Simonova v State of Queensland
[2018] QCAT 311
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- Unreported Judgment
- Simonova v State of Queensland[2018] QCAT 311
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Simonova v State of Queensland[2018] QCAT 311
Simonova v State of Queensland[2018] QCAT 311
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Simonova v State of Queensland [2018] QCAT 311 |
PARTIES: | MILKA SIMONOVA (applicant) v STATE OF QUEENSLAND (first respondent) |
APPLICATION NO/S: | ADL086-17 |
MATTER TYPE: | Anti-discrimination matters |
DELIVERED ON: | Date of order 11 June 2018 Reasons delivered 17 September 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Howard |
ORDERS: |
|
CATCHWORDS: | HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISABILITY OR IMPAIRMENT – OTHER MATTERS – where applicant resides in public housing – where warrant of possession issued – where considerable delay in bringing allegations – where alleged discrimination made on grounds of impairment – where leave granted for applicant to amend complaint Anti-Discrimination Act 1991 (Qld), s 6, s 138, s 175, s 178 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 28(2), s 47, s 122(4) Bond v State of Queensland [2017] QCAT 132 MM v State of Queensland [2014] QCAT 478 |
REPRESENTATION: |
|
Applicant: | Ms K M Hillard and Mr M A Rawlings of Counsel, instructed by Anderson Fredericks Turner Lawyers |
Respondent: | Represented by Crown Law |
APPEARANCES: |
|
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
- [1]A referral was received by the Tribunal from the Anti-Discrimination Commissioner Queensland (the commissioner or ADCQ) on 17 November 2017, with respect to a complaint made on behalf of Milka Simonova by her enduring power of attorney, Antoneta Krzeva.
- [2]Ms Simonova resides in public housing accommodation. Her anti-discrimination complaint alleges that the State of Queensland unlawfully discriminated against her through its conduct relating to a tenancy dispute whereby it sought to evict her because of complaints from neighbours about her behaviour. The complaint is made on the basis that the behaviour is an involuntary consequence of Ms Simonova’s diagnosed health conditions, and as such, it is alleged that the State of Queensland has unlawfully discriminated against her in the area of accommodation on the basis of her impairment.
- [3]Ms Simonova applied for leave to amend her complaint to include allegations of unlawful discrimination more broadly in the management and handling of her tenancy. The proposed amendments allege the imposition of conditions with respect to her behaviour by the State after Ms Simonova’s lease commenced; subsequent issuing of warning notices and commencement of investigations; and commencement of legal proceedings for termination of the tenancy.
- [4]The State of Queensland opposed the application for amendment. I made an order on 11 June 2018 granting leave for the amendment in accordance with the draft provided, except to require that Ms Simonova specify the date on which or by which she alleges the (subsequent) conditions on the lease were created. I also made directions for the further conduct of the proceeding on 11 June 2018.
- [5]The State of Queensland requests reasons for my decision of 11 June 2018. This is understood as a request for my reasons for granting leave to amend the complaint. To the extent that it is also intended to be a request for reasons for decision for my directions, I decline to provide same pursuant to s 122(4) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
Ms Simonova’s application for leave to amend her complaint
- [6]It is useful to set out the proposed amendments in full. Ms Simonova seeks leave to amend her complaint as referred by the ADCQ pursuant to s 178(1) of the AD Act to add the following paragraph to her complaint (all emphasis original):
The Applicant seeks to add the following paragraph to the ADCQ Referral on file ADL 086/2017
The Applicant alleges the Respondent engaged in unlawful discrimination in (collectively “the Amended Complaint”) in any or all of the following:
- In creating the subsequent conditions to the Applicant’s lease, in addition to the conditions imposed by law, to restrict the amount of noise the Applicant could make during the course of her tenancy;
- The issuing of a formal tenancy warning for anti-social behaviour on 14 January 2014 requiring the Applicant to cease loud talking or face eviction;
- Issuing a warning letter on 6 May 2016 directing the Applicant to cease disruptive behaviour, which they defined as loud talking, or face eviction;
- About 12 July 2016, commencing an investigation into loud voices during the day and night, and requiring the Applicant to respond to the investigation;
- About 24 October 2016, commencing an investigation into conduct including constant yelling during the day and night, and requiring the Applicant to respond to the investigation;
- About 28 October 2016, determining that there was a breach of the Respondent’s policies on the basis of loud noises, banging and other conduct which is a characteristic of her impairment
- based on the preceding sub-paragraph where the Applicant’s attribute/s were known to the Respondent;
- Commencing proceedings against the Applicant for a Warrant of Possession on the basis of ongoing nuisance from loud voices at all hours of the day and night, despite directions to stop the loud voices.
- [7]The submissions in support of the application refer to Ms Simonova’s various mental and physical health conditions. Ms Simonova submits that the proposed amendments, if allowed, add further contentions to the existing complaint as follows:
- (i)In effect, transferring across (and adding to) the issues raised on ADL085-17 with which Ms Simonova did not proceed, she submits, due to a procedural irregularity; and
- (i)
- (ii)Amending the complaint on ADL086-17.
- [8]She contends that the allegations are part of a continuum of events and are referred to in the documents filed in the ADCQ. She submits that they were relied upon by the State of Queensland in support of the tenancy dispute filed by it. Further, they have a factual nexus to the ADCQ complaint.
- [9]Ms Simonova submits that to the extent that the amendments exceed the statutory time frame, the Tribunal should exercise its discretion to allow them to be added, and avoid unnecessary technicality and formality. She submits inter alia that the amendments should be allowed because the allegations are part of a course of conduct and have been contemplated by the parties throughout the proceeding to date. She submits that the amendments, while significant to the case, do no more than provide particularity to the terms of the existing referral, better highlighting the alleged contraventions of the Anti-Discrimination Act 1991 (Qld) (AD Act).
- [10]She argues that the State of Queensland is not prejudiced by the effluxion of time because of its record-keeping obligations and standard processes. Accordingly, she submits that there is no prejudice to the State of Queensland if the amendments are allowed.
The State of Queensland’s opposition to the amendment
- [11]The State of Queensland concedes that pursuant to s 178 of the AD Act, the Tribunal has a broad discretion to allow amendment.[1] That said, it argues that it is relevant that pursuant to s 175(1), the Tribunal is not obliged to accept a complaint from the commissioner if it was made to the commissioner more than one year after the alleged contravention. However, pursuant to s 175(2), it may do so if the Tribunal considers it reasonable on the balance of fairness between the parties. It submits that in considering whether to exercise its discretion to allow amendment of a complaint to include matters more than one year after the alleged contravention of the AD Act, the Tribunal should have regard to similar considerations to those relevant in s 175 of the AD Act.
- [12]Further, the State of Queensland submits that ADL085-17 was incompetent at law; the Tribunal had no power to accept it; and on that basis was dismissed. Therefore, it argues that it cannot be amended. Further, it submits that Ms Simonova failed to raise the allegations during the ADCQ process. In respect of the various sub-paragraphs of the proposed amendments, The State of Queensland makes submissions as follows. Sub-paragraph (a) is ‘vague and confusing’; difficult to respond to; and its relationship to and how it adds to the matter as a whole is unclear. Further, (b), is significantly out of time, being four years since the allegation and that weighs against allowing it, there being no satisfactory explanation for it. Similarly, it says (c) to (f) are out of time, and no satisfactory explanation is given. Therefore, it argues, leave should not be granted for those proposed amendments, and if that is accepted, (g) should not be allowed as appears to be linked to the allegation in (f). It submits (h) was already addressed in the complaint and formed part of the ADCQ referral.
- [13]The State of Queensland submits that if the amendments are refused, Ms Simonova can nevertheless proceed with the referred complaint.
What was referred by the ADCQ?
- [14]The referral of the complaint by ADCQ is somewhat vague in its parameters. The referral consists ‘of the following documents’.[2] The documents then specified are emails dated various dates and attachments thereto which comprise a significant volume of documentation running to approximately 300 pages all of which are attached to the referral. In the referral document itself, under the heading of ‘Special Comments’, appear the words, ‘The complaint is accepted as a whole, except where a decision under section 138 of the Anti-Discrimination Act 1991 is made not to accept out-of-time allegations. There are no out of time allegations in this complaint.’[3]
- [15]It is readily apparent from the attachments that the complaint was made about the termination of the tenancy. That said, in making the complaint, allegations that were at least contextual, were made outside of the one year period provided for in the AD Act for the making of a complaint to the ADCQ.[4] For example, copies of a ‘Warning Notice about anti-social behaviour at your property’ dated 14 January 2014; a ‘Warning about disruptive behaviour at your home’ dated 6 May 2016; and a ‘Complaint received about disruptive behaviour at your home’ dated 24 October 2016 are among the attachments. These are documents relevant to the amendments now sought by Ms Simonova.
- [16]It is not clearly evident from the material attached to the complaint, or now suggested, that at that stage, Ms Simonova’s attorney who assisted her to make the complaint, alleged that sending these notices themselves constituted an act or part of a sequence of events amounting to unlawful discrimination. It was apparently not considered by the commissioner that the complaint as made included any out of time allegations. Therefore, the commissioner did not consider whether there was good cause to exercise the discretion he had to accept the out-of-time allegations now sought to be added to the complaint pursuant to s 138(2) of the AD Act. I make this point because the Tribunal has previously considered that out of time complaints rejected by the commissioner cannot later be allowed by the Tribunal,[5] despite the Tribunal’s broad discretion to allow amendment of a complaint pursuant to s 178 of the AD Act.
Should leave be granted for the amendment?
The proper construction of s 178
- [17]
- [18]The proceeding in ADL085-17 was dismissed by consent. There are no reasons for the Tribunal’s decision. However, it is apparent that that referral was not a referral from the commissioner as provided for in the AD Act, but a document filed directly in the Tribunal by persons acting on Ms Simonova’s behalf. Therefore, the State of Queensland correctly identifies that there are no contentions to be ‘transferred’ over from ADL085-17: the purported referral in ADL085-17 was not authorised by the AD Act or the QCAT Act. Once the basis for the filing of the purported referral became clear, had it not been dismissed by consent of the parties, it is liable to have been dismissed by the Tribunal pursuant to s 47 of the QCAT Act on the basis that it was misconceived.
- [19]That said, the subject matter of the purported referral in ADL085-17 was subsequently properly referred to the Tribunal in ADL086-17 by the commissioner, (whether or not its terms coincided in all respects with the complaint referred by the commissioner).
- [20]It is uncontroversial, as the State of Queensland submits, that the AD Act provides that the tribunal must accept a complaint referred by the ADCQ commissioner, unless the complaint was made to the commissioner more than one year after the alleged contravention.[8] That said, if the complaint referred was made more than one year after the alleged contravention, the tribunal may deal with it if it considers it would be reasonable to do so on the balance of fairness between the parties.[9] Here, the commissioner’s referral is made on the basis that all allegations were made in time and none were rejected. Therefore, s 175(2) does not apply. The State of Queensland nevertheless argues that in considering whether to exercise the discretion pursuant to s 178, the Tribunal should have regard to similar fairness considerations as those contained in s 175(2).
- [21]There is no apparent reason to constrain the Tribunal’s discretion to allow amendment of a complaint as provided by s 178 in the manner contended for by the State of Queensland. Pursuant to s 178(1), the tribunal may allow amendment to a complaint. The amendments that may be allowed are not limited or constrained in any way. Indeed, s 178(2) provides that s 178(1) applies even if the amendment concerns matters that are not included in the complaint. For example, in MM v State of Queensland,[10] amendment was allowed which re-characterised the basis of the complaint and allowed new (victimisation) claims to be brought.
- [22]I agree with the broad construction adopted in MM v State of Queensland.[11] Further, on a plain reading of the provision, the amendments the tribunal may, in its discretion, allow are broader than allegations made out of time. Rather than limiting the discretion in any way, it appears Parliament has in s 178(2) sought to make it expansive. Had the Parliament intended to circumscribe the broad discretion in s 178, it could have done so. For example, it constrained the commissioner’s discretion, provided for in s 138(2), to accept a complaint made outside of the one year time frame to circumstances in which a complainant shows good cause.
- [23]The State of Queensland suggests in effect that similar considerations as contained in s 175(2) should be implied into s 178. However, as a matter of statutory construction there is no basis to imply constraining words into a provision that is clear and unambiguous that the legislature has seen fit to bestow on the tribunal in broad terms.
- [24]That said, the broad discretion must nevertheless be exercised judicially.
Delay
- [25]The State of Queensland submits that Ms Simonova’s unexplained delay in making the allegations should weigh against granting leave to amend.
- [26]The complaint referred and, Ms Simonova’s representatives refer to, and it appears to be uncontroversial, that Ms Simonova has significant mental and physical health conditions, including a chronic delusional condition and a condition that gives her voice a ‘very forceful strained pseudo-aggressive tone.’[12] Medical reports forming part of the referral refer to a long-standing diagnosis of chronic schizophrenia since the 1970s;[13] hypertonic vocal cord dysfunction resulting in loud explosive speech;[14] anxiety; history of cerebrovascular accident; depression; and rheumatoid arthritis.[15] By July 2012, she reportedly had ‘reduced ability to comprehend simple instructions and reduced insight.’[16] It is apparent from the referral that she has, at least at some times, been the subject of an involuntary treatment order for her mental health condition/s.[17] As discussed, she is assisted in bringing her complaint by her attorney appointed under an enduring power of attorney.
- [27]It appears that since at least 2012, Ms Simonova’s serious psychiatric as well as other physical conditions have affected her comprehension. It is reasonable to infer that Ms Simonova may not readily (or at all) recognise and explain events relevant to her discrimination complaint and/or provide timely, comprehensive or cohesive instructions to either legal representatives or her attorney relevant to the events and circumstances alleged in and relevant to the complaint. Further, it is reasonable to infer that the potential relevance, to a complaint of unlawful discrimination, of past events, for example, including the issue of the warning notices and complaints by the State of Queensland to Ms Simonova would not likely have been recognised by her, or even assuming she was made aware of them at that time, her enduring attorney, although it now appears that they are part of a continuum of events that culminated in the steps taken for termination of the tenancy. In light of these matters, although the delay in bringing the allegations is considerable, it is explicable.
- [28]Further, the fact that the further issues set out in (b) to (f) are now raised out of time cannot be said to surprise the State of Queensland given that the notices referred to in the proposed amendments accompanied the referral and are documents that were generated by the State of Queensland. Further, Ms Simonova submits, and the State of Queensland does not counter, that it relied upon the matters referred to in the proposed amendments in the tenancy dispute. It is also clear that (g) is not new information to the State of Queensland.
Vagueness of the proposed amendment (a)
- [29]The State of Queensland complains of vagueness in relation to proposed allegation (a), for not specifying the subsequent conditions alleged to have been created or when they were imposed. On a preliminary basis there appears to be some apparent merit in the submission. However, Ms Simonova submits that the allegation is part of a continuum of events. In its context, on reading sub-paragraph a), with the amendments sought in the subsequent sub-paragraphs it is sufficiently clear that following the imposition of the alleged term, the subsequent notices and alleged breach referred to in sub-paragraphs (b) - (f) of the proposed amendments issued or were said to arise, despite Ms Simonova’s attributes that were then known to the State of Queensland. I accept that read in its context the allegation is part of the continuum of events and bears a factual nexus to the events culminating to steps taken to end the tenancy. I make the observation that it is apparent from the referral that the events the subject of the proposed amendments would in any event be traversed in the proceedings as part of the relevant history and context.
- [30]That said, as currently framed, I accept that the allegation may be difficult for the State of Queensland to respond to. However, the complaint of vagueness, can reasonably be sufficiently overcome by requiring greater specificity from Ms Simonova about when the conditions were said to have been imposed, or by when, so that any changes or events occurring at or around that time can be identified (or alternatively, identifying that there were none) allowing the State of Queensland to respond. It does, after all, hold the documentary record.
Proposed amendment (h)
- [31]In respect of (h), the State says that the existing referral placed this issue before the Tribunal. Accordingly, it says amendment to include it is unnecessary. Ms Simonova has not addressed the submission.
- [32]The referral has some apparent shortcomings as earlier discussed. That said, as the State of Queensland suggests that the proposed amendment in (h) relating to the commencement of the proceedings was referred. That said, Ms Simonova perceives some shortcoming in the referral which this amendment would address. Although not entirely clear, it appears that Ms Simonova may consider the referral does not encompass all relevant matters relating to the proceedings. In any event, there is no apparent detriment in allowing the amendment to avoid an issue about this at some subsequent stage in these proceedings.
Prejudice to the State of Queensland
- [33]If leave for the amendment is allowed, I accept that there is some potential prejudice to the State of Queensland.
However, I accept, as Ms Simonova submits, that prejudice to the State is minimised by its obligations to keep public records. Further, Ms Simonova submits, and the State of Queensland does not appear to dispute, that it relied upon the events concerned in the tenancy dispute. This further minimises any possible prejudice.
The objects of the AD Act
- [34]The purposes of the AD Act include promoting equality for all persons by protecting them from unfair discrimination on specified grounds in certain areas of activity. The AD Act is beneficial, rights-based legislation.[18]
- [35]Ms Simonova makes allegations about alleged unlawful discrimination based on her impairment in a protected area of accommodation. Whether or not she is ultimately successful in her complaint, she appears to fall within a vulnerable category of persons whose rights were intended by Parliament to be protected by the AD Act.
Conclusions and orders
- [36]The delay in making the allegations the subject of the amendments, especially in relation to subparagraphs (a) and (b) are significant. However, the difficulties for Ms Simonova in recognising issues of possible discrimination and giving proper instructions are also significant. The events are part of a continuum of events culminating in the taking of steps to evict Ms Simonova. The allegations sought to be included in the complaint have a close connection to the existing referral. The prejudice to the State of Queensland is likely minimal in circumstances that it holds the documentary record and relied upon the events concerned in the proceedings it brought about the tenancy. Further, in her circumstances of vulnerability allowing the amendments so that Ms Simonova to make the complaint as she now sees it having regard to the events preceding the eviction proceedings appears to accord with the purposes of the AD Act.[19]
- [37]Weighing the factors considered, leave should be granted allowing the proposed amendments, subject to Ms Simonova specifying when or by when she alleges the subsequent conditions in a) were created. I make orders accordingly.
Observations
- [38]For the reasons explained, I do not accept that a proper construction of s 178 in its context in the AD Act requires that regard be had to a balance of fairness consideration similar to the provision in s 175(2). That said, I make the observation that if I am wrong about that, I would nevertheless in Ms Simonova’s circumstances, as discussed in the preceding paragraphs, allow the amendments sought on a consideration of the balance of fairness between the parties.
Footnotes
[1]MM v State of Queensland [2014] QCAT 478.
[2]Referral filed 17 November 2017, Part C p 4.
[3]Ibid, Part C p 5.
[4]AD Act, s 138(1). However, the commissioner has a discretion to accept a complaint outside of the one year period if the complainant shows good cause: s 138(2).
[5]Bond v State of Queensland [2017] QCAT 132, [45]. (The decision is currently the subject of appeal).
[6]AD Act s 178.
[7][2014] QCAT 478.
[8]AD Act s 175(1).
[9]Ibid s 175(2).
[10][2014] QCAT 478.
[11][2014] QCAT 478.
[12]Report of Dr Kenneth Ng, Staff Geriatrician, Queensland Health dated 2 November 2010 attached to the referral, p 4.
[13]Report of Dr Kenneth Ng, Staff Geriatrician, Queensland Health dated 2 November 2010 attached to the referral.
[14]Ibid.
[15]Report from Dr Michael Clutterbuck, Kawana Family Clinic dated 19 January 2017 attached to the referral.
[16]Report from Dr Michael Clutterbuck, Kawana Family Clinic dated 13 July 2012 attached to the referral.
[17]Report from Dr Pamela Hudson-Jessop, Consultant Psychiatrist, Queensland Health dated 24 January 2017 attached to the referral.
[18]Bond v State of Queensland [2017] QCAT 132.
[19]AD Act s 6 to promote equality for all persons by protecting them from unfair discrimination on specified grounds in certain areas of activity.