Zhang v Bric Housing[2025] QCAT 335

QUEENSLAND CIVIL AND ADMINISTRATIVE TRUBUNAL

REASONS FOR DECISION

1. [1]
   Lu Wen Zhang has been a tenant of Bric Housing since 2014. It would be fair to say that her tenancy with Bric has not been a happy one.
2. [2]
   This is Ms Zhang’s third complaint about her treatment in and around her tenancy. It should be ready for a hearing. Instead, Ms Zhang wants to amend her statement of contentions, again.

How did we get here?

3. [3]
   It is not my practice to recite the procedural steps taken in getting a matter before the Tribunal but, in this case, those steps are important in deciding the question.
4. [4]
   In 2022, Lu Wen Zhang filed an eleven-page complaint with the Human Rights Commission about the treatment she received as a tenant of Bric Housing. The complaint was prepared with the assistance of lawyers. This was not Ms Zhang’s first interaction with the world of anti-discrimination. The Tribunal had dismissed a previous complaint against Bric but upheld her complaint against a neighbour.
5. [5]
   The Commission referred that complaint to the Tribunal in November 2023. As was usual, the Tribunal issued directions requiring Ms Zhang file and serve a statement of contentions within 28 days. Those directions were specific about what should be included in Ms Zhang’s statement of contentions.
6. [6]
   Ms Zhang asked for, and received, a three-month extension on two bases: that she had limited English, and that she was waiting for assistance from LawRight. She filed her statement of contention within the extended time.
7. [7]
   Bric considered that Ms Zhang’s statement lacked clarity and particulars. It asked the Tribunal for an order that Ms Zhang resubmit her statement, addressing those deficiencies.
8. [8]
   The Tribunal directed the parties attend a compulsory conference. It further ordered that, if the dispute did not resolve at the conference, Ms Zhang had to file and serve an amended statement of contentions.
9. [9]
   Obviously, the dispute did not resolve at the conference. In March 2024, Ms Zhang filed an amended statement of contentions. That statement was prepared by a lawyer. Again, Bric criticised its sufficiency.
10. [10]
    Ever optimistic, the Tribunal sent the parties back to compulsory conference. The dispute did not resolve, and, in November 2024, Ms Zhang asked the Tribunal to list the matter for hearing.
11. [11]
    The Tribunal listed the matter for directions in January 2025. In the meantime, Ms Zhang had engaged a third set of lawyers. They decided that Ms Zhang needed to amend her statement of contentions yet again and filed an application to that effect together with a draft amended statement of contentions.
12. [12]
    Bric submits that the Tribunal should not accept this document because it:

    1. attempts to relitigate matters the Tribunal dismissed in separate proceedings;^[1]
    2. seeks compensation for the conduct of a neighbour, Charles Hoban, for which Ms Zhang received compensation in separate Tribunal proceedings;^[2]
    3. adds matters to her complaint when she had ample opportunity to raise them earlier.

The application

13. [13]
    Section 64 of the QCAT Act enables the Tribunal to amend an application or referral at any time in the proceeding.
14. [14]
    My exercise of the Tribunal’s power is informed by s 175(2) of the Anti-Discrimination Act 1991 (Qld) (“ADA”) which states that, if the complaint was made more than one 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. Therefore, there is a fourth issue I must consider – whether Ms Zhang’s amended statement of contentions contains complaints that were made more than one year after the alleged contravention.

Does the amended statement of contentions attempt to relitigate matters?

15. [15]
    The Tribunal struck out Ms Zhang’s earlier claim because she had not complied with Tribunal directions. Although it had power to strike out the proceedings pursuant to ss 47 or 48 of the QCAT Act, the Tribunal simply refused to exercise its power to extend a time limit under s 62.
16. [16]
    The difference is material. If a proceeding is struck out under ss 47 or 48, another proceeding or a part of a proceeding of the same kind relating to the same matter cannot be started before the Tribunal without the leave of the President or Deputy President.^[3] Ms Zhang is not so constrained.
17. [17]
    The Tribunal’s earlier decision was not substantive. The Tribunal made no findings of fact about Ms Zhang’s claim. It does not, therefore, operate as a bar to future proceedings on the same facts and/or issues.^[4]
18. [18]
    Ms Zhang’s amended statement of contentions might be an attempt to relitigate the matters in the earlier proceeding – so far as they relate to Bric and its employees - but there is nothing to prevent her from doing so.
19. [19]
    The earlier proceedings against Mr Hoban are a different matter.

Is Ms Zhang seeking compensation for the conduct of a neighbour Charles Hoban, for which Ms Zhang received compensation in separate Tribunal proceeding?

20. [20]
    By a decision dated 18 September 2024, the Tribunal ordered, relevantly, that Mr Hoban pay Ms Zhang compensation and vacate his tenancy within 28 days of the date of the order. Mr Hoban has appealed that decision and, at the time of writing, the order to vacate has been stayed.
21. [21]
    The amended statement of contentions recites a series of incidents between Ms Zhang and Mr Hoban and submits that, each time, Bric failed to take appropriate action.
22. [22]
    I am not favoured with the Tribunal’s reasons for its decision against Mr Hoban, but I surmise it was a consequence of the same incidents of which Ms Zhang now complains.
23. [23]
    Although the allegations may have the same factual basis, the discrimination complained of, and the effects on Ms Zhang, are different. 

Does the amended statement of contentions add matters to her complaint when she had ample opportunity to raise them earlier?

24. [24]
    The thrust of Ms Zhang’s complaint is that she was victimised by Bric issuing breach notices against her but not against other tenants.
25. [25]
    There are three complaints in the amended statement of contentions that do not appear to be particularised in Ms Zhang’s earlier complaint. The first relates to Mr Hoban's alleged threatening conduct in mid-2021.^[5] The second is that Bric failed to respond to a petition she sent in mid-2022.^[6] The third is that Ms Zhang was victimised by Bric requiring her to remove security cameras.^[7]
26. [26]
    The last complaint was included as a ground in the Commission’s decision that her complaint was not frivolous, vexatious, misconceived or lacking in substance.
27. [27]
    None of the complaints is of real significance. They all address Ms Zhang’s primary contention that Bric victimised her in its dealings with her and other tenants.
28. [28]
    Bric’s real complaint is that the amended statement of contentions does more than just recite a series of facts; it now sets out why those facts are discriminatory. But that is precisely what Bric wanted Ms Zhang to do when it first sought an amended statement of contentions.
29. [29]
    Bric also submits that Ms Zhang’s complaint was limited to the failure to issue notices in Mandarin and the issue with the security camera, and she should not now be allowed to expand the nature of the complaint.
30. [30]
    It is true that the Commission summarised Ms Zhang’s complaint in those terms^[8] but the complaint itself was in much wider terms, detailing other incidents of alleged harassment and victimisation.

Does Ms Zhang’s amended statement of contentions contain complaints that were made more than one year after the alleged contravention?

31. [31]
    If I take the date of complaint to be the date in which this application was filed, all three ‘new’ complaints are outside the one-year time limit.

Should the tribunal exercise its discretion?

31. [32]
    The matters to be considered in the exercise of the Tribunal’s discretion under s 175(2) are well settled, as set out by Member Boddice SC (as his Honour then was) in Wong v Medical Board of Queensland [2006] QADT 41 at [32]. Similar considerations apply when the Tribunal is exercising its discretion under the QCAT Act, including: 

1. the length of the delay;
2. any explanation by the complainant for the delay;
3. any prejudice to the respondent, should the discretion be exercised in the complainant’s favour;
4. any prejudice to the complainant, should the discretion be exercised in the respondent’s favour; and
5. whether there is a lack of merit to the complaint.

The length of the delay 

32. [33]
    On any view, there has been an extensive delay in the production of this version of the statement of contentions. Ordinarily, a delay of this duration would be a good reason to refuse an application to amend.

The explanation for the delay

33. [34]
    The Tribunal must bear some of the burden for that delay in sending the dispute to another compulsory conference and its failure to list the dispute for a hearing in a timely way.
34. [35]
    Ms Zhang changed her legal representation in November 2024. The new lawyers inspected the file in January 2025 and filed this application in the same month. No delay can be attributed to the change in legal representation.
35. [36]
    Ms Zhang says that the delay was also caused by her difficulty in communicating in English, her difficulty in understanding the legal framework under the ADA and her history of mental illness.
36. [37]
    I have no evidence about Ms Zhang’s mental illness and how it might affect her ability to conduct these proceedings. I accept that English is not her first language, but I have no ability to assess her fluency in English.
37. [38]
    I do not accept Ms Zhang’s contention that she has difficulty in understanding the legal framework of the ADA. As these reasons record, she has successfully brought proceedings against Mr Hoban and has been assisted by at least two sets of lawyers.

Is there any prejudice to Bric in allowing the amendment?

38. [39]
    Bric submits that it will suffer severe and irreparable harm^[9] but does not provide any particulars of what that harm may be.
39. [40]
    This complaint has been hanging over Bric’s head for over six years now. It has a right to see the end of this matter in a way that meets the Tribunal’s requirement to deal with matters in a way that is accessible, fair, just, economical, informal and quick.^[10]
40. [41]
    Where there are lengthy delays, memories dim and key employees move away. That might be the case with Bric, but I have no way of telling. In contrast, Ms Zhang points out that the matters of which she complains have been known to Bric for some time. The inference is that Bric should have already quarantined its necessary evidence. I have no information on whether that is true.
41. [42]
    The amended statement of contentions does answer Bric’s initial complaints in accordance with the Tribunal’s direction in November 2023. In that respect, it provides both Bric and the Tribunal with clarity about the real nature of the dispute.

Is there any prejudice to Ms Zhang in not allowing the amendment?

42. [43]
    If I do not allow the amendment, Ms Zhang will be restricted to the incidents outlined in her initial complaint. Given that all but three minor incidents are within the ambit of the original compliant, the likely prejudice to Ms Zhang if I do not allow the amendment is minimal.

Is there a lack of merit to the complaint?

43. [44]
    Bric says that Ms Zhang’s complaint lacks merit and believes it will be successful at hearing. However, Bric’s response really acknowledges that, at least on paper, Ms Zhang has a prima facie case that it is required to meet.
44. [45]
    I am not required to consider whether Ms Zhang will, ultimately, be successful. It is enough that she has an arguable case. That is something that the Commission acknowledged as early as 2023.

Conclusion

45. [46]
    This proceeding has had an unfortunate history. It has languished in the Tribunal for far too long.
46. [47]
    I sympathise with Bric’s position of having this matter unresolved for so long and having to deal with a poorly constructed statement of contentions. The proposed amendment will allow both parties to articulate their cases concisely and enable the Tribunal to meet its objectives.
47. [48]
    It is time to rip the band aid off and deal with the substantive issues. The Tribunal should now make directions for the filing of evidence with a view to having a hearing in this calendar year.