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Platte v Tablelands Regional Council[2024] QCAT 1

Platte v Tablelands Regional Council[2024] QCAT 1

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Platte v Tablelands Regional Council [2024] QCAT 1

PARTIES:

ARNE PLATTE

(applicant)

v

TABLELANDS REGIONAL COUNCIL

(respondent)

APPLICATION NO/S:

ADL035-21

MATTER TYPE:

Anti-discrimination matters

HEARD ON:

21 September 2023

DELIVERED ON:

3 January 2024

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

  1. The application referring the complaint is dismissed.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – INDIRECT DISCRIMINATION – where the applicant suffers a severe chemical allergy – where the respondent is a local government that applies herbicides in weed management – where the respondent permits residents to ‘opt out’ of chemical spraying in their area – where the applicant say the imposing a term of requiring the ‘opt out’ to be renewed annually amounts to indirect discrimination – where the applicant says the respondent breached a ‘no spray’ agreement and applied herbicides near her home – whether an exemption applies

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – whether the applicant was treated less favourably by Council due to her condition

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – INDIRECT DISCRIMINATION – whether local government imposed a ‘term’ on the applicant

Anti-Discrimination Act 1991 (Qld) s 6, s 7, s 9, s 10, s 11, s 45, s 46, s 101, s 175, s 204, s 205, Sch

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28

Barker v Wingo 407 U.S. 514 (1972)

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brooks v Queensland Building and Construction Commission [2023] QCAT 25

Hagstrom v Mount Isa Mines & Ors [1998] QADT 13;

Ryan v Qantas Airways Ltd & Ors [1998] QADT 19

Wong v Medical Board of Queensland [2006] QADT 41

APPEARANCES & REPRESENTATION:

 

Applicant:

Mr B Drew, non-legal representative

Respondent:

Mr P Turner, in-house solicitor employed by the respondent

REASONS FOR DECISION

What is the application about?

  1. [1]
    Ms Platte suffers from multi-chemical sensitivity (MCS). She resides on a property within the municipality of the Tablelands Regional Council (Council), who typically maintain vegetation along roadside verges by using herbicides, although they do permit residents to ‘opt out’ of chemical spraying should they wish. Since 2012, Council committed to maintaining a ‘no spray zone’ within an identified vicinity of Ms Platte’s home. Nonetheless, Ms Platte alleges that Council has discriminated against her variously by:
    1. spraying in the ‘no spray zone’ in breach of the agreement;
    2. requiring the ‘no spray agreement’ to be opted into annually; and
    3. by its staff and contractors mocking, taunting, and harassing her. 
  2. [2]
    Upon referral[1] of a complaint by Ms Platte to the Queensland Human Rights Commission (QHRC), Ms Platte seeks orders that:[2]
    1. Council be directed to cease and desist from spraying herbicides or insecticides near her property, in an identified ‘no spray zone’, without exception;
    2. if Council breach the direction not to spray, it be ordered to pay to Ms Platte a penalty of $10,000 per occurrence of breach ‘from now’;
    3. Council to pay Ms Platte “the maximum compensation under the jurisdiction of the Tribunal where possible for ten years of suffering and stress to resolve this matter” for historical breaches – in the hearing Ms Platte suggested a figure of $1,000,000 was appropriate, over the ten-year period of the alleged breaches;
    4. Council make a public apology to Ms Platte to “curb and correct the stigmatisation caused by declaring me crazy” – Ms Platte clarified in the hearing that a newspaper publication exonerating her from wrongdoing would suffice; and
    5. Council workers be screened for integrity and conscientiousness to sure they carry out the ‘no spray’ obligation responsibly.
  3. [3]
    At the hearing Ms Platte also sought an order that the ‘no spray agreement’ be a permanent arrangement and not one that required an annual ‘opt in’ step to be taken.
  4. [4]
    As Ms Platte was non-compliant with tribunal directions to file and serve a statement of contentions properly particularising her complaint, it has proceeded on the basis that Ms Platte’s complaint to the QHRC is to be treated as her statement of contentions.
  5. [5]
    Council denies that it has discriminated against Ms Platte either directly or indirectly, and says in any event that exemptions from the ADA apply to its spraying activities.  Therefore, Council says that it should not be required to pay compensation to Ms Platte and seeks orders dismissing the complaint.
  6. [6]
    Ms Platte makes further allegations that the ‘chemical trespass’ visited upon her by Council amounts to unlawful assault under the Criminal Code Act 1889 (Qld).  Council say, correctly, that any such allegations are beyond the scope of the tribunal’s jurisdiction in this proceeding and I do not address them for those reasons.

The legislative framework

  1. [7]
    The purpose of the Anti-Discrimination Act 1991 (Qld) (ADA) is to “promote quality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity.[3]
  2. [8]
    Relevantly, and among other things, the ADA seeks to achieve this purpose by prohibiting direct and indirect discrimination based upon certain attributes, including impairment, in the provision of goods and services and in the performance of any function as well as in the exercise of power under a State law or for the purposes of a State Government program.[4]
  3. [9]
    “Impairment” relevantly includes physical impairments and medical conditions as well 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.[5]
  4. [10]
    Direct discrimination based on 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.[6]
  5. [11]
    Indirect discrimination based on an attribute happens if a person imposes, or proposes to impose, a term:
    1. with which a person with an attribute does not or is not able to comply; and
    2. with which a higher proportion of people without the attribute comply or are able to comply; and
    3. that is not reasonable.[7]
  6. [12]
    “Term” is defined in the ADA to include a condition, requirement, or practice, whether or not written.[8]
  7. [13]
    Whether a term is reasonable depends on all the relevant circumstances of the case, including:[9]
    1. the consequences of failure to comply with the term; and
    2. the cost of alternative terms; and
    3. the financial circumstances of the person who imposes the term.
  8. [14]
    The onus is upon the respondent accused of indirect discrimination to prove, on the balance of probabilities that a term complained of is reasonable.[10] 
  9. [15]
    Otherwise, it is for the applicant to prove on the balance of probabilities that the respondent contravened the ADA.[11]
  10. [16]
    A person who supplies goods or services must not discriminate against a person by failing to supply those goods or services, or in the terms on which the goods and services are supplied, or in the way in which goods or services are supplies, or by treating the other person unfavourably in any way in connection with the supply of goods or services.[12]
  11. [17]
    A person who administers state laws or programs must not discriminate in the performance of their functions, the exercise of their power or in the carrying out of their responsibility.[13]

Out of time complaints

  1. [18]
    By section 175(1) the QHRC must accept a complaint of discrimination unless it is made more than one year after the alleged contravention.
  2. [19]
    In referring the complaint to the tribunal, the QHRC noted that “the complaint is accepted as a whole, except where a decision under section 138 of the ADA is made not to accept out-of-time allegations. There are no out-of-time allegations in this complaint”.
  3. [20]
    The tribunal is not bound by the QHRC’s decision to accept the complaints out of time. [14]  Separate and distinct from the discretion afforded to the QHRC to accept an out of time complaint, section 175(2) provides that the tribunal may deal with an out of time complaint if it considers, on the balance of fairness between the parties, it would be reasonable to do so.[15]
  4. [21]
    The onus is upon the applicant to convince the tribunal, on the balance of fairness, that the out of time complaint should be heard.[16]
  5. [22]
    Factors relevant to the exercise of the discretion to hear a complaint out of time are:[17]
    1. the length of the delay
    2. any explanation by the applicant for the delay;
    3. any prejudice to the respondent, should the discretion be exercised in the applicant’s favour;
    4. any prejudice to the applicant, should the discretion not be exercised in the applicant’s favour; and
    5. the merits of the complaint.

Exemptions

  1. [23]
    Relevantly, section 106 of the ADA permits the doing of acts that are necessary to comply with, or that are specifically authorised by an existing provision of another Act.

The relevant attribute

Medical evidence

  1. [24]
    Ms Platte tendered the following medical evidence to the tribunal:
    1. Social Security Medical Certificate signed by Dr White, dated 19 August 1997;
    2. Letter by Dr Cavanagh dated 14 February 2012;
    3. Letter by Dr Overland, Psychiatric Registrar, dated 10 July 2006;
    4. Letter by Dr Jacob, dentist, dated 5 December 2006;
    5. Letter by Mr O'Solley, allergist, dated 4 April 2007; and
    6. Letter by Mr Peters, psychologist dated 23 November 2012, updated 9 May 2022.  
  2. [25]
    Together, the various letters establish sufficient evidence of physical and psychological conditions suffered by Ms Platte associated with her MCS, including, among others:
    1. anxiety and depressive symptoms, fear and distress upon becoming aware of proximate chemical spraying, for example, when her neighbour periodically sprays pesticides along their shared property boundary;
    2. significant physical disturbance after exposure to any chemicals;
    3. various skin reactions due to chemical exposure; and
    4. debilitating pain and fatigue following chemical exposure.
  3. [26]
    To protect herself from chemical exposure, Ms Platte is in the habit of wearing a chemical or gas mask when in public.
  4. [27]
    Council do not dispute the attribute of impairment relied upon by Ms Platte under section 7(h) of the ADA.
  5. [28]
    The parties further agree that Ms Platte’s condition is a long-standing one that pre-dates Ms Platte’s relocation to the Tablelands Council area.
  6. [29]
    On that basis, I am satisfied that Ms Platte has established that, at the relevant times, she had an “attribute” for the purpose of establishing her claims under sections 10 and 11 of the ADA.

The factual circumstances in which the discrimination is alleged to have occurred

  1. [30]
    According to Ms Platte’s written statements dated 1 September 2022, 17 May 2022 and 6 October 2021:
    1. Ms Platte moved to Walter Road in 1993.[18] At the time she says Council were regularly spraying both sides of Walter Road with herbicides, after which, she says, she became “cripplingly ill”.[19]
    2. From 2005, Ms Platte says Council expressed a willingness not to spray the area around her home but that she found this agreement was “ineffective and vague”.
    3. Following a meeting between Ms Platte and Mr Adil, General Manager Infrastructure and Maintenance Services for Council on 16 September 2012, Mr Adil instructed Council staff to use best endeavours to refrain from applying herbicides on Walter Rd, between the Walter Road-Garbutt Lane intersection and Stanley Creek. Roadside verges in that strip were to be managed by mechanical means only and, where it was not possible to avoid spraying herbicides, Council were to give adequate notice to Ms Platte so that she might remove herself from any exposure. 
    4. Council appeared willing to enter into an agreement with Ms Platte on those terms and a draft was prepared (the ‘no spray agreement’).
    5. Ms Platte in reply objected to the use of herbicides in the area “under any circumstances”.  She explained that herbicide formulations can remain in the soil and outgas for prolonged periods “thereby affecting the chemically injured” and said further that she was not able to vacate her property for any periods of time such that notice of spraying would not suit.   
    6. Accordingly, the ‘no spray agreement’ was never signed. Nonetheless, Council says it has adhered to its terms by using best endeavours to treat the roadside verges on Walter Road between its intersection with Garbutt Lane and Stanley Creek by mechanical rather than chemical means.
  2. [31]
    Ms Platte says the ‘agreement’ has been breached on the following occasions (which Council deny):
    1. ‘Not long after the agreement was established’ (2012) Council’s entire fleet of spray trucks ‘paraded’ past her house one afternoon at around 4pm and paraded back past the home approximately fifteen minutes later (the first breach);
    2. In late 2014 or early 2015, Mr Turner of Council hand sprayed from a spray pack all guard posts in the ‘no spray zone’ (the second breach);
    3. The gully floodway at the bottom of a hill two-hundred and fifty metres from Ms Platte’s house was sprayed in March 2014, in response to which Ms Platte asked Council to excavate the poisoned soil, which she says Council attempted to do but ‘ineffectively’ (the third breach); and
    4. In September 2020 Council sprayed the entire right roadside edge down to Garbutt Lane.  This triggered the HRC complaint (the fourth breach).  
  3. [32]
    With respect to the fourth breach (the 2020 spraying at Garbutt Lane), Ms Platte conceded on cross-examination that she did not see Council applying chemicals at the relevant time and that she doesn’t see the road from her home.  She says that she got sick around the time, and that she found yellow/dead grass in the area that she says is from chemical spraying. No photographs were tendered in evidence of this.
  4. [33]
    Ms Platte says she has seen no one else spray in the area and that she has seen the spray trucks in the area.
  5. [34]
    Additionally, Ms Platte’s complaint to the QHRC made 14 October 2020 details the following:

I have been deliberately mocked and victimised by numerous council workers…who repeatedly broke my written agreement I established with council years ago not to spray roadsides in a designated area on [Walter] Road where I live.  The last time they sprayed was this September and again, the poisons outgassing and polluting my air on my property made me very ill, disabling me from getting about life in a normal way.

All these council workers here know about my situation and the office has directions on paper stating clearly the boundaries of the no spray area.  Repeatedly council workers have deliberately gone against these instructions and sprayed anyway, mocking me, crash testing me… I can only conclude there is an attempt to cull me with this practice as I’m seen as an inconvenience.  A deliberate attempt on my life.  A few years ago, a man named Max Turner sprayed right in front of my property, knowing the devastating consequences this would have on me. 

  1. [35]
    On 6 October 2021 Ms Platte wrote to Council stating as follows:

It is an absolute requirement for me to have this irreducible agreement with TRC to not spray in the area [between S Creek and G-L] without any breaches or violations by any workers…

I also require TRC to compensate me for repeated exposure by breach of old agreement and much debilitating suffering/torture/chemical intrusion. My suffering has been severe and prolonged, and no help has been available!

Ms Platte’s witnesses

  1. [36]
    Pamela Valenti, a friend of Ms Platte provided a statement dated 6 July 2022. It contained no evidence that was within her own knowledge, and she did not attend the hearing to be cross-examined.  
  2. [37]
    Kim Lenehan sent an email in support of Ms Platte dated 13 May 2022. He says that he was working on her home “at the time she had issues with the local Council over spraying insecticide near her house” when he observed Council spray trucks stop in front of Ms Platte’s home.  He says he observed Ms Platt’s immediate, debilitating reaction to this and thought it was a “a low thing to do to a woman with health issues”. Mr Lenehan did not attend the hearing to be cross-examined. Ms Platte says this attendance occurred “not long after the agreement was established”, which I take to mean occurred in 2012, the date Ms Platte alleges the first breach occurred.
  3. [38]
    Paul Harris, once a resident of Garbutt Lane signed a statement dated 14 May 2022[20] in which he says that he was driving along Walter Road in 2016 when he saw a Council utility spraying Roundup “or something similar as it had a distinctive odour” along Walter Road between Stanley Creek and Stacey Creek. He said that again, in late 2017 or early 2018, he could smell Roundup as he passed Ms Platte’s house. 
  4. [39]
    On cross-examination at the hearing, Mr Harris said that the last time he can recall observing spraying the area was during the COVID-19 lockdowns, although he could not be sure that the spraying vehicles were not outside the ‘no-spray’ areas.
  5. [40]
    Odell Platte, Ms Platte’s son, provided a statement affirmed 12 May 2022[21] and gave evidence at the hearing. Mr Platte resided in his mother’s home until 2019. Whilst Mr Platte speaks of Ms Platte’s illness and of “mocking, bullying, slander, ridicule, aggression and name calling” at school and in the community on account of Ms Platte’s habit of wherever a chemical mask in public, he gave evidence at the hearing that he has not seen Council spray in the no-spray zone, nor has he witnessed Council staff or contractors engaging in the mocking/taunting behaviours that he says his family experienced in the general community. Accordingly, his evidence is of little relevance in the proceeding, other than to the question of impairment, which is conceded.

Council’s response evidence

  1. [41]
    Gary Rinehart is the Chief Executive Officer of the Council, employed as such since 2021. He has previously served as the CEO of other local governments. He gave evidence that:[22]
    1. Council is responsible for the management of noxious weeds or plants growing on any road or land until its control variously pursuant to the Local Government Act 1993 (Qld), Local Government Act 2009 (Qld), Rural Lands Protection Act 1985 (Qld), Land Protection (Pest & Stock Route Management) Act 2002 and the Biosecurity Act 2014 (Qld).
    2. For example, under the BA, Council has a statutory obligation to manage ‘invasive biosecurity matters’ within their local government area in accordance with the BA.
    3. Additionally, Council has an obligation to maintain roadside verges free of vegetation that impedes vision to reduce motor hazards.
    4. Many residents opt out of chemical spraying for various reasons unrelated to impairments, including, for example, organic food growers and those with environmental protection preferences.
    5. With respect to Ms Platte, since 2012, Council have considered themselves a party to a ‘no spray’ agreement whereby Council will use its best endeavours to refrain from using chemical spray along roadside verges in a designated ‘no spray’ zone on Walter Road.
    6. The ‘no spray zone’ is depicted in Attachment 3 to his statement.
    7. The area the subject of the 17 September 2020 and 2 October 2020 complaints is depicted in Attachment 6 to his statement and is a considerable distance from the ‘no spray’ zone.
    8. Council is willing to honour the existing agreement and to extend the ‘no spray’ area per Attachment 7 of his statement by an additional 5.4km, beyond Stanley Creek intersection to where Walter Road meets TF Road.  However, should other residents located in the extended no spray zone contact Council to request spraying in front of their residence, Council will comply after giving Ms Platte advance notice that spraying will occur.
  2. [42]
    Ken Goleby is a Senior Land Protection Officer in the employ of Council, commencing the role in 2017.
  3. [43]
    Mr Goleby gave evidence that:[23]
    1. Giant Rats Tall Grass and Candyleaf are ‘invasive biosecurity matters’ being category 3 restricted matters mentioned in schedule 2, part 2 of the BA. category 3 restricted matter under schedule 2, part 2 of the BA.
    2. Giant Rats Tail Grass and Candyleaf infest Walter Road.
    3. Invasive plants grow faster in warmer and wetter months of the year and during these periods it is difficult for Council to keep up with the growth and spread of weeds
    4. Herbicide control measures are more effective and more cost efficient than mechanical means for controlling invasive weeds.
    5. Other local governments, landholders, and the state government use herbicides to chemically control weeds.
    6. Giant Rats Tail Grass and Candyleaf are invasive plants of particular concern to the Council. One method by which they spread is “on vehicles and machinery (especially slashers and earthmoving equipment) as well as in hay and untested pasture seed”.  This means that the use of mechanical control contributes to the spread of the invasive plants in direct conflict with Council’s obligations under the BA.
  4. [44]
    At the hearing Mr Goleby said:
    1. His team comprises four people, responsible for land protection from weeds, animals and fire.
    2. Three Council vehicles undertake spraying and an additional vehicle undertakes fire prevention work.
    3. In accordance with BA requirements, staff note the date and time of spraying, what weeds were sprayed, and the amount of chemical applied and Council records on point are accurate.
    4. All staff in the team are aware of the ‘no spray zone’ with respect to Ms Platte, as well as generally with respect to other residents and the register is checked daily.
    5. According to the records, Council was last in the Walter Road area on 8 June 2020 where they conducted spraying outside the no spray zone.
  5. [45]
    Barbara Curcio is a Legal and Governance Support Officer employed by the Council.  She gave evidence[24] that, in that role, she extracted from the Council’s Customer Record Management system all complaint and service requests made by Ms Platte between 2014 and 2022 and attached it as ‘Annexure 1’ to her statement. Ms Curcio said was familiar with the system because she previously held the position of Customer Relations Officer. She described it, essentially as a ‘manifest of property and rating’ records.
  6. [46]
    Of note, according to the records:
    1. Annually, around the beginning of October, Ms Platte writes to Council reminding them of their obligations under the ‘no spray’ agreement;
    2. Quarterly, when rates notices are disbursed, Ms Platte contacts to Council to object to the requirement to pay rates;
    3. With respect to the issue of chemical spraying in the region:
      1. (i)
        On 25 March 2014 Ms Platte complained about spraying outside her property and requesting a backhoe attend to remove poisoned soil;
      2. (ii)
        On 14 November 2016 Ms Platte complained about a nearby landowner spraying their own property;
      3. (iii)
        On 23 December 2016 Ms Platte raised concerns about the nearby landowner and made threats that included, among others, “taking matters into her own hands”.
      4. (iv)
        On 8 February 2017 and 28 March 2017 Ms Platte contacted Council to complain about the imposition of rates but thanked Council for their understanding and cooperation for not using chemicals in her area.
      5. (v)
        On 17 September 2020 Ms Platte contacted Council about spraying she had observed in Walter Road which she said “occurred near the [redacted] Creek Road, [redacted] Crossing” area.
      6. (vi)
        On 2 October 2020 the complaint was repeated, however, Mr Goleby had determined that the area identified by Ms Platte was outside the ‘no spray’ zone. On cross-examination Ms Platte steadfastly denies ever mentioning spraying in that area and says her complaint related to the ‘no spray zone’.
      7. (vii)
        On 23 March 2021 Ms Platte wrote to Council to “thank and knowledge TRC for important cooperation on refraining from using all chemical, poison, herbicides between Stanley Creek and the Garbutt Lane/Walter Road junction”. On cross-examination Ms Platte said Council didn’t breach the agreement every year and she gave credit where it was due. 
  7. [47]
    On cross-examination Ms Curcio was directed by Mr Drew to a record extracted as ‘Attachment 4” to Mr Rinehart’s statement. Although Ms Curcio was responsible for taking a screen shot of that record, she said that she was not the author of the note, which appears to have been entered in 2012 and updated in 2021. The note is of no particular relevance to the proceeding.
  8. [48]
    Shane Savich is currently employed by Council in the position of Manager, Strategic Assets, but from 2016 to 2021 held the position of Coordinator Maintenance that included delivery of roadside maintenance activities on Council’s sealed and unsealed road network. He gave evidence that:[25]
    1. All staff who carry out vegetation management are Agricultural Chemical Distribution Control accredited and have experience in handling herbicides in accordance with Council’s Work Health and Safety instructions and activity procedure.
    2. Herbicide spraying takes place around roadside furniture and structures for all vegetation not identified in the ‘cease vegetation maintenance register’ that is situated within one meter of all signs, guide markets and guardrails (other than those near waterways).
    3. The Southern Road Maintenance Team (SRMT) (responsible for vegetation management in the area surrounding Ms Platte’s home) do not spray in the ‘no spray zone’ identified in Ms Platte’s agreement with Council.
    4. All members of the SRMT are aware of Ms Platte’s ‘no spray agreement’ with Council and the map attached thereto.
    5. All members of the SRMT the team are aware of the ‘cease vegetation maintenance register as new requests are added and documented through the ‘TechOne Customer management System” and each update is emailed out to the relevant departments’ Supervisor and Foreperson for dissemination. His statement attaches the ‘cease vegetation maintenance register’ as at 1 June 2022 marked “S 1”.
    6. The Local Roads – Backlog Report is extracted from the asset management system ‘CONFIRM’. It records completion of works with GPO Locations to allow for disaster funding allocations. When a job is complete, the Council office takes a photograph which is GPS stamped and stored against the job in the system.  His statement attaches the Local Roads – Backlog Report for 3 May 2017 to 7 August 2020 marked “S 2”.
  9. [49]
    At the hearing, Mr Savich said:
    1. There are around ten members of the team responsible for road maintenance during the period.
    2. The ‘no spray zone’ was known to the team as notices of it were posted at the depot and it was the subject of “Toolbox talks”.
    3. There are a lot of no spray zones throughout the district.
    4. The CONFIRM system allowed the tracking and planning of work and all work was recorded accurately in it.
    5. Walter Road is approximately nineteen kilometres in length.  According to the Backlog Report, spraying occurred in Garbutt Lane, outside the ‘no spray zone’ on 8 June 2020, approximately six kilometres from Ms Platte’s home.

Discussion and findings

Should out of time claims be considered?

  1. [50]
    Ms Platte’s complaint was made to the QHRC on 10 October 2020.  
  2. [51]
    As mentioned, section 175(2) provides that the tribunal may deal with an out of time complaint if it considers, on the balance of fairness between the parties, it would be reasonable to do so with the onus upon Ms Platte, as the applicant, to convince the tribunal, on the balance of fairness, that the out of time complaint/s should be heard.[26]
  3. [52]
    Of Ms Platte’s complaints:
    1. The first breach in or around September 2012 occurred eight years and two months prior to the complaint;
    2. The second breach in ‘late 2014 or early 2015’ occurred around six years prior to the complaint;
    3. The third breach in March 2014 occurred six and a half years prior to the complaint; and
    4. The fourth breach is within time, and complaints of indirect discrimination (with respect to the ‘opt out’ clause and the ‘no spray agreement’) are ongoing and are, for the most part, within time.
  4. [53]
    Factors relevant to the exercise of the discretion to hear a complaint (namely with respect to the first, second breaches) out of time are:

Length of the delay

  1. [54]
    Ms Platte has delayed from between two and up to eight years in making her complaints regarding the first, second and third breaches.
  2. [55]
    In the context of a 12-month time limit, a delay of seven and nine months respectively have been held by the Queensland Anti-Discrimination Tribunal to be ‘significant’.[27]
  3. [56]
    The lengthy delay does not weigh in favour of an exercise of discretion to accept the complaints out of time.

Explanation by the applicant for the delay

  1. [57]
    Ms Platte has not explained the delay in bringing her complaint for the out of time allegations, other than to say that it was the 2020 spraying that triggered her decision to escalate the matter to the QHRC.
  2. [58]
    Further, there is no evidence that Ms Platte was incapable of or impeded by her impairment from making a complaint. To the contrary, Ms Platte is a prolific communicator with Council. She objects to the payment of rates and does so quarterly by sending her payment in with a written letter voicing her obligation and statement that she pays under duress. Ms Platte has frequently communicated to Council about other matters including her neighbour’s activities and barking dogs. She has thanked Council for refraining from spraying when she felt credit was due. In short, her ability to communicate with authorities is not impaired by her MCS or by any associated emotional or psychological complications. 
  3. [59]
    This factor does not weigh in favour of an exercise of discretion to extend time.

Prejudice to the respondent, should the discretion be exercised in the applicant’s favour

  1. [60]
    As I observed in Brooks v Queensland Building and Construction Commission[28], delay is a natural enemy of evidence and as McHugh J observed in Brisbane South Regional Health Authority v Taylor,[29] “where there is delay the whole quality of justice deteriorates”, citing a United States Supreme Court decision in Barker v Wingo,[30] pointed out “what is been forgotten can rarely be shown”.
  2. [61]
    Over time evidence may be tampered with, lost, destroyed, or archived as part of normal business operations or personal record-keeping. Similarly, witness memories may weaken, details may become hazy (if in fact witnesses can even be identified and located). 
  3. [62]
    Council hold electronic records relevant to the complaints from 2017 and have produced what documents they can that predate their current record keeping system. These records appear to be sufficiently detailed and reliable to have enabled them to respond to the complaint.
  4. [63]
    On balance, Council is unlikely to be significantly prejudiced should the discretion be exercised in Ms Platte’s favour, save for with respect to the first breach for which no records appear to be held.

Prejudice to the applicant, should the discretion not be exercised in the applicant’s favour

  1. [64]
    The prejudice to Ms Platte of refusing to exercise the discretion to extend time is obvious: her complaints regarding the first, second and third breaches will be dismissed. For the reasons given below in addressing the merits of these complaints, I am not satisfied that this is a factor to which significant weight should be given. 

Merits of the complaint

  1. [65]
    The complaints predating 2020 have little merit largely because evidence is scant and unreliable and, whilst the rules of evidence are relaxed in tribunal proceedings,[31] the tribunal cannot choose between several equally likely possibilities where compelling possibilities can only be resolved by conjecture.[32]  
  2. [66]
    Specifically:
    1. With respect to the first breach there is no reliable evidence that ‘Council’s entire fleet of spray trucks ‘paraded’ past Ms Platte’s house one afternoon in 2012 at around 4pm and paraded back past the home approximately fifteen minutes later’. Even if there were, nothing prevents Council using that road as a thoroughfare, in fact it is necessary to access areas outside of the ‘no spray zone’ on that road. 
    2. With respect to the second breach, there is no evidence that Mr Turner hand-sprayed chemical in the ‘no spray zone’ in ‘late 2014 or early 2015’.  Ms Platte’s evidence of this is unconvincing and her witnesses did not see it. Mr Harris is the only one of Ms Platte’s witnesses who had seen any act of spraying at all, but he could not say whether such spraying was outside the ‘no spray zone’. Council’s records do not establish that any complaint was made by Ms Platte at the relevant time, despite her habit of being in communication if there was a complaint to be made (or indeed a compliment to be given).
    3. With respect to the third breach, that the gully floodway at the bottom of a hill two-hundred and fifty metres from Ms Platte’s house was sprayed in March 2014, again Ms Platte’s evidence of this is unconvincing and is not supported by any of her witnesses. Although she did make a complaint at the relevant time and says Council acted to remedy the error, the remedy was not effective.  Council have a record of the complaint but no record of the spraying or the remedy. 
  3. [67]
    This factor does not weigh in favour of permitting the out of time complaints regarding the first, second and third breaches.
  4. [68]
    On balance, I am not satisfied that the tribunal should hear Ms Platte’s complaints regarding the first, second and third breaches out of time and I decline to do so for those reasons.

Has Council directly discriminated against Ms Platte?

  1. [69]
    There is no evidence that Council have treated Ms Platte less favourably than another person without the attribute of MCS.[33]
  2. [70]
    Ms Platte is given the same opportunity as other residents to opt out of chemical spraying.
  3. [71]
    Further, with respect to the fourth breach, Ms Platte’s evidence that Council have sprayed in the agreed ‘no spray zone’ is unconvincing. Neither Ms Platte nor any of her witnesses saw such spraying in the ‘no spray zone’.  Ms Platte says she saw dead vegetation within the no spray zone but produced no photographic evidence of this. Against the extensive evidence of Council’s records from both the traffic management and vegetation management teams that such spraying did not occur, it would be impossible to find that such conduct had in fact occurred to the requisite degree of satisfaction.
  4. [72]
    For those reasons, I am not satisfied that Council have directly discriminated against Ms Platte.

Has Council indirectly discriminated against Ms Platte?

A. Is Council imposing a term?

  1. [73]
    Ms Platte says that by using chemicals, Council is discriminating against her as ‘trespassing poison’ is constantly harming her as she is unable to comply with chemical legislation application.[34] She says Council imposes a chemical legislation practice that she is unable to comply with.
  2. [74]
    I find that Council have not imposed a term upon Ms Platte whereby she is compelled to accept or to permit the spraying of chemicals in her area. To the contrary, Council have agreed that they will not spray. 
  3. [75]
    I find that requiring a resident to ‘opt out’ of spraying on an annual basis is a term that Council impose upon residents who wish not to have their property and surrounds sprayed with herbicides. Similarly, residents can opt out of mechanical means of vegetation management.
  4. [76]
    The ‘opt out’ term is imposed upon all residents who wish ‘opt out’ of receiving vegetation and road management services by chemical or mechanical means, which requires them to communicate with Council annually to make their election. 

B. Could persons with an attribute comply with the term?

  1. [77]
    There is no evidence that that persons with MCS may be unable to comply, or to comfortably, or safely comply with a term requiring them to ‘opt out’ of a no spray agreement on an annual basis.
  2. [78]
    I find that persons without MCS are no more able to comply with an ‘opt out’ a term than persons who are afflicted by MCS. Opting out simply requires a resident to express their preference by communicating it to Council on an annual basis. 
  3. [79]
    As mentioned, Ms Platte is a prolific communicator with Council. She frequently communicates with Council about rates, barking dogs, and other matters. There is no evidence that her ability to communicate is impaired by her MCS or by any of its associated psychological or emotional conditions.
  4. [80]
    Put simply, Ms Platte has not established that persons with the attribute of MCS are not able to comply with the term.
  5. [81]
    For that reason, the ‘opt out’ term imposed is not indirectly discriminatory.

C. Was the term unreasonable?

  1. [82]
    Although it is unnecessary, for the sake of completeness, I address the issue of reasonableness.
  2. [83]
    Ms Platte says Council have not been reasonable by failing to deal with breaches of the ‘no spray agreement’, by failing to remove poisons from the no spray area, and by failing to employ “conscientious, responsible staff that can follow simply orders from a clear map of the no-poison zone”.[35]  These arguments are not directly on point with respect to the ‘opt out’ term.
  3. [84]
    Council say that requiring residents to ‘opt out’ of chemical and/or mechanical vegetation and road management services on an annual basis ensures that Council records are current, which is important due to staff changes over time, but also for the allocation of resources and budgeting road safety and vegetation management programs on an annual basis.
  4. [85]
    On balance, I find that the imposition of the term – the requirement to opt out of chemical spraying on an annual basis - is reasonable in all the circumstances.
  5. [86]
    For those reasons, Council has not indirectly discriminated against Ms Platte.

Do exemptions apply?

  1. [87]
    Council is responsible for the management of noxious weeds or plants growing on any road or land until its control variously pursuant to the Local Government Act 1993 (Qld), Local Government Act 2009 (Qld), Rural Lands Protection Act 1985 (Qld), Land Protection (Pest & Stock Route Management) Act 2002 and the Biosecurity Act 2014 (Qld).
  2. [88]
    This legislation post-dates the ADA and is, therefore, not an ‘existing provision’ to which section 106(1)(a) and (2) refers, which means that any inconsistency between the ADA and the legislation providing for the management of vegetation relied upon by Council can only be resolved by statutory interpretation.
  3. [89]
    As it is not necessary that I decide the matter on the issue of exemption, and there are no submissions on the complex issue of statutory interpretation that would assist the tribunal, I decline to make any finding on this issue.

Decision

  1. [90]
    On the basis that Ms Platte has not established that Council have directly or indirectly discriminated against her, the application referring the complaint is dismissed.

Footnotes

[1]  6 September 2021.

[2]  Statement filed 21 November 2022.

[3]  ADA, s 6.

[4]  ADA, ss 7(h), 9, 45 and 101.

[5]  ADA, Schedule – Dictionary.

[6]  ADA, s 10(1).

[7]  ADA, s 11(1).

[8]  ADA, Schedule – Dictionary.

[9]  ADA, s 11(2).

[10]  ADA, s 205.

[11]  ADA, s 204.

[12]  ADA, s 46(1).

[13]  ADA, s 101.

[14]  Ibid at [20].

[15] Wong v Medical Board of Queensland [2006] QADT 41 per Member Boddice CS (as His Honour then was) at [19].

[16]  Ibid at [21]-[22].

[17] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 per McHugh J at 555.

[18]  Street names and other locations have been de-identified for reasons of privacy.

[19]  Statement of Arne Platte filed 17 May 2022 (Exhibit 1).

[20]  Exhibit 6.

[21]  Exhibit 5.

[22]  Statement of Gary Rinehart dated 5 August 2022, corrected by a further statement dated 29 August 2022 (Exhibits 8 and 9 respectively).

[23]  Statement of Ken Goleby dated 3 August 2022 (Exhibit 7).

[24]  Statement of Barbara Curcio dated 5 August 2022 (Exhibit 10).

[25]  Statement of Shane Savich dated 3 August 2022 (Exhibit 11).

[26] Wong v Medical Board of Queensland [2006] QADT 41 per Member Boddice CS (as His Honour then was) at [21]-[22].

[27] Hagstrom v Mount Isa Mines & Ors [1998] QADT 13; Ryan v Qantas Airways Ltd & Ors [1998] QADT 19.

[28]  [2023] QCAT 25 at [74]-[75].

[29]  (1986) 186 CLR 541 at page 551.

[30]  407 U.S. 514 (1972).

[31] Queensland Civil and Administrative Tribunal Act 2009 (Qld), section 28.

[32] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5.

[33]  ADA, s 10(1).

[34]  Submissions filed 2 September 2022.

[35]  Submissions filed 2 September 2022.

Close

Editorial Notes

  • Published Case Name:

    Platte v Tablelands Regional Council

  • Shortened Case Name:

    Platte v Tablelands Regional Council

  • MNC:

    [2024] QCAT 1

  • Court:

    QCAT

  • Judge(s):

    Member Lember

  • Date:

    03 Jan 2024

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
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
2 citations
Jump To
Cite 1 - (1951) 217 ALR 1
Cite 2 - (1951) 217 ALR 1
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
2 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541
1 citation
Jump To
Cite 1 - (1986) 186 CLR 541
Brooks v Queensland Building and Construction Commission [2023] QCAT 25
2 citations
Jump To
Cite 1 - [2023] QCAT 25
Cite 2 - [2023] QCAT 25
Ryan v Qantas Airways Ltd [1998] QADT 19
2 citations
Jump To
Cite 1 - [1998] QADT 19
Cite 2 - [1998] QADT 19
Wong v Medical Board of Queensland & Ors [2006] QADT 41
3 citations
Jump To
Cite 1 - [2006] QADT 41
Cite 2 - [2006] QADT 41
Cite 3 - [2006] QADT 41

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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