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ST v Metro South Hospital and Health Service[2022] QCAT 272

ST v Metro South Hospital and Health Service[2022] QCAT 272

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

ST v Metro South Hospital and Health Service & Ors [2022] QCAT 272

PARTIES:

ST

(applicant)

v

METRO SOUTH HOSPITAL AND HEALTH SERVICE

(first respondent)

ASHIKA GEORGE

(second respondent)

TRACEY SMITH

(third respondent)

APPLICATION NO/S:

ADL037-20

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

6 July 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member P Roney QC

ORDERS:

  1. The application for leave to amend the Applicant's claim in the form of proposed amended contentions set out in a document filed 29 July 2021 entitled “Amended Statement of Claim/ Contentions” to the extent that it may be necessary to have such leave, is allowed insofar as it concerns the allegations in paragraphs 1 to 4 and 5c to 5e inclusive.
  2. The application for leave to amend the Applicant's claim in the form of proposed amended contentions is refused insofar as it concerns the allegations in paragraphs 5a and b inclusive.
  3. The Applicant is directed to file and serve on the Respondents within 21 days of the delivery of these Reasons a points of contention document which succinctly, clearly and coherently identifies what the casual effects upon the Applicant were of the alleged Third Discrimination Event, what compensation is sought and how she contends that ought reflect in any orders for compensation and the quantum of that compensation and sets out the legal foundation for such a claim and the relief or remedies sought in respect of it.
  4. I order that the particulars of the damages sought by the Applicant be provided within 21 days of the delivery of these Reasons in that points of contention document.
  5. I also direct that the Respondents file their response to the applicant's contentions for which leave has been given, and the particulars which have been directed, within 30 days of service upon them of the Applicant’s particulars
  6. I make a direction requiring an amendment to the title of the proceeding to substitute for the Applicant’s name, the initials ST and direct that on future tribunal documents the Applicant’s name not appear, ands for the initials ST to appear.
  7. The Application for a non­publication order, and a closed hearing order are adjourned to be heard by the member to whom the matter is allocated for hearing or such other date as the Tribunal may order it be heard and determined.
  8. The parties have liberty to apply in respect of any other consequential or other orders which might be required to be made.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – gender identity discrimination in the area of goods and services under s. 7(m), 10, 11 and 46 of the AD Act.

GENDER IDENTITY – DISABILITY OR IMPAIRMENT – mental health-OTHER MATTERS – where applicant resides in public housing – where warrant of possession issued – where considerable delay in bringing allegations – where alleged discrimination made on grounds of impairment – where leave granted for applicant to amend complaint-Discretion to allow amendment of complaints by the Tribunal even though not referred by the QHRC – COSTS-claim for the payment of legal fees in this matter as part of  compensatory award (ADCQ)

 

Anti-Discrimination Act 1991 (Qld), s 129, 136, 139, 177, 178, 191

Queensland Civil and Administrative TribunalAct 2009 (Qld), s 28, 42, 66, 229

Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009 (Qld), s 133

Dovedeen Pty Ltd & Anor v GK [2013] QCA 116

J v L & A Services Pty Ltd & Ors [1993] QCA 12

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

Wilson v Lawson [2008] QADT 27

Yohan v Qld Basketball Incorporated [2010] QCAT 459

McKenzie v MacKay and State of Queensland [2005] QADT 24

Simonova v State of Queensland [2018] QCAT 311

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Applicant:

G Adams of GLR Law, solicitors

Respondents:

First Second and Third Respondents represented by N A-Khavari, Counsel instructed by Crown Law

REASONS FOR DECISION

  1. [1]
    The Applicant has filed an application for interim orders on 29 July 2021 and which seeks the orders that she have leave to amend the Applicant's claim in the form of proposed amended contentions set out in a document filed 29 July 2021 entitled “Amended Statement of Claim/ Contentions”. I shall refer to it as the Proposed Amended Contentions.

The Application for non­publication and closed hearing orders

  1. [2]
    The Applicant has also sought a non­publication order, and a closed hearing. Order 3 of the 17 August 2021 Directions required the Applicant to file any submissions in support of that application by 4.00pm on 23 August 2021. The Applicant failed to file any submissions in support of that application by that date. Brief submissions were eventually filed on 12 November 2021 that dealt with that issue, although they do not refer to any particular evidence or issues of principle which are relied upon
  2. [3]
    In support of her application for non-publication orders the applicant contends that the matters raised in in the proceeding are sensitive in nature and that her mental health would be negatively impacted if an order for non-publication was not made. The applicant is under a Qld Health mental health treatment plan She points to the fact that the respondents do not oppose the order, although they do not consent to it either.
  3. [4]
    Section 229 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) provides for inspection of the QCAT register of proceedings. Section 230 of the QCAT Act provides for inspection of a QCAT record of proceedings.
  4. [5]
    Section 66 of the QCAT Act provides for non-publication orders made under the QCAT Act. It provides relevantly as follows;

66 Non-publication orders

  1. (1)
    The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order—
  1. (a)
    the contents of a document or other thing produced to the tribunal;
  1. (b)
    evidence given before the tribunal;
  1. (c)
    information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.
  1. (2)
    The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary—
  1. (a)
    to avoid interfering with the proper administration of justice; or
  1. (b)
    to avoid endangering the physical or mental health or safety of a person; or
  1. (c)
    to avoid offending public decency or morality; or
  1. (d)
    to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
  1. (e)
    for any other reason in the interests of justice.
  1. (3)
    The tribunal may act under subsection (1) on the application of a party to the proceeding or on its own initiative.
  1. [6]
    Reference can be made to what the Court of Appeal said in Dovedeen Pty Ltd & Anor v GK [2013] QCA 116 at [36] referring to J v L & A Services Pty Ltd & Ors [1993] QCA 12

Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:

  1. (a)
    Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information: cf. R v. Chief Registrar of Friendly Societies, Ex parte New Cross Building Society.
  1. (b)
    A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.
  1. (c)
    An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed”.
  1. [7]
    I am not persuaded at this time that any other order is needed to avoid endangering the physical or mental health or safety of a person. Control over what occurs in the course of a trial and whether a trial and whether any publication would be made of what occurs during the hearing is a matter that can best can best be left to the sitting member to regulate. In my view it is premature to make any such order of the kind sought, particularly when the nature of the evidence and the issues to which it will be directed have yet to be ascertained.
  2. [8]
    I do consider it appropriate to make a direction requiring an amendment to the title of the proceedings to substitute for the Applicant’s name, the initials ST to substitute the Applicant’s name for the initials ST.
  3. [9]
    Orders of the kind that are sought in this aspect of the application can properly be entertained by the member who hears it, having regard to the particular circumstances that exist at the time of the hearing.

The subject matter of the referred complaint and the application to amend

  1. [10]
    On 26 November 2019, the Applicant lodged a complaint with the QHRC, with additional information provided on 28 November 2019, 2 December 2019 and 10 January 2020.
  2. [11]
    In the Complaint, the Applicant alleged that she was the subject of unlawful discrimination on the basis of gender identity, suffered “gender identity vilification” and was subjected to requests for unnecessary information in contravention of the AD Act.
  3. [12]
    The Complaint referenced events on either the 14th or 15th May 2019 which occurred during an annual review appointment which the Applicant attended at the Princess Alexandra Hospital with the Second Respondent, entries in progress notes created by the Second Respondent during and following that appointment, entries in a Summary Letter dated 21 May 2019 from the Second Respondent copied to the Applicant, and entries in the response from the patient liaison office, by way of a letter dated 27 August 2019.
  4. [13]
    The Spinal Unit was operated by the First Respondent Hospital. The Second Respondent, Dr George, is a Spinal Unit Registrar and it seems, not disputed, that she saw the Applicant on that day.
  5. [14]
    The Third Respondent, Tracey Smith, is the Senior Director of the Health Information Management. Doing the best I can with a lengthy narrative which is attached to the original complaint, it seems that the nub of the complaint is as follows:
    1. (a)
      The receptionist at the Hospital, and presumably therefore an employee of the First Respondent Hospital, argued with her and refused to call her by her preferred female name because that name was not the name shown on her Medicare card which identified her by a male first name;
    2. (b)
      During the appointment, Dr George asked her about her hormones and/or hormone treatment and gender identity. The Applicant says that she proceeded to have a discussion with the doctor about how upset she was that her gender identity and hormones were being listed on her medical records, despite the fact that this was a Spinal Unit, and the reason she was there had nothing to do with gender identity or hormonal treatment. She says that she indicated that she wanted that material not included in the records as it was not relevant. She considered at the time that it was discriminatory to her that this information was obtained and kept. She says she had a 30 minute conversation with Dr George regarding that issue.
    3. (c)
      Some days after this incident, on or about 21 May, she was sent a letter from the Hospital which she infers indicated that her request to include or delete information about her gender identity and hormones was not complied with because in the letter she says she received on 21 May, identified material that she alleges was discriminatory including comments that she preferred to be called ST now, that she was contemplated transgender surgery, and was dressed as a transgender female. She says that she not only did not advise the Hospital of any gender identity issues but had specifically indicated that she should not be recorded as having any such issues.
  6. [15]
    The material that appears to have been lodged with the complaint that is said to reflect these comments on 21 May does not appear to have been included in the complaint, or if it was, it is not included in the material before me. There is a document which purports to be progress notes of her treatment which is undated but is identified as having been printed on 23 May 2019. It is under the hand of the Second Respondent Dr George. In it she records the following matters:

At this stage, she is only contemplating transgender surgery – is dressed as a transgender female.

  1. [16]
    Under the heading “Background” it mentioned that she “prefers to be called” a particular female first name now and refers to “– transgender surgery – known to Dr Mactaggert (Urologist) – admitted to SIU in 2016”.
  2. [17]
    The progress notes of her treatment goes on to record the following:

The patient was very distressed when I casually asked whether she was considering hormone replacement therapy – the carer and herself were quite distressed and said they were very unhappy that all this documentation was on the system for everyone to see etc … she said she has had so many issues like this in the past and want (sic) to take away all this documentation on the system (I apologised from my side for hurting her feelings) – she wanted to know where it was recorded – I said I think it was in the Goossen Clinic documentation from QEII – she still seemed to believe it was all a problem with the PA Hospital (not SIU but PA she said repeatedly) – I told them I must have misunderstood this – I think they just mentioned ? hormonal therapy and clarified my comment.

  1. [18]
    The complaint then goes on for six pages identifying the detailed ways how this conduct had made her feel or affected her, and why she regarded this as discriminatory conduct. Included in the material which went with the complaint was a diary note which seems to want to place the spinal appointment consultation as being 14 May rather than 15 May. It summarises her feelings about how she felt discriminated by her treatment at the Hospital, although it does not in any way that is self-evident deal with any conduct by the Third Respondent Tracey Smith. She regarded things that were said to her and written to her as amounting to speculation about her gender or sexuality and the issues surrounding it. She regarded these as irrelevant to her treatment at the Spinal Unit.
  2. [19]
    The third aspect of her original complaint related to a follow up letter dated 27 August 2019 from the Patient Liaison Office of the Hospital, not apparently authored by any of the Respondents, but written by a complaints manager. It was a letter to the Applicant. Her complaint was that this letter ignored the discrimination to which she was subjected, alleged that it was her fault because she had been “free and excited” to tell people that her name was that particular female first name and that in effect the letter insisted that Queensland Health and the PA Hospital had the right to say, verbalise and record anything they wanted to, inferentially about how she saw herself, or how she was entitled to be treated. She contended that this letter attacked her, blamed her and made it her fault in an attempt to absolve the hospital, and that it ignored the distress and her concerns.
  3. [20]
    In the letter of 27 August 2019 that she contends was discriminatory, the author a Mr Grugan, indicated that it was a response to contact made with the Patient Liaison Office of the Hospital and various patient advocates. It referred to information that is “recorded on your medical record at the Princess Alexandra Hospital and discussed at your outpatient consultation with Dr Sridahr Atresh, Director, Queensland Spinal Cord Injuries Service”. The letter goes on to identify that the Hospital thought it disappointing when a member of the public was dissatisfied with the service, apologised that the service did not meet her expectations, and gave an assurance that the Hospital staff were committed to providing safe and efficient health services that were satisfactory. It indicates that her feedback had been sent to Dr Atresh, and the Third Respondent Ms Smith, for review and advice. It attached a letter from Dr Atresh which is the 21 May 2019 letter apparently that was referred to in the complaint.
  4. [21]
    The letter went on to refer to contentions that her demographic details had been updated at a different hospital in early 2019 and that these changes included the change in name from her former name which included as an earlier record of her first name to her current name and with the sex field changed to “female”. The letter referred to the Third Respondent, Ms Smith having recommended that she advised the patient liaison office her preferred name for the Queensland Health database and she would facilitate that.
  5. [22]
    In the attached letter from Dr George of 21 May to a treating medical officer, reference is made to the comments that she preferred to be called a particular female first name now, and was contemplating transgender surgery etc, which are referred to earlier in paragraph 16 of these reasons .
  6. [23]
    It is entirely unclear in either the original complaint or indeed in the current Proposed amended contentions what specifically is the nature of the complaint against the 3rd Respondent Ms Smith and how her conduct constituted discrimination
  7. [24]
    There is no doubt that a complaint concerning her was referred by the Commission and it is, one infers, clear that it must arise out of what was said in the letter of 27 August was the position of the 3rd Respondent in relation in relation to recommending that they complainant advise the office of the preferred name that the Applicant wished to have recorded.
  8. [25]
    That is certainly the way in which the 3rd respondent and indeed the legal representatives for each of the respondents have treated the allegation in a submission filed in this Tribunal sometime in 2020. In that submission it is made clear that the Respondents are treating the complaint as being that the 3rd respondent treated the complainant less favourably due to her gender identity when she recommended that the complainant advise the office of the preferred name she wished to have recorded.
  9. [26]
    That submission then goes on to deal with why it is that the alleged conduct was not discriminatory and the reasons why that advice was given that the complainant advise the office of the preferred name she wished to have recorded. It also contends that the Applicant was not treated less favourably because another patient without the attribute of gender identity would also have been required to request their details to be updated in accordance with the hospital procedure
  10. [27]
    On 2 July 2020, the Applicant requested that the Complaint be referred to the Tribunal. The QHRC referred the Complaint to the Tribunal on 3 July 2020.
  11. [28]
    The referral was accepted as one sufficiently particularised to indicate a contravention of the Act and was treated as alleging gender identity discrimination in the area of goods and services under s.7(m), 10, 11 and 46 of the AD Act.
  12. [29]
    On 3 August 2020 the Tribunal directed that the Applicant;
  1. Must file in the Tribunal two (2) copies and give to the Metro South Hospital and Health Service, Ashika George and Tracey Smith one (1) copy of a Statement of Contentions, no more than five (5) pages, which sets out:
  1. (a)
    What attribute is the basis for the complaint.
  1. (b)
    Who or what is the comparator -
  1. (i)
    If the comparator is a real person, who that person is and why they are an appropriate comparator;
  1. (ii)
    If the comparator is hypothetical, a description of that person.
  1. (c)
    Whether the discrimination is direct, indirect or both -
  1. (i)
    If the complaint is of direct discrimination, how the Applicant was treated less favourably;
  1. (ii)
    If the complaint is of indirect discrimination: what was the tern that (the Applicant) could not comply with; or was more difficult to comply with, why it was more difficult to comply with that term; how it is that a higher proportion of people without the attribute can comply with the term; and why the term was not reasonable.
  1. (d)
    What orders (the Applicant) wants the Tribunal to make....
  1. [30]
    The Applicant filed her Contentions on 16 November 2020, however they did not set out the matters that it had been directed on 3 August 2020 that they contain.
  2. [31]
    On 5 May 2021, Member Fitzpatrick issued directions requiring the Applicant to submit any application to amend her claim by 7 June 2021.
  3. [32]
    On 29 July 2021 the Applicant then filed an Application, Statement of Contentions and attachments to the Statement of Contentions. The documents of 29 July 2021 were those I have identified earlier as the “Amended Statement of Claim/ Contentions” and which I am calling the Proposed Amended Contentions.
  4. [33]
    The Respondents contend with respect to the proposed new allegations alleged in the Proposed Amended Contentions, the allegations are not properly particularised.
  5. [34]
    The Respondents also contend that the Proposed Amended Contentions do not identify acts of unlawful discrimination under the AD Act or identify who has engaged in the alleged conduct against the Applicant.
  6. [35]
    The Respondents also contend that the Proposed Amended Contentions do not identify who the comparator is or how the Applicant is said to have been treated less favourably than the unidentified comparator (where the proposed comparator does not assist the Tribunal as they are also transgender, as opposed to not having the attribute of the Applicant).
  7. [36]
    The Respondents also contend that if the Proposed Amended Contentions are to be read as making a complaint of indirect discrimination, the Applicant does not identify the term imposed, or why it was more difficult for her to comply with the term, and how it is that a higher proportion of people without the alleged attribute(s) can comply with the term, or how the imposition of the term is not reasonable.

Issues of legal principle – amendment under Section 178 of the QCAT Act

  1. [37]
    Section 178 of the AD Act provides that Complaints may be amended and that the tribunal may allow a complainant to amend a complaint applies even if the amendment concerns matters not included in the complaint.
  2. [38]
    It is critical to note that under the Anti-Discrimination Act 1991 (Qld) (the AD Act) any complaint was required to be made within 12 months of the relevant discriminatory conduct. Since the complaint was made on 26 November 2019, it could only concern discriminatory conduct on or after 26 November 2018. The referral of the matter to this Tribunal was only of those elements of the complaint that were not out of time.
  3. [39]
    The Respondents submit that the Applicant should not be permitted, at this late stage in the history of the proceedings, to amend her contentions in this way and present a different case against them.
  4. [40]
    The Respondents oppose the Applicant's application to amend her Complaint to include the Proposed New Allegations on the basis that:
    1. (a)
      the alleged contraventions do not form part of the Complaint accepted by the QHRC and referred to the Tribunal; and
    2. (b)
      the Tribunal should not exercise its discretion to amend the Complaint under s 178 of the AD Act where, the alleged contraventions of the AD Act are without merit and/or are significantly out of time, without just cause.
  5. [41]
    There is a line of authority, including MM and MD v State of Qld [2014] QCAT 478, Wilson v Lawson [2008] QADT 27 and Yohan v Qld Basketball Incorporated [2010] QCAT 459, which has acknowledged that when examining the complaint which is before this Tribunal, that the Tribunal is not bound by its characterisation by the ADCQ in the referral here. Hence, so long as the essential characteristics of the complaint as made to the QHRC are identifiable, as it is referred, it is for this Tribunal to determine what the proper basis for the complaint is, and ultimately whether it is made out on the evidence.
  6. [42]
    Hence, whether the character of the complaint is specifically identified, the body of the complaint whether it was in the goods and services area, or some other area, or whether or not the QHRC in its referral of the complaint made reference to some or other area in which the alleged discriminatory conduct occurred, ought not prejudice a Applicant here who seeks to amend to make clear that such is a basis for a claim, or indeed to amend to include such a claim.
  7. [43]
    In MM and MD v State of Qld [2014] QCAT 478, I held as follows at [31] ff:

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

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

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

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

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

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

  1. [44]
    That decision then at least opened the door to amendments to acts which were part of a continuum, or were based on facts which were referred to in documents filed in the Commission.
  2. [45]
    Shortly before the significant amendment to s.178 came into effect, Mr Savage QC, who by then was the President of the Tribunal, decided X v Q (No 3) [2009] QADT 21. There, he followed the approach that he took in McKenzie v Mackay. X v Q was a case in which there was alleged sex discrimination of a male prisoner. It was alleged in a complaint that there had been sex discrimination in the area of State laws and programs. He then sought to make a claim such as that made here that after the event he had been subjected to victimisation contrary to s.129 of the AD Act.
  3. [46]
    At par 6 and 7 of his reasons Mr Savage QC held as follows:
  1. I would allow amendment of the complaint for the reasons I gave in McKenzie v Mackay [2005] QADT 24. I do not think the Tribunal’s power to allow amendment is as limited as the other cases upon which the Respondent relies. None of which are binding upon me. This is of only academic interest.
  1. There will be by the time of the hearing in this matter be a much wider power to allow amendment of complaints: cf s.1339 Queensland Civil & Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009 repeals 176-184 and inserts 178 of the Act which makes plain the extent of the jurisdiction of the Tribunal to amend complaints even if those amendments concern matters not included in the complaint. If anything, this case is an illustration of why such an amendment should be allowed. There is no proper reason that a person victimised for making a complaint should not have the complaint and victimisation issue dealt with together at one hearing. There is no real prospect of this complaint (either as amended or not) being settled by the conciliation process adopted by the Commissioner (which in any event could be the subject of orders in the Tribunal) nor any real prospect the Commissioner would not accept the complaint of victimisation at least that which is within twelve months.
  1. [47]
    That judgment in X v Q was the subject of an appeal to the Supreme Court in matter 1830 of 2010 and came before De Jersey CJ on 15 November 2010. The Chief Justice said in relation to the operation of s.178:

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

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

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

  1. [48]
    As I said in MM and MD, in my view it is clear that the amendments which were made to s 178 were facilitative, established in the Tribunal as unfettered discretionary power to allow an amendment to raise a matter notwithstanding that it was not included in the original complaint, and expected this Tribunal to exercise that power in ways which, inter alia, facilitated the just and expeditious hearing of the matters in dispute, to minimise inconvenience and cost associated with that process, and to avoid unnecessary technicality and formality in this process. In my view the decisions of this Tribunal which have held otherwise were incorrectly decided. As the Chief Justice concluded in X v Q, even before the 2009 Amendments to s 178 of the AD Act, s 178 gave an “unfettered discretion” to allow amendments to bring new claims.
  2. [49]
    In Simonova v State of Queensland [2018] QCAT 311 Senior Member Howard held, applying MM v State of Queensland that:

[20] It is uncontroversial, as the State of Queensland submits, that the AD Act provides that the tribunal must accept a complaint referred by the ADCQ commissioner, unless the complaint was made to the commissioner more than one year after the alleged contravention.8 That said, if the complaint referred was made more than one year after the alleged contravention, the tribunal may deal with it if it considers it would be reasonable to do so on the balance of fairness between the parties.9 Here, the commissioner’s referral is made on the basis that all allegations were made in time and none were rejected. Therefore, s 175(2) does not apply. The State of Queensland nevertheless argues that in considering whether to exercise the discretion pursuant to s 178, the Tribunal should have regard to similar fairness considerations as those contained in s 175(2).

[21] There is no apparent reason to constrain the Tribunal’s discretion to allow amendment of a complaint as provided by s 178 in the manner contended for by the State of Queensland. Pursuant to s 178(1), the tribunal may allow amendment to a complaint. The amendments that may be allowed are not limited or constrained in any way. Indeed, s 178(2) provides that s 178(1) applies even if the amendment concerns matters that are not included in the complaint. For example, in MM v State of Queensland, 10 amendment was allowed which re-characterised the basis of the complaint and allowed new (victimisation) claims to be brought.

[22] I agree with the broad construction adopted in MM v State of Queensland1 Further, on a plain reading of the provision, the amendments the tribunal may, in its discretion, allow are broader than allegations made out of time. Rather than limiting the discretion in any way, it appears Parliament has in s 178(2) sought to make it expansive. Had the Parliament intended to circumscribe the broad discretion in s 178, it could have done so. For example, it constrained the commissioner’s discretion, provided for in s 138(2), to accept a complaint made outside of the one year time frame to circumstances in which a complainant shows good cause.

[23] The State of Queensland suggests in effect that similar considerations as contained in s 175(2) should be implied into s 178. However, as a matter of statutory construction there is no basis to imply constraining words into a provision that is clear and unambiguous that the legislature has seen fit to bestow on the tribunal in broad terms.

  1. [50]
    Later in her reasons at [38] Senior Member Howard held that for the reasons explained, she did not accept that a proper construction of s 178 in its context in the AD Act requires that regard be had to a balance of fairness consideration similar to the provision in s 175(2). I agree with that analysis.
  2. [51]
    The real issue is whether the just and expeditious determination of the matters in issue between these parties would be facilitated by permitting the sort of amendment sought here.
  3. [52]
    In considering whether to grant leave to amend, the principles that are applied by the Courts in this State to similar application in those courts are capable of application by proxy. The considerations relevant to the exercise of the broad discretion under UCPR Rules 375, 376 and 377 are that a Court will give leave to make those amendments:
    1. (a)
      If it is necessary for those amendments to be made to the genuine dispute between the parties to be determined in one proceeding and to avoid a multiplicity of proceedings between the same parties;
    2. (b)
      In the exercise of the wide discretion to facilitate the just and expeditious resolution of the real issue; UCPR 5, The principles in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 inform the exercise of the discretion; Hartnett v Hynes [2009] QSC 225 per Applegarth J at [27];
    3. (c)
      In the same way that a Court does not oversee the strength of claims set out in a claim which is filed in a proceeding and in respect of which no leave is sought, the Court is not embarking upon the exercise of assessing strength or weakness of claims at a preliminary stage of the proceeding, or at the time when leave is sought to bring amended claims in;
    4. (d)
      To the extent that the Court might be inclined to exercise a discretion to disallow amendments, it would only do so in circumstances in which, by analogy, it would be inclined to strike out claims pursuant to the Court’s power to strike out claims. That invokes the tests which have been articulated for when Courts are prepared to strike out claims;
    5. (e)
      Having regard to the fact that a Claim need only briefly state the nature of the claim made (UCPR 14 (2) (a)) and in any event is not required to state all the relief sought, and it is sufficient if the relief claimed to be included in the SOC; Cousens Securities Pty Ltd v CEC Group [2007] 2 Qd R 520 at [9] per McMurdo P.
  4. [53]
    The reference above to the tests which have been articulated for when Courts are prepared to strike out claims brings into play the circumstances when QCAT has the power to bring an early end to proceedings under s 47 of the QCAT Act if the Tribunal considers the proceeding is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process.
  5. [54]
    The power to strike out is to be used sparingly and only in clear cases. To summarily dispose of the proceedings is one which calls for the exercise of “exceptional caution”: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 (at 129) per Barwick CJ.
  6. [55]
    The power cannot be exercised “once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it”: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 (at 91) per Dixon J.
  7. [56]
    It is only to be exercised “when the action is clearly without foundation and … to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff”: Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 (at 720) per Dixon J.
  8. [57]
    The “Court is not concluded by the manner in which the litigant formulates his case in his pleadings”: Cox v Journeax (No 2) (at 720) per Dixon J.
  9. [58]
    The fatal defects in an Applicant’s case must be very clear before the Court will intervene to strike out a pleading: Shaw v State of New South Wales [2012] NSWCA 102 (at [30]ff) per Barrett JA (Beazley, McColl, Macfarlan JJA and McClellan CJ at CL agreeing); Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 (at 944 – 945) per Cross J.
  10. [59]
    A “high degree of certainty” that the Applicant’s case will fail if it goes to trial is required: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 (at [57]) per Gaudron, McHugh, Gummow and Hayne JJ. Hence a Court will only strike out the pleading on the basis that it does not disclose a reasonable cause of action if, on the face of the pleading, it is obvious that the claim is bound to fail and cannot be remedied by amendment.
  11. [60]
    If it has prospects of success, but the claim is not adequately expressed in the pleading, the Court should not dismiss the proceedings or the particular claim, but should grant leave to the Applicant to file an amended statement of claim or cross-claim (in the case of an application in respect of a cross-claim). See generally Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 943–944.
  12. [61]
    An application to strike out a part of a pleading is inappropriate where to resolve the argument the Court needs to consider disputed questions of fact, or review the entirety of the Applicant’s case, having regard to all of the evidence adduced at trial in order to resolve the alleged inadequacies, or to determine complex questions of law which are best left to final submissions at a trial. Sadly, in this case the Tribunal has been invited to consider disputed questions of fact, or review the entirety of the Applicant’s case, having regard to all of the evidence filed so far. In this Tribunal it is well recognised that there is a duty on an Applicant to actively progress matters to a hearing.
  13. [62]
    In Gough v State of Queensland [2013] QCAT 320 Senior Member Endicott said in relation to a strike out that anti-discrimination cases are not dismissed lightly as the law expects that everyone should have the right to equal protection under the law.

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

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

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

  1. [63]
    In Aigner v State of Queensland and Anor [2012] QCAT 397 Senior Member Endicott held as follows:

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

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

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

The matters raised in the Proposed Amended Contentions

  1. [64]
    Having regard to those principles, I now turn to the matters raised in the Proposed Amended Contentions.
  2. [65]
    The Proposed Amended Contentions refer to events or groups of events, entitled the "First Discrimination Event", "The Second Discrimination Event" and the "Third Discrimination Event".
  3. [66]
    The Respondents contend that the First and Second Discrimination Events consist of entirely new allegations not raised in the Complaint or the Contentions.
  4. [67]
    It is unquestionably the case that the matters referred to in the First and Second Discrimination Events as they are described in the Proposed Amended Contentions, are completely unrelated to the events which are the subject of the original complaint.
  5. [68]
    In the proposed Amended Contentions, the First Discrimination Event is identified as one which is said to have spanned a period of six or seven years, possibly commencing in 2014. The dates within that period when the incidents relied on occurred is not identified, not are particular events specifically identified. They are said to have occurred within the period 2015 to 2021 during the course of her treatment by the First Respondent.
  6. [69]
    The First Discrimination Event involves the contention that she was not provided with full copies of her medical records pertaining to a mental health treatment order despite being treated in the mental health division of the First Respondent Hospital. It is also alleged that somehow the First Respondent had the police attend to her house to transport her to the mental health ward of the Hospital in July or September 2019. She contends that this was indirect discrimination.
  7. [70]
    Not only are these allegations devoid of a material act asserting when she made right of information requests, how they might have been received by the First Respondent and how she was not provided with full copies of her medical records, it is impossible to comprehend how even were that true, that could arguably constitute indirect discrimination.
  8. [71]
    Section 7 of the AD Act prohibits discrimination on the basis of certain attributes and these attributes include relevantly for present purposes, gender identity and impairment.
  9. [72]
    Section 10 of the AD Act provides the definition of direct discrimination on the basis of an attribute. It provides as follows:

10 Meaning of direct discrimination

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

Example—

R refuses to rent a flat to C because—

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

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

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

Example—

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

  1. (4)
    If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
  1. (5)
    In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.
  1. [73]
    The question that must be answered affirmatively if such a claim is to succeed is whether the particular conduct which is complained of here has been shown to be “on the basis of an attribute” within the meaning of s 8 and s 10 of the AD Act.
  2. [74]
    Section 8 of the AD Act provides:

8 Meaning of discrimination on the basis of an attribute

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

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

Example of paragraph (c):

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

  1. [75]
    Section 10(3) of the AD Act provides that “the person’s motive for discriminating is irrelevant”.

Example—

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

  1. [76]
    Section 11 of the Act, provides as follows:

11 Meaning of indirect discrimination

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

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

Example 1—

An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.

Example 2—

An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.

  1. [77]
    Informed by these principles, it is clear that the First Discrimination Event allegations are in truth, in no way related to the events which had occurred or are alleged to have occurred on 14 May 2019 and which were the subject of the Complaint and the referral.
  2. [78]
    Even if there might be a remotely arguable basis for contending that there was discriminatory conduct by refusing or not providing her with copies of her medical records, and that his was on the basis of some protected attribute, those facts are not pleaded except at an extreme level of generality.
  3. [79]
    In the Proposed Amended Contentions the Applicant seeks to contend that a biologically born female on a mental health treatment order would not have been treated in the way that she was treated, namely not being told the nature of her treatment order, not being given full copies of her medical records on a basis which constituted discriminatory conduct. I can see how that might arguably be direct discrimination, but struggle to see how it could be indirect discrimination. The events sought to be referenced span a considerable period and may well involve, or at least purport to involve, allegations of events which potentially occurred seven years ago.
  4. [80]
    In what respect she was provided with medical records but which were incomplete or in what respect or in what respects she requested medical records but were not provided by them at all is not the subject of any allegation of material fact,.nor is it made clear even in the most general of terms
  5. [81]
    Focusing then on what it needs to be established to make out a case of indirect discrimination The events said to constitute the 1st Discrimination event in no way focus upon the elements set out in section 11 of the AD Act.
  6. [82]
    The alleged term and its imposition are not referenced. Nor is there any reference to whether persons without her attribute complied or were able to comply with such a term, whatever it might be. There is no reference to the term not being reasonable and why it is that it was not reasonable.
  7. [83]
    One imagines that conceptually it might be possible to make out a case of direct discrimination, where the facts supported the contention that a person was refused a copy of medical records because of or on the basis of the gender identity or impairment. But that is not what is sought to be argued or proven here.
  8. [84]
    As presently articulated the 1st Discrimination Event is not one that has any prospects of being shown to amount to indirect discrimination. Nor is there anything on the material before the Tribunal to suggest that if reformulated as a direct discrimination allegation that it has any merit whatsoever or any legal foundation or any factual basis.
  9. [85]
    It is not particularised by reference to particular requests and refusals and refusals which occurred
  10. [86]
    To the extent that were it to be particularised by reference to particular requests and which occurred more than 7 years ago, it is a claim that is manifestly late and out of time. No plausible or any explanation is advanced to explain the failure to include it in the original complaint or to have prosecuted it since. Having regard to the fact that the original complaint itself is now over 2 years old.
  11. [87]
    In my view it has insufficient demonstrated prospects of success to warrant a favourable exercise of discretion to allow it to be included in the current proceeding.
  12. [88]
    In the Proposed Amended Contentions, the Second Discrimination Event seem to involve allegations articulated in four short paragraphs that “in or about 2017”, her medical records were sent by the First Defendant to Queensland Correctional Services at the Arthur Gorrie Remand Prison when a person not under a mental health treatment plan would not have been treated that way. Again she says that this amounted to indirect discrimination.
  13. [89]
    Submissions filed on behalf of the Applicant and which seek to support the grant of an application to include these allegations described as the Second Discrimination Event. Again I can see how that might arguably be direct discrimination, but struggle to see how it could be indirect discrimination.
  14. [90]
    The Proposed Amended Contentions do not in any way articulate what the legal foundation for them is, when specifically they occurred, or why they amount, or might arguably amount to indirect discrimination. Again, they are in no way related to the events which occurred on or about 14 or 15 May 2019 and which were referred by the Commission.
  15. [91]
    Most of the same points can be made here as have already been made in relation to the claim for indirect discrimination referable to the 1st Discrimination Event. This set of allegations seem to raise issues of impairment discrimination not Gender identity discrimination. They do not conceptually raise a case of indirect discrimination.
  16. [92]
    Even if I were to treat the allegations as raising a case for direct discrimination, there is nothing shown to arguably establish a factual foundation for a case that the sending of her records to those institutions occurred on the basis that she was under a mental health treatment plan. Nor that a person who was not under such a plan would not have had those records forwarded to those institutions, in the same or similar circumstances to those in which she found herself in the course of being processed by correctional services or the remand prison.
  17. [93]
    Again the event or events in question are well out of time, having said to have occurred some 5 years ago. There is no or adequate explanation for the failure to have made that complaint before now or indeed, as she could have when she made her complaint to the commission in 2019 itself.
  18. [94]
    The proposed case is not supplemented by any affidavit or statement which identifies that there is any evidence to support the claims made.
  19. [95]
    In my view it too has insufficient demonstrated prospects of success to warrant a favourable exercise of discretion to allow it to be included in the current proceeding.
  20. [96]
    Submissions have been filed on behalf of the complainant which dispute the proposition that the events described as the 1st and 2nd discrimination events are “new allegations”. Certainly they have not previously been the subject matter of Complaint to the Commission or been in any pleading or statement of contentions which referred to them. The submission filed on behalf of the complainant contend that these issues have been raised in some way or another since at least 2017 and that there has been some sort of concession that the 2nd discriminatory event referring records to the prison authorities to the prison authorities had in fact occurred.
  21. [97]
    Assuming that to be so, and were that to be shown to be true that falls well short of identifying that there is an allegation that to do so amounted to unlawful discriminatory conduct.
  22. [98]
    As for the events said to found the 1st Discriminatory Event, the submission is that since at least 2017 the Applicant has made multiple complaints to the 1st and 3rd respondents "relating to her Treatment". That falls well short of establishing the proposition that all or any of the respondents were put on notice that they were being treated as having engaged in discriminating conduct in refusing to provide to provide medical records.
  23. [99]
    Nor does it establish even at the broadest level of generality that generality that if records were not provided that any of these respondents any of these respondents were the cause of that outcome.
  24. [100]
    It is suggested that because the applicant is under a treatment is under a treatment plan that means that means these issues were difficult for her to raise and express. There is no affidavit or other material which establishes that proposition or that the fact that she has been under a treatment plan is the reason that these issues have not been previously raised.
  25. [101]
    I refuse leave to rely on the matters described as 1st and 2nd Discrimination Events as presently articulated.

The Third Discrimination Event

  1. [102]
    The Respondents contend that some of the matters pleaded as part of the “Third Discrimination Event “are new allegations” and refer to paragraphs 1, 2 and 3 at 5.c.i., 5.c.ii.,4.a. and c., and 5.d. of the Proposed Amended Contentions respectively, as being allegations raised in the Contentions but not the Complaint. I do not accept that these are new allegations, but if they are new or in any way different to what was previously contended were the relevant events surrounding the 14 or 15 May 2019 consultation, they are sufficiently related in time to the referred complaint and fall within the scope of the original complaint.
  2. [103]
    The Respondents also contend that some of the matters pleaded as part of the “Third Discrimination Event make a new allegation that the conduct described therein constitutes discrimination on the basis of the Applicant being a "mental health patient" or the Applicant's "mental health characterisation", where it is unclear if this is proposing discrimination on the basis of a new or different attribute, namely impairment. Whether the attribute said to be the basis for the alleged directly discriminatory conduct is now different to or made as a second attribute said to be the basis for the alleged directly discriminatory conduct does not in my view affect whether the complaint has been brought or referred. It has little significance in the consideration of whether leave ought be given to amend to rely on such an allegation.
  3. [104]
    It is clear that s 10(1) of the AD Act requires that the Applicant establish that the Respondent has treated her or proposed to treat her in a discriminatory way “on the basis of” the relevant attribute. Section 10 of the AD Act provides that a person’s motive for discriminating is irrelevant.
  4. [105]
    As I have already identified in MM and MD v State of Qld [2014] QCAT 478, when examining the complaint which is before this Tribunal, the Tribunal is not bound by its characterisation by the Commission in the referral here. Hence, so long as the essential characteristics of the complaint as made to the QHRC are identifiable, as it is referred, it is for this Tribunal to determine what the proper basis for the complaint is, and ultimately whether it is made out on the evidence
  5. [106]
    The remaining matters set out in the Proposed Amended Contentions under the heading “Third Discrimination Event” appear to concern matters raised in the original Complaint and the Contentions concerning the events on either or both the 14 or 15 May 2019 which occurred during the annual review appointment which the Applicant attended at the Princess Alexandra Hospital.
  6. [107]
    The application for leave to amend the Applicant's claim in the form of proposed amended contentions set out in a document filed 29 July 2021 entitled “Amended Statement of Claim/ Contentions” to the extent that it may be necessary to have such leave, is allowed insofar as it concerns the allegations in paragraphs 1 to 4 and 5c to 5e inclusive, that is, those described under the heading “Third Discrimination Event”.

Disposition in relation to the Third and Fourth Respondents’ application

  1. [108]
    The Respondents submit that the Tribunal ought to refuse the Application for Leave to Amend and pursuant to s 62(1) of the QCAT Act 2009, the Tribunal ought issue the following directions:
  1. (a)
    That the Applicant have leave to file with the Tribunal and serve on the Respondents a copy of an amended Statement of Contentions, no more than five (5) pages, which sets out:
  1. what attribute is the basis for the complaint;
  2. who or what is the comparator, and:
  3. if the comparator is a real person, who that person is and why they are an appropriate comparator; and/or
  4. if the comparator is a hypothetical, a description of that person;
  5. whether the alleged discrimination is direct, indirect or both; and
  6. if the complaint is of direct discrimination, how the Applicant was treated less favourably; and/or
  7. if the complaint is of indirect discrimination, what was the term that the Applicant could not comply with, or was more difficult to comply with, why it was more difficult to comply with that te1m, how it is that a higher proportion of people without the attribute can comply with the term, and why the term was not reasonable; and
  8. what orders the Applicant wants the Tribunal to make.
  1. [109]
    I see no need to make such an order since orders have already previously been made concerning such matters on 5 May 2021, and the most recent pleading has overtaken these orders. The Applicant will need to identify what attribute is the basis for the complaints who or what is the comparator, and if the comparator is a real person, who that person is and why they are an appropriate comparator; and/or if the comparator is a hypothetical, a description of that person. In my view it is not necessary that the proposed amended contentions specifically set those out.
  2. [110]
    I have determined that the application for leave to amend the Applicant's claim in the form of proposed amended contentions set out in a document filed 29 July 2021 entitled “Amended Statement of Claim/ Contentions” to the extent that it may necessary to have such leave, is allowed insofar as it concerns the allegations in paragraphs 1 to 4 and 5 c to 5e inclusive , that is, those described under the heading “Third Discrimination Event”.
  3. [111]
    The Respondents submit that the Tribunal ought to order that the Applicant's amended Statement of Contentions must only include allegations that were accepted by the QHRC and referred to the Tribunal. That order is not required either since the refusal of the application means that it is only the referred complaint that is before the tribunal for its determination, or that I have given leave to allow.
  4. [112]
    That leaves the issue of what claims for compensation are made and the way in which they are presently articulated. Paragraphs 6 and 7 of the proposed amended contentions seek in in an abbreviated and entirely unparticularised way compensation for the payment of legal fees in this proceeding and damages in a sum to be assessed. Reference is made in the pleading to a document exhibited as exhibit C which supposedly describes how all of these events have affected the Applicant.
  5. [113]
    Exhibit C does not attempt to identify or distinguish in a coherent and succinct way what the effects have been of the alleged 3rd Discrimination Event. It is a 9 page document which reads perhaps more as a narrative or set of arguments around all the things that have happened to her and how in various ways they affected her. In part Exhibit C seeks to restate, even contradict the factual case sought to be set out in the contentions themselves
  6. [114]
    What is really required is a coherent statement of the facts and contentions relied upon as amounting to what the effects upon her of the 3rd Discrimination Event are and what she claims is the basis for compensation to her for it.
  7. [115]
    The other part of the claim which the Applicant concedes is not particularised and should be, is the claim for the payment of legal fees in this matter as part of the compensation awarded.
  8. [116]
    The statutory position is that set out in s 100 and s 102 of the QCAT Act. They provide as follows:

100 Each party usually bears own costs

Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party's own costs for the proceeding.

102 Costs against party in interests of justice

  1. (1)
    The Tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the Tribunal considers the interests of justice require it to make the order.
  1. (2)
    However, the only costs the Tribunal may award under subsection (1) against a party to a proceeding for a minor civil dispute are the costs stated in the rules as costs that may be awarded for minor civil disputes under this section.
  1. (3)
    In deciding whether to award costs under subsection (1) or (2) the Tribunal may have regard to the following--
  1. (a)
    whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
  1. (b)
    the nature and complexity of the dispute the subject of the proceeding;
  1. (c)
    the relative strengths of the claims made by each of the parties to the proceeding;
  1. (d)
    for a proceeding for the review of a reviewable decision--
  1. (i)
    whether the applicant was afforded natural justice by the decision-maker for the decision; and
  1. (ii)
    whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
  1. (e)
    the financial circumstances of the parties to the proceeding;
  1. (f)
    anything else the Tribunal considers relevant.
  1. [117]
    In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 the President Justice Wilson was considering the costs question where the proceeding had been commenced when one statutory costs regime applied, but which concluded under the current scheme under the QCAT Act. He said:
  1. The respondent relies on the decision of the Court of Appeal in Tamawood Ltd & Anor v Paans [2005] QCA 111, a case decided under the costs provision of the now repealed Commercial and Consumer Tribunal Act 2003 (CCT Act). Although those provisions are not analogous to the equivalent provisions under the QCAT Act, the principles found in Tamawood provide guidance about the circumstances in which it may be in the interests of justice for this Tribunal to award costs against parties.
  1. In Tamawood, Ms Paans commenced proceedings in the CCT for damages against Tamawood Ltd and another party. The two matters were heard together and Ms Paans was awarded monetary damages. The CCT, however, refused to order costs in her favour.
  1. All parties then sought leave to appeal to the District Court, where the appeals from the respondents were refused, but Ms Paans was awarded her costs in the proceedings. The respondents than sought leave to appeal that costs decision to the Court of Appeal, contending that the decision of the District Court was based on an erroneous construction of ss 70 and 71 of the CCT Act. Those provisions state:

70 Purposes of div 7

The main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise.

71 Costs

  1. (4)
    In deciding whether to award costs, and the amount of the costs, the Tribunal may have regard to the following—
  1. (a)
    the outcome of the proceeding;
  1. (b)
    the conduct of the parties to the proceeding before and during the proceeding;
  1. (c)
    the nature and complexity of the proceeding;
  1. (d)
    the relative strengths of the claims made by each of the parties to the proceeding;
  1. (e)
    any contravention of an Act by a party to the proceeding;
  1. (f)
    for a proceeding to which a State agency is a party, whether the other party to the proceeding was afforded natural justice by the State agency;
  1. (g)
    anything else the Tribunal considers relevant.

Examples of paragraph (g)—

The Tribunal may consider whether a party to a proceeding is acting in a way that unreasonably disadvantages another party to the proceeding.

The Tribunal may consider whether the proceeding, or a part of the proceeding, has been frivolous or vexatious.

  1. (5)
    A party to a proceeding is not entitled to costs merely because—
  1. (a)
    the party was the beneficiary of an order of the Tribunal; or
  1. (b)
    the party was legally represented at the proceeding.
  1. The similar QCAT Act provision to s 70 is, it might be said, in terms that more plainly indicate that the legislature had turned its face against awards of costs in this Tribunal: s 100 says that ‘Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding’.
  1. In considering ss 70 and 71 Keane JA (as his Honour then was) referred, however, to two matters relevant here. First, his Honour held that the CCT provisions negated the traditional proposition that costs should prima facie follow the event (unless of course that the Tribunal considers that another order is more appropriate) and that the nature and extent of the power to award costs could only be discerned by close consideration of the terms of the statute which created and prescribed the occasions and conditions for its exercise 7. Sections 100 and 102 of the QCAT Act attract the operation of the same principles.
  1. Second, Keane JA was of the view that where the complexity of the matter justified legal representation, it would not be in the interests of justice to bar the successful party from recovering costs that were reasonably necessary to achieve a satisfactory outcome.
  1. That conclusion must, here, be considered in the light of the difference between s 70 of the CCT Act and s 100 of the QCAT Act. Section 70 speaks of a ‘main purpose’, but s 100 mandates that parties shall bear their own costs. Section 70 contains, within itself, a reference to the condition or circumstance in which the main purpose may be subsumed to the interests of justice; s 100 has no such proviso, although it appears later, in s 102(1).
  1. Under that subsection QCAT has a discretion to make a costs order ‘…if the Tribunal considers the interests of justice require it…’. Section 102(3) says that, in deciding whether to award costs, the Tribunal may have regard to matters not dissimilar to those set out in s 71 of the CCT Act including, in particular for present purposes, the nature and complexity of the dispute and the relative strength of each party’s claims.
  1. Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.
  1. I am satisfied that is the case here. As the voluminous supporting material indicated, the application brought in Ralacom’s name involved a complex history of disputes between it, and the body corporate. Urgent injunctive relief was sought, as was relief under the BCCMA, which on any view involved some complexity, and urgency, and warranted the instruction of solicitors and counsel by the body corporate. The standing of the company was unclear, and confused by the applicant’s failure to inform this Tribunal about the real outcome of the Supreme Court Proceedings.
  1. [118]
    Later, in McEwen v Barker Builders Pty Ltd [2010] QCATA 49 the President, Justice Wilson said in an Appeal heard on the papers:

[13] As to costs, the starting point in this Tribunal is that each party must bear its own: QCAT Act, s 100. The statutory presumption may be displaced if the Tribunal considers it in the interests of justice to order a party to pay all or part of the costs of another party: s 102(1). The phrase “in the interests of justice” is not defined in the Act but is to be construed according to its ordinary and plain meaning, conferring a broad discretionary power on the decision-maker.

[14] In determining whether it is in the interests of justice to award costs against another party, the Tribunal may have regard to the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; and, whether a party has acted in a way that unnecessarily disadvantages another party: QCAT Act, s 102(3).

[17] The language of s 100 plainly indicates that the legislature has turned its face against awards of costs in this Tribunal. The question that will usually arise in each case in which costs are sought is, then, whether circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ have arisen; and, whether or not they point to a costs award in a sufficiently compelling way to overcome the statutory hurdle.

  1. [119]
    In the result, it means that the relevant task is to proceed on the basis that there is a statutory presumption that parties will bear their own costs in a proceeding for the Tribunal, including those in the review jurisdiction of the Tribunal, but that presumption may be displaced if the Tribunal considers it in the interests of justice to order a party to pay some or all of the costs of another.
  2. [120]
    No factual or legal basis for the making of such a claim for legal fees in the proceeding itself as a compensatory claim is set out in the pleading. If such a claim is to be made, it needs to be properly articulated and the basis for the amount claimed also set out and broken down.
  3. [121]
    I therefore order that the particulars of those matters also be provided within 21 days
  4. [122]
    I also direct that the Respondents file their response to the applicant's contentions for which leave has been given, and the particulars which have been directed, within 30 days of service upon them of the Applicant’s particulars.
  5. [123]
    The orders that I make are:
  1. The application for leave to amend the Applicant's claim in the form of proposed amended contentions set out in a document filed 29 July 2021 entitled “Amended Statement of Claim/ Contentions” to the extent that it may be necessary to have such leave, is allowed insofar as it concerns the allegations in paragraphs 1 to 4 and 5c to 5e inclusive.
  2. The application for leave to amend the Applicant's claim in the form of proposed amended contentions is refused insofar as it concerns the allegations in paragraphs 5a and b inclusive.
  3. The Applicant is directed to file and serve on the Respondents within 21 days of the delivery of these Reasons a points of contention document which succinctly, clearly and coherently identifies what the casual effects upon the Applicant were of the alleged Third Discrimination Event, what compensation is sought and how she contends that ought reflect in any orders for compensation and the quantum of that compensation and sets out the legal foundation for such a claim and the relief or remedies sought in respect of it.
  4. I order that particulars of the damages sought by the Applicant be provided within 21 days of the delivery of these Reasons in that points of contention document.
  5. I also direct that the Respondents file their response to the applicant's contentions for which leave has been given, and the particulars which have been directed, within 30 days of service upon them of the Applicant’s particulars
  6. I make a direction requiring an amendment to the title of the proceeding to substitute for the Applicant’s name, the initials ST and direct that on future tribunal documents the Applicant’s name not appear, ands for the initials ST to appear.
  7. The Application for a non­publication order, and a closed hearing order are adjourned to be heard by the member to whom the matter is allocated for hearing or such other date as the Tribunal may order it be heard and determined.
  8. The parties have liberty to apply in respect of any other consequential or other orders which might be required to be made.
Close

Editorial Notes

  • Published Case Name:

    ST v Metro South Hospital and Health Service & Ors

  • Shortened Case Name:

    ST v Metro South Hospital and Health Service

  • MNC:

    [2022] QCAT 272

  • Court:

    QCAT

  • Judge(s):

    Member P Roney QC

  • Date:

    06 Jul 2022

Appeal Status

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

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