LD (by JD) v State of Queensland
[2025] QCAT 172
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- Unreported Judgment
- LD (by JD) v State of Queensland[2025] QCAT 172
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LD (by JD) v State of Queensland[2025] QCAT 172
LD (by JD) v State of Queensland[2025] QCAT 172
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | LD (by JD) v State of Queensland [2025] QCAT 172 |
PARTIES: | LD (BY JD) (applicant) v state of queensland (respondent) |
APPLICATION NO/S: | ADL048-20 |
MATTER TYPE: | Anti-discrimination matters |
DELIVERED ON: | 12 May 2025 |
HEARING DATE: | 31 March 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Traves |
ORDERS: |
|
CATCHWORDS: | HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DISABILITY OR IMPAIRMENT – where applicant seeks leave to amend complaint to include complaint of victimisation – where victimisation not subject of initial complaint to the Queensland Human Rights Commission – whether leave should be granted to amend Complaint Anti-Discrimination Act 1991 (Qld), s 129, s 130, s 178 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 ST v Metro South Hospital and Health Service & Ors [2022] QCAT 272 |
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
- [1]The applicant has made an application seeking to amend her Complaint to include victimisation and to rely on her further statements of 19 September 2024 and 14 October 2024.[2] The respondent opposes the application to amend the Complaint and objects to the admission in evidence of the Statement of JD on Victimisation dated 14 October 2024 and attachments. The respondent will not object to the admission into evidence of the Further Statement of JD dated 19 September 2024 and attachments but does object to paragraphs [26], [71], [80] and [84] of the statement which relates to the allegations of victimisation.
The referred Complaint and the application to amend
- [2]On 15 June 2020 JD emailed the Queensland Human Rights Commission (‘QHRC’), with two additional emails on 24 June 2020.
- [3]On 25 June 2020 the QHRC accepted the Complaint and treated it as a Complaint alleging impairment discrimination in the area of State laws and programs. The Complaint was referred to the Tribunal on 5 August 2020.
- [4]The applicant, LD, is a 14-year-old girl who has multiple impairments that have resulted in partial loss of bodily functions and in her being reliant on a wheelchair and other remedial and medical devices.
- [5]In summary, the applicant’s mother alleges the respondent has discriminated against her daughter on the basis of her impairment by:
- failing to progress her application for social housing; and
- failing to provide suitable housing to adequately accommodate her impairments.
- [6]Both direct and indirect discrimination are alleged.
- [7]On 21 October 2021 the applicant’s Statement of Contentions (alleging indirect discrimination) was filed.
- [8]On 28 February 2023 the applicant’s Amended Statement of Contentions (alleging direct and indirect discrimination) was filed. The Amended Contentions focus on the allegation that LD was discriminated against because the Dianthus Property was unsuitable for her needs in a number of important respects. The Amended Contentions contain an itemised list of alleged defects or issues with the house.
- [9]On 28 March 2023 the respondent’s Amended Response to the Contentions was filed. The Amended Response contends that JD needed to apply to the NDIS for funding of specialised equipment her daughter required, essentially because the function of the Department is to provide social housing whereas the NDIS provides funding for items and services related to disability. This, the respondent alleges, is against the background of a high demand for social housing, limited housing stock, lengthy waiting lists, and more recently the current housing crisis.
- [10]On 15 October 2024 the applicant’s legal representative in submissions filed in support of the application to amend the contentions to include a complaint of victimisation, argued that the discriminatory conduct can ‘also be classed as victimization (sic), or a failure to provide procedural fairness and natural justice’ and ‘is not the raising of a new basis of claim, but a further demonstration of how the conduct of the Respondent may amount to discrimination and violation of the rights of the Applicant.’
- [11]The applicant’s legal representative describes the alleged victimisation by reference to the following incidents:
- being subject to ‘retaliatory actions by DHPW’ after raising formal complaints regarding the excessive eight year wait for appropriate disability housing;
- mismanagement of housing application records, in particular DHPW wrongly claiming to have lost JD's first application and being ‘accused’ of failing to submit review forms which she never received from DHPW;
- conducting an unwarranted and procedurally unfair investigation into the applicant’s medical cannabis treatment;
- DHPW’s improper contact with law enforcement regarding medical choices made for the applicant which was a violation of privacy based on hearsay and served to intimidate and harass rather than address any legitimate housing concerns;
- unjustified delays longer than others on the high needs priority list;
- the applicant incurred unnecessary scrutiny of her private medical decisions following concerns raised by JD with senior officials;
- DHPW knowingly left the applicant homeless by arranging for removal of the family’s belongings without confirming the readiness of the next property;
- DHPW tried to relocate the family to Bray Park, an hour away from all the applicant’s support systems including full-time carers, family members and medical specialists;
- moving the applicant to temporary accommodation meant she was denied access to her assistance dog and to the medical and physiotherapy equipment she required;
- no compensation was provided for items damaged when moved to storage;
- false and misleading representations were made by DHPW regarding the modifications and inclusions the applicant would receive in the ‘Dianthus Property’ and key modifications were not included in the property;
- DHPW ‘attempted to coerce the applicant to sign the Lease agreement for the Dianthus Property’ without allowing an inspection;
- DHPW coerced the applicant ‘under duress’ to sign the lease for the unsuitable Dianthus Property after she was told that DHPW would no longer fund temporary accommodation and that the family would be left homeless;
- the Dianthus Property remains incomplete;
- the day the applicant moved into the Dianthus Property, David Murrin from DHPW went on leave; many items that he said were included in the build were not; the applicant’s belongings were not organised by DHPW to be moved from storage to the Property until six days later;
- repeated access requests were made to the Dianthus Property in February 2022 and February 2023 and were unrelated to housing as only the backyard was inspected;
- DHPW ignored the applicant’s complaints resulting in ongoing discrimination and victimisation.
- [12]The respondent refers to s 130 of the Anti-Discrimination Act 1991 (Qld) (‘AD Act’) and submits that to establish an arguable case of victimisation JD would need to have evidence that the Department subjected her to victimisation within the meaning of that section and acted to the applicant’s detriment for reasons prohibited under s 130(1)(a) or (b). The respondent submits that the applicant has not produced any evidence of that.
- [13]The respondent refutes each of the claims of victimisation made by the applicant.
Legal principles
- [14]Section 178 of the AD Act provides that the tribunal may allow a complainant to amend a complaint even if the amendment concerns matters not included in the complaint.
- [15]Section 175(2) provides that if a complaint is made more than one year after the alleged contravention, the tribunal may deal with the complaint if the tribunal considers, on the balance of fairness between the parties, it would be reasonable to do so.
- [16]The discretion in s 178 is broad and untrammelled. The power to amend a complaint is not, on its face, limited to complaints relating to matters that occurred within one year of the application to amend. In my view, there is no basis for importing the ‘balance of fairness’ test from s 175(2) into s 178.[3] That said, the most likely source of proposed amendments will be allegations that arise from conduct that occurred after the Complaint was made, however the power in s 178 is not limited in that way.
- [17]It has been held that relevant considerations when deciding whether to exercise the discretion to allow an amendment by adding a complaint is the age of the additional complaint, its relationship with the complaint that has already been referred[4] and to what extent allowing the amendment will facilitate the just and expeditious determination of the matter.[5]
- [18]In this matter, the complainant seeks to amend her Complaint by adding an allegation of victimisation. Victimisation, in general terms, occurs when a person is subjected to detriment because they asserted their rights under the AD Act or made clear they intended to do so, for example, by making a complaint. Victimisation, by its nature, will logically arise after a complaint is made and will be related to the complaint.
- [19]Victimisation, as defined by s 130 of the AD Act could be established if the complainant was able to prove, on the balance of probabilities, that:
- JD (a person related to the complainant) did one of the acts set out in s 130(1)(a) or the respondent believed that she would, for example, that she alleged or intended to allege that a person committed an act that would amount to unlawful discrimination; and
- because of that, the Department did an act or threatened to do an act to the detriment of LD.
- [20]It is unclear from JD’s submissions which ‘act’ in s 130(1) she relies on and, if it was an allegation of unlawful discrimination, when the Department first became aware of it.
- [21]Assuming the first allegation of that nature was made by JD when she lodged the Complaint on behalf of LD with the QHRC, then the relevant date would be 15 June 2020. Any acts of the Department that occurred prior to that date, could not, by definition, constitute acts of victimisation.
- [22]JD has listed a series of acts by the Department that she says each constitute victimisation. She has not, however, given any dates for any of the acts, or any basis from which it might be inferred that the act of the Department was taken because of JD’s Complaint. Further, as I have said, it is not clear what act of hers she relies upon as the cause of the alleged victimisation by the Department or the date on which that occurred.
Consideration
- [23]The Tribunal has given JD two opportunities, in 2020 and in 2023, to define her case by way of Contentions, to which the respondent has filed a Response. On 13 July 2024, at the most recent compulsory conference, the presiding Member issued Directions which noted the parties had advised that all statements of contentions and witness statements had been filed by both parties and that the parties would continue to have private ‘without prejudice’ discussions to try to resolve the dispute or to narrow the issues in dispute.[6] I also note that as far back as 8 December 2023, a Senior Member directed that, if the matter did not resolve at compulsory conference, it would be listed for a five day oral hearing in Brisbane on a date to be fixed.[7]
- [24]The matter, but for the application for leave to amend the Complaint, has been ready to proceed for some nine months. Amending the Complaint at this late stage of the proceeding would set the matter back considerably, new Contentions would need to be filed and further statements obtained, all of which would necessarily mean more delay and further costs for both parties.
- [25]In circumstances where it is not clear what ‘act’ within s 130(1)(a) JD is relying on, it is impossible to determine whether the incidents she relies on can conceivably give rise to victimisation. Further, it is not clear from the proposed amendments that JD understands that the incidents she relies upon as constituting acts of victimisation, must have been done because she did that ‘act’.
- [26]The claim, in my view, must have some merit to justify adding it where to do so would add considerably to the length of the proceeding and to the complexity of the matter.
- [27]Some of the incidents relied upon as acts of victimisation were matters that were referred to in the material accompanying the Complaint but were not identified as matters that gave rise to a victimisation complaint. Some of the incidents, though not referred, are related to the events the subject of the initial Complaint. However, apart from listing incidents, often under broad headings, there is no attempt to address the elements of s 130 of the AD Act, for example, by saying when the act occurred, how it was to the detriment of LD and how it can be shown to have been done because JD made a complaint or threatened to make a complaint of unlawful discrimination.
- [28]For example, JD refers, in support of the first alleged incident of victimisation, to documents that pre-dated (by years in some cases) her actual Complaint. It is unlikely such documentation could be evidence of retaliatory conduct if it pre-dated the act it was supposed to be in retaliation for. I note no other acts within the meaning of s 130(1)(a) have been identified. The alleged acts of retaliation referred to by JD are that the respondent made unwarranted inquiries into the provision by JD of cannabis to her daughter and that her family’s personal and medical decisions were subjected to ‘targeted scrutiny’. The evidence provided in support of this claim are emails dating back to January 2018 through to September 2019 which mention JD’s attitude to growing and supplying medicinal cannabis to LD. In my view, on the material before me, there is no semblance of a valid complaint of victimisation provided by either the summary of the incident or the accompanying documentation.
- [29]Another incident relied upon by JD as constituting an act of victimisation is the ‘delay’ in providing her with social housing. This was the original basis for her claim of indirect discrimination but was abandoned in the Amended Statement of Contentions. JD seeks, by this proposed amendment, to make delay the basis for her claim of victimisation, in other words, she now claims that the eight year delay was deliberate conduct taken by the Department in retaliation for her making the discrimination complaint. In the absence of any other ‘act’ within the meaning of s 130(1)(a), the only potentially relevant delay would be delay that occurred after the complaint was lodged, that is, after 15 June 2020. Further, JD refers to the documents she says supports her allegations that the underlying core issue for the eight year delay to be allocated housing are ‘all due to DHPW attempting to find evidence that I was growing cannabis at the property to produce medicine for my daughter.’ If that was the reason, then it is difficult to see how the delay could constitute an act of victimisation within the meaning of s 130(1)(a).
- [30]JD also says she has documents which show a failure to provide procedural fairness and that she was ‘intentionally withheld’ from having government housing as an act of discrimination against LD and had her name ‘intentionally removed’ from the waiting list by DHPW staff and that the reason for doing so was ‘discrimination and serious misconduct’.[8] Again, for the alleged conduct to constitute victimisation, it would need to have been done in retaliation for JD making a Complaint (or another act set out in s 130(1)(a)), that is, for example, the alleged removal of her name from the waiting list must have been because JD made a complaint of unlawful discrimination or was going to.
- [31]In relation to other incidents, there is nothing in the material before me to suggest that the Department had, as a ground for doing the things complained of, the fact of the existence of JD’s Complaint to the QHRC or a threat to make one. Although I do not need, for the purposes of this application, to be satisfied the claims are made out, in my view, whether there are reasonably sufficient details to indicate an alleged contravention has occurred, is relevant in determining whether to grant leave.
- [32]In all the circumstances, given the very late stage at which these allegations are raised, and given there is no discernible basis for the characterisation of the allegations as victimisation, it would not be in the overall interests of justice, to allow them to proceed. I am not satisfied, based on the material before me, that the benefits outweigh the detriment to the parties and the prejudice inevitably caused to the timely resolution of the matter.
- [33]Moreover, the tribunal has limited resources. Those resources must be utilised in a way that serves the public as a whole, not merely the parties to a particular proceeding.[9] Inefficiencies in the use of that resource by allowing amendments at a very late stage of proceedings where the basis of the claims are not discernible from the material filed in support of the amendment, should be avoided.
- [34]The Tribunal has an obligation to deal with matters in a way that is ‘accessible, fair, just, economical, informal and quick’[10] and, in conducting a proceeding, must act ‘with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit’.[11] As the High Court held in Aon Risk Services Australia Ltd v Australian National University:
A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate. (emphasis added).[12]
- [35]Further, s 45 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that each party to a proceeding must act quickly in any dealing relevant to the proceeding.
- [36]Accordingly, for the reasons above, the application to amend is refused.
Footnotes
[1]These reasons were amended on 12 May 2025 by adding Order 1 and making subsequent amendments to anonymise the applicant.
[2] Application for miscellaneous matters dated 15 October 2024.
[3] ST v Metro South Hospital and Health Service [2022] QCAT 272, [50], citing Simonova v State of Queensland [2018] QCAT 311, [21]-[23].
[4] Vafa v University of Newcastle [2021] NSWCATAD 348, [12].
[5] ST v Metro South Hospital and Health Service [2022] QCAT 272, [50].
[6] Tribunal Directions dated 31 July 2024.
[7] Tribunal Directions dated 8 December 2023.
[8] Further Statement of JD dated 19 September 2024 at [82].
[9] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [5]. See also Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13].
[10] QCAT Act, s 3(b).
[11] QCAT Act, s 28(3)(d).
[12] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [112] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.