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Neumann v Brisbane Housing Co Ltd[2017] QCAT 18

Neumann v Brisbane Housing Co Ltd[2017] QCAT 18

CITATION:

Neumann v Brisbane Housing Company Ltd [2017] QCAT 18

PARTIES:

David Neumann

(Applicant)

v

Brisbane Housing Company Ltd

Jodie Shay

(Respondents)

APPLICATION NUMBER:

ADL011-16

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Member Hughes

DELIVERED ON:

9 January 2017

DELIVERED AT:

Brisbane 

ORDERS MADE:

  1. The Application to dismiss the complaint is refused.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION – PROCEDURE – ENDING PROCEEDINGS – SUMMARY DISPOSITION – SUMMARY JUDGEMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where threshold to dismiss complaint of discrimination is high – where not unfair to respondent to allow complaint proceed to hearing - where person seeking relief for alleged breach of human rights should be afforded reasonable opportunity to have their case heard and determined according to law – where complaint not without substance and at least arguable

MISCONCEIVED OR UNMERITORIOUS - whether complaint should be dismissed as misconceived or unmeritorious – where applicant unrepresented and suffered medical ailments affecting medical health – where complaint has sufficient detail to put respondent on notice – where respondent not disadvantaged – where complaint and supporting documents can support allegations – where questions of fact and whether behaviour amounts to unlawful discrimination are properly considered at full hearing – where applicant provided evidence capable of proving basis of complaint – where complaint arguable and not misconceived or without merit

OUT OF TIME – whether parts of complaint should be dismissed as out of time – where Anti-Discrimination Commission accepted complaint despite late filing – where Commission has discretion to accept complaint after one year time limit if complainant shows good cause – where Commission not restricted by rigid rules but must consider all relevant circumstances – where respondent did not cite any relevant prejudice - where applicant unrepresented and suffered medical ailments affecting medical health –– where ‘out of time’ incidents combined with ‘in time’ incidents show pattern of behaviour towards vulnerable long-term tenant of social housing – where any prejudice to respondent outweighed by substantial injustice to applicant by not having full hearing – where circumstances sufficient to establish good cause

RELIEF OUTSIDE JURISDICTION – whether complaint should be dismissed for seeking relief outside jurisdiction - where Tribunal not bound by rules of evidence or pleading and must act with as little formality and technicality as proper consideration of issues permit – where applicant unrepresented and suffered medical ailments affecting medical health – where Tribunal has statutory obligation to ensure party understands nature of assertions and legal implications and proceedings are conducted to respond to needs of party with impaired capacity or physical disability – where dismissing complaint for failing to properly plead outcomes would impose unnecessary technical requirement on person with impairment, contrary to Tribunal’s statutory obligations – where Tribunal not satisfied that applicant understood risk of complaint being dismissed if he did not confine outcomes to those within Anti-Discrimination Act 1991 (Qld)

Anti-Discrimination Act 1991 (Qld), s 138, s 209

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, s 29, s 47

Alexander v. State of Queensland & Anor [2016] QCAT 142

Buderim Ginger Ltd v. Booth [2002] QCA 177

Craig v. Ravenshoe Community Centre Inc. & Ors [2012] QCAT 67

DJ v. Lutheran Church of Australia, Queensland District & Ors (No. 2) [2012] QCAT 498

General Steel Industries Inc. v. Commissioner for Railways (NSW) (1964) 112 CLR 125

Harrison v. Terra Search Pty Ltd & Ors [2014] QCAT 128

Jones v. Queensland Health [2012] QCAT 167

McKinnon v. State of Queensland and Anor (No. 2) [2012] QCAT 566

Smith v. Corporation of the Synod of the Diocese of Brisbane & Ors [2013] QCAT 117

Yeo v. Brisbane Polo Club Inc. [2013] QCAT 261

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

What is this Application about?

  1. [1]
    The Brisbane Housing Company has applied to the Tribunal to summarily dismiss David Neumann’s complaint of discrimination.[1]
  2. [2]
    The courts have traditionally exercised the summary jurisdiction to dismiss claims with caution:

... great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.[2]

  1. [3]
    That caution is amplified within the Tribunal context to conduct proceedings in a way that is accessible, fair, just and according to principles of natural justice.[3] The Tribunal has consistently expressed its reticence to too readily prevent an independent hearing about an alleged breach of human rights[4]:

The Parliament of Queensland in the Anti-Discrimination Act 1991 expressly stated that everyone should have the right to equal protection and benefit of the law without discrimination, that the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society and that the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone.[5]

  1. [4]
    The threshold to dismiss a complaint of discrimination without a full and proper hearing is therefore high. Within this context, it is usual for a respondent in these types of applications in the Tribunal to assert that it had been unnecessarily disadvantaged in responding to the complaint or that continuing to a hearing is an abuse of process.[6]
  2. [5]
    However, the Company did not apply for summary dismissal on those grounds. Instead, the Company claimed Mr Neumann’s complaint is misconceived and unmeritorious, partly out of time and seeks relief outside the Tribunal’s jurisdiction.

Issues

Should Mr Neumann’s complaint be summarily dismissed as misconceived or unmeritorious?

  1. [6]
    The Company submitted that Mr Neumann did not expressly articulate his complaints, the basis of his complaint is unclear, did not establish how the alleged incidents amount to unlawful discrimination or set out facts and circumstances supporting a finding that they do.
  2. [7]
    Given Mr Neumann’s medical ailments affecting his mental health[7] and his lack of representation, it is perhaps not surprising that his complaint may in parts vary and not properly identify how the alleged conduct breaches the Anti-Discrimination Act 1991 (Qld).
  3. [8]
    Despite this, it is clear that Mr Neumann is alleging a pattern of victimisation over a period of years, for which the Company may be vicariously liable. Mr Neumann’s complaint has sufficient detail to put the Company on notice so that it will not be surprised at the hearing.[8]
  4. [9]
    Despite the Company’s submission of the vagueness of Mr Neumann’s complaints, it has proceeded to analyse his allegations, respond to them and cite evidence to refute them. The Company has therefore not been disadvantaged and has shown at least a basic understanding of the case it must meet.[9]
  5. [10]
    As noted by the learned Member Cullen in Smith v. Corporation of the Diocese of Brisbane & Ors,[10] the Tribunal is not a jurisdiction where parties are expected to exchange particularised pleadings as would be the case in a court.
  6. [11]
    Although at least some of Mr Neumann’s complaints do not allege a connection between the alleged unfavourable treatment and the relevant attribute, it is not unusual for the Tribunal to be asked to infer that the attribute caused the less favourable treatment.[11] It is for the Tribunal Member at a full hearing to determine if the facts as established lead to a breach of the Act and an appropriate remedy.[12]
  7. [12]
    Any failure by Mr Neumann’s complaint or contentions to expressly rely on an attribute as causing certain behaviour, does not lead to an inevitable conclusion that a complaint on that attribute has not been made.[13] The Tribunal can categorise a complaint as including reliance on a particular attribute if the complaint documents show a basis for the reliance.[14]
  8. [13]
    Without making any findings, I am satisfied that the circumstances in Mr Neumann’s complaint and supporting documents can support allegations that Mr Neumann was treated in a certain manner because of his gender or an impairment. It may be that Mr Neumann is ultimately unable to substantiate this, but procedural fairness requires that he is given an opportunity to do so at a full hearing.   
  9. [14]
    The Tribunal notes that the Company refutes Mr Neumann’s allegations, but the claims and evidence of the parties are yet to be tested.[15] Mr Neumann has provided a statement from at least one witness that the Tribunal will need to fully explore and consider.[16] Questions of fact, including whether certain behaviour occurred and its underlying reasons, are properly considered at a full hearing and not dealt with summarily.[17] Similarly, whether that behaviour is sufficient to amount to unlawful discrimination is also a question to be properly determined at a full hearing.
  10. [15]
    Because Mr Neumann has provided some evidence capable of proving the basis of his complaint, his complaint is arguable and not misconceived or without merit.[18] Of course, it is a matter for the Member at a full hearing whether to accept his evidence and conclude that it leads to breaches of the Anti-Discrimination Act 1991 (Qld) and consequential remedies.[19] 
  11. [16]
    Mr Neumann’s complaint is not to be summarily dismissed as misconceived or unmeritorious.

Should parts of Mr Neumann’s complaint be summarily dismissed as out of time?

  1. [17]
    The Company submitted that incidents alleged in 2011, 2013 and 2014 occurred more than one year before Mr Neumann filed his complaint and are therefore out of time. The Company added that Mr Neumann had not provided justification for late acceptance, nor was it afforded an opportunity to make submissions on late acceptance.
  2. [18]
    Mr Neumann filed his complaint with the Anti-Discrimination Commission Queensland on 14 September 2015. Despite the late filing, the Commission accepted Mr Neumann’s complaint.
  3. [19]
    Although a person is only entitled to make a complaint within one year of the alleged contravention,[20] the Commissioner has a discretion to accept a complaint after one year if the complainant shows good cause.[21] In deciding whether a complainant has shown good cause, the Commission is not restricted by rigid rules but must consider all relevant circumstances.[22] 
  4. [20]
    The Company has now been given an opportunity to file submissions[23] but has not cited any relevant prejudice.[24]
  5. [21]
    Mr Neumann suffers from several ailments affecting his mental health.[25] He would appear to have only a limited understanding of his rights and is unrepresented.
  6. [22]
    The alleged incidents in 2011, 2013 and 2014, combined with the ‘in time’ incidents – if established - show a pattern of behaviour[26] towards a vulnerable long-term tenant of social housing. The ‘out of time’ claims give a fuller picture to all of Mr Neumann’s claims.[27]
  7. [23]
    Any prejudice to the Company by the passing of time is therefore outweighed by the substantial injustice to Mr Neumann by not having the Tribunal determine his complaint at a full hearing.[28]
  8. [24]
    In my view, applying the authoritative and binding reasoning of Her Honour Justice Atkinson in Buderim Ginger Ltd v. Booth,[29] these circumstances are sufficient to establish good cause to allow the ‘out of time’ components of Mr Neumann’s complaint.
  9. [25]
    The ‘out of time’ components of Mr Neumann’s complaint are not to be summarily dismissed.

Should Mr Neumann’s complaint be summarily dismissed for seeking relief outside jurisdiction?

  1. [26]
    The Company submitted that the Tribunal should disregard any application seeking relief outside the Tribunal’s jurisdiction. However, seeking orders outside the Tribunal’s jurisdiction is not a ground to summarily dismiss Mr Neumann’s complaint. This is because the Tribunal is not bound by the rules of evidence or pleading,[30] may inform itself in any way it considers appropriate[31] and must act with as little formality and technicality as a proper consideration of the issues permit.[32]
  2. [27]
    Moreover, Mr Neumann is unrepresented and would appear to suffer from several ailments affecting his mental health.[33] The Tribunal has statutory obligations to ensure that a party understands the nature of assertions made in the proceeding and their legal implications and that proceedings are conducted in a way that responds to the needs of a party with impaired capacity or a physical disability.[34]
  3. [28]
    Summarily dismissing Mr Neumann’s complaint for failing to properly plead the outcomes he seeks would effectively impose an unnecessary technical requirement on a person with an impairment, contrary to the Tribunal’s statutory obligations. In any event, the Tribunal is not satisfied that Mr Neumann understood that he faced the risk of his complaint being summarily dismissed if he did not confine the outcomes he seeks to those within the Act.
  4. [29]
    If Mr Neumann proves his complaint, the Tribunal will be limited to one or more of a range of orders including requiring an apology, compensation or other redress, programs to eliminate unlawful discrimination, declarations of validity and restraining further breaches of the Act.[35]
  5. [30]
    Mr Neumann’s complaint is not to be summarily dismissed for seeking relief outside jurisdiction.

What is the appropriate Order?

  1. [31]
    Only in a plain and obvious case should an order be made to strike out.[36] It is not plain and obvious that the events alleged by Mr Neumann did not occur or did not potentially breach the Anti-Discrimination Act 1991 (Qld).
  2. [32]
    Because Mr Neumann’s complaint is not misconceived, lacking in substance or an abuse of process, it would not be unfair to the Company to allow Mr Neumann’s complaint proceed to a hearing.
  3. [33]
    A person seeking relief for an alleged breach of human rights should be afforded a reasonable opportunity to have their case heard and determined according to law.[37] Mr Neumann’s complaint is not without substance[38] and at least arguable.[39] He should be allowed to pursue his complaint against the Company to a full hearing.
  4. [34]
    The appropriate Order is that the Application to dismiss the complaint is refused.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47.

[2]General Steel Industries Inc. v. Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at paragraph 10.

[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 3(b), 28(3)(a).

[4]McKinnon v. State of Queensland and Anor (No. 2) [2012] QCAT 566 at [7]; Yeo v. Brisbane Polo Club Inc. [2013] QCAT 261 at [14] to [16]; Alexander v. State of Queensland & Anor [2016] QCAT 142 at [54].

[5]Harrison v. Terra Search Pty Ltd & Ors [2014] QCAT 128 at [9].

[6]McKinnon v State of Queensland & Anor (No. 2) [2012] QCAT 566 at [6].

[7]Report of Princess Alexandra Hospital dated 31 January 2014.

[8]Smith v. Corporation of the Synod of the Diocese of Brisbane & Ors [2013] QCAT 117 at [12].

[9]Harrison v. Terra Search Ltd & Ors [2014] QCAT 128 at [6].

[10][2013] QCAT 117 at [12].

[11]Alexander v. State of Queensland & Anor [2016] QCAT 142 at [26].

[12]McKinnon v. State of Queensland & Anor (No. 2) [2012] QCAT 566 at [5].

[13]Jones v. Queensland Health [2012] QCAT 167 at [13].

[14]Jones v. Queensland Health [2012] QCAT 167 at [13].

[15]Craig v. Ravenshoe Community Centre Inc. & Ors [2012] QCAT 67 at [39].

[16]Statement of Dion Maticic dated 27 July 2015.

[17]Craig v. Ravenshoe Community Centre Inc. & Ors [2012] QCAT 67 at [68]; Yeo v. Brisbane Polo Club Inc. [2013] QCAT 261 at [6], citing General Steel Industries Inc. v. Commissioner for Railways (NSW) (1964) 112 CLR 125.

[18]McKinnon v. State of Queensland & Anor (No. 2) [2012] QCAT 566 at [5] – [6].

[19]McKinnon v. State of Queensland & Anor (No. 2) [2012] QCAT 566 at [5].

[20]Anti-Discrimination Act 1991 (Qld), s 138(1).

[21]Anti-Discrimination Act 1991 (Qld), s 138(2).

[22]Buderim Ginger Ltd v. Booth [2002] QCA 177 at [22].

[23]Directions dated 18 July 2016 at [2].

[24]Buderim Ginger Ltd v. Booth [2002] QCA 177 at [22].

[25]Report of Princess Alexandra Hospital dated 31 January 2014; Buderim Ginger Ltd v. Booth [2002] QCA 177 at [24].

[26]Smith v. Corporation of the Synod of the Diocese of Brisbane & Ors [2013] QCAT 117 at [21].

[27]DJ v. Lutheran Church of Australia, Queensland District & Ors (No. 2) [2012] QCAT 498 at [48].

[28]Smith v. Corporation of the Synod of the Diocese of Brisbane & Ors [2013] QCAT 117 at [21].

[29][2002] QCA 177 at [22] to [24].

[30]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b); Smith v. Corporation of the Synod of the Diocese of Brisbane & Ors [2013] QCAT 117 at [12].

[31]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(c).

[32]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(d).

[33]Report of Princess Alexandra Hospital dated 31 January 2014.

[34]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 29(1)(c)(ii).

[35]Anti-Discrimination Act 1991 (Qld), s 209.

[36]Yeo v. Brisbane Polo Club Inc. [2013] QCAT 261 at [16].

[37]Harrison v. Terra Search Ltd & Ors [2014] QCAT 128 at [8].

[38]Harrison v. Terra Search Ltd & Ors [2014] QCAT 128 at [10].

[39]Alexander v. State of Queensland & Anor [2016] QCAT 142 at [31].

Close

Editorial Notes

  • Published Case Name:

    David Neumann v Brisbane Housing Company Ltd

  • Shortened Case Name:

    Neumann v Brisbane Housing Co Ltd

  • MNC:

    [2017] QCAT 18

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    09 Jan 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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