State of Queensland v Bond[2017] QCATA 97

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. [1]
   This is an application to stay pending appeal against discretionary procedure decisions permitting the respondent to amend a discrimination complaint filed on 6 February 2015 to add (a) out of time allegations (b) a victimization allegation post-dating the referral of the complaint to QCAT.
2. [2]
   Section 138 of the Anti-Discrimination Act 1991 (Qld) limits complaints to alleged contraventions occurring within the preceding year.
3. [3]
   The respondent lodged her complaint on 6 February 2015.
4. [4]
   The Anti-Discrimination Commission Queensland (ADCQ) decided to accept the complaint except for allegations of acts of discrimination or victimization before 6 February 2014.
5. [5]
   The tribunal held that because a valid complaint is limited to allegations within a year those outside that period were never part of a valid complaint and while time barred complaints could be included by the commission under s 138(2) they were not part of the application and therefore, they had not been rejected by the commission or lapsed in terms of s 142 of the Act consequently the tribunal’s s 178 discretion was unfettered.
6. [6]
   The applicant must satisfy the following criteria to obtain a stay of the original decision:

1. the applicant must present a reasonably arguable case for obtaining effective relief in the substantive proceedings because the original decision appears to be infected by some form of legal, factual or discretionary error that would warrant appellate intervention to correct it;
2. the applicant must establish that a refusal of the stay would cause a material detriment to the applicant; and
3. the applicant must demonstrate that the balance of convenience favours the granting of a stay of the operation of the original decision.

These requirements are cumulative. If the applicant fails to discharge any one of the three requirements, the applicant must fail.^[1]

7. [7]
   A reasonably arguable case of error has been demonstrated and there are matters of general importance raised by the application.
8. [8]
   The applicants have thus made out a case for a stay until the appeal is decided.
9. [9]
   The applicants should not be put to the time and expense of addressing contentions that may be redundant and there is no prejudice to the respondent that cannot be remedied.
10. [10]
    Orders accordingly.