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Singh v State of Queensland QPS QCATA 35
Singh v State of Queensland QPS  QCATA 35
State of Queensland, QPS
Application and Appeals
14 December 2015
Dr B Cullen, Member
30 March 2016
THE APPEAL TRIBUNAL ORDERS THAT:
APPEAL – LEAVE TO APPEAL – where the tribunal refused to hear the complaint – where the complaints were made outside the deadline – whether the decision not to hear the complaints was an error of fact and law – where expert reports filed out of time – whether refusal to extend time was an error of law
Anti – Discrimination Act 1991 (Qld) s 175
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3, 4, 28, 29, 32, 142(3)
Albrecht v Ainsworth & Ors  QCA 220
Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1
Harris v Department of Local Government  QADT 12
House v The King (1936) 55 CLR 499
Simpson (aka Bird) v Button  QADT 7
Waters v Public Transport Corporation (1991) 173 CLR 349
Westerland & Ors v W & M Meats & Ors  QADT 5
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).
REASONS FOR DECISION
- Applications APL269-15 and APL495-15 are for leave to appeal against tribunal decisions on matters of procedure in ADL23-15. They were heard concurrently on the papers by the Appeal Tribunal on 14 December 2015.
- For the reasons that follow, APL269-15 (an application for leave to appeal the decision under s 175(2) of the Anti-Discrimination Act 1991 (Qld) (“QADA”) not to deal with referred complaints made more than a year after the alleged contravention) should be dismissed, but APL495-15 (an application for leave to appeal the decision not to extend the time limit for complying with Direction 11, made on 2 November 2011, for the filing of the applicant’s statement of evidence by 20 October 2015) should be granted, the appeal allowed, the decision at issue set aside, and the time for compliance extended retrospectively to 28 October 2015.
- The applicant is a discrimination complainant. He alleges a total of 102 contraventions of the QADA, taking place between 25 February 2009 and 26 June 2014. Only the last complaint was made within 12 months of the alleged breach.
- The Tribunal declined to exercise its discretion to hear 101 alleged contraventions occurring before 14 June, 2014, because:
- apart from “mere assertions”, the applicant did not “produce any credible evidence that he was “incapable” of making the complaints in time;
- it was reasonable to infer that the applicant’s extensive diary notes in respect of each contravention during the offending period were made to verify an intended future complaint. Accordingly, the applicant was well-positioned to file a complaint within the prescribed time limit;
- the applicant should “bear the consequences” of his tactical decision to delay filing a complaint in respect of the late contraventions;
- the evidence required to test the allegations would be “compromised” after such delay, making it difficult for the Tribunal to make efficacious findings regarding the credibility of the respective parties;
- the second respondent would not be prejudiced in contesting the 2014 allegation, because the diary could be used to evaluate the applicant’s credibility, and the diary’s accuracy could be tested;
- the limitation period is “particularly apt” in word-against-word cases where “objective documentary proof is absent”;
- the evidentiary burden on the respondent is “very high to refute each and every one of those allegations”, which is likely to make the hearing complex and expensive; and
- on balance of fairness, the applicant’s decision not to complain earlier should “be upheld”, otherwise there would be “significant prejudice” to all parties, including the applicant, in proving whether events up to six years ago occurred.
- Thus, the Tribunal’s decision not to exercise its functions to “hear and decide” the 101 alleged contraventions was based on a finding that such a hearing would not be in the overall interests of fairness to both parties.
- The requirement of leave to appeal, prescribed under ss 142(3)(a)(ii) and (b) of the QCAT Act, is to discourage pedantic challenges to procedural orders or directions, fulfil the statutory objectives outlined in s 3 of the QCAT Act, provide procedural fairness to the parties in accordance with ss 28 and 29 of the QCAT Act, and acknowledge the authority of the original decision maker.
- Moreover, rehearings are generally not as of right. The applicant has the onus to justify the allocation of limited judicial and administrative resources by meeting the “gateway criteria” of demonstrating a reasonable case of discretionary error (specific or inferred), in line with the principles of House v The King, and the need to correct a substantial injustice.
- It is not enough that the Appeal Tribunal might have made a different – even opposite – decision on the same body of evidence. Unlike points of law, the “correctness” of discretionary judgment is often contestable, because human decision making is a fallible process by nature, and the “correctness” of a choice between two arguably imperfect alternatives is rarely demonstrably right or manifestly wrong.
- The only potential appellable error is cited by the applicant at  of the annexure to the originating application and discernible from  of his written submissions; that is, that the decision not to deal with the 101 complaints was based on mixed error of fact and law regarding the balance of fairness.
- A discretionary decision is correct if it is reasonable, within the ordinary common sense meaning of that term.
- The considerations relevant to determining fairness and reasonableness vary between cases. Each concept involves subjective value judgments.
- The Tribunal considered all relevant factors, and no irrelevant considerations. The conclusion it reached followed inferences, and factual findings, made on the evidence.
- The decision relied on by the applicant, Harris v Department of Local Government, is distinguished because the complaints were only “a matter of months” late. In this case, many of the contraventions forming the basis of the complaint were several years late.
- Westerland & Ors v W & M Meats & Ors is more analogous. In Westerland, seven years of unexplained delay elapsed between the first and last complaint.
- The applicant seeks to adduce sections of a psychological report of Dr Mann dated 6 February 2014 on the rehearing if granted leave to appeal.
- However, the proposed appeal is not reasonably arguable. No asserted error justifies a grant of leave.
- Nevertheless, the Tribunal is concerned to ensure the applicant does not “fall between the cracks”, so to speak, if the Tribunal convened to determine the complaint is differently constituted.
- The hearing procedure is at the discretion of the Tribunal exercising the adjudicative function. The overriding obligation to act fairly and according to the substantial merits of the case consistently with the rules of natural justice is not a practical guarantee that the rules of evidence will be observed. This means that it cannot be safely assumed that the 101 excluded complaints will be admitted for or against the applicant as going to either issue or credit.
- On ordinary evidentiary principles, similar evidence would be admissible as context or relationship evidence in the applicant’s case. The diary notes, by contrast, are strictly documentary hearsay. Also, because they emanate from the same source as the evidence they purport to confirm, they offend the rule against self-corroboration. If the diary is not admitted despite the relevance of its contents because if, for example, its prejudicial effect outweighs its probative value, then contrary to the Tribunal’s clear expectation and intent, both the applicant and the respondents could be forensically disadvantaged.
- This evidentiary issue is an important preliminary matter deserving of detailed consideration. As such, the Tribunal intends to leave its resolution to the Member reconsidering the matter.
- The applicant wishes to call two expert witnesses: a Sikh specialist and a psychologist.
- However, their reports were filed after the extended deadline of 20 October 2015, namely 23 October 2015 and 28 October 2015 respectively.
- The applicant applies for leave to appeal the Tribunal’s interlocutory decision to refuse a request to extend time beyond 20 October 2015 for legal error on the basis of procedural unfairness.
- The application is opposed by both respondents because the late lodgement is not satisfactorily explained. The Queensland Police Service goes as far as to call it premature and an abuse of process, because there are other (unspecified) remedies available to the applicant, and he only has his own tardiness to blame.
- It submits that if leave is granted, the admissibility question should be remitted to the Tribunal for an oral hearing before a Senior Member.
- In light of the litigation history and the applicant’s repeated failure to meet deadlines (except the ones he sets for himself), the Tribunal’s exasperation and disinclination to reward persistent noncompliance with directions is understandable.
- Nonetheless, having regard to the combined effect of sections 3(b),(d),(e), 4(e), 28(2)(a)(c)(e) and 29(1)(b)(c) of the QCAT Act, the refusal to extend time by eight days to regularise lodgement is suggestive of nonspecific legal error.
- The application for leave is granted to ensure practical justice and avoid potential forensic disadvantage to the applicant, the appeal is allowed, and the decision set aside to this extent. The matter is remitted to the Tribunal for reconsideration in light of s 29(4) (which makes it clear that relevant documents, including expert reports, may be admitted despite formal non-compliance with any time limit) and the true evidentiary value each of the reports in resolving the substantial issues in dispute.
 QADA s 175(1).
 QADA s 175(2).
 (1936) 55 CLR at 505.
 (cf Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1).
 (cf Albrecht v Ainsworth & Ors  QCA 220 -.
 Waters v Public Transport Corporation (1991) 173 CLR 349,379,383-384, 410-411.
  QADT 12.
  QADT 5.
 QCAT Act s 28(1).
 QCAT Act s 28(2).
 Ibid s 28(3)(a).
 Ibid s 28(3)(b).
 Simpson (aka Bird) v Button  QADT 7.
 (cf  of the reasons).
- Published Case Name:
Singh v State of Queensland QPS
- Shortened Case Name:
Singh v State of Queensland QPS
 QCATA 35
30 Mar 2016