Chivers v State of Queensland (No 2) [2012] QCAT 437

CITATION: Chivers v State of Queensland (No 2) [2012] QCAT 437 PARTIES: Rebecca Louise Chivers v State of Queensland APPLICATION NUMBER: ADL024-10 MATTER TYPE: Anti-discrimination matters HEARING DATES: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 27 August 2012 DELIVERED AT: Brisbane ORDERS MADE: No order made as to costs. CATCHWORDS: ANTI-DISCRIMINATION – COSTS – proven complaint of unlawful workplace discrimination based on impairment – whether interests of justice require a costs order 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 Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364 APPEARANCES and REPRESENTATION (if any): APPLICANT: Rebecca Louise Chivers represented by Slater & Gordon RESPONDENT: State of Queensland represented by Minter Ellison The application was heard on the papers under section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] Louise Chivers succeeded in her complaint that as a nurse at the Ipswich Hospital she was unlawfully discriminated against by her employer in that she proved that she was treated unfavourably in connection with her work because of impairment arising from an acquired brain injury. [2] Ms Chivers seeks her costs of this complaint. In QCAT proceedings, parties who succeed in their claims do not inevitably recover their costs. Under section 100 of the QCAT Act parties are expected to bear their own costs in QCAT proceedings. [3] However, the tribunal can order that a party pay all or part of the costs of another party if the tribunal considers it is in the interests of justice to make such an order.1 Section 102(3) of the QCAT Act sets out factors that the tribunal may take into account in determining whether the interests of justice require the making of a costs order. The considerations in section 102(3) are however not grounds for awarding costs.2 [4] The President of QCAT explained the no costs jurisdiction in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) in the following terms: “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” [5] Justice Wilson in the Ralacom case explained that: “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, which obviously confers a broad discretionary power on the decision-maker.”4 [6] It was submitted on behalf of Ms Chivers that the proceeding had been in the nature of a test case and that there was significant public interest in resolving the question of the reasonableness of the requirements imposed on Ms Chivers given the size of Queensland Health as an employer and the importance of its services to the Queensland public. [7] I do not accept that this proceeding was a test case. There was no issue determined in the case that clarified the interpretation of the law. The finding I made that the relevant requirement imposed by Queensland Health was not reasonable binds the parties in this case but another member in another case may find to the contrary. [8] It was submitted on behalf of Ms Chivers that legal representation was appropriate to the complexity of the legal and factual issues being ventilated in the tribunal. It was also submitted that the legal costs of Ms Chivers were reasonably incurred. 1 Section 102(1) of the QCAT Act. 2 Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364. 3 [2010] QCAT 412. 4 [2010] QCAT 412 at paragraph 4. -- 2 of 4 -- 3 [9] Those particular submissions are not on point. Granting leave to a party to be represented in a QCAT proceeding involving complex questions of law or fact does not predicate the making of a costs order at the conclusion of the proceeding. The public policy intent of the QCAT Act is plain from the wording used in section 100.5 Parties who choose to engage legal representation must do so on the basis that the costs, reasonably incurred or otherwise, of that legal representation will be their own responsibility unless they can establish that the interests of justice require the tribunal to make a departure from the public policy position. [10] I accept that the proceeding involved complex issues and voluminous evidence. The respondent submits that the issues determined in the case were no more complex than the issues generally found in a case of indirect discrimination. Furthermore it was submitted by the respondent that the complexity of the legal issues and evidence was exacerbated by a number of alternative cases argued by Ms Chivers which ultimately were of limited assistance to the tribunal. It was submitted that this was particularly the case with many of the witnesses from outside the Ipswich Hospital whose statements had been put into evidence by Ms Chivers and to whom the respondent felt incumbent to provide a response. [11] The respondent submitted that Ms Chivers had the right to present what she considered to be her best possible case but she should not then be able to use self-created complexity to support an argument that the case was unduly complex in support of a costs order. The respondent argued against a costs order on the basis that the interests of justice do not point to a costs order being made due to claims of complexity in the proceeding. [12] The submissions made by the respondent are convincing. Many of the witness statements presented in the case by both parties contained repetitious evidence and ultimately were not of particular assistance to the resolution of the issues in the case. The volume of the evidence, both written and oral, added complexity in the sense that all of the evidence had to be considered and then refined out in order to discern what parts of the evidence were in fact pertinent to the various issues that had to be determined. I am not satisfied in this case that complexity of law or fact is a factor to compel me to award costs to Ms Chivers in the interests of justice. [13] It was submitted on behalf of Ms Chivers that her case had been a relatively strong case and her success should not be eroded by requiring her to bear her own costs. This submission is challenged by the respondent who submitted that it was far from clear that Ms Chivers would succeed in her complaint. [14] I agree. This was not a case where the outcome was clear from the beginning of the tribunal‟s dealings with the complaint. This is borne out by the appearance of very experienced senior counsel at the hearing for both parties and by the comprehensive blanketing of all the issues with evidence from multiple witnesses. 5 Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364. -- 3 of 4 -- 4 [15] It was not submitted on behalf of Ms Chivers that the tribunal should have regard to the financial circumstances of the parties when considering whether to exercise discretion to award costs to Ms Chivers. The respondent argues that it has not been asserted that Ms Chivers has any personal liability for costs in this matter nor has it been asserted that her award of damages is in danger of being swallowed up by her costs of the litigation. I am not satisfied that the financial circumstances of Ms Chivers compel me to exercise discretion in her favour given the absence of submissions on this factor. [16] After considering the factors raised on behalf of Ms Chivers, I am not convinced that the interests of justice require me to award costs to her of this proceeding. The position in section 100 that each party is to bear their own costs is the appropriate outcome in this case. -- 4 of 4 --