University of the Sunshine Coast v Hickson-Jamieson
[2022] QCATA 54
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- University of the Sunshine Coast v Hickson-Jamieson[2022] QCATA 54
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University of the Sunshine Coast v Hickson-Jamieson[2022] QCATA 54
University of the Sunshine Coast v Hickson-Jamieson[2022] QCATA 54
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | University of the Sunshine Coast v Hickson-Jamieson [2022] QCATA 54 |
PARTIES: | university of the sunshine coast (applicant/appellant) v bree hickson-jamieson (respondent) |
APPLICATION NO/S: | APL092-21 |
ORIGINATING APPLICATION NO/S: | ADL010-18 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 9 May 2022 |
HEARING DATE: | 2 March 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: | Leave to appeal from the decision of the Tribunal of 20 October 2020 refused. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – summary dismissal of application – application for leave to appeal from refusal to dismiss – whether proceedings misconceived or lacking in substance – whether otherwise an abuse of process – application by litigant in person alleging unlawful discrimination – whether decision to refuse to dismiss unreasonable or involved error or law – leave to appeal refused Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Crime and Corruption Commission v Lee [2019] QCATA 38 Re Gilbert (dec) (1946) 46 SR (NSW) 318 Mango Boulevard Pty Ltd v Spencer [2008] QCA 274 Mango Boulevard Pty Ltd v Spencer [2010] QCA 207 Rintoul v State of Queensland [2014] QCAT 102 |
APPEARANCES & REPRESENTATION: | |
Applicant: | M Minucci instructed by Clayton Utz, solicitors |
Respondent: | Self-represented |
REASONS FOR DECISION
- [1]On 9 March 2017 the applicant made a complaint of discrimination contrary to the Anti-Discrimination Act 1991 (Qld) (“the Act”) against the University and an individual associated with the University, the Queensland College of Teachers (“the College”), and an individual associated with the College.[1] That matter was referred to the Tribunal in 2018, and in 2020 the respondents all applied to have the proceeding against them dismissed under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 47.
- [2]That application came before a Member who in October 2020 dismissed the substantive application against the respondents other than the University, and dismissed the substantive application against the University do far as it relied on direct discrimination, but allowed the application against the University to continue so far as it related to indirect discrimination. A direction was also made that the applicant file and serve a new points of contention document in relation to her claim of indirect discrimination. The University seeks leave to appeal against the failure of its application to dismiss the indirect discrimination case.
- [3]The decision on the University’s application to dismiss was not the Tribunal’s final decision in the proceeding. Accordingly the University requires the leave of the Appeal Tribunal to appeal: the QCAT Act s 142(3)(a)(ii). As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.[2]
- [4]An Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the finding, and it is not contrary to compelling inferences.[3] There is a particular reluctance to interfere in relation to the exercise of a discretion on a point of practice or procedure.[4] If leave to appeal is granted, the appeal is by way of rehearing so far as it is against a decision on a question of fact, or of mixed fact and law: the QCAT Act s 147. Otherwise it is an appeal which will only correct an error of law: the QCAT Act s 146.
Background
- [5]In 2015 and 2016 the applicant enrolled in a course at the University for a Graduate Diploma in Education.[5] As part of this course students were required to undertake a period of supervised professional experience, in effect teaching a class at a school under the supervision of its usual teacher. During this period the student was expected to attend during normal school hours, including a period of thirty minutes before classes began, and to remain after school as required to review lessons, to attend staff meetings and to discuss the teaching with the supervising teacher.
- [6]The University Diploma course is accredited under a national scheme of teacher education accreditation, administered by the College. One of the requirements for that accreditation is that the course include 62 days of supervised professional experience, undertaken in two thirty-one day blocks of full time work. The University has no power to relax that requirement if the applicant’s course is to remain an accredited teacher qualification. There was evidence however that the College had power to approve adjustments to the requirement for the supervised professional experience to be undertaken on a full time basis, and had twice exercised that power, in relation to students with disabilities.
- [7]The applicant is a parent of two children one of whom attended a special school. In Semester 2 2015 the applicant’s course included one of these blocks. She asked to be placed at a school close to the special school, and that was done. She did not attend that school when the placement began, and she attended on only six days. She did not cooperate in arranging a timetable which suited her, and when she was given some consideration with modified requirements in her timetable, did not attend the placement further. It was terminated, and she failed the course.
- [8]In Semester 1 2016 the applicant enrolled again in the course. The University told her on 29 February 2016 that it was willing to progress an application to the College to ask them to modify the requirements, and asked her to provide details of the accommodation sought by her. Soon after, she again asked for a school close to the special school, and put forward some requirements as to dates and times. She refused one school because of the time classes at the school ended. On 24 March 2016 the University advised they could not accommodate her requirements as to dates and times, and suggested she withdraw from the subject.
- [9]On 8 April 2016, the last day on which she could withdraw from the subject without failing it, she wrote to the University asking for an adjustment to the requirement for supervised professional experience. She was advised that it was first necessary for the College to approve any alteration to those requirements, before she approached schools to arrange attendance under the altered requirements. On 18 April she asked what school she had been placed at, as she had been told that one could not be allocated until the College approved the placement. She was then told that, so that an application could be made to the College to amend the requirement, she needed to provide specific information. There was no documentary evidence that that information was provided, she was never allocated a school, and again failed the subject. The applicant alleged discrimination because of the advice of 24 March 2016 and other behaviour which prevented her from completing the course.
Decision of the Member
- [10]The Member delivered a very thorough decision on the applications to dismiss.[6] The Member referred to some history of the matter, and set out the legal principles relating to an application under s 47 of the QCAT Act, in terms the University did not challenge. At [19] to [47] he set out what he said were uncontroversial factual matters relevant to the proceeding, and then quoted the terms of the Act s 8, s 10 and s 11. None of the factual findings was challenged. He said something about the case advanced against the first and second respondents, noting various deficiencies in it, then dealt with and dismissed the claim against the individual associated with the University. In respect of the University, he first dealt with the direct discrimination case, including a discussion of a number of authorities relevant to the causal element for direct discrimination at [82] to [101], and determined that it was clearly without foundation. It was therefore dismissed under the QCAT Act s 47.
- [11]Turning to the case based on indirect discrimination, the Member noted that anything which occurred prior to 9 March 2016 could not found a claim, because of the time limit for making complaints, and the date of the applicant’s complaint.[7] Otherwise, the indirect discrimination case was allowed to continue. The Member said that the nub of her case on indirect discrimination was that it was imposing the requirement that she complete the six week placement at a particular school, which she could not do because of her parental status. He noted that the onus of proof that the requirement was reasonable was on the University, but that there was still an obligation for the applicant to set out her case and evidence about reasonableness in her material: [105].
- [12]The Member said there was an ancillary aspect of that, failing to submit to the College her request to modify the placement requirement. He said he had concerns about this aspect of her case, and whether the factual basis for it was lacking in substance, but it was not appropriate to strike it out: [108]. He said that it would be necessary to consider at a full hearing the facts of her attempts to obtain some modification of the course, and the extent to which the University was able to engage with the College to support a modification of its requirements. The Member appears to have accepted that this requirement was one with which a person with an attribute could not comply but a person without the attribute would be able to comply: [110]. He did require a new points of contention document to be filed by the applicant. The Member then dealt with the application to dismiss by the remaining respondents, and upheld it.
- [13]Next the Member discussed the argument that the proceeding was an abuse of process, dealing first with the relevant law, at [154] to [160]. The Member identified that the basis of the complaint was that the applicant’s case was deficient and attempts by the respondents to extract a precise formulation had failed; there had been extensive failure on the part of the applicant to comply with Tribunal directions; there had been considerable delay; and the applicant continued to advance matters not supported by any evidence. The Member said that it was not appropriate to assess the merits of a case or the strength of the evidence to decide whether it was an abuse of process, and rejected those arguments. He said that it appeared that the matter was ready for trial, the respondents had not identified any prejudice to them from the failures by the applicant to comply with directions, or to pursue the matter more efficiently. This part of the respondents’ applications was rejected.
Submissions of the University
- [14]The University summarised the history of the proceeding, and advanced two grounds of appeal: the outcome was unreasonable or plainly unjust, and the Member failed to take into account, or to give enough weight to, certain policy considerations. As to the first ground, it was submitted that the Member must have concluded from the then current Statement of Contentions of the applicant that there was a real question to be determined in respect of the indirect discrimination claim. It was further submitted that the Member was required to identify why the applicant’s case did not come within s 47, particularly in circumstances where the Member had identified a number of weaknesses in the applicant’s case.
- [15]The University submitted that the applicant did not identify what, if anything, about the requirement to have the placement completed on a full time basis was unreasonable, said to be an essential requirement for the claim, but the Member did point out that the onus was on the respondents to show that any discriminatory requirement was reasonable. The Member had also identified difficulties in understanding just what her case was, and had engaged in speculation as to what her case might have been, or as to the existence of an unarticulated case.
- [16]The University submitted that the Member had failed to identify how the applicant’s claim, as particularised in the Amended Statement of Contentions, had any real prospects of success, notwithstanding that the Member had made a number of findings about deficiencies in any such case. The direction to file a Further Amended Statement of Contentions indicated that the Member did not understand the applicant’s case, and accordingly could not have been satisfied that she had a reasonable cause of action. It was submitted that the applicant had not shown that a person with parental responsibilities would as a result be unable to complete the practical placement.[8] The University also submitted that the applicant had failed to lead any evidence in support of a case that there was indirect discrimination.
- [17]The University also submitted that the Member had failed to address all the submissions raised by the University in support of its application, dealing in particular with the way in which the applicant had conducted the proceedings. In circumstances where neither the Amended Statement of Contentions nor the evidence filed by the applicant disclosed a cause of action for indirect discrimination, it was unreasonable for the Member not to strike the application out.
- [18]As to the Appeal Ground 2, it was submitted that the Member failed to give weight, or sufficient weight, to the terms of the QCAT Act s 3(b), to the proposition that the efficient conduct of such a matter required a properly prepared Statement of Contentions,[9] and to the fact that the applicant had been given ample opportunity to articulate her case, and had failed to comply with directions of the Tribunal.
Consideration
- [19]It occurs to me that the Member’s proposition, that it was not appropriate to assess the merits of the applicant’s case in determining whether it was an abuse of process, was doubtful. There is some authority that a proceeding will not be dismissed as an abuse of process if it appears to have some possibility of success, although one can find exceptions to that proposition. For example, the Court of Appeal upheld a decision to strike out a proceeding as an abuse of process in circumstances where the judge at first instance had been satisfied that the plaintiff had not given proper disclosure, and would not do so.[10] Perhaps another example is where it can be shown that the proceeding is being pursued for a collateral purpose, or where it is subject to res judicata.[11] I do not need to consider those, as no collateral purpose or prior decision was shown here.
- [20]Ordinarily, in a jurisdiction where there are pleadings, if a plaintiff’s pleading fails to disclose a cause of action, the pleading will be struck out but with liberty to replead. It is possible that, if enough attempts to plead a good cause of action continue to fail, a point will be reached where the court was satisfied that the reason is that there is no good cause of action to plead, although that point would be reached more quickly if the party has the benefit of legal advice.
- [21]In the case of a litigant in person, requiring something like a pleading may be, in some cases, of doubtful benefit. If the litigant cannot make clear what her claim is from evidence or submissions, it is unlikely that she will be able to clarify the position if called upon to produce something like a pleading, whatever it is called. It appears that, from an early stage, there have been directions given for the applicant to produce a Statement of Contentions in order to set out and define her case. I understand that this is usual in anti-discrimination cases, an approach adopted because of their very technical complexity. This has led in this case to applications to strike out, and directions for new (and hopefully better) Statements of Contentions, and even in the decision the subject of the present application there was a direction for a new Statement of Contentions.
- [22]With all due respect, I doubt if this approach has assisted in disposing of this proceeding in a matter that is accessible, fair, just, economical, informal and quick. I suspect that if, instead of giving such directions, the applicant had been directed to file affidavits or statements of evidence, there had been some discussion about the formulation of the applicant’s claim at a compulsory conference, and the matter had been set down for a hearing, it would have been dealt with some time ago. If at a hearing something new emerged to which a party cannot immediately respond, the hearing can always be adjourned.[12] I expect that in some cases the best way to deal with claims by litigants in person is just to give them their day in court, or in this case, in the Tribunal.
- [23]None of this matters for present purposes, except in the sense that it may not be fair for the University to be pressing for the applicant to be given a task that is really beyond her, and then to be complaining about her having failed to carry it out. The Member said that the matter was essentially ready for a hearing, and that is a factor which is relevant to whether a proceeding should be dismissed as an abuse of process.[13] The University’s case at least is clear enough: it was a matter for the College to decide any application to modify the requirement for full time professional experience; the University was prepared to assist in forwarding a submission for this to the College; it could do that only if the respondent provided it with the relevant raw material, the factual basis on which she relied for such a modification; she never did so; there was nothing else it could do, except recommend that she withdraw from the course so as to avoid failing it again.
- [24]Whether this meets whatever case the applicant puts together depends ultimately on the content of that case. I accept that it would be helpful for the University to have a document which clearly defined the basis on which the applicant’s case is put, but the possibility must be recognised that the reason for its absence is that the applicant just lacks the skills necessary to produce such a document. I do not think that the Act is intended to operate, or that the Tribunal should operate, in a way which means that a litigant in person who cannot produce a coherent document identifying the case she is intending to run will be shut out of applying to the Tribunal.[14]
- [25]It must be remembered that the Act is remedial legislation, and legislation to protect the human rights of people. In such circumstances, it is particularly appropriate that the Tribunal be cautious about striking out an application without a hearing. The Member was aware of the authorities supporting such reluctance, and gave effect to them. In effect, he concluded that he did not know enough about the matter to be sufficiently confident that the applicant did not have a good claim to justify striking out the proceeding. That is a difficult conclusion to challenge on appeal.
- [26]Many of the University’s submissions seemed to be based on the proposition that what mattered was whether the applicant could set out a good cause of action under the Act in a Statement of Contentions, in effect, could plead a good cause of action. I consider that this mistakes the nature of the power under the QCAT Act s 47. Section 47(1), governing when the section applies, is concerned with the substance of the matter underlying the proceeding. The subsection does not cover a failure to plead a good cause of action. Yet many of the University’s submissions are based on the proposition that the issue was whether the current Statement of Contentions disclosed a good cause of action, which in my opinion is not the test. During the hearing there was some broadening of the University’s approach, to rely on an absence of evidence in support of an indirect discrimination case. In response the applicant indicted that at the hearing she would (or might) want to rely on additional material to that already before the Tribunal, and that she had not been aware that she was expected to refer to evidence at this hearing. I do not propose to consider whether the existing evidence, if accepted, would show a case of indirect discrimination.
- [27]The structure of s 47 is that it is first necessary to find that one of the requirements of subsection (1) applies. If that finding is made, the discretion under subsection (2) arises. The issue is not whether the applicant, or the Member, can identify a reasonable cause of action, or a case which is not fatally flawed; it is a matter for the party seeking relief under s 47 to show that the applicant’s case is lacking in substance. A clearly formulated statement of contentions may assist in this process, because it may show a case which is inconsistent with the Act or with clear authority; but where an applicant’s case is not clear, it is more difficult to say that it is lacking in substance. It is not necessarily sufficient to show that, on the respondent’s case and materials, the applicant’s case is lacking in substance.
- [28]There are limits of course to the extent to which the Tribunal can assist a litigant in person to identify a case to be made. There is a difference between identifying just what case is to be advanced in respect of relevant matters, and suggesting to a litigant what case it may be helpful to make, which is going too far. But sometimes it can be helpful to ask about particular matters which are clearly relevant, to see what the litigant says about that specific matter, even if it turns out to be that that is not relevant. It may appear in some cases that a litigant is being deliberately obtuse or obstructive, but the possibility that the litigant is just doing her incompetent best[15] should not be disregarded. If that is suspected, it is difficult to conclude that her case is lacking in substance.
- [29]As to the proposition that the Member failed to address the arguments that the applicant had had several opportunities to formulate her claim, and had failed to comply with directions, the Member did have regard to these matters, but in the context that they were relevant to the alternative ground of the application based on abuse of process. The proceeding was not frivolous or vexatious, since it was advanced for a serious purpose and was not shown to be merely an exercise in annoying the University, and the Member was not satisfied that it was misconceived or lacking in substance. The way in which the proceeding had been or was being carried on was potentially relevant to the issue of whether it was otherwise an abuse of process, but essentially the Member was not persuaded that this was so bad as to amount to an abuse of process.
- [30]Strictly speaking the issue of abuse of process should have been considered on the basis that this was a claim not shown to be lacking in substance, which if anything confines the scope for a finding that it was an abuse of process. I am not at all sure that the fact that the applicant’s case faced difficulties and was apparently weak (but not shown to be lacking in substance) was something that would lower the bar for the sort of conduct in the course of the proceeding which would enable it to be characterised as an abuse of process. No authority was cited for this, but it might be correct. It is difficult to believe that it would lower the bar much. The Member was certainly aware of the weaknesses and difficulties of the applicant’s case.
- [31]As to the second ground of appeal, the Member was certainly aware of the policy considerations referred to, but how much weight was attributed to them was a matter for the Member in the exercise of the discretion, if it arose. It does not give rise to an error of law. To some extent this is also based on an approach to the significance of the Statement of Contentions with which I have expressed disagreement.
- [32]Overall it is not apparent to me that there are sufficient prospects of either proposed ground of appeal succeeding that it is appropriate to grant leave to appeal. Indeed, I expect that if an error of law was made and I had to decide the matter afresh, I would decide it in the same way. Leave to appeal is therefore refused.
Footnotes
[1] I shall refer to Ms Hickson-Jamieson as the applicant as she was the applicant at first instance, and use the term the University, as it is the appellant and was the second respondent at first instance. I shall use the term “the respondents” for all four of the original respondents at first instance.
[2] Crime and Corruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17].
[3] Craig v Mark Kelada Auto Sellers [2016] QCATA 48 at [13].
[4] Re Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170.
[5] The background is based on parts of the decision of the Member from [19], which neither party challenged before me.
[6] [2020] QCAT 523.
[7] Reasons of Member [113], and see [39].
[8] This submission glosses over the fact that there was a particular aspect of her parental responsibilities, that she was a parent of a child who attended a special school.
[9] Citing Rintoul v State of Queensland [2014] QCAT 102 at [13].
[10] Mango Boulevard Pty Ltd v Spencer [2008] QCA 274 (actually the counterclaiming defendant).
[11] Stubberfield v Lippiatt [2007] QCA 90.
[12] I should say that my experience of this approach was gained in a court, where listing a resumed hearing was easier than in the Tribunal.
[13] Mango Boulevard Pty Ltd v Spencer [2010] QCA 207 at [150].
[14] Under the Act the complaint is made to the Human Rights Commission, and by the time it is referred to the Tribunal there has already been some clarification of the complaint in the Commission action.
[15] A litigant in person should not be expected to be competent at drafting a pleading.