Smythe v State of Queensland[2024] QCAT 33

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is the application about?

1. [1]
   Mr Smythe suffers from an intellectual impairment, has learning and literacy difficulties and several physical health conditions including angina, diabetes, and vision impairment. As such, among other things, he needs to be careful about what he eats and when, he has difficulty, tires easily and needs to rest frequently.^[1]
2. [2]
   Mr Smythe contends that he was discriminated against based on his impairments on 16 December 2019, when he attended the Beenleigh Magistrates Court, remained there for several hours but left before his hearing at which an order was made against him in his absence.
3. [3]
   Mr Smythe says the respondent (through the Department of Justice and Attorney-General) indirectly discriminated against him by not providing him with support to access duty lawyer services or the Court Network volunteers on the day of his hearing.
4. [4]
   Upon referral^[2] of a complaint made by Mr Smythe to the Queensland Human Rights Commission (QHRC) on 8 November 2021, Mr Smythe seeks orders from the Tribunal that:^[3]

   1. the respondent pays to Mr Smythe such compensation as the tribunal considers appropriate for stress, hurt, humiliation and emotional distress caused to him; and
   2. the respondent implements policies and/or programs for the provision of services and facilities to eliminate unlawful discrimination in circumstances such as those to which these proceedings relate.

The legislative framework

5. [5]
   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.^[4]
6. [6]
   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.^[5]
7. [7]
   “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.^[6]
8. [8]
   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]
9. [9]
   “Term” is defined in the ADA to include a condition, requirement, or practice, whether or not written.^[8]
10. [10]
    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.
11. [11]
    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]  Otherwise, it is for the applicant to prove on the balance of probabilities that the respondent contravened the ADA.^[11]
12. [12]
    A person who supplies goods or services, or who administers state laws and programs,  must not discriminate against a person by failing to supply those goods or services/laws or programs, or in the terms on which the goods and services or laws or programs are supplied, or in the way in which goods or services, laws or programs are supplied, or by treating the other person unfavourably in any way in connection with the supply of goods or services.^[12]
13. [13]
    By section 175(1) the tribunal must accept a complaint of discrimination unless it is made more than one year after the alleged contravention. Separately, 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.
14. [14]
    The tribunal’s discretion is separate and independent from the discretion afforded to the QHRC by section 138 of the ADA^[13] and the tribunal is not bound by the QHRC’s decision to accept the complaint out of time.^[14]
15. [15]
    With the QHRC having accepted Mr Smythe’s complaint out of time and having referred it to the tribunal, the onus is upon Mr Smythe to convince the tribunal, on the balance of fairness, that the out of time complaint should be heard.^[15]
16. [16]
    Factors relevant to the exercise of the discretion to hear a complaint out of time are:

    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. an prejudice to the applicant, should the discretion not be exercised in the applicant’s favour; and
    5. the merits of the complaint.

The events of 16 December 2019

17. [17]
    Mr Smythe recalls the events the subject of his complaint as follows:^[16]

    1. On 12 December 2019, a week following surgery to amputate his toe, Mr Smythe was questioned by police at his home.
    2. On 14 December 2019 Mr Smythe attended the police station and was given an application for a protection order in which he was named as the respondent. Later that evening, he was formally served with the application documents at home.
    3. Although Mr Smythe deposes to being in pain from his surgery at the time, and to being unable to read the documents, he does not say that he informed the attending police of this at any time. Rather, he says he informed them that he had a copy of the application and planned to fight it.
    4. On 16 December 2019, Mr Smythe attended the Beenleigh Courthouse with his friend, Ms Brown at approximately 8.30am. He says he was still in pain from his surgery and was wearing a special black shoe (commonly referred to as a ‘moon boot’). He was also using a ‘wheely walker’ to assist him to walk.
    5. Mr Smythe says that he and Ms Brown passed through security.
    6. He doesn’t recall if there were any signs up but, as he didn’t know where to go for his hearing, he asked security and was directed to go upstairs.
    7. Mr Smythe and Ms Brown rode the lift to the upper level and observed a table with some people sitting down but he does not know who they were.
    8. Ms Brown went and spoke to the people and confirmed that Mr Smythe’s name was on the list for that day.
    9. Mr Smythe says he waited “a long time outside the courtroom” but became uncomfortable sitting for so long. As he had not expected to wait, he did not bring food, water, or money with him to buy snacks (and in any event, did not have much money in his bank account).
    10. After waiting a few hours, Mr Smythe says he became dehydrated and unwell. Ms Brown asked security for water, which they provided to Mr Smythe, and Ms Brown purchased Mr Smythe a soft drink.
    11. On two occasions Ms Brown asked at the counter how long Mr Smythe would have to wait because he wasn’t feeling well. She was told that it ‘would still be quite a while’. By this time, the ‘people at the table’ had packed up and were no longer there.
    12. Mr Smythe does not recall if there were signs on the walls but in any event says he doesn’t read well so they would not have assisted him.
    13. He says no one told him what a duty lawyer was or asked him if he wanted to speak with one.
    14. At some point, a lady who was walking around the waiting area spoke to him and gave him a Legal Aid pamphlet, and asked what he wanted to do, to which Mr Smythe replied that he wished to fight the application. She wrote information on the pamphlet and instructions on what he should ask for in court. She did not read the information to Mr Smythe (although Mr Smythe does not say that he informed the lady that he could not read well) and did not ask how he was feeling or how his foot was.
    15. Mr Smythe says he continued to wait until ‘around lunchtime’ at which time he was very unwell and needed to go home.
    16. Ms Brown informed the people at the counter that Mr Smythe could not stay longer because he was unwell, and they both left. Mr Smythe says that he did not know that:
        1. if he left the courthouse an order could be made in his absence;
        2. he could ask to appear by telephone;
        3. there would be a lunchbreak when he could have left the courthouse for food; or
        4. that he could take a break and return to the courthouse.

The length of the delay

18. [18]
    As the conduct constituting the complaint occurred on 16 December 2019 and the complaint was not made until 8 November 2021, Mr Smythe is almost eleven months out of time in making his complaint. 
19. [19]
    Mr Smythe submits that this delay “is not particularly excessive”.^[17]
20. [20]
    However, as the respondent submits, in the context of a 12-month time limit, delays of seven and nine months respectively have been held by the Queensland Anti-Discrimination Tribunal to be ‘significant’.^[18]
21. [21]
    I similarly find that Mr Smythe’s delay is significant: it is nearly double the permitted time to make a complaint.
22. [22]
    This factor weighs against an exercise of discretion in Mr Smythe’s favour. 

Explanation for the delay

23. [23]
    Mr Smythe says that between 2019 and 2021:

    1. Following the making of the protection order naming him as a respondent, Mr Smythe decided to move away, which he did over the 2019-2020 Christmas period to his aunt’s house, where he remained until 2022.
    2. For a few months in early 2020 Mr Smythe was without transport and his aunt’s house was remotely located.
    3. Around the same time, Mr Smythe bought a new mobile phone and was able to set up email on it around the end of 2020 after a friend showed him how to use the technology.
    4. During 2020 Mr Smythe focused on getting medical attention for his health issues. 
    5. In 2020 and 2021 Mr Smythe suffered from carer’s stress and depression and at the same time was supporting his daughter to advocate for her rights and independence from the Public Guardian and assisted her to fight a large hospital debt which ‘took up a lot of time and energy’.
    6. With respect to the protection order, Mr Smythe says he attempted to get legal advice during 2020 and 2021. He received some advice by telephone and appeared in the Toowoomba Courthouse ‘sometime in 2020’ to have the order varied, which eventually happened on another attendance on 23 August 2020.  Mr Smythe says his experience on 23 August 2020 highlighted for him the difference in his experience at the Beenleigh Courthouse on 16 December 2019.  In Toowoomba he felt well supported and well informed.
    7. On 18 August 2021, Mr Smythe again appeared in Court and varied the protection order. Eventually, the order was ended, at which point Mr Smythe sought advice on his experience at the Beenleigh Courthouse on 16 December 2019.
    8. In October 2021 Mr Smythe received a grant of Legal Aid and his complaint was lodged using that assistance on 8 November 2021. 
24. [24]
    Mr Smythe’s submissions to the QHRC with respect to his delay in make the complaint are set out in an email by Ms Smeed dated 29 August 2022 wherein she submits that:

    1. Mr Smythe didn't know about his rights to bring a discrimination complaint through the QHRC until he obtained legal advice on 14 September 2021.
    2. Mr Smythe had attempted to contact Legal Aid on multiple occasions but, because it was about a domestic violence matter, he wasn't eligible for Legal Aid family law assistance, did not know that he had rights under anti-discrimination law and that advice about those options would be separately available through Legal Aid’s civil justice services.
    3. Mr Smythe accessed duty lawyer services for assistance to seek variations to the domestic violence order, but they did not provide him with any advice about anti-discrimination rights.
    4. It wasn't until Mr Smythe’s disability advocate suggested he contact the Caxton Legal Centre for legal advice about civil remedies that may be available to him now that the domestic violence order had been varied, that he then sought legal advice which was ultimately given to him by Legal Aid.
    5. Due to Mr Smythe’s remote location, difficulties accessing transport, difficulty accessing face to face legal services, a lack of understanding of the services that were available, having no computer at home and only limited skills in using technology via local community organisations, low literacy skills that make it difficult for him to read and fill in forms, Mr Smythe was rendered incapable of making the QHRC complaint at an earlier time.
25. [25]
    Despite these impediments, on Mr Smythe’s own evidence, during the relevant time he was able to apply his efforts to:

    1. supporting his daughter to advocate for her rights and independence from the Public Guardian;
    2. assisting his daughter to dispute a large hospital debt; and
    3. applying to vary the domestic violence order.
26. [26]
    This does not suggest that Mr Smythe was incapable of or hindered from making the QHRC complaint earlier, but, rather, that he prioritised other matters over the making of the complaint. In accepting the complaint out of time, the QHRC found that the prioritisation of these other matters was reasonable in the circumstances, as Mr Smythe found it stressful managing several legal matters at once.  However, their ‘good cause’ test under section 138(2) of the ADA is quite different to the test to be applied by the tribunal under section 175(2). 
27. [27]
    The QHRC in assessing the out of time complaint also found that Mr Smythe’s lack of knowledge of the right to complain to be persuasive, given that he acted quickly once he was given that advice. However, in reply submissions filed in this proceeding, the respondent produced a file note from the Caxton Legal Centre of Mr Smythe’s attendance upon it on 14 September 2021, in which the following note has been made:

2018 State Election - Hetty Johnston, he was helping at the polling booth. Wanted to use the toilet and was arrested. Complained to the CCC. Also made a discrimination complaint against the Electoral Commission boss. It was settled at mediation, change to access to toilets at polling booths.

28. [28]
    The evidence before this tribunal is that:

    1. Prior and relatively recent to the 16 December 2019 incident, Mr Smythe had experience with exercising anti-discrimination rights by the making of a complaint that was resolved in mediation. Departing from the QHRC, I do not accept the submission that Mr Smythe did not know that he could make a similar complaint against the respondent until he was advised so on 14 September 2021.
    2. At least by August 2020, when Mr Smythe was still several months within time to make a complaint (in fact probably earlier, since there was an earlier appearance) Mr Smythe had attended Toowoomba courthouse where he says he had a different experience than that he describes as having at the Beenleigh courthouse on 16 December 2019. This ought to have turned his mind to making a complaint should he have been so inclined as it was his experiences in Toowoomba, he says, that highlighted to him that he was treated less favourably in Beenleigh.
    3. Mr Smythe did not make complaints until 31 October 2021 (to the Chief Magistrate) and 8 November 2021 (to the QHRC).
29. [29]
    In all the circumstances, Mr Smythe’s explanation for the delay does not persuade me to exercise discretion to extend time in his favour.

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

30. [30]
    The prejudice to the respondent arises from delay. As I observed in Brooks v Queensland Building and Construction Commission^[19], delay is a natural enemy of evidence and as McHugh J observed in Brisbane South Regional Health Authority v Taylor,^[20] “where there is delay the whole quality of justice deteriorates”, citing a United States Supreme Court decision in Barker v Wingo,^[21] pointed out “what is been forgotten can rarely be shown”.
31. [31]
    Over time evidence may be tampered with, lost, destroyed, or archived as part of normal business operations or personal record-keeping. Similarly, as identified by the QHRC in their assessment of the out of time complaint, witness memories may weaken, details may become hazy (if in fact witnesses can even be identified and located). 
32. [32]
    The respondent is in fact experiencing those difficulties.  Although they have retrieved some records during their internal investigation undertaken in late 2021, factors outside the control of the respondent have hampered its ability to respond to the complaint:

    1. Maree Swile, Deputy Registrar (Criminal Registry) at Beenleigh Magistrates Court gave evidence^[22] that she was the Acting Deputy Registrar of the Domestic and Family Violence (DFV) registry and was working in the registry on 16 December 2019. As the court was being renovated, her office was located away from the DFV registry and the waiting area. She recalls the DFV reception desk was manned by two people at the time, and she believes Tracy Cox was working on the desk on 16 December 2019. She cannot recall the name of the Court Network Volunteer who assisted Ms Cox and does not recall seeing a person fitting the description of Mr Smythe.
    2. Tracy Cox gave evidence^[23] that on 16 December 2019 she was working in the DFV registry on triage at the DFV reception desk although she does not recall the events of that day specifically. To the best of her knowledge and recollection she's never met or spoken with Mr Smythe, she does not recall the name of the Court Network Volunteer who was working with her on that day and, in any event, recalls that volunteers changed daily. Ms Cox said that it was standard protocol to ask all persons checking in if they wanted to be linked to a duty lawyer to help them in court and would put those details onto a list which was disposed of at the end of each day. If the person said they wanted to see a duty lawyer, they were given a clipboard and a pen and a form to fill out and then one of the duty lawyers would come and see them. Brochures were also handed out to people, although she does not recall exactly what the forms or brochures then looked like. The presiding Magistrate decided the order in which matters were heard.  Ms Cox does not recall being approached by a person who was themselves unwell or who said they were with a person who was unwell and was leaving the Court for that reason.
    3. Natalie Maine is the Acting Deputy Registrar at Beenleigh Magistrates Court and at the relevant time was a court services offer in the DFV registry. She gave evidence^[24] that she was working on 16 December 2019 in a backroom where she could not readily see people in the reception of waiting areas, does not recall any events that took place on 16 December 2019, does not recall the people who are stationed at the DFV reception desk at the time and does not recall seeing a person fitting the description of Mr Smythe.
    4. Lisa Conway is the Registrar, Beenleigh Magistrates Court, having commenced the role in 2008. She was working on 16 December 2019 but was only able to speak to standard protocol and does not recall seeing Mr Smythe. Ms Conway gave evidence^[25] that, to the best of her knowledge the remaining staff members employed by the respondent who were working in the DFV registry on 16 December 2019 were Tracy Cox, Maree Swile and Natalie Maine. All other staff members who were working in the registry on that day including the presiding Magistrate, no longer work for the department or are now retired. She has no recollection of the names or contact details for Court Network Volunteers working at the court on the day and attempted to obtain them from Queensland Court Network but was informed that the records are not available, and further that no one who currently volunteers for Court Network was volunteering at the relevant time.
33. [33]
    The respondent submits that as the allegations are generalised and non-specific, as there is no documentary evidence available to assist in responding to the allegations and CCTV footage is no longer available, the respondent is unfairly and irreparably affected in its ability to defend the complaints because it is unable to properly or adequately defend the allegations in circumstances where its remaining staff members are unable to recall the subject matter of the allegations or even who participated in interactions with Ms Brown where even Mr Smythe cannot identify which persons were involved in the alleged conduct which is the subject of the complaint.
34. [34]
    This is a real and significant prejudice to the respondent and weighs against an exercise of discretion to hear the complaint out of time.

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

35. [35]
    The prejudice to Mr Smythe of refusing to exercise the discretion to extend time is obvious: his complaint will be dismissed and the relief he seeks will not be given.^[26] For the reasons given below in addressing the merits of Mr Smythe’s claim, I am not satisfied that this is a factor to which significant weight should be given. 

The merits of the complaint

36. [36]
    As the respondent summarises, Mr Smythe’s complaint arises from his alleged treatment on 16 December 2019, and the lack of assistance and information provided to him by Court staff and Court Network volunteers, including with respect to accessing a duty lawyer, seeking an adjournment, seeking priority listing, or returning to Court after a break.
37. [37]
    The challenge with prosecuting the complaint is therefore largely one of evidence as it relies on testimony from witnesses in circumstances where:

    1. Mr Smythe himself does not recall whether and if so to what extent the Beenleigh Courthouse had signage up on the relevant day and he did not engage with Court staff in any event, relying upon Ms Brown to do so on his behalf. He cannot say within his own knowledge whether Ms Brown was given the information he says the Court ought to have provided or whether she failed to understand, or to pass on or to act on, information she may have been given.  
    2. Mr Smythe has not led evidence from Ms Brown, from which I infer that she has not, to date, authored a statement regarding the events of 16 December 2019. This implies that any evidence she does give, if she gives evidence at all, will be at least four years old by the time that evidence is taken, and its reliability therefore impacted by the passage of time.
    3. The respondent’s witnesses can only speak to standard protocol as no one still working for the respondent and available to give evidence recalls interacting with Mr Smythe or, in fact, any of the events from that day. Nonetheless their evidence as to their standard protocols is persuasive: each party is offered the assistance of a duty lawyer, but, in this case, this offer is likely to have been made to Ms Brown rather than to Mr Smythe, as she is the one who checked them in. Volunteers assisted and supported parties who were present but, again, Ms Brown was largely the person who obtained this assistance on Mr Smythe’s behalf and she has not given evidence in the proceeding.
    4. Mr Smythe’s evidence in the form of a brochure with a handwritten note to “consent without admission” supports the respondent’s evidence as to the standard protocol undertaken by the DFV registry at the relevant time and implies that Mr Smythe had at least one conversation in which assistance and information was given to him which included contact details for Legal Aid.
38. [38]
    In my view the tribunal would be unable to decide the complaint in Mr Smythe’s favour as it is not permitted to simply choose between several equally likely possibilities where compelling possibilities can only be resolved by conjecture.^[27]
39. [39]
    This factor weighs against the exercise of discretion in Mr Smythe’s favour.

Fairness to the parties

40. [40]
    Among other things, Mr Smythe points to the significant impact upon him of the order made against him on 16 December 2019, namely a final protection order in which he was named as respondent. He argues that had he been properly advised, supported, and informed having regard to his impairments, he would have been heard on the application and the application dismissed or at least only a temporary protection order made rather than an final order made against him. The order itself had the impact, he says, of essentially breaking apart his family and requiring him to relocate. He speaks to the distress and humiliation that resulted.
41. [41]
    The respondent submits, correctly, that it cannot be said, other than by way of speculation that the learned Magistrate would not have made a final order on the terms he did if Mr Smythe had been present. It is not for the tribunal to review the decision made and, in any event, the tribunal is not privy to the reasons, if any, given for the order made.
42. [42]
    Mr Smythe also points to his altruistic motives in pursuing the complaint: to try to bring about meaningful improvements in the experience of parties to domestic and family violence proceedings to ensure that they can properly participate given that being involved in such proceedings can be difficult and stressful for many people, three being a public interest in improving the system and making it more accessible, particularly for people living with a disability.^[28]
43. [43]
    Section 175(2) speaks specifically to the balance of fairness ‘between the parties’. A public interest argument is not relevant in such a consideration.

Discussion and decision on strike out

44. [44]
    It is not disputed that the allegations arise from events of 16 December 2019 and, therefore, that the complaint has been made out of time.
45. [45]
    The respondent asks by its application for miscellaneous matters filed 14 June 2023 that the tribunal dismiss the complaint as one made ‘out of time’ by virtue of section 175(2) of the ADA.
46. [46]
    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.
47. [47]
    Where:

    1. the making of the complaint was significantly delayed, and
    2. the delay has not been persuasively explained, and 
    3. the prejudice to the respondent in its ability to respond to the complaint is significant, and
    4. the complaint lacks merit,

I am not satisfied, on the balance of fairness to the parties, that it is reasonable to deal with the complaint out of time and for that reason, the complaint is dismissed.