Fraser v State of Queensland[2024] QCAT 57

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Ms Fraser lodged a Complaint in the Queensland Human Rights Commission (“QHRC”) about an incident which occurred on 14 January 2021, which involved an interaction with police officers on the James Cook University campus. Ms Fraser was an Adjunct Research Fellow in the Cairns Institute of the University at the time.
2. [2]
   Ms Fraser complains of direct discrimination on the ground of race in the area of State laws and programs. Ms Fraser also complains of a breach of her human rights which she seeks to have determined pursuant to s 59 of the Human Rights Act 2019 (Qld).
3. [3]
   The Complaint was not able to be conciliated. There is a dispute between the parties as to whether Ms Fraser complied with the time frames set out in section 166 of the Anti-Discrimination Act 1991 (Qld) (“AD Act”) to enable referral of the Complaint to the Tribunal. If Ms Fraser did not comply, the Complaint has not been validly referred to the Tribunal and the Tribunal has no jurisdiction to deal with the matter.^[1]
4. [4]
   The Complaint was referred to the Tribunal on 24 August 2023. Initiating Directions were issued to the parties and Ms Fraser has filed her statement of contentions.
5. [5]
   Subsequently an application for leave for legal representation was filed by the first and second respondents.
6. [6]
   On 7 November 2023 the third respondent Scott Mitchell filed an application for an interim order requesting an order that the proceeding be dismissed because of non-compliance with s 166 of the AD Act. A further request for dismissal because the Complaint contained out of time matters is no longer relevant as the parties have established the date of the incident fell within the time for making a Complaint.
7. [7]
   The parties have filed submissions in relation to the dismissal application. State of Queensland has also filed an affidavit from Ms Morrison, Senior Legal Officer of the Queensland Police Service.
8. [8]
   The Queensland Human Rights Commissioner took the step of filing an amended referral in the matter on 9 January 2024. The amendment to the original referral is the addition of a sentence in Part C of the Referral document, which gives details of the matter referred, that: The Commission relied on s 166(3) AD Act and the reasoning in Gillespie & Ipex Information Technology Group Pty Ltd v Goodwin^[2] with respect to determining the timeframe of the complaint specified in s 166(1) AD Act. In that case Williams J considered s 167(4) of the AD Act which sets up a similar process to that in s 166. His Honour found that a complainant personally can only respond in 28 days in circumstances where the complainant personally is aware of the obligation to do so. His Honour said that the consequences of failing to respond within the 28 days are very serious because the complaint lapses and cannot be renewed. His Honour went on to say that justice would normally demand that such a consequence only follow a conscious act of the complainant.

Section 166 of the AD Act

9. [9]
   Under s 165 of the AD Act the Commissioner must tell the parties in writing if he believes the Complaint cannot be resolved by conciliation. Section 166 of the AD Act sets out a process to be followed for referral of the Complaint to the Tribunal.
10. [10]
    The steps to be taken are:

    1. within 28 days of “being notified” that the complaint cannot be resolved by conciliation a complainant may, by written notice, require the Commissioner to refer the Complaint to QCAT.
    2. The Commissioner may extend the 28 day time limit if a request is made in writing, within the 28 day time frame.
    3. The time during which the Commissioner is considering the extension of time is not included in the 28 day time frame.
    4. If an extension of time is requested on the 28^th day and it is subsequently refused, the complainant may still require referral to the Tribunal by making a written request on the day the Complainant receives written notice of the refusal, or the next business day.

Chronology

11. [11]
    Ms Morrison’s affidavit attaches a chronology of communications between the QHRC and Ms Fraser provided by Mr Cooke, Regional Manager, QHRC, as follows:

    1. 15 May 2023 a letter declaring the complaint unconciliable was forwarded to Ms Fraser by email at 3.42pm. The letter was copied to Ms Fraser’s legal representative on that day.
    2. 29 May 2023 Ms Fraser verbally advised the QHRC that she had received correspondence “last week” but was unable to specify a day. QHRC formed the view the s 165 letter was delivered no earlier than 22 May 2023, being Monday of last week.
    3. 29 May 2023 QHRC sent a further email to Ms Fraser, reattaching the s 165 letter and advising Ms Fraser had 21 days to refer the complaint. (That is 28 days from 22 May 2023 – expiring on 19 June 2023).
    4. 19 June 2023 QHRC contacted Ms Fraser and advised it was her last day to refer her Complaint.
    5. 19 June 2023 Ms Fraser emailed QHRC and asked for an extension of time within which to refer her complaint.
    6. 20 June 2023 QHRC emailed Ms Fraser and requested advice as to whether the s 165 letter had been read by Ms Fraser on 22 May 2023.
    7. 20 June 2023 Ms Fraser emailed the QHRC advising she had received and read the email dated 29 May 2023 but not read correspondence prior to this.
    8. 22 June 2023 QHRC emailed Ms Fraser advising of the s 166 process.
12. [12]
    I am not provided with a copy of the exchange of submissions required by the QHRC in considering the extension request. Nor have I been provided with the QHRC’s agreement to extend time for referral to the Tribunal, but I infer that it was given.

Parties’ submissions

13. [13]
    Ms Fraser affirms in her submissions that she received an email from QHRC dated 29 May 2023 advising that she had 21 days from that date to notify a request for referral and enclosing information about a request to extend time. Ms Fraser says that she complied with the dates given to her by the QHRC.
14. [14]
    The Third respondent submits that the email from the QHRC dated 15 May 2023 was received by Ms Fraser on that date, being the date it was “capable of being retrieved”, whether or not it was in fact retrieved or read by her.^[3] Accordingly it is said that the 28 day period specified in s 166 expired no later than 13 June 2023. At that date Ms Fraser had not given written notice requiring referral nor had she requested an extension of time to do so. On that basis it is contended that Ms Fraser’s right to require a referral had lapsed.
15. [15]
    It is further submitted that the purported grant of an extension of time was not a valid extension of time, and the Tribunal has no jurisdiction to deal with the Complaint. Finally, it is argued that the general power to extend time given to the Commissioner in s 172 of the AD Act is not available in the face of a specific provision such as s 166. The third respondent relies on Simpson (aka Bird) and Beitsch and Forbes-Beitsch v Button^[4]. I accept that is the effect of that decision.
16. [16]
    The first and second respondents make similar submissions. They say that Ms Fraser was personally notified of the notification pursuant to s 165 on 15 May 2023 when the letter was sent by email to Ms Fraser and that the 28 days ran from that date, not from 22 May 2023 as advised by the QHRC. To the extent that the QHRC relies on the decision of Gillespie v Goodwin^[5] that time runs from the date of personal notification to a Complainant (rather than an agent), it is said that the decision does not apply to alter the application of the time frame, because Ms Fraser was directly and personally notified on 15 May 2023.
17. [17]
    For these reasons it is submitted that any action taken by the QHRC after 13 June 2023, including granting an extension of time to seek referral and referring the matter to QCAT was without power under the AD Act.

Consideration

18. [18]
    Relevantly Ms Fraser says that she did not read any correspondence sent to her until 29 May 2023. Can one say that until 29 May 2023 Ms Fraser was not “notified” the complaint was unconciliable, and that she had 28 days to request referral or an extension of time? Or is it the case that Ms Fraser is fixed with notification by virtue of having an email sent to her on 15 May 2023, despite not having read that email?
19. [19]
    Gillespie’s case is clear that personal notification is required by s 166. That is, Ms Fraser must have a personal or conscious awareness of the contents of the notice so that she might act to require a referral to the Tribunal. That is, she must have read the email notification from the QHRC.
20. [20]
    It is not to the point that Ms Fraser might be deemed to have received the notice. If she has not read the notice, she cannot have a conscious awareness of its contents. That is a point made in Garcia v Queensland Newspapers Pty Ltd and Prain^[6]. Member Douglas QC of the then Anti-Discrimination Tribunal Queensland considered whether a complainant could be said to have been notified under s 166 of the Act when the notification letter was delivered to a post office box, being the last known address of the Complainant. He concluded that the statutory prerequisite of “being notified” is what is important to establish, not what the common law presumes about when the letter reaches its destination. The same point can be made about the date of receipt of an electronic communication.
21. [21]
    As Williams J said in Gillespie, when the request was received by the complainant personally is a matter which would have to be established by evidence before the appropriate tribunal of fact. The only evidence I have as to when Ms Fraser read the notification from the QHRC comes from Ms Fraser. I have no reason to disbelieve her. Accordingly, I accept Ms Fraser’s evidence and find that having read the notification letter on 29 May 2023 the application for an extension of time was lodged within time.
22. [22]
    I note the observation of then President Walter Sofronoff QC in Kelly v Harris, Madigan, Head and Qantas Airways Pty Ltd^[7] that insofar as personal notification is required, it may be possible for a complainant by inaction and by keeping himself or herself incommunicado, to keep a complaint alive, to the vexation of a respondent. However, that is a matter that can only be addressed by an amendment to the legislation.
23. [23]
    I conclude that the referral was validly made on 24 August 2023, as amended on 9 January 2024 and that this Tribunal has jurisdiction to determine the Complaint.

Order

24. [24]
    The application for interim order is dismissed.