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Hickson- Jamieson v University of the Sunshine Coast[2020] QCAT 523

Hickson- Jamieson v University of the Sunshine Coast[2020] QCAT 523

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Hickson-Jamieson v University of the Sunshine Coast & Ors [2020] QCAT 523

PARTIES:

BREE HICKSON-JAMIESON

(applicant)

 

v

 

KENNETH YOUNG

(first respondent)

 

UNIVERSITY OF THE SUNSHINE COAST

(second respondent)

 

ROS CAPENESS

(third respondent)

 

QUEENSLAND COLLEGE OF TEACHERS

(fourth respondent)

APPLICATION NO/S:

ADL010-18

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

20 October 2020

HEARING DATES:

27 August 20203 September 2020

HEARD AT:

Brisbane

DECISION OF:

Member P Roney QC

ORDERS:

  1. The application by the First Respondent to strike out and dismiss the application against him is upheld, and the Applicant’s application against him is dismissed pursuant to s 47 of the QCAT Act.
  2. The application by the Third and Fourth Respondents to strike out and dismiss the application against them is upheld, and the Applicant’s application against them is dismissed pursuant to s 47 of the QCAT Act.
  3. The application by the Second Respondent to strike out and dismiss the application against it founded upon claims of direct discrimination is upheld and the Applicant’s application against it on that ground is dismissed pursuant to s 47 of the QCAT Act.
  4. In respect of the balance of the claims by the Applicant against the Second Respondent arising solely in respect of alleged indirect discrimination against her by the Second Respondent, the application by the Second Respondent to strike out or dismiss those claims is refused save in respect of any claims for indirect discrimination which relate to claims of discriminatory conduct which predate 9 March 2016.
  5. Insofar as the Applicant brings any claims for indirect discrimination against the Second Respondent or discriminatory conduct which predates 9 March 2016, that application is dismissed pursuant to s 47 of the QCAT Act.
  6. The Applicant is directed to file and serve on the Second Respondent within 21 days of the delivery of these Reasons a new points of contention document which coherently identifies the material facts relied upon to establish conduct allegedly constituting indirect discrimination against her by the Second Respondent on or after 9 March 2016 and sets out the legal foundation for such a claim and the relief or remedies sought in respect of it.
  7. The parties have liberty to apply in respect of any other consequential or other orders which might be required to be made.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – striking out application – allegation of direct discrimination by university and educational institutions related to teaching profession – indirect discrimination – striking out and/or dismissal of an Applicant's claim set out in an amended Statement of Contentions pursuant to s 47 of the QCAT Act – where noncompliance with directions – when power to strike out is to be used – whether abuse of process – where complaint required to be made within 12 months of the relevant discriminatory conduct and out of time – whether discriminatory conduct “on the basis of” a relevant attribute – parental responsibilities – discrimination in the education and pre-education area – “educational authority” – whether discrimination by persons who have the power to grant, renew or extend a qualification or authorisation for, or facilitate the practice of a profession or a trade – where Tribunal not bound by characterisation of the complaint by the ADCQ in referral  to the Tribunal.

Anti-Discrimination Act 1991 (Qld) s 5, s 7, s 8, s 10, s 11, s 21, s 22, s 39, s 178, s 204

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

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

Aigner v State of Queensland and Anor [2012] QCAT 397

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

Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937

Carr v Baker (1936) 36 SR (NSW) 301

Cocks Macnish & Anor v Biundo [2004] WASCA 194

Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713

Department of Health v Arumugam [1988] VR 319

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

Gama v Qantas Airways Limited (No. 2) [2006] FMCA 1767

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Gough v State of Queensland [2013] QCAT 320 

Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261

Jones v Dunkel (1959) 101 CLR 298

Julian Moti v R (2011) 283 ALR 393

Kapoor v Monash University [2001] 4 VR 483

Lightning Bolt Co Pty Ltd v Skinner & Anor [2002] QSC 62

MM and MD v State of Qld [2014] QCAT 478

O'Callaghan v Loder (1984) EOC 92-024

Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62

Qantas Airways Ltd v Gama (2008) 167 FCR 537

R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155

Sharma v Legal Aid (Queensland) (2002) EOC 93-231

Sharma v Legal Aid Queensland (2002) EOC 93-191; [2001] FCA 1699

Shaw v State of New South Wales [2012] NSWCA 102

Waters & Ors v Public Transport Corporation (1991) 103 ALR 513; [1991] HCA 49

West Midlands Passenger Transport Executive v Singh [1988] 2 All ER 873

Wilson v Lawson [2008] QADT 27

Yohan v Qld Basketball Incorporated [2010] QCAT 459

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondents:

First and Second respondents represented by M Minucci of Counsel instructed by Clayton Utz

Third and Fourth respondents represented by S Hamlyn–Harris, of Counsel instructed by Crown Law

REASONS FOR DECISION

  1. [1]
    The First and Second Respondents have filed an application dated 8 May 2020 seeking to strike out and/or dismiss the Applicant's claim as set out in her amended Statement of Contentions filed 7 June 2019 (ASOC), pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). In effect they seek summary dismissal of the entire claim brought in this Tribunal. The Third and Fourth Respondents have also filed an application dated 7 May 2020 to strike out and/or dismiss the Applicant's claim as set out in her ASOC, also pursuant to s 47 of the QCAT Act. Some of the bases for those two applications correspond, but in material respects they do not.
  2. [2]
    For their purposes the First and Second Respondents rely on affidavits of the First Respondent Dr Kenneth Young, Shelley Louise Dole, Tammy Ann Thompson, Alexandra Sharp, and Jane Anderson. The Third and Fourth Respondents rely on the affidavits of the Fourth Respondent and Deanne Fishburn. Those seven affidavits are the affidavits that those parties were to rely on at a trial or full merits hearing. I am invited by the Respondents to have regard to all of that evidence in the strike out applications. It is a matter that has troubled me considerably that in order to decide the strike out application, the Tribunal has been in effect required to analyse all the testimony that would have been in issue at a trial itself.
  3. [3]
    The Applicant filed her original application in the Tribunal on 21 March 2018 and it has now been ongoing for more than two and a half years. The Respondents contend that the Applicant has been on notice since at least April 2018, of what were said to be fundamental deficiencies regarding her application and given opportunities by the Tribunal to amend her claim to address such deficiencies.
  4. [4]
    The First and Second Respondents have previously applied to strike out the claim. It was submitted before me that the Applicant was given a further opportunity subsequent to that strike out application, to again amend her claim. In reasons delivered by Member Cranwell on 26 February 2019, this tribunal rejected submissions that the Applicant had engaged in an abuse of process in the manner in which she had conducted the matter, and was not prepared to accept that she was the cause of delays that had occurred. He rejected arguments, such as the alleged failure by the Applicant to mitigate her loss as not being a basis to summarily dismiss the application. He also rejected the contention that her case was so obviously lacking in merit as against the First and Second Respondents that it should be struck out. As the reasons observe, the Third and Fourth Respondents did not put forward any differing arguments than those put up by the First and Second Respondents, in that earlier strike out application, merely adopting them. In large part, but not entirely, the same arguments as were rejected by Member Cranwell in the reasons of 26 February 2019 have been remade to me, with other supplemental argument accompanying.
  5. [5]
    The First and Second Respondents filed and rely in their applications before me of some 52 pages of written submissions. The essence of the arguments put is that despite the Applicant being granted “an inordinate number of opportunities to do so, and consistently being late with compliance or seeking extensions of time after deadlines have passed above and contrary to what the Applicant asserts about this issue), the Applicant has failed in every material respect” to:
    1. (a)
      properly plead any claims against the Second Respondent;
    2. (b)
      properly identify any relevant cause of action and to provide evidence which supported her claims against either the First or Second Respondents;
    3. (c)
      address that the allegations against the First Respondent are out of time so far as they relate to matters arising in 2015; and
    4. (d)
      address the proposition that the evidence cannot substantiate any finding that the Respondents had discriminated against the Applicant as alleged in the ASOC or otherwise.

Issues of legal principle – striking out under s 47 of the QCAT Act

  1. [6]
    QCAT has the power to bring an early end to proceedings under s 47 of the QCAT Act if the Tribunal considers the proceeding is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process.
  2. [7]
    The First and Second Respondents’ submissions are almost entirely devoid of references to any case law authority in support of any of the arguments put forward, or as to the correct approach to be adopted in an application of this type.
  3. [8]
    I will set out in what follows what the settled approach is.
  4. [9]
    The power to strike out is to be used sparingly and only in clear cases. To summarily dispose of the proceedings is one which calls for the exercise of “exceptional caution”: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 (at 129) per Barwick CJ.
  5. [10]
    The power cannot be exercised “once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it”: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 (at 91) per Dixon J.
  6. [11]
    It is only to be exercised “when the action is clearly without foundation and … to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff”: Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 (at 720) per Dixon J.
  7. [12]
    The “Court is not concluded by the manner in which the litigant formulates his case in his pleadings”: Cox v Journeax (No 2) (at 720) per Dixon J. 
  8. [13]
    The fatal defects in an Applicant’s case must be very clear before the Court will intervene to strike out a pleading: Shaw v State of New South Wales [2012] NSWCA 102 (at [30]ff) per Barrett JA (Beazley, McColl, Macfarlan JJA and McClellan CJ at CL agreeing); Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 (at 944 – 945) per Cross J.
  9. [14]
    A “high degree of certainty” that the Applicant’s case will fail if it goes to trial is required: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 (at [57]) per Gaudron, McHugh, Gummow and Hayne JJ. Hence a Court will only strike out the pleading on the basis that it does not disclose a reasonable cause of action if, on the face of the pleading, it is obvious that the claim is bound to fail and cannot be remedied by amendment.
  10. [15]
    If it has prospects of success, but the claim is not adequately expressed in the pleading, the Court should not dismiss the proceedings or the particular claim, but should grant leave to the Applicant to file an amended statement of claim or cross-claim (in the case of an application in respect of a cross-claim). See generally Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 943–944.
  11. [16]
    An application to strike out a part of a pleading is inappropriate where to resolve the argument the Court needs to consider disputed questions of fact, or review the entirety of the Applicant’s case, having regard to all of the evidence adduced at trial in order to resolve the alleged inadequacies, or to determine complex questions of law which are best left to final submissions at a trial. Sadly, in this case the Tribunal has been invited to consider disputed questions of fact, or review the entirety of the Applicant’s case, having regard to all of the evidence filed so far. In this Tribunal it is well recognised that there is a duty on an Applicant to actively progress matters to a hearing.
  12. [17]
    In Gough v State of Queensland [2013] QCAT 320 Senior Member Endicott said in relation to a strike out that anti-discrimination cases are not dismissed lightly as the law expects that everyone should have the right to equal protection under the law.

[20] The respondent has relied on the authority of the decision by the High Court of Australia in Brisbane South Regional Health Authority v Taylor1 in which McHugh J discussed why a significant delay in bringing proceedings gives rise to prejudice. His comments are, in my view, as equally pertinent to how prejudice will arise when there is a significant delay in finalising a proceeding. McHugh J’s comments apply in this case to reinforce the sentiment that it would be oppressive to the respondent to allow this complaint to be delayed in its resolution long after the circumstances which gave rise to the complaint have passed. I accept that the public interest requires that disputes are resolved as quickly as possible.

[21] The respondent submitted that there is in fact a statutory obligation on QCAT to progress the complaint as expeditiously as possible in s 3(b) of the QCAT Act. The complaint has been before the Commission and then at QCAT for a period in excess of two years now and apart from filing her contentions, there have been no steps undertaken by Ms Gough to progress that complaint. The respondent submitted that the failure of Ms Gough to progress the complaint has resulted in the time and resources of the tribunal being diverted from other applicants who wish to progress their applications conscientiously.

…

[30] Anti-discrimination cases are not dismissed lightly as the law expects that everyone should have the right to equal protection under the law. However civil rights are accompanied by civil responsibilities and once proceedings are on foot, it is in the public interest that parties participate fully and expeditiously in the process, without causing unnecessary disadvantage to each other and that parties are willing to take advantage of the processes for dispute resolution before a hearing.

  1. [18]
    In Aigner v State of Queensland and Anor [2012] QCAT 397 Senior Member Endicott held as follows:

[11] In addition, this case is one where Ms Aigner contends that her human rights have been breached by the actions of the respondents. That is a factor that bears on the consideration of how QCAT must discharge its statutory obligations to deal with matters in a way that is accessible and fair as well as being just. QCAT must also act with as little formality and technicality as a proper consideration of the matters before the tribunal permits.2 It is the antithesis to being accessible for QCAT to dismiss a proceeding without a hearing on its merits when the case for dismissal is based on a technical construction of the evidence and not on evidence tested by questioning at a hearing.

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

[13] Given that legislative foundation, it would be incongruous, in view of QCAT’s own statutory obligations to be accessible and fair, should QCAT be too ready to prevent a person having the benefit of an independent hearing about an alleged breach of their human rights. There will be cases where nothing more than mere assertions are made about an alleged breach or where the filed evidence is sufficiently tangential to the issues to be determined to warrant summary dismissal but this case is not one of those.

The uncontroversial factual background to the principal application in this Tribunal

  1. [19]
    In very broad terms, the factual background to the application by Ms Hickson- Jamieson in this Tribunal arises out of the fact that the Applicant was, in 2015 and early 2016, enrolled in studies to receive a Graduate Diploma in Education at the University of the Sunshine Coast, which is the Second Respondent to the application. Had she received the Graduate Diploma for which she was enrolled, she would have been entitled, assuming other procedural requirements were met, to be a secondary school teacher. The Applicant is the mother of two children for whom she cares, one of whom suffers from a seizure disorder and an intellectual impairment.
  2. [20]
    It is common ground that for the purposes of completing the course for the Diploma, she was required to participate in and complete a period of supervised professional experience (which I shall refer to in these reasons as professional experience or SPE) at a particular school.
  3. [21]
    It is common ground that the Fourth Respondent has responsibility for setting the requirements for registration as a teacher in Queensland, including accreditation. To be registered as a teacher in Queensland and teach in a Queensland School, a person must meet the relevant requirements established by the Fourth Respondent. One of those requirements is the completion of an accredited education course. The Graduate Diploma in Education (Secondary) (the Diploma) offered by the Second Respondent was one such course. The Diploma was accredited by the Fourth Respondent on 5 December 2014. As part of the accreditation, the Fourth Respondent approves the course content and any significant changes must be approved by the Fourth Respondent.
  4. [22]
    In broad terms, the Fourth Respondent, the Queensland College of Teachers, is established by statute, under the Education (Queensland College of Teachers) Act 2005 (Qld). Under Chapter 10 of that Act, the College of Teachers is established, and it has allocated functions concerning registration of teachers and giving permission for teachers to teach, testing applicants for registration, certification of teachers, and approval of pre-service teacher education programs. It was in the latter capacity in relation to the approval of pre-service teacher education programs that it was in communication with the Applicant during 2015 and 2016.
  5. [23]
    According to uncontroversial evidence, teacher education programs are nationally accredited, and one of the requirements, which is a minimum requirement set nationally and recorded in a relevant standard, is that trainee teachers perform a minimum of 60 days’ supervised teaching experience for a graduate course. That was a position in 2015 and 2016 when the events relevant to this claim occurred.
  6. [24]
    The Queensland College of Teachers has the capacity to approve particular courses at educational institutions, and in this particular case the College of Teachers had approved the course “Graduate Diploma in Education (Secondary)” at the First Respondent’s University. The approved course at the Second Respondent University required 62 days of SPE/professional experience or under two modules described as “teaching practice”.
  7. [25]
    It is common ground that in or about September 2015, the Applicant was placed at Maroochydore State High School to complete the SPE requirement for one of the courses she was enrolled in. The Applicant had requested that for her SPE she be placed in a school that was close to where her son was going to school initially verbally and then through the SPE form. The placement at Maroochydore State High School met that criteria.
  8. [26]
    It is uncontroversial that the SPE for the purposes of the Diploma was performed at a placement school with registered teachers conducting supervision of the students undertaking the SPE. Schools and registered teachers participate in the SPE voluntarily, that is the School and supervising teachers offer their time for furthering the education of preservice teachers. For the purposes of the two relevant courses the SPE involved a 31-day block of full-time supervised teaching in order to meet QCT's SPE requirements. This was outlined in USC's University Graduate Diploma of Education SPE Handbook. As outlined in the Handbook, the SPE requires that students arrive at the school at which they are placed at least 30 minutes before the SPE site day begins and remain behind after the formal school period to attend staff meetings, review lessons and meet with the supervising teacher as required. Students are also expected to, proactively, make contact with the SPE school once placement is confirmed to make a time to meet with their supervising Teacher or coordinator in order to commence the necessary planning and preparation for teaching.
  9. [27]
    According to the uncontroversial evidence of the Director of the Queensland College of Teachers, Ms Fishburn, at the time of the relevant events, there was no approved Queensland program that accommodated a part-time pathway for completing the professional experience component. On her evidence, however, the College of Teachers had previously considered and approved adjustments for professional experience requirements at universities in exceptional circumstances, examples of which included permitting part-time completion to a student living with a disability and another involving a student with a hearing impairment.
  10. [28]
    It is also uncontroversial that if a student wished to seek a variation to the SPE, that this must be approved by the Fourth Respondent. If the First Respondent permitted a student to vary the SPE without first seeking the Fourth Respondent’s approval, there is seen to be a risk that the student would not be granted provisional teacher registration on graduation.
  11. [29]
    The practice, disclosed by apparently uncontroversial evidence, is that if a student feels, for their particular personal circumstances, that they cannot complete SPE in any semester, they have enough time to make alternative arrangements or otherwise defer the relevant course to another semester. Minor adjustments necessary because of students not being able to attend on a particular day due to illness or other exceptional circumstances, are contemplated by the student being able to apply for an absence and a corresponding extension to their SPE placement. That is accommodated where such adjustments cause little disruption to their SPE and do not alter the inherent requirements. Where adjustments that would otherwise impact on whether the student can meet the approved SPE requirements are sought, these need to be approved by Fourth Respondent, on the recommendation of the Second Respondent University. In this case, the Second Respondent did not recommend any adjustment to accommodate the Applicant’s circumstances.
  12. [30]
    The Applicant ultimately accepted her placement at Maroochydore State High School for the purposes of the SPE. The Respondents contend that at no time prior to the commencement of the SPE did the Applicant advise the First Respondent of the particular circumstances of her son, or otherwise provide the First Respondent with any information other than the fact that she needed to be placed in close proximity to her home and her son’s school. The Applicant also did not make contact with the First Respondent to raise issues with the SPE placement at Maroochydore State High School or to suggest that her son's circumstances had changed such that it would impact on her being able to complete the SPE. The Applicant, along with 14 other students, was due to commence her SPE on 10 September 2015, and be completed by 20 November 2015. However, on 8 September 2015, the Applicant wrote to Maroochydore State High School and advised them that she would not be attending for SPE on 10 September.
  13. [31]
    On 16 September 2015, the Applicant met with the First Respondent and requested to change her placement. She said that she was the carer for her son who had special needs but asked the Second Respondent to keep that information confidential.
  14. [32]
    On 18 September 2015, the First Respondent wrote to the Applicant to schedule a meeting to discuss a number of concerns that had been raised by Maroochydore State High School about her lack of performance. A meeting was then held.
  15. [33]
    The Applicant attended Maroochydore State High School for two days on 8 and 9 October 2015. Between 10 September 2015 and 15 October 2015, the Applicant only attended for four days of the scheduled SPE. On 15 October 2015, the Applicant wrote to the First Respondent and advised him she had not prepared the timetable as they had discussed.
  16. [34]
    In October 2015, the Applicant was provided with a timetable of classes she needed to attend, given some flexibility regarding her start times at the beginning of the day, and told that the school would ensure the class the Applicant would teach would be in the middle of the day. The Applicant did not attend any further SPE days at the school.
  17. [35]
    On 19 October 2015, the Applicant met with the Deputy Principal of Maroochydore State High School to discuss possible alternative SPE arrangements or relocating to another school. The Applicant asked whether they could accommodate restricted hours and days of SPE, but the school could not.
  18. [36]
    On 23 October 2015, the Applicant’s placement at Maroochydore State High School was terminated and she was advised she would receive a fail grade for the course. The principal reason given for terminating the placement was because the Applicant was not able to meet the requirements of the placement, including arriving on time and staying after school when required.
  19. [37]
    In Semester 1, 2016, the Applicant again enrolled to undertake the same course as previously. On 29 February 2016, the Second Respondent wrote to the Applicant and advised her that he was willing to progress any application for proposed adjustments to her SPE requirements. The Second Respondent told the Applicant that she would need approval from the Fourth Respondent and would need to provide details of any accommodations sought, and how this would allow her to complete the mandatory 31-day SPE requirement. On 4 March 2016, the Applicant provided her SPE form to Ms Thompson and nominated five schools. In her form, the Applicant indicated that she could not attend a school that was more than 20 minutes from the  Special School which her son attended, due to the fact that she was a carer for her son.
  20. [38]
    The Applicant made reference to a so-described Learning Access Plan several times. The Respondents contend that the Applicant did not at any time make an application for a Learning Access Plan, but such a Plan was not necessary for the Applicant’s purposes, given that any student can seek reasonable academic adjustments and a Learning Access Plan was not required for adjustments relating to carers.
  21. [39]
    It is critical under the Anti-Discrimination Act 1991 (Qld) (the AD Act) to note that any complaint was required to be made within 12 months of the relevant discriminatory conduct. Since the complaint was made on 9 March 2017, it could only concern discriminatory conduct on or after 9 March 2016. The referral of the matter to this Tribunal was only of those elements of the complaint that were not out of time. That distinction is not apparently drawn in the way the Applicant seeks to advance her case, and it seems to include allegations concerning discriminatory conduct which occurred before 9 March 2016. Whilst this factual background may be relevant, and included in the narrative set out in the points of contention, to discriminatory conduct which occurred on or after  9 March 2016, matters that are said to have occurred from June 2015 and in or about October 2015 are out of time, were not referred to the Tribunal and were beyond the jurisdiction of the Tribunal. On that basis, any claims that are said to have arisen prior to 9 March 2016 must be struck out.
  22. [40]
    The events I now describe occurred within time, i.e. on or after 9 March 2016. Those previously set out above do not.
  23. [41]
    In March 2016, the Applicant requested a placement within 20 minutes of  her son’s Special School on the basis that she was a carer for her son. On 10 March 2016, Ms Thompson asked the Applicant whether she would consider going to the Caloundra State High School. But the Applicant said that would not be convenient to her because of the time at which classes at that school would finish.
  24. [42]
    On 24 March 2016, the Second Respondent wrote to the Applicant and observed that as they cannot accommodate SPE for her within the dates and times that she had specified in her previous emails, it may be better for her to withdraw from the subject, as the Applicant indicated in her email. Without making any further contact with the Second Respondent or Ms Thompson, on 8 April 2016, the last day for withdrawal from enrolment in the subject, the Applicant wrote to the Second Respondent University requesting an adjustment to her SPE.
  25. [43]
    On 15 April 2016, the Applicant wrote to the Second Respondent University, via Ms Thompson, asking whether her request for an adjustment to the SPE had been approved. Ms Thompson replied that the Fourth Respondent needed to approve an alteration to the conditions of the SPE placement; and Ms Thompson could only approach schools to negotiate on an altered SPE placement arrangement once approval had been given by the Fourth Respondent to alter the SPE requirement.
  26. [44]
    On 18 April 2016, the Applicant then emailed the Second Respondent University via Professor Dole again and said that she had tried to find out which school she had been allocated to for the purposes of her SPE placement, but that she was told she could not be allocated to a school until the Fourth Respondent approved her placement. That same day, Professor Dole wrote back and said that in order for the First Respondent to make an application to the Fourth Respondent to alter the SPE placement arrangements on the Applicant’s behalf, the Applicant needed to provide specific information.
  27. [45]
    The objective documentary evidence suggests that the Applicant did not, at any time, provide that further information to the First Respondent to substantiate any formal submission in relation to a change of SPE requirements for the subject and therefore the Applicant was not allocated to a school for the purposes of the SPE requirement in the subject in 2016. She subsequently received a fail grade for the course as she did not withdraw prior to the requisite date and did not complete SPE.
  28. [46]
    The Applicant alleges inter alia that her SPE placement in 2015 was terminated because the Respondents refused to accommodate her request.
  29. [47]
    She alleges that the First Respondent discriminated against her by reason of his email dated 24 March 2016. She alleges that she has not been able to complete her SPE placement, because of the conduct of the Respondents. She alleges she has suffered loss and damage because she is now unable to graduate from the Diploma and now the course requirements have changed. She alleges that the Respondents denied her a Learning Assistance Plan and that the Respondents lost her documents, and did not support her.

Relevant provisions of the AD Act

  1. [48]
    Section 7 of the AD Act prohibits discrimination on the basis of certain attributes and these attributes include relevantly for present purposes, impairment and parenting responsibilities.
  2. [49]
    Section 10 of the AD Act provides the definition of direct discrimination on the basis of an attribute. It provides as follows:

10 Meaning of direct discrimination

  1. (1)
    Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

Example—

R refuses to rent a flat to C because—

  • C is English and R doesn't like English people
  • C's friend, B, is English and R doesn't like English people
  • R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R's belief about C's or B's nationality, or the characteristics of people of that nationality, is correct.

  1. (2)
    It is not necessary that the person who discriminates considers the treatment is less favourable.
  1. (3)
    The person's motive for discriminating is irrelevant.

Example—

R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R's conduct amounts to discrimination against C.

  1. (4)
    If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
  1. (5)
    In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.
  1. [50]
    The question that must be answered affirmatively if such a claim is to succeed is whether the particular conduct which is complained of here has been shown to be “on the basis of an attribute” within the meaning of s 8 and s 10 of the AD Act.
  2. [51]
    Section 8 of the AD Act provides:

8 Meaning of discrimination on the basis of an attribute

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of:

  1. (a)
    a characteristic that a person with any of the attributes generally has; or
  1. (b)
    a characteristic that is often imputed to a person with any of the attributes; or
  1. (c)
    an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
  1. (d)
    an attribute that a person had, even if the person did not have it at the time of the discrimination.

Example of paragraph (c):

If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.

  1. [52]
    Section 10(3) of the AD Act provides that “the person’s motive for discriminating is irrelevant”.

Example—

R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C.

  1. [53]
    Section 11 of the Act, provides as follows:

11 Meaning of indirect discrimination

  1. (1)
    Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
  1. (a)
    with which a person with an attribute does not or is not able to comply; and
  1. (b)
    with which a higher proportion of people without the attribute comply or are able to comply; and
  1. (c)
    that is not reasonable.
  1. (2)
    Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
  1. (a)
    the consequences of failure to comply with the term; and
  1. (b)
    the cost of alternative terms; and
  1. (c)
    the financial circumstances of the person who imposes, or proposes to impose, the term.
  1. (3)
    It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
  1. (4)
    In this section—

term includes condition, requirement or practice, whether or not written.

Example 1—

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.

Example 2—

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.

The case which the Applicant wishes to advance against the First and Second Respondents

  1. [54]
    The most recent attempt at articulating her case apart from what was put in argument in resisting the present application, appears in the Applicant’s Statement of Contentions served on the other parties on 7 June 2019. It appears that this Statement of Contentions which she calls her “Revised Statement of Contentions”, and which I am calling the ASOC, was the result of her obtaining legal advice. In an email to the other parties of 7 June 2019, she said she was able to obtain legal advice on 5 June 2019 and had “applied that advice”.
  2. [55]
    The ASOC is in many respects identical to her original Statement of Contentions dated 23 August 2018. The revised Statement of Contentions is not marked up to show where it differs from the earlier Statement of Contentions.
  3. [56]
    After citing relatively innocuous facts it contends at paragraph 45 and 46 in relation to the conduct of the College of Teachers and Ms Capeness that she was subjected to direct discrimination in being told that she ought to “reconsider whether she should be a registered teacher given her family’s circumstances”. I deal with whether this is capable of constituting direct discrimination later.
  4. [57]
    The second allegation which is difficult to grasp conceptually, is that a person unidentified at the Second Respondent University, that is, it is not said who it was, engaged in discriminatory conduct, because the Second Respondent University’s procedure was not followed when the Applicant’s placement at Maroochydore State High School was terminated. It is not apparent how the failure to comply with a procedure in and of itself constitutes direct discrimination and the treatment of her less favourably than other students would have been treated. Those respects in which the procedure is said not to have been followed concerns whether a meeting or discussion of other options were offered to her prior to the placement being terminated, and what is said to be her not being initially offered or provided with a referral to student services or counselling services.
  5. [58]
    Again, it is not immediately obvious, or even upon careful review how not presenting those options, was direct discrimination against her, even if the procedures of the Second Respondent University did contemplate those events occurring.
  6. [59]
    Entirely absent from the case that she puts is that the Second Respondent University’s conduct in that regard occurred on the basis of the protected attribute, namely her parental responsibilities.
  7. [60]
    In paragraphs 47 to 55, she seeks to articulate a case of indirect discrimination. What is said is not directed to the conduct of any particular Respondent except the Fourth Respondent, although there is a rolled-up proposition in paragraph 55 that both the Second Respondent University, and the College of Teachers, breached s 39 of the Act as educational authorities by treating her unfavourably in connection with her training and instruction. No particular conduct was identified in that regard.
  8. [61]
    Demonstrably one of the matters that she relies upon, as set out in paragraph 54 of her ASOC, concerns events which are out of time in that they occurred in 2015, and no times are put on any of the other matters referred in that paragraph, so it is not immediately obvious whether they occurred within time or not. She references a request to complete the part-time modification at the suggestion of the College of Teachers, however the Second Respondent University “imposed the full-time term requirement” and the Second Respondent University did not “put the Applicant’s modification request forward to QTC”. These complaints all appear to be directed solely to the Fourth Respondent. None of them appear to be directed to any of the other Respondents.

The case against Dr Young, the First Respondent

  1. [62]
    The First Respondent, Dr Young, is a lecturer, and the Education and Program Coordinator at the Second Respondent University.
  2. [63]
    As the Program Coordinator, he is required to have a working knowledge of the accreditation requirements of the Graduate Diploma in Education (Secondary) that the Applicant was enrolled in at the Second Respondent University.
  3. [64]
    The elements of the Diploma course were accredited by the College of Teachers and in that context, the College of Teachers approves the course content. The course content included two compulsory courses which I have already described, as essentially “Prac-teaching”. Therefore the course requirements of the Second Respondent University were that all students undertaking the Diploma course do those two practice subjects. The SPE was set out in detail in the University handbook, and as I have described elsewhere specific requirements and attributes. There is nothing to suggest that Dr Young had any discretionary power to waive any of those requirements, whether in his role as the Program Coordinator, or otherwise.
  4. [65]
    Therefore, the suggestion that he, or the University vicariously, directly discriminated against the Applicant by enforcing the course requirements in that regard is fundamentally misconceived. The course requirements were not brought into existence because of her, or because of her attribute or in any way enforced in a way which was in any way different to the way the course requirements were enforced against all other students.
  5. [66]
    I will turn to the alternative argument that there was some indirect discrimination against her on the University’s part by not modifying the requirements where it would have been reasonable to have done so in a moment. Suffice it to say that the notion that simply by managing the requirements of the University in relation to Prac-teaching for students enrolled in those subjects cannot amount to discrimination on the part of Dr Young. Conceptually it might amount to indirect discrimination on the part of the Second Respondent University which ultimately was the entity which potentially had the power to waive or modify the requirements in her particular circumstances, circumstances in which it was unreasonable that they did not.
  6. [67]
    There is no specific conduct at all alleged against the First Respondent in the ASOC. The evidence though shows that the First Respondent wrote the Applicant a letter on 22 March 2016. In that letter, in his capacity as the program coordinator, Dr Young, wrote to the Applicant stating that for particular reasons, he was not going to approve and did not approve her request for an adjusted program for her SPE. On that basis he said that the Second Respondent University could not “progress” her case to the College of Teachers. He urged her effectively to look at other avenues that might provide her with financial support to meet the program requirements, which included the necessity for full days of attendance. In other words, he was not prepared to alter the specific program requirements or to advance the case for the QTC to allow that to occur.
  7. [68]
    The basis upon which he explained his position in that letter was that the Queensland College of Teachers had advised that it was an essential program requirement that the SPE be taken in a block, not broken-up, as she had requested over six weeks’ placement for three days at a time followed by two weeks’ placement of five days per week and other days here and there. He seemed to take the view based on the advice of others that a recommendation to adjust an SPE placement could not occur if it altered the “inherent or essential requirements of the placement program”.
  8. [69]
    He refers in that letter to having spoken to the Third Respondent Ms Capeness on behalf of the College of Teachers, and her advice was that the “block practicums are the most appropriate means for pre-service teachers to demonstrate attainment of the Australian Professional Standards for Teachers at the Graduate level”. He was not apparently closing off any possible adjustments to the program, but noted that it had to be approved by the Second Respondent University program coordinator and then sent to the QTC for their approval. Assuming that to be true, the Second Respondent had some control or influence over the situation.
  9. [70]
    The second issue he mentioned concerned nuts and bolts issues about particular schools that she might have been able to attend, but he was concerned about her inability to attend a full day and in his view, as he had previously advised her, it was necessary for her to be in attendance at the school 30 minutes prior to the beginning and 30 minutes after the conclusion of the school day for specified reasons.
  10. [71]
    Since Dr Young was not satisfied that she could attend full days as required by the program, he did not approve her request for an adjusted program.
  11. [72]
    A reading of that letter, together with contentions made against the Second Respondent University, does not self-evidently identify any case that she seeks to bring against Mr Young personally.
  12. [73]
    The Applicant does not make any allegation that the First Respondent himself engaged in any discriminatory conduct, either directly or indirectly. If an employee or officer of an organisation, in the course of their duties, writes a letter or makes a decision on behalf of their employer, it does not necessarily follow, that without more that individual has personally engaged in discriminatory conduct.

The direct discrimination case against the Second Respondent University

  1. [74]
    As I shall mention shortly, the nature and character of the Applicant’s case has taken a different direction to that set out in her ASOC and is described differently again in the submissions which she filed resisting the present application. As identified in those submissions, she contends that the direct discrimination against her by the Second Respondent University was on seven different bases and in subtle respects is different to the bases outlined in her ASOC:
    1. (a)
      She did not fit the criteria for a Learning Access Plan which would give her support in the school placement or in requesting reasonable adjustments that would allow her to participate as other students did. This cannot, in my view, amount to direct discrimination.
    2. (b)
      She would have difficulty with the school placement policy if it placed her at a school up to 50km from her home. This cannot, in my view, amount to direct discrimination.
    3. (c)
      She could not comply with the requirement to attend for a full day at the Maroochydore State High School and that it was assumed she lacked organisation and planning skills regarding her parental responsibilities. This cannot, in my view, amount to direct discrimination.
    4. (d)
      The limited teaching hour timetable at the Maroochydore State High School in 2015 was not adequate to allow her to complete the school placement experience. This cannot, in my view, amount to direct discrimination.
    5. (e)
      Her placement at the school was terminated because of her responsibilities and they were not recognised as a valid reason for an adjustment. This conceptually could constitute direct discrimination.
    6. (f)
      She was denied adjustments based on assumptions about her ability. This conceptually could constitute indirect discrimination, but it is not direct discrimination.
    7. (g)
      Her personal information about her difficulties, or her attribute was communicated with the Third Respondent without her consent. This might raise privacy law issues but I cannot see how it amounts to direct discrimination.
  2. [75]
    Fundamentally, the First and Second Respondents contend that none of those grounds could objectively amount to discrimination even if they were established on the evidence.
  3. [76]
    The First and Second Respondents also contend that the evidence in the Applicant’s own case does not support those allegations in any event.
  4. [77]
    The case which the Applicant seemingly wishes to advance against the Second Respondent University, noting that it is not necessarily the same as has been advanced in the differing versions of her Statements of Contentions, has three elements:
    1. (a)
      The Second Respondent University directly discriminated against her by not following the procedure called the USC Learning Access Plans or any other procedure for developing and providing reasonable adjustments that would permit her to get SPE on the same basis as other students. She contends that because of her parental and carer responsibilities, she would have had difficulty with the existing policy insofar as it required her to be placed at a school which might be up to 50km from her home where her children lived. She also complained that because of those parental/carer responsibilities, she could not comply with the requirement to produce a schedule of full days of attendance at a school at which she was placed.
    2. (b)
      Specifically, the Second Respondent University is alleged to have directly discriminated against her by not following some kind of procedure which would have accommodated adjustments when terminating a professional experience placement of her at the Maroochydore State High School. This proposition involves two contentions. The first is said to have been the failure to hold a meeting or discuss options with her in 2015. Secondly, in not offering or providing her with a referral to student services or counselling services in 2015 because she was a parent. These propositions may be gleaned from the ASOC at paragraph 46.2. Both events occurred more than 12 months before her complaint was made and are out of time.
  5. [78]
    There is nothing in her points of contention that develops any relationship between the failure by the Second Respondent University to follow some procedure and meeting with her or that the like amounts to discriminatory conduct in the sense contemplated by s 10 of the Act concerning direct discrimination.
  6. [79]
    The third ground of complaint against the Second Respondent University is that it indirectly discriminated against her by requiring a six-week full-time practical placement to complete her studies. And also by not putting her request for a modified practical placement requirement to the College of Teachers in circumstances where students who were not parents with disabled children or children were more readily able to comply with those two requirements, but which were unreasonable in her personal circumstances. These contentions may be found at paragraphs 52 and 54 of the ASOC.
  7. [80]
    The nub of her case on indirect discrimination appears in paragraph 53 of her ASOC and that is that it was imposing the condition that she complete a six-week practical placement at Maroochydore State High School with which she could not comply as a result of her parental status. I develop the details behind that claim later in these reasons from paragraph 105.
  8. [81]
    The proposition relied upon is certainly lacking in detail and there is no contention as to why it is that the requirement to place her in a six-week practical placement at that school was not reasonable. As I mention elsewhere in these reasons, the onus of proof that the imposition of a term is reasonable lies with the party imposing it. That does not mean however that an Applicant who contends for an indirect discrimination case need not identify why it was that imposition of the term was not reasonable, and to set out in points of contention, and in any witness statements to be relied upon, in what respects it is not reasonable.

Treatment “on the basis of” a protected attribute – the causal element for direct discrimination

  1. [82]
    It is clear from what I have set out above, that s 10(1) of the AD 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 AD Act provides that a person’s motive for discriminating is irrelevant.
  2. [83]
    The High Court in Australian Iron and Steel Pty Ltd v Banovic[1] 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.

  1. [84]
    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.
  2. [85]
    Shortly after Banovic was decided the High Court revisited the issue in Waters & Ors v Public Transport Corporation (1991) 103 ALR 513; [1991] HCA 49.
  3. [86]
    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.
  4. [87]
    In examining the extent to which a causal connection need be shown 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 [1988] 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”.

  1. [88]
    A similar view was adopted by the House of Lords in R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 in relation to section 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”.
  2. [89]
    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

(See also the discussion by Deane and Gaudron JJ in Banovic, at CLR 176–7.)

  1. [90]
    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 in Waters v Public Transport Corporation (1991) 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 [1989] 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 [1984] 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.

  1. [91]
    In Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; (2003) [2003] HCA 62 the High Court considered these authorities in the context of a claim of disability discrimination.
  2. [92]
    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.
  3. [93]
    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.

  1. [94]
    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 [159]-[160]:

[159]  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.

[160] 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.

  1. [95]
    After referring to later authority he said:

[166] 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.

  1. [96]
    The leading judgement in Purvis was delivered by Gummow, Hayne and Heydon JJ. For present purposes, relevantly, they identified the issue under consideration here as the “second issue” in the appeal, identified 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.
  2. [97]
    The question was posed in these terms by reference to what was required to show direct discrimination:

[224] 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.

[225] 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:

  1. (i)
    How, in those circumstances, would the educational authority have treated a person without Daniel's disability?
  1. (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.

  1. [98]
    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 JJ as to the circumstances that were to be ascribed to the comparator.
  2. [99]
    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:

[130] 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.

  1. [100]
    In relation to the causation question McHugh and Kirby JJ said:

[148] 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.

[149] 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.

[150] 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.

[151] 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?'

[152] His Lordship said "the legally determinant matter is the true reason for the defendant's behaviour, not his intention or motive in so behaving."

[153] 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)

[154] 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.

[155] 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.

[156] 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.

[157] 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.

[158] 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.

[159] 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.

[160] 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.

[161] 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.

[162] 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.

[163] 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.

[164] 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.

[165] 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.

[166] 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.

[167] 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.

[168] 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.

[169] 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.

[170] 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.

  1. [101]
    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.
  2. [102]
    Having full regard to what I have already identified as the proper approach to be taken when considering a strike out application under s 47 of the QCAT Act and the requirement to not exercise that power once it appears there is a real question to be determined on fact or law, and when the action is clearly without foundation, it seems to me that whichever of the versions of the case the Applicant seeks to bring against the Second Respondent University, she cannot establish the fundamental elements that are required to be established to make out a case of direct discrimination. There is no evidence, circumstantial, documentary or otherwise direct which established that any decision of any kind made by the Second Respondent University or its staff in relation to the categories of alleged direct discrimination, even if they occurred, could satisfy the requirements that I have described that that conduct was on the basis of her attribute.
  3. [103]
    The proposition that in some way or another it was on the basis of her attribute as a person with parental responsibilities is founded upon nothing more than assertion or assumption unsupported by any evidence. It necessarily follows that the Applicant’s case for direct discrimination by the Second Respondent is struck out, both in respect of those elements of it which are out of time, and those which are not out of time.

The Applicant’s indirect discrimination case against the Second Respondent University

  1. [104]
    The nub of her case on indirect discrimination appears in paragraph 53 of her ASOC and that is that it was imposing the condition that she complete a six-week practical placement at Maroochydore State High School with which she could not comply as a result of her parental status.
  2. [105]
    As I have  identified already, the elements are certainly lacking in detail and there is no contention as to why it is that the requirement to place her in a six-week practical placement at that school was not reasonable. As I mention elsewhere in these reasons, the onus of proof that the imposition of a term is reasonable lies with the party imposing it. An Applicant who contends for an indirect discrimination case need still identify why it was that imposition of the term was not reasonable, and to set out in points of contention, and in any witness statements to be relied upon, in what respects it is not reasonable.
  3. [106]
    As I have said, doing the best I can with the case which the Applicant seeks to articulate as founding an indirect discrimination case against the University, the case is that it indirectly discriminated against her by requiring her to complete the necessary six week practical placement requirements of the subject. An ancillary aspect of that indirect discrimination was not submitting her request to modify that placement requirement to the College of Teachers.
  4. [107]
    There are many aspects of the way that she has articulated this case which raise concern as to whether it has any material prospects whatsoever. Not the least of matters of concern are the factual issues that I have already identified as to whether she actually provided sufficient information to the Second Respondent University to permit it to even consider allowing her to complete or modify the practical placement course, or to submit to the College of Teachers that there be a modified placement.
  5. [108]
    Whilst I have very real concerns about both the way in which she has sought to articulate this case after having had many opportunities to do so and a real concern that the factual basis for her case is lacking in substance, in my view it is not appropriate that this aspect of her case be struck out.
  6. [109]
    The issue of what precisely were the relevant circumstances of her attempts to obtain some modification of the requirements of the course, and the extent to which the Second Respondent University was empowered or enabled to engage with the College of Teachers to modify the requirements, are factual matters which it will be necessary to consider at a full hearing.
  7. [110]
    I have mentioned already that to the extent that there was conduct which conceptually involved the imposition by the Second Respondent University of a term, namely the requirement to complete SPE in a particular way, this was something with which a person with an attribute could not comply and which persons without that attribute would be able to comply. I have mentioned the reversal of onus which applies in relation to claims of indirect discrimination.
  8. [111]
    I therefore decline the application insofar as it relates to the dismissal of the indirect discrimination case against the Second Respondent University.
  9. [112]
    The appropriate course is for the following orders to be made:
    1. (a)
      In respect of the claims by the Applicant against the Second Respondent arising solely in respect of alleged indirect discrimination against her by the Second Respondent, the application by the Second Respondent to strike out or dismiss those claims is refused, save in respect of any claims for indirect discrimination which relate to claims of discriminatory conduct which predate 9 March 2016.
    2. (b)
      Insofar as the Applicant brings any claims for indirect discrimination against the Second Respondent or discriminatory conduct which predates 9 March 2016, that application is dismissed pursuant to s 47 of the QCAT Act.
    3. (c)
      The Applicant is directed to file and serve on the Second Respondent within 21 days of the delivery of these Reasons a new points of contention document which coherently identifies the material facts relied upon to establish conduct allegedly constituting indirect discrimination against her by the Second Respondent on or after 9 March 2016 and sets out the legal foundation for such a claim and the relief or remedies sought in respect of it.
  10. [113]
    Any allegations, if there are any, of indirect discrimination which are said to have occurred before 9 March 2016 are also struck out.

The Applicant’s direct discrimination case against the College of Teachers and Ms Capeness

  1. [114]
    The Applicant’s case against the College of Teachers, and its employee Ros Capeness, who was at the material times the Manager, Accreditation and Professional Standards at the College of Teachers, is of relatively narrow compass, as explained by the Applicant in her oral submissions, and to some degree, though without clarity, in her written submissions in response to the Third and Fourth Defendants’ application to strike out.
  2. [115]
    She now seeks to bring her claim as one arising under s 21 of the Anti-Discrimination Act, as one brought against persons who have the power to grant, renew or extend a qualification or authorisation for, or facilitates the practice of, a profession or a trade.
  3. [116]
    She concedes the correctness of what was the foundation of the application by the Third and Fourth Respondents to strike out her claim, that she cannot bring her claim on the basis of it being discrimination by an Education Authority in the prospective student area in the ways prohibited by s 38 of the AD Act, because neither the Third or Fourth Respondents is an educational authority within the definition of that expression in the dictionary to the Act.
  4. [117]
    Despite her pleaded case, she concedes that the College of Teachers was not and is not an educational authority as defined by the AD Act, and was not a body administering a school, college, university or other institution providing any form of training or instruction.
  5. [118]
    The Third and Fourth Respondents otherwise stand in the shoes of the First and Second Respondents in seeking the dismissal of the proceedings on the basis that it is misconceived, and lacking in substance based on the evidence.
  6. [119]
    Counsel for the Third and Fourth Respondents conceded that conceptually, and without comparing the evidence said to exist in support of the complaint by the Applicant against the Third and Fourth Respondents, it was possible to contend that they were persons with powers to grant, renew or extend qualifications, and therefore might conceptually be brought on the basis that it is discrimination by a qualifying body in a pre-qualification area under s 21 of the Act.
  7. [120]
    Having said that, the discrimination alleged against the Third and Fourth Respondents in that area differs significantly from that alleged against the First and Second Respondents.
  8. [121]
    In her initial complaint of 9 March 2017, her complaint that she had been discriminated against by the College of Teachers and Ms Capeness, was said to have occurred on only one date, namely 23 March 2016.
  9. [122]
    In her complaint to the ADCQ, she identified that she had initially contacted the College of Teachers to ask for information about their procedures for accommodating reasonable adjustments in their accredited university programs to show that she could meet the College of Teachers’ requirements for pre-service teaching training. She did this so she could maintain her role as a carer of a child with impairments. She referred to the fact that she had been informed by the Second Respondent University that it was not within the Second Respondent University’s rules or procedures, which would be an impediment to obtaining reasonable adjustments, but rather the requirements of the College of Teachers. She identified that the College of Teachers had previously given helpful information to her about adjustments that could be made. She complained that later the College of Teachers told her that the previous information she had received was incorrect, that adjustments could not be made to allow her to complete the final practicum, and was told by Ms Capeness to “reconsider what you think you would do if you graduate” because of her carer role for a child with impairments. This was alleged to have been said in a phone call by Ms Capeness to the Applicant on 23 March 2016. The Applicant alleges that Ms Capeness had been in contact with the Second Respondent University, and that the Second Respondent University had disclosed information about her role as a carer of an impaired child. She concluded that on the basis of the information that had been obtained from the Second Respondent University, the College of Teachers “deemed it appropriate to make assumptions about my ability and future capabilities”. She also complained that the College of Teachers presupposed what her goals were upon completing her degree, and was attempting to dissuade her from graduating as a teacher.
  10. [123]
    Suffice it to say that the evidence of Ms Capeness contests these events in their entirety. In her written submissions of 9 June 2020, the Applicant takes issue with the sworn evidence of Ms Capeness about their conversations. For the purposes of this application, I will proceed on the basis of considering whether the case that the Applicant seeks to make out, were she to be believed, and her evidence treated as credible, has any real prospects of success.
  11. [124]
    In essence, she says:
    1. (a)
      That Ms Capeness treated her unfavourably in some way because she had been in contact with the Second Respondent University and that the Second Respondent University was not in favour of approving her request for adjustments;
    2. (b)
      That Ms Capeness did advise her to reconsider being in the teaching profession, or as she put it, “reconsider the profession”;
    3. (c)
      That it was apparent to the Applicant that Ms Capeness had been provided with private information that had been “used to portray her unfavourably” although she did not know what that information was; and
    4. (d)
      That she was “discouraged from continuing to try to continue to become eligible for registration as a teacher because of her parental responsibilities”.

Evidence said to be either patently false or inconsistent with the evidence

  1. [125]
    One matter which occupied a considerable proportion of the Respondents’ submissions was the submission by the Respondents that the Applicant makes a number of assertions regarding the evidence which are either patently false or inconsistent with the evidence. Those include that:
    1. (a)
      Contrary to the Applicant's assertion, prior to her placement at the school for SPE in 2015, the Applicant had not communicated to Ms Thompson "extensive detail" regarding "potential medical emergencies, potential transport impacts, and potential need for carer leave to accommodate this nor had the Applicant made any "adjustment requests";
    2. (b)
      The Applicant now asserts that she could "not comply with" the requirement for (any) full days of attendance, but the Applicant has led no evidence to support such a proposition;
    3. (c)
      The Applicant asserts that there was "no support available for carers" and appears to be suggesting that she was denied support as a carer. There is evidence that there was support available.
  2. [126]
    Another matter which occupied a considerable body of written material is the submission by the Respondents that the Applicant continues to assert that she should have been given a Learning Access Plan, that she needed one for reasonable adjustments, and that she was denied such a plan for reasonable adjustments. The Respondents contend that the Applicant continues to misconstrue and misrepresent the evidence regarding this issue in that:
    1. (a)
      a Learning Access Plan was not necessary for the Applicant's purposes given the matters outlined there, but was not refused to the Applicant in any event;
    2. (b)
      she was seeking adjustments in 2016 that were not likely to meet the inherent academic requirements of the SPE placement, and so the Counselling Service would not have been able to recommend the adjustments being made;
    3. (c)
      the adjustments the Applicant was seeking, to be able to complete her SPE placement part-time, were matters that needed to be approved by the Fourth Respondent with the support of the First Respondent;
    4. (d)
      the Applicant needed to address her requests for adjustments through Professor Dole and Dr Young and articulate what adjustments were being sought and how the Applicant could demonstrate that she would meet the inherent requirements of the SPE placement with the adjustments she was seeking; and
    5. (e)
      the Applicant had been told on numerous occasions what the inherent academic requirements were for the SPE placement and a considerable amount of time was spent advising the Applicant what she needed to do in order to be able to be successful in making an application to modify the SPE placement, but she did not do those things.
  3. [127]
    In my view, those are not matters to be determined summarily on an application of this kind. The Applicant has submitted in her responsive submissions that the application “should not be dismissed because most of the evidence and the only witnesses are in the control of the respondents and I need to rely on giving oral evidence at a hearing”. It may be inferred then that at any hearing, she does not intend to call witnesses other than herself, and seeks to rely make out her case on oral evidence given by the respondents’ witnesses including by way of cross-examination of them. Also fraught with difficulty, there is nothing novel about such an approach particularly where a party seeks to put some kind of circumstantial or inferential case.
  4. [128]
    It may fairly be said that in relation to each of the complaints, there is little if any evidence which pointed directly to the conduct of any of the Respondents having been unequivocally or directly made on the basis of the attribute or attributes which were said to exist here, i.e. parental responsibilities; and in respect of which there was protection from discrimination under the Act.
  5. [129]
    It may well be that the Applicant’s case will be a circumstantial one, or dependent upon the Tribunal drawing inferences from the evidence with a view to establishing the requisite level of connection between the bases of relevant decisions, and there being some discriminatory basis for it.
  6. [130]
    It is well established both in this and other jurisdictions in Australia where discrimination is alleged, that the complainant bears the onus of proof of direct discrimination. In Queensland, unlike most other States, there is an exception where the claim is one of indirect discrimination. In a direct discrimination case, the onus falls to the Respondents to show that the condition being imposed which is potentially discriminatory is reasonable. Similarly, a respondent would bear the onus of showing that it may rely upon an exemption or exception which attaches to its conduct. [2]
  7. [131]
    The difficulties which present themselves to a complainant seeking to prove  discrimination by circumstantial evidence have been well recognised.[3] Discussion on that topic can be traced to the frequently referenced decision of Fullagar J in Department of Health v Arumugam [1988] VR 319 where the Court overturned a finding of unlawful discrimination based on inference. The case was one in which there was an allegation of racial discrimination because the complainant had not been successfully appointed to a professional position within a Government Department. Inferences were drawn as to the reason why the candidate was not successful and it was concluded that those were racially based. Fullagar J held as follows:

If the facts before explanation contain no direct proof of discrimination of the kind charged (be it political, sexual, racial, or impairment-grounded), the industrial tribunal may still be able to draw an inference of discrimination of the kind charged; if the proper inference in the absence of explanation is discrimination of the kind charged, and there is either no explanation or an unacceptable explanation, then the inference of discrimination of the kind charged will mean the complaint succeeds.

  1. [132]
    A body of other judicial authority has had cause to consider and apply the approach of Fullagar J in Arumugam including Lightning Bolt Co Pty Ltd v Skinner & Anor [2002] QSC 62, Cocks Macnish & Anor v Biundo [2004] WASCA 194 and Gama v Qantas Airways Limited (No. 2) [2006] FMCA 1767 and Kapoor v Monash University [2001] 4 VR 483. 
  2. [133]
    The approach to the drawing of inferences in discrimination cases was the subject of further careful analysis by Kiefel J in Sharma v Legal Aid Queensland (2002) EOC 93-191 and in that matter on Appeal by the Full Federal Court [2001] FCA 1699; Sharma v Legal Aid (Queensland) (2002) EOC 93-231. This too was a case involving alleged discrimination in employment on the basis of national origin. Kiefel J at the trial level accepted that statistical evidence “may be able to convey something about the likelihood of being not being advanced because of factors such as race or gender”. She cited the decision in West Midlands Passenger Transport Executive v Singh [1988] 2 All ER 873 and noted that ultimately it was “a question of fact in each case”.
  3. [134]
    In the Full Court, the decision of Kiefel J was upheld, and the following comment was made in the joint judgement of the Court, at [40] – [41]:

It is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1998] 2 All ER 953, 958. There may be cases in which the motivation is subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] 3 WLR 425, 433. It was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361–362. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugan [1988] VicRp 42; [1988] VR 319, 331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature.

In a case depending on circumstantial evidence, it is well established that the trier of fact must consider ‘the weight which is to be given to the united force of all the circumstances put together’. One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone: Chamberlain v The Queen [No.2] (1983–1984) [1984] HCA 7; 153 CLR 521 at 535. It is the cumulative effect of the circumstances which is important, provided, of course, that the circumstances relied upon are established as facts.

  1. [135]
    In many such cases there are real issues of proving causation or drawing inferences from proven facts. In a carefully written article entitled ‘Reducing the Burden of Proving Discrimination in Australia’ (2009) 31 Sydney Law Review page 579-605, the author, Dominique Allen, explained as follows:

The first obstacle the complainant faces is attempting to access relevant evidence. The respondent has what Laurence Lustgarten terms a ‘monopoly of knowledge’ about the process of decision-making that led to the complainant’s treatment. Lustgarten describes it this way because the respondent controls the information that the complainant needs to establish their complaint. Furthermore, the respondent is not under any obligation to explain their decision. If there are witnesses, Lustgarten says they are usually what he terms ‘interested parties’, such as employees of the respondent, so they may not be interested in testifying against the respondent and jeopardising their own situation. The second obstacle for the complainant is that direct evidence may not exist. Discrimination is often unconscious, so the respondent may not have articulated a reason for their decision. Alternatively, the evidence may not be available. For instance, in regard to establishing proportionality in an indirect discrimination complaint, the necessary statistical data may not have been collected.

Without a ‘smoking gun’ or access to sufficient information, the complainant must rely on circumstantial evidence and ask the court to consider the ‘cumulative effect’ of the evidence. The court will be asked to draw an inference of discrimination based on the evidence adduced, even if, when viewed on its own, none of the evidence would have supported the inference. However, particularly with regard to race discrimination complaints, courts are reluctant to infer discrimination without sound evidence....

The respondent is not required to tender any evidence to refute the complaint or offer an explanation for their behaviour. In Arumugan, the Victorian Supreme Court said that an inference cannot be drawn from the respondent’s failure to explain a decision.26 Therefore, the respondent can remain silent, forcing the complainant to discharge their burden and, if they do not, the respondent can make a ‘no case’ submission. (References omitted)

  1. [136]
    On the issue of drawing inferences from the facts, according to oft approved dicta of Street CJ in Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261 at [264]:

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.

  1. [137]
    In Jones v Dunkel (1959) 101 CLR 298, Kitto J stated at [305]:

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...

Discrimination in the work or pre-work area under s 21 or 22 of the Act

  1. [138]
    I have already mentioned above that the Applicant accepts that neither the Third Respondent nor the Fourth Respondent is an “educational authority” within the meaning of the Anti-Discrimination Act 1991 (Qld) and that she now contends, for the first time, that they unlawfully discriminated against her in the work or pre-work area under s 21 or s 22 of the Act.
  2. [139]
    The Third and Fourth Respondents submit that the Applicant’s case against all four Respondents has always been expressly stated to be a complaint of unlawful discrimination in the education area. That much is clear. She has not previously contended that any of the conduct she complains of is unlawful discrimination under any other part of the Act.
  3. [140]
    The Third and Fourth Respondents submit that the Applicant should not be permitted, at this late stage in the history of the proceedings, to amend her contentions in this way and present a different case against them. No reason is advanced as support for that proposition. In fact it is a mere legal re-characterisation of the same case as has always been put, albeit involving a different legal test for whether the particular provision now sought to be relied on applies.
  4. [141]
    There is a line of authority, including MM and MD v State of Qld [2014] QCAT 478, Wilson v Lawson [2008] QADT 27 and Yohan v Qld Basketball Incorporated [2010] QCAT 459, which has acknowledged that when examining the complaint which is before this Tribunal, that the Tribunal is not bound by its characterisation by the ADCQ in the referral here. Hence, so long as the essential characteristics of the complaint as made to the ADCQ are identifiable, as it is referred, it is for this Tribunal to determine what the proper basis for the complaint is, and ultimately whether it is made out on the evidence. Hence, whether the character of the complaint is specifically identified, the body of the complaint whether it was in the goods and services area, or some other area, or whether or not the ADCQ in its referral of the complaint made reference to some or other area in which the alleged discriminatory conduct occurred, ought not prejudice a complainant here who seeks to amend to make clear that such is a basis for a claim, or indeed to amend to include such a claim.
  5. [142]
    In MM and MD v State of Qld [2014] QCAT 478, I held as follows at [31] ff:

I turn then to what, in my view, is the meaning and effect of s.178. The first point is that in its terms, which are uncomplicated and devoid of sophistication, complexity or qualification, this Tribunal has discretion to allow a complainant to amend a complaint even if the amendment concerns matters not included in the original complaint. That in my view is sufficiently broad to encompass a situation where it involves not only claims which arise out of the same factual matrix as the original complaint does, but also those which do not. It may even go further, although I need not decide this here, and permit amendments to be made to bring in matters which are entirely unrelated to the matters originally included in the complaint. I express no concluded view about that here, however it seems to me that if the discretion exists, and is to be exercised judicially, there is no reason to think that Parliament did other than decide that where this Tribunal determined that for good reason it was appropriate to make an amendment to include a matter entirely unrelated, that it should do so.

The ADCQ performs an important function, inter alia, in receiving, reviewing, filtering in one sense, and referring to this Tribunal what are recognised as valid complaints. Accepting that to be so, there is no reason in principle why a member of this Tribunal would not be capable, on proper evidentiary material, to decide that in relation to a matter already before the Tribunal, it was appropriate to include other matters which have not been referred to the Commission. In other words, it could not be said that in general this Tribunal, having been seized of a matter is less capable of making a decision about the nature and character of a complaint than the ADCQ.

Pursuant to s.136 of the AD Act, a complaint must be in writing in reasonably sufficiently details to indicate an alleged contravention. Pursuant to s.139 the Commissioner must reject frivolous, trivial, vexatious complaints and those misconceived or lacking in substance. The other activity that occurs in the Commission, is the conciliation process. In effect an accepted complaint will be one which will have successfully run the gauntlet of analysis as to whether it is frivolous, trivial or vexatious, misconceived or lacking in substance and is set out in sufficient detail to indicate an alleged contravention of the AD Act. There is nothing about this jurisdiction which would place a member of this Tribunal at a disadvantage from staff at the ADCQ in deciding those very matters as a basis for allowing amendment.

In McKenzie v MacKay and State of Queensland [2005] QADT 24, Mr Savage QC examined a body of authority on the question of the power of the then Anti-Discrimination Tribunal to hear proposed amendments to complaints. At paragraphs 39 to 41 of his reasons, he held (footnote omitted):

  1. The adoption of a construction which prohibited any amendment produces in many circumstances a manifestly inconvenient outcome. There are many cases in the Tribunal where there is a continuum of activity alleged, some of which is omitted from the original complaint. In those circumstances, by the time the complainant comes to agitate the complaint in the Tribunal, the one year time limit will have already expired. Thus the complainant may be denied the opportunity of agitating those matters, albeit they are in many circumstances entitled to rely upon them as evidence in the hearing to corroborate the referred complaint. Self-evidently the further matters of complaint would not be resolved by conciliation in the Commission. Further costs will be incurred by both parties in the complainant making a fresh complaint, an application for an extension of time to the Commissioner and then proceeding to refer the complaint to the Tribunal for a separate hearing. I can see no good purpose in adopting a construction that has these effects.
  1. If in truth the amendment provision is to be regarded as a quasi jurisdictional provision there is nothing in principle wrong with the legislature investing power to a tribunal it creates by one of such general words as in s.178.
  1. For those reasons, in my opinion, the power of amendment does not bear the implied limitations suggested by the Respondent. In any event as the analysis of cases above set out show even if that were not the case, in my view here:-
  1. (a)
    the acts are part of a continuum; or
  1. (b)
    the acts are referred to in documents filed in the Commission.

and thus the matters can be agitated in the Tribunal without amending the complaint.

That decision then at least opened the door to amendments to Acts which were part of a continuum, or were based on facts which were referred to in documents filed in the Commission.

Shortly before the significant amendment to s.178 came into effect, Mr Savage QC, who by then was the President of the Tribunal, decided X v Q (No 3) [2009] QADT 21. There, he followed the approach that he took in McKenzie v Mackay. X v Q was a case in which there was alleged sex discrimination of a male prisoner. It was alleged in a complaint that there had been sex discrimination in the area of State laws and programs. He then sought to make a claim such as that made here that after the event he had been subjected to victimisation contrary to s.129 of the AD Act.

At par 6 and 7 of his reasons Mr Savage QC held as follows:

  1. I would allow amendment of the complaint for the reasons I gave in McKenzie v Mackay [2005] QADT 24. I do not think the Tribunal’s power to allow amendment is as limited as the other cases upon which the Respondent relies. None of which are binding upon me. This is of only academic interest.
  1. There will be by the time of the hearing in this matter be a much wider power to allow amendment of complaints: cf s.1339 Queensland Civil & Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009 repeals 176-184 and inserts 178 of the Act which makes plain the extent of the jurisdiction of the Tribunal to amend complaints even if those amendments concern matters not included in the complaint. If anything, this case is an illustration of why such an amendment should be allowed. There is no proper reason that a person victimised for making a complaint should not have the complaint and victimisation issue dealt with together at one hearing. There is no real prospect of this complaint (either as amended or not) being settled by the conciliation process adopted by the Commissioner (which in any event could be the subject of orders in the Tribunal) nor any real prospect the Commissioner would not accept the complaint of victimisation at least that which is within twelve months.

That judgment in X v Q was the subject of an appeal to the Supreme Court in matter 1830 of 2010 and came before De Jersey CJ on 15 November 2010. The Chief Justice said in relation to the operation of s.178:

The Tribunal President allowed an amendment of the complaint to add the claims of victimisation, for reasons he had earlier expressed in Mackenzie and Mackay, 2005, QADT 24. They focused on the completely unfettered discretion to amend a complaint accorded by section 178 of the Act. He regarded the alleged victimisation as consequential upon the lodgement of the original complaint, and observed that “there is no proper reason (why) a person victimised for making a complaint should not have the complaint and victimisation issue dealt with together at one hearing”.

The President examined the relation between section 178 which gives the power of amendment, and other provisions including section 175, and the mechanism by which complaints ordinarily reach the Tribunal, having passed through a process of conciliation. He also examined other decisions of the Tribunal bearing on this matter, and a decision of the Court. The President set out in paragraphs 38 to 41 of his reasons for judgment the basis of his conclusion that the discretion to amend is in fact, as it its presented, that is, untrammelled. On that basis he went on to assign a sufficient reason why the amendment should be allowed in the exercise of his discretion, being the circumstance that the victimisation allegedly grew out of the making of the original complaint.

The applicant puts forward no particular reason why it did not appeal against this ruling in relation to amendment within time. Additionally, there is to my mind no sufficient doubt about the correctness of the President’s construction of the power to amend under section 178, to warrant further investigation of that power by way of appeal. I note that a newly worded power has been included in the QCAT legislation. For the aggregation of those considerations I exercise the discretion against extending time for appeal in relation to that ground. If I had extended time I would have dismissed an appeal on that round.

  1. [143]
    As I said in MM and MD, in my view it is clear that the amendments which were made to s 178 were facilitative, established in the Tribunal as unfettered discretionary power to allow an amendment to raise a matter notwithstanding that it was not included in the original complaint, and expected this Tribunal to exercise that power in ways which, inter alia, facilitated the just and expeditious hearing of the matters in dispute, to minimise inconvenience and cost associated with that process, and to avoid unnecessary technicality and formality in this process. In my view the decisions of this Tribunal which have held otherwise were incorrectly decided. As the Chief Justice concluded in X v Q, even before the 2009 Amendments to s 178 of the AD Act, s 178 gave an “unfettered discretion” to allow amendments to bring new claims.
  2. [144]
    The just and expeditious determination of the matters in issue between these parties would be facilitated by permitting the sort of amendment sought here. It therefore seems to me to be clear that an appropriate exercise of discretion in this particular case would have been to allow the amendments to be made to make allegations based on s 21 or s 22 of the Act broadly in the terms which are contained in the Applicant’s submission.
  3. [145]
    The Third and Fourth Respondents submit that the matters complained of against them do not fall within either s 21 or s 22 of the Act, because the Applicant had not completed her course and therefore was not seeking the granting, renewal or extension of a qualification or authorisation by way of registration as a teacher by the Fourth Respondent (s 21). The Third and Fourth Respondents submit that there was no suggestion that the Fourth Respondent had varied the terms on which a qualification or authorisation was granted, renewed or extended, or that it had revoked or withdrawn a qualification or authorisation (s 22). The Third and Fourth Respondents submit that therefore the conduct complained of was not in the work or pre-work area. This is an issue that has not been fully argued, and is inconsistent with the concession by Counsel for the Third and Fourth Respondents that conceptually the case might be brought by her in the work or pre-work area under s 21 or s 22 of the Act. I make no finding in relation to it, in light of my determination to dismiss the application against the Third and Fourth Respondents for different reasons.

Disposition in relation to the Third and Fourth Respondents’ application

  1. [146]
    No submissions were made for any of the Respondents concerning the effect of s 10 of the AD Act in the context of the claim for direct discrimination in telling someone something that might be regarded as career advice. Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
  2. [147]
    Ms Capeness has sworn that on 23 March 2016, she contacted Ms Hickson-Jamieson by telephone. In the course of my conversation with her, she discussed the QCT's expectations of the delivery of an approved ITE program and explained that any request for adjustments must come from her university and not from her as an individual student. She discussed Ms Hickson-Jamieson's parental responsibilities in terms of her host school and their expectations about her attendance at the school during the professional experience block. She explained that the school is a separate entity to the Second Respondent University in the professional experience partnership and whatever adjustments she required needed to be acceptable to both the Second Respondent University and the school hosting her as a preservice teacher. She advised that when the Second Respondent University was satisfied that an adjustment was possible, they would bring the matter to the QCT.
  3. [148]
    She did not take any notes of her conversation with Ms Hickson-Jamieson. She denies the allegation that she stated that she ought to reconsider whether she should be a registered teacher, given her family circumstances. She had no further contact with Ms Hickson-Jamieson following that telephone discussion.
  4. [149]
    There is nothing whatsoever advanced on the Applicant’s case, in evidence or plausibly in any submission, to show an arguable basis for contending here that what was allegedly said to her by the Third Respondent and vicariously by the Fourth Respondent about considering her position as a future teacher “if you graduate” (as it appears in her complaint to the ADCQ), or as it is described in the Applicant’s witness statement having “instructed her to assess if she could ever work in her chosen career given her circumstances as the carer of a child with a disability” was less favourable treatment than another person without parental responsibilities is or would be treated in circumstances that are the same or not materially different. Nor in my view is it arguably discriminatory to say to someone they ought to reconsider whether they should be a teacher, given her family circumstances, if that was what was in fact said.
  5. [150]
    All that is alleged here on that topic is the making of the statement, or giving advice one might characterise it, about whether with the types of responsibilities she had, she could effectively do the job of a teacher. She was not refused anything. She was not told she would be refused adjustments to allow here to teach and she was not refused any such adjustments by the Fourth Respondent.
  6. [151]
    Nor is there anything whatsoever advanced on the Applicant’s case, in evidence or plausibly in any submission, to show an arguable basis for contending here that the basis for the alleged decision here to say what was allegedly said to her by the Fourth Respondent and vicariously by the Fourth Respondent about considering her position as a future teacher “if you graduate” (as she contends for, noting that the relevant conversation is denied) was the relevant attribute (her family responsibilities) in the sense contemplated by s 10 of the Act.
  7. [152]
    The claim against the Third and Fourth Respondents therefore based upon direct discrimination must fail even on the version of it most favourable to the Applicant.
  8. [153]
    The claim against them is struck out and the application against them dismissed.

The abuse of process argument

  1. [154]
    In support of the arguments that the application is an abuse of process the Respondents refer to the decision Julian Moti v R (2011) 283 ALR 393. They contend that proceedings which comprise an abuse of process have been described as including those that are “seriously or unfairly burdensome, prejudicial or damaging” or that produce “serious and unjustified trouble and harassment” (see Julian Moti v R (2011) 283 ALR 393 at [10] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). It should be noted that this is a mere example of how the conduct of a proceeding might constitute an abuse of process. The submissions for the Respondents on this issue were not particularly focused, nor did they deal with a considerable body of authority which was against their arguments.
  2. [155]
    All courts and this Tribunal have an inherent or implied jurisdiction to prevent their processes from being used as an instrument of oppression. Courts are able to modify their procedures to avoid such prejudice and take any steps that are necessary to prevent an abuse of process (Clyne v New South Wales Bar Association (1960) 104 CLR 186; Barton v R (1980) 147 CLR 75; Connelly v DPP [1964] AC 1254; Neill v County Court of Victoria [2003] VSC 328).
  3. [156]
    In Clark v R [2016] VSCA 96 at [14], the Court of Appeal explained:

The concept of abuse of process extends to the use of the court’s processes in a way that is inconsistent with two fundamental requirements arising in criminal proceedings. These are, first, that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that unless the court protects its ability to function in that way, its failure will lead to an erosion of public confidence. The court’s processes will be seen as lending themselves to oppression and injustice.

  1. [157]
    The concept of abuse of process overlaps with the obligation of a court to provide a fair trial. The content of these obligations cannot, however, be stated exhaustively or analytically. These obligations rely on intuitive judgments formed by experience (Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46; Ridgeway v R (1995) 184 CLR 19; [1995] HCA 66).
  2. [158]
    The obligation on a court is to provide a fair trial in accordance with law. Legislation may vary existing trial procedures, the elements of offences and the laws of evidence. Subject to issues of constitutional validity and interpretive principles concerning modification of existing common law principles, courts must apply the law set by Parliament. Therefore, the right to a fair trial may be modified by Parliament and courts are extremely reluctant to consider arguments that a court must grant a stay where legislative amendment interferes with the fairness of a trial (see Grills v R [1998] HCATrans 351; R v PJE, Unreported, NSWCCA, 9 October 1995).
  3. [159]
    Courts have noted that the obligation is not to provide a perfect trial, but to provide a trial as fair as possible. A perfect trial is an unrealistic aspiration (Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46; R v Glennon (1992) 173 CLR 592; [1992] HCA 16).
  4. [160]
    Where a proceeding has been regularly commenced, courts have an obligation to exercise their jurisdiction and determine the matter. A court should not lightly refuse to exercise its jurisdiction. However, the right to a fair trial is paramount and if a proceeding cannot be conducted fairly, a court may grant a permanent stay (Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46; Barton v R (1980) 147 CLR 75; Attorney-General (NSW) v Watson (1987) 20 Leg Rep SL 1).
  5. [161]
    There is little to suggest that what the Applicant has done means that two well legally represented, inferentially well-funded public organisations have been treated in a way which is “seriously or unfairly burdensome, prejudicial or damaging” or has produced “serious and unjustified trouble and harassment”.
  6. [162]
    The Respondents contend that it is relevant to that assessment to see whether the proceedings have been conducted in a manner consistent with s 3 of the QCAT Act. By sections  3 and 4 of the QCAT Act the Tribunal is to conduct proceedings in a manner which is accessible , fair,just, economical informal and quick  and it must ensure that proceedings are conducted in a manner which minimises costs to parties, and with as little formality and technicality as a proper consideration of the matter permits.
  7. [163]
    The Respondents contend that the proceeding is an abuse of process, “including” because the Applicant's case remains fundamentally deficient, and the Respondents have been put to unnecessary expense and time in attempting to extract proper particulars and prepare a meaningful response. That the Respondents have been put to unnecessary expense and time in attempting to extract proper particulars and prepare a meaningful response is not the test for whether a matter is an abuse of process.
  8. [164]
    The Respondents also contend that the proceeding is an abuse of process because there have been extensive failures by the Applicant to comply with orders and there have been extensive failures by the Applicant to comply with the Tribunal's directions, meaning that the matter has continued for an unnecessarily long period, and the First and Second Respondents have been put to unnecessary expense in defending the matter.
  9. [165]
    The Respondents contend that there have been multiple failures by the Applicant to comply with directions made by QCAT, despite being granted indulgences and extensions of time, including:
    1. (a)
      the directions of 26 February 2018 and 8 August 2018, regarding the filing of the SOC and amending the SOC (resulting in the original strike out application);
    2. (b)
      the directions of 16 April 2019, regarding the filing of the ASOC, and then a late application by the Applicant for an extension of time;
    3. (c)
      the directions of 10 June 2019, regarding the filing of the ASOC, which was complied with late by the filing of the ASOC on 7 July 2019;
    4. (d)
      the directions of 10 June 2019, regarding the filing of witness statements, which was followed by a late application from the Applicant for an extension of time;
    5. (e)
      the directions of 5 September 2019, providing an extension to the Applicant for the filing of witness statements, which was then followed by a late application from the Applicant for a further extension of time and request to place the proceeding in abeyance until 16 December 2019;
    6. (f)
      the directions made on 28 October 2019, providing an extension of time to the Applicant to file her material to 22 November 2019;
    7. (g)
      the directions of 29 November 2019 that the Applicant file her witness statements by 20 December 2019 failing which the matter may be struck out by QCAT, which was still complied with late by the Applicant.
  10. [166]
    The Respondents also contend that the proceeding is an abuse of process because the Applicant's claim is otherwise misconceived, and the Applicant continues to press matters not supported by the evidence. The Respondents also contend that the proceeding is an abuse of process because the additional matters raised by the Applicant in her submissions are similarly misconceived, false and directly contradictory to the evidence. One does not conduct a trial or assess the merits overall of a case and the strength of the evidence to decide if it is an abuse of process. I reject these contentions.
  11. [167]
    The Respondents also contend that the proceeding is an abuse of process because the Applicant has failed to take any steps to mitigate her loss. That submission was rejected by Member Cranwell last year. It is not an indicator, even if established on the evidence, that the proceeding is an abuse of process. It may diminish the sum she recovers, if any, by way of compensation.
  12. [168]
    The Respondents also contend that this is not otherwise a situation where the Applicant will be denied the opportunity to articulate her case if it is struck out. The parties have filed their material and articulated their respective positions. That may be true. She has had many opportunities to articulate her case. What she will be denied is an opportunity to elicit the evidence in support of her contentions and seek to persuade a member of this tribunal of the merits of her case.
  13. [169]
    The Respondents contend that the evidence is clear: it cannot substantiate any finding that the First and Second Respondents engaged in discrimination towards the Applicant. The Respondents contend that to the contrary, the evidentiary material before the Tribunal demonstrates there was no discrimination as pleaded by the Applicant or otherwise. That invites yet another finding on the merits. As I said earlier, one does not conduct a trial or assess the merits overall of a case and the strength of the evidence to decide if it is an abuse of process. I reject these contentions.
  14. [170]
    The Respondents contend that “the conduct of this matter by the Applicant is the antithesis of the requirement in s 3 of the QCAT Act and should be struck out as an abuse of process”. I do not accept that proposition.
  15. [171]
    There can be little doubt that the Applicant has been given numerous opportunities to articulate in an understandable and reasonably arguable way the case which she seeks to bring against the four individual Respondents. The Applicant is clearly not a person lacking in intelligence. In 2009 she completed a Bachelor of Arts degree and commenced an Honours program in relation to that degree. In 2010 she enrolled in a program to receive her PhD. She completed her Honours degree and whilst studying for her PhD took leave to finish her teaching degree. There is no suggestion however that she has any legal qualifications and it is obvious from the history of the matter, that she has conducted this application without the assistance of legal advice as to the proper way in which to articulate claims of discriminatory conduct.
  16. [172]
    The matter has been before the Tribunal and orders made by Tribunal Members on at least twenty occasions since the proceeding was commenced. Many of those orders simply provide for directions for the conduct of the proceeding to have it ready for trial. On 16 April 2019, and again on 10 June 2019, Member Traves made directions which ought properly have taken the matter to a trial, and made orders that the matter would be listed for a hearing for two days later in 2019, with the dates yet to be allocated. After the unsuccessful strike out application which was filed on 20 September 2018 was determined adversely to the Respondents in February 2019, the Tribunal had cause on three occasions to make specific orders that if she failed to comply with a particular direction or other which the Tribunal had made and has not provided a reasonable excuse for non-compliance within s 48 of the QCAT Act, that the application would be dismissed without further notice to the parties. Orders to that effect were made on 5 September 2018, 28 October 2019 and 29 November 2019. In each case the failure which was referenced was a failure by her to file her witness statements, and that of any witnesses that she proposed to rely upon at the trial, as well as any documents to which that evidence referred. On 3 January 2020, Member Traves ordered that the Applicant file in the Tribunal copies of two proposed witness statements “if any” from two proposed witnesses that she wished to call. No such witness statements have been filed. The outcome of that non-compliance is that in the event that there is a trial, she is unlikely to be able to rely upon evidence from those proposed witnesses unless leave is given to adduce oral evidence from them without the benefit of a statement.
  17. [173]
    Notwithstanding that there had been periodic non-compliances with directions to progress the matter to trial, it seems to me that the material which has been filed would indicate that the matter is in fact ready for a trial and that a trial could be conducted at a time convenient to the parties.
  18. [174]
    There is no affidavit from any of the Respondents which has identified that there is any particular, or even general, prejudice which has flowed from any of these non-compliances. Although this matter has gone on for an inordinately long period, having regard to the fact that the events to which it relates are now more than four and a half years old, I see no basis to conclude that the Applicant’s conduct of the matter has been such as to characterise it as an abuse of process.
  19. [175]
    There are very significant problems with the poorly articulated way in which the Applicant has sought to put her case in her Statement of Contentions. But as is evident from a reading of the submissions relied upon the by the First and Second Respondents in bringing the strike out application, they are able to articulate what the claim against them is; they just cannot see how it has any prospects of success. I do not accept that the Respondents will be thwarted in receiving a fair trial of the proceeding should it occur.
  20. [176]
    In my view, the conduct of the Applicant has not been such as to undermine the capacity of the Respondents to meet it at a trial and there is no evident significant prejudice which has flowed to them.
  21. [177]
    The orders that I make are:
  1. The application by the First Respondent to strike out and dismiss the application against him is upheld, and the Applicant’s application against him is dismissed pursuant to s 47 of the QCAT Act.
  2. The application by the Third and Fourth Respondents to strike out and dismiss the application against them is upheld, and the Applicant’s application against them is dismissed pursuant to s 47 of the QCAT Act.
  3. The application by the Second Respondent to strike out and dismiss the application against it founded upon claims of direct discrimination is upheld and the Applicant’s application against it on that ground is dismissed pursuant to s 47 of the QCAT Act.
  4. In respect of the balance of the claims by the Applicant against the Second Respondent arising solely in respect of alleged indirect discrimination against her by the Second Respondent, the application by the Second Respondent to strike out or dismiss those claims is refused save in respect of any claims for indirect discrimination which relate to claims of discriminatory conduct which predate 9 March 2016.
  5. Insofar as the Applicant brings any claims for indirect discrimination against the Second Respondent or discriminatory conduct which predates 9 March 2016, that application is dismissed pursuant to s 47 of the QCAT Act.
  6. The Applicant is directed to file and serve on the Second Respondent within 21 days of the delivery of these Reasons a new points of contention document which coherently identifies the material facts relied upon to establish conduct allegedly constituting indirect discrimination against her by the Second Respondent on or after 9 March 2016 and sets out the legal foundation for such a claim and the relief or remedies sought in respect of it.
  7. The parties have liberty to apply in respect of any other consequential or other orders which might be required to be made.

Footnotes

[1](1989) 168 CLR 165 at 176-7.

[2]See Anti-Discrimination Act 1991 (Qld), s 204; O'Callaghan v Loder (1994) EOC 92-024 at 75,511; Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [132].

[3]See Jonathon Hunyor, ‘Skin-Deep – Proof and Inferences of Racial Discrimination’ (2003) 25(4) Sydney Law Review 535.

Close

Editorial Notes

  • Published Case Name:

    Hickson- Jamieson v University of the Sunshine Coast & Ors

  • Shortened Case Name:

    Hickson- Jamieson v University of the Sunshine Coast

  • MNC:

    [2020] QCAT 523

  • Court:

    QCAT

  • Judge(s):

    Member P Roney QC

  • Date:

    20 Oct 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
Agar v Hyde (2000) 201 CLR 552
2 citations
Jump To
Cite 1 - (2000) 201 CLR 552
Cite 2 - (2000) 201 CLR 552
Agar v Hyde [2000] HCA 41
2 citations
Jump To
Cite 1 - [2000] HCA 41
Cite 2 - [2000] HCA 41
Aigner v State of Queensland and Anor [2012] QCAT 397
2 citations
Jump To
Cite 1 - [2012] QCAT 397
Cite 2 - [2012] QCAT 397
Attorney-General (NSW) v Watson (1987) 20 Leg Rep SL 1
1 citation
Jump To
Cite 1 - (1987) 20 Leg Rep SL 1
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
Barton v R (1980) 147 CLR 75
2 citations
Jump To
Cite 1 - (1980) 147 CLR 75
Cite 2 - (1980) 147 CLR 75
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Briginshaw v Briginshaw (1938) HCA 34
1 citation
Jump To
Cite 1 - (1938) HCA 34
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
3 citations
Jump To
Cite 1 - [1982] 2 NSWLR 937
Cite 2 - [1982] 2 NSWLR 937
Cite 3 - [1982] 2 NSWLR 937
Carr v Baker (1936) 36 SR (NSW) 301
1 citation
Jump To
Cite 1 - (1936) 36 SR (NSW) 301
Chamberlain v The Queen [1984] HCA 7
1 citation
Jump To
Cite 1 - [1984] HCA 7
Clark v R [2016] VSCA 96
1 citation
Jump To
Cite 1 - [2016] VSCA 96
Clyne v NSW Bar Association (1960) 104 CLR 186
1 citation
Jump To
Cite 1 - (1960) 104 CLR 186
Cocks Macnish v Biundo [2004] WASCA 194
2 citations
Jump To
Cite 1 - [2004] WASCA 194
Cite 2 - [2004] WASCA 194
Connelly v DPP (1964) AC 1254
1 citation
Jump To
Cite 1 - (1964) AC 1254
Cox v Journeaux (1935) 52 CLR 713
3 citations
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Cite 1 - (1935) 52 CLR 713
Cite 2 - (1935) 52 CLR 713
Cite 3 - (1935) 52 CLR 713
Cox v Journeaux (No 2) [1935] HCA 48
2 citations
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Cite 1 - [1935] HCA 48
Cite 2 - [1935] HCA 48
David Yohan representing PAWES (Providing Awareness with Education and Sport) v Queensland Basketball Incorporated & Brisbane Basketball Incorporated [2010] QCAT 459
2 citations
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Cite 1 - [2010] QCAT 459
Cite 2 - [2010] QCAT 459
Department of Health v Arumugam [1988] VR 319
4 citations
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Cite 1 - [1988] VR 319
Cite 2 - [1988] VR 319
Cite 3 - [1988] VR 319
Cite 4 - [1988] VR 319
Department of health v Arumugam [1988] VicRp 42
1 citation
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Cite 1 - [1988] VicRp 42
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
2 citations
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Cite 1 - (1949) 78 CLR 62
Cite 2 - (1949) 78 CLR 62
Dey v Victorian Railways Commissioners [1949] HCA 1
2 citations
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Cite 1 - [1949] HCA 1
Cite 2 - [1949] HCA 1
Director-General of Education v Breen (1982) 2 IR 93
1 citation
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Cite 1 - (1982) 2 IR 93
Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767
2 citations
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Cite 1 - [2006] FMCA 1767
Cite 2 - [2006] FMCA 1767
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
2 citations
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Cite 1 - (1964) 112 CLR 125
Cite 2 - (1964) 112 CLR 125
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
2 citations
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Cite 1 - [1964] HCA 69
Cite 2 - [1964] HCA 69
Glasgow City Council v Zafar [1998] 2 All ER 953
1 citation
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Cite 1 - [1998] 2 All ER 953
Gough v State of Queensland [2013] QCAT 320
2 citations
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Cite 1 - [2013] QCAT 320
Cite 2 - [2013] QCAT 320
Grills v R [1998] HCATrans 351
1 citation
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Cite 1 - [1998] HCATrans 351
Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN NSW 261
2 citations
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Cite 1 - (1955) 72 WN NSW 261
Cite 2 - (1955) 72 WN NSW 261
Jago v District Court (NSW) [1989] HCA 46
3 citations
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Cite 1 - [1989] HCA 46
Cite 2 - [1989] HCA 46
Cite 3 - [1989] HCA 46
Jago v District Court of New South Wales (1989) 168 C.L.R 23
3 citations
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Cite 1 - (1989) 168 C.L.R 23
Cite 2 - (1989) 168 C.L.R 23
Cite 3 - (1989) 168 C.L.R 23
Jones v Dunkel (1959) 101 CLR 298
2 citations
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Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Kapoor v Monash University [2001] 4 VR 483
2 citations
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Cite 1 - [2001] 4 VR 483
Cite 2 - [2001] 4 VR 483
Lightning Bolt Co Pty Ltd v Skinner [2002] QSC 62
2 citations
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Cite 1 - [2002] QSC 62
Cite 2 - [2002] QSC 62
McKenzie v Mackay and State of Queensland [2005] QADT 24
2 citations
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Cite 1 - [2005] QADT 24
Cite 2 - [2005] QADT 24
Midlands Passenger Transport Executive v Singh [1988] 2 ALLER 873
2 citations
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Cite 1 - [1988] 2 ALLER 873
Cite 2 - [1988] 2 ALLER 873
MM v State of Queensland [2014] QCAT 478
3 citations
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Cite 1 - [2014] QCAT 478
Cite 2 - [2014] QCAT 478
Cite 3 - [2014] QCAT 478
Moti v R (2011) 283 ALR 393
3 citations
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Cite 1 - (2011) 283 ALR 393
Cite 2 - (2011) 283 ALR 393
Cite 3 - (2011) 283 ALR 393
Nagarajan v London Regional Transport [1999] 3 WLR 425
1 citation
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Cite 1 - [1999] 3 WLR 425
Neill v County Court of Victoria [2003] VSC 328
1 citation
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Cite 1 - [2003] VSC 328
O'Callaghan v Loder (1994) EOC 92024
1 citation
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Cite 1 - (1994) EOC 92024
O'Callaghan v Loder (1984) EOC 9 2-024
1 citation
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Cite 1 - (1984) EOC 9 2-024
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92
2 citations
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Cite 1 - (2003) 217 CLR 92
Cite 2 - (2003) 217 CLR 92
Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62
2 citations
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Cite 1 - [2003] HCA 62
Cite 2 - [2003] HCA 62
Qantas Airways Ltd v Gama (2008) 167 FCR 537
2 citations
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Cite 1 - (2008) 167 FCR 537
Cite 2 - (2008) 167 FCR 537
R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155
4 citations
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Cite 1 - [1989] AC 1155
Cite 2 - [1989] AC 1155
Cite 3 - [1989] AC 1155
Cite 4 - [1989] AC 1155
R v Chamberlain (1984) 153 C.L.R 521
1 citation
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Cite 1 - (1984) 153 C.L.R 521
R v Glennon (1992) 173 CLR 592
1 citation
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Cite 1 - (1992) 173 CLR 592
R v Glennon [1992] HCA 16
1 citation
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Cite 1 - [1992] HCA 16
Ridgeway v R (1995) 184 CLR 19
1 citation
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Cite 1 - (1995) 184 CLR 19
Ridgeway v The Queen [1995] HCA 66
1 citation
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Cite 1 - [1995] HCA 66
Sharma v Legal Aid (Queensland) [2002] EOC 9 3-231
2 citations
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Cite 1 - [2002] EOC 9 3-231
Cite 2 - [2002] EOC 9 3-231
Sharma v Legal Aid Queensland [2001] FCA 1699
2 citations
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Cite 1 - [2001] FCA 1699
Cite 2 - [2001] FCA 1699
Sharma v Legal Aid Queensland (2002) EOC 9 3-191
2 citations
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Cite 1 - (2002) EOC 9 3-191
Cite 2 - (2002) EOC 9 3-191
Shaw v State of New South Wales [2012] NSWCA 102
2 citations
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Cite 1 - [2012] NSWCA 102
Cite 2 - [2012] NSWCA 102
Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61
1 citation
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Cite 1 - [1984] 2 NSWLR 61
Waters & Ors v Public Transport Corporation (1991) 103 ALR 513
4 citations
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Cite 1 - (1991) 103 ALR 513
Cite 2 - (1991) 103 ALR 513
Cite 3 - (1991) 103 ALR 513
Cite 4 - (1991) 103 ALR 513
Waters v Public Transport Corporation [1991] HCA 49
2 citations
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Cite 1 - [1991] HCA 49
Cite 2 - [1991] HCA 49
Wilson v Lawson [2008] QADT 27
2 citations
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Cite 1 - [2008] QADT 27
Cite 2 - [2008] QADT 27
X v Q (No 3) [2009] QADT 21
1 citation
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Cite 1 - [2009] QADT 21

Cases Citing

Case NameFull CitationFrequency
Dunlop v the Body Corporate for Port Douglas Queenslander [2024] QCAT 882 citations
University of the Sunshine Coast v Hickson-Jamieson [2022] QCATA 541 citation
1

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