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[2018] QCA 20
General information, not legal advice.
Court of Appeal (Qld)
2018-03-02
Morrison and Philippides JJA and Applegarth J
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Rintoul v State of Queensland & Ors [2018] QCA 20
PARTIES: JENETTE RINTOUL (applicant) v STATE OF QUEENSLAND DOUG QUADRIO PETER LEMON (respondents)
FILE NO: Appeal No 7182 of 2017 QCATA No 270 of 2016
DIVISION: Court of Appeal
PROCEEDING: Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT: Queensland Civil and Administrative Appeal Tribunal at Brisbane – [2017] QCATA 78
DELIVERED ON: 2 March 2018
DELIVERED AT: Brisbane
HEARING DATE: 8 February 2018
JUDGES: Morrison and Philippides JJA and Applegarth J
ORDER: Application for leave to appeal refused with costs.
CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – LEAVE TO APPEAL – where the applicant complained of unlawful discrimination in a proceeding in the Queensland Civil and Administrative Tribunal – where her claim was dismissed – where the applicant appealed and contended that the hearing before the Tribunal was not conducted with natural justice because she was denied the right to question her most important witness in chief – where the Appeal Tribunal dismissed her appeal – where the applicant seeks leave to appeal to the Court of Appeal – whether the application raises a question of law which warrants the grant of leave / APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where application for leave to appeal to the Court of Appeal dismissed – where the respondent submitted that costs should follow the event – where the applicant argued she should not pay costs due to her personal circumstances and the history of the matter before the Tribunal – whether costs should follow the event / Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, s 29, s 95, s 150 / Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, followed / Rintoul v State of Queensland & Ors [2015] QCA 79, cited / Terera v Clifford [2017] QCA 181, cited
COUNSEL: The applicant appeared on her own behalf / M Spry for the respondents
SOLICITORS: The applicant appeared on her own behalf / Crown Law for the respondents
MORRISON JA: I agree with the reasons of Applegarth J and the order his Honour proposes.
PHILIPPIDES JA: I agree with the reasons of Applegarth J and with the order proposed by his Honour.
APPLEGARTH J: The applicant brought a proceeding in the Queensland Civil and Administrative Tribunal alleging acts of unlawful discrimination in connection with her employment as a supply teacher. The matter went to a final hearing in November 2015. After receiving written submissions in early 2016, the Tribunal dismissed her application.1 The applicant then appealed and also sought leave to appeal to the Appeal Tribunal. She alleged:
the hearing before the Tribunal was procedurally flawed because of a failure to observe natural justice in not giving her a “reasonable opportunity” to examine an important witness, with the result that not “all relevant material” was disclosed to the Tribunal; and
errors in the factual findings made by the Tribunal.
The first ground raised a question of law. The Appeal Tribunal considered the relevant provisions governing the calling of evidence and the course of proceedings in relation to Mr Joseph’s evidence. Having done so it concluded that there was nothing in the transcript which substantiated her claim that she was denied the opportunity to question the witness. In addition, there was nothing in the arguments put before the Appeal Tribunal to demonstrate what, if anything, he might have said if he had been asked additional questions by the applicant. The Appeal Tribunal concluded that the ground of appeal that the applicant was denied the opportunity to lead evidence that she might otherwise have led had no merit.2
The second aspect of her proposed appeal required leave to appeal to the Appeal Tribunal.3 It considered the applicant’s wide range of complaints, including alleged factual errors and complaints about the reasoning process adopted by the Member. The Appeal Tribunal concluded that none of the matters raised by the applicant demonstrated error on the part of the Tribunal Member in arriving at the conclusions that he reached.4 The Appeal Tribunal correctly understood that its function was not to review all of the evidence and to decide whether some or other different conclusion might have been open to the Tribunal Member.5 The Appeal Tribunal concluded that the evidence which the Member accepted and acted upon demonstrated that the applicant’s circumstantial case about the various ways she was allegedly treated were not shown to have been on the basis of discriminatory conduct.6
The Appeal Tribunal did not accept that there had been any substantial injustice caused to the applicant either by the manner in which the Member conducted the proceeding, or in relation to any of the matters which were asserted by the applicant to constitute errors of fact.7 Accordingly, leave to appeal in respect of those matters was refused.
The application for leave to appeal to this Court
The essence of the application for leave to appeal is that the hearing before the Tribunal in November 2015 was not conducted with “natural justice” because she was denied the right to question her most important witness “in chief” and, as a consequence, “all relevant material” was not disclosed to the Tribunal “to enable it to decide the proceeding with all the relevant facts”.8 The alleged denial of her right to question an important witness, Mr Joseph, is said to raise a point of law, namely alleged breaches of ss 28 and 95 of the QCAT Act.
In response, the respondents contend that the Appeal Tribunal considered the relevant law in its decision delivered on 13 June 2017, and that the applicant does not explain how the Appeal Tribunal erred in law. According to the respondents, the Appeal Tribunal was correct to dismiss this ground of the applicant’s appeal to it for the reasons given by it.
The issue
An appeal from the Appeal Tribunal to this Court may only be made on a question of law and only if the party has obtained the Court’s leave to appeal.9 The issue for this Court is whether the application raises a question of law which warrants the grant of leave. The applicant’s task is to identify an error of law made by the Appeal Tribunal in adjudicating upon the applicant’s complaint about a denial of natural justice or to identify some other “question of law” which justifies this Court granting leave to appeal on that question.
The principles governing a grant of leave to appeal are well-established. In short, an applicant for leave to appeal must show:
the appeal is necessary to correct a substantial injustice;
there is a reasonable argument that there is an error to be corrected.
There must be reasonable prospects of success to warrant a grant of leave. Therefore, in deciding whether to grant leave to appeal the Court usually makes some preliminary assessment of the prospects of the proposed appeal.10
Relevant facts
The pre-hearing stage of the proceeding before the Tribunal had a complicated course, and included a successful appeal by the applicant to this Court.11 Directions were later made about the calling of witnesses and the matter proceeded to a hearing in Cairns. The hearing was set down for three days in anticipation of the applicant and the respondents each calling a number of witnesses. Some prospective witnesses for the applicant were prepared to provide written statements whilst others were not.
At the commencement of the hearing the applicant outlined the names of the witnesses she proposed to call, and the Member explained that the witnesses would be sworn, that she could ask them questions, that counsel for the respondents would then be given the opportunity to cross-examine and, if need be, the applicant could re-examine them. A number of “housekeeping” matters were discussed. Counsel for the respondents expressed his understanding that in the case of the applicant and those of her witnesses who had provided statements or statutory declarations, that those documents would form their evidence-in-chief. At that stage the Member did not commit to that course, but instead suggested that the applicant commence by giving her evidence and that he would later see how the matter should proceed. Counsel for the respondents at the hearing was concerned that if all of the evidence had to be given orally then the matter would not finish within its allocated three days.
The applicant was sworn and adopted the witness statement which formed part of the hearing book. She accepted that the things said in it constituted her evidence. Cross-examination then occurred for a substantial time. At the end of her cross-examination the applicant was invited by the Member to comment on any matters arising out of the cross-examination. She then stood down and was invited to call her first witness, Mr Joseph. He was sworn and his attention directed to a statutory declaration, the contents of which he stated were true and correct. At that point the following exchanges occurred:
“MR FARREN: Are we proceeding on the basis of that document, Member, straight to cross-examination?
MEMBER: Well, as I understand it, that’s his evidence.
MR FARREN: Thank you. Mr Joseph, I understand from - - -
MEMBER: Did you want to add something, Mrs Rintoul?
MS RINTOUL: No. I just thought I was going to question first. That’s all.
MEMBER: Well, no. He’s your witness so you don’t get to cross-examine.
MS RINTOUL: Okay.
MEMBER: But if there’s something that is in addition to his evidence that you want to lead, I’ll give you permission to do that, but I was of the understanding, from what you told me earlier, that everything that’s contained in the affidavit is his evidence.
MS RINTOUL: Yes.
MEMBER: All right. Yes, Mr Farren.”
Counsel for the Crown then cross-examined Mr Joseph.
After the cross-examination concluded the Member asked the applicant:
“MEMBER: Do you want to ask any further questions of Mr Joseph about what’s been – what he’s been asked about so far?”
The applicant indicated that she did. She then examined Mr Joseph and a number of her questions were not confined strictly to specific matters which had been raised in cross-examination. Having done so, the Member then asked the applicant:
“Do you have any more questions?”
to which the applicant responded, “Not particularly”.
The Appeal Tribunal’s consideration of the alleged denial of natural justice associated with the evidence of Mr Joseph
The Appeal Tribunal considered the course of the proceeding. Having done so, it concluded that the transcript did not substantiate the applicant’s proposition that she was denied the opportunity to question Mr Joseph. In addition, the applicant’s arguments before the Appeal Tribunal were said to not demonstrate what, if anything, Mr Joseph might have said or which could have been led from him if the applicant had in fact been denied the opportunity to question him. In that context, the Appeal Tribunal noted that Mr Joseph had supported the applicant’s case without compulsion and that she had had some limited role in the preparation of his statutory declaration. She had an opportunity to include in that declaration any material that she thought was relevant. The Appeal Tribunal added that, to the extent that “it missed out anything that she thought was relevant, she could have included it in a supplementary declaration, or indicated to the Member that she wished to adduce some oral evidence to supplement the declaration”.12
Did the Appeal Tribunal err in law?
The Appeal Tribunal considered the relevant principles and provisions, including s 95(1) of the QCAT Act which requires the Tribunal to allow a party to a proceeding “a reasonable opportunity to: (a) call or give evidence; (b) examine, cross-examine and re-examine witnesses; and (c) make submissions to the Tribunal.”13 The applicant does not submit that the Appeal Tribunal adopted an erroneous principle or misconstrued the relevant provisions.
The applicant’s essential complaint to this Court is that the Appeal Tribunal did not accept her argument that she was denied natural justice because she was denied the right to question Mr Joseph before he was cross-examined. However, the Appeal Tribunal’s conclusion that the applicant was not denied natural justice was a conclusion that was open to it on the basis of its analysis of the transcript of the hearing before the Tribunal Member. The applicant has failed to establish that the Appeal Tribunal erred in law.
Does the application otherwise raise a question of law which warrants the grant of leave to appeal?
The application does not raise any substantial issue about the proper interpretation of the relevant provisions of the Act.
The Tribunal is intended to “deal with matters in a way that is accessible, fair, just, economical, informal and quick”.14 Subject to the QCAT Act, an enabling Act and the Tribunal’s rules, the procedure for a proceeding is at the discretion of the Tribunal.15 The Tribunal must act fairly and according to the substantial merits of the case,16 and in conducting a proceeding it must “observe the rules of natural justice”.17 It is not bound by the rules of evidence or any practices or procedures applying to courts of record.18 The Tribunal must act “with as little formality and technicality and with as much speed” as the requirements of the QCAT Act, an enabling Act or its rules and a proper consideration of the matter before the Tribunal permit.19 The Tribunal must ensure, so far as it is practicable, that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts.20
In addition to the statutory commands to act fairly, and to observe the rules of natural justice, the Act provides in s 95(1) that the Tribunal must allow a party a reasonable opportunity to “call and give evidence” and to “examine, cross-examine and re-examine witnesses”.21
Section 95(1) applies to a wide range of proceedings. Proceedings before the Tribunal range from proceedings of a commercial nature akin to complex commercial litigation, in which parties are represented, to a broad range of other proceedings, including human rights cases, in which at least one and sometimes all parties are self-represented. The Tribunal must make directions and conduct proceedings in a manner which is suited to the particular case at hand, subject to the overriding duties to act fairly and to accord natural justice and the specific requirements of the Act. In many cases it will be useful to direct a party to provide, if possible, in advance of a hearing a statement of evidence or a summary of evidence from proposed witnesses. This enables the other parties and the Tribunal to have some understanding of the evidence which is likely to be given. If, in a particular case, the Tribunal considers it appropriate, a witness statement may be adopted by the witness at a hearing and, in effect, stand as the witness’ evidence-in-chief. Such a course, if appropriate in the circumstances, may serve to relieve a self-represented litigant from the difficult task of eliciting oral evidence in a non-leading way. It may save time. It may avoid the risk that the self-represented litigant overlooks calling certain evidence from the witness.
The decision about whether a written statement, if adopted as true, should stand as the evidence-in-chief of a witness is a decision for the Tribunal to make in particular circumstances. In some cases a Court or Tribunal may prefer to have a witness tell his or her story orally. Some witnesses may decline to provide a written statement, necessitating the party calling the witness to examine the witness in an attempt to elicit evidence. In this case, some of the witnesses called by the applicant adopted statements whilst others did not provide statements.
In the case of Mr Joseph, the applicant was given an opportunity to call him. Because he had provided a statement in the form of a statutory declaration which he adopted after having been sworn, the applicant was relieved of the task of having to examine him at some length. Significantly, after Mr Joseph’s written evidence was admitted, the applicant was asked if she wanted to add something. The Tribunal Member had earlier indicated to the parties that he would, in effect, decide in the case of each witness whether the witness’ statement (if any) would be tendered so as to save time. He adopted this approach in respect of the evidence of Mr Joseph. In that regard there was a departure from what otherwise would have been the process of asking the witness a number of questions, followed by a cross-examination. The Member explained to the applicant that she did not get to “cross-examine” her own witness and she accepted that. The Member gave the applicant an opportunity to ask questions about anything that was not in Mr Joseph’s statement, but the applicant accepted that his evidence was contained in his statement.
In circumstances in which the applicant did not suggest that there were any additional matters about which she wished to ask Mr Joseph questions, it cannot be fairly said that she was denied a reasonable opportunity to examine Mr Joseph before cross-examination commenced. She did not need to examine him about the contents of his statement, which he accepted as true and correct.
After Mr Joseph had been cross-examined, and subject to certain objections to the applicant asking leading questions, and issues of relevance, the applicant took the opportunity to have him elaborate on a number of matters. Later, the Member asked the applicant if she had any more questions of Mr Joseph, to which she replied “Not particularly”.
Having analysed the transcript and considered the relevant provisions of the Act, the Appeal Tribunal reached a conclusion on the natural justice ground that was open to it. That is sufficient to dispose of the application for leave since, in my view, the proposed ground of appeal in relation to an alleged breach of natural justice does not raise a question of law which warrants the grant of leave.
I would add, however, that the approach taken by the Member to the manner in which Mr Joseph would give evidence and be examined was sensible. In her submissions to this Court the applicant says that after being cross-examined at some length her “head was spinning”. If that was the case, then the course of allowing the statement which Mr Joseph adopted to stand as his evidence in chief, rather than require the applicant in such a state to elicit his evidence through questioning, was appropriate. In any event, the applicant confirmed that the evidence which she proposed Mr Joseph to give was contained in his affidavit.
The fact that the Tribunal Member permitted the applicant to question two other witnesses, (one who had provided a statutory declaration in 2013 and a psychologist who had written a 2013 report) does not detract from the course adopted with respect to the evidence of Mr Joseph. The applicant was given an opportunity to examine Mr Joseph by asking him further questions about matters that were not in his statement. She was given a similar opportunity in respect of Mr Baker and Ms Dow and availed herself of those opportunities.
In oral submissions to this Court the applicant said that she wanted to ask Mr Joseph about a photograph she kept on her desk, and that she overlooked asking him about that matter. She explained to this Court that she had not spoken to Mr Joseph very much before the final hearing and, in retrospect, should have asked him to provide another statutory declaration in addition to the one which was prepared in 2013. However, before this Court she still could not say what Mr Joseph would have said in any such statutory declaration about the photograph or about anything else.
Conclusion on natural justice argument
I am not persuaded that there is a reasonable argument that there is an error of law to be corrected in respect of the Appeal Tribunal’s consideration of the natural justice ground.
In addition, the applicant has not shown that an appeal is necessary to correct a substantial injustice. The applicant before the Appeal Tribunal did not demonstrate what, if anything, Mr Joseph might have said had the hearing taken a different course. The applicant did not identify to the Appeal Tribunal what further questions she would have asked after the conclusion of Mr Joseph’s cross-examination which she did not ask. The Appeal Tribunal was correct to conclude that the applicant did not demonstrate to it that she lost an opportunity to lead evidence which would have been relevant to her case before the Tribunal.
Other matters
The application for leave to appeal and the applicant’s submissions raise matters about the conduct of Crown Law in defending the respondents, and about QCAT in dealing with the proceeding, including:
applications by the respondents to strike out the proceeding;
delays in the matter coming on for a final hearing;
things allegedly said by one of the respondents at the conciliation conference in the Anti-Discrimination Commission of Queensland in March 2013;
the conduct of the mediation by QCAT; and
the decision of a Senior Member of QCAT at a directions hearing in 2015 about the witnesses to whom notices to appear would issue (the applicant wished to examine, among others, the former Minister for Education).
The applicant asks this Court to “‘unpack’ and examine this complex case and examine the conduct of the parties due to its precedent value and in the interests of upholding principals (sic) of ‘natural justice’”.
It is not the function of this Court in an application for leave to appeal from a decision of the Appeal Tribunal to exercise some general supervisory jurisdiction over QCAT. The application for leave to appeal to this Court is not the occasion to examine things said at conciliation conferences and mediations, or to characterise the case, as the applicant does, as something akin to a “David and Goliath battle” that has consumed almost five years of her life and cost a great amount of taxpayers’ money. After a substantial delay this matter proceeded to a hearing on the merits. It is noteworthy that the applicant says that she re-read the transcript of the hearing several times before she detected the alleged procedural irregularity in not being given the opportunity to ask Mr Joseph additional questions “in chief”. This level of scrutiny by the applicant in a search for procedural error suggests that the Tribunal Member acted fairly towards the applicant in the conduct of the hearing and provided the applicant with appropriate assistance as a self-represented litigant.
This is not to minimise the difficulty which most self-represented litigants encounter in conducting stressful proceedings in courts and tribunals. According to the applicant’s oral submissions to this Court, she did not fully grasp what was said to her at the hearing after Mr Joseph confirmed the contents of his statutory declaration, and the Member indicated that she had permission to lead evidence in addition to the evidence in Mr Joseph’s statement. However, she was accorded an opportunity to ask questions at that point. If she believed for some reason or other that she would be given another opportunity to ask questions after the conclusion of cross-examination and re-examination, then she did not seek, based on such a belief, to ask further questions at the conclusion of her “re-examination”. Even now, it is not apparent what questions she would have asked Mr Joseph, or what Mr Joseph would have said, if asked.
The applicant argues that the difficulties which she encountered as a self-represented litigant in asking further questions of Mr Joseph when the opportunity arose for her to do so was because she did not understand the procedures of the Tribunal, and the Tribunal did not take all reasonable steps to ensure that she understood those procedures. She refers to s 29(1)(a)(i) of the QCAT Act in this regard. However, the applicant did not raise as a ground of appeal before the Appeal Tribunal a breach of s 29. Instead, she argued that the hearing was “procedurally flawed under s 28(3)(a) and (e)”. The Appeal Tribunal did not consider any question of law in respect of s 29, and it is inappropriate in the circumstances to grant leave to consider any question of law in relation to s 29.
The applicant also seeks leave to appeal because the Tribunal Member’s reasons for decision are said to not display “the sophisticated level of analysis” to be expected, particularly when compared with what is said to be the “meticulous” level of analysis of a differently constituted tribunal in a different case in which a complaint of unlawful discrimination against the State succeeded. It is not this Court’s role to compare the reasoning of differently constituted tribunals in different cases. In an appropriate case, the Appeal Tribunal may consider the adequacy of reasons for decision in deciding whether to grant leave to appeal to it. The Appeal Tribunal does not conduct appeals by way of rehearing. The Appeal Tribunal in this case considered the applicant’s complaints about the Tribunal’s fact-finding process. It was open to the Appeal Tribunal to refuse leave to appeal with respect to those issues.
Orders and costs
I would dismiss the application for leave to appeal to this Court.
The costs of a proceeding in this Court are in its discretion, but follow the event, unless the Court orders otherwise. The respondent’s position was that costs should follow the event. The applicant argued that costs should not follow the event for two reasons. The first concerned the history of the matter before the Tribunal. The second was that she lacked the capacity to pay due to her personal circumstances.
As to the first matter, the conduct of the parties in the proceeding before the Tribunal and other relevant matters were taken into account by the Tribunal in deciding whether to award costs under s 102. Those matters should not be re-agitated in relation to a different matter being the costs of the application to this Court.
As to the second matter, the lack of capacity, or limited capacity, of a party to pay costs is not normally a sufficient reason to displace the usual position that costs should follow the event. This usual order as to costs embodies the principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. As McHugh J stated in Oshlack v Richmond River Council:22
“The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.
As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.”
The applicant’s limited capacity to pay a costs order is not a sufficient reason to depart from the usual order that costs follow the event. It is a matter for the respondents as to whether the applicant’s limited resources and her other personal circumstances, including the ill-health of her husband, provide reasons as to why a costs order should not be enforced.
I would order the applicant to pay the respondents’ costs of and incidental to the application.
Rintoul v State of Queensland & Ors [2016] QCAT 211. ↩
At [22]. ↩
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b) (“QCAT Act”). ↩
Rintoul v State of Queensland & Ors [2017] QCATA 78 at [40]. ↩
At [42]. ↩
At [41]. ↩
At [42]. ↩
QCAT Act, s 28(3)(e). ↩
QCAT Act, s 150(3)(b). ↩
Terera v Clifford [2017] QCA 181 at [10]. ↩
Rintoul v State of Queensland & Ors [2015] QCA 79. ↩
Rintoul v State of Queensland & Ors [2017] QCATA 78 at [21]. ↩
QCAT Act, s 95(1). ↩
Rintoul
State of Queensland [2018] QCA 20
(1998) 193 CLR 72
At s 3(b). ↩
At s 28(1). ↩
At s 28(2). ↩
At s 28(3)(a). ↩
At s 28(3)(b). ↩
At s 28(3)(d). ↩
At s 28(3)(e). ↩
At s 95(1)(a) and (b). Section 95(2)(a) provides that despite s 95(1) the Tribunal may refuse to allow a party to proceed to call evidence on a matter if the Tribunal considers there is already sufficient evidence about the matter before the Tribunal. ↩
(1998) 193 CLR 72 at 97. ↩