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BA, DC and HG as litigation guardian for FE v State of Queensland[2023] QCAT 375

BA, DC and HG as litigation guardian for FE v State of Queensland[2023] QCAT 375

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

BA, DC and HG as litigation guardian for FE v State of Queensland [2023] QCAT 375

PARTIES:

BA, DC and HG as litigation Guardian for FE

(applicants)

v

State of Queensland

(respondent)

APPLICATION NO/S:

ADL065-22

MATTER TYPE:

Anti-Discrimination matter

DELIVERED ON:

21 September 2023

HEARING DATE:

21 April 2023

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Fitzpatrick

ORDERS:

The Complaint will not proceed as a representative complaint.

CATCHWORDS:

PROCEDURE – PROCEEDINGS IN QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – REPRESENTATIVE PARTY – GENERALLY – allegation of indirect discrimination – whether matter appropriate to proceed as a representative complaint – whether common questions of law or fact – whether respondent denied a defence with respect to individual members of proposed class – whether representative complaint in the interests of justice – whether Tribunal acting in an administrative or judicial capacity – application of human rights

Anti-Discrimination Act 1991 (Qld), s 194, s 195

Human Rights Act 2019 (Qld), s 5(2)(a), s 8, s 58, s 48, s 15, s 31

Police Powers and Responsibilities Act 2000 (Qld), Chapter 14 and 15

Youth Justice Act 1992 (Qld), Part 5

Attorney-General for the State of Queensland v Grant (No 2) [2022] QSC 252

Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398

Credit Suisse Private Equity v Houghton [2014] NZSC 37

Esanda Finance Corporation Ltd v Carnie (1992) 29 NSWLR 382

Innes v Electoral Commission of Queensland (No2) [2020] QSC 293

Momcilovic v R (2011) 245 CLR 1

Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273

PJB v Melbourne Health and State Trustees Ltd [2011] VSC 327

Prudential Assurance v Newman Industries (1981) Ch 229

Re Cram; ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140

R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] 123 CLR 361

Wood v The King [2022] QSC 216

WUT v The King [2020] VSC 586

REASONS FOR DECISION

  1. [1]
    The applicants in this proceeding were children detained at the Cairns watch-house for a period of two or more days during the period 23 June 2021 and 23 June 2022. As a result of their detention, the applicants allege indirect discrimination on the basis of age and race under the Anti-Discrimination Act 1991 (Qld) (‘AD Act’). It is also alleged that the respondent State of Queensland by its officers, including the Chief Commissioner of the Queensland Police Service, watch-house officers, Youth Justice Queensland, and the Chief Executive (Child Safety) were public entities which acted in breach of s 58 of the Human Rights Act 2019 (Qld) (‘HR Act’). That allegation is to be dealt with by the Tribunal under s 59 of the HR Act.
  2. [2]
    The applicants seek an order under s 194 of the AD Act that the proceeding be dealt with as a representative complaint, the relevant class being children detained at the Cairns watch-house for a period of two or more days between 23 June 2021 and 23 June 2022.
  3. [3]
    The applicants propose that if an order is made to deal with the proceeding as a representative complaint, the proceeding should be dealt with in the following way:
    1. liability to be determined first, with questions of remedy to be dealt with at a subsequent stage;
    2. individual class members’ individual circumstances to be assessed on questions of loss and damage in the second phase of the proceeding; or an order made as to any available remedy under s 209(1) of the AD Act; and
    3. the hearing to be conducted according to the Directions of the Tribunal in as informal a way as possible.
  4. [4]
    The respondent State of Queensland submits that the Tribunal ought not make an order for this matter to proceed as a representative complaint.
  5. [5]
    I note that the Human Rights Commissioner decided to treat the complaints made to the Commission as representative complaints under s 146 of the AD Act. That decision does not bind the Tribunal; however, the Commissioner’s treatment of the Complaints ensures the time limit on making complaints has been met.

Legislative framework

AD Act

  1. [6]
    Section 194 of the AD Act provides that if a complaint alleges that the respondent contravened the Act against a number of people, the Tribunal must determine, as a preliminary matter, whether the complaint should be dealt with by it as a representative complaint.
  2. [7]
    Section 195 of the AD Act sets out the criteria for determining whether the Tribunal may deal with a complaint as a representative complaint. By s 195(1), the Tribunal may do so if it is satisfied that:
    1. the complainant is a member of a class of people, the members of which have been affected, or are reasonably likely to be affected by, the respondent’s conduct; and
    2. the complainant has been affected by the respondent’s conduct; and
    3. the class is so numerous that joinder of all of its members is impracticable; and
    4. there are questions of law or fact common to all members of the class; and
    5. the material allegations in the complaint are the same as, or similar or related to, the material allegations in relation to the other members of the class; and
    6. the respondent has acted on grounds apparently applying to the class as a whole.
  3. [8]
    By s 195(2), if the Tribunal is satisfied that-
    1. the complaint is made in good faith as a representative complaint; and
    2. the justice of the case demands that the matter be dealt with by means of a representative complaint, the Tribunal may deal with the complaint as a representative complaint even if the criteria set out in subsection (1) have not been satisfied.

HR Act

  1. [9]
    The HR Act provides that the Tribunal must:
    1. interpret statutory provisions to the extent possible, consistent with their purpose, in a way that is compatible with human rights;[1]
    2. to the extent that the Tribunal is performing a function of a public nature[2] and acting in an administrative capacity, act and make decisions in a way compatible[3] with human rights, and must in making a decision, give proper consideration to a human right relevant to the decision.[4]
  2. [10]
    Further, by s 5(2)(a), the HR Act applies to the Tribunal to the extent the Tribunal has functions under Part 2 (human rights) and Part 3, division 3 (interpretation of laws).

Section 195(1) factors

  1. [11]
    I am satisfied that the criteria in s 195(1)(a), (b) and (c) have been met.
  2. [12]
    I find that the applicants are members of a class of people, being children detained at the Cairns watch-house between 23 June 2021 and 23 June 2022. I do not accept the respondent’s submission that a class cannot be discerned because of a lack of particularity in describing the class in that it is said to cover both children detained at the relevant time and children being Aboriginal or Torres Strait Islander and others with cultural needs. I consider it sufficient that the overarching class can be described. The differing attributes of some of the children in the class would affect their remedy and will affect how some of them have been treated, but they still remain part of the larger class.
  3. [13]
    As to whether the applicants have all been affected by the respondent’s conduct, that conduct is contended at paragraph 8 of the amended statement of contentions filed 2 November 2022 to be:
    1. children were detained in cells with no natural light;
    2. children were frequently detained in these cells for up to 24 hours a day;
    3. children were co-located in cells, including being required to use the toilet in front of other children and on CCTV camera;
    4. children could hear adult prisoners screaming and kicking doors;
    5. children were held in close enough proximity to adult prisoners that they could (and did) converse with adult prisoners;
    6. children had limited access to visitors, including family and cultural ties;
    7. children were subjected to insults, including racist slurs, from watchhouse officers;
    8. children had limited access to the exercise yard and TV room (all visits to the exercise yard being one hour or less);
    9. children were not provided with appropriate educational materials or resources;
    10. children were not provided with appropriate cultural supports;
    11. children were denied adequate access to healthcare, including for their mental health;
    12. children were detained in hot conditions at night, without air conditioning, inhibiting sleep;
    13. children were not allowed to change clothes when detained, including for long periods of time;
    14. children were denied access to adequate pro-social activities to pass the time;
    15. children were subjected to unnecessary strip searches;
    16. children were detained in padded cells for extended periods (up to one day) without access to mental health assessment or treatment;
    17. children were clothed only in suicide smocks for extended periods (up to six consecutive days) while in shared cells with other children;
    18. children were physically assaulted by watch-house officers.
  4. [14]
    I accept the respondent’s submission that not all children in the class will have been affected by the respondent’s conduct in the same way. Section 195(1)(a) does not require that all members of the class have been affected in the same way, merely that they: “have been affected, or are reasonably likely to be affected by the respondent’s conduct”.
  5. [15]
    Because the children held in the watch-house at the relevant time will have been exposed to the same physical layout and resources available to them, I find that many of the matters raised in relation to the children’s experiences are reasonably likely to affect the whole class. That is sufficient to find that the criteria in s 195(1)(a) have been met.
  6. [16]
    As to s 195(1)(b), the respondent says that there are insufficient particulars as to when the alleged conduct occurred, so that the Tribunal cannot be satisfied that the complainants have been affected by the alleged conduct. The applicants say that is a matter for evidence at the hearing. I accept that is the case and it is not possible on an interlocutory matter to make findings in relation to allegations made in the applicants’ statement of contentions. At this stage it is enough that credible allegations have been made in the statement of contentions and statements of evidence filed in the Tribunal that the applicants each experienced at least some of the matters alleged. 
  7. [17]
    Of the allegations made, I find that it is reasonably likely that all children forming the class have been affected by at least some of the respondent’s alleged conduct and that it is likely the applicants have been affected by at least some of the respondent’s alleged conduct.
  8. [18]
    As to the number of persons in the class, the respondent observed at the hearing of this application that there were potentially hundreds of children who may fall within the class. I rely on that observation to find that the criteria in s 195(1)(c) have been met. It is a matter within the knowledge of the respondent as to how many children were detained in the Cairns watch-house at the relevant time.
  9. [19]
    It is more problematic as to whether there are questions of law or fact common to all members of the class as required by s 195(1)(d).
  10. [20]
    I have identified that there are some common questions of fact for the proposed class. The applicants submit that it is not necessary within the terms of s 195(1)(d) that all questions of law or fact are common to all members of the class. It is said that what is relevant is the extent of overlap.
  11. [21]
    At the hearing of the application, Senior Counsel for the applicants submitted that the overlap relates to allegations in the amended statement of contentions at paragraph 8(a), (b), (c), (d), (e), (f), (h), (i), (j) and (k). It was noted that provision of some health care will be child specific (paragraph 8 (l)) and that changes of clothes may be child specific (paragraph 8(m)), however the context is that the watch-house is for the transit of adult prisoners, not the ongoing holding of people. It was conceded that strip searching may be child specific (paragraph 8 (o)) although it was said to be common. It was also conceded that the matters at paragraph 8 (p), (q) and (r) were likely be child specific.
  12. [22]
    The respondent acknowledges that some of the factors alleged are common because of the structure of the watch-house, but there will be different factual scenarios for each child.
  13. [23]
    I accept that it is not necessary for every child’s experience to be the same as that of other children in the class. I accept the applicants’ submissions that there is overlap in the areas identified by Senior Counsel and at the very least with respect to the physical conditions in the watch-house, as conceded by the respondent.
  14. [24]
    As to common questions of law, the applicants submit all that is necessary is to identify common questions for all the class, not that there be an entire overlap.
  15. [25]
    In summary, with respect to the allegation of indirect discrimination it is asserted that common to all in the class is a requirement that the children comply with terms, being the conditions set out in paragraph 8 of the amended statement of contentions, that the children were not able to comply because they were children with particular educational, psychological, emotional and developmental needs, and that a higher proportion of adults on remand would be able to comply with the terms because of their maturity and because they do not have the same needs as children. It is contended that the terms were not reasonable.
  16. [26]
    The respondent says that it is difficult for an indirect discrimination case to be a representative proceeding because there may be a different term for each member of the class, the ability of each member of the class to comply will vary, for example the capacity of a 10-year-old will be different to that of a 17-year-old. Likewise, the question of reasonableness will turn on facts relevant to each child. In relation to for example a strip search or use of a suicide smock, it will be a question of whether it was appropriate in the circumstances of each child.
  17. [27]
    I accept that there will be a large range of factors affecting the reasonableness of the term with respect to each child.
  18. [28]
    The respondent submits that if it is found to have unlawfully discriminated against the applicants, it relies on the exemption under s 106 of the AD Act, that the relevant acts, are acts  carried out in compliance with or specifically authorised by existing provisions of other legislation, namely Chapter 14 and 15 of the Police Powers and Responsibilities Act 2000 or Part 5 of the Youth Justice Act 1992, and/or an order of the court. I note that after receiving submissions in this matter, amendments have been made to the Youth Justice Act 1992 (Qld) under the Child Protection (Offender Reporting and Offender Prohibition Order) and Other Legislation Amendment Act 2023 (Qld). The amended provisions are now in force and purport to make lawful the practice of holding children in watch-houses until a place becomes available in youth detention centres; to retrospectively validate the holding of children in a watch-house where no court order has been made; and to declare that s 58 of the Human Rights Act 2019 (Qld) (HR Act) does not apply to acts and decisions that are reasonably necessary for the administration of the Youth Justice Act and relate to a child in a relevant detention centre or placing a child in a relevant detention centre.
  19. [29]
    The respondent says that the exemption turns on the individual facts surrounding each child’s detention and that there are many circumstances in which a child may be lawfully detained.
  20. [30]
    The respondent gives the following examples:
    1. the child is to be brought before the local Children’s Court following their arrest in connection with a charge for an offence, the child must not or may not be released from custody in the interim and it is not practicable for the child to be placed in a youth detention centre before they are brought before a court. These circumstances might occur where for example a police officer is satisfied there is an unacceptable risk that the child will commit an offence that endangers the safety of the community or the safety or welfare of a person if released from custody, or a police officer is satisfied the child’s safety would be endangered if they were released from custody, or there is an unacceptable risk the child will not surrender into custody, will commit a non-dangerous offence or will obstruct the course of justice, or there is a limited time prior to the child’s appearance in court such that the child would spend a significant proportion of that time in transit or it would be detrimental for the child to be removed from the immediate community and away from significant family members;[5]
    2. the child is to be brought before the local Children’s Court following their arrest on a warrant,[6] the child must not or may not be released from custody in the interim and it is not practicable for the child to be placed in a youth detention centre before they are brought before a court;
    3. the child has appeared before the court, has been subject to a detention order and is awaiting transportation to a youth detention centre in order to serve a period of detention under the detention order;
    4. the child is held in custody under the Police Powers and Responsibilities Act 2000, chapter 15, part 2 (including where a child in custody in a youth detention centre is transferred to a watch-house for this purpose); or
    5. the child has been transported from a youth detention centre to a watch-house in order to receive a police escort to attend court proceedings, and the child is required to be kept in custody during the court’s sittings.
  21. [31]
    The respondent submits that similarly questions of law in respect of the applicable provisions of the HR Act will not be common to all members of the class, noting that the rights under ss 27 and 28 of the HR Act will only be relevant to some members of the sub-class (and, in respect of the rights under s 28 of the HR Act, to some members of a sub-sub-class). It is further submitted that s 58(1) of the HR Act does not apply to the respondent as it could not reasonably have acted differently or made a different decision because of one or more of the statutory provisions within Chapter 14 and 15 of the Police Powers and Responsibilities Act 2000 and/or Part 5 of the Youth Justice Act 1992.
  22. [32]
    The applicants do not specifically address the claimed exemptions. I accept that the justification for detention by reference to circumstances authorised by legislation will vary significantly across all children in detention and that the reasonableness of any requirement may vary across all affected children. The question of exemption under s 106 of the AD Act and application of s 58(1) of the HR Act are live issues in the matter.
  23. [33]
    I am satisfied that insofar as common questions of fact go, in establishing indirect discrimination there is commonality as to the circumstances experienced by the complainants and the proposed class. However, I accept the respondent’s submissions as to the variation from child to child as to the reasonableness of the terms imposed on each child. I think that issue erodes to a significant degree the commonality of questions of fact necessary to meet the criteria in s 195(1)(d). Further, I am not satisfied that there is sufficient commonality in relation to the question of law which relates to the respondent’s claimed exemption from liability for discriminatory conduct and from contravention of the HR Act. I am satisfied that the legislative basis for detention of children in the watch-house will be responsive to very many different circumstances for each of the children and that factor reduces to a significant degree the commonality of questions of law necessary to meet the criteria in s 195(1)(d) of the AD Act.
  24. [34]
    I am otherwise satisfied that under s 195(1)(e) the material allegations in the complaint are the same as, or similar or related to the material allegations in relation to the other members of the class. I find this is the case insofar as there are common questions of fact as addressed earlier.
  25. [35]
    I am satisfied that under s 195(1)(f) the respondent has acted on grounds apparently applying to the class as a whole, insofar as the discrimination ground relates to age. I accept that the ground of race does not apply to the whole class, but that does not affect my conclusion that the criteria has been met under this subsection.
  26. [36]
    Before reaching a conclusion, the HR Act must be considered. The HR Act is addressed later in this decision.

Section 195(2) considerations

  1. [37]
    The applicants submit that if I am not satisfied that each of the criteria in s 195(1) is met, the order should be made under s 195(2).
  2. [38]
    I accept that the complaint is made in good faith as a representative complaint.
  3. [39]
    As to whether the justice of the case demands that the matter be dealt with by means of a representative complaint, I acknowledge the significance of the issues raised for the applicants and other children detained in the Cairns watch-house. I recognise the many disadvantages suffered by affected children and the unlikelihood that many will have the means to bring their own claims. A representative proceeding in this forum is a convenient vehicle for giving affected children access to justice.
  4. [40]
    I also accept that the issues raised are a matter of considerable public interest, but I do not think that the interests of justice and public interest in a matter are the same thing.
  5. [41]
    The respondent submits that the Tribunal is not able to be satisfied that the justice of the case demands the matter be dealt with by means of a representative complaint and ought not exercise a discretion pursuant to s 195(2). The nub of the respondent’s submissions is that in conducting a hearing which is fair to all members of the class and to the respondent, the Tribunal will need to consider information about a class member’s individual circumstances. I previously accepted that is the case in relation to the reasonableness of any term imposed on the children and the availability of an exemption raised by the respondent. The point remains relevant to a consideration of the interests of justice.
  6. [42]
    The respondent also points to the fact that there is very little relevant precedent in Queensland for conduct of this type of representative complaint. The Queensland Civil and Administrative Tribunal Act 2009 (Qld) gives no guidance as to the procedural aspects of the claim. There is likely to be considerable expense and effort required to even contact members of the class. The respondent raises the following concerns:
    1. uncertainty as to whether members of the class are estopped from seeking relief under the AD Act or the HR Act in the event the applicants are not successful;
    2. the form of notice that ought to be given to other persons who may be represented by the complainants;
    3. the capacity of a child to opt in or opt out;
    4. the scope of relevant evidence, and
    5. the conduct of the matter in the event of the settlement and discontinuance of proceedings.
  7. [43]
    The respondent submits that in the absence of legislative or other guidance and noting the complexity of facts and law attending the proceeding, the justice of the case does not demand that the matter be dealt with by means of a representative complaint.
  8. [44]
    The applicants submit that a representative proceeding is not similar to a class action in the Federal Court or Supreme Court where the sorts of considerations raised by the respondent are relevant. 
  9. [45]
    The applicants submit that estoppel does not arise and that res judicata is only against the State.
  10. [46]
    The applicants say that a representative complaint is intended to avoid a multiplicity of cases, to not be legalistic and for the Tribunal’s directions as to procedure to apply in the Tribunal’s complete discretion. They say that an opt in or opt out process is not necessary.
  11. [47]
    As noted by the respondent, the Tribunal has no procedure in its Rules for the conduct of a representative complaint. In my view, the Tribunal has broad procedural powers and in an appropriate case could develop a process for managing a representative complaint. I note the issue of lack of procedure in the relevant rules was considered in Carnie v Esanda Finance Corporation Ltd.[7] Mason CJ, Deane J, Dawson J and McHugh J cited with apparent approval the remarks of Gleeson CJ in the New South Wales Court of Appeal,[8] where His Honour expressed the need to deal with such important matters as whether or not consent is required from group members; the right of such members to opt out of the proceedings; the position of persons under a disability; alterations to the description of the group; settlement and discontinuance of the proceedings; and the giving of various notices to group members. Their Honours observed that just because there is no procedure, that is not a reason why a matter is not a representative action, but it may be a reason not to proceed when the issues referred to by Gleeson CJ are considered. Carnie’s case considered the nature of a representative action, albeit as contemplated by the New South Wales Supreme Court Rules, which is cast in different terms but raises similar issues as to identification of an affected class of persons and commonality of interest.
  12. [48]
    I am troubled by the apparent size and composition of the class. The class is likely to include children from disadvantaged backgrounds who will have little access to legal assistance and who may not be able to proceed with a litigation guardian. It is unknown the extent to which the children could give instructions, their disabilities or how they might be located. Even if these logistical problems could be overcome, to ensure fairness to the respondent, it will be necessary for the reasonableness of any term imposed on members of the class to be considered child by child, and for the defence raised by the respondent of an exemption under the AD Act and the application of s 58(2) of the HR Act to be considered in relation to each child. That process is not consistent with the intended simplicity and efficiency of a representative complaint. If the respondent is unable to raise its defences with respect to each child, it would not appear to be in the interests of justice for the matter to proceed as a representative complaint.
  13. [49]
    I am assisted by the analysis of Justices Toohey and Gaudron in Carnie v Esanda Finance Corporation Ltd[9] who traced the development of the representative action. Their Honours referred to the influential decision of Vinelott J in Prudential Assurance v Newman Industries[10] which I note has been cited with approval in Australia and New Zealand[11]. Justice Vinelott said:

…a representative action can be brought… provided three conditions are satisfied.

The first condition was that no order could be made if the effect might be to confer a right of action on a member of the class represented who would not otherwise have been able to assert such a right in separate proceeding, or to bar a defence which might otherwise have been available to the defendant in a separate action. The second was that the common interest requirement, where there are separate causes of action in tort, is a requirement for a common ingredient in the cause of action of each member of the class.  In this case the representative action resulted in a declaration that was common in terms of relief to all the members of the class…The third condition was that it must be for the benefit of the class that the plaintiff be permitted to sue in a representative capacity.

  1. [50]
    In my view it would not be in the interests of justice if the respondent was denied the ability to raise a defence, in relation to members of the class which was otherwise available to it. However, before reaching a concluded view the HR Act must be considered.

HR Act and this determination

  1. [51]
    The applicants submit that in making this determination the Tribunal is acting in a “quasi-judicial” capacity[12]because the finality of the determination affects the rights of defined persons. The authority cited to me relates to review of a decision not to renew a private security licence. That seems to me to be very different to the mandatory statutory obligation under s 194 of the AD Act to determine, as a preliminary matter whether the complaint should be dealt with by the Tribunal as a representative complaint.
  2. [52]
    I do not consider the Tribunal is acting in a judicial capacity exercising a judicial power.[13] The Tribunal is not enforcing existing legal rights.[14]
  3. [53]
    Rather I think that the Tribunal is performing a function of a public nature (because the function is conferred on the Tribunal under a statutory provision)[15] and is acting in an administrative capacity: “to exercise discretionary authority to make orders creating new rights and obligations…”[16] That is, the Tribunal has a statutory discretion to “deal with” a complaint as a representative complaint if a number of factors are present or it is in the interests of justice to do so. The Tribunal is not deciding with respect to the parties and the proposed class whether there has been a contravention of the AD Act or the HR Act.
  4. [54]
    The respondent does not characterise the nature of the Tribunal’s determination.
  5. [55]
    The characterisation is important because it determines the way in which the Tribunal applies the HR Act in making its determination.
  6. [56]
    As I have decided that the Tribunal is acting in an administrative capacity, I must make the determination in a way which meets the obligations under s 58 of the HR Act.
  7. [57]
    By s 58(1)(a) of the HR Act I have a substantive obligation not to make a decision in a way that is incompatible with human rights; and by s 58(1)(b) I have a procedural obligation not to fail to give proper consideration to relevant human rights in making a decision.
  8. [58]
    In relation to the substantive limb, by s 8 of the HR Act – an act or decision is compatible with human rights if:
    1. it does not limit a human right; or
    2. it limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with s 13.
  9. [59]
    An act or decision will limit a human right if it “places limitations or restrictions on, or interferes with, the human rights of a person.”[17]

Substantive obligation: Identification of human rights – limitation of human rights- whether reasonable and justified

  1. [60]
    The human rights relevant to a determination that the complaint should not be dealt with as a representative complaint are:
    1. recognition and equality before the law, particularly that every person has the right to recognition as a person before the law;[18]and every person is equal before the law and is entitled to the equal protection of the law without discrimination;[19] and
    2. the right to have the proceeding decided by a competent, independent, and impartial court or Tribunal after a fair and public hearing.[20]
  2. [61]
    In my view a determination that the complaint should not be dealt with as a representative complaint does not result in any person in the proposed class losing an existing right to seek a remedy for contravention of the AD Act or the HR Act. It is the case that those persons would not have the advantage of the applicants running a significant portion of the case for them, but they would not have lost any right they might otherwise have. I cannot conclude that such a determination will result in a limitation of the right to recognition and equality before the law.
  3. [62]
    Likewise, because the question as to whether the matter should proceed as a representative complaint has been ventilated in the Tribunal, in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld), with the benefit of legal representation, I cannot find that there is any limitation on the rights of the proposed class to a fair hearing on the issue.

Procedural obligation: Identification of human rights – whether the decision compatible with human rights

  1. [63]
    The matters relevant to the exercise of the obligation under s 58(1)(b), were discussed in Owen-D’Arcy v Chief Executive, Queensland Corrective Services.[21] I have respectfully followed the reasoning in that case.
  2. [64]
    I have identified the human rights relevant to a determination that the matter should not proceed as a representative complaint. I have decided that there is no limitation or interference with those human rights. As to the impact of the decision I have identified that members of the proposed class must exercise such individual rights as they have. I recognise that as a matter of practicality that may mean any claim individuals have for contravention of the AD Act and the HR Act may never be decided. That is a relevant countervailing factor in coming to a determination. In balancing competing private and public interests, the public interest is in the conduct of a hearing which is fair to all parties. That is a factor to which I have accorded weight. The public interest in a fair hearing outweighs the private interest of a class member enjoying the benefits of not having to prosecute an individual claim.
  3. [65]
    I conclude that a refusal to deal with the complaint as a representative complaint is not incompatible with the human rights of the proposed class.

Tribunal acting in a judicial capacity

  1. [66]
    If I am wrong and I am in fact acting in a judicial capacity in making this determination, I reach the same conclusion. My consideration involves what has been termed the intermediate approach to the requirements of s 5(2)(a) of the HR Act. That is the Tribunal must apply the HR Act to the conduct of the proceedings, where the nature of the function being performed involves applying or enforcing human rights which relate to that function.[22]
  2. [67]
    The applicants say that the Tribunal must apply or enforce those human rights which relate to the proceeding. Specifically, that involves considering and acting compatibly with s 15 of the HR Act, and particularly s 15(4) which provides that “every person has the right to equal and effective protections against discrimination.”
  3. [68]
    The respondent says that the application of the HR Act to the Tribunal’s exercise of its discretion under s 195 is a complex question. Further, even if the Tribunal accepts that it ought to consider and act compatibly with s 15 of the HR Act and in particular s 15(4), it would not be incompatible with s 15 of the HR Act to determine that a representative action ought not proceed, for the reasons articulated by the respondent.
  4. [69]
    The intermediate approach has recently been adopted and explained by Justice Applegarth in Attorney-General for the State of Queensland v Grant (No 2)[23]. His Honour concluded that the relevance of a human right to a particular proceeding requires proper examination of the right concerned and whether it relates to the proceeding’s function.[24] His Honour noted that where a discretion is to be exercised it may be necessary to enforce or apply a right along with other rights and considerations in exercising the discretion.[25] That is the right must be taken into account. It does not mean that a decision must be made so as to give effect to the right to the exclusion of other considerations.[26]
  5. [70]
    Section 15 of the HR Act which sets out the right to recognition and equality before the law, and s 15(4) which provides that every person has the right to equal and effective protections against discrimination are relevant to the exercise of my discretion. I have earlier considered those rights. Taking those rights into account with the other relevant factors discussed in this decision, I have formed the view that this is not an appropriate matter for a representative complaint.
  6. [71]
    The other human right relevant to the exercise of my discretion is the right to a fair hearing of this matter. A fair hearing has occurred, with no limitation to that right.

Interpretation of s 195(2) of the AD Act

  1. [72]
    The applicants submit that the existence of the right to recognition and equality before the law, particularly the right to equal and effective protection against discrimination, is also relevant to the task of construing the nature and scope of the discretion in s 195(2) of the AD Act, by virtue of s 48 of the HR Act.
  2. [73]
    I note that in considering the Court’s discretion under s 13(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), Justice Applegarth did not think that an issue of interpretation arose. He observed that the discretions the Act confers are clear. On that basis he thought no issue of interpretation of a provision of the Act required the Court, in compliance with s 48 of the HR Act, to interpret the provision in a way that is compatible with human rights.[27] In the matter before this Tribunal I do not consider that there is any ambiguity in the provisions of s 195 of the AD Act which require statutory interpretation. The section applies when different constructions are open on the language of the provision being interpreted, having regard to the purpose of the provision.[28] The reference in s 195(2) to the interests of justice is a reference to a broad range of factors in the context of the purpose of the AD Act. As Justice Applegarth concluded rather than an issue of statutory interpretation, the issue concerns the possible application of certain human rights to the exercise of the discretion, by operation of s 5(2)(a) of the HR Act. That exercise has been undertaken.

Conclusion

  1. [74]
    Having satisfied myself as to the human rights considerations, I conclude that because I cannot find there are common questions of fact and law, s 195(1) of the AD Act cannot be relied upon to order that the proceeding be dealt with as a representative complaint.
  2. [75]
    Further, I conclude that because of the procedural complexity of conducting a representative complaint involving the proposed class of persons, and importantly the effective bar of a defence available to the respondent with respect to members of the class, it is not in the interests of justice for this matter to proceed as a representative complaint.

Order

  1. [76]
    I order that the Complaint not proceed as a representative complaint.

Footnotes

[1]HR Act ss 4(f), 48.

[2]Ibid s 10.

[3]Ibid ss 8, 13.

[4]Ibid ss 4(b), 58(1), 58(5).

[5]Youth Justice Act 1992 (Qld) ss 48AAA(2), 48AE(2), 48AAA(3), 54.

[6]Ibid s 57.

[7](1995) 182 CLR 398, 405, 431.

[8]Esanda Finance Corporation Ltd v Carnie (1992) 29 NSWLR 382.

[9](1995) 127 CLR 398.

[10](1981) Ch 229, 254.

[11]Credit Suisse Private Equity v Houghton [2014] NZSC 37, [53].

[12]WUT v Victoria Police [2020] VSC 586.

[13]R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] 123 CLR 361, 374 per Kitto J; cited by Quinlan CJ in GS v MS [2019] WASC 255.

[14]Re Cram; ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140, 148.

[15]HR Act s 109(a).

[16]PJB v Melbourne Health and State Trustees Ltd [2011] VSC 327, [124].

[17]Innes v Electoral Commission of Queensland [No2] [2020] QSC 293, [291]; followed in Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, [130].

[18]HR Act s 15(1).

[19]Ibid s 15(3).

[20]Ibid s 31.

[21][2021] QSC 273, [135].

[22]Innes v Electoral Commission of Queensland (No2) (2020) 5 Qd R 623, [222]-[224]; Wood v The King [2022] QSC 216, [75]-[76]; Attorney-General for the State of Queensland v Grant (No 2) [2022] QSC 252, [71]-[75], [78].

[23][2022] QSC 252.

[24]Attorney-General for the State of Queensland v Grant (No 2) [2022] QSC 252, [97].

[25]Ibid [105].

[26]Ibid [104].

[27]Ibid [66].

[28]Momcilovic v R (2011) 245 CLR 1, [49]-[50] per French CJ, 92-93 [169]-[171] per Gummow J, 217 [565]-[566] per Crennan and Kiefel JJ, and 250 [684] per Bell J.

Close

Editorial Notes

  • Published Case Name:

    BA, DC and HG as litigation guardian for FE v State of Queensland

  • Shortened Case Name:

    BA, DC and HG as litigation guardian for FE v State of Queensland

  • MNC:

    [2023] QCAT 375

  • Court:

    QCAT

  • Judge(s):

    Acting Senior Member Fitzpatrick

  • Date:

    21 Sep 2023

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
Attorney-General v Grant [No 2](2022) 12 QR 357; [2022] QSC 252
4 citations
Jump To
Cite 1 - [2022] QSC 252
Cite 2 - [2022] QSC 252
Cite 3 - [2022] QSC 252
Cite 4 - [2022] QSC 252
Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398
2 citations
Jump To
Cite 1 - (1995) 182 CLR 398
Cite 2 - (1995) 182 CLR 398
Credit Suisse Private Equity v Houghton [2014] NZSC 37
2 citations
Jump To
Cite 1 - [2014] NZSC 37
Cite 2 - [2014] NZSC 37
Esanda Finance Corporation Ltd v Carnie (1992) 29 NSWLR 382
2 citations
Jump To
Cite 1 - (1992) 29 NSWLR 382
Cite 2 - (1992) 29 NSWLR 382
Esanda Finance Corporation Ltd v Carnie (1995) 127 CLR 398
1 citation
Jump To
Cite 1 - (1995) 127 CLR 398
GS v MS [2019] WASC 255
1 citation
Jump To
Cite 1 - [2019] WASC 255
Innes v Electoral Commission of Queensland (No 2)(2020) 5 QR 623; [2020] QSC 293
2 citations
Jump To
Cite 1 - [2020] QSC 293
Cite 2 - [2020] QSC 293
Innes v Electoral Commission of Queensland (No2) (2020) 5 Qd R 623
1 citation
Jump To
Cite 1 - (2020) 5 Qd R 623
Momcilovic v The Queen (2011) 245 CLR 1
2 citations
Jump To
Cite 1 - (2011) 245 CLR 1
Cite 2 - (2011) 245 CLR 1
Owen-D'Arcy v Chief Executive, Queensland Corrective Services(2021) 9 QR 250; [2021] QSC 273
3 citations
Jump To
Cite 1 - [2021] QSC 273
Cite 2 - [2021] QSC 273
Cite 3 - [2021] QSC 273
PJB v Melbourne Health and Anor (Patrick's case') [2011] VSC 327
2 citations
Jump To
Cite 1 - [2011] VSC 327
Cite 2 - [2011] VSC 327
Prudential Assurance Co Ltd v Newman Industries Ltd [1981] Ch 229
2 citations
Jump To
Cite 1 - [1981] Ch 229
Cite 2 - [1981] Ch 229
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361
2 citations
Jump To
Cite 1 - (1970) 123 CLR 361
Cite 2 - (1970) 123 CLR 361
Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140
2 citations
Jump To
Cite 1 - (1987) 163 CLR 140
Cite 2 - (1987) 163 CLR 140
Wood v The King(2022) 12 QR 101; [2022] QSC 216
2 citations
Jump To
Cite 1 - [2022] QSC 216
Cite 2 - [2022] QSC 216
WUT v The King [2020] VSC 586
2 citations
Jump To
Cite 1 - [2020] VSC 586
Cite 2 - [2020] VSC 586

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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