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Pritchard v Queensland QCAT 131
Pritchard v State of Queensland & Ors  QCAT 131
State of Queensland
15 March 2018; 16 March 2018; 19 March 2018; 20 March 2018
Member Roney QC
30 April 2018
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISABILITY OR IMPAIRMENT – GENERALLY – where alleged impairment discrimination in Government agency – where alleged victimisation and dismissal from work – belief as to less favourable treatment – distinction between direct and indirect discrimination – circumstantial evidence – inferences to be drawn
Anti-Discrimination Act 1991 (Qld), s 10, s 11, s 129, s 130
Australian Iron and Steel Pty Ltd v Banovic (1989-1990) 168 CLR 165
Bogie v The University of Western Sydney (1990) EOC 92-313
Cockin v P and N Beverages Pty Ltd  QADT 42
Damiano and Another v Wilkinson and Another  FMCA 891
Dharmalingham v Western NSW Local Health District  NSWCATAD 74
G v H (1994) 124 ALR 353
Greater Taree City Council v Craig Michael Peck  NSWCA 331
Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261
JM v QFG and GK  QCA 228
Jones v Dunkel (1959) 101 CLR 298
Morrison-Liddy v The Director of the Department of Technical and Further Education (1999) EOC 92-246
Narda Tapia v Lagoon Seafood Restaurant  NSW IR Comm 341
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; (2003) 77 ALD 570; (2003) 202 ALR 133;  HCA 62
R v Birmingham City Council; Ex parte Equal Opportunities Commission  AC 1155
Richards Evans & Co Ltd v Astley  AC 674
Squillacioti v Roads & Traffic Authority of New South Wales & Anor  NSWCA 133
Wadsworth v Akers and Woolworths Ltd trading as Big W Discounts Stores  QADT 17
Waters & Ors v Public Transport Corporation (1991) 103 ALR 513;  HCA 49
Mr J Merrell of Counsel instructed by the Crown Solicitor
REASONS FOR DECISION
Background to the Applicant’s employment in the Department4
Knowledge of the Applicant’s impairments by the Respondents6
Direct discrimination - the Applicant’s case as identified in her Contentions7
Treatment “on the basis of” a protected attribute – the causal element for direct discrimination9
Circumstantial evidence and the drawing of inferences20
The medical car park issue22
The pay point issue24
Unresponsiveness to enquiries and requests25
Remnant complaints of direct discrimination by Mr Dempster28
Indirect discrimination and reasonableness30
The victimisation claim32
Compensation and other relief35
- The Applicant has brought multiple complaints of discriminatory conduct against the State of Queensland, through its agency the Department of Communities, Child Safety and Disability Services (the Department) and three of its senior staff, arising out of events which it is contended occurred in late 2013 and up to and including 29 January 2014, the letter date being the date the Department terminated the Applicant’s employment with the State. The Applicant had been employed in the Data Management Services Team in the position of Senior Analyst, classification A06, pay point 1 on and from 9 December 2013. The claims raised involve a high level of complexity, and have multi-faceted aspects, many of which mutated from when the relevant events occurred, when the complaint was made to the Anti-Discrimination Commission in March and April 2015, from the time of filing of written Contentions in support of the complaints on 12 July 2016 and by the conclusion of the four day hearing of this matter.
- For the relevant period from September 2013 until her dismissal, Mr Ken Gall, the Second Respondent was the Executive Director of the Planning Performance and Reporting Group within the Corporate and Executive Services section of the Department. Also at that time, the Third Respondent, Mr Dempster, was the Acting Manager of the DMS Team, and was the direct supervisor of the Applicant while she was performing her job. The Fourth Respondent, Dr Nancy Spencer held the position of Director of Governance and Disability, Community Care and Community Data Services, within the PPR Group.
- At a most general level, the Applicant has alleged that the Respondents in various ways engaged in direct and indirect discrimination against her on the basis of an impairment which she had, namely that she was bilaterally profoundly deaf, and had mobility restrictions due to spinal injuries and bilateral shoulder injuries caused by a car accident, as well as a speech impairment caused by some workplace accident said to have been sustained at an earlier time at work. Not all of the directly discriminatory conduct complained of is directed to all of the Respondents. Further, indirect discrimination is alleged only against the Third Respondent and no one else. There is also a complaint that the Applicant was subjected to lawful victimisation by all Respondents.
Background to the Applicant’s employment in the Department
- In September 2013, the Department publicly advertised a position for the appointment of a temporary, full time Senior Analyst, with a classification of A06. The relevant position was within the unit of the Department, as mentioned earlier, known as the Planning Performance and Reporting Group, and specifically in the Data Management Services Team within that group. The person who ordinarily held that position had taken maternity leave. The position was advertised for and eventually offered for a specific term of six months.
- The Applicant applied for that position, and was interviewed for it on 28 October 2013 and in due course, on 26 November 2013 was offered the position. There is controversy, to which I shall return, about whether the position which the Applicant was offered and accepted, was in fact a position for which she had applied. She contends that she was identified in the interview process as the most qualified candidate for the position, but was not offered it, or indeed refused it. She contends that this occurred on the part of various of the Respondents who participated in the decision making process, on the basis of her impairment.
- Although the Applicant started work in the new job in the Queensland Government building in George Street, Brisbane on 9 December 2013, for reasons which I will discuss shortly, she was dismissed effective from 29 January 2014.
- During the course of the hearing, it became apparent the Appellant was advancing the contention that prior to the commencement of her employment with the Department there was discrimination against her on the basis of her impairment in not offering employment to her in respect of a position which she alleged she had applied for, was found to be the most suitable candidate, but was not offered.
- The Applicant’s Contentions did not refer to any such claim, although both her Contentions and her witness statement did deal, in a generalised way, with the circumstances by which she came to be employed. There is no doubt that in the complaint which was referred to this Tribunal by the Anti-Discrimination Commission on 30 November 2015, the complainant had raised this complaint.
- The raising of a complaint about discrimination in the pre-work environment took the Respondents by surprise to some degree, in the sense that they had not directly responded to it in their affidavit material filed in the Tribunal, nor in their responsive contentions. The Respondents were, however, able to accommodate a response to that claim by adducing supplementary evidence in their own case, and addressing this issue in final submissions. These reasons will deal with that complaint.
- It is convenient to deal with this claim of pre-work discrimination at the outset because it provides context to the complaints about the conduct of the Respondents once the Applicant commenced to work in the Department.
- As articulated in the Applicant’s Contentions, before she commenced employment with the Department she applied for an A06 Senior Analyst position with the Department. She contends that despite having been found to be the most suitable candidate for the position during the recruitment process, a process during the course of which she disclosed her disabilities and in which her referees mentioned the need for reasonable adjustment during referee checks, she was not offered the job at that time. She contends that instead, the Department engaged a different person for the position. She contends that the other person did not have an impairment, and that the Applicant was never advised of the fact that she was the most suitable candidate, even after enquiring about the process. She contends that she was offered an alternative temporary position with the Department and commenced employment in a lower paid increment level notwithstanding her qualifications and experience working for the public service.
- In the course of the hearing the Applicant applied considerable energy and time in seeking to demonstrate that there were in fact two different advertised positions, albeit potentially with the same identifying position number, and that indeed she had been rejected as the candidate for the first of those positions. No evidence whatsoever was adduced in the Applicant’s case (which was limited to her evidence alone), about what the basis for this alleged refusal to offer her the earlier position was, nor was there specifically any evidence which indicated, even at a prima facie level, that the basis for the decision not to offer her that position was that she had an impairment.
- There are numerous problems with the Applicant’s case in relation to this issue. The first is that I accept the evidence of those who were concerned in the interview, and decision making process, and in particular that of Dr Spencer in relation to this issue. There is other evidence to corroborate the version of events that Dr Spencer gave in relation to this issue.
- The evidence of Dr Spencer, which I accept, is that a single vacancy was advertised in September 2013 for a position in the DMS Team, and that job had been allocated the specific job reference number QLD/25527/13. The Applicant applied for that specific position and referenced that job advertisement reference number in her application. The confirmation that the Applicant had been appointed to the position also specifically referenced that job title and position number. I accept Dr Spencer’s evidence that when the applications had come in for the position, both the Applicant, and another applicant for the position, Ms Luong (who had different professional qualities), were identified as meritorious applicants. I accept her evidence that she was able to persuade Mr Gall, the Second Respondent, to make available further funding so that a second position could be created, so that Ms Luong could be given a temporary appointment to a different team, namely the Analysis and Reporting Team which was managed by someone other than Mr Dempster.
- The Applicant was under a misconception which founded her complaint in this regard. That arose out of the fact that due to an administrative error, a computer generated rejection letter had been sent to all job applicants for that job, as well as to the Applicant herself. This rejection letter was not intended to communicate to the Applicant that her application had been rejected in relation to her application for that job.
- The Applicant gave evidence, which I regard as unreliable, that she had a conversation with Dr Spencer on or about 29 November 2013 in which Dr Spencer had implied that she had “fudged” or “juggled” job numbers to create a second position to offer the Applicant. I accept Dr Spencer’s evidence that she had no such conversation with the Applicant. I accept that she had no authority to alter ad reference numbers.
- It follows that the Applicant was not rejected for the position for which she applied, and there can have been no discriminatory conduct in any decision to do so.
- Even were I persuaded that she was rejected for a position for which she applied, there is no evidence, circumstantial or otherwise, to suggest that any part of any of the decision making involved in either appointing Ms Luong to a position, or the Applicant to a position, was arrived at on any basis which involved identifying that the Applicant had any impairment.
Knowledge of the Applicant’s impairments by the Respondents
- I accept the evidence of Dr Spencer and Mr Dempster in relation to their stated knowledge of whether there was any impairment held by the Applicant in the period prior to when she commenced work.
- Paragraph 34 of the affidavit of Mr Dempster, who was part of a selection process for the Senior Analyst role, was to the effect that despite the fact that the application sent by the Applicant disclosed a number of impairments, he did not particularly note them, and his own experience was that he focused on the work experience of applicants as it related to the selection criteria, rather than other aspects of the application. He concedes that he may not have noticed mention of her impairments at the time consideration was being given to identifying an appropriate candidate. He swore, in unchallenged evidence, that it would not have made any difference to his assessment of her application if he had made specific reference to those impairments at the time.
- Paragraph 19 of the affidavit of Dr Spencer was to the effect that on reflection it was apparent to her that in the position application, the Applicant had disclosed a hearing impairment, and that Dr Spencer was aware that she had this impairment. She explained later in her affidavit, again in unchallenged evidence, that when discussing the appointments, the selection panel considered the respective skills of the applicants for the particular position, and that indeed it was agreed by the panel that the Applicant was the most suitable applicant for the role offered since it required a person with statistical learning and not merely an ability to administer data.
- Dr Spencer was involved in discussion with the nominated referees in the Applicant’s application. There is a body of documentation which records the process which was undertaken at that time by Dr Spencer and others on the selection panel. That documentation, and the other objective evidence, which I accept, demonstrates that no part of the considerations which went towards selecting a candidate for the position involved any consideration of, or indeed awareness of the Applicant’s impairment.
- It follows that the Applicant’s complaint in relation to the pre-work discrimination is not made out.
Direct discrimination - the Applicant’s case as identified in her Contentions
- I turn now to the Applicant’s case based on direct discrimination. At the conclusion of the hearing, the Applicant did not rely upon written submissions, although she had indicated during the hearing that she intended to do so. She did however file Contentions dated 12 July 2016, which summarised her case.
- From those Contentions it may be seen that the case alleged against the Third Respondent, Mr Dempster, her immediate supervisor, is that he directly discriminated against her on the basis of her impairments by:
- Not providing proper training to her;
- Not immediately acting and following up her work-related enquiries and requests;
- Insisting on communicating with the Applicant “mostly verbally”, even though the Applicant contends that she asked him to communicate via emails because of her hearing impairment;
- Not providing or organising reasonable adjustments to her workplace to take account of her impairments, and in particular:
- Not providing her with access to modified client records;
- Not providing her with working headphones for the telephone on her desk;
- Not managing the behaviour of another employee of the Department who was allegedly using or interfering with an ergonomic chair that had been supplied for the Applicant’s use;
- Denying the Applicant a reasonable request for a lockable desk;
- Not supporting the Applicant’s application for a medical car park at the George Street workplace, or alternatively not providing her with reasons for refusing that car park;
- Failing to initiate the ordering of, or expediting the delivery of a usable ergonomic chair; and
- Failing to reply to the Applicant’s request to have a meeting regarding what she saw as an inadequate pay level for the work she was performing. It may be that there is an ancillary allegation that it was discriminatory not to pay her at some different pay level or pay point.
- The Applicant’s Contentions identify that the case of direct discrimination sought to be made out against the Second Respondent, Mr Gall was that:
- His decision not to approve the Applicant’s application for a medical car park within the building where she worked was made on the basis of her impairment;
- Mr Gall did not respond or communicate with her in person or otherwise, or through Dr Spencer, when the Applicant raised with Mr Gall her concerns of discriminatory conduct on the part of Mr Dempster and other staff in the team; and
- The Applicant was the subject of direct discrimination by being paid at pay point 1 in the A06 classification when she commenced her employment, and during its term. This is also allegedly the subject of discrimination on the basis of her impairment.
- From the Contentions, it may be seen that the allegations against Dr Spencer of direct discrimination concern:
- Dr Spencer allegedly refusing to meet with her to discuss her claim to be paid at a higher pay point within the A06 classification;
- Not providing her with reasons for the refusal of the requested car park; and
- Consequent upon the Applicant raising concerns about the alleged discriminatory conduct of Mr Dempster, and other staff in the team, that Dr Spencer dismissed her claims and at a meeting on 15 January 2014, intimidated and humiliated her.
Treatment “on the basis of” a protected attribute – the causal element for direct discrimination
- Section 10(1) of the Anti-Discrimination Act 1991 (the Act) requires that the Applicant establish that the Respondent has treated her or proposed to treat her in a discriminatory way “on the basis of” the relevant attribute. Section 10 of the Act provides that a person’s motive for discriminating is irrelevant.
- The Queensland Court of Appeal in JM v QFG and GK  QCA 228 gave careful consideration to the approach to be taken to ascertaining whether something occurred on “the basis” of an attribute. That case involved an appeal from a decision of the Anti-Discrimination Tribunal concerning whether a refusal of treatment at an infertility clinic on the claimed basis that a patient’s lawful sexual choice of lesbianism amounted to direct discrimination. The approach of the court was to carefully identify precisely what was the reason for the refusal of the treatment. It was held on an analysis of the evidence that it could not have been said to have been her exclusive lesbianism, but rather the fact that she failed to comply with the Respondent’s definition of what constituted infertility, which led to her being refused the relevant treatment.
- Thomas JA said, in that case:
...a proper reading of the doctor’s evidence demonstrates that there was no such discrimination on the basis of the patient’s lesbian sexual activity, and it was not open to find that there was. The evidence showed that doctors providing services of this kind (including the respondent doctor) endeavoured to act upon reports and statements made by various bodies including the National Bioethics Committee. That Committee had published the view that “the most commonly accepted definition [of infertility] within medicine is the inability of a couple to conceive after twelve months of intercourse without contraception.“ That definition on any reasonable view seems to contemplate failure to conceive after intercourse between members of opposite sexes before infertility is established.
- And later Thomas JA said:
It is true that as the result of some leading and argumentative cross-examination by the President the doctor made statements, which taken in isolation, admitted the lesbian relationship as the basis of his decision. But those concurrences were driven by the “stable and exclusive lesbian relationship” fallacy mentioned above, and also, it would seem, by the assumption in the questioning that the failure of a member of a lesbian couple to qualify was the result of her lesbian sexual activity rather than the result of her sexual inactivity with a member of the opposite sex. This is addressed in (c) below.
(c) The true basis of the doctor’s refusal to provide services to the patient was not because of her lesbian activity but because of her heterosexual inactivity. Minds may differ on the question, but common sense suggests that many lesbians are also prepared to engage in heterosexual activity. One can only include the quality of heterosexual inactivity in a particular individual if one overworks the term “lawful sexual activity” by adding personal relationship factors such as “exclusive relationship” to the concept.
- Davies JA said:
What the President appears to have done is to conclude that, because it was exclusive lesbianism which, on the evidence of the second respondent, prevented the appellant from complying with the reason for treatment, exclusive lesbianism was the reason or a substantial reason, for refusal of treatment. That is neither logically nor legally correct. On the second respondent’s evidence the reason why she was refused treatment was that she did not comply with the second respondent’s definition of infertility. The reason why, in turn, she did not so comply was her exclusive lesbianism. But it is the first, not the second, which is the reason, and the only reason, for refusal. The second is not a reason for refusal as, in other cases, celibacy or the engaging in exclusively protected intercourse or the failure to maintain a relationship for 12 months would not be a reason for refusal. Each is merely one of the categories of person who does not comply with the reason for treatment, the sole reason for refusal being non-compliance with that reason, namely infertility as defined by the second respondent and others.
- The High Court in Australian Iron and Steel Pty Ltd v Banovic was concerned with allegations of direct discrimination on the basis of sex, or gender. It was alleged that workers were retrenched because they had not been employed before a particular date. It was said that this amounted to discrimination on the basis of gender because the waiting period for employment with that employer was for a longer period for women than it was for men. Hence female workers were being retrenched because the male workers had in effect been employed longer, and before the relevant cut off date. In the joint judgment of Justices Deane and Gaudron JJ it was held that:
... in the ascertainment of the true basis of an act or decision it may well be significant that there is some factor, other than the ground assigned, which is common to all who are adversely affected by that act or decision. In certain situations that common factor may well be seen to be the true basis of the act or the decision. And that may also be the case where some factor is identified as common to a significant proportion of those adversely affected.
Even if it could be said that a factor common to all or a significant proportion of those who were adversely affected by the decision of AIS to retrench by the “last on, first off” method was that they were women, a further finding that that was the true basis of the decision would be necessary to render [the equivalent to section 10] applicable .... There is no finding to that effect by the Tribunal.
- Hence the court in Australian Iron and Steel Pty Ltd v Banovic concluded since the reason for retrenchment was the time at which employees were employed, and even though women were more affected by those retrenchments because they were more likely to have been employed later, there was no direct discrimination. The court went on to consider the alternative case of whether it was a case of indirect discrimination.
- Shortly after Banovic was decided the High Court revisited the issue in Waters & Ors v Public Transport Corporation (1991) 103 ALR 513;  HCA 49.
- The complaints of discrimination there arose out of a direction by the Minister for Transport to the Public Transport Corporation to introduce changes to the public transport system. One of these changes was a new ticketing system for public transport involving travellers making a scratch mark on tickets. The other change involved the removal of conductors from some trams. The disabilities of the individual appellants made it difficult or impossible for them to use the scratch tickets. Some of them could not travel on trams which did not have conductors. The Board determined that the changes involved discrimination and ordered the Corporation to discontinue the changes.
- In examining the extent to which a causal connection between the basis for the relevant act and alleged direct discrimination, members of the court differed. Mason CJ and Gaudron J (Deane J agreeing) held under the heading “Section 17(1): does it require an intention or motive to discriminate?” at pages 520-521 as follows:
There is some force in the suggestion that the expressions “on the ground of the status” and “by reason of the private life” in s 17(1) look to an intention or motive on the part of the alleged discriminator that is related to the status or private life of the other person: see Department of Health v Arumugam  VR 319, per Fullagar J at 327. However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose: Ontario Human Rights Commission v Simpsons-Sears Ltd, at 547; see also Street, at CLR 487, 566. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, “to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status”. It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s 17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations. A material difference in treatment that is so based sufficiently satisfies the notions of “on the ground of” and “by reason of”.
- A similar view was adopted by the House of Lords in R v Birmingham City Council; Ex parte Equal Opportunities Commission  AC 1155 in relation to s.1(1)(a) of the Sex Discrimination Act (UK) which proscribed less favourable treatment on the ground of sex. Lord Goff of Chieveley (with whom the other members of the House agreed) said (at 1194): “The intention or motive of the defendant to discriminate… is not a necessary condition of liability”.
- His Lordship noted (at 1194) that, if intention or motive were relevant: “it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy. In the present case, whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys” (emphasis added). (See also the discussion by Deane and Gaudron JJ in Banovic, at CLR 176–7.)
- McHugh J differed with this approach, distinguishing between the tests to be applied as to motive, intent and causation depending on whether the discrimination was direct or indirect. He said at 103 ALR 513 at 552-553:
The words “on the ground of the status or by reason of the private life of the other person” in s 17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against. I am unable to accept the statement of Lord Goff of Chieveley in R v Birmingham City Council; Ex parte Equal Opportunities Commission  AC 1155 at 1193–4, and the statements of Deane and Gaudron JJ (at CLR 176-7) in Banovic concerning intention or motive to discriminate if they are intended to suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator (the discriminator) be actuated by status or private life in a provision such as s 17(1).
With great respect to Deane and Gaudron JJ, I think that the examples given by them in Banovic as to intention or motive not being a necessary condition of liability are cases which are caught by the concept of indirect discrimination which fall within section 17(5). The words “on the ground of” and “by reason of” require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act (the victim). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did. Of course, in determining whether a person has been treated differently “on the ground of” status or private life, the Board is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then “the ground of” the act of the discriminator was the status or private life of the victim: see Umina Beach Bowling Club Ltd v Ryan  2 NSWLR 61, per Mahoney JA at 66. But if the discriminator would have acted in the way in which he or she did, irrespective of the factor of status or private life, then the discriminator has not acted “on the ground of the status or by reason of the private life” of the victim. Likewise, if the discriminator genuinely acts on a non-discriminatory ground, then he or she does not act on the ground of status or private life even though the effect of the act may impact differently on those with a different status or private life. Thus, in Director-General of Education v Breen (1982) 2 IR 93, the Court of Appeal of New South Wales held that the Director-General had not acted “on the ground of sex” in selecting principals for non-secondary schools from a primary school promotions list rather than an infant’s school promotions list even though the use of the former list favoured male teachers. Only 1.5 per cent of teachers on the infants list were male but on the primary schools list 39 per cent of the teachers were male. Absent an intention to use the primary list to disadvantage females, discrimination in a case such as Breen can be established only by relying on a provision similar to section 17(5). At the relevant time, however, the Act had no such equivalent.
The effect of the introductory words of section 17(5), however, is that an act which falls within that sub- section is deemed for the purpose of section 17(1) to constitute treating “the other person less favourably than the first-mentioned person treats or would treat a person of a different status or with a different private life”. If the alleged discriminator has in fact treated the other person “less favourably”, in the circumstances specified in section 17(1), then discrimination is made out and section 17(5) is irrelevant. Section 17(5), therefore, operates only in situations where section 17(1) is inapplicable. The hypothesis upon which section 17(5) is built is that the alleged discriminator has not in fact treated the other person “less favourably”. Yet discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different. Thus, both direct and indirect discrimination involve the notion of one person being treated “less favourably” than another.
How then can a case of indirect discrimination come within section 17(5) and yet not come within section 17(1)? The answer is that in section 17(5) “discrimination” is defined in an artificial sense and is dealing with situations where a requirement or condition is imposed equally but has an adverse or more adverse effect on persons of a particular status or with a different private life. A person may be guilty of discrimination under section 17(5) although he or she was not actuated in any way by status or private life.”
- In Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; (2003) 77 ALD 570; (2003) 202 ALR 133;  HCA 62 the High Court considered these authorities in the context of a claim of disability discrimination.
- In that case the relevant Act stated that it was unlawful for an educational authority to discriminate against a student "on the ground of" the student's disability. It stated that a person discriminates against another person on the ground of that person's disability if, "because of" the person's disability, the discriminator treats him or her less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
- Chief Justice Gleeson said that;
In Australian Iron & Steel Pty Ltd v Banovic, Deane and Gaudron JJ said that it is necessary to determine the "true basis" for the act or decision. This indicates that it is the reason for the decision that must be considered. Their Honours referred with approval to Lord Goff's statement in Birmingham regarding motive and intent to discriminate. They accepted that genuinely assigned reasons may in fact mask the true basis for the decision. Dawson J also said that the test is not subjective – the mere assertion of a ground that is not sex will not prevent the act from being discriminatory if the "true basis" for the act in question is in fact sex.
- After referring to the judgements referred to above from Waters v Public Transport Corporation, of Mason CJ and Gaudron J and that also of McHugh J, the Chief Justice said at -;
“However, McHugh J's misgivings were more the result of the ambiguous use of the words "intention" and "motive" in Birmingham and Banovic than any real difference of approach with that of Deane and Gaudron JJ.
 The reasoning in discrimination cases in this Court is consistent with the view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind”.
- After referring to later authority Gleeson J said:
 The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act.
- The leading judgement in Purvis was delivered by Gummow, Hayne and Heydon JJ. For present purposes, relevantly, they identified the issue under consideration as being whether the Commissioner’s conclusion that the student’s behaviour occurred as a result of his disability and that "in this case, Daniel's behaviour is so closely connected to his disability that if … less favourable treatment has occurred on the ground of Daniel's behaviour then this will amount to discrimination on the ground of his disability". They did not reference in their reasons the cases discussed by the Chief Justice on how to identify the "true basis" for the act or decision.
- The question was posed in these terms by reference to what was required to show direct discrimination:
 The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.
 In the present case, the circumstances in which Daniel was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions:
- (i)How, in those circumstances, would the educational authority have treated a person without Daniel's disability?
- (ii)If Daniel's treatment was less favourable than the treatment that would be given to a person without the disability, was that because of Daniel's disability?
Section 5(1) could be engaged in the application of section 22 only if it were found that Daniel was treated less favourably than a person without his disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of Daniel's treatment.
- Hence those judges held that the 'circumstances referred to in s.5(1) are all of the objective features which surround the actual or intended treatment of the disabled person' by the alleged discriminator. In Purvis, the circumstances in which the student was treated as he was included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils were. Accordingly, the comparator was a student who was not disabled, but who had acted in the same violent manner as had Daniel. Callinan J agreed with Gummow, Hayne and Heydon as to the circumstances that were to be ascribed to the comparator.
- The judgement of the dissenting judges McHugh and Kirby JJ, on the issue of the appropriate comparator and as to the causation issue are informative. As to the former they said:
 Provisions that extend the definition of discrimination to cover the characteristics of a person have the purpose of ensuring that anti-discrimination legislation is not evaded by using such characteristics as "proxies" for discriminating on the basic grounds covered by the legislation. But the purpose of a disability discrimination Act would be defeated if the comparator issue was determined in a way that enabled the characteristics of the disabled person to be attributed to the comparator. If the functional limitations and consequences of being blind or an amputee were to be attributed to the comparator as part of the relevant circumstances, for example, persons suffering from those disabilities would lose the protection of the Act in many situations. They would certainly lose it in any case where a characteristic of the disability, rather than the underlying condition, was the ground of unequal treatment.
- In relation to the causation question McHugh and Kirby JJ said;
 The words "because of" in s 5(1) of the Act indicate that it is the reason why the discriminator acted that is relevant. This interpretation is also consistent with s 10 of the Act, which refers to an act done for two or more "reasons". In dealing with s 10 the Explanatory Memorandum to the Disability Discrimination Bill also stated that "[i]n relation to direct discrimination the reason that someone has done a particular discriminatory act is very important." However, the cases show differences of opinion concerning the relevance of the alleged discriminator's motive or intention.
 A "but for" test was applied by Lord Goff of Chieveley in R v Birmingham City Council; Ex parte Equal Opportunities Commission where his Lordship said:
There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex. The intention or motive of the defendant to discriminate … is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex. [Otherwise] it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but … because of customer preference, or to save money, or even to avoid controversy.
 By placing the words "intention" and "motive" together and denying that either is necessary for a finding of direct discrimination, his Lordship opened the way for the submission that direct discrimination does not contain an intention element. However, intention and motive are not the same thing.
 In James v Eastleigh Borough Council, Sir Nicolas Browne-Wilkinson VC rejected the "but for" test. His Lordship said:
[O]ne is looking, not to the causative link between the defendant's behaviour and the detriment to the plaintiff, but to the reason why the defendant treated the plaintiff less favourably. The relevant question is 'did the defendant act on the ground of sex?' not 'did the less favourable treatment result from the defendant's actions?'
 His Lordship said "the legally determinant matter is the true reason for the defendant's behaviour, not his intention or motive in so behaving."
 But on appeal the House of Lords reversed the decision. Lord Goff, together with Lord Bridge of Harwich and Lord Ackner, reaffirmed the objective "but for" test as the relevant test. However, the dissentients, Lord Griffiths and Lord Lowry, criticised the "causative" approach as dispensing with essential statutory criteria. Lord Lowry said:
It can thus be seen that the causative construction not only gets rid of unessential and often irrelevant mental ingredients, such as malice, prejudice, desire and motive, but also dispenses with an essential ingredient, namely, the ground on which the discriminator acts. The appellant's construction relieves the complainant of the need to prove anything except that A has done an act which results in less favourable treatment for B by reason of B's sex, which reduces to insignificance the words 'on the ground of.' Thus the causative test is too wide and is grammatically unsound, because it necessarily disregards the fact that the less favourable treatment is meted out to the victim on the ground of the victim's sex. (original emphasis)
 Since James, however, the United Kingdom courts have moved away from the "but for" test. In Nagarajan v London Regional Transport, Lord Nicholls of Birkenhead held that it is necessary to consider the reason of the alleged discriminator but that his or her motive is irrelevant. His Lordship said:
[I]n every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator …
The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred … Racial discrimination is not negatived by the discriminator's motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant's job application was racial, it matters not that his intention may have been benign.
 In Chief Constable of the West Yorkshire Police v Khan Lord Nicholls again rejected the "but for" test. He said:
For the reasons I sought to explain in Nagarajan v London Regional Transport … a causation exercise of this type is not required … The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.
 The House of Lords recently affirmed these principles in Shamoon v Chief Constable of the Royal Ulster Constabulary. Lord Hope of Craighead said that in most cases "the reason why" will call for some consideration of the mental processes of the alleged discriminator.
 These more recent English authorities are consistent with the approach taken by the Australian courts. In Australian Iron & Steel Pty Ltd v Banovic, Deane and Gaudron JJ said that it is necessary to determine the "true basis" for the act or decision. This indicates that it is the reason for the decision that must be considered. Their Honours referred with approval to Lord Goff's statement in Birmingham regarding motive and intent to discriminate. They accepted that genuinely assigned reasons may in fact mask the true basis for the decision. Dawson J also said that the test is not subjective – the mere assertion of a ground that is not sex will not prevent the act from being discriminatory if the "true basis" for the act in question is in fact sex.
 In Waters v Public Transport Corporation, Mason CJ and Gaudron J (Deane J agreeing) approved the view of Deane and Gaudron JJ in Banovic that motive or intention to discriminate is not required. Their Honours said that it is enough if the difference in treatment is based on the prohibited ground, notwithstanding an absence of motive or intention.
 In Waters, McHugh J rejected the statement of Lord Goff in Birmingham and the statements of Deane and Gaudron JJ in Banovic concerning motive or intention, in so far as they might suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator was actuated by the prohibited ground. His Honour said:
The words 'on the ground of' and 'by reason of' require a causal connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act ('the victim'). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did.
However, McHugh J's misgivings were more the result of the ambiguous use of the words "intention" and "motive" in Birmingham and Banovic than any real difference of approach with that of Deane and Gaudron JJ.
 The reasoning in discrimination cases in this Court is consistent with the view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind.
 Subsequent decisions have applied this approach to the question of causation. In Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd Lockhart J said:
The plain words of the legislation … necessarily render relevant the defendant's reason for doing an act, that is the reason why the defendant treated the complainant less favourably.
 His Honour also said that the presence of intention, motive or purpose relating to health does not necessarily detract from the conclusion that there is discrimination on the prohibited ground – in that case, sex.
 In University of Ballarat v Bridges, having considered the decisions in Banovic and Waters, as well as dictionary definitions, Ormiston J concluded that both "ground" and "reason" connote a basis that actuates or moves a person to decide a matter or to act in a particular way. His Honour said:
[N]otwithstanding that it has been said on many occasions that the Act should be given a broad interpretation, the object of the legislature was to look at the reasoning process behind the decision, conscious and unconscious, at least so far as direct discrimination is concerned.
 His Honour said that motive and purpose should be treated as largely irrelevant so long as it can be shown that the person charged intended to do an act that in fact amounts to unlawful discrimination.
 It is true that statements of Toohey J and Gummow J in IW v City of Perth might appear to support a "but for" test in discrimination cases. Kirby J, after referring to the "reasons for the conduct of the alleged discriminator", said that the "but for" test applied by the House of Lords in James and by this Court in Banovic and Waters was "the correct test". In IW v City of Perth, however, the references to the "but for" test were expressed in relation to a decision of a corporate body that was made by its Councillors casting votes.
 The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act. The Commissioner appears to have wrongly characterised the principle that he applied – which was the correct principle. He correctly held that the benevolent motive of the principal did not excuse the discriminatory treatment of Mr Hoggan.
 The Commissioner also correctly found that, because Mr Hoggan was treated less favourably because of his behaviour, he was discriminated against on the ground of his disability. Mr Hoggan's behaviour is a manifestation of his disability. In X v McHugh (Auditor-General for the State of Tasmania), Sir Ronald Wilson said that it is enough if an employer is shown to have discriminated because of a manifestation of a disability. The decision in X v McHugh was followed in Y v Australia Post where the Commission said:
[T]o discriminate against a person suffering a mental disorder because of the behaviour of that person which directly results from that mental disorder, is to discriminate against that person because of the mental disorder.
 The validity of this principle can be seen by considering situations where the disability manifests itself in ways that society perhaps finds more acceptable than in cases where the disability manifests itself in dangerous conduct. In Randell v Consolidated Bearing Co (SA) Pty Ltd, for example, an employer was held to have discriminated against an employee on the ground of his disability by dismissing him because of his difficulties with the stock numbering system used in the employer's warehouse. These difficulties were a manifestation of the employee's dyslexia.
 The Commissioner also found that the reason for Mr Hoggan's exclusion from the school, unlike the reason for his suspensions, included issues other than his behaviour. The Commissioner found that, although Mr Hoggan's behaviour was a factor in his exclusion, it was not the only factor. He found that the principal had also acted because Mr Hoggan was unable to cope with the stresses of high school life as a result of his disability. Section 10 of the Act states that, if an act is done for two or more reasons and one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act), the act is taken to be done for that reason. Because the Commissioner found that the decision to exclude Mr Hoggan was made on this basis, the Commissioner's decision can be supported without having to consider issues relating to behaviour.
 In our view, when the Act is applied according to its true construction, the Commissioner was correct in finding that the State through its agents had discriminated against Mr Hoggan.
- As Justice McHugh said in Waters v Public Transport Corporation “on the ground of” and “by reason of” require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of “the victim”. The protected attribute, to use the language of the Queensland Act must be at least one of the factors which moved the discriminator to act as he or she did. And as his Honour said, of course, in determining whether a person has been treated differently “on the ground of” that matter, this Tribunal is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then “the ground of” the act of the discriminator was the status or private life of the victim.
Circumstantial evidence and the drawing of inferences
- In many discrimination cases there are real issues of proving causation or drawing inferences from proven facts.
- In relation to the issue of drawing inferences from proven facts, according to oft cited dicta of Street CJ in Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261 at :
… the plaintiff must prove his case; and although he may establish a state of facts which lead one to think that his version is quite a possible version of what took place, he must do something more than show a state of facts which is consistent with one view or with another view … A guess is a mere opinion or judgment formed at random and based on slight or uncertain grounds. In contradistinction to such a conjectural opinion, an inference is a reasonable conclusion drawn as a matter of strict logical deduction from known or assumed facts. It must be something which follows from given premises as certainly or probably true, and the mere possibility of truth is not sufficient to justify an inference to that effect.
- Where an applicant claims an inference should be drawn:
There must be evidence affording ground for treating it as a matter existing as a matter of inference and not of conjecture … the existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability — a mere scintilla of probability such as would not warrant a finding in a civil action … to such practical certainty as would justify a conviction in a criminal prosecution. per Jordan CJ in Carr v Baker (1936) 36 SR (NSW) 301 at pp 306–307.
- In Jones v Dunkel (1959) 101 CLR 298, Kitto J stated at :
One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.....
- In G v H (1994) 124 ALR 353 Brennan and McHugh JJ defined an inference in the context of judicial decision-making as:
a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies and, where proof beyond reasonable doubt is required, the legal standard of proof precludes the drawing of an inference for the purpose of determining an issue in litigation when the basic facts are consistent with an innocent inference: Martin v Osborne (1936) 55 CLR 367. But the drawing of an inference is part of the process of fact finding: it has to do with the minor premise in the syllogism of judgment, not with the major premise of legal principle.
- An inference is not to be drawn and will be a “matter of conjecture” where the circumstances give rise to conflicting inferences of equal probability: Richards Evans & Co Ltd v Astley  AC 674 at 687 per Lord Robson. See also recent authority in Greater Taree City Council v Craig Michael Peck  NSWCA 331 and Squillacioti v Roads & Traffic Authority of New South Wales & Anor  NSWCA 133.
- In Dharmalingham v Western NSW Local Health District, the New South Wales Civil and Administrative Tribunal the summarised the relevant approach:
157 There was no direct evidence that the comment was made on the ground of the applicant’s race. The issue of what happens when there is no direct evidence has been discussed in decisions including Dutt, Edwards v Bourke Bowling Club Limited  NSWADT 31 (Edwards) and Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262. Where there is no direct evidence, an applicant must rely upon inference. In Dutt the Tribunal noted that the authorities identify the flowing considerations in respect of drawing inferences to prove less favourable treatment:
- a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from the primary facts;
- an inference must be reasonably drawn on the basis of primary facts;
- an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;
- a fact relied upon as the basis of an inference need not be proved to the requisite standard of proof;
- it is not enough that the inference is a mere possibility: it must be one of "probable connection";
- the inference must be a logical one, and not supposition;
- an inference cannot be made where more probable and innocent explanations are available on the evidence.
The medical car park issue
- As the summary of the Applicant’s case extracted from her Contentions identifies, each of the Respondents is alleged to have engaged in discriminatory conduct, each in subtly different ways, in circumstances in which it is contended for the Applicant that she applied for, but was refused the provision of a medical car park at her workplace. This would have, if approved, permitted her to park her private vehicle on the Departmental premises.
- The first time that this became an issue was on 6 January 2014, approximately a month after she started in her position. Email exchanges on 6 January 2014 show that on the morning of that day, the Applicant was communicating with Mr Glen Mackenzie, who gave evidence before me, of his having provided to the Applicant a copy of the applicable Corporate Services Procedure for applications to be permitted to park private vehicles on Departmental premises at the Department’s expense. He provided a copy of the relevant procedure to apply for and seek approval and be allocated such a car park and informed her that the approval was at the Deputy Director General level, so it would need to be approved by the Second Respondent Mr Gall.
- On the same day she emailed the Third Respondent Mr Dempster, attaching the earlier email, and pointing out that when working in another Department she had had arrangements in place to be provided with a medical car park. Her email mentioned that this was due to mobility difficulties, and the fact that she was not supposed to catch public transport because of the risk of serious injury from a minor breaking issue. She indicated that she had a medical certificate from one of her treating GP’s and asked that he let her know if he required any further information.
- Mr Dempster responded on the same day attaching the relevant procedure and application form, and invited her to action her request in accordance with the procedure. He suggested she have a conversation with others about the availability of such a car park prior to submitting her application.
- Mr Dempster swore, and I accept, that he was not involved in any decision making in respect of the application for the car park, and that this was solely Mr Gall’s responsibility.
- Mr Dempster was present at a meeting between the Applicant, and Dr Spencer on 21 January 2014, about which complaint is now made against Dr Spencer.
- Both Mr Dempster and Dr Spencer swore, and I accept, that at that meeting, Dr Spencer advised the Applicant that Mr Gall had not approved her application. There is a contemporaneous file note of that meeting. Dr Spencer’s evidence is she cannot recall what specifically was stated to the Applicant about the car park in that meeting because the emphasis was on other issues. Following that meeting, the Applicant sent Dr Spencer an email requesting clarification of the reason that her application had been refused. That email was onforwarded by Dr Spencer to another officer in Administration and asked for someone in HR to put something in writing to the Applicant. In her evidence before me, which I accept, Dr Spencer explained that the car park application was not refused for all purposes, but rather it had been decided that there was inadequate evidence of any particular need for the provision of a car park based on the generality on the medical certificate and its reference to being of benefit to her.
- On the afternoon of 21 January 2014 the Applicant wrote to both Dr Spencer and Mr Dempster wanting further clarification in writing on the car park application, and recognising that she had anticipated a request for further information. She pointed out that she had an appointment for an extended health care plan that week and a follow up visit with an Orthopaedic Surgeon the following week and that she was not sure of the recommends that would come out of that.
- There is no evidence that Mr Dempster failed to support the Applicant’s application for a medical car park or had any role one way or the other in the decision by Mr Gall not to approve it. It necessarily follows that nothing that Mr Dempster did or did not do in relation to that application was discriminatory on the basis of the Applicant’s impairment. In relation to the conduct of Dr Spencer, it was not for her to provide reasons, or refuse to provide reasons for the requested car park. The evidence shows that she did take action to ensure that the Applicant was notified by a person with appropriate knowledge of the reasons for the refusal. It follows that I reject the Applicant’s contention that Dr Spencer acted in some way discriminatory towards her on the basis of any impairment in not providing her with reasons for the refusal.
- In relation to the allegation against Mr Gall that his decision not to approve her application for the car park was on the basis of her impairment, he gave evidence, which I accept, that his decision not to approve the car park was because of the lack of supporting medical and other information to support the application. There is no circumstantial, and certainly no direct evidence whatsoever to suggest that Mr Gall’s decision was in any way based upon the fact that the Applicant had impairments. Indeed, one would hardly be surprised by the proposition that where an application was being made for a medical car park, that evidence of the existence of impairments which would justify the grant of the car park would be a relevant issue. In that sense, it was the inadequacy of evidence demonstrating the presence of an impairment, which justified the grant of the car park, which was the relevant issue. In that sense, the basis for Mr Gall’s decision was the obverse of that which the Applicant contends for.
- It follows that I reject the Applicant’s contention that there was discriminatory conduct directed at her in relation to the failure to provide her with a medical car park.
The pay point issue
- A further issue which the Applicant agitates against each Respondent is conduct in relation to the pay point or pay level that she was being paid for the job she had been engaged to perform.
- As has been recited above, the allegation against Mr Dempster is that he acted in some discriminatory way in failing to have a meeting with the Applicant in relation to what she saw as an inadequate pay level for the work she was performing. The allegation against Dr Spencer is that she refused also to meet with the Applicant to discuss such a claim. The allegation against Mr Gall is that she was subject to direct discrimination by his determining to pay her at a lower pay point, namely pay point 1 in the A06 classification, rather than at some higher level, and that he did so on the basis of her impairment.
- As explained in her Contentions, and despite the allegation against Mr Gall described above, the Applicant took the view that she was not concerned with the fact that a decision had been made to commence her employment at a lower incremental level than she had been paid in previous employment, but rather she was concerned with the fact that she was not afforded the opportunity to explain why she should be paid at a higher incremental level. She was of the understanding, so she explained, that it was internal policy for returning public servants to be commenced at the same pay increment that they were on if the appointment was within 12 months of prior service, as was the case here.
- The evidence before me, which I accept, is that there was no such policy in existence, and that indeed the question of what pay level to pay for a particular position was a matter for the discretion of the Department at the time a position was offered, and that consideration was given in this case to what that appropriate level should be, and a decision made accordingly.
- The evidence of Mr Gall, which I accept, is that he made the decision to pay the Applicant at A06 pay point 1, but that this decision was not made on the basis of any impairment which the Applicant had, but rather was made on the basis of HR Department advice related in part to the fact that the Applicant was not an existing public service employee. It had nothing to do with the fact that the Applicant had by then agreed to provide reasonable adjustment facilities at Departmental cost to enable the Applicant to perform her work.
- The Applicant does not contend that during her job interview or many conversations she had with Dr Spencer leading up to the commencement of her employment, she raised any issue about whether she should be paid any particular pay point. I reject the contention made for the Applicant that Mr Dempster, and Dr Spencer, failed to meet with her, or failed to reply to a request to have a meeting with her in relation to what she saw as an inadequate pay level. Critically, there is no evidence that in any of their dealings in relation to her concerns about the level of pay she was receiving that any conduct on their part was discriminatory or was discriminatory on the basis of her impairment.
Unresponsiveness to enquiries and requests
- Against each of the Respondents, in varying ways, there is an allegation that each of them was unresponsive to work-related enquiries and requests, or expressions of concern made to them by the Applicant about her treatment whilst working within the Department.
- Mr Gall allegedly did not respond or communicate with her when she raised with him concerns of discriminatory conduct on the part of Mr Dempster and other staff, and it is contended that Dr Spencer dismissed her claims summarily in a meeting on 15 January 2014 when she again raised concerns about alleged discriminatory conduct of Mr Dempster and other staff.
- The Applicant concluded that there had been a multiplicity of generalised complaints and requests of various kinds that she made to Mr Dempster, her supervisor, that were not “acted upon”. Again, this allegation is supplemented by a generalised assertion, unsupported by any direct, or even circumstantial evidence which would tend to suggest that anything that Mr Dempster did once he had received such complaints or enquiries was not actioned, or was otherwise dealt with in some particular way on the basis of any impairment the Applicant had.
- Her overall perspective seen through the seemingly distorted prism through which she appeared to view all her interactions with those in the Department in the few months that she worked there was be succinctly summarised by her statement in final submissions that she was “one person in a sea of antagonism and double talk”. At the heart of the case she advanced in final addresses was the proposition that from the outset of their dealings with her, each of the Respondents had engaged in deception, acted dishonestly in the recruitment exercise, and continued to act in that way thereafter. She contended that in the events which occurred while she was still employed, and certainly since, there had been collusion between all of those involved in the exercise, and in particular Mr Dempster, the Second Respondent, and Dr Spencer, the Fourth Respondent, as well as a person who was a witness to the proceeding, Ms Jones. She contended that these individuals had engaged in fabrication, collusion, and the giving of false testimony despite not having suggested to any of those witnesses, or indeed any of the witnesses at all in the case that they had given knowingly, or even inadvertently false testimony, or having put in any way any suggestion to any of those witnesses any of these most serious contentions.
- She made the final submission in addresses that she did not need to cross-examine those witnesses with a view to establishing that they had acted in this way because it was self-evident that they had done so from the outset, and that the way in which they had conducted this case throughout, established that fact.
- Putting aside the allegations of the failure to offer her the employment position which she originally applied for, the nub of the Applicant’s case was summarised in her final submissions by the contention that:
- Despite her having referred in her application for the position to her impairments or disabilities, none of those who were responsible for offering her the employment and giving effect to the arrangements that she take it up were aware of those disabilities.
- Hence, she contends, later on when she attended her workplace to do the job she did accept, it was discovered that she had these impairments, she was “set up to fail” so that she was put into a temporary position, and treated badly in various ways in order to ensure that she could be gotten “rid of” if that became necessary.
- I reject the contention that the Respondents had engaged in deception, acted dishonestly in the recruitment exercise, or continued to act in that way thereafter. I reject the contention that there had been collusion between all of those involved with her. I reject the contention that the respondents or any of them had engaged in fabrication, collusion, or the giving of knowingly false testimony.
- Mr Dempster demonstrated in the witness box that he was a person with empathy for the Applicant, and held no antagonism toward her. Nothing about his work history, or his personality was such as to suggest that he would act in such a perverse way as the Applicant suggests that he did in this case. He was a careful and persuasive witness, made appropriate concessions where necessary and his evidence about the manner in which he responded to the Applicant’s various stated concerns expressed from time to time was almost entirely unchallenged in cross-examination.
- It is reasonable to infer that the Applicant had unrealistic expectations of the role that Mr Dempster had, and what she perceived to be his responsibility for ensuring that she had a trouble-free path within the Department whilst working in his section. I accept his evidence, which is corroborated by contemporaneous correspondence, that when appropriate work-related enquiries or requests were made of him, that within a reasonable timeframe he actioned those by communicating on those issues with the Applicant or with others. There is no evidence that in any way he acted in a discriminatory fashion toward the Applicant by reason of her impairments in relation to her enquiries or requests.
- In this context, it is convenient to dispose of another of the Applicant’s complaints about Mr Dempster, which concerns his alleged failure to take action against or otherwise manage the behaviour of a Mr Hemmingway, whom the Applicant alleged was using or interfering with the ergonomic chair that had been supplied for the Applicant’s use. The evidence about whether any employee or employees within the Department made use of the ergonomic chair that was provided for the use of the Applicant whilst she was away is scant. In her final submissions the Applicant contended that she used both an existing chair, as well as the new ergonomic chair at different times whilst working at the Department, but that when she went to lunch or went home she had “no idea what she would come back to”. By that I take it to mean that she was suggesting that she would find that her chair or chairs had been used by someone else. Mr Dempster swore that he was aware as a result of these proceedings that the Applicant was complaining that her ergonomic chair was being interfered with by another employee, Mr Hemmingway, whilst it was awaiting being returned to the manufacturer for adjustment. He swears, and I accept, that he was not made aware of any such issues at the time that these events had occurred. He was away for several days during January 2014 and when he returned, Mr Barr, who gave evidence, or another employee told Mr Dempster that earlier that month the employee Mr Hemmingway had suffered a serious injury to his thigh, and Mr Barr had suggested to Mr Hemmingway that he should use the Applicant’s new chair on one day when the Applicant was not at work to provide some relief from his own injury. Mr Barr gave evidence, which I accept, which was to similar effect, with him characterising his statement to Mr Hemmingway that he might want to use the Applicant’s chair since it was not being used, as one made in general social conversation in response to a statement by Mr Hemmingway that he was suffering some discomfort. Mr Barr was unable to say when Mr Hemmingway did in fact use the chair, but he is confident that he had no conversation with the Applicant about the use of the chair by others. In his view, since the chair was the property of the Department, he would not have regarded it as inappropriate for another staff member to use it while the Applicant was away from work.
- Mr Dempster gave evidence that the Applicant did not ever raise concerns with him about others using her chair, and had she done so, he would have taken some action to resolve the issue.
- In relation to the chair issue, I find that he did not act in any discriminatory fashion toward the Applicant by reason of her impairments.
- In the case of the complaints about Mr Gall, I find that the Applicant did not specifically communicate with him and notify him that she was making claims of discriminatory conduct against others within the Department. He was the person responsible for approving the financial resources to enable her to achieve reasonable adjustments, including the cost associated with the provision of an ergonomic chair. Again, there is no evidence, direct or circumstantial, to demonstrate that his dealings in communications with the Applicant were on a discriminatory basis.
- As against Dr Spencer, again it is contended that she was dismissive of the Applicant’s alleged claims of discriminatory conduct by others when raised at a meeting of 15 January 2014. This was a lengthy meeting and Dr Spencer made a detailed note of what occurred at that meeting, and that note was exhibited to her affidavit. I accept that that note records the substance of what was discussed between them that day. The topic of areas were numerous, and included her work performance, her pay level, the temporary nature of her employment, whether the work she was doing was beneath her, the fact that she had communication issues with Mr Dempster, and the fact, as expressed by the Applicant that Mr Dempster was flippant in his dealings with her. They discussed what the best outcome was for the Applicant, and what the options were. I find that in the course of that meeting Dr Spencer did not dismiss her claims generally, and did not intimidate or humiliate her. Moreover, I find that nothing that occurred in that meeting on the part of Dr Spencer occurred on a discriminatory basis, or that Dr Spencer in any way treated the Applicant adversely on that occasion by reason of any impairment she was perceived to have.
Remnant complaints of direct discrimination by Mr Dempster
- The remaining matters concerned miscellaneous other complaints that the Applicant has brought against Mr Dempster concerning his alleged failure to properly train her, and not providing or organising reasonable adjustments to her workplace, and specifically not providing her with access to modified client records, providing her with working headphones for the telephone, not meeting her request for a lockable desk, and failure to progress or expedite alterations to the ergonomic chair which she was to be supplied and was supplied.
- In relation to the training issue, I accept that upon the Applicant being appointed, she was given an appropriate induction and other training for her to perform the tasks required of her at that time. There is documentary evidence to show what the content of that induction and training was, and the extent to which it was provided by Mr Dempster. The material concerned was written induction and other training material. He otherwise made arrangements for the Applicant to receive personal face to face training by other members of the team, including by Mr Barr, who gave evidence, but also by Mr Hemmingway, Mr Montgomery and Mr Jacobs.
- Mr Barr gave evidence which was unchallenged and which I accept, that the team who worked under Mr Dempster had regular team meetings and that the team concerned the aforementioned Messrs Hemmingway, Jacobs, Montgomery, the Applicant and himself. In those meetings there would be discussion about the tasks which would need to be undertaken in that week, but then in early 2014 Mr Dempster initiated the practice of having short daily meetings of approximately 15 minutes to discuss what was specifically being done and to problem solve at that time. The evidence does not demonstrate that there was a failure to provide proper training or induction to her. There is no evidence that in any way Mr Dempster acted in a discriminatory fashion toward the Applicant by reason of her impairments in relation to what training she was provided, or which he facilitated.
- In relation to the balance of the complaints that Mr Dempster discriminated against her by not providing or organising reasonable adjustments, and that he did so on the basis of her impairments, I accept that in none of his dealings with the Applicant, did Mr Dempster act toward her in any way adversely on the basis of her impairment. Mr Dempster required the Applicant to perform specific tasks, and to focus upon those tasks, and not others that in some cases she considered more appropriate for her to undertake or which she thought made better use of her skills and abilities. I reject a contention that Mr Dempster did not provide her with appropriate access to the information technology or database access codes. I accept the evidence of Mr Dempster that he provided the Applicant with all that she required to perform her duties, and specifically in relation to some of those codes, where on the rare occasion she required live access to the Business Information System’s client data, she was given that access. I find that she was not deprived of that access on any basis which was associated with the fact that she had impairments.
- In relation to the complaint that she was not provided with working headphones, there is evidence that at some stage, the cordless telephone provided by the Department for her use did not connect with the Bluetooth telephone headset. This was a minor technical issue which was brought to the attention of Mr Dempster, and Mr Mackenzie. Mr Mackenzie had been directly involved in conducting a first work assessment of the Applicant in early December 2013 in order to identify and accommodate her needs, and this included the provision to her of a cordless Bluetooth headset. He was also involved less directly in a second assessment on 9 December 2013. He said that he had a good relationship with the Applicant and she would call him if she had any issues and he would come and check on her. He said that generally she seemed quite happy and would tell him that everything was good. He recalls that at one point her headset was not working and that he obtained another one for her and got it working. I reject the contention that it was Mr Dempster’s responsibility to either provide her with a working headphone, or that he acted in a discriminatory fashion toward her in any respect in relation to his dealings with her about the non-working headphones.
- In relation to the issue of whether she was given a key to enable her to lock the desk, it is apparent that the Applicant at some stage requested a key for the draws on her desk, since there were none. In January 2014 a key was purchased for minimal expense, the Department decided first to see whether there was another set of draws that had a key which the Applicant could use, rather than trying to cut a key to an existing desk which the Applicant was using. Mr Dempster swore, and I accept, that he had no role in any of these decisions, and certainly I reject the contention that to the extent that he had any knowledge of what was going on in relation to the unlockable desk, that he acted in a discriminatory fashion toward the Applicant in that context.
- Finally, there is the issue of the ordering or expediting of modifications to the ergonomic chair. There is a considerable body of evidence about precisely how the chair came to be selected, what shortcomings it had, what modifications were required to be made to it, and whether it was taken away by the supplier for that purpose in a timely way. The evidence is, and I accept that Mr Mackenzie was involved in the decision to obtain the chair, and that the decision in relation to providing it was made in conjunction with Ms Dang from the Commonwealth Rehabilitation Service.
- It was Mr Mackenzie who organised for the chair to be returned to the supplier for modifications to be made. There is no evidence that in this context, Mr Dempster was responsible for, but failed to initiate the ordering of the chair or did anything which amounted to a failure to expedite the delivery of it, or the redelivery of it once modifications were required. There is certainly no persuasive evidence that anything that he did in relation to the ordering, supply and modification of the chair was done by him on any discriminatory basis.
Indirect discrimination and reasonableness
- Section 11 of the Act, provides as follows:
11 Meaning of indirect discrimination
- (1)Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
- (a)with which a person with an attribute does not or is not able to comply; and
- (b)with which a higher proportion of people without the attribute comply or are able to comply; and
- (c)that is not reasonable.
- (2)Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
- (a)the consequences of failure to comply with the term; and
- (b)the cost of alternative terms; and
- (c)the financial circumstances of the person who imposes, or proposes to impose, the term.
- (3)It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
- (4)In this section—
term includes condition, requirement or practice, whether or not written.
An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.
An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.
- As has been often recognised in this context, it is important that the term which it is alleged was imposed be formulated with some precision; Australian Iron and Steel Pty Ltd v Banovic (1989-1990) 168 CLR 165 at 185.
- The only claim of indirect discrimination is brought against Mr Dempster. The alleged act of indirect discrimination is the imposition of a term upon the Applicant by Mr Dempster which was identified as his “practice of communicating with the Applicant orally, talking over her and not responding to her enquiries and concerns by email as requested”. Self-evidently this description of the conduct of Mr Dempster which is attacked in this context does not identify a term which was imposed upon the Applicant but rather focuses upon alleged conduct by her supervisor which, whilst conceptually disadvantageous for a hearing impaired person, does not obviously identify any term imposed upon her in the sense contemplated by s.11 of the Act.
- As articulated in her Contentions, the Applicant alleged that Mr Dempster insisted on the practice of communicating with her orally, talking over her and not responding to her enquiries and concerns by email as requested. She contended that she was not able to communicate effectively with Mr Dempster in that manner because of her hearing and speech impairments and that other employees without a hearing and speech impairment were able to communicate effectively with him in that manner.
- As I have already foreshadowed, the characterisation of such conduct as indirect discrimination within the language of s.11 of the Act has fundamental conceptual difficulties.
- Mr Dempster managed a team which comprised seven employees of which the Applicant was one. I have mentioned above that there were weekly and daily meetings of that team. Typically these meetings occurred in person, and discussion took place. Documents were not produced as constituting the source material for those meetings. I accept Mr Dempster’s evidence that he was conscious of a desire on her part that wherever possible communications with her be by email, and I accept that he did accede to that request where possible. As for the suggestion that the Applicant requested Mr Dempster to communicate with her in email when she commenced her employment but that it took a number of weeks to agree to that course, there is evidence that two days after she started, on 11 December 2013, he was by then already responding to various concerns she had expressed about her workplace environment and did so by lengthy emails then and later.
- I note that on 17 December 2013, he wrote to her pointing out in relation to an issue she had on that date that “we are quite flexible and will try to accommodate your needs”. The evidence establishes that indeed Mr Dempster himself was flexible in his dealings with the Applicant, and did indeed try to accommodate her needs. I find that he did not engage in any indirect discrimination in the way in which he communicated with the Applicant.
The victimisation claim
- Section 129 of the Act makes it an offence to victimise another person. Victimisation is defined in s.130 of the Act as follows –
130 Meaning of victimisation
- (1)Victimisation happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant)—
- (a)because the complainant, or a person associated with, or related to, the complainant—
- (i)refused to do an act that would amount to a contravention of the Act; or
- (ii)in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or
- (iii)is, has been, or intends to be, involved in a proceeding under the Act against any person; or
- (b)because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a)(i), (ii) or (iii).
- (2)In this section, a reference to involvement in a proceeding under the Act includes—
- (a)making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
- (b)involvement in a prosecution for an offence against the Act; and
- (c)supplying information and producing documents to a person who is performing a function under the Act; and
- (d)appearing as a witness in a proceeding under the Act.
- It is well accepted that to establish the relevant causal nexus, it is sufficient if the relevant Act which would amount to victimisation within the meaning of s.130, was a substantial or operative factor or reason for the detrimental conduct. See Morrison-Liddy v The Director of the Department of Technical and Further Education (1999) EOC 92-246; Bogie v The University of Western Sydney (1990) EOC 92-313; Cockin v P and N Beverages Pty Ltd  QADT 42; Damiano and Another v Wilkinson and Another  FMCA 891 at par 22; Narda Tapia v Lagoon Seafood Restaurant  NSW IR Comm 341 at 108-113; Wadsoworth v Akers and Woolworths Ltd trading as Big W Discounts Stores  QADT 17.
- The alleged acts of victimisation, identified in the Contentions, are that all four Respondents engaged in conduct which constituted victimisation within the terms of s.130 of Act. The liability of the First Respondent is sought to be brought home as vicarious liability for the alleged contraventions of the three other individual Respondents. Collectively, the alleged victimisation said to have occurred in circumstances in which:
- The Applicant raised with each of those Respondents a concern that she was being discriminated against on the basis of her requiring reasonable adjustments due to her impairments and that she was being mistreated due to her being incapacitated and specifically because of her deafness;
- The alleged victimisation was in that:
- The Applicant was denied the opportunity to informally and formally raise objections to the behaviour to which she had been subjected;
- The Applicant was given an incomplete and unsuitable workstation set up;
- The Applicant was given little, if any, suitable on-the-job training;
- The Applicant was performing duties for a position for which she did not originally apply;
- The Applicant was forced to use other team member’s log in and passwords;
- There was no acknowledgement that the Applicant was forwarding details of work that she had completed and any issues raised in respect of that work;
- The Applicant was not provided with any support from within the DMS Team; and
- The Applicant was requested to do work normally associated with a position classified as an A02, that is well below her station as an A06.
- The acts of victimisation do not seek to rely upon her dismissal from her employment, although it may be inferred that in some way this is sought to be what she contends, because she has sought within the relief asked for, to be compensated because she was dismissed from her position.
- In her final addresses in relation to the victimisation claim, she asserted that she had been terminated because she had “raised concerns” about the circumstances in which she was being treated. By that stage, she contended, “everything related to everything else” and “the entire process became discriminatory”.
- As may be seen from what has been recited above as having come from the Contentions, there is a significant degree of crossover or mutuality between the allegations and the topic areas to which they relate.
- As may be seen from the recital above of what the alleged victimisation is, in large part the victimisation case relies upon conduct which the Applicant has raised in other respects as justifying a finding of direct discrimination, with some modification. The manner in which the Applicant has articulated this part of the case did not identify how it was that the conduct in question fell within the definition of victimisation in s.130 of the Act. Nothing has been identified as constituting any active detriment done because the Applicant refused to do an act which would amount to a contravention of the Act, or because she alleged, or intended to allege that there was a contravention of the Act, or that she intended to be involved in any proceeding under the Act against any person. Nor is there evidence capable of demonstrating such detriment in those circumstances.
- Moreover, in the cross-examination of the Second, Third and Fourth Respondents, the Applicant did not seek to establish through them that any of them did any of the complained of acts in circumstances which constituted victimisation of her, nor did she seek to establish any of the elementary facts which would give rise to such a claim, even on an arguable basis.
- I find that neither Mr Dempster, Dr Spencer or Mr Gall were on notice that the Applicant was being exposed to, or considered herself to being exposed to contraventions under the Act, or that there was any intention on the Applicant’s part to allege that there had been any such contravention.
- The nearest one gets, on the evidence, to such a proposition was that the Applicant wrote to Mr Dempster on 6 January 2014 in the context of raising the pay point issue and contended that the pay she was being paid was “quite discriminatory in nature”. I have already dealt with the fact that her complaints about not being paid at a higher pay point have not established discriminatory conduct. Nor, in my view, was there any rational or reasonable basis for the Applicant believing, if in fact she did, that being paid at a rate lower than that which she had hoped for, was discriminatory of her on the basis of any impairment. If anything, her view about why she should be paid more was brought about because of a misconception she had about what Departmental policy was about paying returning employees of the public service.
- The Applicant has not established that the reasons for her dismissal were in any way associated with complaints that she was making, or might be making about contraventions of the Act, or even a perception that she believed herself to be in a discriminatory way because of her pay point.
- Mr Gall’s evidence, which I accept, was that in the State of Queensland Budget for 2013, Government agencies were required to deliver efficiency dividends, and he made the decision to terminate the employment of a number of temporary employees under his directorate to meet those Budget requirements. This included making the decision to terminate the Applicant’s temporary employment. I accept that that was the reason for her termination, and that it was not an event which constituted victimisation of the Applicant within the meaning of s.130 of the Act.
Compensation and other relief
- Both in her Contentions and in her evidence, the Applicant treated the multiplicity of allegations of direct and indirect discrimination, and victimisation, as if it a single claim with the same consequences for her. She did not seek to identify particular consequences which flowed from any individual act of allegedly discriminatory conduct, or the alleged victimisation. In her Contentions she contends that as a result of the totality of the acts that she complained about that she was caused:
- Humiliation, intimidation;
- To be unemployed and suffered economic loss.
- She also makes monetary claims for economic loss which include an amount which she claims she ought to have been paid at the “proper” pay point, monetary loss as a result of termination of her employment, as well as what she describes as future economic loss. The totality of the sum sought for past and future economic loss exceeds $650,000, although the basis upon which any of that is calculated, or can be sustained as a legitimate claim, is elusive.
- Ordinarily of course, the Tribunal would seek to assess what would have been the general and special damages or other compensation flowing from the complained of conduct, were that to be proved. That course does not present itself as a viable possibility in this case. None of the multiplicity of claims has been made out, and there is no evidence before me which attributes particular consequences for the Applicant to particular conduct or particular grounds of complaint.
- There is no basis whatsoever for an order for past or future economic loss since none of that loss was causally connected with any of the relevant conduct. The claim that she was dismissed in circumstances in which she was being victimised, even if upheld, would not have resulted in a claim for past loss beyond the period of six months from when she commenced her job with the Department, and even then the terms of her employment always permitted her to be terminated earlier if that became appropriate. It is not demonstrated that even had she not been dismissed at that time, she would have been engaged for a further period or periods which would justify an award of past economic loss beyond May 2014, and into the future.
- In the result, the order that I make is that the application be dismissed.
- Published Case Name:
Francince Pritchard v State of Queensland, Ken Gall, Scott Dempster and Nancy Spencer
- Shortened Case Name:
Pritchard v Queensland
 QCAT 131
30 Apr 2018