Burns v Blyth[2024] QCAT 340

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This matter involves a complaint brought by the Applicant against the Respondent under the Anti-Discrimination Act 1991 (Qld) (‘the ADA’).
2. [2]
   The matter has been referred to the Tribunal by the Queensland Human Rights Commissioner (‘the Commissioner’)^[1] in consequence of a complaint initiated by the Applicant on 10 May 2021 (‘the Complaint’). The referral comprised a Referral of a matter (non-disciplinary) and attached material (‘the Referral’) which was received by the Tribunal on 27 April 2022.
3. [3]
   On 23 January 2023, the Tribunal made directions that included a direction that the Respondent file and serve ‘any submissions on the jurisdiction of the Tribunal to hear and decide the proceeding’ (‘the Direction’).
4. [4]
   On 23 February 2023, the Respondent filed written submissions on jurisdiction (‘the Respondent’s submissions’).
5. [5]
   On 16 March 2023, the Applicant filed written submissions on the issue of jurisdiction (‘the Applicant’s submissions’).
6. [6]
   The Applicant also filed an affidavit of Sonia Irene Read affirmed on 16 March 2023 (‘Ms Read’s affidavit’).
7. [7]
   Despite apparent dispute between the parties as to the need for the Respondent to file an application,^[2] in light of the Direction, I am content to proceed on the basis that the Respondent’s submissions constitute an application that the proceeding be dismissed for lack of jurisdiction.
8. [8]
   In order to address the parties’ respective arguments, I consider it convenient to set out a chronology of the relevant facts.

Chronology

9. [9]
   As noted above, the Applicant’s complaint was initiated on 10 May 2021.^[3]
10. [10]
    On 11 May 2021, the Applicant provided additional material to the Commissioner.^[4]
11. [11]
    On or about 12 May 2021, the Commissioner emailed a letter to the Applicant dated 12 May 2021 (‘the May 2021 letter’).^[5]
12. [12]
    On 9 December 2021, the Commissioner sent to the Applicant an email stating, relevantly:^[6]

…

Your complaint will be accepted and set down for a conciliation conference in either late January or February.

The respondent has not yet been contacted.

….

13. [13]
    The Commissioner posted a letter to the Respondent dated 17 January 2022 (‘the January 2022 letter’) addressed to what had been identified as the current address of the Respondent (by letter from the Electoral Commission Queensland dated 12 January 2022).^[7] Amongst other matters, the January 2022 letter:

    1. stated that ‘This complaint’ had been accepted under s 141 of the ADA;
    2. stated that the Complaint was made up of the various documents identified in that letter;
    3. stated that the decision to accept the Complaint did not mean that the complaint was substantiated or proved it simply meant that at least one allegation contained in the Complaint is about conduct which may be a breach of s 136 of the ADA, so the Commission must try to resolve the complaint;
    4. enclosed a Direction to participate in a conciliation conference on 1 March 2022 at 9.00am.
14. [14]
    The January 2022 letter was returned to the Commissioner on 31 January 2022 with the words ‘WRONG ADD’ written on it.^[8] It follows that the Respondent did not receive notice of the conciliation conference.
15. [15]
    On or about 4 March 2022, the Commissioner (by Mr McCowie) sent a letter, by email, to the Applicant which stated, amongst other matters:^[9]

I believe this complaint cannot be resolved by conciliation. My reason for this decision is that the Commission has not been able to notify the Respondent of your complaint in accordance with section 143 of the Anti-Discrimination Act 1991 and therefore the matter could not be resolved at the scheduled Conciliation Conference.

…

16. [16]
    By email sent by the Applicant to, relevantly, Mr McCowie on 28 March 2022 at approximately 2.13pm, the Applicant stated, amongst other matters:^[10]

…

In light of this I seek a further 28 days extension until I hear from the Queensland Attorney to confirm upon referral of my complaint to the Tribunal that it will not be dismissed for want of jurisdiction before asking for my complaint to be referred to the Tribunal. (QCAT)

17. [17]
    By email sent by Mr McCowie to the Applicant on 28 March 2022 at approximately 2.37pm, it was stated, relevantly:^[11]

…

You will have until close of business on 4 April 2022 to request a referral of your complaint to the Queensland Civil and Administrative Tribunal.

If we do not hear from you within that time, the Commission will close your complaint file.

18. [18]
    By email sent by the Applicant to Mr McCowie on 4 April 2022 at approximately 5.48am, the Applicant stated, amongst other matters:^[12]

I ask that my complaint be referred to the Tribunal. (QCAT)

…

19. [19]
    On 27 April 2022, the Referral was accepted by the Tribunal.
20. [20]
    On 17 June 2022, the Applicant filed written submissions regarding his Statement of Contentions.^[13]
21. [21]
    On 8 December 2022, the Respondent filed a Form 36 Response and/or counter-application which raised various matters including the issue of jurisdiction.
22. [22]
    On 23 January 2023, the Tribunal made the Direction.

The Respondent’s contentions

23. [23]
    The Respondent’s submissions raise a number of contentions. In my view, the following contentions do not raise a question of jurisdiction but raise mixed questions of fact and law to be decided on the merits:

    1. the contentions in relation to ‘Standing’.^[14]
    2. the contentions in relation to ‘Res Judicata’.^[15]
24. [24]
    I have endeavoured to identify the core contentions of the Respondent that arguably concern the issue of jurisdiction. I would summarise these contentions as follows:

    1. that the complaint failed to set out reasonably sufficient details to indicate an alleged contravention of the ADA as required by s 136(b) of the ADA (‘Ground 1’);^[16]
    2. that the Commissioner failed to fulfil their statutory duty under s 139 of the ADA (‘Ground 2’);^[17]
    3. the complaint or ‘process’ is out of time or ‘statute barred’ because the Commissioner did not make a decision whether to accept or reject the complaint within 28 days of receiving the complaint as required by s 141 of the ADA (‘Ground 3’);^[18]
    4. the Commissioner had no statutory power to refer the Complaint (or the Tribunal had no power to accept the Referral) because on the face of the Referral there was no basis upon which the date of notification could be ascertained as required by s 166 of the ADA (‘Ground 4’).^[19]

25. [25]
    Turning to Grounds 1 to 4, it is convenient to deal with Grounds 1 and 2 together.

Grounds 1 and 2

26. [26]
    At the date of the Complaint, s 136 of the ADA provided:

A complaint must—

1. be in writing; and

2. set out reasonably sufficient details to indicate an alleged contravention of the Act; and

3. state the complainant’s address for service; and

4. be lodged with, or sent by post to, the commissioner.

(emphasis added)

27. [27]
    Section 139 of the ADA provided:

The commissioner must reject a complaint if the commissioner is of the reasonable opinion that the complaint is—

1. frivolous, trivial or vexatious; or

2. misconceived or lacking in substance.

28. [28]
    The Respondent’s initial submission is that the Respondent is ‘left guessing’ whether this is an application pursuant to various sections of the ADA (which concern direct or indirect discrimination).^[20] To the contrary, the Referral expressly refers to vilification of a group of persons on the grounds of sexuality and references s 124A of the ADA.
29. [29]
    With respect to s 136(b), the Respondent submits that ‘nowhere in the body of the Complaint Bundle is the pleading made out’.^[21]
30. [30]
    The approach to be adopted by the Commissioner in relation to s 136 and s 139 was explained by the Queensland Court of Appeal in Toodayan & Anor v Anti-Discrimination Commissioner Queensland (‘Toodayan’):^[22]

40. [40]
    As s 136(b) ADA provides, a complaint must set out “reasonably sufficient details to indicate an alleged contravention”. There is no requirement at the lodgement stage to support a complaint with evidence, although that no doubt commonly occurs to varying degrees. When the complaint is supplemented with supporting material, that material will of course also form part of the details to be considered by the commissioner. Furthermore, on receipt of a complaint, the commissioner may request further information or documents and such a request may extend to a request of the complainant for supporting evidence in order to assist in the formation of the opinion required under s 139(b), although there will be limited time to do so because the commissioner must decide whether to accept or reject a complaint within 28 days of  its receipt. But, however the complaint is constituted and whatever the commissioner does after it is received, it is plain that the obligation on the part of the complainant at this early stage does not extend beyond the provision of reasonably sufficient details to indicate a contravention.
41. [41]
    It is also to be observed that, although the statutory test is expressed in the same way, s 139 operates differently to s 168. In the first place, s 168 will only be engaged after the complaint has been accepted, a written response has been invited from the respondent and any attempt at conciliation has taken place. In addition, the commissioner may by that stage have investigated the complaint. Because such a complaint will already have been accepted under s 141 following consideration by the commissioner whether it was, relevantly, misconceived or lacking in substance, s 168 will only be engaged where something has emerged, either from the respondent or from the investigation, to change the commissioner’s opinion. But, even more importantly, if under s 168(1) the commissioner forms the reasonable opinion that the complaint is, relevantly, misconceived or lacking in substance, the complainant must show cause to the commissioner’s satisfaction why that is not so to avoid the complaint lapsing under s 168(4) whereas, under s 139, there is no onus on the complainant to prove anything.
42. [42]
    The nature of the commissioner’s task under s 139(b) is informed by these statutory features as well as the protective purpose of the legislation. A complaint cannot be expected to “allege the relevant facts with the particularity of an indictment or of a pleading”. Nor should it be assumed that the details supplied are comprehensive or that they aspire to do any more than indicate what is intended to later be proved to establish the complaint. Thus, when forming an opinion under that provision, the question for the commissioner is whether the details provided in and with the complaint, if proved at a hearing of the tribunal, are indicative of a contravention that is neither misconceived nor lacking in substance. A complaint will be “misconceived” if it is based on a false conception or notion such as an allegation of discrimination on the basis of an attribute that is not protected by the ADA and “lacking in substance” where the detail provided in the complaint fails to point to conduct on the part of the named respondent that is capable, if proved, of amounting to a contravention under the ADA. Obviously, because rejection will deprive the complainant of a hearing, it must clearly appear that the complaint is misconceived or lacking in substance before the requisite opinion may reasonably be formed.
43. [43]
    Often, a conclusion of discrimination will only arise as a matter of inference. So, in the absence of direct proof, the commissioner will need to consider whether the details provided in and with the complaint are indicative of circumstances that, if ultimately proved, are capable of supporting such an inference. However, where more than one inference is reasonably open on the indicated circumstances, it is not for the commissioner when forming an opinion under s 139 ADA to decide which inference is more probable; that is a matter within the exclusive province of the tribunal.

(citations omitted, emphasis added)

31. [31]
    As observed by the Court of Appeal, at the lodgement stage, there is no requirement to support a complaint with evidence. The requirements of s 136(b) are not onerous and, in my respectful view, the Respondent’s reference to the need to plead^[23] the relevant contravention is misconceived.
32. [32]
    In the Applicant’s submissions, reference is made to the various matters in the complaint material relevant to vilification under the ADA.^[24] The Commissioner was satisfied that the complaint set out reasonably sufficient detail to indicate an alleged contravention of the ADA. The Referral stated:

This complaint was accepted under sections 136 and 141 of the Anti-Discrimination Act 1991 (“The AD Act”) because it set out reasonably sufficient details to indicate an alleged contravention of the Act.

33. [33]
    The fundamental difficulty with the Respondent’s argument in relation to s 136(b) is that it is premised (incorrectly) on the basis that a complainant must, in effect, plead out a contravention of an identified provision of the ADA. The Respondent’s argument is inconsistent with the observations of the Court of Appeal in Toodayan. The Respondent has failed to demonstrate that, at the complaint stage, the Applicant did not discharge his obligation to provide  reasonably sufficient details to indicate a contravention of the ADA.
34. [34]
    Further, in accepting the complaint, I consider that it can be inferred that the Commissioner was satisfied that the Complaint was not frivolous, trivial or vexatious; or misconceived or lacking in substance. In my view, having regard to s 139 itself and the ADA as a whole, there is no basis for implying a requirement that the Commissioner include a positive statement to that effect.^[25]

Ground 3

35. [35]
    At the date of the complaint, s 141 of the ADA provided:

    1. The commissioner must decide whether to accept or reject a complaint within 28 days of receiving the complaint.
    2. The commissioner must promptly notify the complainant of the decision.
    3. This section applies subject to section 141A.

36. [36]
    There is no dispute that the initial date of the Complaint was 10 May 2021.
37. [37]
    The Respondent submits that the Complaint was accepted by the Commission on 17 January 2022. An alternative date is 9 December 2021 being the date on which the Applicant was advised that the Complaint ‘will be accepted and set down for conciliation conference in either late January or February’.^[26]  I consider it unnecessary to decide which date was the date of acceptance. In either case, the date was outside the 28 day period specified by s 141(1).
38. [38]
    However, in the May 2021 letter, it was stated, relevantly:

…

We are currently experiencing an increase in complaint numbers as well as delays associated with COVID-19 and an increase in complaints since the commencement of the Human Rights Act 2019. Accordingly, the time to assess the complaint has been extended and may take up to 6 months to contact you.

…

(emphasis added)

39. [39]
    I consider that this brings into play the operation of s 172 of the ADA. That section provides:

The commissioner may extend a time limit specified in this part for the doing of anything (whether by a party or the commissioner) if the commissioner is of the reasonable opinion that—

1. the extension will not cause undue hardship to any party; and

2. there are reasonable grounds for granting the extension.

40. [40]
    The ‘part’ referred to in s 172 is Part 1 of Chapter 7 of the ADA, which includes s 141. The heading to s 141 refers to a ‘time limit’ which phrase is adopted in s 172. I am satisfied that s 172 provides power for the Commissioner to extend time pursuant to 141. I consider that this conclusion is generally consistent with the observations made by Hon J B Thomas, Judicial Member in The Corporation of the Synod of the Diocese of Brisbane v Smith.^[27] I find that, by the May 2021 letter, the Commissioner extended the time limit specified in s 141 until such time as the Commissioner made a decision under that provision.
41. [41]
    For completeness, I note that even absent an extension of time, there is authority for the proposition that a failure on the part of the Commission to comply with the requirements of s 141 will not necessarily invalidate the acceptance of a complaint. In State of Queensland v Walters,^[28] Douglas J said:^[29]

40. [18]
    Section 141(1) requires the Commissioner to decide whether to accept or reject a complaint within 28 days of receiving the complaint. In this case, the first respondent made no decision either to accept or to reject the complaint within that 28 day period but eventually decided to accept it out of time. That failure to apply s. 141(1) in its strict terms should not require any conclusion that further dealing with the complaint by the second respondent was invalid. Her continued dealing with the complaint is not precluded by the Act, in my view, particularly because of the terms of s. 138(2) permitting the acceptance of a complaint more than a year after the alleged contravention if the complainant shows good cause. In construing the Act to try to ensure that its provisions “give effect to harmonious goals” it seems to me to be legitimate for the Commissioner not to accept or reject a complaint within the 28 day period, at least if the issue whether good cause has been shown for accepting the complaint out of time is also alive; see, generally, Project Blue Sky Inc. v. Australian Broadcasting Authority (1998) 194 C.L.R. 355, 381–382 [70]-[71], 389–390 [92]-[93] and Peldan v. Anderson (2006) 227 C.L.R. 471 at 485 [40].
41. [19]
    Nor is it my view that her failure to accept all of the complaint immediately should have the effect that she is deemed to have rejected those aspects of the complaint that were not then accepted. The Act does not require that result and it is not one that I believe I can imply into its operation.

42. [42]
    Given my conclusion in relation to s 141, the Respondent’s contentions in relation to s 141A of the ADA are not relevant.^[30] However, to the extent that the Respondent appears to be asserting that the alleged contravention is out of time, this raises factual matters which will need to be determined at a final hearing.

Ground 4

43. [43]
    Section 166 of the ADA provided:

44. [44]
    Section 175 of the ADA provided:

1. The tribunal must accept a complaint that is referred to it by the commissioner, unless the complaint was made to the commissioner more than 1 year after the alleged contravention of the Act.

2. If the complaint was made more than 1 year after the alleged contravention, the tribunal may deal with the complaint if the tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so.

45. [45]
    The Tribunal’s obligation to accept a complaint is subject to the limitation that the referral is duly made in accordance with the provisions of the ADA, which requires compliance with s 166.^[31]

46. [46]
    The operation of s 166 requires that:

    1. the Commissioner notify the complainant^[32] that the complaint cannot be resolved by conciliation; and
    2. within 28 days of the complainant being so notified (or such later time as extended by the Commissioner),^[33] the complainant give written notice requiring the Commissioner to refer the complaint to, relevantly, the Tribunal (that is, QCAT).
47. [47]
    The Respondent does not contend in his written submissions that s 166 was not complied with.^[34] Rather, the substance of the submissions is that the Referral was not validly made or accepted because the material:

    1. did not indicate the outcome of the conciliation conference;^[35] and/or
    2. did not identify the giving of the notification pursuant to s 166 that the complaint could not be resolved.^[36]
48. [48]
    As to the first argument, the Respondent overlooks the following statement in the Referral which makes clear what occurred in relation to the conciliation conference (in circumstances where, in my view, it is not a precondition to referral that a conciliation conference be held, or even attempted):^[37]

The parties did not both attend a Conciliation Conference. The Commission conducted an Electoral Commission search to attempt to locate the Respondent. The Notification letter was delivered to this address, but returned to the Commission, marked “Returned to sender.”

The Complainant subsequently requested a referral to the Tribunal.

49. [49]
    As to the second argument, the Respondent has not cited a single authority in support of the contention. In my view, in circumstances where the requirements of s 166 of the ADA were, in fact, satisfied and where the Tribunal accepted the Referral pursuant to s 175 of the ADA, the absence of evidence in the Referral material of the giving of the notification does not render the making of the Referral (or the acceptance of the Referral) invalid, nor does it deny the Tribunal jurisdiction to decide the Complaint.

Order

50. [50]
    For the reasons set out above, the Respondent’s application that the proceeding be dismissed for lack of jurisdiction is dismissed.
51. [51]
    With respect to the question of costs, the Applicant seeks costs on the basis that it is in the interests of justice, pursuant to s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’), that a costs order be made in his favour.^[38]
52. [52]
    In a case such as a present, the default position is that each party to a proceeding must bear the party’s own costs for the proceeding (see s 100 of the QCAT Act).
53. [53]
    In my view, an order for costs is not warranted. Whilst two of the grounds relied upon by the Respondent plainly fell outside the confines of the issue of jurisdiction, I consider that the contentions in relation to s 141 and s 166 of the ADA were reasonably arguable, at least on the face of the original material, and that the affidavit material relied upon by the Applicant has clarified the position. Further, in respect of the matters raised which did not go to jurisdiction, it appears more likely than not that those matters will be ventilated in the proceeding, such that the costs in responding would have been incurred by the Applicant in any event.