows: (a) The Applicant will deliver to the First Respondent an itemised claim for costs referenced to the relevant items contained in the Scale; and (b) If within 14 days of that delivery, the parties have not agreed to an amount for costs, the costs shall be assessed by a Legal Costs’ Assessor to be agreed by the parties, or failing agreement, by a person appointed -- 1 of 17 -- 2 by this Tribunal. For the purposes of that nomination, the parties shall have liberty to apply to nominate a person whom that party submits ought be appointed. The First Respondent will pay the Applicant's costs (as agreed or assessed) within 14 days of such agreement or assessment. CATCHWORDS: PROCEDURE – COSTS – DISCRETION TO AWARD COSTS in anti-discrimination matters to a successful Applicant – whether prima facie position in s 100 should be displaced and costs ordered against unsuccessful respondent applicant pursuant to s 102(3) Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102(3) APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr J Henry, Senior Counsel, instructed by Wettenhall Silva Solicitors RESPONDENT: Mr R Perry, Senior Counsel, instructed by Thynne & McCartney REASONS FOR DECISION INDEX ......................................................................................................... Page Introduction ..........................................................................................................2 The current statutory position – ss 100 and 102 of the QCAT Act .......................4 The former position in anti-discrimination cases ..................................................9 Are human rights cases in a special class? .......................................................12 The financial position of the parties in human rights proceedings ......................14 The complexity of the dispute.............................................................................14 Offers made .......................................................................................................15 Conclusion .........................................................................................................16 Introduction [1] This is a contest about who should pay the costs in a case in which there was a partially successful claim that a Complainant has been subjected to political discrimination. It is the first time that the Tribunal has had to consider the application of the relevant principles that apply to awards of costs in concluded anti-discrimination matters, or in the Human Rights division of the Tribunal. After a four day hearing of this complaint of discrimination on the grounds of political belief or activity, on 21 January 2011 I found in favour of the Complainant against the First Respondent and ordered that it pay the Complainant compensation in the amount of $368,033.06. Two thirds of this award comprised compensation for -- 2 of 17 -- 3 economic loss for the period of approximately two and a half years from the date of his unlawful dismissal by the First Respondent until judgment. I dismissed the claims against the balance of the Respondents because, in effect, they were given statutory immunity from the consequences of their conduct. [2] As I noted in my reasons, in the Complainant’s final submissions, he had sought to be awarded his costs of the proceeding on the District Court Scale. I did not determine that application then, primarily because the Complainant’s submissions did not specifically address the matters that I would be required to consider under ss 100 and 102(3) of the QCAT Act, but also because by the time I delivered my reasons the Respondents had not delivered submissions on this issue. Since then all parties have delivered detailed written submissions on the costs issue. I have given careful consideration to all the matters set out in those submissions. [3] In written submissions filed with the Tribunal, the Complainant seeks an order that the First Respondent pay his costs, either in an amount identified in an affidavit from the solicitor for the Complainant, or alternatively in an amount to be agreed or assessed on the District Court Scale. For the Complainant is contended that there ought not be any order against him in favour of the successful Second to Fifth Respondents. I shall refer to them as the Councillors. For the First Respondent is contended that there should be no order that it pay the Complainant’s costs, having regard to the principles to be derived from ss 100 and 102 of the Act because: (a) the First Respondent’s defence was reasonable in circumstances in which it is contended that the Complainant’s case was based upon circumstantial, not direct evidence; (b) each of the Respondents was jointly represented and they acted reasonably in what is described as a “practical defence” in that they might instead have sought to be separately represented; having regard to in the nature and complexity of the matter and the quantum of the contended losses; (c) the Applicant’s claims had varied from an initial claim in excess of $2.5M, to in excess of $800,000.00 by the time of final submissions, and that these were unreasonable claims and said to be unsustainable in light of the award which I made. [4] Otherwise, the Councillors contended that the Complainant ought pay their costs on the basis that their inclusion in the proceeding was unreasonable, that they were unnecessary parties and, in effect, that their case for the avoidance of liability was always strong, particularly having regard to the provisions of the Local Government Act which, it had been contended that the Respondents, meant that they did not attract liability under the Anti- Discrimination Act for the consequences of their conduct insofar as they procured the relevant council to cause the dismissal of the Complainant from his position of employment in circumstances set out in my reasons. [5] I pause to mention that in the Councillors’ submissions in relation to costs, one of the issues raised is concerned with what is described as the -- 3 of 17 -- 4 “relative strength” of the their case, and the submission is made in that context that it is a relevant factor that the passing of the resolution by the relevant local council, (ostensibly through the actions of the Councillors) was authorised by the Local Government Act, and that there was a specific finding that they had not acted dishonestly or negligently in their actions. The finding made to that effect was of course concerned with a consideration of the express terms of s 240 of the Local Government Act and which required me to consider whether the exclusion of protection for councillors’ conduct under that Act applied because councillors acted “dishonestly or negligently” within the meaning of those terms in s 240. It would be erroneous to suggest that the findings which were made by me implied that the Second to Fifth Respondents acted fairly, lawfully or appropriately. The fact is that the liability upheld against the First Respondent for the dismissal of the Complainant’s employment arose specifically and entirely because the dismissal was procured by discriminatory conduct of the Second to Fifth Respondents. As mentioned in my reasons, that termination was seen by the Councillors as an appropriate course in circumstances in which it was an act of political retribution on the basis of political belief or activity, either his, or someone else’s with whom he was associated. The relevant local authority contravened the prohibitions in the Anti-Discrimination Act upon discrimination on the grounds of political belief or activity. The Councillors themselves escaped liability for their own actions in procuring that result because of express statutory protections given to them in their capacity as local Councillors. [6] I do not accept that it was inappropriate for the Councillors to be joined to the proceeding, particularly having regard to the fact that amongst the relief that was sought from them was an apology. It would have been pointless to have sought such an apology from the First Respondent, it having inherited the liabilities of the Douglas Shire Council, and itself having done nothing warranting an apology. It was fairly arguable that the conduct of the Councillors fell outside of the protections provided in s 240 of the Local Government Act 2009. I reject the submission that the Local Government Act provisions in this context demonstrably excluded liability for the Councillors’ conduct and that the Applicant could have relied on the same contentions in the proceeding without joining the Councillors. The evidence may well have elicited evidence of dishonestly or negligence. In the end, it did not go that far; as explained in my reasons. The current statutory position – ss 100 and 102 of the QCAT Act [7] The statutory position is that set out in ss 100 and 102 of the QCAT Act. They provide as follows: 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 -- 4 of 17 -- 5 (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. [8] In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 the President Justice Wilson was considering the costs question where the proceeding had been commenced when a different statutory costs regime applied, but concluded under the QCAT Act. He said: 21. The respondent relies on the decision of the Court of Appeal in Tamawood Ltd & Anor v Paans [2005] QCA 111, a case decided under the costs provision of the now repealed Commercial and Consumer Tribunal Act 2003 (CCT Act). Although those provisions are not analogous to the equivalent provisions under the QCAT Act, 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. 22. In Tamawood, Ms Paans commenced proceedings in the CCT for damages against Tamawood Ltd and another party. The two matters were heard together and Ms Paans was awarded monetary damages. The CCT, however, refused to order costs in her favour. -- 5 of 17 -- 6 23. All parties then sought leave to appeal to the District Court, where the appeals from the respondents were refused, but Ms Paans was awarded her costs in the proceedings. The respondents then sought leave to appeal that costs decision to the Court of Appeal, contending that the decision of the District Court was based on an erroneous construction of ss 70 and 71 of the CCT Act. Those provisions state: 70 Purposes of div 7 The main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise. 71 Costs … (4) In deciding whether to award costs, and the amount of the costs, the Tribunal may have regard to the following— (a) the outcome of the proceeding; (b) the conduct of the parties to the proceeding before and during the proceeding; (c) the nature and complexity of the proceeding; (d) the relative strengths of the claims made by each of the parties to the proceeding; (e) any contravention of an Act by a party to the proceeding; (f) for a proceeding to which a State agency is a party, whether the other party to the proceeding was afforded natural justice by the State agency; (g) anything else the Tribunal considers relevant. Examples of paragraph (g)— The Tribunal may consider whether a party to a proceeding is acting in a way that unreasonably disadvantages another party to the proceeding. The Tribunal may consider whether the proceeding, or a part of the proceeding, has been frivolous or vexatious. (5) A party to a proceeding is not entitled to costs merely because— (a) the party was the beneficiary of an order of the Tribunal; or (b) the party was legally represented at the proceeding. 24. The similar QCAT Act provision to s 70 is, it might be said, in terms that more plainly indicate that the legislature had turned its face -- 6 of 17 -- 7 against awards of costs in this Tribunal: s 100 says that „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‟. 25. In considering ss 70 and 71 Keane JA (as his Honour then was) referred, however, to two matters relevant here. First, his Honour held that the CCT provisions negated the traditional proposition that costs should prima facie follow the event (unless of course that the Tribunal considers that another order is more appropriate) and that the nature and extent of the power to award costs could only be discerned by close consideration of the terms of the statute which created and prescribed the occasions and conditions for its exercise 7. Sections 100 and 102 of the QCAT Act attract the operation of the same principles. 26. Second, Keane JA was of the view that where the complexity of the matter justified legal representation, it would not be in the interests of justice to bar the successful party from recovering costs that were reasonably necessary to achieve a satisfactory outcome. 27. That conclusion must, here, be considered in the light of the difference between s 70 of the CCT Act and s 100 of 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). 28. Under that subsection QCAT has a discretion to make a costs order „…if the Tribunal considers the interests of justice require it…‟. Section 102(3) says that, in deciding whether to award costs, the Tribunal may have regard to matters not dissimilar to those set out in s 71 of the CCT Act including, in particular for present purposes, the nature and complexity of the dispute and the relative strength of each party‟s claims. 29. 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. 30. I am satisfied that is the case here. As the voluminous supporting material indicated, the application brought in Ralacom‟s name involved a complex history of disputes between it, and the body corporate. Urgent injunctive relief was sought, as was relief under the BCCMA, which on any view involved some complexity, and urgency, and warranted the instruction of solicitors and counsel by the body corporate. The standing of the company was unclear, and confused by the applicant‟s failure to inform this Tribunal about the real outcome of the Supreme Court Proceedings. [9] Later, in McEwen v Barker Builders Pty Ltd [2010] QCATA 49 the -- 7 of 17 -- 8 President, Justice Wilson said in an Appeal heard on the papers: [13] As to costs, the starting point in this Tribunal is that each party must bear its own: QCAT Act, s 100. The statutory presumption may be displaced if the Tribunal considers it in the interests of justice to order a party to pay all or part of the costs of another party: s 102(1). The phrase “in the interests of justice” is not defined in the Act but is to be construed according to its ordinary and plain meaning, conferring a broad discretionary power on the decision-maker 8. [14] In determining whether it is in the interests of justice to award costs against another party, the Tribunal may have regard to the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; and, whether a party has acted in a way that unnecessarily disadvantages another party: QCAT Act, s 102(3). [17] The language of s 100 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 „the interests of justice‟ have arisen; and, whether or not they point to a costs award in a sufficiently compelling way to overcome the statutory hurdle. [10] Queensland is not the only jurisdiction that has provisions that apply to claims of discriminatory conduct that establish as the starting point that parties bear their own costs. For example section 109 of the Victorian Civil and Administrative Tribunal Act 1998 provides, in terms not unlike those in ss 70 and 71 of the former CCT Act, now repealed, provides as follows: “Power to award costs 109. Power to award costs (1) Subject to this Division, each party is to bear their own costs in the proceeding. (2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding. (3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to- (a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as- (i) failing to comply with an order or direction of the Tribunal without reasonable excuse; (ii) failing to comply with this Act, the regulations, the rules or an enabling enactment; -- 8 of 17 -- 9 (iii) asking for an adjournment as a result of (i) or (ii); (iv) causing an adjournment; (v) attempting to deceive another party or the Tribunal; (vi) vexatiously conducting the proceeding; (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding; (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law; (d) the nature and complexity of the proceeding; (e) any other matter the Tribunal considers relevant.” [11] This provision has been applied in the VCAT to allow successful parties to recover their costs in some of the matters which have a “commercial flavour”, for example the Retail Leases list, or the Civil Claims List. In Sherman v Watson (Costs) [2004] VCAT 109 Judge Bowman awarded costs on an applicable scale against an unsuccessful Applicant, saying at [13] “In relation to costs generally, I indicated that, after hearing argument, I was minded to order costs. I allowed the parties the opportunity to make written submissions. Nothing in the written submissions has persuaded me that costs should not be ordered. This proceeding was conducted in a very litigious fashion. It was commercial litigation. It was complex, involving issues of fact and law.” See also Toonalook Straights Pty Ltd v Jeuken- Sims (costs) [2004] VCAT 550. [12] The case before me was certainly conducted in a very litigious fashion, and although not a case carrying a commercial flavour, the dismissal of the Complainant from his position with the Council was a pre-meditated political decision likely to have significant consequences, including financial consequences for the Complainant. [13] I respectfully agree with the approach that the President has taken in Ralacom and the McEwen decisions. That means that the relevant task is to proceed on the basis that there is a statutory presumption that parties will bear their own costs in a proceeding for the Tribunal, including those in the Human Rights jurisdiction of the Tribunal but that presumption may be displaced if the Tribunal considers it in the interests of justice to order a party to pay some or all of the costs of another. The former position in anti-discrimination cases [14] The jurisdiction under the Anti-Discrimination Act was from 1992, until 2009 vested in the Qld Anti-Discrimination Tribunal (QADT). That Tribunal was abolished effective from 1 December 2009. Until then, the QADT typically made costs orders in favour of successful applicants by applying the rule that costs follow the event. It was required to apply the provisions of s 213 of the Anti-Discrimination Act 1991 which then provided that: -- 9 of 17 -- 10 “(1) The Tribunal may order a party to pay such costs as the Tribunal considers reasonable. (2) However, costs must be assessed using the scale of costs for the District Court under the Uniform Civil Procedure Rules 1999 unless the Tribunal is satisfied that, because of the complexity of the matter, or because of another reason, costs should be assessed using a higher scale. (3) In deciding whether to order a party to pay costs, the Tribunal may have regard to— (a) the reasons for the enactment of this Act as stated in the preamble, and whether these reasons would be compromised or defeated in ordering the party to pay costs; and (b) the fairness of a costs order, having regard to the following— (i) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding, including, for example, by— (A) failing to comply with an order or direction of the Tribunal without reasonable excuse; or (B) failing to comply with this Act; or (C) asking for an adjournment as a result of subparagraph (A) or (B); or (D) causing an adjournment; or (E) attempting to deceive another party or the Tribunal; or (F) vexatiously conducting the proceeding; (ii) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding; (iii) the relative strengths of the claims made by each of the parties; (iv) whether a party reasonably believed there had been a contravention of this Act; (v) the nature and complexity of the proceeding; (vi) any other matter the Tribunal considers relevant. (4) Subsection (3) does not limit subsection (1). [15] As to the issues identified in the former s 231(3)(a) of the Act, the reasons for Parliament’s enactment of the Anti-Discrimination Act as stated in the preamble to the Act are, interalia that: -- 10 of 17 -- 11 “1 The international community has long recognised the need to protect and preserve the principles of dignity and equality for everyone .... 5. The Parliament is satisfied that there is a need- (a) to extend the Commonwealth legislation; and (b) to apply anti-discrimination law consistently throughout the State; and (c) to ensure that determinations of unlawful conduct are enforceable in the courts of law. 6. The Parliament considers that- (a) everyone should be equal before and under the law and have the right to equal protection and equal benefit of the law without discrimination; and (b) the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society; and (c) the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone. 7. It is, therefore, the intention of the Parliament to make provision, by the special measures enacted by the Act, for the promotion of equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity and from sexual harassment and certain associated objectionable conduct.” [16] When the subject complaint was made in December 2008, s 213 was in force. Numerous decisions of the Anti-Discrimination Tribunal treated the former s 213 as authorising orders for costs that followed the event, insofar as successful complainants were concerned. On some occasions they were treated as authorising the refusal of an order for costs in favour of a successful Respondent because of the public interest factors present. For example, in Harris and Pyne v Transit Australia Pty Ltd [2000] QADT 6 Member Coates held in a case where the Complainant had failed: “233. The legislation of the Anti-Discrimination Commission of Queensland is by its nature to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity and from sexual harassment and certain associated objectionable conduct. 234. It is not necessarily that costs follow the event and there is an absence of specific statutory provisions under the Act which provide for the costs to follow the event. This is a matter which of course involves a wide public interest. The nature of the legislation under which the section to award costs involves a broad public interest and -- 11 of 17 -- 12 this is an area, namely public transport, which is a very broad public interest. 235. I am not persuaded that the offer made by the Respondent during the course of the proceedings, and not accepted by the complainant would persuade me to be a matter of significance to outweigh the broader public interest of this area”. [17] In considering the issues identified in the former s 231(3)(a) of the Act, Member Forrest, as he then was in Lafferty v Zimmer, Brailsford and University of Queensland (No. 2) [2007] QADT 14 upheld an argument refusing a successful Respondent its costs, after considering the reasons for Parliament’s enactment of the Act, on the basis at [23] that “the complainant believed on reasonable, albeit mistaken, grounds that he had not been offered continuing employment for reasons that were prohibited under the Act. Former Member Mullins clearly held the view that the complainant therefore reasonably believed he had a good case under the Act. The other, non-discriminatory explanation, the former member found, only became clear once all the evidence had been given in the matter. Significantly, the complainant was found to be a “credible and impressive witness”. [18] Similar conclusions were reached concerning unsuccessful applicants in Victoria in the anti-discrimination context in Gonsalves v MAS National Apprenticeship Services Costs (Anti Discrimination) [2007] VCAT 6. Are human rights cases in a special class? [19] One of the submissions made on behalf of the Applicant is that the fact that the Tribunal is seized of matters arising under the Anti-Discrimination Act is relevant to a consideration of the way in which the matters set out in s 102 of the Act are to be applied in such cases. It is submitted that cases under the Anti-Discrimination Act form a special class of cases because they involve claims or applications relating to fundamental human rights. In that context, it is submitted that s 102 should be construed “beneficially” and in a manner which gives effect to the objects and purposes of the Anti- Discrimination Act, and in particular those set out in s 6 to “promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work”. [20] That such claims are in a special class which give rise to different considerations when questions of costs arise, has been recognised previously in the State in decisions of the Anti-Discrimination Tribunal. A couple of examples have already been given and are mentioned earlier in these reasons. Typically this consideration has been applied to deny to a successful respondent orders for the recovery of costs against an unsuccessful complainant. [21] Applications for judicial review of decisions made under the Commonwealth Human Rights and Equal Opportunity Commission Act 1986 go before the Federal Magistrates Court and the Federal Court. In such cases, the court has a general discretionary power to award costs in all proceedings. There is no assumption of the kind contemplated by s 100 -- 12 of 17 -- 13 of the QCAT Act. Nevertheless, there have been comments in those jurisdictions which have suggested that it is relevant to the consideration of what costs orders are made that these cases involve considerations concerned with human rights protected by a statute, where there is a public interest element to the complaint, or where in those circumstances a successful party might lose the benefit of their victory because of the legal costs involved in the case. For example in Paramasivam v Wheeler [2000] FCA 1559 at pars [9] and [10], Moore J suggested that special considerations might apply to the issue of costs in the Federal jurisdiction involving unlawful discrimination claims by nature of the jurisdiction. That was a case of an unsuccessful applicant. Although his Honour decided that a costs order would be made in that case he invited the parties for whose benefit the order had been made to give consideration as to whether any of those costs ought be recovered. [22] The Full Court of the Federal Court in Hagan v Trustees of the Toowoomba Sports Ground Trust (2000) 105 FCR 56 was concerned with an argument by the appellant that costs should not be awarded against him as he was not receiving Legal Aid, and that the proceedings concerned a public rather than a private right. It concerned the controversial naming of a grandstand at a Toowoomba football ground as the “Nigger Brown” stand. The Full Court said “this is not an appropriate case in which to consider whether there should be some departure in human rights litigation from the ordinary principles governing the court‟s discretion to order payment of costs. In our view, this appeal should be dismissed with costs because the appeal was without merit, having no realistic prospects of success”. On the other hand, in a number of Federal Court decisions the court has made statements which appear to suggest that costs would generally be ordered in favour of the successful party in discrimination matters; for example Tate v Rafin [2000] FCA 1582 and Creek v Cairns Post Pty Ltd [2001] FCA 1150. [23] There have also been a number of decisions in the Federal Magistrates Court which have had regard to the fact that there was a public interest in the subject matter of the proceedings as relevant to the exercise of discretion to award costs. Examples include Xiros v Fortis Life Assurance Ltd (2001) 162 FLR 433, Ferneley v The Boxing Authority of New South Wales (2001) 115 FCR 306 at 326 and Minns v New South Wales (No. 2) [2002] FMCA 197. [24] There appear to have been no decisions in which those principles have been applied relevantly to a consideration of where the interests of justice lie in the context contemplated by s 102 of the QCAT Act. It seems to me however that there is no reason in principle why in an appropriate case, the fact that a complaint upheld involved legislation designed to protect human rights would not be a relevant consideration under s 102, falling within the broad category contemplated by s 102(3)(b) or by s 102(3)(f) as something else that the Tribunal considered relevant to whether the interests of justice require a costs order to be made. In saying that, I should not be construed as holding that every case brought in the Human Rights Division of this Tribunal would attract that consideration. Not all have the same public interest factors present. -- 13 of 17 -- 14 The financial position of the parties in human rights proceedings [25] As a corollary to this approach there is some authority for the proposition that in relation to the issue of costs in human rights proceedings, where an applicant is successful, it is regarded as desirable that there be an award of costs in favour of the successful applicant, so as to avoid an award of damages being swallowed up by the costs of litigation; Johanson v Blackledge (2001) 163 FLR 58, Cooke v Plauen Holdings Pty Limited [2001] FMCA 91 and Escobar v Rainbow Printing Pty Limited (No. 3) [2002] FMCA 60. In Whitlock v Bunnings, DP and DF [2009] QADT 14, the then President of the Tribunal, Mr Savage SC said, in this context: “The rights given under the Act to people in Ms Whitlock‟s position as an ordinary member of our community becomes theoretical, if they cannot obtain a vindication of those rights other than by risking what on any view must be a goodly portion of an ordinary person‟s available assets.” [26] According to the sworn evidence of the solicitor for the Complainant, the Complainant has incurred legal costs up to the date of delivery of the Tribunal’s decision in an amount of $136,226. Were the Complainant to meet his own costs of the proceeding, clearly that would substantially diminish the sum which would be available to him by way of compensation for the unlawful conduct of the local Council. Even based on the application of the District Court Scale set out in schedule 2 of the Uniform Civil Procedure Rules 1999, the amount which he is likely to recover, assuming the calculation by the solicitor for the Complainant to be correct, is approximately $84,500. In those circumstances, the Complainant would be out of pocket in respect of his real costs by approximately $52,000. [27] One of the considerations which I am bound to take into account under s 102(3)(e) of the QCAT Act are the financial circumstances of the parties to the proceedings. The Complainant has incurred what, on any view of the matter, is very considerable expense in pursuing his rights in consequence of unlawful conduct perpetrated upon him. That can in no way said to have been consequential upon any behaviour on his part which might be the subject of criticism. In that sense, the incurring of such expense was “reasonably necessary to achieve a satisfactory outcome” in the sense referenced by Justice Keane in the earlier referred decision in Tamawood. There is evidence, which I mention in my reasons, that the loss of his employment caused financial hardship which had in turn led to economic loss which was the subject of claims partially upheld. There is no suggestion that the First Respondent Council, a substantial local authority funded by rate payers, is not in a position to meet any costs order which might be made, or that there are any other relevant financial circumstances concerning the First Respondent which I ought take into account. The complexity of the dispute [28] The dispute in question was of considerable complexity, both in terms of the factual issues which arose for consideration but also as to the legal issues which it presented. Both sets of parties thought it appropriate to -- 14 of 17 -- 15 engage Senior Counsel to represent them, implying that they too regarded the issues as of some complexity. The affidavit material filed for each side was voluminous. In addition to that material there was a considerable body of other documentation which was identified in respective document bundles which each party handed up at the outset of the hearing. The scope of the inquiry into the relevant conduct of those concerned went back to 2006, and factual enquiry involved a number of critical incidents which occurred in each year from 2006 through to the end of 2010. As I mentioned in my reasons, the termination of the Complainant’s employment in March 2008. The factual enquiry did not of course end with the termination of the Complainant’s employment, particularly having regard to the case put for the Respondents, which required a consideration of the many attempts by the Complainant to obtain alternative employment after his dismissal with the Council. [29] It appears to be common ground the Complainant’s case was based upon circumstantial evidence, but my findings upheld that case. The manner in which the Respondents conducted their own case, in my view, added unnecessary complexity to the issues which arose for determination, and apart from an issue of statutory construction arising under the Local Government Act and upon which the Councillors succeeded, the case put for all Respondents and which I describe in my reasons was unmeritorious, and ought have been seen to be unmeritorious long before a hearing was conducted. I pause to mention that from the outset, when the matter was the subject of a complaint to the Anti-Discrimination Commission of Queensland in December 2008, the Respondents were on clear notice as to the character of the complaint made against them and sought to answer it from the outset with essentially the same arguments as were ultimately put at the trial before me. There would have been an attempt at conciliation of the dispute while it was still in the hands of the Commission in 2009, but the matter was not resolved there. Offers made [30] A relevant consideration, although not one upon which I place any particular significance is that the parties had made without prejudice offers, save as to costs, in an attempt to resolve the disputes between them. It is not possible now to conclude that any offer made on behalf of the Complainant was for a sum equal to or less than the sum which I have awarded. I note, however, that the offer that was made in October 2010 and shortly before the hearing was conducted indicated that the Complainant then would have been prepared to accept a sum of the $323,349 in respect of all heads of compensation and that in addition he would have accepted costs in an amount of $70,000. It suffices to mention that the figure sought by way of compensation was not disproportionately different from the sum which I have allowed. In contrast, the Respondents offered at about that time to settle the matter for a payment of only $40,000 plus costs to be assessed. This figure could not realistically have been described as being “within the ballpark” of sums which might be reasonably considered to be likely to be recovered by a successful Complainant in this case, where the major component of the claim was for past economic loss in excess of $200,000 and in respect of which there was no contest at the -- 15 of 17 -- 16 hearing by the Respondents. Conclusion [31] I see nothing in the manner in which the Complainant conducted his case which suggests that he did not do so in a manner which was just and sought the expeditious resolution of the real issues which arose. I have already said that I do not regard the joinder of the Councillors as inappropriate. In my view, having regard to all of the circumstances, the Complainant has displaced the statutory presumption in s 100 QCAT Act that the parties ought bear their own costs. In my view the interests of justice in this case require that the First Respondent pay the Complainant’s costs on a standard basis. I do not think it appropriate to seek to fix those costs, either on the basis of the estimate conducted by the solicitor for the Complainant, based on scale. The appropriate course is for an assessment to occur on the basis of the District Court Scale applicable to matters where the sum recovered is the same as that awarded here by way of compensation. [32] I reject the contention put on behalf of the Councillors that the Complainant ought pay their costs of the proceeding. The case against them only failed because they were in effect provided with a statutory immunity from the consequences of their conduct. I do not regard it as significant that the Applicant argued for an award of compensation which was more than double the sum which he was ultimately awarded. The amounts claimed included amounts by way of future economic loss and general compensation which in substantial respects were at large. There is nothing to suggest that there were any additional costs incurred by the Respondents than having to resist those claims. Awards of compensation were in but made under each of the claimed heads, albeit not in the sums sought. [33] The Respondent Councillors were represented by the same firm of solicitors and the same counsel as represented the unsuccessful First Respondent. As my reasons make clear, despite having put a positive case in documents filed with the Tribunal, and having sworn affidavit material, the Councillors elected not to go into evidence. There is nothing before me to suggest that the Councillors incurred any legal costs over and above those which the First Respondent incurred for the same solicitors and counsel who represented it. In the circumstances, it does not seem to me to be in the interests of justice that there be a specific costs order in favour of the Respondent Councillors. If there are any additional costs which have been incurred by them over and above those incurred by the First Respondent, then in my view, they are costs which the Councillors themselves should bear. [34] In the circumstances I make the following orders: (a) The First Respondent shall pay the Applicant's costs of and incidental to the proceeding on the standard basis on the District Court Scale applicable to the amount recovered here, as agreed or, failing agreement, to be assessed. -- 16 of 17 -- 17 (b) The Applicant's costs will be assessed as follows: (c) The Applicant will deliver to the First Respondent an itemised claim for costs referenced to the relevant items contained in the Scale; and (d) If within 14 days of that delivery, the parties have not agreed to an amount for costs, the costs shall be assessed by a Legal Costs’ Assessor to be agreed by the parties, or failing agreement, by a person appointed by this Tribunal. For the purposes of that nomination, the parties shall have liberty to apply to nominate a person whom that party submits ought be appointed. (e) The First Respondent will pay the Applicant's costs (as agreed or assessed) within 14 days of such agreement or assessment. -- 17 of 17 --