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  4. Janina Leo v Christian Outreach Centre & Brian Mulheran - [2024] QCAT 91

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Janina Leo v Christian Outreach Centre & Brian Mulheran[2024] QCAT 91

Janina Leo v Christian Outreach Centre & Brian Mulheran[2024] QCAT 91

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Janina Leo v Christian Outreach Centre & Brian Mulheran [2024] QCAT 91

PARTIES:

Janina Leo

(applicant)

v

Christian Outreach Centre

(respondent)

BRIAN MULHERAN

(respondent)

APPLICATION NO/S:

ADL057-23

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

27 February 2024

HEARING DATE:

27 February 2024

HEARD AT:

Brisbane

DECISION OF:

Senior Member Fitzpatrick

ORDERS:

The application is dismissed.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION DUE TO POLITICAL OR RELIGIOUS BELIEFS – where the respondent filed an application to summarily dismiss/strike out – where respondent is a school run by a religious organisation – where applicant alleges religious, sexuality and association discrimination – whether the proceedings are vexatious, frivolous or misconceived, lacking in substance or an abuse of process

Anti-Discrimination Act 1991 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Beck v Kerry M Ryan Pty Ltd [2019] QCAT 38

Broadbent v Medical Board of Australia [2022] QCA 46

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

Elderslie Property Investments No 2 Pty Ltd v Dunn & Anor [2007] QSC 192

Forrester v AIMS Corporation [2004] VSC 506

Gauci v Kennedy [2005] FMCA 1505

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Rama v University of South Australia [2004] 136 FCR 344

State Electricity Commission of Victoria v Rabel and Others [1998] 1 VR 102

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Application to dismiss or strike out

  1. [1]
    The respondents Christian Outreach Centre and Brian Mulheran have applied to dismiss or strike out the proceeding under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’)[1] on the basis that it is vexatious, misconceived, lacking in substance and otherwise an abuse of process because the applicant’s complaint about an amended contract of enrolment, was not received by her and therefore she could not be the subject of any discrimination, either direct or indirect, referable to that amended contract.

Prohibited discrimination

  1. [2]
    The Anti-Discrimination Act 1991 (Qld) (‘AD Act’)[2] prohibits discrimination against a person, which may be direct or indirect, on the ground of certain attributes, in certain areas of activity. In this case the areas of activity are said to be the provision of education and in the provision of goods and services. The AD Act also prohibits victimisation for alleging a contravention of the AD Act.

Background

  1. [3]
    In summary the following matters are raised by the parties. Many of these matters appear to be in contention.
    1. In November 2020 the International Network of Churches of which the first respondent is a member, revised its “declaration of faith” to include statements with respect to gender identity and sexuality. The respondents say that they advised parents of students at the school that they should ensure they had reviewed the latest version of the declaration of faith.
    2. The declaration of faith was promulgated and implemented by the first respondent for the 2021 academic year. There is currently no evidence as to the nature and scope of that promulgation and implementation, insofar as it related to gender identity and sexuality.
    3. The new section in the declaration of faith - “Family, Marriage, Sexuality and Gender” sets out a belief that sexual activity should only occur between a man and woman within marriage and goes on to provide that:

We believe that any form of sexual immorality (including but not limited to: adultery, fornication, homosexual acts, bisexual acts, bestiality, incest, paedophilia, and pornography) is sinful and offensive to God and is destructive to human relationships and society.

We believe that God created human beings as male or female…and does not make a distinction between male or female…Living in this fullness includes identifying with the gender that God bestowed upon each person in all aspects of their life.

  1. On 28 January 2022, parents were emailed a link to a new form of enrolment contract to be signed by 8am on 7 February 2022 for the commencement of the 2022 academic year two days later.
  2. Ms Leo says that at that time it was intended two of her younger children would continue at the College in 2022 and that was conveyed to the College by the children’s father prior to 28 January 2022. That is expressly denied by the College in its Response.
  3. Ms Leo says that earlier in 2021 consideration had been given to the children not continuing at the College, however that was not acted upon. That is denied by the College.
  4. Ms Leo was unable to access the online portal for parents in order to access the enrolment contract.
  5. The enrolment contract was later given by a friend to Emmey, a child of Ms Leo who completed grade 12 in 2021. Emmey provided the contract to her mother.
  6. By email dated 1 February 2022 Ms Leo informed the College that the two younger children would be withdrawn from the College because of the treatment of Emmey when it became known she intended to wear a dress to the year 12 formal, and because that appears to have resulted in the inclusion of “offensive, discriminatory and unacceptable clauses in your updated contract”.
  7. The two younger children were accepted at and now attend a different Christian school.
  8. The contract contained what are said to be different clauses to previous contracts signed by parents.
  9. Key clauses are:

25.In accordance with the Declaration of Faith the college believes that:

  1. a.
    God created human beings as biological males (boys) or biological females (girls) (Matthew 19.4; Mark 10.6)
  1. b.
    These two distinct and complementary genders (biological sexes), together reflect the image and nature of God;
  1. c.
    The Bible ties gender identity to biological sex (Genesis 1;27; Genesis 2:22:24) and does not make a distinction between gender and biological sex.

Accordingly, the College believes that by creating each person, God in His divine love and wisdom, gifted them their gender, as male and female.  The College therefore acknowledges the biological sex of a person as recognised at birth and requires practices consistent with that sex.  Whilst each Student is individually valued and equally encouraged to pursue opportunities in both academic and co-curricular activities, I/we agree that, where distinctions are made between male and female (inclusive of, but not limited to, for example, uniforms, presentation, terminology, use of facilities and amenities, participation in sporting events and accommodation) such distinctions will be applied on the basis of the individual’s biological sex.

  1. 26.
    The Parents acknowledge and accept that, should I/we not share the College’s commitment to fostering these fundamental doctrinal precepts, this will constitute a serious departure from the religious precepts upon which Citipointe Christian College is based and will afford Citipointe Christian College the right to exclude a student from the College who no longer adheres to the College’s doctrinal precepts including those as to biological sex, which constitute an important tenet of the College’s Christian religion.
  1. 27.
    To this end, the Parents acknowledge and accept that, in seeking a Christian education for the Student, they will support Citipointe Christian College in its teachings and in its expectation that the Student will grow in faith in Christ Jesus, and that, should the Parents and/or Student no longer support those precepts, or reject those precepts by actions or words, this will afford the College the right to terminate this contract, in accordance with clause 122.
  1. The Declaration of Faith is appended to the contract.
  2. The contract was withdrawn within a period of 5 days.

The Complaint

  1. [4]
    Ms Leo is the mother of four children who have been enrolled at Citipointe Christian College, Carindale. As a parent, Ms Leo has entered into contracts with the College to secure the enrolment of her children at the College on agreed terms and conditions. Ms Leo filed a complaint in the Queensland Human Rights Commission on her own behalf. I note however that in her statement of contentions filed in this Tribunal that Ms Leo makes the complaint on her own behalf and says that she also makes the complaint as agent for two of her children, one of whom is now a year 12 student and one who is now a year 10 student but who were both previously students at the respondent College before they were withdrawn.
  2. [5]
    The material referred to the Tribunal by the Human Rights Commissioner did not include any written authorisation by the Commissioner for Ms Leo to act on behalf of the children. I cannot discern that the children were complainants to the Queensland Human Rights Commission in their own right.
  3. [6]
    If it is intended that the Tribunal join the children as applicants in the proceeding pursuant to s 177 of the AD Act, the appropriate application should be filed in the Tribunal.
  4. [7]
    The Complaint filed with the Queensland Human Rights Commission is said to relate to events on 15 November 2021 and 28 January 2022. The Complaint was lodged on 26 May 2022.
  5. [8]
    It is not clear what event on 15 November 2021 is referred to in the Complaint form, however a statement from Ms Leo dated 31 August 2022 forming part of the Complaint, refers to communications between the second respondent, then Principal of the College, a child of Ms Leo known as Emmey, LGBTI Legal Services and Ms Leo. Those communications occurred in the period 11 November 2021 to 19 November 2021. Emmey was born Elijah Leo and now identifies as female. Emmey is now an adult. The issue the subject of the communications related to Emmey’s plans to wear female dress rather than formal male attire to the grade 12 school formal. The second respondent required Emmey to wear male attire and later requested a gender-neutral outfit. I will treat that matter as part of the Complaint lodged with the Human Rights Commission and referred to this Tribunal.
  6. [9]
    The other matter the subject of the Complaint referred to the Tribunal, relates to the enrolment contract sent to parents on 28 January 2022.
  7. [10]
    Ms Leo asserts that she does not hold the religious belief she was expressly required to accept in the College’s contract for the 2022 academic year.
  8. [11]
    Ms Leo says that her relevant protected attributes are:
    1. Section 7 (i) AD Act - religious belief;[3] and
    2. Section 7 (p) AD Act - association with her child Emmey, identified on the basis of the attribute of gender identity (s 7(m)) and religious belief (s 7(i)).[4]
  9. [12]
    Ms Leo describes the relevant characteristics of the attributes as an absence of the religious beliefs required by the College in the Contract, and association with Emmey who identifies as a transgender person and who does not hold the same religious beliefs as required by the College.
  10. [13]
    Ms Leo says that within the terms of s 10 of the AD Act[5] direct discrimination has occurred - on the basis of her religious beliefs and association with a transgender child because:
    1. she was treated, or it was proposed to treat her
    2. less favourably;
  • by denying her access to the online portal for parents and/or alternatively;
  • adversely varying, or proposing to vary, by way of the contract, the terms on which services were supplied by the College to her and her children without providing a copy of the contract to her and/or alternatively;
  • adversely varying, or proposing to vary, by way of the Contract, the way in which services were supplied by the College to her and her children and/or alternatively;
  • otherwise treating her and her children unfavourably in connection with the supply of services by the College by requiring or proposing to require agreement to the Contract.
    1. than another person enrolling their children, who did not have her religious beliefs and association with a transgender child.
  1. [14]
    Within the terms of s 11 of the AD Act with respect to indirect discrimination, Ms Leo says that indirect discrimination has happened on the basis of her religious beliefs and association with her transgender child, because:
    1. the respondents imposed or proposed to impose a term:
  • varying, or proposing to vary, the terms of the children’s enrolment in the College by way of the Contract; and, or alternatively;
  • varying, or proposing to vary the terms of the services provided by the College to her, by way of the Contract; and, or alternatively;
  • imposing, or proposing to impose, the requirements set out in the Contract;
    1. with which she could not comply;
    2. a higher proportion of people without her religious beliefs and association with her transgender child are able to comply; and
    3. that was not reasonable.
  1. [15]
    Ms Leo’s contention is that the term was not reasonable, because it:
  • is not required under law;
  • was not previously required by the College;
  • is not necessary to carry out its operations as an educational authority/educational institution, in relation to the provision of services and the education of students;
  • required Ms Leo to agree to the contract contrary to her religious belief;
  • was inconsistent with her younger children’s religious belief;
  • was inconsistent with Ms Leo’s attributes and the characteristics of those attributes;
  • caused Ms Leo distress;
  • caused significant distress and upheaval to Ms Leo and her younger children and the family as a result of the need to withdraw the children from the College at short notice; and
  • caused Ms Leo to suffer financial harm by incurring costs associated with the need to withdraw the children from the College and enrol them at another school at short notice.
  1. [16]
    I note that the referral from the Queensland Human Rights Commission says that it treated the Complaint as alleging discrimination, as referred to in the preceding paragraphs, and also victimisation in the area of goods and services under s 129 and s 46 of the AD Act. The Tribunal did not direct Ms Leo to address the issue of victimisation in her statement of contentions. The issue does however appear to be raised in the material before the Tribunal insofar as Ms Leo considers terms of the amended contract with respect to gender identity and sexuality were a response to the issues which arose the previous year in relation to Emmey’s mode of dress at the school formal. The Tribunal will give Ms Leo an opportunity to amend the statement of contentions and for a response to be given by the respondents by way of further directions.
  2. [17]
    It is relevant to note the provisions of the AD Act which refer to the areas of activity in which discrimination is prohibited.
  3. [18]
    Section 39 of the AD Act provides that an educational authority must not discriminate, relevantly, in any variation of the terms of a student’s enrolment or by treating a student unfavourably in any way in connection with the student’s training or instruction.
  4. [19]
    Section 46 of the AD Act provides that a person who supplies goods or services must not discriminate against another person, relevantly by failing to supply the goods or services, in the terms on which goods or services are supplied, in the way in which goods or services are supplied or by treating the other person unfavourably in any way in connection with the supply of goods and services.
  5. [20]
    As to victimisation, that is expressed to be an instance of highly objectionable conduct inconsistent with the purposes of the AD Act. Section 129 of the AD Act provides that a person must not victimise another person. Section 130 of the AD Act gives the meaning of victimisation, which in summary is acting or threatening to act to the detriment of another because they or a person they are associated with allege a contravention of the Act.

The respondents’ position

  1. [21]
    The respondents submit that the application should be struck out because Ms Leo concedes that she did not receive the amended enrolment contract, and accordingly there is no basis upon which Ms Leo might claim to be the subject of direct or indirect discrimination. That is the ground for dismissal articulated in the respondents’ application.
  2. [22]
    The respondents do not address the other aspects of the Complaint related to Emmey’s dress and victimisation.
  3. [23]
    The response filed by the respondents raises a number of other matters including that they received notification that the younger children would withdraw from the College, accordingly they were not enrolled at the time the amended contact was sent. I note that a request for documents relating to this allegation has been made by Ms Leo.  I am unaware if any supporting document has been provided.
  4. [24]
    The respondents say the religious beliefs of Ms Leo and her family and the sexuality of Emmey are irrelevant. They further say that the “formal attire” allegations are irrelevant to Ms Leo’s Complaint and seeks to traverse matters the subject of a complaint made by Emmey which has not been accepted by the Commission as it is out of time and is therefore not justiciable by the Tribunal in this proceeding.
  5. [25]
    In any event it is said that Emmey was permitted to and did wear a dress to the College formal and was treated no differently to any other graduate at that event.
  6. [26]
    The respondents say that Ms Leo and her children agreed to support the College in relation to the declaration of faith because the children attended the College in 2021 after being notified of the amended declaration of faith. Further, the matters referred to in the declaration of faith were referred to in the amended contract and by their earlier conduct Ms Leo and her family had agreed to those terms. It is said that as a result there was no variation in any student enrolment and no failure to provide services.
  7. [27]
    It is asserted that Ms Leo was not required to agree with the amended contract because it was not issued to her. In any event it is said that there was no requirement to hold the same religious beliefs as the College, but rather to support the beliefs which informed its teachings and practice.
  8. [28]
    It is contended that Ms Leo does not have any protected attribute and the asserted characteristics which relate to the amended contract are merely opinion, not religious belief.
  9. [29]
    The respondents do not expressly raise the exemption in s 41 of the AD Act that an educational authority that operates wholly or mainly for students of a particular religion may exclude applicants who are not of the particular religion. It is raised in the response that they are entitled to deliver a faith-based education to persons who seek such an education in accordance with the declaration of faith.

Consideration

  1. [30]
    The AD Act is beneficial legislation. Claims of contravention of the Act should not be dismissed without it being very clear that the claims are absolutely hopeless or so clearly untenable that they cannot succeed.[6]
  2. [31]
    The strike out application has been made at an early interlocutory stage before all the evidence on which the parties intend to rely is before the Tribunal. One cannot make an assessment that the matter is without prospects until all the evidence is before the Tribunal and at that point the matter should be finally heard and determined. Furthermore, in a case of this type, much probative evidence frequently arises upon cross-examination of a respondent’s witnesses.
  3. [32]
    The approach to an application to dismiss a Complaint before the Tribunal under s 47 is not to weigh up such evidence as may be before the Tribunal at an interlocutory stage but rather to consider whether the respondent has shown that the Complaint is absolutely hopeless.[7]
  4. [33]
    The respondents’ main objection to the Complaint is that Ms Leo informed the College the younger children would be withdrawn, accordingly she was not sent the amended enrolment contract and could not have suffered any discrimination as a result of its terms.
  5. [34]
    The factual matters underpinning that contention are in dispute. Disclosure of documents in relation to the initial and final notifications of withdrawal of Ms Leo’s children have been sought.
  6. [35]
    There are other matters relevant to the contentions and response which will need to be determined in a hearing and which have not been fully addressed at this stage.
  7. [36]
    One matter which is relevant to the respondents’ defence of the Complaint will be the basis on which it can be inferred that Ms Leo agreed to the precepts as to gender and sexuality in the new declaration of faith in 2021. That is a matter for evidence at the hearing.
  8. [37]
    The respondent treats as irrelevant the Complaint relating to treatment of Emmey with respect to her mode of dress at the grade 12 formal. Although not fully ventilated at this stage there is also the question of alleged victimisation which arises from that issue and which is at least arguable on the allegations made in the Complaint.
  9. [38]
    As to the fact that the amended contract was withdrawn after five days, I do not think that alters the existence of a claim, given that prospective conduct is caught by the definitions of direct and indirect discrimination. The effect may be to merely limit any remedy available to Ms Leo.
  10. [39]
    Ms Leo submits that the submissions of the respondents raise questions of fact which need to be resolved by the Tribunal after hearing the evidence and that questions of law need to be determined as to the meaning of a religious belief and whether absence of a religious belief is a protected attribute under the AD Act. I accept that submission.
  11. [40]
    The Complaint and statement of contentions articulate at least a rational cause of action.[8] I am unable to find on any basis put by the respondent that the case is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process.
  12. [41]
    I have noted the cases referred to me by the respondents.[9] The cases do not relate to summary dismissal of an anti-discrimination claim so are of limited relevance, but they are not at odds with the general principles addressed by me.

Order

  1. [42]
    The application is dismissed.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47 (‘QCAT Act’).

[2]Anti-Discrimination Act 1991 (Qld) (‘AD Act’).

[3]Ibid s 7(i).

[4]Ibid ss 7(p), (m), (i).

[5]Ibid s 10.

[6]Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 130.

[7]State Electricity Commission of Victoria v Rabel and Others [1998] 1 VR 102, 109-110, Forrester v AIMS Corporation [2004] VSC 506.

[8]Gauci v Kennedy [2005] FMCA 1505; Rama v University of South Australia [2004] 136 FCR 344, 354-355.

[9]Beck v Kerry M Ryan Pty Ltd [2019] QCAT 38; Broadbent v Medical Board of Australia [2022] QCA 46; Elderslie Property Investments No 2 Pty Ltd v Dunn & Anor [2007] QSC 192.

Close

Editorial Notes

  • Published Case Name:

    Janina Leo v Christian Outreach Centre & Brian Mulheran

  • Shortened Case Name:

    Janina Leo v Christian Outreach Centre & Brian Mulheran

  • MNC:

    [2024] QCAT 91

  • Court:

    QCAT

  • Judge(s):

    Senior Member Fitzpatrick

  • Date:

    27 Feb 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
Beck v Kerry M Ryan Pty Ltd [2019] QCAT 38
2 citations
Jump To
Cite 1 - [2019] QCAT 38
Cite 2 - [2019] QCAT 38
Broadbent v Medical Board of Australia [2022] QCA 46
2 citations
Jump To
Cite 1 - [2022] QCA 46
Cite 2 - [2022] QCA 46
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
2 citations
Jump To
Cite 1 - (1949) 78 CLR 62
Cite 2 - (1949) 78 CLR 62
Elderslie Property Investments No 2 Pty Ltd v Dunn [2007] QSC 192
2 citations
Jump To
Cite 1 - [2007] QSC 192
Cite 2 - [2007] QSC 192
Forrester v AIMS Corporation [2004] VSC 506
2 citations
Jump To
Cite 1 - [2004] VSC 506
Cite 2 - [2004] VSC 506
Gauci v Kennedy [2005] FMCA 1505
2 citations
Jump To
Cite 1 - [2005] FMCA 1505
Cite 2 - [2005] FMCA 1505
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
2 citations
Jump To
Cite 1 - (1964) 112 CLR 125
Cite 2 - (1964) 112 CLR 125
Rama v University of South Australia [2004] 136 FCR 344
2 citations
Jump To
Cite 1 - [2004] 136 FCR 344
Cite 2 - [2004] 136 FCR 344
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
2 citations
Jump To
Cite 1 - [1998] 1 VR 102
Cite 2 - [1998] 1 VR 102

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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