AX v Commissioner for Children and Young People and Child Guardian

[2012] QCATA 227

CITATION: AX v Commissioner for Children and Young People and Child Guardian [2012] QCATA 227

PARTIES:	AX (Applicant/Appellant)
v
Commissioner for Children and Young People and Child Guardian (Respondent)

APPLICATION NUMBER: APL120-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Kerrie O’Callaghan, Senior Member
Ron Joachim, Member

DELIVERED ON: 12 November 2012

DELIVERED AT: Brisbane

ORDERS MADE: The application for costs is dismissed.

CATCHWORDS:

COSTS – Review of decision of Commissioner for Children, Young People and Child Guardian to issue a negative notice

Queensland Civil and Administrative Tribunal Act2009, ss 100, 102

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. AX, the appellant, was issued a negative notice by the Commissioner for Children, Young People and Child Guardian on 5 July 2011.  This meant he could not get a blue card.

1. He sought a review of this decision in the Tribunal exercising its review jurisdiction.  The Tribunal affirmed the Commissioner’s decision.

1. He successfully appealed to the Tribunal exercising its appeal jurisdiction and was issued a positive notice and blue card.

1. AX now seeks to recover his costs of $18,000.00 which included engagement of a solicitor and a barrister.  The Commissioner opposes this applciation.

1. Section 100 of the QCAT Act provides that:

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.

1. Section 102 outlines the matters the Tribunal may have regard to in awarding costs in the interests of justice.

1. This is not an exhaustive list of matters but includes consideration of the actions of parties, the complexity of the dispute, whether the applicant was afforded natural justice, the financial circumstances of the parties and the strength of the claims made by the parties.

The applicant’s case for costs

1. AX claims his was a complex dispute noting the arguments filed in submissions justified retention of counsel and legal representation.

1. He also claims his case was much stronger than the Commissioner's.

1. Finally he claims that the costs of pursuing these appeals has had a financial strain on his young family and this had been at no fault of his own.  He submits that the Commissioner would be able to meet the $18,000.00 of costs.

The Commissioner’s case for not awarding costs

1. The Commissioner argues that the Act is “sufficiently clear to negate the proposition that success in a proceeding is sufficient to establish a prima facie entitlement to the beneficial exercise of the discretion conferred by section 100 of the Act.”

1. The Commissioner has submitted that:

§    She did not act in a way that unnecessarily disadvantaged the appellant responding in a timely manner to directions and the conduct of proceedings.

§    The case was not so complex as to constitute exceptional circumstances.

§    The Commissioner’s decision was upheld in the first instance indicating that her position initially was relatively strong and her case was not without merit.

§    The appellant was afforded natural justice by her.

§    The relative financial positions should not be the sole determinant in deciding the costs application.

Should costs be ordered in the interests of justice?

1. The Tribunal accepts the Commissioner’s arguments above.

1. The Tribunal is satisfied that the Commissioner acted in good faith in the proceedings and did not act in any way to unnecessarily disadvantage AX.

1. The Tribunal accepts that this matter did have a level of complexity which required legal representation. However, parties are not entiteld to costs merely because they have success in a matter. Sections 100 and 102 give the Tribunal wide discretion. This matter was not overly complex. It revolved around questions as to was this an exceptional case in which it would not be in the best interests of children for the appellant to have a positive notice, what evidence was to be accepted, how much weight it should be given and the nexus between previous offending and risk to children.

1. The Tribunal accepts the relative financial positions should not be the sole determinant in deciding the costs application and accepts the relative financial disadvantage of the appellant.

1. In considering all of the above factors the Tribunal has concluded it is not in the interests of justice to award costs in this case.

1. The application for costs is dismissed.