Bell v State of Queensland (joinder)
[2021] QCAT 104
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- Unreported Judgment
- Bell v State of Queensland (joinder)[2021] QCAT 104
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Bell v State of Queensland (joinder)[2021] QCAT 104
Bell v State of Queensland (joinder)[2021] QCAT 104
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Bell v State of Queensland (joinder) [2021] QCAT 104 |
PARTIES: | andrew bell (applicant) v state of queensland (respondent) |
APPLICATION NO/S: | ADL039-20 |
MATTER TYPE: | Anti-discrimination matters |
DELIVERED ON: | 17 February 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Traves |
ORDERS: | The application for joinder filed by the applicant is refused. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – application of s 42 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether Tribunal should exercise its discretion to join an Acting Principal to a proceeding alleging school ‘no dogs’ signs constituted unlawful discrimination – where no facts to support allegation that Acting Principal involved in the alleged contravention – where application for joinder refused. Anti-Discrimination Act 1991 (Qld), s 101 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42 Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241 Gregor v State of Victoria [2000] VCAT 414 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Crown Law |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]On 4 February 2020 Mr Bell made a complaint to the Queensland Human Rights Commission to the effect that he had been the subject of discrimination on the basis of impairment in the area of the administration of State laws and programs in contravention of s 101 of the Anti-Discrimination Act 1991 (Qld) (AD Act). Mr Bell claims he was discriminated against because the school has ‘no dogs’ signs which do not say ‘except assistance dogs’. Mr Bell says in correspondence attached to the referral that the presence of ‘no-dogs’ signage “caused everyone to look at [him]” when he takes his assistance dog to the school to collect his daughter.
- [2]Mr Bell raised the issue with the school on 31 August 2018 and the school responded by affixing stickers to the signs which read ‘no unauthorised animal’.
- [3]It appears that at some time between 31 August 2018 and 4 February 2020 stickers ceased to be affixed from two of the three signs at the school. The State of Queensland submits that it is not known how the stickers from the two signs were removed (if that is, in fact, what occurred) or by whom.[1]
- [4]Mr Bell made his complaint with the QHRC in February 2020 which was accepted by the QHRC on 20 March 2020. Mr Bell describes his complaint in the QHRC Complaint form as follows:
The school has no dog signs located around. This does not say except assistance dogs. School was previously emailed about this and signs were corrected. They have now been taken off back to the no dogs. I am deaf and have an assistance dog. This is both offensive and discriminatory.
- [5]A letter was sent to Mr Bell (cc’d to the QHRC) from the Assistant Regional Director of the Metropolitan Region of the Department of Education on 3 April 2020 which “confirmed that service, support and therapy dogs are welcome at [the school].” The letter also advised that the Principal of the school was “committed to replacing the signs as soon as possible to reflect a more inclusive practice in relation to dogs.”
- [6]On 3 April 2020 Mr Bell emailed the QHRC requesting that AB, the Principal of the school, be added as a second respondent to his complaint.
- [7]Mr Bell states that the events he is complaining about occurred on 4 February 2020, but also “back in August 2018”.
- [8]The QHRC refused that request on the basis there was insufficient evidence to indicate that AB had been involved in the alleged contravention of the AD Act.
- [9]The complaint was referred to the Tribunal on 20 July 2020.
- [10]On 25 August 2020 Mr Bell filed an application in the Tribunal again seeking to join AB to the proceedings. Mr Bell says that his reason for seeking AB be joined is that:
The second respondent [AB] was in charge of the school as a Principal at the time the discriminatory conduct occurred. Page 4 and 5 of the Referral from the ADCQ mentions vicarious liability. The First and Second Respondent are vicariously and jointly liable for any contravention under the Act and a proceeding may be taken against both. It is impossible for the State of Queensland as a juristic entity under the Crown, to have committed the offence.[2]
- [11]Mr Bell states in the QHRC Complaint Form that the events he is complaining about occurred on 4 February 2020, but also “back in August 2018”. Although it is not clear, it appears Mr Bell claims the signs in their original form constituted unlawful discrimination against him, as did the act of removing the stickers which Mr Bell appears to suggest occurred on 4 February 2020.
- [12]Although it is not entirely clear, it appears that Mr Bell’s case in unlawful discrimination against AB is based on the removal of the stickers. Mr Bell states in an email to the Tribunal of 6 September 2020 that AB removed the stickers. However, Mr Bell provides no basis for this allegation, other than that he says AB is having an affair with his ex-wife (who also works at the school) and, presumably, the inference is that they have conspired in having the stickers removed to cause him harm.
- [13]The State of Queensland strongly objects to adding AB as a second respondent. It denies that AB removed the stickers[3] and also denies that AB was ever in a relationship with Mr Bell’s ex-wife.[4] The State of Queensland submits there is no evidence that the stickers ceased to be affixed on the signs at the time AB was employed as Acting Principal, let alone that it was AB who was responsible. Further that it is highly unlikely, in any event, that AB would remove only two of the three stickers if he intended to discriminate against Mr Bell as alleged.
Should the Principal be joined?
- [14]Section 42 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) confers a discretion on the Tribunal to join a person as a party to a proceeding and provides:
42 Joining and removing parties
(1) The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that—
(a) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or
(b) the person’s interests may be affected by the proceeding; or
(c) for another reason, it is desirable that the person be joined as a party to the proceeding.
(2) The tribunal may order that a party be removed from a proceeding if the tribunal considers that—
(a) the party’s interests are not, or are no longer, affected by the proceeding; or
(b) the party is not a proper or necessary party to the proceeding, whether or not the party was one originally.
(3) The tribunal may make an order under subsection (1) or (2) on the application of a person or on its own initiative.
- [15]The Tribunal has been said to approach the issue of joinder as a two-step process:[5]
- (a)the Tribunal must be satisfied of one or more of the criteria in s 42(1)(a), (b) or (c); and
- (b)the Tribunal must be satisfied that it is appropriate to exercise the discretion conferred.
- (a)
- [16]In respect of a similarly worded provision in the Victorian Civil and Administrative Tribunal Act 1998 (Vic), it has been said that the power to join a person as a party is both conditional and discretionary: conditional in the sense it may not be exercised unless the Tribunal is satisfied that at least one of the conditions set out in [s 42(1)] have been satisfied, and discretionary in the sense the Tribunal may refuse to exercise it even if it is satisfied that at least one of those conditions has been met.[6]
- [17]In exercising its discretion, the Tribunal has had regard to the following:
- (a)whether there is utility or purpose in the joinder;[7]
- (b)whether the joinder will unnecessarily lengthen the proceedings;[8]
- (c)whether the joinder would achieve the objects of the QCAT Act;[9]
- (d)any delay in making the application;[10]
- (e)whether there is any prejudice to any party or to the person to be joined that might result from the granting or refusing of the application;[11]
- (f)whether, where the person is to be joined as a respondent, the complainant’s case against that person is not strongly arguable on a prima facie basis.[12]
- (a)
- [18]
- [19]In my view, there is no basis upon which any of the criteria in s 42(1) can apply.
- [20]AB is not, in my view, a person, under s 42(1)(a), who should be bound by the decision in these proceedings. The relief sought against the State of Queensland does not make it necessary that relief also be sought against the Acting Principal; and there is no reason why the Acting Principal should be bound by any decision against the State of Queensland.
- [21]Section 42(1)(b) concerns circumstances removed from the present and is principally concerned with a case where relief sought against an existing party will affect the interests of another. That is not the case here.
- [22]I do not find it desirable that AB be joined for any other reason within the meaning of s 42(1)(c). There is no direct or indirect evidence implicating AB in any decision or conduct which resulted in the removal of the stickers and it would be distracting and bordering on an abuse of process to join him.
- [23]Assuming that one or other of the criteria in s 42(1) apply, I would not, in any event, exercise my discretion to join AB to these proceedings. There is no prima facie case raised against AB and it is difficult to conceive of how such a case could, in these circumstances, be formulated. Further, this is not a case where if AB is not joined, the claim against the State of Queensland might fail.
- [24]It is not necessary nor desirable, in considering these matters, to have AB joined to the proceedings.
- [25]Accordingly, for the reasons above, the application to join AB to the proceedings is refused.
Footnotes
[1] Respondent’s submissions filed on 6 October 2020, [15].
[2] Application for miscellaneous matters filed on 25 August 2020, 2.
[3] Ibid, [18].
[4] Ibid, [17].
[5] Coral Homes Qld Pty Ltd v Queensland Building Services Authority [2011] QCAT 715, [30] citing Comfortable Homes Pty Ltd v Queensland Building Services Authority [2001] QBT 61; approved on appeal in Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241, [8] citing Gregor v State of Victoria [2000] VCAT 414.
[6] Gregor v State of Victoria [2000] VCAT 414.
[7] Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241, [11].
[8] Ibid.
[9] Mackay v Queensland Building Services Authority [2010] QCAT 381 applied in Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241, [13]; MacDonald v Melville [2017] QCATA 142, [24].
[10] Gregor v State of Victoria [2000] VCAT 414.
[11] Ibid.
[12] Ibid.
[13] Snowden Developments Pty Ltd v Actpen Pty Ltd [2005] VCAT 2910, [17].
[14] Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241, [14]; Lawley v Terrace Designs Pty Ltd [2004] VCAT 1825, [26].