Government loses costs bid against self-represented litigant in ‘arguable’ discrimination case

A father who mounted an “arguable”, lengthy and ultimately unsuccessful discrimination case against a State Government school’s treatment of his son should not be burdened with the “significant” legal costs incurred in defending the action, a tribunal has ruled.

Queensland Civil and Administrative Tribunal Member Bevan Hughes, in a recently published decision, dismissed a costs application by the State of Queensland to defend alleged discrimination against a child – saying the imposition of a costs order for a party seeking redress for an alleged breach of human rights would be unreasonable.

Mr Hughes said on 17 December last year that the tribunal dismissed an application from a father, identified as BB, alleging a school’s treatment of his student son discriminated against the child.

The respondents to the application – the State of Queensland and two unnamed education officials – sought an order that BB pay their “considerable expense in responding to the allegations” and for the ensuing “complex” proceedings that required a five-day hearing.

While Mr Hughes’s decision does not discuss or detail the nature of allegations of discrimination levelled by BB, he did find “BB’s case was arguable and did not lack merit”.

“The effect of a costs order against BB would be to impose a considerable impost on pursuing redress for an arguable case of alleged breach of human rights,” Mr Hughes said.

“While unmeritorious claims should be discouraged due to the costs on the parties and the community as a whole, the tribunal has consistently expressed its reticence to too readily prevent an independent hearing about an alleged breach of human rights.

“That would be contrary to the overarching tenets of a jurisdiction that contemplates self-representation, embraces cost-effectiveness and eschews an unnecessarily technical approach.”

QCAT, in dismissing each of the allegations raised by BB, made no findings that were critical or unfavourable of the school or its staff.

“The tribunal accepts that the proceedings were complex … (and) that the respondents were put to considerable expense in responding to the allegations,” Mr Hughes said.

“(It) also notes that the respondent offered to settle the proceedings on 27 April 2020, encompassing a letter of regret and refresher training.

“However, the tribunal does not accept that these circumstances amount to ‘unnecessary disadvantage’ sufficient to outweigh the strong contra-indicator against costs in a human rights jurisdiction where parties are often not legally represented and the adequacy of the contentions are to be considered in a reasonable, realistic and pragmatic way.

“The appropriate order is that each party pays their own costs.”

Read the decision.

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