Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCATA
  3. 2017
  4. Thorne v Toowoomba Regional Council - [2017] QCATA 128

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Thorne v Toowoomba Regional Council[2017] QCATA 128

Thorne v Toowoomba Regional Council[2017] QCATA 128

CITATION:

Thorne v Toowoomba Regional Council & Tytherleigh [2017] QCATA 128

PARTIES:

Lauren Edwina Thorne

(Applicant/Appellant)

v

Toowoomba Regional Council

(First Respondent)

Kelvin Tytherleigh

(Second Respondent)

APPLICATION NUMBER:

APL255-16

MATTER TYPE:

Appeals

HEARING DATE:

10 February 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

Member Guthrie

DELIVERED ON:

23 November 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The appeal as to grounds 1, 2, and 3 is allowed.
  2. The decision of 27 June 2016 only insofar as it relates to the orders made under s 209 of the Anti-Discrimination Act 1991 (Qld) is set aside and the matter is returned to the tribunal, as originally constituted, for reconsideration and with the following directions:
    1. The proceeding be listed for a directions hearing before the Tribunal as originally constituted at Brisbane on a date and at a time to be notified to the parties.
    2. The Tribunal may determine any application filed by the parties to adduce new evidence in the rehearing of the matter.

The appeal tribunal further directs that:

  1. The appellant must file in the Tribunal two (2) copies and give to the respondents one (1) copy of any further written submissions as to costs in the appeal by 4:00 pm on 8 December 2017.
  2. The respondents must file in the Tribunal two (2) copies and give to the appellant one (1) copy of any written submissions in relation to costs by 4:00 pm on 22 December 2017.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where applicant was self – represented – whether the Tribunal should have made the Applicant aware of the issues it will consider – whether the Tribunal’s conduct of the matter is a denial of natural justice

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – EXCESSIVE OR INADEQUATE DAMAGES – DAMAGES INADEQUATE – where direct discrimination on the basis of an impairment – where impairment due to wrist injury – where employment not confirmed at the end of a probationary period – where applicant suffered hurt and humiliation as a result of dismissal from employment – whether the damages awarded were insufficient

HUMAN RIGHTS – DISCRIMINATION – GROUNDS OF DISCRIMINATION – DISABILITY OR IMPAIRMENT – EMPLOYMENT – where direct discrimination on the basis of an impairment – where impairment due to wrist injury – where employment not confirmed at the end of a probationary period – where applicant was asked questions not relevant to the safe performance of position – where information sought by the respondents directed to risk posed if the applicant aggravated her injuries – whether damages should have been awarded for a breach of s 124 of the Anti-Discrimination Act

Anti-Discrimination Act 1991 (Qld), s 7, s 10, s 11, s 15, s 124, s 133

Queensland Civil and Administrative Act 2009 (Qld), s 29, s 142, s 146, s 209

Cachia v Grech [2009] NSWCA 232

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

Hockley v Sowden [2000] QCA 9

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

Richardson v Oracle Corporation Australia [2014] FCAFC 82

Thorne v Toowoomba Regional Council & Tytherleigh [2016] QCAT 212

Tomasevic v Travaglini [2007] VSC 337

APPEARANCES:

 

APPLICANT:

Lauren Edwina Thorne

FIRST RESPONDENT:

Toowoomba Regional Council

SECOND RESPONDENT:

Kelvin Tytherleigh

REPRESENTATIVES:

 

APPLICANT:

Represented by Mr A Boe of Counsel and                                              Ms Polina Kinchina of Counsel

Instructed by Caxton Legal Centre

RESPONDENT:

Represented by Mr K Watson of Counsel

Instructed by Clifford Gouldson Lawyers

REASONS FOR DECISION

Background

  1. [1]
    Ms Thorne suffers from wrist injuries that compromised the use of her hands. The origin of her injuries arose prior to her employment with the Toowoomba Regional Council. 
  2. [2]
    Ms Thorne had applied for a permanent full-time position with the Toowoomba Regional Council as Organisational Development Officer. Ms Thorne’s application was successful. On 2 June 2014, she subsequently began a three-month probationary period. On 1 September 2014, the respondents did not confirm her employment following Ms Thorne’s probationary period. 
  3. [3]
    On 20 January 2015, Ms Thorne filed a complaint in the Anti-Discrimination Commission Queensland. She alleged that she had suffered direct discrimination by the respondents because of her wrist injuries after the Toowoomba Regional Council had failed to confirm her employment. 
  4. [4]
    The Tribunal conducted a hearing on 27 November 2016. Ms Thorne was not legally represented. An in-house lawyer legally represented the respondents.
  5. [5]
    On 27 June 2016, the Tribunal delivered written reasons for its decision that the respondents:[1]
    1. had discriminated against Ms Thorne by terminating her employment because of her impairment in breach of s 10 of the Anti-Discrimination Act 1991 (Qld) (the ADA); and
    2. sought from Ms Thorne and her previous employer unnecessary information on which unlawful discrimination was based in breach of s 124 of the ADA; and
    3. pay Ms Thorne $10,000.
  6. [6]
    Ms Thorne appeals the Tribunal’s decision insofar as it relates to the Tribunal’s order that the respondents pay her $10,000. The respondents have not appealed the Tribunal’s decision.
  7. [7]
    Section 209 of the ADA sets out the orders the Tribunal may make if a complaint is proven:

209  Orders the tribunal may make if complaint is proven

  1. If the tribunal decides that the respondent contravened the Act, the tribunal may make 1 or more of the following orders—
  1. an order requiring the respondent not to commit a further contravention of the Act against the complainant or another person specified in the order;
  2. an order requiring the respondent to pay to the complainant or another person, within a specified period, an amount the tribunal considers appropriate as compensation for loss or damage caused by the contravention;
  3. an order requiring the respondent to do specified things to redress loss or damage suffered by the complainant and another person because of the contravention;
  4. an order requiring the respondent to make a private apology or retraction;
  5. an order requiring the respondent to make a public apology or retraction by publishing the apology or retraction in the way, and in the form, stated in the order;
  6. an order requiring the respondent to implement programs to eliminate unlawful discrimination;
  7. an order requiring a party to pay interest on an amount of compensation;
  8. an order declaring void all or part of an agreement made in connection with a contravention of this Act, either from the time the agreement was made or subsequently.
  1. An order may be made under subsection (1)(b) in favour of a person on whose behalf a representative complaint was made, without the necessity for the person to make an individual complaint, if on the evidence before it the tribunal is able to assess the loss or damage of the person.
  2. If, in respect of a representative complaint—
  1. the tribunal decides that the respondent contravened the Act; but
  2. the tribunal is unable, on the evidence before it at the hearing of the representative complaint, to assess the loss or damage of a person on whose behalf the complaint was made;

the person may subsequently make a request for the tribunal to assess the person’s loss or damage.

  1. In this section, the specified things a respondent may be required to do, include, but are not limited to—
  1. employing, reinstating or re-employing a person; or
  2. promoting a person; or
  3. moving a person to a specified position within a specified time.
  1. In this section—

damage, in relation to a person, includes the offence, embarrassment, humiliation, and intimidation suffered by the person.

Grounds of Appeal

  1. [8]
    The application to appeal set out the following grounds of appeal:
  1. The Tribunal erred by failing to afford Ms Thorne a fair hearing.
  2. The member erred in making a manifestly inadequate award of damages for non-economic losses.
  3. The member erred in law by failing to consider whether a remedy ought to be awarded in respect of the finding of a breach of s 124 of the ADA.
  1. [9]
    The particulars provided in respect of ground 1 were:
    1. (a)
      The member erred in law by failing to afford Ms Thorne a fair hearing including by finding that the Tribunal was ‘unable to make any award for economic loss’ because ‘Ms Thorne had not tended any evidence to substantiate her claim for past economic loss’ [at 123] while also finding ‘Ms Thorne submitted in relation to her claim for economic loss that she sought a payment for the prior 1 September 2014 to 1 October 2015, when she gained other employment’ [at 121].
    2. (b)
      Ms Thorne was a self-represented litigant in the Queensland Civil and Administrative Tribunal (QCAT). The objects of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) include at 3(b) ‘to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick’. At the hearing Ms Thorne presented submissions of her economic losses but no direct evidence. It was open to the Member to permit or direct Ms Thorne at the hearing to give direct evidence. It was open to the Member to set the matter for further hearing for the purpose of hearing that evidence if necessary. It was open to the Member to accept oral submissions from a self-represented person about their own losses without requiring any further material. A finding that the Member was ‘unable’ on the material before her to make a finding about economics losses at all is an error.
  2. [10]
    It was identified in the application that further submissions would be required. The appeal tribunal made directions regarding the provision and exchange of submissions.
  3. [11]
    The grounds of appeal set out in the subsequent submissions filed by the appellant differ in some respects to the original grounds set out in the application. Four grounds of appeal were identified, all of which raise questions of law. The grounds of appeal are:
    1. The learned member erred in law because she did not afford Ms Thorne procedural fairness. In particular, the learned member did not explain to Ms Thorne that she needed to provide evidence to substantiate the damages for past economic loss (ground 1);
    2. The learned member erred in law because she did not explain to Ms Thorne that she needed to provide evidence to substantiate the damages for non-economic loss. (ground 2);
    3. In the alternative, the learned member erred in law by making an award of damages for non-economic loss that was manifestly disproportionate to the findings of fact and the prevailing community standards (ground 3);
    4. The learned member erred in law by failing to award damages with respect to the respondents’ breach of s 124 of the ADA.
  4. [12]
    The respondents argue that a failure to conduct a fair hearing is not the same as a failure to accord procedural fairness. While that might be so, a failure to accord procedural fairness will likely mean that a fair hearing has not been conducted. The respondents’ submissions address both the argument that the learned member did not conduct a fair hearing and the argument that she did not accord procedural fairness to the applicant.
  5. [13]
    It is clear that however the ground of appeal is termed, the concern raised by the appellant is that the learned member has made findings in relation to the state of the evidence before her without giving Ms Thorne a proper opportunity to put before the Tribunal further evidence.
  6. [14]
    At the oral hearing, there being no objection by the respondents, we granted leave for the appellant to file supplementary submissions and a supplementary appeal book. Included in the supplementary submissions was an alternative ground for a challenge to the finding that the original decision-maker could not make a finding of damages for economic loss.  The supplementary submissions were to the effect that there was evidence available to the original decision-maker of the economic loss alleged to have been sustained by Ms Thorne viz. the sworn evidence of Ms Thorne on that point and that the original decision-maker should only have taken that evidence into account as it was unchallenged.  Given the fact that this supplementary argument was framed in the alternative to the originally stated ground 1, and given the reasons set out below in relation to the originally stated ground 1, it is not necessary for a decision to be made on this alternative argument raised at the hearing. 
  7. [15]
    In addition, we raised with the parties the relevance of s 29 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) which had not been referred to in either the grounds of appeal or in the written submissions of the parties. It was acknowledged by the parties that s 29 was relevant to the grounds of appeal. Section 29 of the QCAT Act provides:

29   Ensuring proper understanding and regard

  1. The tribunal must take all reasonable steps to—
  1. ensure each party to a proceeding understands—
  1. the practices and procedures of the tribunal; and
  2. the nature of assertions made in the proceeding and the legal implications of the assertions; and
  3. any decision of the tribunal relating to the proceeding; and
  1. understand the actions, expressed views and assertions of a party to or witness in the proceeding, having regard to the party’s or witness’s age, any disability, and cultural, religious and socioeconomic background; and
  2. ensure proceedings are conducted in a way that recognises and is responsive to—
  1. cultural diversity, Aboriginal tradition and Island custom, including the needs of a party to or witness in the proceeding who is from another culture or linguistic background or is an Aboriginal person or Torres Strait Islander; and
  2. the needs of a party to, or witness in, the proceeding who is a child or a person with impaired capacity or a physical disability.
  1. The steps that can be taken for ensuring a person understands something mentioned in subsection (1)(a) include, for example—
  1. explaining the matters to the person; or
  2. having an interpreter or other person able to communicate effectively with the person give the explanation; or
  3. supplying an explanatory note in English or another language.
  1. [16]
    The effect of s 29 of the QCAT Act has been expressed thus:[2]

While this provision largely reflects and embodies what the courts have said in recent years is the nature of the duty owed by the judicial system to, at least, self representative litigants, it also suggests that parties to proceedings before this Tribunal will receive, and have an entitlement to expect, assistance with the legal implications of the issues in the case.

  1. [17]
    Following extensive oral submissions by the parties, counsel for the respondents argued that the appellant, if she wished to rely on s 29 of the QCAT Act, must seek leave to amend her application to appeal. Counsel for the appellant did not share that view, arguing that s 29 of the QCAT Act created a statutory obligation on the original tribunal and the appeal tribunal which could not be ignored by us in determining the appeal simply because it was not specifically referred to in the grounds of appeal.
  2. [18]
    We made directions to allow the appellant to file if she chose an amended application for leave to appeal and appeal to incorporate reliance on s 29 of the QCAT Act together with any submissions in support of the amended application. A timetable was also directed to allow the respondents to file a response and for the appellant to reply if necessary. It was further directed that unless either party applied for a further oral hearing we would proceed to determine the appeal on the papers taking into account any additional submissions filed by the parties in compliance with the directions. The registry was subsequently informed that the appellant did not intend to file an amended application for leave to appeal and appeal.
  3. [19]
    We have considered the written and oral submissions made by the parties. We consider that the respondents have had a proper opportunity to respond to the grounds of appeal and submissions filed by the appellant and the oral submissions made by the appellant at the appeal tribunal hearing.
  4. [20]
    We have also formed the view that the failure of the appellant to identify the application of s 29 of the QCAT Act as a separate ground of appeal or to rely on it as part of the particulars of a ground of appeal does not prevent us from considering whether the learned member complied with the tribunal’s statutory obligation. We raised s 29 at the outset of the appeal tribunal hearing and both parties were given an opportunity to make submissions in respect of its relevance to the appeal. We do not consider that the parties were not given a proper opportunity to make submissions to the Tribunal in relation to it.
  5. [21]
    Therefore, we do not consider that we were required to seek further submissions from the respondents in relation to the relevance of s 29 of the QCAT Act before determining the appeal.
  6. [22]
    Leave to appeal is not required on a question of law.[3] In deciding an appeal against a decision on a question of law only, the appeal tribunal may, pursuant to s 146 of the QCAT Act:
    1. Confirm or amend the decision; or
    2. Set aside the decision and substitute its own decision; or
    3. Set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration –
    1. With or without the hearing of additional evidence as directed by the appeal tribunal; and
    2. With the other directions the appeal tribunal considers appropriate; or
    3. Make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c).

Ground 1 – did the tribunal err by not explaining to Ms Thorne that she needed to provide evidence to substantiate damages for past economic loss?

Ground 2 – did the tribunal err by failing to explain to Ms Thorne that she needed to provide evidence to substantiate damages for non-economic loss? 

  1. [23]
    The respondents rely on pre-hearing steps. It is clear that directions were made by the Tribunal that Ms Thorne file in the Tribunal her statement of evidence and a statement from each witness to give evidence for her at the hearing and that any documents referred to in a statement of evidence must be identified, explained and attached to the appropriate witness statement by a stated date.[4]
  2. [24]
    She did not file a statement of evidence but rather a document entitled “contentions”.
  3. [25]
    The respondents have drawn our attention to the following parts of the transcript to submit that the learned member took the necessary steps to ensure that the appellant understood her rights and obligations and provided assistance to the appellant:

MEMBER: …I assume that you may not be familiar with the process that’s adopted here. The way the matter will proceed is that you give your evidence first, so you’ll take the witness stand. You’ve put your evidence in by way of a lengthy statement that’s headed Contentions but contains a number of facts that you rely on. So that will go into evidence as your evidence. If there’s anything in particular that you want to draw my attention to then you should do so.

You will then be cross-examined by counsel[5] 

So I know that’s a lot to take in, but if you have any difficulty with it or you don’t understand where we are in the process, just ask me.[6]

MEMBER ---- It’s not properly evidence what you think unless you can establish it, either through your own evidence ---

MS THORNE ---- Yep.

MEMBER ---- or by cross-examining a witness.[7]

Now, Ms Thorne, in terms of the material you’ve put before the tribunal, there are some contentions where were delivered on the 26th of October 2015 which set out both arguments and matters of fact, and then I think you also provided another email referring to the fact that you’re making your complaint as one of direct discrimination. Right. All right. Well, in terms of the statement of contentions, I think we’ll treat that as also your statement of evidence. So are you able to say that the matters of fact set out there are true and correct to the best of your knowledge and belief?[8]

MEMBER: --- you need to ask questions to say why they might say that or what their basis for saying that is so that at the end of the day you can submit to me that there’s no proper basis , or in fact the answers might establish that there is a proper basis. So ---

MS THORNE: Yep

MEMBER: --- that’s how you make those sorts of points to me, by ---

MS THORNE: Yes

MEMBER: --- addressing them with the witness.

MS THORNE: Sure

MEMBER: But other than that, do you want to take it that the matters set out in your statement of contentions is the complete statement of your evidence?

MS THORNE: I think so.[9]

MEMBER: --- I think you’ve probably provided information beyond the scope of the question?[10]

…The reason it wasn’t given prior to that was that I – it, like, clearly states on there that it’s not to be given out as – to a third party, or something, and I considered this to be that. So I was waiting for approval from Dr Couzens’ officer to submit that.[11]

All right. So do you have some document that supports the fact that you couldn’t apply twice for ---? --- Yep.

All right. Well, that would seem to me to be relevant. But a whole string of emails in relation to superannuation and so forth ---[12]

So if there’s something there that you feel should be before the Tribunal --- ? --- Yep.

--- that isn’t currently could you provide it to me? --- Yep. Sorry.[13]

I would prefer that the matter – if the document’s going into evidence it should go in today.[14]

So if there is a document that is relevant --- ? --- Yep.

--- and that you would like to rely on you should show it to me now? --- Okay.[15]

MEMBER: And do you want to tender this in evidence? --- Yeah.[16]

Well, then that concludes your evidence, Ms Thorne? --- Yep.[17]

MEMBER: I think – thank you, Ms York. Yes. You do need to be – exercise a little care. We don’t have strict rules of evidence here. Although we do need to have some cognisance of fairness to the witness and ---

MS THORNE: Sorry.

MEMBER: --- to all parties. So you need to ask shorter questions, I think.

MS THORNE: Okay. Sure.[18]

  1. [26]
    Ms Thorne’s complaint stated that she had been discriminated against on the basis of her impairment and asked unnecessary questions. She filed a statement of contentions prior to the hearing in which she stated:[19]
  1. During the last days of my employment, I felt worthless and as though my personal performance did not count, only my physical state.
  2. My embarrassment was exacerbated throughout the final week of employment as my hands were the focus of discussion …. I was becoming very self-conscious and would deliberately try to hide my hands …
  3. I felt completely victimised and discriminated against when Kelvin and Jerry asked if they could ring my previous manager to discuss my medical condition. I could not believe that they wanted to do this and did not understand the relevance…
  4. I left my previous employer with a strong relationship and an invitation to return if the opportunity ever arose. I have subsequently contacted that Employer and was questioned as to what had happened at Council and why they had contacted them. The opportunity to return to my previous employer was negatively impacted by Jerry under the direction of TRC and Kelvin…
  1. I was so stressed and concerned over the weekend [prior to termination] about the impact of all of the occurrences on my career. I felt as though I would no longer be taken seriously and that people would just continue to look at my hands rather than acknowledge my strong performance.
  2. … I was absolutely distraught and completely devastated that I would be losing my job because of my hands…
  1. [On the day of termination] TRC waited all day to reach a decision which was torture for me because I was hearing whispers all day and being updated. I was just sitting at work hating my hands and myself. I was terrified that I would lose my job and rang my partner from the toilets at lunch time in tears. I was so distressed about the focus on my hands and was so upset that the focus wasn’t on the work that I had done…
  1. Maddie Benjamin was involved in my case until it was decided that she would be excluded based on the fact that her and I had become close friends during my tenure.  I have subsequently lost her as a friend which I am devastated about…
  1. This discrimination has led to stress, depression, lack of self-worth and anxiety.
  2. I attempted suicide shortly after the termination of my employment because of the diminish in self-worth, the prospects for my future and the hurt and humiliation felt.
  3. I am currently taking anti-depressants and my termination of employment, the discrimination that I endured and the flow on affects have contributed to this.
  4. I felt humiliated and embarrassed and was sick at the thought that my colleagues would be told that I was terminated for being dishonest or for a medical condition.
  5. I am hugely concerned that my public record states that I was terminated for dishonesty and may jeopardise my ability to obtain positions into the future.
  1. [27]
    Ms Thorne claimed compensation in the amount of $75,000, the amount she says was her lost salary and superannuation from the date that her employment was terminated by the Council until about the conclusion of the hearing.[20]
  2. [28]
    It is clear from the transcript that Ms Thorne’s statement of contentions was treated as her statement of evidence.[21] It is also clear from the transcript that Ms Thorne was cross-examined about her involvement in other businesses and educational opportunities during the time she was employed by the council.[22] We accept that she was not, however, cross-examined about her economic loss after the termination or the effect the discriminatory conduct had on her emotional or psychological state.
  3. [29]
    It is clear from the transcript that at the end of the hearing, the learned member stated, “Well, that brings us to the end of the evidence”, and suggested that the parties make written submissions at a later date.[23] The following exchange then took place:[24]

MS THORNE: Can I confirm that the statement is like a conclusion of everything that’s been discussed.

MEMBER: The submissions - - -

MS THORNE: Yeah.

MEMBER: - - that you’re talking about?

MS THORNE: Yeah.

MEMBER: Yes, it is. So you might reflect on the evidence that’s been given, the answers to some of your questions that have been given. Tell me what I should make of those things.

MS THORNE: Yep.

MEMBER: Review the evidence that is before me and tell me why it is that you have been directly discriminated against – - -

MS THORNE: Sure.

MEMBER: - - - on the basis of everything that is before me. Now, you need to have a look at the Anti-Discrimination Act and in particular you need to have a look at section 10 - - -

MS THORNE: Okay.

MEMBER: - - - the meaning of direct discrimination.  So I’d like to hear from you in relation to how the evidence can be addressed to each of the limbs of that section.  That’s very important.

MS THORNE: Okay.

MEMBER: Now, I recognise that you’re not legally trained, but if there were any cases – similar cases, then you should put them before me. It’s also the case that you haven’t – well, I guess I should have realised this before. You haven’t said what remedy it is you are seeking from the tribunal.

MS THORNE: Uh-huh.

MEMBER: Can you say now what remedy it is that you are seeking?

MS THORNE: I’m basically seeking that I be allowed to effectively resign from the position. I throughout this process are quite concerned about how this can – like a record of dishonesty or something can have an impact on my future career, considering that I can potentially be employed with the government again and whether that be in teaching or another of my areas, and I think I’ve outlined before like compensation to the effect of the salary that I would have lost in that time, which I point out wasn’t 750,000 as my typo suggested, and I apologise for any confusion that caused.

MEMBER: So what is the compensation that is being sought?

MS THORNE: I believe my salary’s around 74,500.

MEMBER: And what period are you claiming compensation for?

MS THORNE: From the date of dismissal until now.

MEMBER: Right. So you’ve been unemployed over that period – that whole period?

MS THORNE: Sorry. I’ve been employed for the last six weeks, so up until six weeks ago.

MEMBER: So what is the date? From 1 September 2014 to - - -

MS THORNE: I’ll just check my dates.

MEMBER: Yes.

MS THORNE: The first week of October, so say the 1st of October.

MEMBER: Right. And are you also seeking some compensation for hurt and humiliation? Which is it?

MS THORNE: I expect so.

MS YORK: What was the answer to that question?

MS THORNE: I expect so.

MEMBER: Yes, I understand that to be the case.

MEMBER: Do you have any figure or any basis for a sum that you would seek?

MS THORNE: I would like to review other cases to give an idea of what’s a reasonable suggestion.

MEMBER: All right. Well, that’s a matter that you should put then in your submissions and then I guess that’s probably a matter of reply for you, Ms York. All right. Well, make sure you address those things in your submission too and then they can be properly replied to.

All right. If everyone is clear, and you’re clear Ms Thorne as to the timeframes and the steps that have to be taken from here, those documents can be provided to me and to each other and once I’ve received them I’ll give consideration to the matter. I’ll make a decision and publish my decision and reasons as soon as I’m able to.

  1. [30]
    The respondents’ written submissions were provided on 26 November 2015 and stated that, if Ms Thorne was entitled to relief, the compensation she sought was excessive as there was evidence indicating that she was not relying on continuing employment by the Council, but instead she was relying on other opportunities.[25]
  2. [31]
    Ms Thorne provided submissions on 26 November and 15 December 2015. She confirmed she was engaged in other businesses and received other income at the time she was employed by the Council.[26] Ms Thorne stated that after she was terminated, she was unable to complete her contract with the University of Southern Queensland because of the stress she was under due to the termination.[27] Ms Thorne then stated:[28]

I was detrimentally impacted, financially, socially in terms of my reputation and relationships with Colleagues that have been destroyed, materially and psychologically. My self-confidence to apply for, undertake and engage in work has been affected detrimentally also. My personal relationships have been extremely strained as I have had to rely on others financially. I have been treated for depression and suicidal ideations since the termination of employment.

  1. [32]
    In her submissions, Ms Thorne sought the following outcomes:[29]
  1. Financial compensation for lost salary between the date of termination (not including the week of salary in lieu) through until the 12th of October as well as the 27th of November until the finalisation of this claim.
  2. Compensation for damages in equal financial amount to the amount listed in point two.
  1. [33]
    The respondents replied on 21 December 2015, stating:
  1. In relation to outcomes sought by the Applicant at item 3 on page 10 of the Applicant’s Submissions, the Respondents submit that the claim for financial compensation is inadequately specified, not supported by any evidence of her income earning activities post her termination of her employment with the First Respondent, and has not dealt with the issue of mitigation. The respondents rely on their earlier Submissions in relation to the Applicant’s income earning activities.
  2. In paragraph 15 on Page 7 of the Applicant’s Submissions, the Applicant refers to her work at the University of Southern Queensland. The Applicant has raised a fresh issue that she was unable to “complete the contract in Semester 2 2014 due to the stress of being terminated from TRC”. However, attached are emails (“Emails re USQ”) between the Applicant and University of Southern Queensland including on 28 August 2014 indicating that her work and alleged stress while at Council did not prevent her from working at the University.
  3. In relation to outcomes sought by the Applicant at item 4 on page 10 of her Submissions, it is unclear what is meant by it. If this outcome that the Applicant seeks is in relation to damages for hurt and humiliation, then the Respondents would submit that there is no evidence to support such a claim, and there is no basis for the quantum sought.
  4. In relation to other assertions made in the Applicant’s Submissions, the relevant evidence has not been tendered to the Tribunal.
  1. [34]
    In respect of the order that the respondents pay $10,000 to Ms Thorne, the learned member set out the following reasons:[30]

[123]  Ms Thorne has not submitted any evidence to substantiate her claim for past economic loss. At the least I would have expected her to tender a copy of relevant income tax returns and evidence of attempts to gain other work. That evidence should have been available to enable cross-examination by the respondents. I am unable to make any award for economic loss.

[124]   That leaves Ms Thorne’s claim for compensation for damage, which is defined in the Act to include offence, embarrassment, humiliation and intimidation suffered by a person. Ms Thorne appears to claim a sum equivalent to the amount of her economic loss claim in the order of approximately $80,000. She offers no comparative decisions in justification of this sum.

[125]  Ms Thorne’s evidence in chief addresses her feelings of stress, depression, lack of self-worth and anxiety as a result of the discrimination she suffered. She says that she attempted suicide shortly after the termination of her employment because of diminution of self worth, the prospects for her future and the hurt and humiliation that she felt. Ms Thorne says that she is currently taking anti-depressants and termination of employment, the discrimination she endured and the flow on effects have contributed to this. She further says that she felt humiliated and embarrassed and was sick at the thought that her colleagues would be told that she was terminated for being dishonest or for her medical condition. She said that she is hugely concerned that her public record states she was terminated for dishonesty and that may jeopardize her ability to obtain positions in the future.

[126]  No medical evidence was tendered in relation to Ms Thorne’s psychological state. However, Ms Thorne was not challenged in cross-examination in relation to these matters. I accept that Ms Thorne did suffer hurt and humiliation as a result of her dismissal from employment in the circumstances in which it occurred.

[127]  Upon reference to other cases involving termination of employment as a consequence of discriminatory conduct,(15)[31] I consider an appropriate award of compensation for hurt and humiliation is $10,000.00. The Council and Mr Tytherleigh are jointly and severally liable to pay that sum to Ms Thorne.

  1. [35]
    The appellant submits that the learned member erred by not explaining to Ms Thorne, an unrepresented litigant, that she had to provide evidence to substantiate her past economic and non-economic loss and that such a claim would fail in the absence of such evidence. Certainly, that did not occur in such specific terms.
  2. [36]
    It is submitted that the exchange between the learned member and Ms Thorne following the close of evidence indicated that no further evidence would be received after that point.
  3. [37]
    The appellant submits that a judicial officer has a duty to take appropriate steps to ensure that an unrepresented litigant receives a fair trial. The appellant says the duty can be summarised as follows:[32]
    1. Courts have an overriding duty to ensure that a trial is fair and conducted in accordance with the law.[33] That duty reposes in the individual judicial officer hearing a case.[34]
    2. The duty is to ensure a fair trial for all parties. It requires the impartial function of the judge to be preserved, but it also requires the judge to intervene where necessary to ensure the trial is fair and just.[35] However, the judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation.[36]
    3. Where a litigant is unrepresented, the judge must ensure that a person does not suffer a disadvantage from exercising the right to be self-represented.[37] In such a case, the judge has an obligation to take appropriate steps to ensure the litigant has sufficient information about the practice and procedure of the courts, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of this principle will vary depending on the circumstances of the case.[38]
    4. Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised.[39] It is not the function of the court to give judicial advice to or conduct the case on behalf of, an unrepresented litigant.[40] Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice.[41]
    5. There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties.[42] The boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial.[43] The touchstone at all times remains that of fairness.[44]
  4. [38]
    The appellant submits that these principles were considered in SZRUR v Minister for Immigration and Border Protection[45] where it was held that a judge has a duty to ensure that an unrepresented litigant is aware of the procedural and evidential rules. In that case, the judge failed to explain to the litigant that he could not simply assert fraud in submissions made from the bar table but needed to give evidence under oath or affirmation. As a result, the primary judge’s decision was set aside on the ground of a breach of procedural fairness. Further, Allsop CJ (with whom Mortimer J agreed) stated that at the end of giving evidence the judge may have been required to inform the applicant as to its adequacy.[46]
  5. [39]
    Relying on the principles set out and the case of SZRUR, the appellant submits that the learned member recognised that Ms Thorne was not legally trained and, having regard to the exchange at the end of the hearing, there is a clear inference that Ms Thorne did not understand the procedural and evidential rules. In particular, it is submitted that she did not appreciate the need for evidence to prove her financial loss and the consequences of not providing such evidence. It is submitted that the learned member failed to explain to Ms Thorne that if she wanted to claim past economic loss and general damages she needed to provide evidence to substantiate it, or otherwise her claim may fail. It is submitted that the learned member should have invited Ms Thorne and given her an opportunity to provide such evidence.[47]
  6. [40]
    It is submitted that Ms Thorne was not put in a position where she could make an effective choice about how to conduct her case and was denied procedural fairness. Had she been properly informed of her options, she would have provided evidence to substantiate her economic and non-economic losses.
  7. [41]
    The respondents submit that the learned member adequately explained the practices and procedures of the tribunal at the commencement of the hearing and provided assistance to Ms Thorne where necessary throughout the hearing.[48] Further, the respondents submit that had the learned member gone further she would have gone too far in assisting Ms Thorne to make her case.
  8. [42]
    We accept, as submitted by the respondents, that the level of assistance varies depending on the circumstances. The respondent relies on Owerhall v Bolton & Swan Pty Ltd[49] where the Supreme Court of Victoria, relying on Guissine v Silver Top Taxi Service Pty Ltd[50] said:

It is a frequent consequence of self-representation that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case.

  1. [43]
    We accept that Ms Thorne was a well-educated, intelligent person with business acumen. Her evidence to the Tribunal supports that finding. She gave evidence that she owned and operated her own businesses and had completed diplomas and masters qualifications.[51] The respondents also say that she had assistance from legal practitioners during part of the matter. However, she was unrepresented at the hearing. We have not placed any significant weight on the involvement of lawyers in the background of the matter. However, we note that the reasons reflect that Ms Thorne had engaged a lawyer in relation to a claim for damages in respect of the accident that caused her injuries.[52]
  2. [44]
    The respondents rely on Minogue v Human Rights and Equal Opportunity Commission[53] which was also cited by the appellants, and in particular, the following passage:[54]

In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantages which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent …

Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean the court will give to the other partly less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward argument which otherwise he might have done.

  1. [45]
    The respondents also referred us to Tomasevic v Travaglini[55] where the Supreme Court of Victoria set out the revised guidelines enunciated in Re F: Litigants in Person Guidelines:[56]
    1. (1)
      A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial.
    2. (2)
      A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses.
    3. (3)
      A judge should explain to the litigant in person any procedures relevant to the litigation.
    4. (4)
      A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation.
    5. (5)
      If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn, the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course.
    6. (6)
      A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise.
    7. (7)
      If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights.
    8. (8)
      A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous of misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated: Neil v Nott (1994) 121 ALR 148 at 150.
    9. (9)
      Where the interests of justice and the circumstances of the case require it, a judge may:
  • Draw attention to the law applied by the court in determining issues before it;
  • Question witnesses;
  • Identify applications or submissions which ought to be put to the court;
  • Suggest procedural steps that may be taken by a party;
  • Clarify the particulars of the orders sought by a litigant in person or the bases of such orders.

The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.[57]

  1. [46]
    The respondents further rely on Reisner v Bratt[58] where Judge Hodgson made the following remarks:

…it would generally conflict with the Court’s position as an impartial adjudicator for it to take steps to seek to improve an unrepresented litigant’s case by investigating whether there is more material to support that case than has been presented to the Court, and then taking steps to obtain that material.

…the decisions of the primary judge, both 14 April and 17 April, must be considered in light of the material actually presented to him, not on the basis of material he might have had if he had taken it upon himself to investigate the matter further.

  1. [47]
    The respondents submit that if the learned member had intervened in the way the appellant submits she would have been given an additional or unfair advantage.
  2. [48]
    We do not accept that that is the case. Ms Thorne’s statement of contentions gave the respondents prior notice of her claims in respect of economic loss and emotional and psychological hurt and humiliation linked to the claimed discriminatory conduct. Ms Thorne sought an amount equivalent to the annual salary she was paid by the Council. This is not a case where the legally represented respondents were unaware of the damages and loss sought by the appellant. In our view, matters such as how any compensation or damages ought be quantified and relevant issues, such as whether Ms Thorne had mitigated her loss or established that any loss was caused by the discriminatory conduct, are complex legal concepts. We do not consider that the Tribunal’s explanation of these concepts to enable the relevant party to assess their case and make any submissions to the Tribunal, including perhaps to seek further time in which to obtain relevant evidence, gives the unrepresented party an unfair advantage over a represented one.
  3. [49]
    We consider that the learned member could have taken some time at the commencement of the hearing to explain the relevant sections of the ADA she was being asked to apply. That would have included a discussion about the relief being sought by Ms Thorne in terms of the orders open to be made by the Tribunal under s 209 of the ADA in the event that a breach of the ADA was found and an explanation of any legal concepts that related to those orders was required. That did not occur. It was not until after the evidence was finalised that the Tribunal asked the applicant about the relief she sought. In our view, that discussion should have occurred at a much earlier point in time and included a discussion about any related legal concepts. Such a discussion was relevant to Ms Thorne’s claim for both economic loss and compensation not linked to any lost income.
  4. [50]
    Further, given that Ms Thorne gave evidence about her lost income and her psychological state, had the learned member formed the view that that evidence was not likely or may not be sufficient to establish the loss or damages Ms Thorne sought, then the learned member should have articulated that to Ms Thorne. To do so would have discharged the positive obligations on the Tribunal under s 29 of the QCAT Act to ensure that each party understands the legal implications of assertions and issues in the proceeding.  To not do so then reserve the decision and rely on a lack of evidence to find that a particular order sought by the appellant could not be made, is not in our view according the appellant procedural fairness or conducting a fair hearing. The learned member should have asked Ms Thorne whether there was any further evidence upon which she wished to rely.
  5. [51]
    We do not consider that, where an unrepresented person has clearly claimed particular relief, such an exchange goes too far in providing assistance to an unrepresented party or exceeds the positive obligations on the Tribunal under s 29 of the QCAT Act. Such an exchange does not tell a party how to run their case or suggest other claims they might wish to make, but rather offers assistance as to how the Tribunal weighs evidence in order to make findings. Such an exchange gives the relevant party an opportunity to respond to a matter (in this case, a lack of evidence) that might result in a finding adverse to the party.
  6. [52]
    We conclude that the learned member has not conducted a fair hearing. That is an error of law.

Ground 3 - In the alternative, did the tribunal err by making an award of damages for non-economic loss that was disproportionate to the findings of fact and prevailing community standards?

  1. [53]
    It is worth restating the relevant passages of the learned member’s reasons that deal with non-economic loss or compensation for hurt and humiliation:[59]

[125]  Ms Thorne’s evidence in chief addresses her feelings of stress, depression, lack of self-worth and anxiety as a result of the discrimination she suffered. She says that she attempted suicide shortly after the termination of her employment because of diminution of self worth, the prospects for her future and the hurt and humiliation that she felt. Ms Thorne says that she is currently taking anti-depressants and termination of employment, the discrimination she endured and the flow on effects have contributed to this. She further says that she felt humiliated and embarrassed and was sick at the thought that her colleagues would be told that she was terminated for being dishonest or for her medical condition. She said that she is hugely concerned that her public record states she was terminated for dishonesty and that may jeopardize her ability to obtain positions in the future.

[126]  No medical evidence was tendered in relation to Ms Thorne’s psychological state. However, Ms Thorne was not challenged in cross-examination in relation to these matters. I accept that Ms Thorne did suffer hurt and humiliation as a result of her dismissal from employment in the circumstances in which it occurred.

[127]  Upon reference to other cases involving termination of employment as a consequence of discriminatory conduct,(15)[60] I consider an appropriate award of compensation for hurt and humiliation is $10,000.00. The Council and Mr Tytherleigh are jointly and severally liable to pay that sum to Ms Thorne.

  1. [54]
    The appellant submits that the learned member appeared to have accepted Ms Thorne’s evidence of the effect the discrimination had had on her, noting that although the evidence was not corroborated by any medical evidence it was unchallenged. In those circumstances, the appellant submits that the award of $10,000 for hurt and humiliation was manifestly inadequate. The appellant submits that awards of about $10,000 have been awarded where the effects on the applicants are less severe and there is not ongoing effect on a person’s psychological or emotional functioning.[61]
  2. [55]
    The appellant relies on a number of authorities, including a decision of this Tribunal in Hunter v State of Queensland[62]. In that case, the applicant experienced discomfort, physical stress on his body, embarrassment, degradation, humiliation and anger as a result of discrimination. He was awarded $8,000. The learned member noted that compensation of $20,000 or more had been usually awarded where the assessment has been based on the presence of an injury with some degree of ongoing effect on a person’s psychological or emotional functioning.
  3. [56]
    Based on the appellant’s examination of other cases, the appellant argues that the more appropriate award of damages would be in the vicinity of $80,000.[63] The appellant also argues that the award of $10,000 was out of step with the community standards regarding damages of the kind suffered by Ms Thorne.[64]
  4. [57]
    The respondent submits that the order was in the discretion of the learned member and nothing in the appellant’s submissions identifies an error in the exercise of the discretion. The respondents draw our attention to the High Court decision of House v R[65] where Dixon, Evatt and McTiernan JJ held:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts on the wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

  1. [58]
    In our view, the learned member’s reasons are unclear. It is not clear whether the learned member:
    1. accepted all of the evidence she set out at [125] because it was not challenged in cross–examination; and also
    2. accepted that Ms Thorne’s evidence as to her psychological state was the result of the discriminatory conduct and/or breach of s 124 of the ADA; or

whether the learned member acknowledged the evidence as set out in [125] but, perhaps due to the absence of supporting medical evidence, only found that Ms Thorne suffered hurt and humiliation as opposed to some more serious psychological injury as a result of the discriminatory conduct. 

  1. [59]
    In our view, it is open to read the learned member’s reasons as having accepted the evidence given by Ms Thorne as to her psychological state as unchallenged and, in the absence of a clear finding that the discriminatory conduct did not cause the impact on her psychological state, that the learned member regarded it as a consequence of the discriminatory conduct.
  2. [60]
    An award of $10,000 for hurt and humiliation, where based on a finding that Ms Thorne experienced feelings of stress, depression, lack of self-worth and anxiety as a result of the discrimination she suffered and that she attempted suicide linked to the discriminatory conduct and continued to take anti-depressant medication post-termination of her employment, we accept would be extremely low. In our view, an award of $10,000 where an ongoing psychological injury was accepted is unreasonable or plainly unjust so that we may infer that in some way there has been a failure to properly exercise the discretion within the law. 
  3. [61]
    This ground has been expressed as an alternative argument. Given the lack of clear reasons, and our findings in relation to grounds 1 and 2, we do not consider that this is a case where we can accept the finding made by the learned member and proceed to make our own determination as to the appropriate award of damages. 

Ground 4 – did the tribunal err by failing to award damages with respect to the respondents’ breach of s 124 of the ADA?

  1. [62]
    The learned member made a clear finding that, contrary to s 124 of the ADA, the Council sought unnecessary information on which unlawful discrimination could be based.[66] The learned member found that questions put to Ms Thorne in relation to aggravation of her injuries during her employment with a previous employer and the questions put to the previous employer about those issues were unnecessary.[67]
  2. [63]
    Section 124 of the ADA is contained in Chapter 4 of the ADA, which deals with Associated objectionable conduct, and provides:

124  Unnecessary information

  1. A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based.
  2. Subsection (1) does not apply to a request that is necessary to comply with, or is specifically authorised by—
  1. an existing provision of another Act; or
  2. an order of a court; or
  3. an existing provision of an order or award of a court or tribunal having power to fix minimum wages and other terms of employment; or
  4. an existing provision of an industrial agreement under the repealed Industrial Relations Act 1999; or
  5. an order of QCAT or the industrial relations commission.
  1. It is a defence to a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.
  2. In this section—

existing provision means a provision in existence at the commencement of this section.

Example—

An employer would contravene the Act by asking applicants for all jobs whether they have any impairments, but may ask applicants for a job involving heavy lifting whether they have any physical condition that indicates they should not do that work.

  1. [64]
    The appellant argues that an examination of comparable cases reveals that orders have been made for damages to be paid for a breach of s 124 of the ADA.
  2. [65]
    The appellant argues that the present case is more severe than in Willmott v Woolworths Ltd[68] and Gardener v Norcott & CDV Pty Ltd[69]. It is argued that the requests for unnecessary information in this case were more extensive, took place over a longer period of time, and were made from both Ms Thorne and her previous employer. Ms Thorne gave detailed evidence of her distress as a result of the request and of the damage it has done to her prospect of re-employment with the previous employer.[70]
  3. [66]
    The appellant submits that the appropriate award for damages in respect of a breach of s 124 of the Act, which would compensate Ms Thorne for hurt and humiliation she had suffered and take into account a notional amount for loss of a chance to return to her previous employment, is in the vicinity of $8,000 to $10,000.[71]
  4. [67]
    The respondents contend that the learned member took s 124 of the ADA into account in awarding an amount of damages that was fair and appropriate in the circumstances. The respondent relies on [127] of the reasons. The respondents contend that the appellant has not identified an error in the exercise of the discretion.
  5. [68]
    No reference is made to that finding when the learned member deals in her reasons with the appropriate remedy.[72] We consider it worth stating the final paragraphs of the learned member’s reasons for decision:

[126]  No medical evidence was tendered in relation to Ms Thorne’s psychological state. However, Ms Thorned was not challenged in cross-examination in relation to these matters. I accept that Ms Thorne did suffer hurt and humiliation as a result of her dismissal from employment in the circumstances in which it occurred.

[127]  Upon reference to other cases involving termination of employment as a consequence of discriminatory conduct,(15) I consider an appropriate award of compensation for hurt and humiliation is $10,000.00. The Council and Mr Tytherleigh are jointly and severally liable to pay that sum to Ms Thorne.

Orders

[128]  I order that the First Respondent, the Toowoomba Regional Council and the Second Respondent, Kelvin Tytherleigh, pay to the Applicant Lauren Edwina Thorne the sum of $10,000 within 28 days of the date of this order.

  1. [69]
    We consider that it is open to infer from the reasons of the learned member that the award of $10,000 was a global award for breaches of the ADA by the respondents linked to the hurt and humiliation the learned member was satisfied Ms Thorne had experienced. We see no issue with the Tribunal adopting such an approach.
  2. [70]
    While it may have been preferable for the learned member to clearly state that the amount of $10,000 also took into account her findings in relation to a breach of s 124 ADA, we do not consider that it was an error of law not to do so. The appeal on this ground is dismissed.

Conclusion

  1. [71]
    We conclude that the appeal on grounds 1, 2 and 3 is allowed and the matter should be returned to the Tribunal as originally constituted for rehearing on the issue of the appropriate final orders to be made.
  2. [72]
    Given our findings in relation to grounds 1 and 2, it will be appropriate for the appellant to provide further evidence to the tribunal and the respondents must be given an opportunity to respond to any evidence admitted by the Tribunal. We consider that the Tribunal conducting the rehearing is best placed to determine what new evidence should be admitted.
  3. [73]
    To that end, we make the following orders and directions:
    1. The Appeal as to grounds 1, 2, and 3 is allowed;
    2. The decision of 27 June 2016 only insofar as it relates to the orders made under s 209 of the Anti-Discrimination Act 1991 (Qld) is set aside and the matter is returned to the tribunal, as originally constituted, for reconsideration and with the following directions:
    1. The proceeding be listed for a directions hearing before the Tribunal as originally constituted at Brisbane on a date and at a time to be notified to the parties.
    2. The Tribunal may determine any application filed by the parties to adduce new evidence in the rehearing of the matter. 

    Costs

    1. [74]
      The appellant seeks an order that the respondents pay the appellant’s cost of the appeal as agreed or assessed. The respondents have not addressed those submissions. Now that we have made a decision in respect of the appeal, we consider it appropriate that the parties be given a further opportunity to make submissions in relation to costs.
    2. [75]
      Any submissions should address s 107 of the QCAT Act which deals with fixing or assessing costs. Section 107(1) states:[73]

    107  Fixing or Assessing Costs

    1. If the Tribunal makes a costs order under this Act or an enabling Act, the tribunal must fix costs if possible.
    2. If it is not possible to fix the costs having regard to the nature of the proceeding, the tribunal may make an order requiring that the costs be assessed under the rules.
    3. The rules may provide that costs must be assessed by reference to a scale under the rules applying to a court.
    1. [76]
      We direct that:
      1. (1)
        The appellant must file in the Tribunal two (2) copies and give to the respondents one (1) copy of any further written submissions as to costs in the appeal by 4:00 pm on 8 December 2017.
      2. (2)
        The respondents must file in the Tribunal two (2) copies and give to the appellant one (1) copy of any written submissions in relation to costs by 4:00 pm on 22 December 2017.

    Footnotes

    [1] Thorne v Toowoomba Regional Council & Tytherleigh [2016] QCAT 212.

    [2]Lida Build Pty Ltd v Miller [2010] QCATA 17.

    [3] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146.

    [4]  Directions dated 19 October 2015.

    [5]  Transcript of Proceedings, Lauren Edwina Thorne v Toowoomba Regional Council and Another (Queensland Civil and Administrative Tribunal, ADL053-15, Member Fitzpatrick, 27 November 2015) (‘Transcript’), page1-2, lines 35-43.

    [6]  Transcript, page 1-4, lines 20 to 23.

    [7]  Transcript, page 1-7, lines 10 to 15.

    [8]  Transcript, page 1-8, lines 13 to 20.

    [9]  Transcript, page 1-9, lines [13] to [31].

    [10]  Transcript, page 1-15, lines [41] to [42].

    [11]  Transcript, page 1-23, lines [10] to [13].

    [12]  Transcript, page 1-54, lines 46 to 47.

    [13]  Transcript, page 1-55, lines 6 to 58.

    [14]  Transcript, page 1-55, lines 28 to 29.

    [15]  Transcript, page 1-58, lines 32 to 34.

    [16]  Transcript, page 1-61, line 17.

    [17]  Transcript, page 1-61, line 27.

    [18]  Transcript, page 1-71, lines 11 to 19.

    [19]  Applicant’s contentions dated 26 October 2015.

    [20]  Applicant’s contentions dated 26 October 2015 [67]. $750,000 was stated but is later acknowledged as a typographical error.

    [21]  Transcript, page 8, lines 13 to 25.

    [22]  Transcript, pages 11 to 15 and 52.

    [23]  Transcript, page 115.

    [24]  Transcript, pages 116 to 118.

    [25]  Respondents’ contentions in response dated 26 November 2015, [83] - [88]; the statement of Kelvin Tytherleigh sworn 20 November 2015, [77] - [81]; and statement of Jerry Mooketsi sworn 23 November 2015, [24], [25].

    [26]  Email from Ms Thorne dated 26 November 2015, [6]; Applicant’s submissions dated 15 December 2015 at page 4 in response to [23b] of the respondents’ submissions; page 7 [15] in response to respondents’ submissions at [66].

    [27]  Applicant’s submissions dated 15 December 2015 page 7 [15] in response to the respondents’ submissions [66].

    [28]  Applicant’s submissions dated 15 December 2015, page 9 under the heading “Promissory Estoppel”.

    [29]  Applicant’s submissions dated 15 December 2015, page 10 under the heading “Outcomes Sought”.

    [30]Thorne v Toowoomba Regional Council & Tytherleigh [2016] QCAT 212, 23 - 24.

    [31] Stallard v Alsun Aluminium and Anor [2011] QCAT 490; Webb v Lightfoot [2011] QCAT 233; Irvine v Porter v Mermaids Café and Bar Pty Ltd and Ingall (No 2) [2010] QCAT 482.

    [32]Hamod v New South Wales [2011] NSWCA 375, [309] - [316], per Beazley JA (Giles and Whealy JJA agreeing); approved by Sanderson v Bank of Queensland Ltd [2016] QCA 137, [22] per McMurdo JA (Morrison JA and Burns J agreeing) as set out at p.7 of the Appellant’s submissions.

    [33]Dietrich v R (1992) 177 CLR 292; MacPherson v R (1981) 147 CLR 512, [16] per Gibbs CJ and Wilson J.

    [34]Hamod v New South Wales [2011] NSWCA 375, [309].

    [35]Tomasevic v Travaglini (2007) 17 VR 100, [95]; Barghouthi v Transfield Pty Ltd (2002) 122 FCR 19, [10]; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52] - [53].

    [36] Burwood Municipal Council v Harvey (1995) 86 LGERA 389, 397 per Kirby P; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 [29].

    [37]R v Zorad (1990) 19 NSWLR 91, 94 - 95.

    [38] Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13, [48] per Basten JA. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,437; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135; Pezos v Police (2005) 94 SASR 154.

    [39]R v Gidley (1984) 3 NSWLR 168.

    [40]Bhagwanani v Martin [1999] SASC 406; Clark v New South Wales (No 2) [2006] NSWSC 914.

    [41]McPherson v R (1981) CLR 512, 534 per Mason J

    [42]Hamod v New South Wales [2011] NSWCA, [315].

    [43]Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997), 6; Minogue v Human Rights and Equal Opportunity Commission, [29].

    [44] Hamod v New South Wales [2011] NSWCA, [313], [315].

    [45]  [2013] FCAFC 146.

    [46]  Ibid, [53], [54].

    [47]  The appellant relies on cases where unrepresented litigants were invited to provide further evidence e.g. ATM15 v Minister for Immigration & Anor [2016] FCCA 1910, [5]; ARL15 v Minister for Immigration & Anor [2016] FCCA 1907, [42]; Ramsay v Wade [2014] FCCA 1431, [59] - [67].

    [48]  See Respondents Submissions [32] and [33] and the transcript references referred to therein.

    [49]  [2016] VSC 91, 8.

    [50]  [2016] VSC 225.

    [51]  Transcript, page 1-12, lines 46 to 47 to page 1-13, lines 1 to 4.

    [52]Thorne v Toowoomba Regional Council & Tytherleigh [2016] QCAT 212, 9 [49].

    [53]  (1999) 84 FCR 438.

    [54]  Ibid, [104], [105].

    [55]  [2007] VSC 337, [136].

    [56]  (2001) 27 FAM LR 517.

    [57]  Tomasevic v Travaglini [2007] VSC 337 citing Brehoi v Minister for Immigration and Multicultural Affairs [2001] FCA 931; Platcher v Joseph [2004] FCAFC 68 [137] (Weinberg J).

    [58]  [2004] NSWCA 22, [6].

    [59] Thorne v Toowoomba Regional Council & Tytherleigh [2016] QCAT 212, 24.

    [60]Stallard v Alsun Aluminium and Anor [2011] QCAT 490; Webb v Lightfoot [2011] QCAT 233; Irvine v Porter v Mermaids Café and Bar Pty Ltd and Ingall (No 2) [2010] QCAT 482.

    [61]  Appellant’s submissions, [31].

    [62]  [2015] QCAT 179.

    [63]  Appellant’s submissions, [31] - [33].

    [64]  Appellant’s submissions, [34] citing Richardson v Oracle [2014] FCAFC 82, [96] - [98].

    [65]  [1936] HCA 40.

    [66] Thorne v Toowoomba Regional Council & Tytherleigh [2016] QCAT 212, 17 [83].

    [67] Thorne v Toowoomba Regional Council & Tytherleigh [2016] QCAT 212, 16 - 17 [82(c)], 17 [85].

    [68]  [2014] QCAT 601.

    [69]  [2004] QADT 39.

    [70]  Appellant’s submissions, [36] - [38].

    [71]  Appellant’s submissions, [39].

    [72] Thorne v Toowoomba Regional Council & Tytherleigh [2016] QCAT 212, 22 [117] - 24 [127].

    [73] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 107.

Close

Editorial Notes

  • Published Case Name:

    Lauren Edwina Thorne v Toowoomba Regional Council and Kelvin Tytherleigh

  • Shortened Case Name:

    Thorne v Toowoomba Regional Council

  • MNC:

    [2017] QCATA 128

  • Court:

    QCATA

  • Judge(s):

    Senior Member Endicott, Member Guthrie

  • Date:

    23 Nov 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Abram v Bank of New Zealand [1996] ATPR 41-507
1 citation
Jump To
Cite 1 - [1996] ATPR 41-507
ARL15 v Minister for Immigration & Anor [2016] FCCA 1907
1 citation
Jump To
Cite 1 - [2016] FCCA 1907
ATM15 v Minister for Immigration & Anor [2016] FCCA 1910
1 citation
Jump To
Cite 1 - [2016] FCCA 1910
Barghouthi v Transfield Pty Ltd (2002) 122 FCR 19
1 citation
Jump To
Cite 1 - (2002) 122 FCR 19
Bhagwanani v Martin [1999] SASC 406
1 citation
Jump To
Cite 1 - [1999] SASC 406
Brehoi v Minister for Immigration and Multicultural Affairs [2001] FCA 931
1 citation
Jump To
Cite 1 - [2001] FCA 931
Burwood, Council of the Municipality of v Harvey (1995) 86 LGERA 389
1 citation
Jump To
Cite 1 - (1995) 86 LGERA 389
Cachia v Grech [2009] NSW CA 232
1 citation
Jump To
Cite 1 - [2009] NSW CA 232
Clark v New South Wales (No 2 ) [2006] NSWSC 914
1 citation
Jump To
Cite 1 - [2006] NSWSC 914
Dietrich v The Queen (1992) 177 CLR 292
1 citation
Jump To
Cite 1 - (1992) 177 CLR 292
Gardener v Norcott [2004] QADT 39
1 citation
Jump To
Cite 1 - [2004] QADT 39
Glenwood Properties Pty Ltd v Delmoss Pty Ltd[1986] 2 Qd R 388; [1986] QSC 221
1 citation
Jump To
Cite 1 - [1986] 2 Qd R 388
Guissine v Silver Top Taxi Service [2016] VSC 225
1 citation
Jump To
Cite 1 - [2016] VSC 225
Hamod v New South Wales [2011] NSWCA 375
2 citations
Jump To
Cite 1 - [2011] NSWCA 375
Cite 2 - [2011] NSWCA 375
Hockley v Sowden [2000] QCA 9
1 citation
Jump To
Cite 1 - [2000] QCA 9
House v R (1936) HCA 40
1 citation
Jump To
Cite 1 - (1936) HCA 40
Hunter v Queensland [2015] QCAT 179
1 citation
Jump To
Cite 1 - [2015] QCAT 179
Irvine and Porter v Mermaids Café and Bar Pty Ltd and Ingall (No 2) [2010] QCAT 482
2 citations
Jump To
Cite 1 - [2010] QCAT 482
Cite 2 - [2010] QCAT 482
Lee v Cha [2008] NSWCA 13
1 citation
Jump To
Cite 1 - [2008] NSWCA 13
Lida Build Pty Ltd v Miller [2010] QCATA 17
1 citation
Jump To
Cite 1 - [2010] QCATA 17
MacPherson v The Queen (1981) 147 CLR 512
1 citation
Jump To
Cite 1 - (1981) 147 CLR 512
McPherson v R (1981) CLR 512
1 citation
Jump To
Cite 1 - (1981) CLR 512
Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135
1 citation
Jump To
Cite 1 - [2004] FCA 1135
Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438
3 citations
Jump To
Cite 1 - (1999) 84 FCR 438
Cite 2 - (1999) 84 FCR 438
Cite 3 - (1999) 84 FCR 438
NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944
1 citation
Jump To
Cite 1 - [2002] FCA 944
Nagy v Ryan [2003] SASC 37
1 citation
Jump To
Cite 1 - [2003] SASC 37
Neil v Nott (1994) 121 ALR 148
1 citation
Jump To
Cite 1 - (1994) 121 ALR 148
Owerhall v Bolton & Swan Pty Ltd [2016] VSC 91
1 citation
Jump To
Cite 1 - [2016] VSC 91
Pezos v Police (2005) 94 SASR 154
1 citation
Jump To
Cite 1 - (2005) 94 SASR 154
Platcher v Joseph [2004] FCAFC 68
1 citation
Jump To
Cite 1 - [2004] FCAFC 68
QUYD Pty Ltd v Marvass Pty Ltd[2009] 1 Qd R 41; [2008] QCA 257
1 citation
Jump To
Cite 1 - [2009] 1 Qd R 41
R v Gidley (1984) 3 NSWLR 168
1 citation
Jump To
Cite 1 - (1984) 3 NSWLR 168
R v Zorad (1990) 19 NSWLR 91
1 citation
Jump To
Cite 1 - (1990) 19 NSWLR 91
Ramsay v Wade [2014] FCCA 1431
1 citation
Jump To
Cite 1 - [2014] FCCA 1431
Reisner v Bratt [2004] NSWCA 22
1 citation
Jump To
Cite 1 - [2004] NSWCA 22
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
2 citations
Jump To
Cite 1 - [2014] FCAFC 82
Cite 2 - [2014] FCAFC 82
Sanderson v Bank of Queensland Limited [2016] QCA 137
1 citation
Jump To
Cite 1 - [2016] QCA 137
Stallard v Alsun Aluminium Pty Ltd and Anor [2011] QCAT 490
2 citations
Jump To
Cite 1 - [2011] QCAT 490
Cite 2 - [2011] QCAT 490
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146
2 citations
Jump To
Cite 1 - [2013] FCAFC 146
Cite 2 - [2013] FCAFC 146
Thorne v Toowoomba Regional Council [2016] QCAT 212
8 citations
Jump To
Cite 1 - [2016] QCAT 212
Cite 2 - [2016] QCAT 212
Cite 3 - [2016] QCAT 212
Cite 4 - [2016] QCAT 212
Cite 5 - [2016] QCAT 212
Cite 6 - [2016] QCAT 212
Cite 7 - [2016] QCAT 212
Cite 8 - [2016] QCAT 212
Thorne v Toowoomba Regional Council & Tytherleigh (2001) 27 Fam LR 517
1 citation
Jump To
Cite 1 - (2001) 27 Fam LR 517
Tomasevic v Travaglini (2007) 17 VR 100
1 citation
Jump To
Cite 1 - (2007) 17 VR 100
Tomasevic v Travaglini (2007) VSC 337
3 citations
Jump To
Cite 1 - (2007) VSC 337
Cite 2 - (2007) VSC 337
Cite 3 - (2007) VSC 337
Webb v Lightfoot [2011] QCAT 233
2 citations
Jump To
Cite 1 - [2011] QCAT 233
Cite 2 - [2011] QCAT 233
Willmott v Woolworths Ltd [2014] QCAT 601
1 citation
Jump To
Cite 1 - [2014] QCAT 601

Cases Citing

Case NameFull CitationFrequency
Knox v Body Corporate for 19th Avenue CTS 6625 [2020] QCAT 4973 citations
Vale v State of Queensland & Ors [2019] QCAT 2901 citation
Van Zyl & Anor v Rentstar [2021] QCATA 1202 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.