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Ritson v The Giving Network Pty Ltd[2021] QCAT 81

Ritson v The Giving Network Pty Ltd[2021] QCAT 81

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Ritson v The Giving Network Pty Ltd & Anor [2021] QCAT 81

PARTIES:

brendan ritson

 

(applicant)

 

v

 

the giving network pty ltd

tania burstin

 

(respondents)

APPLICATION NO/S:

ADL034-19

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

3 March 2021

HEARING DATE:

12 February 2021

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

  1. The complaint is amended to include an allegation that the respondents directly discriminated against Brendan Ritson by issuing a press release on 3 April 2019 saying that Fraser Anning and his supporters were ‘the antitheses of a safe space for fundraisers and donors to connect’.
  2. The respondents did directly discriminate against Brendan Ritson contrary to sections 10 and 46 of the Anti-Discrimination Act 1991 (Qld):
    1. (a)
      by on about 16 March 2019 prematurely closing down his fundraising campaign in support of Fraser Anning; and
    2. (b)
      in the terms of a press release issued on 3 April 2019.
  3. The respondents did not contravene the Anti-Discrimination Act 1991 (Qld) by issuing a discriminatory advertisement or by victimising Brendan Ritson as alleged in the complaint.
  4. Brendan Ritson is to be paid the sum of $5,500 as compensation for the contraventions which have been proved and The Giving Network Pty Ltd and Tania Burstin are jointly and severally liable to pay this amount.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – discrimination on the basis of political belief or activity – where the complainant’s fundraising campaign in support of Fraser Anning was closed prematurely by the supplier of the online services – where a press release was released by the supplier which was critical of Mr Anning and his supporters – whether the material circumstances of an actual comparator can be informed by the ‘reason why’ – whether less favourable treatment on the basis of political belief or activity – whether actionable in the services area

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – where defence to a complaint of discrimination – where respondents contend that the allegedly discriminatory acts were necessary to comply with other law – whether a defence of necessity is available in discrimination law in Queensland – whether section 106 of the Anti-Discrimination Act 1991 (Qld) provides a defence to this complaint

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – whether a press release released by the supplier of online services was a discriminatory advertisement 

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – complaint of victimisation by acts done in the course of proceedings – whether victimisation – whether there was judicial proceedings immunity for the acts – whether the tribunal may consider judicial proceedings immunity if not raised by the parties

Anti-Discrimination Act 1991 (Qld), s 7, s 10, s 46, s 106, s 114, s 127, s 130, s 206

Equal Opportunity Act 2010 (Vic)

Racial and Religious Tolerance Act 2001 (Vic), s 15

Racial Discrimination Act 1975 (Cth)

Alexander v Home Office [1988] 1 WLR 968

Aston v The Martlet Group Limited UKEAT/0274/18

Cabassi v Vila (1940) 64 CLR 130

Carey v Cairns Regional Council [2011] QCAT 26

Catch the Fire Ministries Inc and Others v Islamic Council of Victoria Inc and Another [2006] VSCA 284

Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48

Heath v Commissioner of Police of the Metropolis [2004] EWCA Civ 943

Gordon v State of Queensland & Ors [2013] QCAT 564

Holdcroft v Market Garden Produce Pty Ltd [2000] QCA 396

Howard v Smith [2014] QCATA 103

Mann v O'Neill (1997) 191 CLR 204

McGarry v Coates [2013] QCATA 32

Parmar v East Leicester Medical Practice [2011] IRLR 641

Patel v Mirza [2016] UKSC 42

Petrak v Griffith University & Ors [2020] QCAT 351

R v Beydoun (1990) 22 NSWLR 256

Re F: Litigants in Person Guidelines [2001] FamCA 348

St Helens Metropolitan Borough Council v Derbyshire [2007] UKHL 16

Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44

South London and Maudsley NHS Trust v Dathi [2008] IRLR 350

Vuga v Persal & Co. Trading Pty Ltd [2017] QCAT 368

XVC v Joanne Baronessa (Human Rights) [2018] VCAT 1492

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    This is a complaint of direct discrimination on the basis of political belief or activity.  There is also an allegation that there was an unlawful advertisement, and a complaint of victimisation.
  2. [2]
    The complaint raises a number of issues with little authority, in particular:
    1. (a)
      whether in addition to the defence of statutory authority found in section 106 of the Anti-Discrimination Act 1991 (Qld) (ADA), there is a general defence of necessity available in discrimination claims under the ADA;
    2. (b)
      the extent to which a complaint about the way respondents deal with discrimination proceedings before the tribunal can amount to actionable victimisation, and whether such a complaint is justiciable if protected by judicial proceedings immunity; and
    3. (c)
      where neither party has raised the judicial proceedings immunity, whether it is right for the tribunal to consider it anyway.
  3. [3]
    The complaint is brought by Brendan Ritson against The Giving Network Pty Ltd, a company which operates a web-based fundraising site called mycause.  The complaint is also brought against the director of the company, Tania Burstin.
  4. [4]
    Mycause provides a free service which fundraisers can use.  A fundraiser can create a page on the mycause site, visible to prospective donors through the internet.  In this way a fundraiser may use the services of mycause to run a fundraising campaign.  The donated money is collected by mycause and remitted to the fundraiser.
  5. [5]
    On 9 February 2019 Mr Ritson created a page on the mycause site to raise money for Fraser Anning’s election campaign for re-election as Senator in the 2019 Federal Election.  As was usual for such sites on mycause, the campaign had an end date.  In this case the end date was 18 May 2019, the date of the election.
  6. [6]
    Mycause closed the campaign earlier than this and issued a press release explaining why.  Mr Ritson says there was direct discrimination under section 10 of the ADA by:
    1. (a)
      prematurely closing his campaign page; and
    2. (b)
      issuing a press release saying that he was the antithesis of a safe space for fundraisers and donors to connect.[1]
  7. [7]
    For such treatment to be discrimination under the ADA it must have happened ‘on the basis of an attribute’.[2]  The attribute relied on here is ‘political belief or activity’.[3]  Mr Ritson relies on a comparator who had a different political belief whose campaign was not closed prematurely and where there was no press release.  If necessary, he relies on a hypothetical comparator. 
  8. [8]
    For any such discrimination to be actionable under the ADA it must come under one of the ‘areas’.  The area relied on in this complaint is the ‘goods and services area’, which is governed by Division 4 of the ADA.  In particular, section 46 makes it a contravention of the Act to discriminate against another in various ways with respect to the provision of services.
  9. [9]
    By section 204 of the ADA, Mr Ritson has the burden to prove the contravention on the balance of probabilities.
  10. [10]
    The respondents say that what happened was legitimate because of the extremity of the views expressed by Mr Anning as adopted by Mr Ritson.  In effect it is suggested that those views should not be protected by the ADA.  It is also said that what was done was necessary to comply with other law.  In that respect a defence of necessity or a defence of statutory authority under section 106 of the ADA is relied on. 
  11. [11]
    The respondents also rely on the terms and conditions of the use of the mycause website, which do not permit certain material to be used in campaigns, and give the operators of the site a right to remove material at their discretion. 

Findings in the direct discrimination claim about closing the campaign prematurely

  1. [12]
    It is not in dispute that the campaign was closed prematurely by mycause and that this was at the direction of Ms Burstin.  The parties give different dates for the closure of the campaign.  Ms Burstin says it was closed after 5 March 2019.[4]  This seems to be based on the fact that the last donation was on that day.  Mr Ritson says it was closed on or about 16 March 2019.
  2. [13]
    The later date accords better with the stated reason given at the time by the respondents for closing the campaign.  This was in the press release of 3 April 2019 set out below.  It explained that the decision to close all the fundraising campaigns supporting Mr Anning was the attack on mosques in New Zealand and media coverage of Mr Anning’s subsequent remarks.  The attack occurred on 15 March 2019 and Mr Anning made remarks that day and the day after. 
  3. [14]
    When giving evidence Ms Burstin demonstrated uncertainty about dates and certain facts, whereas Mr Ritson was much more precise and accurate.  He sent an email at 3.28pm on 16 March to the respondents about the closure of the campaign.  It is likely that he sent this soon after the campaign was closed.
  4. [15]
    The evidence discloses that there were a number of fundraising campaigns on mycause for various candidates standing in the 2019 Federal Election.  On my finding, there were several such campaigns fundraising for Mr Anning, and they were all closed by the respondents about the same time as Mr Ritson’s campaign.
  5. [16]
    There is no doubt that closing Mr Ritson’s fundraising campaign prematurely was ‘less favourable treatment’ because this did not happen to other campaigns.  And it also comes within section 46(1) because it was a failure to supply the services from the date of the closure and it was unfavourable treatment of Mr Ritson in connection with the supply of services.[5]  The ingredients on the contravention are all in place therefore, subject to the one question which is usually central to these cases – why was the act done?  And of course, subject to the defences raised.
  6. [17]
    I was not helped by Ms Burstin as to the reason for the closure of the campaign.  She gave different reasons at different times.  In the respondents’ contentions, and in the written evidence before the tribunal, the explanation for closing the campaign is very vague.  There is however, heavy emphasis on the mycause terms and conditions.  It is said that the campaign was closed because mycause was able to close it under the terms and conditions.  But this does not explain why those terms and conditions were invoked.
  7. [18]
    When giving evidence, Ms Burstin was asked about the reasons for closing the campaign and again gave differing explanations.  Overall, it seems to me that the reasons for closing the campaign are as stated in the press release.  This was confirmed by Ms Burstin at the start of her evidence, although not by the end of it.  It is however, the most contemporaneous explanation, and the earliest one in writing.  It was also sent to another campaign owner, seemingly to explain why his site had been closed.[6]
  8. [19]
    The press release read:

April 03 2019

MYCAUSE SHUTS DOWN “FRASER ANNING FUNDRAISING” PAGES ACROSS PLATFORM

Following the horrific attack on mosques in Wellington, New Zealand and the subsequent media coverage of Fraser Anning’s remarks, mycause has decided to shut down all fundraising pages that are raising funds for Fraser Anning and his party’s candidates for the upcoming federal election.

“At mycause, we have a zero-discrimination policy,” says Managing Director Tania Burstin.  “In the wake of the attacks and the Senator’s follow up comments, we believe his views and those of his candidates and party do not align with the mycause brand and ethos.”

In the past week, mycause has removed numerous fundraising pages that support the Senator and his party, a move that has been welcomed and praised by human rights activists and lobby groups.

“We [mycause] offer a safe space for fundraisers and donors to connect and we feel that the Senator and his supporters are the antitheses of that, so we have promptly taken action”.

  1. [20]
    It is clear from the press release that the reason why Mr Ritson’s campaign, and others like it on mycause, were closed was because of the views of Mr Anning and his supporters.  As was said in the press release, quoting Ms Burstin, ‘In the wake of the attacks and the Senator’s follow up comments, we believe his views and those of his candidates and party do not align with the mycause brand and ethos’. 
  2. [21]
    I do not accept therefore that the reason was anything to do with the terms and conditions of mycause.  Also it had nothing to do with the material on Mr Ritson’s campaign page.  Ms Burstin confirmed this at the start of her evidence.  However, this differed from her written evidence and she sought to say otherwise in her later oral evidence.  The fact is however, that although being technically possible to do so, neither mycause nor Ms Burstin made any attempt to remove Mr Ritson’s campaign page.  It was not in dispute that it was still visible at the time of the hearing.  This demonstrates that Ms Burstin did not think it had to be removed.  It shows that the decision to close Mr Ritson’s campaign had nothing to do with the material on his campaign page.

Findings in the direct discrimination claim about the contents of the press release

  1. [22]
    The press release was issued on 3 April 2019.  I accept the respondents’ evidence that it was not actually distributed to the media.  However, it was published on the mycause website and so was available for anyone who might be interested.
  2. [23]
    The passage in the press release which is objected to, and said to be directly discriminatory is this:

“We [mycause] offer a safe space for fundraisers and donors to connect and we feel that the Senator and his supporters are the antitheses of that, so we have promptly taken action.”

  1. [24]
    This needs to be read in the context of the whole press release which is set out in full earlier in these reasons, and of course in the context of the circumstances generally.  The quotation marks show that this is a direct quote from Ms Burstin.
  2. [25]
    It is said that this passage was directly discriminatory.  If this is correct then this would be a contravention of the ADA because it seems to come within section 46(1)(d) of the ADA which makes it a contravention to discriminate against another person – by treating the other person unfavourably in any way in connection with the supply of goods and services.
  1. [26]
    The respondents say that the press release was nothing to do with Mr Ritson, but it clearly was.  It explained why Mr Ritson’s campaign together with a number of other similar campaigns, had been closed prematurely.  It referred to Mr Anning’s supporters and since his fundraising campaign remained visible on the mycause site he could easily be identified as one of those supporters.
  2. [27]
    It is to be noted however, that the press release did not identify Mr Ritson personally.  He was only one of a class of persons referred to in the passage objected to.  Is it possible for a person who is one of a class of persons to be less favourably treated by an act which affects the class?  The answer to this must be ‘yes’ provided there was some specific impact upon the complainant and it was reasonable for this to have happened.  For example suppose a food delivery service only delivered to women.  Mr X could complain about this if he had been refused such services because of his gender.  But Mr Y who had never tried to obtain those services but was merely offended on hearing about the distinction, would have no cause of action. 
  3. [28]
    One question which arises is whether the words complained of were ‘less favourable treatment’, and in this case also ‘unfavourable treatment’.[7]  It seems to me that the words go much further than saying merely ‘we disagree with the views of Fraser Anning and his supporters’.  They suggest that in some way Mr Anning and his supporters, which included Mr Ritson, created some ‘unsafe space’ in the online fundraising world.  Although what is suggested here seems very obscure, I must agree with Mr Ritson that it was a deleterious comment about certain people, including him.  On my finding it is capable of being less favourable treatment.
  4. [29]
    On the question whether this was less favourable treatment of Mr Ritson, I need to examine what impact the statement had on him.  He says that it made him feel embarrassed and humiliated.  His understanding of the words was that supporters of Mr Anning ‘(including me) were unsafe people to be around and/or create an unsafe environment to be in’.  He said this was false, disparaging and highly offensive, especially when the assumption is made ‘solely on the basis of my political belief’.  I accept this evidence and I think his reaction was reasonable.  I do think therefore, that the terms of the press release did amount to less favourable and unfavourable treatment. 
  5. [30]
    The question needs to be asked again why this was said.  There is no explanation about this, but it seems to me to have been made to emphasise the main point being made in the press release itself, that mycause found Mr Anning’s views and those of his supporters to be unacceptable.

Were the views political belief?

  1. [31]
    The question here is whether the views of Mr Anning and his supporters which mycause found to be unacceptable were political belief within section 7(j) of the ADA.
  2. [32]
    The respondents’ amended contentions argue that the attribute of political belief or activity is not applicable to this complaint.  I do not understand from this that the respondents are saying that Mr Anning and his supporters did not hold particular political beliefs or carried on particular political activity.
  3. [33]
    Instead, it seems to me that the contentions suggest that the views of Mr Anning and his supporters which mycause found unacceptable were so extreme that they were not ‘political belief’ and therefore did not have the protection of the ADA.
  4. [34]
    It may be possible that some views are so extreme that they fall outside ‘political belief’.  But the respondents’ arguments about this were not developed at all, nor supported by any evidence.[8]  It is known as a fact that at the time Mr Anning expressed the views which mycause found unacceptable he was standing for the Senate, having previously been elected to the Senate, and was commenting on a serious incident which had occurred.  On the face of it, the comments were expressions of ‘political belief’.  In the absence of anything persuasive to the contrary, the only conclusion that I can reach is that the views which mycause found unacceptable were ‘political belief’.

Comparators

  1. [35]
    Now that I have found the reason why the campaign was closed and why the press release was issued in the terms objected to, it is possible to consider the comparators.  That this is the appropriate sequence under the Queensland anti-discrimination legislation when constructing a hypothetical comparator is demonstrated by Petrak v Griffith University & Ors [2020] QCAT 351.  It can be seen from the discussion below that, for the reasons given in Petrak, the same sequence may be followed when considered what circumstances are ‘material’ when considering whether a person is properly relied on as an actual comparator.
  2. [36]
    The actual comparator relied on is Jim Molan who was seeking re-election as a Senator in the same Federal Election.  He also had a fundraising campaign on the mycause website started at about the same time as Mr Ritson’s.  It is not in dispute that this comparator did not hold the political views held by Mr Anning and that his site was not closed down before its end date, nor was there a press release issued about such a closure.
  3. [37]
    The respondents say that there were various differences between Mr Ritson’s campaign and Senator Molan’s campaign.  It is suggested that these differences are ‘material’ and therefore Senator Molan is not a proper actual comparator. 
  4. [38]
    One difference relied on by the respondents is that the contents of Mr Ritson’s page contained offensive content in breach of the terms and conditions of mycause and Senator Molan’s page did not.  I do not think this difference is material for the comparison because in reality (on my finding) this was not the reason why, or even one of the reasons why, the campaign was closed prematurely and why the press release was issued in the terms objected to. 
  5. [39]
    Other differences pointed out by the respondents are not material either.  This is for the same reason – they played no part in the decision making.  They were that:
    1. (a)
      Senator Molan had signed up on the site as an ‘entity’ and not as an ‘individual’ as Mr Ritson had done;
    2. (b)
      Senator Molan’s campaign was created by his office and officially authorised by Senator Molan himself as shown by a number of things including verification of bank details on ‘official letterhead’;
    3. (c)
      donated funds were to be remitted to Senator Molan’s official campaign bank account, whereas in Mr Ritson’s campaign they were to be remitted to his account and not Mr Anning’s account.
  6. [40]
    Hence, applying the test of the actual comparator, it can be seen that the actual comparator, that is Senator Molan who did not hold Mr Anning’s political belief, was indeed treated more favourably than Mr Ritson by not having a campaign closed prematurely and not having a press release issued in the terms objected to.  Therefore Mr Ritson’s less favourable treatment than Senator Molan was on the basis of the attribute of political belief or activity.
  7. [41]
    In this case, on my finding Senator Molan was an appropriate actual comparator.  However, if it is considered necessary to look instead at a hypothetical comparator, this too may be done in the light of my findings as to the reason why.
  8. [42]
    The respondents contend that the correct hypothetical comparator is:[9]

an individual who has a private fundraising page, with funds donated to a private bank account, who posts comments in breach of the Giving Network’s terms and conditions

  1. [43]
    Patently, this would be the wrong comparator because in reality the none of the things mentioned here formed any part of the respondents’ decision making.
  2. [44]
    The correct comparator is a person with a campaign to raise funds for an election candidate whose views aligned with the mycause brand and ethos.  Or the correct comparator might be a person with a campaign to raise funds for an election candidate whose views were not those held by Mr Anning.  It is not necessary to be precise, provided that having regard to the reason why, the comparator is capable of validly testing whether the attribute was the basis for the less favourable treatment.
  3. [45]
    Such a person would not have had their campaign closed prematurely and there would not have been a press release issued in the terms objected to.  The less favourable treatment was therefore on the basis of political belief or activity.

Respondents’ other defences to the direct discrimination claim

  1. [46]
    I have already dealt with the respondents’ contention that that the attribute of political belief or activity is not applicable to this complaint.
  2. [47]
    The respondents also rely heavily on the terms and conditions of the fundraising website and on the fundraising guidelines.  They claim that Mr Ritson’s fundraising campaign breached those terms and conditions and the guidelines and so had to be closed.  But I have found that this had nothing to do with the decisions to close his campaign or to issue the press release in the terms objected to.
  3. [48]
    In any case, terms and conditions and guidelines cannot change the terms of the ADA itself.  They must be read as being subject to the ADA.  In other words, it is no defence to a contravention of the ADA to show that the contravention was required or permitted by terms and conditions of a private contract.  This defence cannot succeed.
  4. [49]
    The respondents also say that the closure of the campaign was a fair and reasonable thing to do.  This defence does not work.  There is no defence of reasonableness in the case of direct discrimination.
  5. [50]
    Potentially of greater value are these points:[10]

As a national system employer and as a provider of goods and services, (the Respondent) is required to comply with all relevant state and federal anti-discrimination legislation including:

a. Anti-Discrimination Act 1991 (Qld)

b. All other State and Territory Anti-Discrimination legislation

c. Racial Discrimination Act 1975 (Cth)

d. Vilification legislation, including the Racial and Religious Tolerance Act 2001 (Vic)

In some jurisdictions (the Respondent) must also comply with a legislated, positive duty to take reasonable steps to prevent discriminatory conduct, such as under the Equal Opportunity Act 2010 (Vic).

The Respondents’ conduct in removing the Applicant’s fundraising page from its website and issuing a press release was done in compliance with its obligations under the above-mentioned legislation, to prevent discriminatory conduct, including to mitigate any risk under the above mentioned legislation that it was engaging in the following unlawful conduct:

a. Encouraging racist behaviour.

b. Authorising racist behaviour.

c. Vicariously liable for racist behaviour.

d. Encouraging vilification of a group of people because of their race.

Further, and as stated above, the Respondents were entitled to and required to comply with its own terms and conditions and fundraising guidelines, widely advertised to its customer base on its website.

  1. [51]
    It seems to me from these contentions that the respondents are seeking to rely on sections 103 and 106 of the ADA which provide a statutory authority defence and also on the common law defence of necessity if it is available. 
  2. [52]
    Section 103 provides a defence for a prohibition under part 4 of the ADA, which applies here (the ‘goods and services area’).  The applicable provisions are as follows:

103 Explanatory provision (exemptions)

It is not unlawful to discriminate with respect to a matter that is otherwise prohibited under part 4 if an exemption in sections 104 to 113 applies.

106 Acts done in compliance with legislation etc.

  1. (1)
    A person may do an act that is necessary to comply with, or is specifically authorised by—
  1. (a)
    an existing provision of another Act; or
  1. (b)
    an order of a court; or
  1. (c)
    an existing provision of an order or award of a court or tribunal having power to fix minimum wages and other terms of employment; or
  1. (d)
    an existing provision of an industrial agreement under the repealed Industrial Relations Act 1999; or
  1. (e)
    an order of the Anti-Discrimination Tribunal.
  1. (2)
    In this section—

existing provision means a provision in existence at the commencement of this section.

  1. [53]
    Under section 106 the respondents could only rely on an ‘existing provision of another Act’.  And as defined, ‘existing provision’ applies to legislative provisions which existed when the section commenced, which was on 30 June 1992. 
  2. [54]
    Whether the common law defence of necessity, not relying on section 106, is open to the respondents is probably a matter of statutory interpretation.  It could be that the proper inference to be drawn from the enactment of section 106, and the other exemptions under the ADA, is that there is no room for the common law defence of necessity as well.  Support for that view might come from the reason why section 106 is limited to law in existence on 30 June 1992.  One reason for that limitation could be that a law enacted after 30 June 1992 could be drafted with the ADA in mind, and could specifically state that compliance with its terms was not discriminatory under the ADA.  But existing law would automatically prevail over the new anti-discrimination law, saving much work on amendments.  This tends to suggest that section 106 was all embracing, leaving no room for the common law defence of necessity.
  3. [55]
    That argument only works however, for Queensland laws.  At the time of the passing of the ADA it would be foreseeable that laws could be enacted after 30 June 1992 in other States and in the Territories or the Commonwealth, and that such laws would not be drafted with the ADA in mind.  There was no attempt to ensure that the ADA prevailed over those laws, by expressly enacting that the defence of necessity was not available as a defence under the ADA.  This would tend to suggest that, at least for those laws, although section 106 could not apply, the defence of necessity is available.
  4. [56]
    In addition to this, it has long been held in the English authorities that illegality will defeat an otherwise good discrimination claim.  The modern expression of this is that as a matter of public policy,[11] where the complainant is seeking to profit from his own wrongdoing, a court or tribunal may refuse to entertain a claim depending on the answer to certain public policy tests.[12]
  5. [57]
    And as can be seen below, judicial proceedings immunity will mean that a victimisation claim cannot be pursued in certain circumstances.
  6. [58]
    So it could well be wrong to infer from the statutory authority defence in section 106 and the other exemptions in the ADA, that no further defences are available at common law to a discrimination claim. 
  7. [59]
    I note that the defence of necessity is not confined to criminal law, and applies also as a defence to a civil wrong.  It is commonly relied on in actions for trespass to land, but has been argued and decided in actions for trespass to the person, false imprisonment and negligence.[13]
  8. [60]
    Without deciding whether the defence of necessity is available to the respondents in this complaint based on laws in existence in March 2019, it is convenient for me to assume for the time being that it is.  The next question is therefore whether it could avail the respondents in this particular case.
  9. [61]
    It seems to me that the statutory provisions on which the respondents may rely in the defence of necessity are limited to those that have been put before the tribunal.  They are the Anti-Discrimination Act 1991 (Qld), the Racial Discrimination Act 1975 (Cth), the Equal Opportunity Act 2010 (Vic) and the Racial and Religious Tolerance Act 2001 (Vic).  Unfortunately Ms Burstin was unable to direct me to the specific provisions relied on.
  10. [62]
    The provisions need to be read in the light of Mr Ritson’s campaign page.  It is unnecessary to repeat the words used in the campaign page to explain my approach to this.  It is enough to say that Mr Ritson says that in the page he repeated certain things said by Mr Anning.  The page then asked for donations which, it was said, would all go to the re-election campaign.
  11. [63]
    In the light of the contents of Mr Ritson’s page I shall now try to identify any provision in the statutes relied on which would compel the respondents to close down Mr Ritson’s campaign and to issue the press release in the terms objected to.
  12. [64]
    The relevant provisions of the statutes relied on fall into four categories.  The first category of relevant provisions are those which prohibit treating a person less favourably on the grounds of an attribute or which prohibit harassment.[14]  Some of these provisions could also apply to the respondents because they extend to those who assist others to contravene the provisions.[15]  But the provisions in this category do not give rise to the defence of necessity because the respondents were not in jeopardy by them.  This is because there would be no person who would be able to show less favourable treatment or harassment by reason of Mr Ritson’s campaign.  In other words, no person could bring a complaint under these provisions that they had been treated less favourably or had suffered harassment by Mr Ritson’s page.  This is because Mr Ritson’s page was in general terms and did not impact upon any particular person.
  13. [65]
    I would put a provision in the second category if it is one where the statute imposes statutory duty.  Of relevance to the defence relied on here, there is section 15 of the Equal Opportunity Act 2010 (Vic) which imposes a duty on a person to take reasonable and proportionate measures to eliminate discrimination, sexual harassment or victimisation as far as possible.  But this duty is only imposed on persons who have a duty under Part 4 (discrimination in certain ‘areas’), Part 6 (sexual harassment) or Part 7 (victimisation).  Part 4 includes the provision of goods and services, and prohibits discrimination in the provision of those services.  The result is that section 15 would not require the respondents to close Mr Ritson’s campaign or issue a press release explaining why.  This is because, as explained when discussing the provisions in the first category, there was nothing on his campaign page enabling a complainant to complain about a contravention of Part 4, 6 or 7.
  14. [66]
    I would put a provision in the third category if a criminal offence might be committed.  There are two provisions in the Acts which I am looking at which come into this category: section 131A of the ADA itself (‘serious racial and religious vilification’) and section 24 of the Racial and Religious Tolerance Act 2001 (Vic) (‘offence of serious racial vilification’).  There is no suggestion by the respondents here that these provisions could apply, and I am of the clear view that they could not do so.  I shall disregard them.
  15. [67]
    There is a provision which comes into a category of its own (the fourth category).  This is Part 2 of the Racial and Religious Tolerance Act 2001 (Vic).  Sections 7 and 8 make it unlawful for a person, on the ground of the race or religious belief or activity of another person or class of persons, to engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
  16. [68]
    Other provisions make it clear that the conduct could be done on a single occasion or a number of occasions over a period of time and that the conduct may occur in or outside Victoria (mycause and Ms Burstin are based in Victoria), but that purely private conduct is excluded from the provisions as are performances, artistic work, academic debate, matters in the public interest and so on.[16]
  17. [69]
    By section 15 of the Act, those who ‘request, instruct, induce, encourage, authorise or assist another person to contravene a provision of this Part’ would also be in contravention.  These words have been considered many times by the Victorian Civil and Administrative Tribunal in the context of section 105 of the Equal Opportunity Act 2010 (Vic),[17] and it is understood that although mere inaction will usually not amount to authorising or assisting discrimination this is not always the case.  As was said by Senior Member B. Steele in XVC v Joanne Baronessa (Human Rights) [2018] VCAT 1492:[18]

It is possible to envisage circumstances where standing by doing nothing about an unlawful act might amount to authorisation of that act.

For example, an employer who openly observes racist or sexist comments and does nothing to prevent or criticise that conduct might be said to authorise it by simply being present.  In Kafantaris v City of Yarra [2005] VCAT 2591, the Tribunal allowed for this possibility ‘at least where it can be said that there was a duty or legitimate expectation that the relevant person would act’.

  1. [70]
    These provisions differ from the provisions in the first category because anyone can bring a dispute to the Commission for dispute resolution or make an application to VCAT against the assister, who in this case would be the respondents if Mr Ritson’s campaign were found to come within the provisions.  Hence in those circumstances it would be true to say that the respondents were in jeopardy.
  2. [71]
    The 2001 Act was not in force when section 106 of the ADA commenced, so these provisions cannot be relied on by the respondents under section 106.  But if the respondents can rely on a defence of necessity, then these provisions could provide a defence because, it would be said, they required the respondents to close down Mr Ritson’s campaign to avoid liability under section 15 of the 2001 Act.
  3. [72]
    This is the only statutory provision therefore out of all the ones that I may examine, under which the respondents could possibly face jeopardy arising from Mr Ritson’s fundraising campaign if they took no action.  And this is only if Mr Ritson’s fundraising campaign was within the terms of section 7 or 8 of the 2001 Act.  But it is not at all obvious that his fundraising campaign was within those terms, particularly bearing in mind what was said in the Victorian Court of Appeal in Catch the Fire Ministries Inc and Others v Islamic Council of Victoria Inc and Another [2006] VSCA 284.  In that appeal it was held that the words ‘on the ground of the race or religious belief or activity’ in sections 7 and 8 did not refer to the conduct but instead referred to the hatred etc.  So conduct falling within section 7 or 8 would be conduct which had the natural and ordinary effect of encouraging the hatred etc. of a person or class of persons on the ground of race or religious belief or activity.[19]
  4. [73]
    Having identified a statutory provision which could possibly put the respondents in jeopardy arising from Mr Ritson’s fundraising campaign if they took no action, it is now possible to see if it could act as a defence to the complaint that they closed the campaign prematurely and issued the press release in the terms objected to.  The fact is that although the campaign was closed prematurely, the respondents did nothing to remove Mr Ritson’s fundraising page.  It remained on the site and viewable, and indexed by search engines. 
  5. [74]
    Hence the respondents cannot claim that they were compelled to close the campaign and issue the press release in the terms objected to because of the jeopardy they would otherwise face under section 15 of the Racial and Religious Tolerance Act 2001 (Vic).  This is because if there was such jeopardy, it continued despite having closed the campaign and issuing the press release.  To put this another way, if there was such jeopardy it could only be extinguished by removing Mr Ritson’s fundraising page altogether.  But this did not happen and is not the less favourable treatment complained of.
  6. [75]
    In the circumstances, none of the statutory provisions relied on by the respondents could provide them with a defence to the direct discrimination complaints.

Conclusions on the direct discrimination complaint

  1. [76]
    For both complaint (a) and (b), I have found that there was less favourable treatment of an actual comparator, and of a properly constructed hypothetical comparator, and that the reason for doing this was political belief of Mr Anning and his supporters.  I have found that both these complaints came within section 46(1) and were not saved by any of the defences raised. 
  2. [77]
    It makes no difference to the merits of this complaint that the reason for the less favourable treatment was political belief of Mr Anning and his supporters, rather than political belief of Mr Ritson.  It is clear from the wording of sections 7 and 10 of the ADA that political belief or activity does not have to be that of the person who received the less favourable treatment.  It can be political belief or activity of others.[20]
  3. [78]
    In the circumstances these complaints succeed.

Complaint that the press release was a discriminatory advertisement

  1. [79]
    Mr Ritson alleges that the press release amounted to a discriminatory advertisement in contravention of section 127 of the ADA.  That section reads:

127 Discriminatory advertisements

  1. (1)
    A person must not publish or display an advertisement, or authorise its publication or display, if the advertisement indicates that a person intends to act in a way that contravenes the Act.

Maximum penalty—

(a) in the case of an individual—35 penalty units; or

(b) in the case of a corporation—170 penalty units.

(1A) To remove any doubt, subsection (1) does not apply to an advertisement so far as it advertises for a worker who is under 21 years of age, whether by specifying a particular age, a particular age group or otherwise.

Example—

An employer may advertise for an 18 year old sales assistant or for a 15 to 17 year old sales assistant.

  1. (2)
    It is a defence to a complaint made under the Act for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable precautions to prevent the publication or display happening.
  1. (3)
    It is an excuse to an offence against subsection (1) if the defendant took reasonable precautions to prevent the publication or display happening.
  1. [80]
    Schedule 1 defines ‘advertisement’ as follows:

advertisement includes every form of advertisement or notice, however displayed, and whether or not displayed to the public, and includes, for example, an advertisement—

  1. (a)
    in a newspaper or other publication; or
  1. (b)
    by television or radio; or
  1. (c)
    by display of notices, signs, labels or goods; or
  1. (d)
    by distribution of samples, circulars, catalogues, price lists or other material; or
  1. (e)
    by exhibition of pictures, models or films.
  1. [81]
    Mr Ritson’s contention is that the press release is a notice expressing the respondents’ intention to close the fundraising campaigns which support Mr Anning and that since that was discriminatory the result was that the notice contravened section 127.
  2. [82]
    One difficulty seems to be that, on my finding, all such campaigns were already closed at the time of the notice. 
  3. [83]
    But Mr Ritson argues that the closure dates are irrelevant.  He submits that section 127 is contravened if an intention to discriminate is indicated in the notice even if this does not in fact happen.
  4. [84]
    I tend to agree that this is the aim of section 127.  It would outlaw for example, ‘men only may apply’ advertisements for employees, or ‘we grant leases only to those over 50’ in real estate tenancy advertisements, even if no such discriminatory act actually occurs. 
  5. [85]
    It is clear however, that for there to be a contravention of section 127 the notice must indicate an intention to act in a way which contravenes the Act in the future, not merely to report that this has happened in the past.
  6. [86]
    I think that read as a whole, the press release does not indicate an intention to do something in the future.  The words ‘has decided to shut down all fundraising pages’ indicate that the decision to do this has already happened.  And the words ‘in the past week, mycause has removed numerous fundraising pages’ shows that the closures have already happened.
  7. [87]
    In the circumstances section 127 of the ADA does not apply to the press release.

Victimisation complaint

  1. [88]
    This complaint raises some complex legal issues.  I shall set out the statutory provisions, then set out the nature of the complaint and my factual findings on the complaint and then return to those legal issues.
  2. [89]
    Victimisation is described in section 130 of the ADA and by section 129 is stated to be a contravention:

129 Victimisation

A person must not victimise another person.

Maximum penalty—

  1. (a)
     in the case of an individual—45 penalty units or imprisonment for 3 months; or
  1. (b)
     in the case of a corporation—170 penalty units.

130 Meaning of victimisation

  1. (1)
    Victimisation happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant)—
  1. (a)
    because the complainant, or a person associated with, or related to, the complainant—
  1. (i)
    refused to do an act that would amount to a contravention of the Act; or
  1. (ii)
    in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or
  1. (iii)
    is, has been, or intends to be, involved in a proceeding under the Act against any person; or
  1. (b)
    because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a)(i), (ii) or (iii).
  1. (2)
     In this section, a reference to involvement in a proceeding under the Act includes—
  1. (a)
    making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
  1. (b)
    involvement in a prosecution for an offence against the Act; and
  1. (c)
    supplying information and producing documents to a person who is performing a function under the Act; and
  1. (d)
    appearing as a witness in a proceeding under the Act.
  1. [90]
    The ingredients of this contravention are therefore detriment or a threat of detriment because of a protected act listed in section 130(2).
  2. [91]
    On 2 June 2020, on his application, the tribunal gave Mr Ritson leave to amend the complaint to include allegations of victimisation.  The alleged acts of victimisation were certain statements in the respondents’ amended contentions of 5 March 2020, and an email sent to the tribunal by Ms Burstin on 7 April 2020 in which she described Mr Ritson as a vexatious litigant.

The statements in the amended contentions

  1. [92]
    I need to explain what ‘contentions’ are.  The tribunal only hears ADA matters upon referral from the Queensland Human Rights Commission (QHRC).  The referral documents from QHRC only identify the nature of the complaint briefly.  QHRC does not identify the factual and legal issues for determination.  This means that the tribunal needs to do this.  The first directions after a referral will be a requirement that the complainant files ‘contentions’ giving details about the complaint.  In such directions, the respondents are also directed to file contentions in reply.  The idea is that, from the contentions, the factual and legal issues in the case will appear.  However, the tribunal does not then take the next step and confirm with the parties exactly what those issues are.  This is usually left to the hearing, if it is done at all.
  2. [93]
    Contentions are not required by the QCAT Rules, nor the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) nor the ADA, but they tend to be treated like pleadings in the tribunal in the sense that they are required by the directions, set out the case of the party making them, and can be amended with leave.
  3. [94]
    The statements in the respondents’ amended contentions of 5 March 2020 which are said to be victimisation are:

3 The Applicant’s conduct constituted racist comments and/or innuendo that went beyond the parameters of political comment or activity.

5 The Applicant’s conduct is more reasonably characterised as ‘racist’ conduct that is prohibited under the Act.

  1. [95]
    Mr Ritson says he suffered detriment when he read these statements.  He says that he regarded the statements made in the contentions as a personal attack on him, which were false and disparaging and implied that he had broken the law.  I found his evidence about being upset convincing.  I am also of the view that it was reasonable for Mr Ritson be upset by what was said in the statements in the contentions.  I am taking into account here his experience in various court cases.  I do not think that experience has made him so robust that he would not be upset on reading the statements.
  2. [96]
    Before deciding whether Mr Ritson’s upset amounted to detriment under section 130 I need to consider the correct test to apply, and I consider this further below. 
  3. [97]
    As for the reason why the statements were said, it is difficult to say that there was any reason for the making of the statements other than the fact of the discrimination proceedings in the tribunal.  This is because the statements were made in an attempt to defend those proceedings.

‘Vexatious litigant’ email

  1. [98]
    The ‘vexatious litigant’ email arose as follows.  The tribunal had directed the respondents to give to Mr Ritson, and file in the tribunal, their witness statements by 12 March 2020.  On 22 February 2020 the respondents prepared that evidence.  On 7 April 2020 Ms Burstin sent the evidence to the tribunal attached to an email.  She also copied this email to Mr Ritson.[21]
  2. [99]
    The body of the email said:

Hi (name of case manager)

With more important things to worry about than a vexatious litigant, I forgot to send this Witness Statement

Please find attached

Regards

Tania

  1. [100]
    As for detriment, Mr Ritson explained in his evidence that he regarded the vexatious litigant comment in the email as untrue and designed to upset him and ‘an attempt to rub salt in the wound’.  He was aware that decision makers could read it and he was concerned it might influence the outcome of the complaint.  I found this evidence convincing and I am satisfied that it was reasonable for him to feel this way.  I am taking into account here his experience in various court cases.  I do not think that experience has made him so robust that he would not be upset when reading the email.
  2. [101]
    Again, before deciding whether Mr Ritson’s upset amounted to detriment under section 130 I need to consider the correct test to apply, and I consider this further below. 
  3. [102]
    As for the reason why Ms Burstin referred to Mr Ritson as a vexatious litigant, she said in evidence that it was because she was frustrated by the proceedings and the amount of work she was being asked to do.  In the light of this evidence it cannot be said that there was any reason for making this comment other than the fact of the proceedings.

The legal issues arising on the victimisation claim

  1. [103]
    At the hearing I raised with the parties the legal difficulties arising from the victimisation complaint being based on things which happened during the course of the proceedings.  I raised the issues of detriment and causation and the possible effect of judicial proceedings immunity.  In response, Mr Ritson rightly pointed out that the victimisation complaint could alternatively be dealt with by an award of aggravated damages, however he did not withdraw the victimisation claim.
  2. [104]
    In the circumstances, I need to consider:
    1. (a)
      what test to apply under the ADA in the case of a complaint of victimisation where the act complained of occurred in the course of the proceedings; and
    2. (b)
      whether judicial proceedings immunity applies in a victimisation complaint and to what acts it extends; and
    3. (c)
      whether the tribunal is obliged to consider judicial proceedings immunity or reject evidence covered by it, or whether it would be fair to the parties to do so, even if not raised by either party.
  3. [105]
    Since I would reach a different conclusion on the vexatious litigant complaint if judicial proceedings immunity did not apply to the email, it seems right that I should consider the three questions in the order set out just above.

(a) what test to apply under the ADA where the alleged victimisation happened in the course of proceedings

  1. [106]
    It has been recognised that laws prohibiting victimisation provide a complainant with a potent weapon during resolution of discrimination complaints.  This is because it is arguable that unless a respondent capitulates to a discrimination complaint immediately it is made, the result is that because of the complaint, a complainant suffers detriment simply because the respondent has not capitulated.  The complainant’s detriment arises by having to relive events which may be distressing, and having to go through the commission, court or tribunal process in order to try to get redress.  Such detriment it could be argued, is suffered even if the complaint ultimately fails for one reason or another. 
  2. [107]
    There has been much debate about these types of victimisation claims in the English cases, where it has been recognised that the law against victimisation ought not to be used as a tool to stifle a respondent’s right to respond to a discrimination complaint, or to provide some additional means of obtaining compensation contrary to the intention of the legislature.  This conundrum has been tackled in several different ways in recent years.  One was to say that honest and reasonable attempts to defend oneself from a discrimination complaint would not be victimisation because the act is done to preserve a position in the proceedings and not because of the fact that the complainant has brought discrimination proceedings.[22]  Another was by saying that it would not be objectively reasonable for a measured and accurate response to a complaint to amount to detriment, and so in such a case detriment could not be shown.[23]  And it has been said that it is right to ask whether a reasonable complainant would feel that they are being unduly pressured to withdraw the claim in which case it would be victimisation.[24]
  3. [108]
    There appear to be no Australian authorities on the point. 
  4. [109]
    The obvious intention behind the victimisation provisions in the ADA is to protect a complainant from retaliation for a protected act.  Pressure to withdraw the complaint, or punishment for making it, would be obvious examples of such retaliation.  But there could well be more subtle conduct from which a complainant is given protection by the victimisation provisions.  The question therefore is whether such conduct is a detriment to the complainant under those provisions.
  5. [110]
    When deciding this, it is necessary to bear in mind that an unjustified sense of grievance cannot be detriment: the conduct should be viewed objectively.[25]  Given the assistance derived from the cases referred to above, it seems to me this is the key to this issue.  It means that it is right to say that a grievance would not be justified, and there would not be detriment, if it arises from the respondent’s honest and reasonable attempt to defend a discrimination complaint or a measured and accurate response to such a complaint.
  6. [111]
    Applying this test, it seems to me that the statements in the amended contentions were honestly and reasonably relied on to support the respondents’ argument that they were entitled to close Mr Ritson’s campaign because of the mycause terms and conditions, or because the political belief of Mr Anning and his supporters was unworthy of protection under the ADA, or because they had to comply with other laws.  In the circumstances and objectively, this is the sort of response that a person in Mr Ritson’s position would reasonably expect from a self-represented respondent’s contentions responding to his complaint.  This means that despite the upset the statements caused, they were not a detriment under section 130.  So the statements in the amended contentions were not acts of victimisation.
  7. [112]
    I take a different view with respect to the vexatious litigant email.  Since this was copied to Mr Ritson the respondents knew he would see it.  The comment was not required for, or relied on in, the defence of the complaint.  Mr Ritson found it to be hurtful.  Objectively therefore it was detriment under section 130.  Since the comment was made on Ms Burstin’s admission, because of the complaint, were it not for judicial proceedings immunity considered below, I would find that this email was an act of victimisation.

(b) whether judicial proceedings immunity applies in a victimisation complaint and to what acts it extends

  1. [113]
    Judicial proceedings immunity is closely allied to, or possibly the same as, absolute privilege in a defamation claim, and in such a claim in Mann v O'Neill (1997) 191 CLR 204, the plurality[26] said at 211-2:

It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge.  It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings.  It is said that it extends to any document published on an ‘occasion properly incidental [to judicial proceedings], and necessary for [them]’.

It is also settled law that absolute privilege attaches to statements made in the course of quasi-judicial proceedings, ie proceedings of tribunals recognised by law and which act ‘in a manner similar to that in which a Court of justice acts’.

footnotes omitted

  1. [114]
    In recent years the scope of judicial proceedings immunity and how it can impact a victimisation claim has been considered, mostly in the English cases.  It is now widely recognised as applying whatever the nature of the claim, with some exceptions.[27]  That it applies to victimisation claims seems incontrovertible in the light of the following examples showing to which acts it can extend. 
  2. [115]
    It has been held to extend to anything which is an ‘integral part’ of the judicial process such as an offer made in court, evidence about which was relevant to a victimisation claim on the grounds that the offer had subsequently been amended;[28] in a claim which was dismissed on jurisdictional grounds, it extended to things said in witness statements and now said to be victimisation;[29] it extended to correspondence between representatives about the extent of discovery and the contents of the trial bundle in earlier proceedings, such correspondence now relied on as victimisation;[30] but it did not extend to abuse and intimidation in the corridor of the tribunal following a hearing.[31]

(c) whether the tribunal is obliged to consider judicial proceedings immunity or reject evidence covered by it, or whether it would be fair to the parties to do so, even if not raised by either party.

  1. [116]
    Unlike the defence of necessity which was raised by the respondents in their contentions although not described as such, judicial proceedings immunity has not been raised by either party. 
  2. [117]
    Judicial proceedings immunity is not affected by the burden of proof provisions in section 206 of the ADA, set out above.  This is because that section only applies to the statutory exemptions in the ADA.
  3. [118]
    There are two reasons why I would not raise the question of judicial proceedings immunity bearing in mind the respondents have not raised it:
    1. (a)
      If judicial proceedings immunity applies it means that both victimisation claims fail (instead of only one) and so I would then be assisting the respondents and this might be unfair to Mr Ritson. 
    2. (b)
      The victimisation complaint was added to the claim with the tribunal’s leave given on 2 June 2020.  Mr Ritson was directed to file amended contentions containing the victimisation claim and the respondents were directed to file amended contentions in reply.  Mr Ritson filed the required document but the respondents did not file theirs.  It can be seen from the papers that the respondents had access to legal advice when they prepared their original contentions.  Had they complied with the tribunal’s directions they probably would have sought such advice and may have identified judicial proceedings immunity as a defence to the victimisation claims.
  4. [119]
    However, I have come to the view that it is right for me to raise judicial proceedings immunity and deal with it in this complaint.
  5. [120]
    One reason is that if judicial proceedings immunity applies to a particular complaint, then it might take the complaint out of the jurisdiction of the tribunal.  If so, then it is trite law that it is right for me to raise the issue and decide it one way or the other even if it has not been raised by the parties.[32]
  6. [121]
    There are two English cases in which the view has been expressed that judicial proceedings immunity is a jurisdictional matter.  The first is Heath v Commissioner of Police of the Metropolis [2004] EWCA Civ 943, where the Court of Appeal held that both the employment tribunal and the employment appeal tribunal had been right to say that there was no jurisdiction to hear a discrimination complaint which relied on allegations about things said in a previous police disciplinary hearing, covered by judicial proceedings immunity.
  7. [122]
    The second case has a headnote in the law reports which states the same as Heath, although not in the words of the presiding judge.  It reads:[33]

An employment tribunal has no jurisdiction to hear a claim of discrimination and victimisation founded upon a letter from the Respondent's advisers to the Claimant's advisers refusing to disclose a document said to be relevant. Disclosure and preparation of bundles pursuant to case management directions are protected by absolute immunity.  So is a response directed to the tribunal to the Claimant's application for costs.  Both letters came into existence for the purpose of the proceedings and in the second case was ‘akin to a pleading’ and thus both attracted absolute immunity.  The Claimant's claims based on those two letters were struck out.

  1. [123]
    Australian authorities have not gone as far as those two English cases, but have emphasised the mandatory nature of the rule.  In Cabassi v Vila (1940) 64 CLR 130, the plaintiff brought an action for damages in respect of what she said was false and malicious evidence given in earlier criminal proceedings.  Rich ACJ said (page 139)

A proceeding of this kind is an attempt to re-examine the merits of a judgment in a collateral suit between the same parties.  Reasons of public policy and uniform authority forbid the attacking and impeachment of a judgment in this way.  The plaintiff’s only remedy is an equitable proceeding to set aside the judgment, or a petition for a new trial under the statute.  An action by the defeated party cannot, for equally good reasons, be maintained against a witness or witnesses for giving false testimony in favour of his opponent.  Public policy and the safe administration of justice require that witnesses, who are necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury.  Though not a party to the former suit and judgment, the merits of that judgment cannot be re-examined by a trial of the witness’ testimony in a suit against him.  The procedure, if permitted would encourage and multiply vexatious suits, and lead to interminable litigation.

  1. [124]
    The other justices in that case were similarly emphatic.[34]
  2. [125]
    In R v Beydoun (1990) 22 NSWLR 256, the NSW Court of Criminal Appeal reviewed the authorities, pointing out that judicial proceedings immunity as a matter of public policy ensured that witnesses, parties, judicial officers and advocates should be free (and should feel free) to make statements in the course of and with reference to judicial proceedings without fear of subsequent harassing and vexatious litigation; and (perhaps to a lesser extent) that there should be no opportunity for relitigating the same issues by means of subsequent actions.
  3. [126]
    In Beydoun, Hunt J, with Wood and McInerney JJ agreeing at page 260 said:

It follows, in my view, that it is correct to say that no civil action lies in respect of statements made in the course of and with respect to judicial proceedings, provided that that proposition is understood as being limited to those actions which are based directly upon the making of such statements. The proposition does not exclude other civil actions merely because the truth of such statements (or the motive with which they are made) may be in issue in those other actions.

  1. [127]
    The above dicta demonstrates that where judicial proceedings immunity applies there is no discretion in the matter.  A court or tribunal cannot permit such an action to proceed.  To achieve that, it seems to me to be necessary to raise judicial proceedings immunity even if the parties have not raised it themselves.
  2. [128]
    There is another argument which supports this view.  There is clear authority for the proposition that if a party does not appear to defend a civil suit, the court will not automatically enter judgment for the plaintiff in a case where it is clear that no action lies on the plaintiff’s case.  This is because the tribunal must proceed according to law.[35]
  3. [129]
    In the light of the above proposition it would be strange for a tribunal like QCAT to put a respondent who does appear, but who is ignorant of the law and is self-represented, in a worse position than a respondent who does not appear, and who can take absent advantage from the proposition above.
  4. [130]
    This would seem particularly so bearing in mind that the tribunal does not permit legal representation without leave.   This means that the parties will often be self-represented.  And the law of discrimination is a complex law in all jurisdictions and the ADA is no exception.  And the law about judicial proceedings immunity is not obvious.
  5. [131]
    Then there is the impact of public policy.  There is no doubt that judicial proceedings immunity arises from public policy.[36]  There is clear authority that a court or tribunal may raise matters not raised by the parties where public policy requires it.[37]  This authority arises from illegality, which by its very nature is far more likely not to be raised by the parties and to require judicial intervention than judicial proceedings immunity. 
  6. [132]
    A Queensland example of the court raising illegality as a matter of public policy was Holdcroft v Market Garden Produce Pty Ltd [2000] QCA 396, where despite submissions from both sides to the contrary, and despite not being raised by the trial judge, the Court of Appeal formed the view that the parties had entered into the contract which was the subject of the appeal for an illegal purpose, namely to defraud the revenue.  Having regard to the factors which the court would take into account when deciding whether it was right to refuse to enforce the agreement, the Court declined to ‘lend its aid to the enforcement of the contract’.[38]
  7. [133]
    And finally it seems to me that the authorities cited above mean that I am unable to consider any evidence which is covered by judicial proceedings immunity in the victimisation claim.  On that basis alone, it seems to be right to raise the question of immunity, so that whether or not the evidence is admissible can be examined.  I note that the Full Court of the Family Court of Australia set guidelines for courts where there are unrepresented litigants appearing.  Two of the guidelines are particularly pertinent to this issue:[39]

6. A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects.  A judge is not obliged to provide advice on each occasion that particular questions or documents arise;

7. If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;

  1. [134]
    The tribunal is required to deal with matters in a way that is fair and just.[40]  It is not fair and just to find against a self-represented respondent in a victimisation complaint when in order to succeed, the complainant has to rely on evidence which is not admissible.
  2. [135]
    Certainly there is no authority that I have found prohibiting a court or tribunal from raising judicial proceedings immunity where the parties have not done so.
  3. [136]
    For the above reasons I conclude that it is right for me to have regard to the impact of judicial proceedings immunity in this complaint despite not having been raised by the parties.

Conclusions on victimisation claim

  1. [137]
    My conclusion therefore is that in respect of the victimisation claim based on statements in the amended contentions, for reasons given earlier Mr Ritson did not suffer detriment (within the meaning of section 130) by reason of those statements. 
  2. [138]
    In any case, contentions in the tribunal are an ‘integral part of the judicial process’ and statements in the contentions are covered by judicial proceedings immunity.  This means that no civil action, including the victimisation complaint, can lie in respect of them.
  3. [139]
    As for the vexatious litigant comment in the email of 7 April 2020, for reasons given earlier, Mr Ritson did suffer detriment (within the meaning of section 130) by reason of this comment.  But this comment is covered by judicial proceedings immunity.  I say that because the respondents had been required to file their witness statements by a tribunal direction and the email was sent with the evidence attached.  Had the vexatious litigant comment been contained in the attached witness statement, there is no doubt that it would have been covered by judicial proceedings immunity, unless possibly if it were removed as embarrassing or scandalous.[41]  It was always likely that the decision maker would see the comment in the email on the file, because the decision maker generally sees the whole file.  It seems to me that the email was so closely connected to the witness statement that it was also protected by judicial proceedings immunity.
  4. [140]
    The victimisation claim therefore fails on both heads of this complaint.

Remedy

  1. [141]
    Mr Ritson’s successful complaints are that he was directly discriminated against by the respondents (a) by on about 16 March 2019 prematurely closing down his fundraising campaign in support of Mr Anning and (b) in the terms of the press release issued on 3 April 2019.  Both respondents were in contravention.  For The Giving Network Pty Ltd, this is because it was supplying the services and for Ms Burstin because she was directly involved in all decision making and acted as agent of that company.[42]
  2. [142]
    Where the tribunal decides that there is a contravention of the ADA, then by section 209 it may make one or more types of orders.  One type of order is monetary compensation and this is what is sought by Mr Ritson, with interest.  If such an award is made it must be an amount the tribunal considers appropriate as compensation for loss or damage caused by the contravention.  Damage in relation to a person includes the offence, embarrassment, humiliation, and intimidation suffered by the person.[43]
  3. [143]
    Alexander v Home Office [1988] 1 WLR 968 has often been cited in the Australian courts with approval when assessing compensation for discrimination.  It was said in that case that awards should not be minimal because this would tend to trivialise or diminish respect for the public policy to which the law gives effect.  On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained.  To award sums which are generally felt to be excessive does almost as much harm to the policy and the result which it seeks to achieve as do nominal awards.
  4. [144]
    Mr Ritson relies on Carey v Cairns Regional Council [2011] QCAT 26, heard by Member P Roney SC in which $30,000 was awarded as compensation for ‘hurt, humiliation, loss of reputation and what may be described as pain and suffering, comprised particularly of his physical and psychological ailments’.  The respondents had discriminated against Mr Carey when he was a senior manager by dismissing him.  Inevitably this was very damaging.  Mr Carey could not find other work, and this caused him to default on a property loan and needing to sell the property.  He was suffering from nausea, tearfulness, irritable bowel and other painful symptoms which he attributed to the events complained of.  He also suffered distress and depression, hopelessness, anger and low self esteem.  Although the Member did not find all the elements proved, and found that many of these conditions were pre-existing or caused by other non-discriminatory events, he did find that Mr Carey had become more reclusive in his dealings with the public, had become more concerned about his financial circumstances and that the events brought on considerable stress and loss of confidence.  It would appear that the Member did find that the conditions had been exacerbated.[44]  An appeal against the award was unsuccessful on the basis that the award was within the discretion of the member.[45] 
  5. [145]
    Mr Ritson accepts that the award in Carey was higher than the award which should be made in his favour.  However he submits that he should be awarded $15,000 on the basis that Carey was about twice as serious as his complaint.
  6. [146]
    It seems to me however, that Carey was quite a different case from Mr Ritson’s case. 
  7. [147]
    Mr Ritson’s complaint is much closer to Vuga v Persal & Co. Trading Pty Ltd [2017] QCAT 368 where the organiser of a political party was told that she was not welcome at a hotel and the party’s supporters were refused entry into the hotel or its car park.  In that complaint I awarded compensation in the sum of $2,500.
  8. [148]
    Mr Ritson’s complaint is rather more serious than Vuga however.  In Vuga, what happened was partly the fault of the complainant because the meeting planned in the hotel without making formal arrangements, was never going to work.  And the offence suffered by Ms Vuga was less because was able to convert the exclusion from the hotel to her own advantage through the media.
  9. [149]
    There are no such circumstances in Mr Ritson’s case which might go to reduce the award, but nothing to increase it either.  Looking at the culpability of the respondents, it can be seen from the press release that the decision was made to close Mr Ritson’s fundraising campaign in a misplaced attempt to take the moral high ground.  This overlooked the fact that they could not choose to whom they provided services, even free services, where the choice is based on a protected attribute, one of which is political belief or activity.
  10. [150]
    In the circumstances it seems to me that the appropriate award in this case is $5,000 for the two complaints found proved.  If I were asked to say how that award is split between the two complaints, I would say about 50% each.  Mr Ritson claims interest under section 209(1)(g) of the ADA but I intend that the award includes any interest.
  11. [151]
    One question is whether I should increase the award because the respondents have aggravated the matter.  Mr Ritson says the award should be increased because of what was said in the contentions and because of the ‘vexatious litigant’ email, by way of aggravated damages.
  12. [152]
    There is no doubt that the tribunal can award aggravated damages in an appropriate case because such an award is compensatory, and so comes under section 209(1)(b).  And it seems to me that it can be awarded in the circumstances contended for here, that is arising from the conduct of the proceedings.[46]
  13. [153]
    It seems to me however that what was said in the contentions was not fanciful or excessive.  It raised a defence which the respondents were entitled to run.  Although the defence was unsuccessful, it cannot be said to require the respondents to pay to Mr Ritson a further amount as compensation.
  14. [154]
    As for the vexatious litigant comment, I tend to take a different view.  It was an unnecessary comment which was made deliberately and out of Ms Burstin’s frustration by the proceedings and the amount of work she was being asked to do.  It caused additional upset and offence to Mr Ritson.  Although I have found that the comment was not actionable discrimination, it is capable of attracting an award of aggravated damages.
  15. [155]
    On the other hand it is not the most serious matter, and so I increase the award by $500 for this comment by way of aggravated damages.
  16. [156]
    I shall order the respondents to pay to Mr Ritson the sum of $5,500.

Footnotes

[1]  For reasons given orally at the hearing, I gave leave to add this second allegation to the complaint.  It had been mentioned in Mr Ritson’s original complaint to ADCQ but not properly formulated.  It was then mentioned in his amended contentions but unfortunately had not been picked up by the tribunal as requiring an application to amend, so the first time this was formally dealt with was at the hearing.

[2]  Section 10 of the ADA.

[3]  Section 7(j) of the ADA.

[4]  Witness statement, [41].

[5]  Under section 46(1)(a) and 46(1)(d) respectively.

[6]  Exhibit ‘G’ to Mr Ritson’s witness statement of 7 February 2020.

[7]  As required by section 46(1)(d) of the ADA.

[8]  Other than Mr Ritson’s own fundraising campaign page.

[9]  Amended statement of contentions 5 March 2020.

[10]  Amended statement of contentions 5 March 2020.

[11]  As expressed by the maxim ex turpi causa non oritur actio.

[12] Patel v Mirza [2016] UKSC 42.

[13]  For example, State of New South Wales v Riley [2003] NSWCA 208; State of New South Wales v McMaster [2015] NSWCA 228.

[14]  Most of the provisions in the Anti-Discrimination Act 1991 (Qld) come into this category, also there is Part II of the Racial Discrimination Act 1975 (Cth), and Parts 4 and 6 of the Equal Opportunity Act 2010 (Vic). 

[15]  Section 17 of the Racial Discrimination Act 1975 (Cth) and section 105 of the Equal Opportunity Act 2010 (Vic).

[16]  Reference should be made to the Act to see the precise exclusions.

[17]  Concerning less favourable treatment and harassment.

[18]  [101] and [102].

[19]  Nettle JA at [30] and [36].

[20]  This is called associative discrimination.

[21]  The fact that it had been copied to Mr Ritson does not appear on the email on the tribunal’s file and the reason for this was that it was sent to Mr Ritson as a ‘blind copy’.  Ms Burstin says she did not intend a blind copy (as opposed to an open copy), this being a mistake.

[22]  Per Lord Nicholls, Lord Hoffmann and Lord Hutton in Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48 (House of Lords), [31].

[23]  Lord Neuberger and Lord Carswell in St Helens Metropolitan Borough Council v Derbyshire [2007] UKHL 16 (House of Lords), [68].

[24]  Per Lord Bingham and Lord Hope of Craighead in Derbyshire, [9], [27].

[25] Derbyshire, [27]; Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44, [41].

[26]  Brennan CJ, Dawson, Toohey and Gaudron JJ.

[27] Heath v Commissioner of Police of the Metropolis [2004] EWCA Civ 943 (Court of Appeal), Auld LJ at [17], the exceptions being suits for malicious prosecution, perjury and contempt of court.  It has also been held that judicial proceedings immunity does not prevent consideration of a costs award.

[28] Aston v The Martlet Group Limited UKEAT/0274/18 (21 May 2019) (Employment Appeal Tribunal - HHJ Auerbach), [108].

[29] Parmar v East Leicester Medical Practice [2011] IRLR 641 (Employment Appeal Tribunal - Underhill J, President).

[30] South London and Maudsley NHS Trust v Dathi [2008] IRLR 350 (Employment Appeal Tribunal - HHJ McMullen QC).

[31] Nicholls v Corin Tech Ltd and others UKEAT/0290/07 (4 March 2008) (Employment Appeal Tribunal - Underhill J, President)

[32]  As explained by Dr J R Forbes in McGarry v Coates [2013] QCATA 32, [6].

[33] South London and Maudsley NHS Trust v Dathi [2008] IRLR 350 (HHJ McMullen QC).

[34]  Starke J (page 140) ‘no action lies’, McTiernan J (page 144) ‘it is a rule of law that no civil action lies’, Williams J (page 149) ‘it is clear law that a witness cannot be sued in a civil action ..’.

[35]  Several authorities are cited for this proposition by Dr J R Forbes in Howard v Smith [2014] QCATA 103.

[36]  Rich ACJ in Cabassi v Vila (1940) 64 CLR 130, 139 set out above.

[37] Halsbury’s Laws of Australia, LexisNexis, [110-7005].

[38]  Pincus and Thomas JJA, Ambrose J, [22], [31] and [34].

[39] Re F: Litigants in Person Guidelines [2001] FamCA 348, [8] (Nicholson CJ, Coleman and O'Ryan JJ).

[40]  Section 3(b) of the QCAT Act.

[41]  Although the tribunal would have power to remove such a comment under section 64 of the QCAT Act, it would be very unlikely to do so, bearing in mind its obligation to conduct proceedings in an informal and non-technical way: sections 3(b), 4(c) and 28(3).

[42]  Within section 114 of the ADA.

[43]  Section 209(5).

[44]  At [95] and [96].

[45] Cairns Regional Council v Carey [2012] QCATA 150.

[46]  See the discussion about this by Member P Roney SC in Gordon v State of Queensland & Ors [2013] QCAT 564,  [105].

Close

Editorial Notes

  • Published Case Name:

    Ritson v The Giving Network Pty Ltd & Anor

  • Shortened Case Name:

    Ritson v The Giving Network Pty Ltd

  • MNC:

    [2021] QCAT 81

  • Court:

    QCAT

  • Judge(s):

    Member Gordon

  • Date:

    03 Mar 2021

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
Alexander v Home Office [1988] 1 WLR 968
2 citations
Jump To
Cite 1 - [1988] 1 WLR 968
Cite 2 - [1988] 1 WLR 968
Cabassi v Vila (1940) 64 CLR 130
4 citations
Jump To
Cite 1 - (1940) 64 CLR 130
Cite 2 - (1940) 64 CLR 130
Cite 3 - (1940) 64 CLR 130
Cite 4 - (1940) 64 CLR 130
Cairns Regional Council v Carey [2012] QCATA 150
1 citation
Jump To
Cite 1 - [2012] QCATA 150
Carey v Cairns Regional Council [2011] QCAT 26
2 citations
Jump To
Cite 1 - [2011] QCAT 26
Cite 2 - [2011] QCAT 26
Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284
2 citations
Jump To
Cite 1 - [2006] VSCA 284
Cite 2 - [2006] VSCA 284
Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48
2 citations
Jump To
Cite 1 - [2001] UKHL 48
Cite 2 - [2001] UKHL 48
Gordon v State of Queensland & Ors [2013] QCAT 564
2 citations
Jump To
Cite 1 - [2013] QCAT 564
Cite 2 - [2013] QCAT 564
Heath v Commissioner of Police of the Metropolis [2004] EWCA Civ 943
3 citations
Jump To
Cite 1 - [2004] EWCA Civ 943
Cite 2 - [2004] EWCA Civ 943
Cite 3 - [2004] EWCA Civ 943
Holdcroft v Market Garden Produce Pty Ltd[2001] 2 Qd R 381; [2000] QCA 396
2 citations
Jump To
Cite 1 - [2000] QCA 396
Cite 2 - [2000] QCA 396
Howard v Smith [2014] QCATA 103
2 citations
Jump To
Cite 1 - [2014] QCATA 103
Cite 2 - [2014] QCATA 103
Kafantaris v City of Yarra [2005] VCAT 2591
1 citation
Jump To
Cite 1 - [2005] VCAT 2591
Mann v O'Neill (1997) 191 CLR 204
2 citations
Jump To
Cite 1 - (1997) 191 CLR 204
Cite 2 - (1997) 191 CLR 204
McGarry v Coates [2013] QCATA 32
2 citations
Jump To
Cite 1 - [2013] QCATA 32
Cite 2 - [2013] QCATA 32
New South Wales v Riley [2003] NSWCA 208
1 citation
Jump To
Cite 1 - [2003] NSWCA 208
Parmar v East Leicester Medical Practice [2011] IRLR 641
2 citations
Jump To
Cite 1 - [2011] IRLR 641
Cite 2 - [2011] IRLR 641
Patel v Mirza [2016] UKSC 42
2 citations
Jump To
Cite 1 - [2016] UKSC 42
Cite 2 - [2016] UKSC 42
Petrak v Griffith University & Ors [2020] QCAT 351
2 citations
Jump To
Cite 1 - [2020] QCAT 351
Cite 2 - [2020] QCAT 351
R v Beydoun (1990) 22 NSWLR 256
3 citations
Jump To
Cite 1 - (1990) 22 NSWLR 256
Cite 2 - (1990) 22 NSWLR 256
Cite 3 - (1990) 22 NSWLR 256
Re F: Litigants in Person Guidelines [2001] Fam CA 348
2 citations
Jump To
Cite 1 - [2001] Fam CA 348
Cite 2 - [2001] Fam CA 348
Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44
2 citations
Jump To
Cite 1 - [2001] NSWADT 44
Cite 2 - [2001] NSWADT 44
South London and Maudsley NHS Trust v Dathi [2008] IRLR 350
3 citations
Jump To
Cite 1 - [2008] IRLR 350
Cite 2 - [2008] IRLR 350
Cite 3 - [2008] IRLR 350
St Helens Metropolitan Borough Council v Derbyshire [2007] UKHL 16
2 citations
Jump To
Cite 1 - [2007] UKHL 16
Cite 2 - [2007] UKHL 16
State of NSW v McMaster [2015] NSWCA 228
1 citation
Jump To
Cite 1 - [2015] NSWCA 228
Vuga v Persal & Co. Trading Pty Ltd [2017] QCAT 368
2 citations
Jump To
Cite 1 - [2017] QCAT 368
Cite 2 - [2017] QCAT 368
XVC v Joanne Baronessa (Human Rights) [2018] VCAT 1492
2 citations
Jump To
Cite 1 - [2018] VCAT 1492
Cite 2 - [2018] VCAT 1492

Cases Citing

Case NameFull CitationFrequency
Gitau v De Soysa Walsh Pty Ltd [2023] QCAT 1892 citations
Le Roy v Brisbane City Council [2025] QCAT 3142 citations
1

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