Watego v State of Queensland and ors

BB v State of Queensland & Ors (No 2) [2021] QCAT 148 Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs) [2022] QCAT 225

Campbell v Queensland Building and Construction Commission [2021] QCATA 34

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

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

CH v Queensland Police Service [2021] QCATA 137

Cowen v Queensland Building and Construction Commission [2021] QCATA 103

Graham v Queensland Racing Integrity Commission (Costs) [2023] QCATA 97

Isles v State of Queensland (No. 2) [2021] QCAT 227

JKL Limited v STU & Ors [2019] QCATA 150

Marzini v Health Ombudsman (No 4) [2020] QCAT 365

Murtough v NSW Bar Association [2008] NSWADT 166

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 41

State of Queensland & Anor v Bell [2016] QCATA 176

Valuers Board of Queensland v Murphy [2022] QCAT 295

Watego v State of Queensland and ors [2022] QCAT 341

[1] The complainant, Professor Chelsea Watego, lost her race discrimination complaint against the respondents (the State of Queensland and two police officers). The complaint had been referred to the tribunal by the Queensland Human Rights Commission and the decision was published as Watego v State of Queensland and ors [2022] QCAT 341. The two police officers are not to be identified for quite unusual reasons, as explained in the published decision.

[2] The respondents now apply for an order for costs against the complainant in the sum of $26,119.50 which they paid in counsel's fees. The respondents do not explain why the costs claimed are limited to counsel's fees.

[3] There are certain constraints on the tribunal making an order for costs. I will need to explain those constraints before deciding costs. First, I shall explain the nature of the complaint and why it was unsuccessful.

The nature of the complaint and why it was unsuccessful

[4] The complainant describes herself as Aboriginal and a South Sea Islander. In the complaint she said that she had been racially discriminated against when, in the early hours of a Saturday evening in December 2018 outside a club in Fortitude Valley in Brisbane, she was arrested by the police, placed in handcuffs and transported to the watchhouse. She said this was less favourable treatment on the grounds of race, and therefore a contravention of section 10 of the Anti-Discrimination Act 1991 (Qld) (ADA) in the 'administration of State Laws and programs area' in section 101.

[5] The complaint was heard over three days in the tribunal and a number of witnesses gave evidence. At the hearing, the complainant was represented by senior and junior counsel who acted pro bono. The State of Queensland and the police officers were represented by junior counsel.

[6] The main issues to be decided in the complaint were the factual circumstances of the arrival on the scene of the police officers and what happened immediately before and after the arrest. In the complaint, the less favourable treatment was said to be shown by a difference in treatment between the complainant and a nearby white man. It was said that the arrest and handcuffing was unwarranted, contrary to policy, unlawful, done with excessive force, and that the officers should have de-escalated the situation or discontinued the arrest.

[7] Subsidiary issues were the complainant's state that evening and her behaviour both inside and outside the club, and the significance of how the police charges arising from events that evening were eventually dealt with.

[8] It is sufficient to say that the complainant failed on all the issues. The factual issues largely failed because of the video footage from various cameras inside and outside the club and from video and audio footage from the officers' videocams. The challenge to the procedures used by the police officers failed because the footage showed that they were generally accurate in their evidence, and what they did that evening was justified and probably necessary. Because of the existence of the footage, the merits did not depend on whether the officers' evidence would stand up in cross examination as would often be the case. It was clear from the footage what happened.

[9] The importance of this is that, at all times material to this application for costs, an objective assessment would inevitably have concluded that the merits of the complaint were poor. This has been the most significant factor leading me to decide that the complainant should pay some of the respondents' costs.

Constraints on the tribunal's ability to award costs

[10] In this matter, the power to award costs is in Division 6 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The relevant part of these provisions are:

100 Each party usually bears own costs

Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party's own costs for the proceeding.

102 Costs against party in interests of justice

(1) The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.

(2) However, the only costs the tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.

(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following -

(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);

(b) the nature and complexity of the dispute the subject of the proceeding; (c) the relative strengths of the claims made by each of the parties to the proceeding;

(d) for a proceeding for the review of a reviewable decision -

(i) whether the applicant was afforded natural justice by the decision-maker for the decision; and

(ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;

(e) the financial circumstances of the parties to the proceeding;

(f) anything else the tribunal considers relevant.

[11] At first sight anyway, section 100 states a general starting point that each side should bear their own costs, but section 102 gives the tribunal power to order costs if it considers the interests of justice require it to make the order.

[12] There is current uncertainty in the tribunal caused by two lines of authority about the tribunal's starting point for costs and whether costs should be awarded in the absence of countervailing circumstances where a party had reasonably incurred legal expenses in order to succeed in the hearing.[1] In the light of the uncertainty I asked the parties for submissions on this matter.

[13] In those submissions all parties agree that I should consider the question of costs in the traditional way. That is, as submitted on the respondents' behalf:

.. the Ralacom approach seems to be the preferred one, with the interests of justice having to point compellingly to a costs award to overcome the usual approach of parties bearing own costs.

[14] This is therefore the way I propose to deal with the application for costs. No party suggests that costs should follow the event because of a principle that where a successful party had reasonably incurred legal expenses in order to achieve that success, costs should follow the event in the absence of countervailing circumstances.[2]

[15] It only necessary to consider the things in section 102(3) if they are relevant to the costs issue.

[16] In their submissions in support of the costs application the respondents raise certain matters. One is about an alleged attempt by the complainant to mislead the tribunal by saying that the police charges arising from the events that evening were 'not pursued', when this was not the case. Another is the lateness of the allegation that the arrest was unlawful. And it is said that extensive written closing submissions were given on the complainant's behalf despite the tribunal indicating that oral submissions would suffice.

[17] It does not appear that any of these things disadvantaged the respondents or are unusual in cases this sort, so it is difficult to see that they would affect the question of costs.

[18] There are things said by both sides about the complainant's financial position but there is nothing which assists one way or the other about whether to award costs, although I have given some consideration to this when fixing costs.

[19] In their submissions, the parties do discuss what might be the special circumstances of an anti-discrimination complaint, which can be called the 'public interest factor' and I think this does have some importance for this application for costs. In that respect, in Brisbane Marine Pilots I considered that, as a matter of statutory interpretation, the expression 'interests of justice' in section 102 can be construed both in the private sense of what is fair to the parties but also in the public interest sense, which includes the interests of the administration of justice by the tribunal.

[20] The question is whether there is a public interest factor in anti-discrimination complaints, making the tribunal more likely to award costs to a successful complainant, and less likely to award costs against an unsuccessful complainant, than in other types of cases. The idea is that meritorious complaints should not be deterred because it is in the public interest for such complaints to be heard and determined.

[21] On the complainant's behalf it is said that she was entitled to be heard on the complaint and she was distressed by the incident that evening. This is correct. Also it is said [referring to the Queensland Police Service Responses to domestic and family violence - A Call for Change (Report November 2022)]:

There is no doubt that there are cultural issues in policing in Queensland in need of reform and the public must have access to processes to hold institutions of the State to account without fear of disproportionate costs ramifications. The Tribunal should consider that the proceedings were brought pursuant to legislation designed to protect human rights.

[22] But in reply the respondents submit that any such public interest factor disappears because of the poor merits of the complaint.

[23] The parties only cite one authority about the public interest factor, but there are several pertinent ones.

[24] Firstly, there was a successful complainant in Carey v Cairns Regional Council and Ors (No 2) [2011] QCAT 372 at [24] and [25]. Member P Roney SC having reviewed the case law on the matter, confirmed that where a complainant seeks to enforce human rights then the public interest factor may be considered under section 102. Also in human rights proceedings it is desirable that the costs of litigation do not swallow up the award.

[25] Although Member Roney's decision on costs was upheld on appeal, the Appeal Tribunal said that it should not be thought that successful anti-discrimination claimants should prima facie expect to obtain orders for costs any more readily than claimants in any other jurisdiction: Cairns Regional Council and Ors v Carey [2012] QCATA 151 at [14], Hon J Thomas AM QC, Senior Member Endicott.

[26] In another case there was a successful complainant, at least partially, who was awarded two thirds of her costs at first instance. On appeal in State of Queensland & Anor v Bell [2016] QCATA 176 at [49], Justice Carmody and Member Dr Cullen said that complainants with genuine claims of unlawful discrimination and harassment should not be discouraged in their pursuit of human rights based objectives by fear of adverse costs consequences, and granting costs to the successful complainant was consistent with policy aims.

[27] In another case where there was a successful complainant, JKL Limited v STU & Ors [2019] QCATA 150, Member Roney QC reviewed the case law and concluded that in an appropriate case, the fact that the claim was a human rights claim which was successful was a factor tending towards an order for costs.[3] That, together with the complainant's impecuniosity compared with the respondent's resources, the delay in finalising the matter, and other factors, made it in the interests of justice to award costs of an unsuccessful appeal.[4]

[28] In two recent tribunal decisions under the ADA, the State of Queensland has sought costs having successfully defended the complaint. In both decisions the costs application was refused.

[29] In BB v State of Queensland & Ors (No 2) [2021] QCAT 148 at [2] and [5], Member Hughes considered that despite the complaint being unsuccessful, it had been arguable and had not lacked merit. A person seeking relief for an alleged breach of human rights should be afforded a reasonable opportunity to have their case heard according to law. Although the proceedings were complex and heard over five days, this did not amount to an 'unnecessary disadvantage' sufficient to outweigh the strong contra-indicator against costs in human rights jurisdiction where parties are often not legally represented (as was BB) and the adequacy of the contentions are to be considered in a reasonable, realistic and pragmatic way. The costs provisions should be construed beneficially to give full effect to the objects and purposes of the ADA.

[30] In Isles v State of Queensland (No. 2) [2021] QCAT 227 Member Hughes took the same approach. The complainant's evidence was genuine and honest. Also the complainant was self-represented and impecunious. No costs were awarded.

[31] In other jurisdictions, reference has been made to the 'chilling effect' of too readily making costs orders in such cases. As it was put by Deputy President Britton in Murtough v NSW Bar Association [2008] NSWADT 166, which was an anti-discrimination complaint in a tribunal with a similar costs regime:

A determination of the question whether costs should be awarded requires a balance to be struck between the 'chilling effect' of too readily ordering costs against complainants (see Maylor (No.2) v Mid North Coast Area Health Service [2001] NSWADT 118 at [23]) and the need to ensure that parties conduct their cases in such a way that costs are not unnecessarily incurred or forced on others. The real questions to be determined are whether, due to a combination of factors, circumstances have arisen that displace the general presumption against an order for costs and, if so, whether the order ought to be an order for costs of the entire proceedings or an order for the costs in relation to part of the proceedings.

[32] It is clear from these authorities that there is a public interest factor when considering costs applications in anti-discrimination complaints.

Incorrect things in costs submissions and evidence in support

[33] In the evidence in support of the costs application it is said that in my written reasons I invited the respondents to make an application for costs. This is incorrect.[5]

[34] In the submissions it is said that in Brisbane Marine Pilots I said that although the merits may be taken into account when considering whether the interests of justice require an order for costs to be made, it does not appear strongly to lean the tribunal in that direction. This seems to be relied on as a view applying to every costs application, but it is not. I was referring to the merits in Brisbane Marine Pilots, which were obscured until the day before the hearing of that matter.

[35] In Brisbane Marine Pilots I regarded it as important for the tribunal to deal with costs as far as possible in line with the expectations of the parties. Here the complainant (if properly advised) would expect that the chances of having to pay any costs if she lost the case was normally low, but that since the merits were poor she was at some risk in costs. In this respect there is no evidence of any warning about costs except in the respondents' submissions filed close to the hearing where costs were sought if successful.

The main issue on costs: the poor merits did not halt the complaint

[36] As said above, from the footage and from the evidence filed prior to the hearing, an objective assessment of the merits of the complaint would inevitably have concluded that the merits were poor.

[37] It is my finding that the complainant genuinely believed that her treatment by the police that evening was on the grounds of race. This genuine belief can be seen in her reactions that evening to the events which happened, and from the way she gave evidence about it at the hearing. And she was so confident about this that she published a book in which she alleged that she had been assaulted by police officers (the second and third respondents) that evening and that they had used excessive force during her arrest, and that this was substantiated from the available CCTV footage.

[38] As I found however, what was said in the complaint and in the book about the actions of the second and third respondents that evening was incorrect.

[39] Although the complainant was not represented by lawyers when she made her complaint to QHRC and when she asked for it to be referred to the tribunal on 1 May 2020, she was represented by lawyers from at least 23 October 2020.[6]

[40] Leave was given by the tribunal for all parties to be legally represented on 24 September 2020. One of the things usually considered by the tribunal in such applications for leave is that the lawyers will provide an objective view of the merits of a complaint bearing in mind their duty to the administration of justice. The fact that the complainant was legally represented during most of the progress of her complaint through the tribunal distinguishes this application for costs from the BB and Isles cases cited above where the unsuccessful complainant was not legally represented.

[41] For one reason or another, the complaint proceeded to a hearing despite its poor merits. In my view the merits were so poor that unless there are countervailing considerations it would be in the interests of justice to make an order for costs. I do not think there are any such countervailing considerations.

[42] The tribunal must fix costs if possible.[7] The tribunal does not have to be accurate when fixing costs, and the amount fixed can reflect the interests of justice. Here, although I accept that the respondents were justified in instructing counsel rather than relying solely on their own in-house lawyers, and that the defence to the complaint seems to have been done with some efficiency, I do not think it would be fair to order the complainant to pay the whole amount asked for.

[43] There are three reasons for this. One is that there was some work done by counsel before leave for legal representation was granted to the respondents.

[44] Then I can see that much work was done by counsel about objections to the evidence. Despite this work finding its way into the tribunal directions in a way which I do not understand, I cannot see that an unsuccessful party should be required to pay the cost of it. It was inappropriate where the tribunal is well used to identifying which part of evidence is admissible and the extent to which it is relevant, and bearing in mind that the tribunal is not bound by the rules of evidence, other than to the extent the tribunal adopts those rules.[8]

[45] Finally there were conferences with 'witnesses'. Although counsel may confer with a single witness prior to that witness giving evidence, I cannot imagine why this was necessary in this particular case.

[46] I am also going to reduce the costs award to reduce its 'chilling' effect on other prospective claims as referred to in Murtough above, bearing in mind the remarks of Member Hughes in the cases of BB and Isles.

[47] I think the interests of justice do require me to make a modest order for costs and I fix them in the sum of $7,500.

[1] The most relevant authorities on both sides being (on the one hand) Marzini v Health Ombudsman (No 4) [2020] QCAT 365, Cowen v Queensland Building and Construction Commission [2021] QCATA 103, CH v Queensland Police Service [2021] QCATA 137 and Graham v Queensland Racing Integrity Commission (Costs) [2023] QCATA 97; and on the other hand, Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, Campbell v Queensland Building and Construction Commission [2021] QCATA 34, Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs) [2022] QCAT 225 and Valuers Board of Queensland v Murphy [2022] QCAT 295.

[2] A point seemingly made in Cowen v Queensland Building and Construction Commission [2021] QCATA 103 at [67].

[5] See Watego v State of Queensland and ors [2022] QCAT 341 at [260] to [264].

[6] The complainant then applied for more time to file amended contentions because her lawyers had to consider the matter. On 5 November 2020, those lawyers were named as her representatives when contentions were filed, and they continued to act for her in the complaint.