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Wildin v State of Queensland[2020] QCAT 514

Wildin v State of Queensland[2020] QCAT 514

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Wildin v State of Queensland [2020] QCAT 514

PARTIES:

ANDREA WILDIN

 

(applicant)

 

v

 

STATE OF QUEENSLAND

 

(respondent)

APPLICATION NO/S:

ADL024-19

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

9 December 2020

HEARING DATE:

28 September 2020

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

  1. The application is dismissed.
  2. Andrea Wildin is to file with the Tribunal and give the State of Queensland any submissions on costs by 4.00pm on 29 January 2021.
  3. The State of Queensland is to file with the Tribunal and give Andrea Wildin any submissions on costs by 4.00pm on 12 February 2021.
  4. Andrea Wildin is to file with the Tribunal and give the State of Queensland any submissions in reply by 4.00pm on 19 February 2021.
  5. The costs of the proceedings will be determined on the papers and without an oral hearing not before 4.00pm on 19 February 2021.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – INDIRECT DISCRIMINATION – grounds of discrimination – disability or impairment – educational institutions – where complainant has mobility impairment – where discrimination on basis of disability alleged – where complainant’s child allocated in a classroom on the top level of school building – where access to classroom is via stairs – whether indirect discrimination – whether, if term imposed, there is a requirement on complainant or anyone to access the top level of the building – whether, if term imposed, term can be complied with – whether, if term imposed, term reasonable – whether Facebook comments by parents constitutes victimisation – whether State of Queensland vicariously liable for parents’ Facebook page – whether Human Rights Act 2019 (Qld) applicable

Anti-Discrimination Act 1991 (Qld), s 11, s 46, s 101, s 130, s 133, s 139, s 158, s 175, s 178, s 205, s 210, Schedule 1

Human Rights Act 2019 (Qld), s 15, s 19

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

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165

Australian Medical Council v Wilson (1996) 68 FCR 46

C v A [2005] QADT 14

Briginshaw v Briginshaw (1938) 60 CLR 336

Catholic Education Office v Clarke [2004] FCAFC 197

Cocks v State of Queensland [1994] QADT 3

Commonwealth Bank v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74

Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226

Druett v State of New South Wales [2000] HREOCA 12

Fox v Percy (2003) 214 CLR 118

Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480

Gobus v Cairns and Hinterland Hospital and Health Services & Ors [2020] QCAT 134

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

Hunter v State of Queensland [2015] QCAT 179

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Mineral Resources Engineering Services Pty Ltd v Commonwealth Bank of Australia [2016] QSC 232

Murphy v New South Wales Department of Education [2000] HREOCA 14

Patel v University of Queensland & Anor [2019] QCAT 108

R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228

Rushton v Muller [2012] QCAT 505

Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251

Skinner v Sully [2011] QCAT 589

Sluggett v Flinders University of South Australia [2000] HREOCA 26

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

State of New South Wales v Amery (2006) 230 CLR 174

Taniela v Australian Christian College Moreton Ltd [2020] QCAT 249

TT & Ors v Lutheran Church [2013] QCAT 48

Virgtel Ltd & Anor v Zabusky & Ors [2008] QSC 213

Waters v Public Transport Corporation (1991) 173 CLR 349

Watkins v Queensland Building Services Authority [2013] QCAT 535

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

C Murdoch QC instructed by Crown Law

REASONS FOR DECISION

What is this Application about?

  1. [1]
    Before allocating classrooms for the 2019 school year, a Queensland State School first consulted parents. Although she had a daughter entering year 3, Andrea Wildin did not engage with this process, saying:

I did not care at the time, I am a busy, busy woman. So at the time all I had to know about was which block, so on the first day of school I could deliver the books.[1]

  1. [2]
    After Ms Wildin’s daughter was allocated to classroom I6 on the second storey (top level) of I Block, Ms Wildin expressed concerns about no wheelchair access. Ms Wildin’s daughter does not use a wheelchair. Ms Wildin uses a wheelchair.
  2. [3]
    Upon becoming aware of her concerns, the School immediately offered to move Ms Wildin’s daughter to a ground floor classroom. Ms Wildin rejected this offer.
  3. [4]
    The School then moved the entire classroom to an equivalent classroom on the ground floor.
  4. [5]
    Other parents did not agree with the School’s decision and blocked Ms Wildin from a parents’ Facebook page.
  5. [6]
    Ms Wildin claimed that as the State of Queensland administers the School, it indirectly discriminated against her and victimised her.
  6. [7]
    Ms Wildin did not claim any direct discrimination by the State, nor did she file in the Tribunal any claim of discrimination or victimisation against the parents involved with the Facebook page.

Was the State of Queensland vicariously liable for the parents’ Facebook page?

  1. [8]
    The State submitted that because the then Anti-Discrimination Commission of Queensland did not accept a victimisation complaint, allegations relating to victimisation via Facebook posts, for example, are irrelevant.[2]
  2. [9]
    The Tribunal must accept a complaint referred by the Commissioner.[3] The purpose of the pre-Tribunal complaint process is to provide a mechanism to reject complaints without merit and provide an opportunity for parties to resolve their issues via conciliation,[4] before incurring the considerable time and expense of ongoing litigation. Circumventing this process by later adding complaints is not to be encouraged:

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘…the public as a whole, not merely the parties to the proceedings’. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome upon the parties.[5]

  1. [10]
    Nevertheless, the Tribunal may allow a complainant to amend a complaint even if it concerns matters not included in the complaint.[6] This means that the legislature has specifically contemplated the addition of later allegations. The Commission’s non-acceptance of allegations is therefore not a precondition to the Tribunal exercising jurisdiction to consider those allegations.[7]
  2. [11]
    This is especially so in a jurisdiction where parties are often not legally represented and allegations are not articulated with legal precision.[8] The Tribunal is not a jurisdiction where parties are expected to exchange particularised pleadings as would be the case in a court:[9] Ms Wildin’s contentions are to be considered in a reasonable, realistic and pragmatic way.[10] Ms Wildin has alleged victimisation for some time and the State has responded and cited supporting evidence. The State is therefore not prejudiced by the Tribunal considering the allegations of victimisation.[11]     
  3. [12]
    However, in considering the allegations, the Tribunal notes the Facebook page is not the School’s official Facebook page.[12] Parents and caregivers of students at the School created and are responsible for administering the Facebook page.[13] The School did not sanction, promote, administer or endorse the page, is not a member of the group and did not authorise the use of the School’s logo on the page.[14] During the hearing, Ms Wildin conceded the Facebook page was not official.
  4. [13]
    The Tribunal is not satisfied that Ms Wildin has established an agency relationship between the State and the Facebook page. No evidence was adduced of the Facebook page acting with the implied or actual authority of the School.[15] The State is therefore not vicariously liable for any alleged acts of victimisation by the group on the Facebook page.[16]

Did the State of Queensland indirectly discriminate against Ms Wildin?

  1. [14]
    Indirect discrimination occurs when a requirement or condition is imposed equally but has an adverse or more adverse impact on persons with different attributes.[17] Ms Wildin must show that the State imposed a term with which she could not comply because of a different attribute and the imposition of the term was unreasonable in the circumstances.[18]

Did Ms Wildin have an attribute?

  1. [15]
    Ms Wildin claimed her attribute was an impairment. “Impairment” relevantly includes the total or partial loss of bodily functions, the presence in the body of organisms capable of causing illness or disease, or reliance on a wheelchair.[19]
  2. [16]
    None of the experts whose evidence Ms Wildin was relying upon attended the hearing for cross-examination. In conducting a proceeding, the Tribunal must act fairly and according to the substantial merits of the case. However, the Tribunal is not bound by the rules of evidence and may inform itself in any manner it considers appropriate.[20]
  3. [17]
    While that does not mean that the rules of evidence may be ignored as of no account,[21] it does permit the Tribunal to receive, in an appropriate case, evidence which may not be admissible in a court as expert evidence.[22] This is especially so in a jurisdiction that contemplates self-representation, embraces cost-effectiveness and eschews an unnecessarily technical approach.[23]
  4. [18]
    Much of Ms Wildin’s health-related evidence post-dated the events of 29 January 2019 to 4 February 2019.[24] However, it does include a reference to Ms Wildin having a permanent disability “in 9 January 2019”.[25] This is consistent with earlier medical evidence diagnosing Ms Wildin with a medical condition[26] and noting that she uses a wheelchair.[27]
  5. [19]
    Although Ms Wildin’s medical experts did not attend the hearing to give evidence and were not made available for cross-examination, the Tribunal accepts to its reasonable satisfaction that Ms Wildin had a mobility impairment at the relevant time. [28]

In what activities were the State of Queensland prohibited from discriminating?

  1. [20]
    Colin Torr performed functions as a principal of the school under State law. Those functions included making decisions on classroom allocations. Mr Torr was thereby performing functions and exercising power under State Law for a State Government program and in the provision of goods and services.[29] The relevant service is access to the classroom for teachers and students. In doing so, Mr Torr was acting on behalf of the State, who is responsible for those actions.

Did the State of Queensland impose a term on Ms Wildin?

  1. [21]
    Ms Wildin initially submitted that the State imposed an implied term that access to her daughter’s classroom was via two flights of stairs.[30] However, during the hearing, Ms Wildin changed her submission to the term being that only people who can climb stairs can access the top level of the building.
  2. [22]
    The State denied imposing any term on Ms Wildin.[31] It noted that Ms Wildin did not require access to teach or work in the relevant building, or for educational purposes or any other purpose related to the School’s activities.
  3. [23]
    Ms Wildin’s daughter’s classroom is in I Block. I Block is a two-storey building comprised of four general learning areas on each floor. It is not disputed that the learning areas on the second storey, including the classroom allocated to Ms Wildin’s daughter, can only be accessed by two flights of stairs.[32]
  4. [24]
    The courts have adopted a liberal approach in determining whether a requirement or condition has been imposed.[33] Describing the requirement or condition is a question of fact.[34] As Member Traves noted in Taniela v Australian Christian College Moreton Ltd:[35]

While the requirement or condition is construed broadly, the fact finder must formulate it with some precision. The Tribunal and the Courts are not bound by the applicant’s formulation of a requirement or condition. Rather, their duty is to ascertain the actual position of whether the respondents have sought to impose a requirement or condition which is discriminatory and not reasonable within the meaning of the [Anti-Discrimination Act 1991 (Qld)].

  1. [25]
    The Tribunal is satisfied that as a parent of a student of the school, Ms Wildin would at times need to access her child’s classroom – subject to school policies for the benefit of the school community as a whole.
  2. [26]
    However, the difficulty for Ms Wildin is that the evidence does not support a finding that the School imposed a requirement either on her or anyone to access the top level of the building. The School did not impose a term that parents had to access the top level. Not all parents in the school had a child in a classroom on the top level. Moreover, if a parent did have an issue with the top level, then their child was not placed there:
    1. (a)
      On or around 5 September 2018 and several months before class allocations, the School provided Ms Wildin, through its newsletter, a form headed ‘Parent Information to Assist Placement for 2019 Classes’ inviting her to advise in writing of any special needs;[36]
    2. (b)
      The purpose of the form was to invite parents and caregivers to provide input into the formation of classes for 2019;[37]
    3. (c)
      The School is a large school of around 1,000 students and relies on information provided by teachers, parents and caregivers;[38]
    4. (d)
      Ms Wildin did not return a completed form to the School; [39]
    5. (e)
      In or around October 2018, Mr Torr set the parameters for the preparation of draft class lists for 2019 and included any specific parent and caregiver requests;[40]
    6. (f)
      On 10 December 2018, Mr Torr sent a letter to parents and caregivers, including Ms Wildin, advising that their child had been “allocated to 3G for 2019 in a Year 3 Class” and that their child’s “classroom allocation is I6”. The letter enclosed a ‘Classroom Spaces Map’ showing the relevant year 3 classroom as being in I Block; [41]
    7. (g)
      The map depicted all blocks apart from I Block in a single storey schematic. I Block was depicted in a two-storey schematic, with the relevant year 3 classroom sitting above the four ground floor classes; [42]
    8. (h)
      Ms Wildin did not advise the School of any concerns she had about her daughter’s allocated classroom at this time, or any time before her complaint to the principal at the start of the school year on 29 January 2019.[43] During the hearing, Ms Wildin said this was because she had been too busy;
    9. (i)
      On or around 28 November 2018, the School advised Ms Wildin through its newsletter that on 10 December 2018 students would go to their classrooms as part of a “Transition Afternoon”; [44]
    10. (j)
      Ms Wildin’s daughter participated in the transition afternoon at the school on 10 December 2018 and was given a letter to take home that attached a map showing the location of her classroom; [45]
    11. (k)
      When Ms Wildin first raised her concerns at the start of the school year on 29 January 2019, the Deputy Principal, Paul McClintock and then Mr Torr offered to move Ms Wildin’s daughter to a classroom on the ground floor; [46]
    12. (l)
      Ms Wildin rejected the offer;[47] and
    13. (m)
      On 4 February 2019, Mr Torr decided to move the class with Ms Wildin’s daughter to the ground floor of I Block, giving her access to her daughter’s classroom. [48]
  3. [27]
    In these circumstances, the Tribunal is not satisfied that the School imposed a term on Ms Wildin. The School provided opportunities for all parents, including Ms Wildin, to raise any concerns well before the start of school on 29 January 2019. Ms Wildin did not. When Ms Wildin ultimately conveyed her concerns, the School made arrangements. Those arrangements could have been made earlier, had Ms Wildin raised her concerns earlier.
  4. [28]
    Ms Wildin said she should not be required to give notice. However, all parents were given an opportunity to raise issues with classroom allocations. Within this context, it was reasonable for Ms Wildin to give notice to allow the School to ameliorate  her concerns.
  5. [29]
    At no stage did the State require parents or Ms Wildin to access the second storey. Equivalent classrooms were accessible and made available to Ms Wildin. Classrooms on top and bottom were identical. Because Ms Wildin did not need to access the top classroom, the School did not impose a term requiring her to access the top classroom. The State cannot be said to have imposed a term where Ms Wildin – or anyone – had no need to access the relevant area.
  6. [30]
    Equal access was provided through the provision of equivalent classrooms.[49]
  7. [31]
    In these circumstances, the State did not impose a term on Ms Wildin.

Was the imposition of the term reasonable?

  1. [32]
    Even if the Tribunal accepts that the School imposed a term, whether a term is reasonable depends on all relevant circumstances. These include the consequences of failure to comply with the term, the costs of alternative terms and the financial circumstances of the person imposing the term.[50] The onus is on the State to prove on the balance of probabilities that the term was reasonable.[51]
  2. [33]
    The test of reasonableness is objective, requiring the Tribunal to weigh the nature and extent of the discriminatory effect against the reasons for the condition or requirement.[52] It is less demanding than necessity, but more demanding than convenience.[53] The question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case.[54]
  3. [34]
    The Tribunal must weigh all relevant factors, including the reason for the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the respondent of accommodating the needs of the applicant and the availability of alternative methods of achieving the respondent’s objectives without recourse to the requirement or condition.[55]
  4. [35]
    The relevant circumstances here are:
    1. (a)
      I Block received a Certificate of Classification and was practically completed on 22 June 2011,[56] almost eight years before Ms Wildin raised any concerns;
    2. (b)
      Equivalent classrooms are on the ground level;[57]
    3. (c)
      On or around 5 September 2018 and several months before class allocations, the School provided Ms Wildin, through its newsletter, a form headed ‘Parent Information to Assist Placement for 2019 Classes’ inviting her to advise in writing of any special needs;[58]
    4. (d)
      The purpose of the form was to invite parents and caregivers to provide input into the formation of classes for 2019;[59]
    5. (e)
      The School is a large school of around 1,000 students and relies on information provided by teachers, parents and caregivers;[60]
    6. (f)
      Ms Wildin did not return a completed form to the School; [61]
    7. (g)
      In or around October 2018, Mr Torr set the parameters for the preparation of draft class lists for 2019 and included any specific parent and caregiver requests;[62]
    8. (h)
      On 10 December 2018, Mr Torr sent a letter to parents and caregivers, including Ms Wildin, advising that their child had been “allocated to 3G for 2019 in a Year 3 Class” and that their child’s “classroom allocation is I6”. The letter enclosed a ‘Classroom Spaces Map’ showing the relevant year 3 classroom as being in I Block; [63]
    9. (i)
      The map depicted all blocks apart from I Block in a single storey schematic. I Block was depicted in two-storey schematic, with the relevant year 3 classroom sitting above the four ground floor classes; [64]
    10. (j)
      Ms Wildin did not advise the School of any concerns she had about her daughter’s allocated classroom at this time, or any time before her complaint to the principal at the start of the school year on 29 January 2019; [65]
    11. (k)
      On or around 28 November 2018, the School advised Ms Wildin through its newsletter that on 10 December 2018 students would go to their classrooms as part of a “Transition Afternoon”; [66]
    12. (l)
      Ms Wildin’s daughter participated in the transition afternoon at the school on 10 December 2018 and was given a letter to take home that attached a map showing the location of her classroom; [67]
    13. (m)
      When Ms Wildin first raised her concerns at the start of the school year on 29 January 2019, the Deputy Principal, Paul McClintock and then Mr Torr offered to move Ms Wildin’s daughter to a classroom on the ground floor; [68]
    14. (n)
      Ms Wildin rejected the offer;[69] and
    15. (o)
      On 4 February 2019, Mr Torr decided to move the class with Ms Wildin’s daughter to the ground floor of I Block, giving her access to her daughter’s classroom. [70]
  5. [36]
    It is not unreasonable to not provide access where equivalent areas are accessible.[71] I Block was part of a project completed almost ten years ago that was funded by the Commonwealth Government and compliant when built.[72] No difference in education was provided between classrooms on the top level and the ground level. Children and classes were and are able to be located on the ground level. 
  6. [37]
    Part of a School’s operational requirements is allocating classrooms. Ms Wildin’s daughter was not allocated to her classroom until after Ms Wildin was given the opportunity to provide input.[73] Ms Wildin did not provide input until after the start of the 2019 school year, when classrooms had already been allocated.
  7. [38]
    It is relevant that Ms Wildin did not disclose her impairment in a timely manner to allow the School to address her concerns by other means.[74] Once she did, the School took immediate steps to address her concerns. Had Ms Wildin actively participated in the process of classroom allocations, access to the top level of I Block would not have been an issue for her. Member Kent applied similar reasoning in Patel v University of Queensland & Anor:[75]

It is noted that there had been a process for the applicant to make submissions to show cause… however he chose not to take up that opportunity. Following the expiration of the period for such submissions the student became disenrolled from the course. The Tribunal finds that this act was not an act of direct discrimination, victimisation and / or indirect discrimination by the first and second respondents against the applicant.

  1. [39]
    Ms Wildin had no need to access the top level. The School was prepared to locate students on the ground level throughout the allocation process, once access was brought to its attention. The evidence is that Ms Wildin would not have needed access even for the initial period, had she raised her concerns earlier.
  2. [40]
    The consequences of failure to comply with the term are therefore minimal: Ms Wildin had no need for access. The School had a considerable number of classrooms, all the same with no need for Ms Wildin to go upstairs. It is not unreasonable to impose a term where Ms Wildin had no need to go.
  3. [41]
    The costs of Ms Wildin’s suggestion to install a lift or ramp have not been quantified but would self-evidently cost time and money. While the State’s resources would be considerable, their expenditure has implications for other areas of budget allocation across Government:

… responsible financial administration of the respondent requires budgeting and allocation of resources as well as prioritising the demands on such allocations…[76] 

  1. [42]
    I Block was part of a project completed almost ten years ago. Making it more accessible would require redesign and reconfiguration with commensurate cost implications and disruption to the school community. Within this context, the solution to accommodate the children on the ground floor with access arrangements for parents was not unreasonable.
  2. [43]
    Because equivalent classrooms with appropriate access were and are available, it is not possible to say the requirement of access was unreasonable.[77]

Did the State victimise Ms Wildin?

  1. [44]
    Ms Wildin claimed that the School victimised[78] her by making the decision to relocate the classroom and by failing to take steps to prevent the actions taken on the parents’ Facebook page.
  2. [45]
    Because Ms Wildin was unable to establish an agency relationship between the State and the Facebook page, the Tribunal has already found that the State is not responsible for any alleged acts of victimisation by the Facebook page. The State was under no legal obligation to restrain the actions of private citizens.
  3. [46]
    The Tribunal is unable to find any evidence that the School relocated the classroom or otherwise did any act for any reason in the Act, to establish it victimising Ms Wildin.[79] No evidence was adduced of the School doing an act because of the reasons in the Act.[80]
  4. [47]
    Rather, the evidence is that the School relocated the classroom in an endeavour to provide an expeditious and economical solution to address Ms Wildin’s concerns.
  5. [48]
    The Tribunal is not satisfied that the State victimised Ms Wildin.  

Is this consistent with human rights?

  1. [49]
    Because the Human Rights Act 2019 (Qld) commenced on 1 January 2020, it post-dates these events and does not apply. In any event, the Tribunal has been unable to find any indirect discrimination or victimisation by the State on the evidence before it. Equally, no contravention of Ms Wildin’s human rights[81] arises from the evidence.
  2. [50]
    The Tribunal is a creature of statute and the application of the relevant law to the evidence does not meet the requisite standard to make any findings of a contravention of human rights.[82]

What are the appropriate orders?

  1. [51]
    Given the accessibility of equivalent areas, Ms Wildin being given the opportunity to be involved in the allocation of her daughter’s classroom, Ms Wildin not providing input at the relevant time, the minimal impact on Ms Wildin, the State providing a cost-effective access solution and the lack of any evidence of victimisation by the State, the Tribunal is not satisfied that Ms Wildin has established that the State indirectly discriminated against her or victimised her.[83]
  2. [52]
    The Tribunal will allow the parties to make submissions about costs.
  3. [53]
    The appropriate orders are therefore:
  1. The application is dismissed.
  1. Andrea Wildin is to file with the Tribunal and give the State of Queensland any submissions on costs by 4.00pm on 29 January 2021.
  2. The State of Queensland is to file with the Tribunal and give Andrea Wildin any submissions on costs by 4.00pm on 12 February 2021.
  3. Andrea Wildin is to file with the Tribunal and give the State of Queensland any submissions in reply by 4.00pm on 19 February 2021.
  4. The costs of the proceedings will be determined on the papers and without an oral hearing not before 4.00pm on 19 February 2021.

Footnotes

[1]Andrea Wildin evidence-in-chief.

[2]Respondent’s Outline of Submissions On Objections To Evidence dated 18 September 2020, paragraph 4.

[3]Anti-Discrimination Act 1991 (Qld), s 175(1).

[4]Ibid, s 139, s 158.

[5]Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13], citing Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 and Fox v Percy (2003) 214 CLR 118, 128 (Gleeson CJ, Kirby and Gummow JJ).

[6]Anti-Discrimination Act 1991 (Qld), s 178.

[7]Watkins v Queensland Building Services Authority [2013] QCAT 535, [20].

[8]Gobus v Cairns and Hinterland Hospital and Health Services & Ors [2020] QCAT 134, [11].

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

[10]Virgtel Ltd & Anor v Zabusky & Ors [2008] QSC 213, [15] (Daubney J).

[11]Mineral Resources Engineering Services Pty Ltd v Commonwealth Bank of Australia [2016] QSC 232; Harrison v Terra Search Ltd & Ors [2014] QCAT 128, [6].

[12]Affidavit of Colin Torr sworn 14 May 2020, [50] – [51]; Affidavit of Paul McClintock sworn 14 May 2020, [34].

[13]Affidavit of Colin Torr sworn 14 May 2020, [50].

[14]Ibid, [51].

[15]Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480.

[16]Anti-Discrimination Act 1991 (Qld), s 133.

[17]Waters v Public Transport Corporation (1991) 173 CLR 349, 392.

[18]Anti-Discrimination Act 1991 (Qld), s 11.

[19]Anti-Discrimination Act 1991 (Qld), Schedule 1 (definition of ‘impairment’).

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

[21]R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228, 256 (Evatt J).

[22]Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, [85] (Heydon JA).

[23]Gobus v Cairns and Hinterland Hospital and Health Services & Ors [2020] QCAT 134, [7].

[24]Report of Joey Choi, Physiotherapist dated 16 March 2019; Report of Chieng Bing Wong, Podiatrist dated 6 September 2019; Letter Anna Harding, Psychologist to Andrea Wildin dated 19 August 2019 without diagnosis; NDIS letter to Andrea Wildin dated 27 November 2019.

[25]Report of Joey Choi, Physiotherapist dated 16 March 2019.

[26]Report of Dr Mark Paine, Consultant Neurologist dated 28 September 2017; Study results dated 28 September 2017.

[27]Letter Professor Pamela McCombe to AMP Claims – Insurance dated 24 August 2018.

[28]Briginshaw v Briginshaw (1938) 60 CLR 336, 346 (Dixon J).

[29]Anti-Discrimination Act 1991 (Qld), s 46, s 101.

[30]Andrea Wildin Statement of Facts, Written Submission Of Issues dated 10 September 2020.

[31]Respondent’s Contentions In Response dated 20 August 2019, [12a].

[32]Affidavit of Colin Torr sworn 14 May 2020, [23].

[33]Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165.

[34]Waters v Public Transport Corporation (1991) 173 CLR 349, 394.

[35][2020] QCAT 249, [106] citing Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, 185;      Waters v Public Transport Corporation (1991) 173 CLR 349, 393; State of New South Wales v Amery (2006) 230 CLR 174, 208.

[36]Affidavit of Colin Torr sworn 14 May 2020, [7].

[37]Ibid, [9].

[38]Ibid, [10].

[39]Ibid, [11]; Affidavit of Paul McClintock sworn 14 May 2020, [9].

[40]Affidavit of Colin Torr sworn 14 May 2020, [12].

[41]Ibid, [21]; Affidavit of Paul McClintock sworn 14 May 2020, [10].

[42]Affidavit of Colin Torr sworn 14 May 2020, [21].

[43]Affidavit of Colin Torr sworn 14 May 2020, [36]; Affidavit of Paul McClintock sworn 14 May 2020, [11].

[44]Affidavit of Colin Torr sworn 14 May 2020, [18].

[45]Ibid, [19] – [20].

[46]Ibid, [31]; Affidavit of Paul McClintock sworn 14 May 2020, [24] – [25].

[47]Affidavit of Colin Torr sworn 14 May 2020, [31]; Affidavit of Paul McClintock sworn 14 May 2020,

[48]Affidavit of Colin Torr sworn 14 May 2020, [46].

[49]Druett v Human Rights and Equal Opportunity Commission [2000] HREOCA 12; unlike Cocks v State of Queensland [1994] QADT 3.

[50]Anti-Discrimination Act 1991 (Qld), s 11(2).

[51] Ibid, s 205.

[52]Catholic Education Office v Clarke [2004] FCAFC 197, 215 citing Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251, 263 and Waters v Public Transport Commission (1991) 173 CLR 349, 383, 395-396. 

[53]Catholic Education Office v Clarke [2004] FCAFC 197, 215 citing Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251, 263.

[54]Catholic Education Office v Clarke [2004] FCAFC 197, 215 citing Australian Medical Council v Wilson (1996) 68 FCR 46, 61-62 and Commonwealth Bank v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, 112-113.

[55]Catholic Education Office v Clarke [2004] FCAFC 197, 215 citing Waters v Public Transport Commission (1991) 173 CLR 349, 383-384, 395. 

[56]Affidavit of Joanne Gill, Acting Executive Director, Infrastructure Planning and Delivery, sworn 14 May 2020, [7].

[57]Affidavit of Paul McClintock sworn 14 May 2020, [26].

[58]Affidavit of Colin Torr sworn 14 May 2020, [7].

[59]Ibid, [9].

[60]Ibid, [10].

[61]Ibid, [11]; Affidavit of Paul McClintock sworn 14 May 2020, [9].

[62]Affidavit of Colin Torr sworn 14 May 2020, [12].

[63]Ibid, [21]; Affidavit of Paul McClintock sworn 14 May 2020, [10].

[64]Affidavit of Colin Torr sworn 14 May 2020, [21].

[65]Ibid, [36]; Affidavit of Paul McClintock sworn 14 May 2020, [11].

[66]Affidavit of Colin Torr sworn 14 May 2020, [18].

[67]Ibid, [19] – [20].

[68]Ibid, [31]; Affidavit of Paul McClintock sworn 14 May 2020, [24] – [25].

[69]Affidavit of Colin Torr sworn 14 May 2020, [31]; Affidavit of Paul McClintock sworn 14 May 2020, [25].

[70]Affidavit of Colin Torr sworn 14 May 2020, [46].

[71]Druett v Human Rights and Equal Opportunity Commission [2000] HREOCA 12; unlike Cocks v State of Queensland [1994] QADT 3.

[72]Affidavit of Joanne Gill sworn 14 May 2020, [3], [5]; Affidavit of Paul McClintock sworn 14 May 2020, [33].

[73]Sluggett v Flinders University of South Australia [2000] HREOCA 26.

[74] Ibid.

[75][2019] QCAT 108, [151].

[76]Druett v State of New South Wales [2000] HREOCA 12, 18.

[77]Sluggett v Flinders University of South Australia [2000] HREOCA 26.

[78]Anti-Discrimination Act 1991 (Qld), s 130.

[79] Ibid, s 130(1).

[80]Murphy v New South Wales Department of Education [2000] HREOCA 14; TT & Ors v Lutheran Church [2013] QCAT 48, [108] - [110].

[81]Human Rights Act 2019 (Qld), s 15, s 19.

[82]Patel v University of Queensland & Anor [2019] QCAT 108, [147].

[83]Unlike Cocks v State of Queensland [1994] QADT 3; C v A [2005] QADT 14; Rushton v Muller [2012] QCAT 505; Skinner v Sully [2011] QCAT 589; Hunter v State of Queensland [2015] QCAT 179.

Close

Editorial Notes

  • Published Case Name:

    Wildin v State of Queensland

  • Shortened Case Name:

    Wildin v State of Queensland

  • MNC:

    [2020] QCAT 514

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    09 Dec 2020

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
3 citations
Jump To
Cite 1 - (1989) 168 CLR 165
Cite 2 - (1989) 168 CLR 165
Cite 3 - (1989) 168 CLR 165
Australian Medical Council v Wilson (1996) 68 FCR 46
2 citations
Jump To
Cite 1 - (1996) 68 FCR 46
Cite 2 - (1996) 68 FCR 46
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
C v A [2005] QADT 14
2 citations
Jump To
Cite 1 - [2005] QADT 14
Cite 2 - [2005] QADT 14
Catholic Education Office v Clarke [2004] FCA FC 197
5 citations
Jump To
Cite 1 - [2004] FCA FC 197
Cite 2 - [2004] FCA FC 197
Cite 3 - [2004] FCA FC 197
Cite 4 - [2004] FCA FC 197
Cite 5 - [2004] FCA FC 197
Cocks v State of Queensland [1994] QADT 3
4 citations
Jump To
Cite 1 - [1994] QADT 3
Cite 2 - [1994] QADT 3
Cite 3 - [1994] QADT 3
Cite 4 - [1994] QADT 3
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74
2 citations
Jump To
Cite 1 - (1995) 63 FCR 74
Cite 2 - (1995) 63 FCR 74
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
2 citations
Jump To
Cite 1 - [2011] QCATA 226
Cite 2 - [2011] QCATA 226
Druett v State of New South Wales [2000] HREOCA 12
4 citations
Jump To
Cite 1 - [2000] HREOCA 12
Cite 2 - [2000] HREOCA 12
Cite 3 - [2000] HREOCA 12
Cite 4 - [2000] HREOCA 12
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Freeman & Lockyer v Buckhurst Park Properties (1964) 2 QB 480
2 citations
Jump To
Cite 1 - (1964) 2 QB 480
Cite 2 - (1964) 2 QB 480
Gobus v Cairns and International Hospital and Health Service [2020] QCAT 134
3 citations
Jump To
Cite 1 - [2020] QCAT 134
Cite 2 - [2020] QCAT 134
Cite 3 - [2020] QCAT 134
Harrison v Terra Search Pty Ltd & Ors [2014] QCAT 128
2 citations
Jump To
Cite 1 - [2014] QCAT 128
Cite 2 - [2014] QCAT 128
Hunter v Queensland [2015] QCAT 179
2 citations
Jump To
Cite 1 - [2015] QCAT 179
Cite 2 - [2015] QCAT 179
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
2 citations
Jump To
Cite 1 - (2001) 52 NSWLR 705
Cite 2 - (2001) 52 NSWLR 705
Mineral Resources Engineering Services Pty Ltd v Commonwealth Bank of Australia; Hay v Commonwealth Bank of Australia (No 3) [2016] QSC 232
2 citations
Jump To
Cite 1 - [2016] QSC 232
Cite 2 - [2016] QSC 232
Murphy v New South Wales Department of Education [2000] HREOCA 14
2 citations
Jump To
Cite 1 - [2000] HREOCA 14
Cite 2 - [2000] HREOCA 14
New South Wales v Amery (2006) 230 CLR 174
2 citations
Jump To
Cite 1 - (2006) 230 CLR 174
Cite 2 - (2006) 230 CLR 174
R v War Pensions Entitlement Appeal Tribunal and Anor; Ex Parte Bott (1933) 50 CLR 228
2 citations
Jump To
Cite 1 - (1933) 50 CLR 228
Cite 2 - (1933) 50 CLR 228
Rohan Patel v University of Queensland & Anor [2019] QCAT 108
3 citations
Jump To
Cite 1 - [2019] QCAT 108
Cite 2 - [2019] QCAT 108
Cite 3 - [2019] QCAT 108
Rushton v Muller and Anor [2012] QCAT 505
2 citations
Jump To
Cite 1 - [2012] QCAT 505
Cite 2 - [2012] QCAT 505
Secretary, Department of Foreign Affairs and Trade v Styles & Anor (1989) 23 FCR 251
3 citations
Jump To
Cite 1 - (1989) 23 FCR 251
Cite 2 - (1989) 23 FCR 251
Cite 3 - (1989) 23 FCR 251
Skinner v Sully [2011] QCAT 589
2 citations
Jump To
Cite 1 - [2011] QCAT 589
Cite 2 - [2011] QCAT 589
Sluggett v Flinders University of South Australia [2000] HREOCA 26
3 citations
Jump To
Cite 1 - [2000] HREOCA 26
Cite 2 - [2000] HREOCA 26
Cite 3 - [2000] HREOCA 26
Smith v Corporation of the Synod of the Diocese of Brisbane & Ors [2013] QCAT 117
2 citations
Jump To
Cite 1 - [2013] QCAT 117
Cite 2 - [2013] QCAT 117
Taniela v Australian Christian College Moreton Ltd [2020] QCAT 249
2 citations
Jump To
Cite 1 - [2020] QCAT 249
Cite 2 - [2020] QCAT 249
TT and Ors v Lutheran Church of Australia Queensland District and Ors [2013] QCAT 48
2 citations
Jump To
Cite 1 - [2013] QCAT 48
Cite 2 - [2013] QCAT 48
Virgtel Ltd v Zabusky [2008] QSC 213
2 citations
Jump To
Cite 1 - [2008] QSC 213
Cite 2 - [2008] QSC 213
Walters v Public Transport Corporation (1991) 173 CLR 349
6 citations
Jump To
Cite 1 - (1991) 173 CLR 349
Cite 2 - (1991) 173 CLR 349
Cite 3 - (1991) 173 CLR 349
Cite 4 - (1991) 173 CLR 349
Cite 5 - (1991) 173 CLR 349
Cite 6 - (1991) 173 CLR 349
Watkins v Queensland Building Services Authority [2013] QCAT 535
2 citations
Jump To
Cite 1 - [2013] QCAT 535
Cite 2 - [2013] QCAT 535

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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