Hart v Anti-Discrimination Commission Queensland
[2012] QCA 295
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- Unreported Judgment
- Appeal Determined (QCA)
- Hart v Anti-Discrimination Commission Queensland[2012] QCA 295
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Hart v Anti-Discrimination Commission Queensland[2012] QCA 295
Hart v Anti-Discrimination Commission Queensland[2012] QCA 295
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | General Civil Appeal Miscellaneous Application - Civil |
ORIGINATING COURT: | |
DELIVERED ON: | 30 October 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 26 April 2012 |
JUDGES: | Muir and White JJA and Margaret Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DISCRETION NOT TO ENTERTAIN APPLICATION – GENERALLY – where appellant made complaints to the first respondent under Anti-Discrimination Act 1991 (Qld) (‘the Act’) – where Anti-Discrimination Commissioner’s delegate rejected complaints as not within s 136 of the Act – where appellant applied to Supreme Court for review of that decision under the Judicial Review Act 1991 (Qld) – where, prior to hearing in Supreme Court, Commissioner revoked earlier decision that complaints not within the Act, but refused to accept complaints made out of time as appellant had not shown good cause – where appellant again applied to Supreme Court for judicial review – where primary judge dismissed that application – whether primary judge failed to take various facts and submissions into consideration – whether primary judge took into account an irrelevant consideration – whether primary judge erred in his approach APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – whether primary judge failed to take into account appellant’s limited financial resources when making order for costs against her Anti-Discrimination Act 1991 (Qld), s 134(1)(a), s 136, s 138 Judicial Review Act 1991 (Qld), s 21(2)(e), s 23(b), s 49(1)(e), s 49(2) Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833, cited Buderim Ginger Ltd v Booth [2003] 1 Qd R 147; [2002] QCA 177, cited Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, cited Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58, cited Lansen v Minister for Environment and Heritage (2008) 174 FCR 14; [2008] FCAFC 189, considered Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, considered Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30, cited R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13, cited Remely v O'Shea & Anor [2008] QCA 78, cited Wong v Medical Board of Queensland & Ors [2006] QADT 41, cited |
COUNSEL: | The appellant appeared on her own behalf J A Ball (sol) for the first respondent C J Klease for the second respondent |
SOLICITORS: | The appellant appeared on her own behalf McCullough Robertson Lawyers for the second respondent |
[1] MUIR JA: I agree that the appeal should be dismissed with costs for the reasons given by White JA.
[2] WHITE JA: On 2 November 2011 Daubney J dismissed the appellant’s application made under the Judicial Review Act 1991 (Qld) to review a decision made pursuant to s 138(2) of the Anti-Discrimination Act 1991 (Qld) (“the Act”). The reviewed decision was made by the Deputy Commissioner of the Anti-Discrimination Commission (“the Deputy Commissioner”) and was, in effect, a refusal to accept two complaints made by the appellant under the Act after the expiration of one year from the alleged contraventions of the Act because the appellant had not shown good cause as required by s 138(2). His Honour also ordered that the appellant pay the first and second respondents’ costs. The appellant has appealed those orders.
[3] The first respondent (“the Commission”) appeared on this appeal represented by its solicitor but indicated that it did not intend to participate actively in the proceedings. Below, it did not take an active part but, in written submissions, held itself ready to assist the court, if asked, about the Commission’s powers and procedures.[1] The second respondent, State of Queensland (“the State”) acting through Queensland Health, opposed the application. The appellant was represented below by counsel very experienced in industrial relations matters pursuant to the Bar Association’s pro bono scheme. The appellant has represented herself on this appeal.
[4] The appellant’s grounds of appeal as set out in her notice of appeal are succinct:
“1.Failure to take into account relevant considerations
- Took into account irrelevant considerations
- Error of law”
The relief sought by the appellant is for the orders made below to be set aside and for this court to decide the matter for itself; failing that, the matter be referred to the Commission “for conciliation”; and for an order that each party pay her or its own costs.
[5] The appellant’s written outline particularises her grounds including allegations of error not advanced before the primary judge. The State opposes the court acting on arguments not advanced below.[2] In her amended written submissions in reply to the State’s submissions the appellant lists those “grounds” set out in her written outline which she abandons. Some of the particulars of error are elaborations of others and it will be possible, without doing injustice to the remaining grounds, to consider them under more general headings.
[6] The appellant has also filed an application to adduce fresh evidence relating to advice which she received from Legal Aid Queensland on 10 March 2006. Legal Aid was, according to the appellant, unable to locate the notes of the solicitor about that conference. She was accompanied to that meeting by a support person who has sworn an affidavit setting out her recollection of the advice given to the appellant. The appellant wishes to have that evidence before this court because, although it was not an aspect of her review application, she submitted that the primary judge made something of that advice and the court should better understand what transpired. There was no opposition to receipt of this evidence which, in reality, was corroborative of the appellant’s own recollection.
[7] The appellant’s oral submissions before this court focussed upon her two central complaints (although others were canvassed) namely, that the primary judge erred in not taking into account that the Deputy Commissioner had failed to consider certain explanations offered by the appellant for her delay; and that the primary judge made a costs order against her when he ought to have made no order as to costs.
The legislation
[8] By s 134(1)(a) of the Act a person who has allegedly been subjected to a discrimination contravention may make a complaint to the Commission. Section 136 provides that a complaint must be in writing and set out reasonably sufficient details to indicate an alleged contravention, the complainant’s address for service and be lodged with the Commissioner. Section 138 sets out the time limit for making a complaint:
“(1)Subject to subsection (2), a person is only entitled to make a complaint within 1 year of the alleged contravention of the Act.
(2)The commissioner has a discretion to accept a complaint after 1 year has expired if the complainant shows good cause.”
Background
[9] As set out in the Statement of Reasons of the Deputy Commissioner,[3] the appellant was employed by Queensland Health from August 1995 until she was dismissed in November 2005. In May 2003 the appellant was injured in a motor vehicle accident which included a whiplash injury. While she was away from work on sick leave an audit of her work performance was conducted and a “Performance Improvement Plan” commenced in August 2003. The appellant was again away on sick leave between October 2003 and February 2004. In November 2003 she filed a dispute notification with the Queensland Industrial Relations Commission about her difficulty in having some competency documents signed in her workplace. In March 2004 the appellant returned to work on reduced hours. In July 2004 Queensland Health made a finding of misconduct about the appellant and in February 2005 she was demoted and transferred. In April 2005 the appellant filed a dispute notification with the Queensland Industrial Relations Commission. In November 2005 her employment with Queensland Health was terminated.
Procedural background
[10] The appellant made two complaints of impairment discrimination to the Commission.[4] As set out in the Statement of Reasons, complaint one was lodged on 1 May 2007 and complaint two on 31 August 2007.[5] The Commissioner’s delegate was not satisfied that the complaints indicated an alleged contravention of the Act as required under s 136. By letter dated 22 October 2008 to the appellant the Commissioner’s delegate rejected the complaints. The appellant applied to the Trial Division for a review under the Judicial Review Act of that decision in November 2008. Prior to the hearing the Commissioner advised the appellant that the decision would be revoked as she had decided that the complaints did fall within s 136 of the Act.
[11] Thereafter the respondents to the complaints were notified and submissions made as to whether the discretion to accept the complaints made more than one year after the alleged contravention of the Act should be exercised. On 8 December 2009 the Commissioner’s delegate notified the parties of her decision not to accept the complaints on the basis that the appellant had not shown good cause.
[12] In January 2010 the appellant filed an application in the Trial Division for judicial review of the decision not to accept the complaints. The State applied to be joined as a party. By letter dated 8 June 2010 the appellant requested the Commission to take into account a complaint dated 7 March 2006 which had been filed by her with the Commission on 13 March 2006 but not proceeded with. The State conceded that this was a relevant consideration for a decision under s 138(2). Orders were made setting aside the decision of 8 December 2009 and remitting the matter to the Commission to reconsider. Thereafter the Commission identified database records which indicated that the appellant had telephoned the Commission on 4 November 2005 and invited the parties to make further submissions.
[13] The Commission gave the appellant a further opportunity to make submissions about the decisions of the Queensland Industrial Relations Commission and the Queensland Industrial Court relating to the appellant’s unfair dismissal proceedings against the State which she provided on 11 February 2011.
[14] As noted, the Deputy Commissioner decided that she was not satisfied that the appellant had shown good cause for the acceptance of the complaints which were made more than one year from the alleged contraventions of the Act.
10 March 2006 – Legal Aid Queensland advice
[15] On 10 March 2006, having, as she stated, been made aware of the Commission, the appellant sought advice from Legal Aid Queensland. The appellant explained[6] that she gave the Legal Aid solicitor a brief summary of her complaint about her workplace treatment by her supervisors. The appellant complains that the solicitor did not view her documents. She was told that she did not have a complaint of discrimination under the Act. The support person has deposed that the solicitor gave the appellant a copy of the Commission’s complaint form. The appellant lodged a complaint using the form on 13 March 2006 with the Commission.[7]
March 2006 complaint
[16] The complaint is on a “complaint form”. The primary judge described the content:
“[2]… In response to the question “Who do you think has discriminated against you, sexually harassed you or publicly vilified you because of your race, religion, gender, identity or sexuality?”, the [appellant] identified the Gold Coast Hospital and two individuals employed at the Gold Coast Hospital. Under the heading “Type of complaint”, the [appellant] identified discrimination because of impairment, and particularised her impairment as “whiplash injury neck adjustment disorder depression”. In response to the question “Do you think you have been victimised because you complained about discrimination, sexual harassment or public vilification?”, the [appellant] ticked “Yes”. The [appellant] provided some further details in the forms including that the discrimination of which she complained had been ongoing for more than 12 months. In response to the question “Do you have a case in the Industrial Relations Commission (IRC) or any court or tribunal about anything included in this complaint?”, the [appellant] answered “Yes unfair dismissal”, and stated that her solicitor had the documents relating to that case.
[3]The [appellant] appended a statement to this claim form in which she set out a history of her complaints.[8] She complained about her treatment at the hands of the hospital’s manager of medical records, alleging that she had been denied opportunities for promotion and training by that person and that matters had progressively got worse “from 2003 onwards”. She referred to having had a car accident on 4 June 2003 (this date appears to be mistaken) and to suffering a whiplash injury to the neck. Her father then died. When she returned to work she received an email about her work performance.”
[17] On 16 March 2006 the appellant received a brief letter from the Commission to the effect that her complaint was being considered and the Commission would communicate “as soon as possible”. On 24 March 2006 a delegate of the Commissioner wrote:
“Thank you for sending us your complaint.
Under section 136 of the Anti-Discrimination Act 1991, a complaint must set out reasonably sufficient details to indicate an alleged breach of the Act.
Your complaint does not appear to come under the Act because you have not shown that Ms [name] or Ms [name] treated you unfavourably because of your impairment. Nor have you shown that [they] set a workplace term or condition that disadvantaged you because of your impairment. In terms of victimisation, you do not claim that either [of them] treated you poorly because you alleged that they were discriminating against you.
Many of the allegations in your complaint speak of bullying and harassing behaviour by [them]. Whilst I do not doubt that such behaviour is distressing, unless it can be linked to your impairment, the bullying can not be accepted as discrimination. To complain of workplace bullying, you need to contact the Division of Workplace Health and Safety on [telephone number].
I hope that this information is helpful to you. If you have any questions please contact [name] on [telephone number].”[9]
The appellant took no further action in respect of this invitation or otherwise in relation to this complaint.
Response to May 2007 complaints and subsequently
[18] After receiving legal advice the appellant lodged a complaint of discrimination with the Commission on its complaint form dated 27 April 2007 on 1 May 2007 attaching an extensive chronology of conduct alleged to be discriminatory against her in her workplace. In response she received the following letter dated 25 June 2007:
“Thank you for sending us your complaint.
Under section 136 of the Anti-Discrimination Act 1991 (the Act), a complaint must set out reasonably sufficient details to indicate an alleged breach of the Act.
We cannot decide whether your complaint comes under the Act because you have not shown that you were treated this way because of any of the grounds under the Act.
You state that you sustained a whiplash injury in May 2003. Your complaint goes on to describe action allegedly taken in 2005 demoting you from AO3 level 4 to AO2 level 8 as a result of disciplinary action. You have not indicated what less favourable treatment was imposed on the basis of your medical condition (impairment) between 2003 and 2005.
You refer to two issues raised as indirect discrimination, ie the provision of standard chairs and quantity of work. You have not provided sufficient details to enable assessment of these allegations. Information such as when the term was imposed, who imposed the term and why the term was imposed might be helpful.
If you have more information to show that your complaint should be accepted, please provide it to us within 7 days.
As requested I attach a copy of your complaint form and chronology of events.
You should keep in mind that you have only one year from the first incident you are complaining about, to provide us with sufficient information to show it comes under the Act. This time limit under the Act can only be extended for good reason.
I hope that this information is helpful to you. If you have any questions please contact me on [telephone number].”[10]
[19] The appellant filed a second complaint utilising the complaint form dated 29 August 2007 on 31 August 2007 naming the same individuals in the workplace referred to in her earlier complaints. That brought a response dated 7 March 2008 in these terms:
“Thank you for sending us your complaint. I apologise for the lengthy delay in responding.
Under section 136 of the Anti-Discrimination Act 1991 (the Act), a complaint must set out reasonably sufficient details to indicate an alleged breach of the Act.
Your complaint does not appear to come under the Act because you have not shown that you cannot comply with a term or condition that has been imposed. The information provided does not indicate how your impairment (whiplash injury) affected your ability to comply with the term imposed ie that you were to use the equipment supplied to do your work.
If you have any questions please contact us on [telephone number].”[11]
[20] The appellant’s central contention is that the primary judge failed to have regard to a relevant consideration, namely, that the Deputy Commissioner did not consider the different responses by the Commission to the complaints filed in March 2006 and May 2007. If the appellant had received the more expansive later response to her March 2006 complaint she contends that she likely would have been able to file more material which would have caused her complaint to be accepted as coming within the Act (as occurred with respect to the later complaint) and, therefore, would not have been outside the time limit.
Progress after lodging the complaints
[21] There was a body of correspondence through 2008 and 2009 between the parties and the lawyers as well as the exchange of submissions about, inter alia, the reason for the appellant’s delay in lodging her complaint. On 15 June 2009 the appellant’s then solicitors wrote to the Commission setting out the appellant’s submissions as to why her complaint should be accepted out of time. The primary judge explained:
“The submissions addressed potential prejudice, noting, amongst other things, that “the facts of the matter are highly documented through the records of the Queensland Industrial Relations Commission proceedings as well as letters, emails and diary entries so that the memory of individuals are not the sole source of information.” The submissions on behalf of the [appellant] then continued:
“The cause of the delay
The prime cause of the delay was that our client was taken up with pursuing her complaint of unfair dismissal against her former employer and other legal action. Her unfair dismissal application was filed shortly after her dismissal but the matter did not proceed to hearing until November 2006. The matter was subject to an appeal which was not finalised until August 2007. In addition, our client pursued a workcover claim concurrently with her unfair dismissal proceedings.
Our client was not advised and nor was she aware of her ability to make a complaint to the Commission in relation to the discrimination aspects of her matter until she received advice on the issue from a solicitor in March 2007. She then took steps to make enquiries and lodge her complaint. She was not aware at that time of lodgement of the limitations period for making her complaints and only became aware upon contact from the Commission.
It should also be noted that our client was suffering from moderate to severe depression over several years associated with her treatment by Queensland Health which hampered her ability to take proactive steps to take legal redress. We enclose a report by Dr Chittenden in this regard for your information.
Our client is unemployed and has largely had to rely on her own resources and pro bono legal assistance in pursuing her claims against the respondents.”[12]
[22] On 18 March 2010 the appellant requested copies of all documents which had been lodged by her with the Commission prior to May 2007. On 27 May 2010 the Commission enclosed a copy of her March 2006 complaint and the associated correspondence.
[23] On 8 June 2010 the appellant wrote to the Commission, attaching a copy of the March 2006 complaint, in the following terms:
“I write to inform you that some of the issues regarding my complaints have not been previously provided to the Anti Discrimination Commission due to an oversight. I hope that you may consider further information relevant to my complaints being accepted out of time.
When I first became aware that the Anti Discrimination Commission existed, I sought advice from Legal Aid. I sought this advice on the 10 March 2006 and was told that I did not have a complaint. In that time allowed for this appointment, the solicitor was given a brief summary of my complaint and she did not view any of my documents. Despite this, I still lodged my complaint with the Anti Discrimination Commission (see Document A). This was rejected by the Commission because my complaint did not set out reasonably sufficient details to indicate the alleged breach. Due to my illness, I did not follow it up and could not afford to pay for legal assistance.
If I had a good knowledge of the Anti Discrimination Act 1991, then my complaint would have been accepted. In March 2007, I was advised by another solicitor that I had a complaint for discrimination. I then contacted Legal Aid for further assistance and that was slow coming. In the meantime, a relative of mine did some research on where I could get some legal assistance and discovered Disability Discrimination. I then lodged another complaint.
The selection criteria that I submitted in a module for the Certificates in Government has nothing to do with my complaints and was not relevant to the criteria that I needed to met [sic] for that module and the Open Learning Institute who marked my work wrote “NOT RELEVANT”.(see Document B). Further, I never received the Certificates III and IV in Government qualification because I was deemed incompetent.[13]
Despite the information in my complaints being “old”, people mentioned in my complaints will be required later this year to be witness [sic] in my WorkCover matter (nothing to do with this Anti Discrimination Matter). Information in this matter goes back to 1999. A private investigator will be employed to find those who no longer work for Queensland Health.
I hope you will consider this information regarding my complaints being out of time.”[14]
[24] This was the first reference by the appellant to the earlier complaint of March 2006. The appellant had said this was because she had forgotten about it. She is critical of the primary judge for not mentioning that fact at para [20] of his reasons[15] when he stated, correctly, that there had been no previous mention of the March 2006 complaint.
[25] As his Honour noted, the discovery of that complaint meant that the earlier decision of 8 December 2009 had to be set aside and the matter referred back to the Commission for decision and for the parties to file further submissions. Pursuant to those orders, on 14 July 2010 the appellant provided further submissions to the Commission. His Honour noted that those submissions did not advert “in any way to the March 2006 complaint”.[16] The appellant pointed out that those submissions of 14 July 2010 commenced:
“In addition to the information already submitted, I would like the following information to be considered when determining whether my complaint should be accepted …”[17]
This, she argued, not unreasonably, included the submission dated 8 June 2010 which is set out at [23] above. There were no submissions then, as developed later, that, had the appellant been provided with a fuller response to her March 2006 complaint, she may have provided information which saw her complaint accepted as coming within the Act.
[26] The State in its submissions in response of 28 July 2010 did address the impact of the March 2006 complaint on the s 138(2) discretion as demonstrating knowledge of the Act, and the failure by the appellant to refer to it in her 14 July 2010 submissions, in effect, minimised the relevance of that knowledge.
[27] On 18 August 2010 in the appellant’s reply submissions she addressed the March 2006 complaint and only then raised the different responses to that complaint and the May 2007 complaint. The primary judge has set out much of that submission but, for the purposes of the appeal, extracts will suffice:
“●The compliant [sic] that was lodged in March 2006, was not pursued further because:
- I had been told by Legal Aid Queensland that I did not have a complaint for discrimination. Based on this advice, along with my illness and no money to pay for legal fees to get another opinion, the complaint was not pursued further;
- In the letter from the ADCQ dated 24 March 2006, I was not invited to provide further information to show that my complaint should be accepted; and
- In any event, I understood that the ADCQ staff would not be able to give legal advice or comment on individual cases that may come under the Anti Discrimination Act. I also understood that the staff there would be limited to providing general information on the area of alleged discrimination. As a result I did not contact the ADCQ in relation to my complaint.
…
●I was only informed in the letter from the ADCQ dated 24 March 2006, the reasons why my complaint did not meet Section 136 of the Anti Discrimination Act 1991 and that I should contact the Division of Workplace Health and Safety to complain about workplace bullying. I was not told in this letter that I could provide further information and I was not told what I needed to do to bring the complaint with Section 136 of the Anti Discrimination Act 1991.
●Because the March 2006 complaint had been “rejected”, I could not provide further details to support my complaint.”[18]
Later in that submission the appellant said that she did not know about obtaining pro bono or speculative legal assistance when she lodged her complaint in March 2006, and had she done so, she might have made a further attempt.
[28] Throughout this period the appellant was pursuing her work claims in the Industrial Commission and Court and progressing a WorkCover claim.
The decision by the Deputy Commissioner
[29] The Statement of Reasons identifies the two complaints and the procedural background set out above. The Deputy Commissioner described the material which she had taken into account in reaching her decision including all the submissions identified in the Schedule to the Statement of Reasons. It is not said that any submissions, particularly by the appellant, were not included. Of relevance to this appeal is the reference to the “[l]etter from the complainant dated 8 June 2010 with attachments (including the March 2006 complaint)”;[19] and the Industrial Relations Commission and Queensland Industrial Court decisions concerning the appellant.
[30] A detailed chronology followed in the Statement of Reasons including a reference to the March 2006 complaint described in these terms:
“Complaint [sic] sought advice from legal aid and told she did not have a complaint
Complaint lodged (March 2006 complaint) with ADCQ – complaint not accepted”.[20]
[31] The Deputy Commissioner discussed the nature and scope of the power under s 138(2) of the Act, quoting from Atkinson J’s decision in Buderim Ginger Ltd vBooth:[21]
“Although it is not essential to show that there is a reason for and justification for the delay in order to show good cause, such a consideration is always relevant to such a decision. In forming an opinion that the complainant has shown good cause, the Commissioner is not fettered by rigid rules but must take into account all of the relevant circumstances of the particular case such as the length of the delay, whether the delay is attributable to the acts or omissions of the complainant or his or her legal representative[s], the respondent or both; the circumstances of the complainant; whether there has been a satisfactory explanation for the delay and whether or not the delay will cause prejudice to the respondent.”[22]
[32] The length of delay was described, in the case of complaint 1 lodged on 1 May 2007, covering the period from February 2005 to November 2005, as being “between 1 year and 2½ months and 5½ months outside the statutory time limit”.[23] Complaint 2, “lodged on 31 May [sic August] 2007” relative to the period February 2003 (but perhaps August 2003) to February 2005 was assessed as being “between 2 years 9 months and 1 year and 3 months outside the statutory time limit”.[24]
[33] The appellant’s explanation for the delay in lodging her complaints was identified by the Deputy Commissioner as the appellant’s lack of understanding of her right to complain; that she was pursuing her claims in the Industrial Relations Commission; and her medical condition impacting on her ability to manage her legal affairs. The Deputy Commissioner set out what was contained in the appellant’s earlier judicial review application and submissions dated 14 July 2010, namely, that the appellant was unaware of her ability to make a complaint to the Commission until she received advice from a solicitor in March 2007; she was unaware of the reach of the Act nor the time limits for lodging a complaint; and she was engrossed in other proceedings with the State which “totally preoccupied” her.
[34] The Deputy Commissioner made reference to “New information” being the database record of the Commission indicating that the appellant had telephoned the Commission on 4 November 2005; and the March 2006 complaint. She noted that the appellant denied telephoning the Commission on 4 November 2005 and, since the Deputy Commissioner was not in a position to test evidence and make a determination, she decided to “disregard and give no weight to the Commission’s database record”.[25] She added:
“As regards the March 2006 complaint, I agree it is a relevant consideration. The parties have made submissions about the March 2006 complaint and I discuss it later in these reasons.”[26]
[35] The Deputy Commissioner referred to other Queensland Health material which suggested that the appellant was aware of the Act and its purpose if not the detail of its ambit including the appellant’s self-assessment of her understanding of the Act submitted in 2003.
[36] The Deputy Commissioner analysed inconsistencies in the appellant’s material. Relevantly, she wrote:
“Another of the [appellant’s] reasons for not lodging in time is that she was unaware of the ability to make a complaint until she received advice from a solicitor in March 2007. However, the [appellant] had in fact made a complaint to the Commission in March 2006 and had obtained advice from Legal Aid Queensland about a discrimination complaint.”[27]
[37] Later in the Statement of Reasons the Deputy Commissioner noted:
“In the Commission’s letter of 24 March 2006 informing the [appellant] that her complaint did not appear to come under the Act, the [appellant] was invited to telephone the Commission if she had any questions. The [appellant] chose not to make any further contact with the Commission until she lodged Complaint 1 on 1 May 2007, some thirteen months later.”[28]
[38] Under the heading “Conclusion” the Deputy Commissioner wrote:
“From the material, the [appellant] appears to be both intelligent and assertive. She was a union delegate and has demonstrated an ability and willingness to stand up for herself”.[29]
There follows a chronology of action by or on behalf of the appellant from August 2003 to February 2005 for complaint 2 and from 15 February 2005 to October 2005 in respect of complaint 1.
[39] The Deputy Commissioner noted that the appellant actively pursued her grievances from 2003 against Queensland Health, both internally and externally, and at various stages “obtained assistance from her union and from lawyers”.[30] The Deputy Commissioner rejected the appellant’s claim that her health issues prevented her from lodging and pursuing a discrimination complaint with the Commission.
[40] Of the appellant’s claim that she was ignorant of the Act “until around early March 2006”, citing her letter of 8 June 2010, the Deputy Commissioner wrote:
“… [T]he [appellant] was aware of unlawful discrimination and the Anti-Discrimination Act 1991. She was aware of Queensland Health policies relating to discrimination and reminded her supervisor of this as early as August 2003.
Even if the [appellant] did not know of the time limit for making a complaint, she had the ability and sufficient knowledge to seek advice and assistance.”[31]
The Deputy Commissioner noted that the appellant had described complaints 1 and 2 “as an elaboration of her March 2006 complaint”, citing the appellant’s “submissions in reply 18 August 2010, page 3 third dot point”[32] in support of this proposition.
[41] The Deputy Commissioner referred to Wong v Medical Board of Queensland & Ors,[33] a decision of Member Boddice (as his Honour then was) of the Anti-Discrimination Tribunal, who had described delays of 18 months and two years as significant against a background of a 12 month time limitation and an earlier complaint by that complainant which had been withdrawn. The Deputy Commissioner concluded:
“I find that the delays in the making of the complaints to also be significant.”[34]
The Deputy Commissioner continued:
“Although the [appellant] has provided an explanation for her delay in making her complaints, I am not satisfied that it is a satisfactory explanation for the delay. However, this finding alone does not mean that the discretion should not be exercised to accept the complaints out of time.”[35]
[42] The Deputy Commissioner discussed the issue of prejudice, noting that some prejudice will always be occasioned if leave is granted simply because a respondent will have been denied the freedom from liability which the time limitation otherwise affords. She noted that the relevant events were well documented but that it did not necessarily follow that there would be no prejudice to the respondents if the complaints were accepted. She suggested that a complaint of indirect discrimination would lack the focus of, for example, the unfair dismissal proceedings. The Deputy Commissioner added that if the complaints were not accepted the appellant would be prejudiced in that she would not be able to prosecute her complaints:
“However, the [appellant] has not been without any recourse for the events associated with the alleged discrimination as she was successful in her claim for unfair dismissal.”[36]
[43] Stating that she had taken into account all the relevant circumstances, the Deputy Commissioner was not satisfied that the appellant had shown good cause for the Commission to accept the complaints more than one year from the alleged contraventions.
The submissions for the appellant below
[44] The primary focus of the submissions for the appellant was to assert that, had she been given the same assistance in the Commission’s letter of 24 March 2006 in relation to the March 2006 complaint:
“… then the [appellant] may well have been able to provide the details, which ultimately lead [sic] to the Anti-Discrimination Commissioner to accept the [appellant’s] later complaints. It is likely that this would have occurred at least 12 months earlier than her later complaints.”[37]
This was contended to be a relevant consideration which the Deputy Commissioner failed to take into account under ss 21(2)(e) and 23(b) of the Judicial Review Act.
[45] The appellant’s other major complaint was the Deputy Commissioner’s reference to the appellant’s proceedings in the Queensland Industrial Relations Commission and Industrial Court. The appellant’s submissions take issue with the Deputy Commissioner’s statement that the appellant had not been without recourse for the events associated with the alleged discrimination as she was successful in her claim for unfair dismissal. The appellant’s submissions contended that the Deputy Commissioner failed to take into account a relevant consideration, namely, that the appellant was successful in the Industrial Court, not because of any finding that related to her impairment, but because of a procedural error by the hospital in dealing with her dismissal. The submission noted that the appellant was permitted to proceed both in the Commission and to make a complaint under the Act; that her compensation under the Industrial Relations Act 1999 was limited whereas damages were unlimited under the Act and the Deputy Commissioner had failed to record this.
[46] In her reply submissions the appellant referred again to those matters and included submissions about the public interest with respect to the award of costs in her favour. Subsequently, further submissions were filed before the primary judge supporting an amendment to the judicial review application to allege error of law. The submissions contended that, in failing to appreciate the difference in the response letters, the Deputy Commissioner “either asked the wrong question or ignored relevant material and thus committed an error of law” referring to Craig vSouth Australia[38] and other cases. Those submissions also contended that the reference to the unfair dismissal success meant that the Deputy Commissioner “asked the wrong question or identified the wrong issue or took into account irrelevant material, and thus committed an error of law”.[39]
[47] Those submissions were elaborated in oral submissions by counsel for the appellant.
Decision below
[48] After an extensive review of the chronology of the appellant’s complaints and the parties’ submissions as they were progressed, and a thorough analysis of the Deputy Commissioner’s Statement of Reasons, the primary judge considered the appellant’s contentions about the different responses by the Commission to the March 2006 and May 2007 complaints. At para [37] of his reasons his Honour set out the appellant’s contentions:
“The [appellant] advanced two arguments:
(a)that the Deputy Commissioner erred in that, in failing to appreciate the difference between the first respondent’s responses in 2006 and 2007, the Deputy Commissioner either asked the wrong question or ignored relevant material and thus committed an error of law;
(b)the difference between the two responses was a relevant consideration for the purposes of s 21(2)(e) and s 23(b) of the JRA which the Deputy Commissioner failed to take into account in the exercise of the power under s 138(2) of the ADA.”[40]
Before this court the appellant agreed that this was a correct summary.
[49] The primary judge continued:
“It is fair to observe that a significant amount of the submissions by counsel for the [appellant] in the hearing before me was devoted to the [appellant]’s arguments concerning the distinction between the responses to the 2006 and 2007 complaints. It is also fair to observe that:
(a)Notwithstanding orders having been made for further submissions as a consequence of the concession that the March 2006 complaint was a matter to which the ADCQ should have had regard in its decision of 8 December 2009, the [appellant]’s further submissions of 14 July 2010 did not even refer to the March 2006 complaint or the response to that complaint;
(b)The second respondent’s submissions on the March 2006 complaint were as set out above in [22]. Not surprisingly, the submissions did not address any argument concerning the difference between the 2006 and 2007 responses; this point had simply not been raised by the [appellant];
(c)At its highest, the [appellant] adverted to the distinction on which she now placed such emphasis in her further submissions of 18 August 2010, and then only by reference to the sentences which I have highlighted in the passages quoted above in [23].”[41]
[50] Those highlighted sentences to which his Honour referred appeared under the heading “Reason why I did not pursue the March 2006 complaint” in the submissions of 18 August 2010 as follows:
“In the letter from the ADCQ dated 24 March 2006, I was not invited to provide further information to show that my complaint should be accepted …
●I was not told in this letter that I could provide further information and I was not told what I needed to do to bring the complaint within Section 136 of the Anti Discrimination Act 1991 …
I was not provided with this opportunity in my 2006 complaint [to provide more information to show that the complaint should be accepted].”[42]
[51] The primary judge noted the appellant’s argument that the failure to consider the difference between the two responses meant that the Deputy Commissioner had asked the wrong question when exercising the power under s 138(2) or ignored relevant material when doing so. His Honour correctly identified that central to the issue whether a decision maker has committed a jurisdictional error in the sense described in Craig v South Australia[43] and Minister for Immigration and Multicultural Affairs v Yusuf[44], authorities relied on by the appellant, was the nature of the power to be exercised. In other words, a court will be concerned to ensure that the decision maker “has exercised the power which is actually conferred by the relevant statute”.[45]
[52] His Honour identified that the criterion for the exercise of the power to accept a complaint after the expiration of one year was whether good cause had been shown. He referred to matters to which a decision maker might have regard under that provision by reference to observations by de Jersey CJ[46] and statements by Atkinson J in Buderim Ginger Ltd v Booth.[47] His Honour noted, correctly with respect, that the immigration cases were concerned with different legislation but that those cases did highlight “that the jurisdictional error is committed when the power which the decision maker purports to exercise is not the power actually conferred by the legislation”.[48]
[53] After analysing the Deputy Commissioner’s approach to the nature of the power to be exercised under s 138(2) his Honour observed that the appellant had not criticised the Deputy Commissioner’s understanding of the nature of the power nor the process by which she considered the merits as to whether “good cause” had been shown and said:
“Rather, the [appellant’s] argument seems to be that because the Deputy Commissioner did not note the differences between the 2006 and 2007 responses, and did not expressly consider (or speculate on) the possibility that if the [appellant] had received a different response in 2006 she might have been able to provide further details which might have led to her complaint being accepted at that time, then it ineluctably followed that the Deputy Commissioner’s exercise of the power was affected such as to result in an error of law.”[49]
[54] His Honour observed that one of the matters or criteria which the Deputy Commissioner was “undoubtedly” required to consider was whether there was an explanation for the delay. The Deputy Commissioner did so “and … in a quite conventional fashion”.[50] His Honour concluded:
“The fact that the Deputy Commissioner appears not to have given weight to the submission now sought to be advanced by the [appellant] may sound in whether the decision maker failed to take a relevant matter into account when making the decision. But it does not, of itself, mean that the exercise of the power has been affected such as to result in an error of law.”[51]
His Honour, correctly, rejected the argument that the Deputy Commissioner’s decision was infected by jurisdictional error.
[55] The primary judge next considered the appellant’s alternative argument that the difference between the two responses was a relevant consideration for the purposes of the Judicial Review Act which the Deputy Commissioner failed to take into account in the exercise of her power under s 138(2).
[56] His Honour summarised the often quoted propositions about the failure to take into account a relevant consideration in the making of an administrative decision derived from the cases assembled by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[52] The following are particularly pertinent:
“●Where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision maker may legitimately have regard; …
●Not every consideration that a decision maker is bound to take into account but fails to take into account will justify the Court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision;
●The limited role of a Court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not for the Court to substitute its own decision for that of the decision maker by exercising a discretion which the legislature has vested in the decision maker. The Court’s role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned;
●It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the Court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.”[53]
[57] The primary judge noted that the fact of the March 2006 complaint having been made was accepted by the parties as a relevant consideration and was taken into account by the Deputy Commissioner in reaching her decision. That fact demonstrated to the Deputy Commissioner that the appellant did know of her ability to make a complaint of discrimination prior to March 2007. She took into account the contents of the letter of 24 March 2006 and noted that, although invited to telephone the Commissioner if she had further questions, the appellant chose not to make any further contact with the Commissioner until she lodged her first complaint on 1 May 2007 some 13 months later.
[58] The primary judge further noted that the appellant had made extensive submissions in reply to the Deputy Commissioner about why she did not pursue the March 2006 complaint and that they were taken into account. His Honour concluded:
“In the present case, the [appellant] is, in effect, complaining about the factual conclusions drawn by the Deputy Commissioner from the submissions put to her by both parties about a relevant fact, i.e. the fact of the [appellant] having lodged a complaint in March 2006. I accept the submission by the second respondent that this is tantamount to the [appellant] asking the Court to conduct a merits review of the Deputy Commissioner’s decision. That is not permitted on a judicial review.”[54]
His Honour therefore concluded, correctly in my view, that the Deputy Commissioner had not failed to take a relevant consideration into account.
[59] The primary judge then turned to consider the argument about the use made by the Deputy Commissioner of the unfair dismissal proceedings. His Honour set out the whole of that passage in the Statement of Reasons because, in his Honour’s view, the appellant had taken the impugned sentence out of context. His Honour noted that the Deputy Commissioner was expressing her conclusions on the question of prejudice which she was considering for the purposes of determining whether good cause had been shown. His Honour observed:
“Importantly, the Deputy Commissioner did not conclude that the [appellant’s] success in the Industrial Relations proceedings precluded her from being able to show good cause. Nor did the Deputy Commissioner conclude that the prejudice suffered by the [appellant] in not being able to prosecute her discrimination claim was neutered by her success in the Industrial Relations proceedings. Nor did the Deputy Commissioner equate the Industrial Relations proceedings with the discrimination proceedings, or refer to the Industrial Relations proceedings having been conducted on the basis of the alleged impairment. Indeed, as was noted in the course of argument, the impugned sentence could safely have been omitted from the statement of reasons without any affect [sic] whatsoever on the integrity of the conclusions reached by the decision maker on the question of prejudice.”[55]
He concluded that the issue of prejudice to both parties was a matter which the Deputy Commissioner was required to take into account but any further intrusion into the weight given or not given to particular facts and circumstances when making the decision, in effect, would be a review of the merits.
[60] Finally, the primary judge considered the question of costs. The appellant had argued that should her application be unsuccessful, in the exercise of the court’s discretion under s 49(1)(e) of the Judicial Review Act, she should bear only her own costs. His Honour noted that s 49(2) requires the court to have regard, inter alia, to the financial resources of any applicant and whether the proceeding involved an issue that affects or may affect the public interest in addition to any personal right or interest of an applicant. His Honour said:
“The evidence discloses that the [appellant] is of very limited financial means. That is a relevant, but not necessarily compellingly persuasive factor. It is also necessary and relevant to consider whether this proceeding involved issues affecting, or which may affect, the public interest.”[56]
[61] His Honour concluded, by reference to his reasons on the substantive issues that there was “no aspect of public interest associated with this application”.[57] His Honour noted that the application was “completely personal” to the appellant and ordered that costs should follow the event.
Particulars of grounds of appeal
[62] The appellant has advanced the following elaboration of her grounds of appeal:
- The primary judge failed to take into consideration:
- the advice given by Legal Aid on 10 March 2006 and that she was given no specific advice about lodging a complaint with the Commission;
- the differences in the response letter received from the Commission after lodging her March 2006 complaint and her May 2007 complaints;
- that the letter written by the appellant’s solicitor dated 15 June 2009 had been written prior to the appellant discovering that she had lodged a complaint in March 2006;
- that the Deputy Commissioner did not acknowledge or make reference to the March 2006 complaint under the “Reasons for the Delay” heading;
- that the appellant had requested that the March 2006 complaint be considered in her letter of 8 June 2010;
- that the appellant requested in her written submissions dated 14 July 2010 that the March 2006 complaint be taken into consideration by the Deputy Commissioner;
- that the Deputy Commissioner merely acknowledged the appellant’s written submissions of 18 August 2010 and observed that the 2007 complaints were an elaboration of the March 2006 complaint. The Deputy Commissioner did not acknowledge or refer to any other information;
- that the State was aware of the March 2006 complaint after 9 June 2010 at the time of preparing its written submissions;
- that the Deputy Commissioner failed to consider the appellant’s written submissions of 14 July 2010 and 18 August 2010;
- that the appellant was ultimately successful in her Industrial Relations proceedings on a point of procedure.
- The primary judge took into account an irrelevant consideration, namely, the appellant’s unfair dismissal proceedings.
- The primary judge failed to take into consideration the appellant’s counsel’s submissions about jurisdictional error.
- The primary judge failed to take into account that she was of very limited financial resources when he awarded costs against her.
Consideration
(i)Advice given by Legal Aid
[63] The appellant complains that she did not make the advice given by Legal Aid on 10 March 2006 an aspect of her submissions but since it was mentioned by the primary judge his Honour ought to have given it more detailed consideration. In fact the reference to the Legal Aid advice is in the State’s submissions which were set out by the primary judge in para [22] of his reasons[58] and served merely to identify that the appellant had an understanding of the Act and her ability to make a complaint under it. There is nothing in this argument. No issue was made of it before the Deputy Commissioner nor does the appellant contend that in some way the Deputy Commissioner ought to have considered it. Furthermore, the appellant lodged her complaint with the Commission in March 2006 despite that advice.
(ii)Different responses
[64] As is apparent from the foregoing analysis, the different responses to the two complaints were well ventilated before the primary judge and his Honour responded fully in his reasons. The contention, at its heart, seems to be that his Honour erred in not accepting the appellant’s argument that had she been invited to provide more information she may have done so and the earlier complaint may have been accepted, and that the Deputy Commissioner ought to have recognised this. No error has been identified in his Honour’s approach.
(iii)Letter 15 June 2009
[65] The appellant’s reply submissions suggest that his Honour did not take into consideration that the earlier correspondence and submissions did not raise the March 2006 complaint because the appellant had “forgotten” that it existed. As set out above, his Honour’s analysis of the sequence is correct. That the appellant forgot that she had made a complaint a year earlier cannot be determinative because, at the least following receipt of the 24 March letter, the appellant made a choice not to respond to the invitation to make further contact with the Commission. Those matters were fully ventilated by his Honour and were understood by the Deputy Commissioner and weighed with the other relevant factors. No error is revealed.
(iv)“Reasons for the delay”
[66] The complaint here is that the primary judge did not take into consideration that the Deputy Commissioner did not acknowledge or make reference to the March 2006 complaint under the heading “Reasons for the delay” in her Statement of Reasons. The appellant contends that it is mentioned only under the heading “New Information”. This was not raised below but, in any event, was plainly considered by the Deputy Commissioner. It is hard to envisage how it could not have been since it was the reason for setting aside an earlier decision and the subject of further submissions. There is nothing in this ground.
(v)Request that March 2006 complaint be considered by letter of 8 June 2010
[67] The request to have the March 2006 complaint considered by the Deputy Commissioner was in the appellant’s letter of 8 June 2010. It was the basis for remitting the matter. It was acknowledged by the primary judge at para [20] of his reasons. In her reply submissions to this appeal the appellant complains that his Honour failed to take into consideration that the respondents were aware of its contents before 14 July 2010. There is no further elaboration as to how this impacted upon his Honour’s review of the Deputy Commissioner’s exercise of discretion. There is no error identified.
(vi)The March 2006 complaint requested to be taken into consideration by submissions of 14 July 2010
[68] As discussed above, there was no mention of the March 2006 complaint in the submissions dated 14 July 2010. They merely referred to the earlier submissions. The primary judge did deal with the argument relating to the distinction between the two responses at para [38(c)] of his reasons.[59] This ground has no basis.
(vii)Submissions of 18 August 2010
[69] The complaint here is that the primary judge failed to take into consideration that the Deputy Commissioner did not consider any information in the written submissions dated 18 August 2010 including, but not limited to, the March 2006 complaint. The appellant does not identify what relevant consideration(s) were contained in those submissions which were not taken into account so as to impugn the decision of the Deputy Commissioner. This issue was not argued below and, in any event, does not identify any error.
(viii)The awareness of the State of the March 2006 complaint after 9 June 2010
[70] The primary judge set out the State’s submissions of 28 July 2010 in his reasons. In them the State had addressed the March 2006 complaint. Those submissions did not address the differences between the two responses because that point had not then been raised by the appellant. The appellant’s reply submissions are too obscure as to identify any particular argument. No error is discernible.
(ix) Failure to consider submissions of 14 July 2010 and 18 August 2010
[71] This has been considered elsewhere and is without merit.
(x)Failure to consider that the appellant was successful in her Industrial Relations proceedings and it was an irrelevant consideration
[72] The reference to these matters was discussed by the primary judge in the context of the consideration by the Deputy Commissioner of the prejudice to the parties. No error can be discerned in his Honour’s approach to the Deputy Commissioner’s reference to that material.
Failure to take into consideration submissions on jurisdictional error
[73] As has been set out above, the primary judge dealt with this matter at
paras [37]-[49] of his reasons. The appellant has not demonstrated any error in his Honour’s analysis and there is none.
Costs order
[74] The appellant complains that the primary judge failed to take into account that she had very limited financial resources when he made an order for costs against her.
[75] As has been set out above, the primary judge specifically mentioned the appellant’s financial resources in his reasons at [62]. His Honour considered that factor, as the legislation required, finding that there was no basis for not making the usual order as to costs. There is no error in his Honour’s conclusion. It is unnecessary to entertain the contention raised by the State that the appellant requires leave to raise this point, referring to Remely v O'Shea.[60]
[76] To the extent that any of the submissions were raised for the first time as fresh grounds not ventilated before the primary judge they ought not to be advanced for the first time on appeal.[61] It is the case that no new evidence is required to argue these further matters but, as Moore and Lander JJ said in Lansen v Minister for Environment and Heritage[62], referring to observations of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No2) Pty Ltd:[63]
“… an appeal is not a reworking of the trial taking account of impediments created by the primary Judge. To permit such a course would reduce the proceedings at first instance to little more than a ‘preliminary skirmish’”[64].
This is a matter which has passed through many hearings, copious submissions and has had the benefit of legal assistance over many years from very experienced practitioners. Lest the appellant believe that she has been deprived of an opportunity to advance these contentions, they have been considered and have no merit.
[77] The appellant has raised no matters in her written submissions or in her oral presentation of her appeal which demonstrate that the primary judge erred in his approach to his review of the decision of the Deputy Commissioner. It was meticulous and correct.
Subsequent request
[78] After this matter was reserved the appellant wrote to the registrar by letter dated 30 April 2012 requesting that her name be replaced with anonymous initials so that she was protected “from any retaliation that may arise” from her appeal. She was concerned that her further job prospects would be “tainted” if her name were published.
[79] A fundamental principle of our system of justice in Australia is that court proceedings are heard in public unless a statute requires non-publication of the names of parties, or where, in the interest of justice, anonymisation should occur. The appellant’s name appears on the cover sheet of the judgment below and is available for search on the Supreme Court’s website. The appellant has brought numerous proceedings arising out of the matters the subject of this appeal, either in the Supreme Court or in the Industrial Relations Commission or on appeal to the Industrial Relations Court. Her complaints appear to be well explored in various forums. She has placed no material before this court to indicate that the court should depart from the usual situation of open justice apart from what she wrote in her letter of 30 April 2012. Her request should be refused.
[80] The appeal should be dismissed and the appellant should pay the respondents’ costs of and incidental to the appeal to be assessed on the standard basis.
[81] MARGARET WILSON J: The appeal should be dismissed with costs for the reasons given by White JA.
Footnotes
[1] R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at[54]; 35-36.
[2] Coulton v Holcombe (1986) 162 CLR 1 at 7-8.
[3] The Statement of Reasons is at AR 85-98 and also at AR 543-556.
[4] An earlier complaint dated 7 March 2006 was identified some time after the later complaints were lodged.
[5] Erroneously in some places said to be 31 May 2007.
[6] In her letter dated 8 June 2010; AR120.
[7] The form is dated 7 March 2006 but this is likely an error if it be accepted that the Legal Aid appointment was on 10 March.
[8] AR 130-132 consisting of three closely typed pages.
[9] AR 112.
[10] AR 232-233.
[11] AR 250.
[12] Reasons [16]; AR 580-581.
[13] This was a reference to self-assessment work-related documents in which the appellant claimed some understanding of workplace health and safety including anti-discrimination requirements prepared in about 2003; see [35] below.
[14] AR 120-121.
[15] AR 581.
[16] Reasons [21]; AR 581.
[17] AR 484.
[18] AR 513-514.
[19] AR 545.
[20] AR 547.
[21] [2002] QCA 177 at [22].
[22] AR 548.
[23] AR 548.
[24] AR 549.
[25] AR 550.
[26] AR 550.
[27] AR 551.
[28] AR 554.
[29] AR 552.
[30] AR 553.
[31] AR 553.
[32] AR 554.
[33] [2006] QADT 41 (27 November 2006) at para 33.
[34] AR 554.
[35] AR 554.
[36] AR 555.
[37] AR 561.
[38] (1995) 184 CLR 163 at 179.
[39] AR 572.
[40] AR 589.
[41] Reasons [38]; AR 589.
[42] AR 583-584.
[43] (1995) 184 CLR 163 at 179.
[44] (2001) 206 CLR 323 at [82].
[45] At reasons [41]; AR 590.
[46] [2003] 1 Qd R 147 at [42].
[47] At [22].
[48] At reasons [44]; AR 591.
[49] At reasons [48]; AR 592.
[50] At reasons [48]; AR 592.
[51] At reasons [48]; AR 592.
[52] (1986) 162 CLR 24 at 39-42.
[53] Reasons [51]; AR 593-594.
[54] At reasons [54]; AR 594.
[55] At reasons [58]; AR 595.
[56] At reasons [62]; AR 596.
[57] At reasons [63]; AR 596.
[58] AR 583.
[59] AR 589.
[60] [2008] QCA 78 at [78]-[80].
[61] Coulton v Holcombe (1986) 162 CLR 1.
[62] [2008] FCAFC 189; (2008) 174 FCR 14 at 19.
[63] [2001] FCA 1833 at [36].
[64] At [4].