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Parent v Matthew Flinders Anglican College[2023] QCAT 42

Parent v Matthew Flinders Anglican College[2023] QCAT 42

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Parent v Matthew Flinders Anglican College [2023] QCAT 42

PARTIES:

PARENT

(applicant)

v

MATTHEW FLINDERS ANGLICAN COLLEGE LIMITED

(first respondent)

and

STUART MEADE

(second respondent)

APPLICATION NO/S:

ADL117-22

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

6 February 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

  1. The application for an interim order is refused.
  2. The publication of the names of the applicant and their family, and of information that identifies the applicant or their family other than to the parties to the proceeding is prohibited pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application for an interim order before referral of discrimination complaint – whether interim order should be made – confidentiality order

Anti-Discrimination Act 1991 (Qld) s 46, s 129, s 130, s 144, s 174A, Sch 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 66

Beck v Headland Golf Club [2021] QCAT 354

Boles & Walsh v Vonk & ors [2022] QCAT 144

Coop v State of Queensland [2014] QCATA 205

Singh v Donoghue & Rockhampton Cab Company Ltd [2013] QCAT 526

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) (QCAT Act).

REASONS FOR DECISION

What is the application about?

  1. [1]
    The Anti-Discrimination Act 1991 (Qld) (ADA) prohibits discrimination based on certain attributes, including impairments such as a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions, or judgment or that results in disturbed behaviour.[1] 
  2. [2]
    The applicant suffers from Complex Post-Traumatic Stress Disorder (C-PTSD), an attribute in respect of which discrimination in the supply of services is prohibited.[2]   The applicant is the parent of a child or children who attend the first respondent College. The second respondent is the Principal of the College.
  3. [3]
    On 18 October 2022 the applicant made a complaint to the AHRC against the President of the College’s Parents & Friends (P&F) Association and against the Association itself arising from circumstances in which a scheduled meeting between the applicant and the P&F President was cancelled.
  4. [4]
    On 9 December 2022 the applicant lodged a complaint with the Queensland Human Rights Commission (QHRC) against the second respondent alleging victimisation contrary to sections 129 and 130 of the ADA arising from a 4 November 2022 letter in which a communications restriction was imposed upon the applicant as follows:

..apart from matters directly involving your [child].., which can be addressed to [their] classroom teacher or the Head of [redacted]…all other communication with the College is to be directed to my [Principal’s] office.

  1. [5]
    On 22 December 2022 the applicant applied to the Tribunal for a ‘pre-referral’ interim order under section 144 of the ADA seeking an order that:

The respondents are prohibited from restricting or otherwise interfering with the communications of [the applicant] with Matthew Flinders Anglican College, its staff and any of its associated bodies, pending the resolution of the complaint currently before the Queensland Human Rights Commission or further order of the Tribunal.

  1. [6]
    The applicant says their children suffer from disclosed disorders and that the imposition of the communications restriction amounts to discrimination, was imposed in an exercise of victimisation and will have detrimental mental health and educational impacts upon the family that monetary compensation cannot repair.
  2. [7]
    The Tribunal can grant an interim order under section 144 of the ADA if satisfied it is necessary to prohibit an act of the respondents that might prejudice:
    1. (a)
      the investigation or conciliation of the complaint; or
    2. (b)
      an order the Tribunal might make after a hearing.[3]
  3. [8]
    As recently observed in Boles & Walsh v Vonk & ors [2022] QCAT 144:[4]

The Tribunal has approached the issue of the making of an interim order under s 144 of the ADA by applying the principles relevant to the grant of an interlocutory injunction: Jones v Queensland Health [2010] QCAT 700; Coop v State of Queensland [2014] QCATA 205 at [80].  Those principles require, first, the applicant to establish that there is a prima facie case, in the sense that if the evidence remains as it is, there is a sufficient likelihood of success to justify the preservation of the status quo pending the hearing: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622 – 623; Australian Broadcasting Incorporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] per Gleeson CJ and Brennan J and [67] per Gummow and Hayne JJ. Secondly, it must be determined whether the inconvenience or injury which the applicant would be likely to suffer if an injunction is refused outweighs, or is outweighed by, the injury which the respondent would suffer if an injunction were granted: Beecham at 622-623.

  1. [9]
    The first issue for the Tribunal is determine whether the interim order is necessary to prohibit an act of the respondents that might prejudice the investigation or conciliation of the complaint or an order the Tribunal might make after a hearing.
  2. [10]
    Only once one of those terms are satisfied is the Tribunal then required to consider whether there is a prima facie case and the balance of convenience.[5]

Background to the complaint

The 2017 neighbourhood dispute

  1. [11]
    Each party refers to a 2017 neighbourhood dispute between the applicant and N, mediated by H, that took place well prior to the applicant’s children being enrolled at the College. 
  2. [12]
    At the time of the dispute, N was not involved with the College, but subsequently became a director.  H was, and remains a teacher at the College, but N and H acted in their private capacity in the context of the dispute that arose.
  3. [13]
    The relevance of the neighbourhood dispute to the application, according to the parties, seems to be that:
    1. (a)
      The applicant says their eldest child’s condition specifically manifests itself with new classroom teachers and has its origins in H ostracising the family when they were neighbours in 2017/18 and on an ongoing basis.
    2. (b)
      The respondent believes the applicant to be fixated on the historical dispute with H and N and notes that the applicant has, since enrolling their child at the College made related complaints as follows:
      1. On 7 September 2021 the applicant raised a concern that H was the cause of their child taking a couple of terms to “warm up”. 
      2. On 11 October 2021 the applicant raised concerns about H and their historical failure to act as mediator to resolve the private neighbourhood dispute between the applicant and N.
      3. On 14 October 2021 the applicant raised concerns regarding the suitability of N for appointment as a director of the College.
      4. On 12 November 2021 the applicant raised a complaint in relation to E alleging they were hostile and unresponsive to the applicant's complaints regarding H, but also alleging that E was unsupportive of their child's learning. 
      5. In an email dated 22 November 2021, the applicant complained that H was having an impact on their child’s health and learning outcomes. The College says it requested that the applicant clarify this concern, but no evidence or clarification as to how the applicant thought H was impacting the child’s mental health and learning outcomes was forthcoming.
      6. On 1 December 2021 the applicant complained to the College about their response to “our legitimate complaint about [N and H]”.
      7. On 3 December 2021 the applicant made a complaint against H alleging that H condoned the use of alcohol in the presence of children in breach of the College’s code of conduct. 

Other prior complaints

  1. [14]
    In its letter to the applicant dated 28 November 2022, the School set out a table comprising what they described as “a voluminous and comprehensive timeline” of complaints against the College.
  2. [15]
    In addition to complaints concerning H, N and E, the applicant’s complaints have also included:
    1. (a)
      From 15 October 2021 the applicant raised concerns regarding the keeping of and access to the member’s register for the College. The applicant alleged that the College was in breach of various governance requirements and statutory obligations because it did not disclose members’ residential addresses.  This complaint was apparently escalated by the applicant to the ASIC and ACRA.
    2. (b)
      By email dated 20 December 2021 the applicant threatened to report the College to the QHRC if it continued to respond via solicitors based on a claimed right to parental communication in education.
    3. (c)
      On 25 February 2022 the applicant re-agitated the complaint regarding the members’ register, enclosing a draft Originating Application threatening litigation against the College regarding the members’ register.  This was again raised on or around 13 September 2022.

The HRC Complaints

  1. [16]
    On 18 October 2022 the applicant made a complaint to the AHRC against the President of the Parents & Friends (P&F) Association, and the Association itself where:
    1. (a)
      The applicant had an arrangement to meet the P&F President (C) and the P&F Liaison Officer at the coffee shop on school grounds to have a general discussion about student mental health;
    2. (b)
      The applicant then requested that the President meet the applicant and their spouse off-site and without the Liaison Officer present – the applicant says this was to accommodate their C-PTSD; and
    3. (c)
      The President, on the Principal’s recommendation, then declined the meeting.
  2. [17]
    A copy of this complaint has not been provided to the Tribunal nor have the communications exchanged in relation to the meeting and the circumstances in which the applicant sought to move it or the respondent cancelled it.
  3. [18]
    There is no evidence as to how or when the applicant disclosed the fact of their C-PTSD before or during these interactions if they did disclose it.
  4. [19]
    On 4 November 2022, by a letter written by the Principal, the College imposed the communication restriction and said, relevantly as follows:

I write with regard to your recent complaint against the President of the [P&F Association] and the [P&F Association] which you submitted to the [AHRC] on 18 October 2022. 

My understanding is that the reason for your complaint…relates to [their] “recent discriminatory actions, contrary to the Disability Act 1992, (Cth)”. I am dismayed by this allegation, and on behalf of the College, [the President] and the P&F, I reject it completely.

The College will respond fully to the complaint once the AHRC has notified the College of the complaint and provided full particulars of the allegations, as is the appropriate course.

In the meantime, I wish to make the following statement:

  1. [C] is a volunteer at the College.  [They] donate [their] time to act as President of the P&F.
  2. [C] offered to meet you on school grounds at the coffee shop with [W], the P&F Liaison Officer, whom you had emailed on 4 October 2022. In an email dated 10 October, you agreed to this meeting.
  3. You then requested that [C] meet offsite at an alternate venue (email dated 11 October) and meet with you and your [spouse] without [W] (10 October).
  4. Given the manner and approach you have taken in previous matters, including communication both verbal and written with members of the College, I believed it was inappropriate for [C] to meet with you and your [spouse] alone and at a venue away from College grounds. Upon my recommendation, [C] declined to meet with you alone and offsite.

Your allegation that this decision is in any way related to any alleged disability of yours is patently false and disingenuous.

In light of your conduct, including that detailed above, apart from matters directly involving your [child], [redacted], which can be addressed to [their] classroom teacher or the Head of [redacted], [E] all other communication with the College is to be directed to my office.

  1. [20]
    On or around 11 November 2022 the applicant amended their AHRC complaint to include an allegation of victimisation on account of the imposition of the communications restriction.
  2. [21]
    On 28 November 2022, in a letter written by the Principal, and under the heading “Staff Safety”, the College:
    1. (a)
      indicated that it had a duty of care to ensure that its staff members are provided with a safe teaching environment that did not risk staff members’ health and well-being;
    2. (b)
      identified the various complaints made by the applicant and observed that they appeared to be “irreconcilably dissatisfied with the College and with persons connected to it”;
    3. (c)
      expressed concern about the applicant's apparent unwillingness or inability to move on from the neighbourhood complaint;
    4. (d)
      reiterated the communications restriction with the observation that “it is unfortunate that this directive is necessary”; and
    5. (e)
      urged the applicant to engage in a positive, collaborative partnership with a clean slate in 2023.
  3. [22]
    On 9 December 2022, the applicant lodged his complaint with the QHRC alleging victimisation. 
    1. (a)
      A copy of that complaint was attached to the application, and it refers to the 4 November 2022 letter and the communications restriction it imposes. 
    2. (b)
      It also refers to the refusal of the P&F President to meet with the applicant once, the applicant says, their disability was disclosed to them. 

Are interim orders necessary pursuant to section 144(1) of the ADA?

  1. [23]
    The respondents say the application is futile because section 144(1) limits the Tribunal’s jurisdiction to the making of orders that prohibit conduct that might prejudice the investigation or conciliation of the QHRC complaint, or an order that the Tribunal might make after a hearing.
  2. [24]
    The respondents say the communications restriction is not and cannot amount to conduct of that kind.
  3. [25]
    The applicant submits that the imposition of the communications protocol might prejudice the investigation or conciliation of the QHRC complaint in the following ways:
    1. (a)
      New investigations would be created by the continued restriction of communication with the College.
    2. (b)
      The investigator would need to assess the impact of the communication restrictions upon the applicant’s children and upon the applicant over weeks and months following the conciliation.
    3. (c)
      The conciliation would be prejudiced because having the restriction in place would reduce the likelihood of settlement because the applicant would be “forced to pursue a further application for interlocutory relief in the Federal jurisdiction”.
  4. [26]
    Further, the respondents say the Tribunal could, in a final hearing, make orders permitting unrestricted communication between the applicant and the College (and its staff and volunteers), and that its ability to make such an order is not prejudiced, in any way, by a refusal to make such an order on an interim basis.
  5. [27]
    The applicant says that if an interim order is not granted, the existence of the communications restriction would increase damage and loss during the period of reference by the QHRC to the Tribunal, for hearing and final adjudication.  This will, the applicant says, create delay and generate additional work to the Tribunal. The applicant says their pre-victimisation/discrimination position will not be restored (and cannot be compensated) if the interim order is not granted because they will have lost perhaps several terms of unrestricted communication in the meantime.
  6. [28]
    The applicant describes the prejudice and detriment suffered from the restriction of communication as actual and potential to the applicant and their children in obtaining educational services from the College, because:
    1. (a)
      The Head of [redacted] is integrally involved in managing the eldest child’s disability and in arranging transition to new classroom teachers. Curtailing communications with them and other new classroom staff particularly during the crucial start of the school year will impact upon the applicant's ability to manage the child's disability at this crucial time. 
    2. (b)
      Prohibiting the applicant from contacting other key staff members at the College in relation to the education and care of the children will have a detrimental effect on their health and the applicant’s.
    3. (c)
      The applicant has been receiving pastoral support at the College in relation to their C-PTSD which they have found helpful to their mental health. Curtailing communications with the pastoral carer has had, and will have a detrimental impact on their mental health and reinforce the triggering nature of the college environment to their C-PTSD.
    4. (d)
      The Principal and the Head of [redacted] have been dismissive and hostile in relation to the family and the issues raised in relation to their mental health. Limiting contact to those two people will inhibit the children's care and exacerbate the C-PTSD as the hostility exhibited is a particular trigger to C-PTSD sufferers.
  7. [29]
    The applicant tendered the following in evidence:
    1. (a)
      a letter from a general medical practitioner dated 6 January 2023 that says as follows:

[The applicant] has been under my care as treating GP since May 2021.  [they have] has a diagnosis of PTSD and has quite significant and intrusive symptoms.  I am also the treating GP for [their] children…It is my clinical opinion that the applicant's mental health and the well-being of [the] children will be affected by restrictions post on communication between [the applicant] and [their] children's school.

  1. (b)
    a letter from a psychologist thanking the GP for referring the applicant’s eldest child on 12 January 2022 and referring to an initial psychology/assessment session, summarising the applicant’s concerns as parent, and the focus of ongoing sessions (strategies informed by Cognitive Behavioural Therapy to assist the child to manage anxiety in the school environment); and
  2. (c)
    a summary report from a paediatrician following a “Zoom” videoconference session on 15 October 2022 to assess language and behaviour concerns regarding the applicant’s youngest child.
  1. [30]
    Judge Horneman-Wren SC DP said in Coop[6] at [89]:

In considering any application under section 144 in which the prejudice alleged is to orders which the Tribunal might ultimately make, it will be necessary to identify with some precision what orders are sent to be potentially prejudiced, and in what way.

  1. [31]
    As observed in Coop, in the context of a section 144 application, the injury or inconvenience which is likely to be suffered is defined by the section itself. It is prejudice to the investigation or conciliation of the complaint in the QHRC, or to the orders which might be made by the Tribunal after a hearing. The focus is narrow, rather than a broad focus upon injury or inconvenience to the applicant or to his family or, in indeed to the Tribunal by way of additional work or delay.
  2. [32]
    The content of the interim order can only restrain the act or acts which have been identified as those which, if unrestrained would cause potential prejudice to the investigation or conciliation of the complaint, or to the orders which the Tribunal may otherwise make after a hearing and in that regard: 
    1. (a)
      I am not satisfied that the communications restriction has the potential to prejudice the conciliation or the investigation in the QHRC and the submissions do not adequately articulate how it might, other than to say that it would trigger new investigations and an ongoing assessment of impacts upon the applicant and their family of the imposition of the communications restriction.  Whilst the restriction may extend or broaden the scope of the investigation, it is not clear to me how it harms it. Similarly, it is not clear how the restriction might harm the conciliation. 
    2. (b)
      There is no evidence that the imposition of the communication restriction will have an impact on an order the Tribunal can make.  It does not, for example, prevent the Tribunal from making orders that the conduct complained of amounts to discrimination, victimisation or from making an order permitting unrestricted communication. The Tribunal could, in a final hearing, make orders permitting unrestricted communication between the applicant and the College (and its staff and volunteers), however, its ability to make such an order is not prejudiced, in any way, by a refusal to make such an order now.
  3. [33]
    On that basis, I am not satisfied that the threshold requirements of section 144(1) are met.  The interim orders sought are not necessary to prohibit an act of the respondents that might prejudice the investigation or conciliation of the complaint or an order the Tribunal might make after a hearing and the application for an interim order is dismissed on that basis.
  4. [34]
    It is unnecessary to consider whether the applicant has a prima facie case nor where the balance of convenience sits, because even if both considerations favour the applicant, the orders sought cannot be made under section 144(1). On that basis, the application for interim orders is dismissed.

Non-publication

  1. [35]
    The applicant seeks a non-publication order to preserve the anonymity of the applicant and their family.
  2. [36]
    Section 145 of the ADA permits the commission to make an order prohibiting the disclosure of a person’s identity to protect the privacy or any human right of the person.  The Tribunal is not privy as to whether such an order has yet been made.
  3. [37]
    In any event, section 66 of the QCAT Act permits the Tribunal to make an order prohibiting the publication of information that may enable a person who has appeared before the Tribunal in a proceeding or is affected by a proceeding to be identified if necessary, to, among other things, to avoid endangering the mental health or safety of a person, to avoid the publication or confidential information or for any other reasons in the interests of justice.
  4. [38]
    I am satisfied that the applicant and their family are persons “affected by a proceeding”. I am also cognisant of the rights of the applicant and their family to privacy[7] and to the protection of families as a fundamental group unit of society[8].  The medical evidence before the Tribunal pertaining to the applicant and their children is confidential and private and should remain so.  In the circumstances, I am satisfied that the identification of the applicant or their family may endanger their mental health and may impact their ongoing ability to engage in their local community.  I make an order prohibiting the publication of the name of the applicant and their family, and of information that would enable the applicant or their family to be identified.

Footnotes

[1]Schedule 1 Dictionary.

[2]Section 46, ADA.

[3]Section 174A, ADA; see also Coop v State of Queensland [2010] QCAT 700 at [87].

[4]At [21], citing Beck v Headland Golf Club [2021] QCAT 354

[5]Singh v Donoghue & Rockhampton Cab Company Ltd [2013] QCAT 526.

[6]Coop v State of Queensland [2010] QCAT 700.

[7]Section 25, Human Rights Act 2019 (Qld).

[8]Section 26, ibid.

Close

Editorial Notes

  • Published Case Name:

    Parent v Matthew Flinders Anglican College

  • Shortened Case Name:

    Parent v Matthew Flinders Anglican College

  • MNC:

    [2023] QCAT 42

  • Court:

    QCAT

  • Judge(s):

    Member Lember

  • Date:

    06 Feb 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
Australian Broadcasting Corporation v O'Neill (2006 ) 227 CLR 57
1 citation
Jump To
Cite 1 - (2006 ) 227 CLR 57
Australian Broadcasting Corporation v O'Neill (2006) HCA 46
1 citation
Jump To
Cite 1 - (2006) HCA 46
Beck v Headland Golf Club [2021] QCAT 354
2 citations
Jump To
Cite 1 - [2021] QCAT 354
Cite 2 - [2021] QCAT 354
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
1 citation
Jump To
Cite 1 - (1968) 118 CLR 618
Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1
1 citation
Jump To
Cite 1 - [1968] HCA 1
Boles & Walsh v Vonk [2022] QCAT 144
2 citations
Jump To
Cite 1 - [2022] QCAT 144
Cite 2 - [2022] QCAT 144
Coop v State of Queensland [2014] QCATA 205
2 citations
Jump To
Cite 1 - [2014] QCATA 205
Cite 2 - [2014] QCATA 205
Jones v Queensland Health [2010] QCAT 700
3 citations
Jump To
Cite 1 - [2010] QCAT 700
Cite 2 - [2010] QCAT 700
Cite 3 - [2010] QCAT 700
Singh v Donoghue & Rockhampton Cab Company Ltd [2013] QCAT 526
2 citations
Jump To
Cite 1 - [2013] QCAT 526
Cite 2 - [2013] QCAT 526

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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