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Woodforth v Queensland[2016] QCATA 7

Woodforth v Queensland[2016] QCATA 7

CITATION:

Woodforth v State of Queensland [2016] QCATA 7

PARTIES:

Veronica Woodforth

(Applicant/Appellant)

v

State of Queensland

(State of Queensland)

APPLICATION NUMBER:

APL008-15

MATTER TYPE:

Appeals

HEARING DATE:

14 August 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Member Guthrie

DELIVERED ON:

11 January 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal is refused.
  2. The appeal is dismissed.

CATCHWORDS:

DISCRIMINATION – DIRECT AND INDIRECT DISCRIMINATION – COMPLAINT TO POLICE – POLICE INVESTIGATION – HEARING IMPAIRMENT – Where Ms Woodforth is a person with a hearing impairment – whether the police service failed to investigate her complaints due to her hearing impairment – whether the police failed to investigate her complaints in a timely manner due to her impairment – INDIRECT DISCRIMINATION – whether term or condition imposed

APPEARANCES and REPRESENTATION:

APPLICANT:

represented by Ms P Morreau of Counsel instructed by Caxton Legal Centre

STATE OF QUEENSLAND:

represented by Ms S D Anderson instructed by Public Safety Business Agency Legal Service for the Queensland Police Service

REASONS FOR DECISION

  1. [1]
    Ms Woodforth is hearing impaired. She mostly communicates in Auslan and that is her first language. Ms Woodforth uses hearing aids. She has minimal lip reading ability and speaking skills and is able to communicate in writing using basic English.
  2. [2]
    In December 2011 Ms Woodforth shared a house with Colleen and Ricky Buck, Natasha Howland and Kym Croad. Mrs Buck, Ms Croad and Ms Howland are hearing impaired.
  3. [3]
    On the evening of 13 December 2011, a physical fight broke out between a number of the residents of the house and Ms Woodforth alleged Mrs Buck had assaulted her. Police (“the QPS”) attended the scene. The investigation of Ms Woodforth’s complaint and the complaints made by others was referred to the Criminal Investigation Bureau (CIB). In the days and weeks following the events of 13 December 2011, Ms Woodforth attended the Ipswich Police Station to make other complaints and was assisted by police in collecting some of her belongings from the house.
  4. [4]
    On 28 March 2012, Senior Constable Rosee, who was in charge of the investigation, formally interviewed Ms Woodforth with the assistance of an Auslan interpreter, at the Ipswich Police Station.
  5. [5]
    In April 2012, Ms Woodforth lodged a complaint of discrimination, based on her hearing impairment, against the State of Queensland (Police Service) in the area of services/state laws and programmes with the Anti-Discrimination Commission Queensland. On 25 November 2012, the matter was referred to the Tribunal.
  6. [6]
    The tribunal conducted a hearing on 27, 28 and 29 October 2014. On 10 December 2014, the tribunal delivered written reasons for its decision to dismiss Ms Woodforth’s application. This is an appeal from that decision.
  7. [7]
    The grounds of appeal, which raise both questions of law and questions of mixed fact and law, are:
    1. The learned member incorrectly formulated the relevant comparator for the purposes of s 10(1) of the Anti-Discrimination Act 1991 (Qld) (“ADA”);
    2. The learned member impermissibly gave consideration to the fact that Ms Woodforth required special services or facilities in determining whether she had been treated less favourably;
    3. The  learned member erred in finding that the treatment by the police of Ms Woodforth was not less favourable on the basis of her impairment;
    4. The learned member made findings against the evidence and failed to consider relevant evidence;
    5. The learned member failed to consider whether a term was imposed that the police would only investigate complaints in a timely manner if a complainant was able to communicate in conventional spoken English.

Grounds (a) to (d) involve issues of direct discrimination. Ground (e) relates to indirect discrimination.[1]

  1. [8]
    Leave to appeal will usually only be granted where there is a reasonably arguable case of error in the primary decision[2]; where there is a reasonable prospect that the applicant will obtain substantive relief[3]; where leave is necessary to correct a substantial injustice[4]; where there is a question of general importance upon which further argument and a decision of an appellate court would be to the public advantage[5].
  2. [9]
    Leave is required to appeal on a question of fact or mixed law and fact, but not to appeal on a question of law.[6] It is appropriate to decide the appeal and the application for leave to appeal together.

The statutory framework

  1. [10]
    Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.[7]
  2. [11]
    Attribute is defined[8] and includes impairment. Impairment is defined.[9]
  3. [12]
    Indirect discrimination happens if a person imposes, or proposes to impose, a term with which a person with an attribute does not or is not able to comply; and with which a higher proportion of people without the attribute comply or are able to comply; and that is not reasonable.[10]
  4. [13]
    Whether a term is reasonable depends on all the relevant circumstances of the case.  It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination. 
  5. [14]
    A “term” includes condition, requirement or practice, whether or not written.[11]
  6. [15]
    It is agreed that Ms Woodforth has an attribute under s 7(h) and the definition of “impairment” in the ADA[12]. However, there is some dispute regarding the extent to which Ms Woodforth is able to effectively communicate in the absence of an Auslan interpreter.
  7. [16]
    In her reasons, the learned member noted that Ms Woodforth, when wearing hearing aids, can hear around 50% of close conversation, that she has minimal lip reading and speaking skills and can communicate in writing using basic English.[13] The transcript of Ms Woodforth’s evidence indicates that according to her hearing test she has 55% hearing.[14]
  8. [17]
    Ms Woodforth says that:
  • she has a severe to profound hearing impairment;
  • a hearing aid offers her only slight assistance;
  • her first language is Auslan;
  • she can lip read but does not do so well and her comprehension depends on the speaker and her skills diminish under stress;
  • she can communicate in but has difficulty with written and spoken English;
  • she can say, write and understand short phrases in English;
  • her reading is at a basic level;
  • she lacks confidence communicating in English (written or oral) and finds it stressful and confusing.[15]
  1. [18]
    We note Ms Woodforth’s evidence that “according to [her] test” she has 55% hearing.[16] We accept the background regarding Ms Woodforth’s hearing impairment is correctly set out by the learned member in her reasons. 

Was the correct comparator adopted?

  1. [19]
    Ms Woodforth says that in applying s 10(1) ADA, the comparator adopted by the learned member ‘(was) not hearing impaired, but had communication difficulties[17].
  2. [20]
    Ms Woodforth says that this was an erroneous approach because “communication difficulties” form part of the essence of Ms Woodforth’s impairment. It is a characteristic which one who is hearing impaired generally has, says Ms Woodforth, within the meaning of s 8(a) ADA. Ms Woodforth says that it is so bound up with the attribute of a hearing impairment as to be part of it. A person with a hearing impairment will inevitably have communication difficulties with others who do not have the impairment.
  3. [21]
    Ms Woodforth refers to the hypothetical task warned of by President Dalton in Edwards v Hillier & Educang Limited t/a Forest Lake College[18] that ‘the notion of what an attribute comprises will be stripped of meaning, so that s 10 of the ADA will only operate to prohibit the grossest kind of discrimination, becomes a reality’. She says that the outcome warned of will become manifest if the comparator adopted by the learned member is upheld.
  4. [22]
    Ms Woodforth says that those who would form part of the comparator group identified by the learned member would include non-English speaking persons or those with severe disabilities or illnesses which affect speech. Those individuals, it is submitted, have attributes which are protected under the Act[19]. If the QPS in fact treated those with “communication difficulties” differently from those who spoke English competently it would, says Ms Woodforth, probably be engaging in gross discrimination.
  5. [23]
    Ms Woodforth seeks to distinguish her circumstances from those in Purvis v State of New South Wales[20]. Ms Woodforth submits that whilst in some senses “impairment” under the Act can be considered to have some similarities with the concept of “disability” under the Disability Discrimination Act 1992 (Cth)[21], the treatment of impairment under the ADA is not so separate from the other forms of discrimination protection within the ADA.[22]
  6. [24]
    Ms Woodforth also seeks to distinguish Purvis on the facts. Ms Woodforth argues that the conduct in Purvis (the violent actions of a child), whilst  a consequence of the child’s impairment and flowing from the impairment, did not inevitably do so. Ms Woodforth says that her communication difficulties are an inevitable consequence of her impairment. Ms Woodforth says that her impairment is one which only falls within the definition in paragraphs (a) or (b) of the Schedule definition[23] and not within the definitions provided by paragraphs (c) or (d), which include the impacts of the condition. Such was not the case in Purvis.[24]
  7. [25]
    Ms Woodforth stopped short of submitting that it would be wrong in every case to adopt a comparator where a characteristic linked to the particular attribute under consideration would also be linked to another of the attributes listed in s 7.
  8. [26]
    Ms Woodforth, relying on Lyons v State of Queensland[25], submits that the comparator adopted by the learned member should have been a person interacting with officers of the QPS as a victim or a defendant who, being without a hearing impairment, could communicate effectively in conventional English.
  9. [27]
    What Ms Woodforth contends for is a departure by this Appeals Tribunal from Purvis.
  10. [28]
    In Purvis the child, the subject of the alleged discrimination, suffered brain damage in the first year of his life resulting in intellectual impairment and epilepsy. These disabilities were manifested in, among other things, disinhibited and uninhibited behaviour. This behaviour was on occasion violent.
  11. [29]
    We do not accept Ms Woodforth’s submissions that Purvis is distinguishable on the basis that the behaviour of the child was not an inevitable consequence of his impairment whereas Ms Woodforth’s communication difficulties are an inevitable consequence of her hearing impairment.
  12. [30]
    The majority in Purvis found that the manifestations of disability are part of the matrix to be considered when formulating both the appropriate comparator and determining circumstances that are the same or not materially different. The majority held:

…to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act.[26]

  1. [31]
    Ms Woodforth argues that her attribute for the purposes of formulating the comparator under s 10(1) is both her hearing impairment and the consequential communication difficulties. No comparator adopted can therefore, says Ms Woodforth, include a person with communication difficulties. We do not accept this argument.
  2. [32]
    The majority in Purvis found in relation to the construction of s 5 DDA:

The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the “discriminator”. It would be artificial to exclude (and there is no basis in the text for excluding) from consideration some of these circumstances because they are identified a being connected with that person’s disability.

… it is a construction of the section which does not depend upon distinguishing between the cause of a person’s disability and the effects or consequences of it. Indeed, it is a construction which embraces the importance of identifying (as part of the relevant circumstances) all the effects and consequences of disability that are manifested to the alleged discriminator. What then is asked is: how would that person treat another in those same circumstances?[27]

  1. [33]
    Ms Woodforth’s impairment falls within paragraph (a) of the schedule definition of “impairment” – the total or partial loss of the person’s bodily functions, including the loss of a part of the person’s body. The definition does not refer, as paragraph (d) does, to the manifestation of a condition, illness or disease. Paragraph (d) is in almost identical terms to paragraph (g) of the definition of disability considered in Purvis. The High Court found that the separate paragraphs contained within the definition of “disability” under the DDA could not be read as providing seven mutually exclusive categories of disability.[28] The court found that the child’s condition could fall within a number of the paragraphs.
  2. [34]
    The mere fact that Ms Woodforth’s hearing impairment comes within a different (equivalent) paragraph of the definition of impairment than did the child’s disability in Purvis (under the DDA definition of “disability”), is not in our view a basis to distinguish Purvis.
  3. [35]
    Following the reasoning in Purvis, to focus on Ms Woodforth’s hearing impairment, to the exclusion of her resulting communication difficulties, would be to exclude from consideration that specific consequence of the impairment (ie the communication difficulties experienced by Ms Woodforth) which makes Ms Woodforth ‘ "different” in the eyes of others’.[29]
  4. [36]
    Accordingly, in considering the relevant circumstances and the formulation of the appropriate comparator, the communication difficulties experienced by Ms Woodforth must be taken into consideration and not excluded.
  5. [37]
    Ms Woodforth argues that s 8 ADA operates to expand the definition of attribute.  Section 8 ADA does not, in our view, expand the meaning of attribute. Attribute is defined.  An attribute includes impairment. Section 8 sets out the meaning of “discrimination on the basis of an attribute”. It does not further define or clarify what is an “attribute”. It deals with what discrimination is.
  6. [38]
    In determining the appropriate comparator for the purposes of s 10(1), the learned member was required to identify another person without Ms Woodforth’s attribute. The attribute was her hearing impairment. We express no concluded view as to whether communication difficulties consequent upon a hearing impairment are a characteristic of that particular attribute for the purposes of s 8 ADA.
  7. [39]
    Whether the difficulties Ms Woodforth experienced in communicating are regarded as a “characteristic” within s 8 is not relevant to the formulation of the s 10(1) comparator. Section 8 cannot, in our view, be relied upon by Ms Woodforth, to support a contention that the communication difficulties are part of her attribute (ie hearing impairment).
  8. [40]
    Ms Woodforth says that Purvis can be distinguished on the basis that the comparator used by the learned member (ie one with the characteristic of “communication difficulties”) can only be someone with another attribute, either “impairment” or “race”[30]. Ms Woodforth says that this is impermissible and that if the QPS treated those with communication difficulties differently from those who spoke English competently it would probably be engaging in gross discrimination.
  9. [41]
    What in essence Ms Woodforth contends for is the adoption of a comparator, engaging with the QPS in similar circumstances as those of Ms Woodforth, who speaks English competently.
  10. [42]
    Firstly, we do not agree that the comparator adopted by the learned member could only be someone with another attribute. The circumstances of a person who consciously adopts a vow of silence (for personal, non religious reasons) would no doubt present difficulties in communicating with the QPS in circumstances such as Ms Woodforth’s. Such a person would not have an attribute. It may be that the likelihood of such a comparator is remote, however this is irrelevant to the question of how the comparator is to be defined. The question is to be resolved according to what are the circumstances of the relevant conduct.[31]
  11. [43]
    Secondly, to exclude from the formulation of the comparator any consideration of communication difficulties would be artificial. The substance of Ms Woodforth’s complaint of discrimination is that her hearing impairment and consequent difficulties in communication resulted in less favourable treatment by the QPS. Ms Woodforth presented with difficulties communicating with the QPS officers. Those difficulties formed part of the circumstances in which it is said she was treated less favourably than persons without her attribute i.e. the hearing impairment. The relevant question for consideration under s 10(1) ADA is: how would a person without Ms Woodforth’s attribute have been treated in those circumstances?
  12. [44]
    Ms Woodforth says the finding by the learned member that ‘there is no right to an interpreter at call under the police policy’  – does not abide the requirement in s 10(5) ADA which obliges the comparison to be undertaken without regard to Ms Woodforth’s need for a “special service”, namely Auslan interpretation.
  13. [45]
    We have considered Ms Woodforth’s argument in relation to s 10(5) ADA. There can be no doubt that Auslan interpretation is a special service or facility within s 10(5). The appropriate comparator was a person without a hearing impairment or requirement to communicate through Auslan.
  14. [46]
    There is nothing in the reasons to suggest that the learned member, in formulating the comparator, took into consideration as relevant Ms Woodforth’s need for an Auslan interpreter. Nowhere in the reasons does the member articulate the comparator as a person with communication difficulties requiring an interpreter.
  15. [47]
    Ms Woodforth refers to [73] of the reasons and contends that the learned member undertook the formulation of the comparator by reference to a person who required a special service. This submission is based upon the reference by the member to the QPS Operational Procedures Manual.[32] Before the learned member, Ms Woodforth contended that the QPS had failed to comply with their own procedures in not arranging for an interpreter to be available.
  16. [48]
    We do not agree with this contention. In our view the member at [73] of the reasons was simply making an observation as to the effect of the relevant policy and was not undertaking the formulation of the relevant comparator.

Was Ms Woodforth treated less favourably?

  1. [49]
    On appeal, Ms Woodforth restricted the period of alleged unfavourable treatment by the QPS to the events of 13 December 2011, 14 December 2011 and 15 December 2011.
  2. [50]
    Ms Woodforth says that the unfavourable treatment occurred on the evening of 13 December 2011 when no attempt was made to obtain an Auslan interpreter. Ms Woodforth says that the State of Queensland’s failure within a proximate time (i.e. two days) to arrange an interpreter to obtain her version of the events was also unfavourable treatment.
  3. [51]
    There is no dispute that on the evening of 13 December 2011, the decision was made by the investigating officer to refer the various complaints to the CIB.
  4. [52]
    Ms Woodforth says that the matter would not have been reduced to ‘minimum pacs (being) furnished[33] before the referral to CIB on the evening of 13 December had Ms Woodforth not been hearing impaired. Instead, the primary response officers would, says Ms Woodforth, have attempted to take an account directly from her, in her own language, separate from any other potential witness, at the scene or shortly thereafter. She says that her injuries would have been professionally documented. Ms Woodforth says that police at the Ipswich Police station would have attempted to record what it was she was trying to say – either as victim or defendant - and would certainly document any criminal complaint, most likely when she was separated from any other witness, and the complaint would be added to QPRIME[34].
  5. [53]
    Ms Woodforth says that on the evening of 13 December 2011 efforts should have begun to make arrangements for the attendance of Auslan interpreters in order to document her account if not at the scene, then at the hospital or as soon as an interpreter could be arranged in the following days[35].
  6. [54]
    Further, says Ms Woodford, the decision to refer the matter to the CIB did not obviate the need for the QPS to ensure that what Ms Woodforth was trying to say was able to be reported to the police, understood and, if necessary, acted upon. Ms Woodforth relies on what she said in her statement[36], ‘I should be able to communicate with the police as I need to, to report a crime, to ask questions and so on, not just for a formal interview’.[37]
  7. [55]
    Ms Woodforth argues that further unfavourable treatment occurred on 14 December 2011 when she attended the Ipswich police station to make a complaint of another incident of assault, and then again on 15 December 2011 when she attended and reported the potential theft of her belongings. Ms Woodforth says that the QPS did not arrange to obtain, within a proximate time, her version of events with the assistance of an Auslan interpreter.
  8. [56]
    There is no dispute that on 14 December 2011, Ms Woodforth was informed that the investigation had been referred to the CIB and that the CIB would contact her and organise an interpreter to enable her to provide a statement[38].
  9. [57]
    The learned member found that on the evening of 13 December 2011, in circumstances where the police were unaware that persons with a hearing impairment were involved when they first attended at the scene, the use of notebooks and speaking with Mr Buck to communicate was appropriate in the circumstances.[39] While Ms Woodforth takes issue with Mr Buck, a potential witness, interpreting for her on the evening of 13 December 2011, there was no evidence before the learned member that Ms Woodforth objected to Mr Buck acting as her interpreter on that occasion and she was given the opportunity to provide information in writing via the police officers’ notebooks.
  10. [58]
    The learned member found, ‘There was no evidence presented that the Police would not utilise other means of communication when dealing with others who were not hearing impaired but had communication difficulties in the same or similar circumstances’. [40]
  11. [59]
    We find no error by the learned member. Her findings were supported by the evidence of the attending officers, Constable Weibel and Constable Eleison.[41] The learned member also had reference to the evidence of Constable Laird and Constable Fox in relation to their attendance with Ms Woodforth at the property to collect her belongings on 14 December 2011.[42]
  12. [60]
    On 15 December 2011, Ms Woodforth attended the Ipswich Police to assist Ms Croad in relation to her passport and to enable Ms Woodforth to report an alleged theft of her belongings. Ms Woodforth asked for an interpreter but was again advised that CIB would arrange for interpreters.[43]
  13. [61]
    The learned member was satisfied that Ms Woodforth was provided with adequate services by the QPS, and that there was no, or insufficient, evidence that a person without Ms Woodforth’s disability would have been treated differently or more favourably in the same or similar circumstances.[44] We are of the view that it was open on the evidence for the learned member to make such a finding.
  14. [62]
    The learned member’s reasons clearly set out the circumstances in which Ms Woodforth found herself on 13, 14 and 15 December 2011. We do not consider that there was any evidence, or sufficient evidence, to support a finding that Ms Woodforth was treated less favourably than another person who had communication difficulties would have been treated in the same or similar circumstances on those dates. We find no error by the learned member.
  15. [63]
    There was, as the member found at [63], no evidence upon which she could have been satisfied that, had Ms Woodforth not been hearing impaired but had communication difficulties, she would have received a different response from the police when she attended at the Ipswich Police Station on 14 and 15 December 2011.
  16. [64]
    There was no evidence before the learned member that such a person would have been told, for example, all of the details as to why the person’s complaint had been referred to the CIB or any other details or timeframes as to how the investigation would progress. Nor was there any evidence before the learned member that such a person would have been given an opportunity to provide further details of their version of events when they attended at a police station without an appointment and in circumstances where their complaint was being investigated by the CIB.
  17. [65]
    We are satisfied that the findings of the learned member were supported by the evidence. We find no error by the learned member.

Findings on the evidence

  1. [66]
    Ms Woodforth says that:
    1. The learned member wrongly found that she had “unrealistic expectations” in her dealings with police at the Ipswich Police Station in December 2011;
    2. The learned member failed to address evidence of a conversation which Ms Woodforth says occurred when she attended at the Ipswich police station with Mr Andrew Green.
  2. [67]
    Ms Woodforth says that there was no evidence to support the findings made by the learned member that:
    1. Ms Woodforth expected to have her interests dealt with instantly, and that she would be able to provide a formal statement with the benefit of an interpreter immediately, at times she determined.
    2. Ms Woodforth was told there may be a delay or “some time” before she would be contacted by the CIB.
  3. [68]
    Ms Woodforth says that her expectations are irrelevant as the real consideration is her treatment, including the delay in arranging for a conversation with the assistance of an Auslan interpreter until 12 January 2012. Ms Woodforth submits that the repetition of these findings throughout the member’s reasons suggests that the member may have placed too much weight on this mistaken interpretation of Ms Woodforth’s behaviour.
  4. [69]
    We accept the submission that Ms Woodforth’s expectations are irrelevant. Paragraph [66] of the learned member’s reasons squarely deals with this submission and specifically the finding that there was no evidence that a person without a hearing impairment would have received more favourable treatment than Ms Woodforth. The reasons are supported by the undisputed facts, in particular, that Ms Woodforth attended the police station on a number of occasions and on multiple occasions those attendances were unannounced.
  5. [70]
    In addition, Ms Woodforth’s evidence in cross-examination supports the learned member’s reasons. Ms Woodforth gave evidence that she was aware there would be a delay before she was questioned. She expressed the view that she thought the delay might be one or two weeks at most.[45] There is no evidence that any police officer informed her of this timeframe. This was simply Ms Woodforth’s expectation.
  6. [71]
    Given the nature of the investigation, we do not consider that the learned member’s view that Ms Woodforth had ‘somewhat unrealistic expectations’ was flawed.
  7. [72]
    Ms Woodforth submits that Mr Green’s evidence regarding the conversation he had with an unknown officer on 20 December 2011 was unchallenged. It is submitted that if this conversation occurred (and Ms Woodforth says there was no real basis to reject it as having occurred) it provided direct evidence of discriminatory treatment. Ms Woodforth submits that Mr Green’s evidence was not referred to in the learned member’s decision.
  8. [73]
    It is necessary to consider the evidence of Mr Green. Mr Green provided a statement of evidence in which he said, relevant to the attendance at the Ipswich Police Station on 20 December 2011:
    1. He and Ms Woodforth attended at the front counter and spoke with a police officer;
    2. The officer told Mr Green and Ms Woodforth that:
    1. the police were aware of Ms Woodforth;
    2. the police had been trying to organise an interpreter;
    3. they were short of staff and very busy due to Christmas;
    4. they did not have funding;
    5. he could not take the matter any further as another officer was handling the case;
    6. he could not guarantee that an interpreter would be booked as it was up to the supervisor and the officer handling the matter;
    7. Ms Woodforth was able to lip read and communicate by writing;
    8. there was no guarantee that arrangements could be made for Ms Woodforth to provide her statement within the next 48 hours as they were busy during the Christmas period.
  9. [74]
    Mr Green attached to his statement an email he received from Sergeant Stephens dated 20 December 2011 which advised that the matter had been referred to the CIB and that they would be in contact with Ms Woodforth at some point[46]. That email was forwarded after Mr Green’s attendance at the police station. A further email exchange took place on 23 December 2011 between Mr Green and Sergeant Stephens. Those emails are also attached to Mr Green’s statement of evidence.[47]
  10. [75]
    In his email dated 23 December 2011, Sergeant Stephens again states that the investigation has been referred to the CIB and says, ‘The investigation is now being held by the Criminal Investigation Branch … and the matters are somewhat complex. A timeline cannot normally be given for an investigation as evidence has to be gather (sic), particularly regarding computer fraud this can take some time.
  11. [76]
    Mr Green gave evidence at the hearing. Mr Green said that when he attended at the station on 20 December 2011 he was told by the officer with whom he spoke that ‘they (the QPS) can’t really be involved. It’s been transferred to another person.’[48]  He said that he asked for the contact details of the person and said that “the next day” he received an email from Ian (Stephens). Mr Green subsequently gave evidence that the date of the email was 23 December 2011.[49]
  12. [77]
    The evidence became, at various times, confusing as it appeared that Mr Green was speaking at cross purposes with Counsel for the State about the attendance at the Ipswich police station on 20 December 2011 and an email exchange on 23 December 2011 between Mr Green and Sergeant Stephens.[50]
  13. [78]
    Mr Green was unable to identify the police officer with whom he spoke on 20 December 2011.
  14. [79]
    The State of Queensland submits that it was impossible to challenge Mr Green’s evidence[51] because he could not identify the person with whom he spoke or even give a precise time that he arrived at the police station.
  15. [80]
    Given that Ms Woodforth has limited the period of alleged discriminatory conduct to the 13th, 14th and 15th December 2015, there is nothing in Mr Green’s evidence regarding the attendance at the Ipswich Police Station on 20 December 2011 which is relevant to this period.
  16. [81]
    Ms Woodforth does not articulate with any precision why Mr Green’s evidence of the events of 20 December 2011 establishes direct discrimination. It is unclear, for example, what “they did not have funding” is said to mean. The evidence given by Mr Green was in fact consistent with the matter having been referred to the CIB although Mr Green was not aware of this fact at the time he attended at the police station on 20 December 2011. Indeed, the evidence is consistent with Mr Green being confused about precisely what was happening with the investigation. This is perhaps understandable as the first Mr Green knew of the referral to the CIB was the email he received later on 20 December 2011 from Sergeant Stephens.
  17. [82]
    The learned member refers to Mr Green’s evidence at [68], [69], [70] and [73] of the reasons. At [70], the learned member finds:

Mr Green assisted Ms Woodforth communicate with the Police firstly via the NRS and then briefly through an in-person meeting involving an Auslan interpreter, which he organised. However, even with this assistance Ms Woodforth continued to attend Ipswich Police to make a complaint about assault and theft.

  1. [83]
    The findings by the learned member at [73] are supported by Mr Green’s evidence during cross-examination that he agreed once police have identified a special need, then it is for the police officer to determine the best way to overcome that special need or to compensate for it in order to overcome communication barriers.[52]
  2. [84]
    Given that the investigation had been referred to the CIB prior to 20 December 2011, the direct relevance of Mr Green’s evidence as to what was said at the police station is limited. Mr Green was unable to identify the officer he spoke with, the officer was not one of the investigating officers, the officer was telling Mr Green what he could see in the police records[53] rather than from any direct knowledge, and there was a lack of clarity as to what was said by the officer.
  3. [85]
    There was in our view no error by the learned member as contended for by Ms Woodforth regarding the conversation between Mr Green and the unidentified officer on 20 December 2011. Even if the member could have been more expansive in her consideration of the evidence of the events on 20 December 2011, the outcome would be no different given the limited weight which could be given to Mr Green’s evidence in this regard. The evidence of Mr Green relied upon by Ms Woodforth does not support a finding of direct discrimination.
  4. [86]
    As to the finding that Ms Woodforth expected that she would have her interests dealt with instantly, she gave evidence under cross examination that she thought that over the Christmas period that interpreters would be available whenever the police asked for them.[54] Ms Woodforth thought that she would only have to wait a matter of hours to obtain an interpreter to provide a statement.[55] Ms Woodforth gave evidence that:
    1. There were lots of interpreters around.
    2. She wanted to speak with the police officers and it was ‘their responsibility to get the interpreter’.
    3. It was the same ‘as if I go to the doctor. They organise the interpreter for me to have the consultation with them.
    4. She believed the whole matter, after being sent to the CIB ‘got blown out of proportion’ and that it ‘became really complicated because they didn’t get an interpreter.’[56]
  5. [87]
    There was sufficient evidence before the learned member to find that Ms Woodforth had specific expectations in relation to providing a statement on very short notice and at times of her choosing. There was no error by the learned member.
  6. [88]
    We turn finally to Ms Woodforth’s contention that there was no evidence to support the findings made by the learned member that Ms Woodforth was told that there may be a delay or “some time” before she would be contacted by the CIB.
  7. [89]
    In her statement of evidence[57] Ms Woodforth states she was told on 14 December 2011 that the matter had been referred to the CIB and that she would have to wait for the CIB to organise an interpreter.[58] She says that she was given a written note by a QPS officer to the effect that she would be contacted by the CIB ‘in due course’.[59]
  8. [90]
    In her statement of evidence Ms Woodforth says that on 15 December 2011 she was told that the ‘CIB would arrange for interpreters’.[60]
  9. [91]
    During cross examination at the hearing Ms Woodforth gave evidence that she was aware ‘on the second day’ (presumably the 14th December 2011) that the matter had been referred to the CIB although she did not understand why.[61]
  10. [92]
    Ms Woodforth also gave evidence that she was informed the CIB would be investigating and that a video and a camera would be involved and ‘that’s why it got delayed’.[62] She said that the delay ‘might be one or two weeks, not much further than that though.[63]
  11. [93]
    Constable Weibel, one of the officers attending the scene on the night of 13 December 2011, gave evidence in relation to various written communications with Ms Woodforth.
  12. [94]
    Constable Weibel gave evidence that she had communicated to Ms Woodforth that ‘..we still need to get a proper official police statement from you for court only. This is acceptable. This can take a while to organise.’ Constable Weibel gave evidence that she was referring to the CIB taking the statement.[64]
  13. [95]
    Constable Weibel communicated to Ms Woodforth that ‘You need to wait for police to contact you with a translator.’ Constable Weibel gave evidence that she was referring to the CIB contacting Ms Woodforth. [65]
  14. [96]
    We conclude that there was sufficient evidence upon which the learned member could find that Ms Woodforth was told there may be a delay or “some time” before she would be contacted by the CIB. There was no error by the learned member.

Indirect Discrimination

  1. [97]
    Ms Woodforth says that a term was imposed by the QPS that it would only investigate her complaints in a timely manner (by taking details of the complaints within a reasonable time of the complaint first coming to police attention and taking steps to preserve the evidence in a timely manner) if she could communicate the details of the complaint to police in English in conventional speech.
  2. [98]
    Ms Woodforth says that the effect of the imposition of the term was that she was obliged to communicate with the QPS for a period of a month or so without the assistance of an Auslan interpreter.
  3. [99]
    Ms Woodforth says that the learned member erred in not finding the term for which she contends and in mischaracterising the term.
  4. [100]
    Section 11(1) ADA is in very similar terms to s 6 of the Disability Discrimination Act 1992 (Cth). In considering the application of that section, Lander J in Hurst and Devlin v Education Queensland[66] identified the four elements required to make out a claim for indirect discrimination:

First, that the discriminator has required the applicant to comply with a requirement or condition. Secondly, that a substantially higher proportion of persons without the applicant’s disability have complied, or are able to comply, with the requirement or condition. Thirdly, the requirement or condition is not reasonable having regard to the circumstances of the case. Fourthly, the requirement or condition must be one with which the applicant has not complied or is not able to comply.

  1. [101]
    The DDA (the Act under consideration in Hurst) refers to an aggrieved person being required to comply with a ‘requirement or condition’. Lander J held that those words are to be construed ‘broadly and beneficially’ reflecting previous decisions by the High Court.[67]
  2. [102]
    In the employment context, the words “condition, requirement or practice” have been considered to cover any form of qualification or prerequisite demanded by an employer of his employee.[68]
  3. [103]
    As Lander J observed, it is necessary to first identify the term with some precision. Once that occurs, then the four step process can be undertaken.
  4. [104]
    Not every instance where the provision of a service does not meet the needs of a person with a disability will result in the conclusion that a term has been imposed. As was observed in Waters v Public Transport Corporation:

The difficulty encountered by disabled people who wished to use the modern trams arose simply because the services available fell short of their needs. If such shortfalls in a service can be transformed into a requirement or condition imposed by the person performing the service, the Act becomes a charter of the minimum standards of service which a person performing the service must provide or at least maintain to cater for the needs of the disabled. That is not the purpose of the Act.[69]

  1. [105]
    The State of Queensland says that it was for Ms Woodforth to demonstrate that a term had been imposed by the QPS. It says that Ms Woodforth was both a complainant and a person against whom complaints had been made. The State says that the evidence of Detective Rosee was that the investigation was not the best nor the worst with which she had been involved. It says that the evidence before the learned member was that the matter was quickly identified as one involving allegations of assault and fraud and was quickly referred to the CIB for investigation. The State says that there was no evidence that Ms Woodforth’s hearing impairment or difficulty in communicating played any part in the decision to refer the matter to the CIB.
  2. [106]
    There is no doubt that the application of s 11 ADA is one of the more vexing aspects of anti-discrimination law. The authorities establish no definitive test to assist in identifying whether a term has been imposed. The nature of these types of matters is such that the task is more often than not an extremely difficult one particularly in circumstances where the process of formulating the term is undertaken in the course of the hearing.
  3. [107]
    The burden of establishing the existence and imposition of the term in accordance with ss 11(1)(a) and (b) ADA was Ms Woodforth’s. If she discharged this burden, the onus was then upon the State to prove the reasonableness of the term.
  4. [108]
    We have found that it was open to the learned member on the evidence to find that Ms Woodforth was not treated less favourably by the QPS as a result of her hearing impairment and difficulties in communicating in conventional English.
  5. [109]
    The learned member found that:
    1. The matter was identified as one involving allegations and cross allegations of assault and allegations of fraud;
    2. The matter was quickly referred to the CIB;
    3. Ms Woodforth was advised of this on a number of occasions;
    4. Ms Woodforth was subsequently interviewed by the QPS;
    5. Detective Rosee’s unchallenged evidence was that the subject investigation was neither the best nor the worst she had seen – it was an average investigation. There was no evidence to the contrary;
    6. A co-ordinated approach to the investigation was preferable[70].
  6. [110]
    Ms Woodforth says that the learned member, in finding that the practicalities of organising interpreters may cause delay and in forming the view that a co-ordinated approach to the investigation was preferable[71], mischaracterised the term contended for.  We disagree that the member mischaracterised the term.
  7. [111]
    In our view, in making the observations regarding organising interpreters, the learned member was identifying one of a number of factors relevant to the consideration of whether a term as contended for had been imposed by the QPS[72].
  8. [112]
    The learned member, on the evidence, concluded that the matter had been adequately dealt with on the evening of the 13th December 2011, that the matter had been referred immediately to the CIB and thereafter the matter was investigated. The learned member found that the uncontradicted evidence of Detective Rosee was the investigation was average, neither the best nor the worst she had seen. The learned member’s reasons clearly identify the matters she considered and weighed up in finding that no term had been imposed.
  9. [113]
    There was, in our view, no evidence, to find the imposition of a term as contended for by Ms Woodforth.
  10. [114]
    There was no error by the member in finding that there had been no term imposed as contended for by Ms Woodforth.

Conclusion

  1. [115]
    The application for leave to appeal is refused. The appeal is dismissed.

Footnotes

[1]Applicant’s Submissions - 24 April 2015.

[2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[3] Cachia v Grech [2009] NSWCA 232 at [2].

[4] Hockley v Sowden [2000] QCA 9.

[5] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388.

[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 146 and 147.

[7]ADA, s 10(1).

[8]Ibid, Schedule and s 7.

[9]Ibid, Schedule.

[10]Ibid, s 11(1).

[11]Ibid, s 11(4).

[12]“impairment” is defined as (a) the total or partial loss of the person’s bodily functions including the loss of a part of the person’s body or (b) the malfunction …of a part of the person’s body.

[13]Reasons [1].

[14]Transcript T1-71, lines 15-21 and lines 22 to 45 regarding lip reading and use of pen and paper and English.

[15]Applicant’s submissions at [4].

[16]Transcript T1-71 lines 19-21.

[17]Reasons [65].

[18][2006] QADT 34 at [86].

[19]ADA, s 7(g) “race” and s 7(h) “impairment”.

[20](2003) 217 CLR 92.

[21]Ms Woodforth refers to ADA ss 10(5), 34, 35, 36, 44, 51, 84, 85, 92, 100.

[22]Applicant’s submissions at [49].

[23]ADA – Schedule – Dictionary.

[24]Op cit 24 at 157.

[25][2014] QCATA 302 at [33].

[26]Op cit 24 at 160.

[27]Op cit 24 at 162.

[28]Ibid at 157.

[29]Ibid.

[30]ADA, s 7(h) “impairment” and s 7(g) “race”.

[31] Lyons v State of Queensland [2014] QCATA 302 at [47].

[32]Attachment AG8 to statement of evidence of Andrew Green – exhibit 5.

[33]Refers to the personal accounts by the various participants in the events of 13 December 2011.

[34]Applicant’s submissions at [53].

[35]Applicant’s submissions at [55].

[36]Exhibit 1 Applicant’s statement [109].

[37]Applicant’s submissions at [56].

[38]Exhibit 1 paragraph 49.

[39]Reasons [65].

[40]Ibid.

[41]Reasons [40] to [43].

[42]Reasons [45] and [46].

[43]Reasons [47].

[44]Reasons [75].

[45]Paragraphs 49 and 51 of Exhibit 1 and transcript references: T1-57 line 40, 1-58, 1-61 lines 43-47, 1-62 lines 1-21.

[46]Attachment AG10 to statement of evidence of Anthony Green.

[47]Attachment AG12 to statement of evidence of Anthony Green.

[48]Transcript T2-66 lines 8-12.

[49]T2-66 lines 13-15.

[50]T2-66 lines 8-44.

[51]Exhibit 5 paragraph 20.

[52]Transcript 2-50 lines 29 to 2-51, line 6.

[53]Transcript 2-66 line 42.

[54]Transcript 1-59, line 4.

[55]Transcript 1-59, line 9.

[56]Transcript 1-62, line 18.

[57]Exhibit 1.

[58]Op cit – paragraph 46.

[59]Attachment VW-6, exhibit 1.

[60]Op cit 67.

[61]Transcript 1-56 line 16.

[62]Transcript 1-57 line 44.

[63]Transcript 1-58, line 5.

[64]Transcript 3-43.

[65]Transcript 3-42.

[66] Hurst and Devlin v Education Queensland [2005] FCA 405.

[67]See for example Qantas Airways Ltd v Christie (1998) 152 ALR 365, 385 (McHugh J) referred to Waters v Public Transport Corporation finding that anti-discrimination legislation must be construed beneficially.

[68] Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; [1989] 168 CLR 165 per Dawson J at p185.

[69](1991) 173 CLR 349 per Brennan J.

[70]Reasons [79].

[71]Reasons [81].

[72]Reasons [81].

Close

Editorial Notes

  • Published Case Name:

    Veronica Woodforth v State of Queensland

  • Shortened Case Name:

    Woodforth v Queensland

  • MNC:

    [2016] QCATA 7

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown, Member Guthrie

  • Date:

    11 Jan 2016

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2014] QCAT 68010 Dec 2014Complaint alleging direct and indirect discrimination dismissed: Member Clifford.
Primary Judgment[2016] QCATA 711 Jan 2016Appeal from [2014] QCAT 680. Leave to appeal refused. Appeal dismissed: Senior Member Brown and Member Guthrie.
Notice of Appeal FiledFile Number: Appeal 1323/1605 Feb 2016-
Appeal Determined (QCA)[2017] QCA 100 [2018] 1 Qd R 28923 May 2017Leave to appeal granted and appeal allowed: Holmes CJ and McMurdo JA and Bond J.

Appeal Status

Appeal Determined (QCA)

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