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Brisbane City Council v Le Roy[2023] QCATA 90

Brisbane City Council v Le Roy[2023] QCATA 90

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Brisbane City Council v Le Roy [2023] QCATA 90

PARTIES:

Brisbane city council

(Applicant)

v

Miree le roy 

(Respondent)

APPLICATION NO/S:

APL268-21

ORIGINATING APPLICATION NO/S:

ADL008-20

MATTER TYPE:

Appeals

DELIVERED ON:

20 July 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Forrest SC

ORDERS:

  1. Leave to rely on the affidavit of Raisa Veronique Conchin filed 7 October 2021 is refused.
  2. Leave to appeal against the orders of Member Traves of 2 July 2021 is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – FROM QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – BY LEAVE OF TRIBUNAL – where the Applicant seeks to appeal a decision by a Tribunal Member in an anti-discrimination matter that the Respondent’s complaint be dealt with as a representative complaint – whether leave to appeal should be granted – where the Applicant sought to rely on an affidavit that had been filed following the decision at first instance on the basis that it was “credible and necessary to clarify a matter about which the learned Member was led into error” – whether leave to rely on the affidavit should be granted

PROCEDURE – PROCEEDINGS IN QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – REPRESENTATIVE PARTY – GENERALLY – whether the matter should have been determined as appropriate to proceed as a representative complaint – whether there has been sufficient particularity of identification of the class of persons sought to be represented – whether formal membership of an organisation described as a “movement” is necessary for people who describe themselves as “members” or “affiliates” of that movement or organisation to constitute a suitably definable class

Anti-Discrimination Act 1991 (Qld), s 195

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(ii), s 142(3)(b)

Clarke v Japan Machines (Australia) Pty. Ltd. [1984] 1 Qd R 404

House v The King (1936) 55 CLR 499

Petrusevski v Bulldogs Rugby League Ltd [2003] FCA 61

Pickering v McArthur [2005] QCA 294

REASONS FOR DECISION

  1. [1]
    The Brisbane City Council (“the Council”) seeks leave to appeal and, if leave is granted, appeals against the orders of a Tribunal Member in an anti-discrimination matter made on an application to have a complaint dealt with as a representative complaint. At the same time, it seeks leave to rely on fresh evidence that was not before the Tribunal below in the determination of this application.

FACTUAL BACKGROUND TO SUBSTANTIVE DISPUTE

  1. [2]
    The Respondent, Ms Le Roy, alleges direct discrimination by the Council on the basis of political belief or activity in the area of the supply of goods and services. She contends she is a 62-year-old female who has, at all material times, “identified herself as a member and affiliate of the Extinction Rebellion global movement.” She contends that movement is “a political movement” with “the purpose of encouraging governments to take action to prevent climate breakdown and the extinction of species.”
  2. [3]
    Ms Le Roy further contends that she is a member of a group “known as Grey Power”, a group which “officially joined the Extinction Rebellion global movement as an ‘affinity’ group, thereby affiliating itself and its members with the movement.”
  3. [4]
    Ms Le Roy contends “[p]ersons affiliated with the Extinction Rebellion movement were holding regular public information sessions at Council libraries by making room bookings which reserved meeting rooms for the sessions, since as early as early 2019.” Ms Le Roy contends that these sessions “are political in nature as many issues relating to climate change involve political action.”
  4. [5]
    Ms Le Roy contends that the Council “passed a resolution… banning the use of libraries and other public spaces by the Extinction Rebellion group.” She further contends that from July 2019, Mr Robert Keller “a member of the Extinction Rebellion Group made various bookings for information sessions to be held at Brisbane City Council libraries, but that on 16 October 2019, he received an email from the Council’s Manager of Library Services telling him that the Brisbane City Council “would no longer accept bookings for meeting rooms or other spaces for the “Extinction Rebellion Group”, or anyone looking to hold a meeting on their behalf.”” Ms Le Roy contends that Mr Keller was also told that “his existing bookings” at a couple of the Council’s libraries “were cancelled”.
  5. [6]
    Ms Le Roy contends that the Council’s conduct as just outlined “constituted direct discrimination on the basis of political belief or activity within the meaning of section 10 of the Anti-Discrimination Act 1991 (Qld) (“the ADA”) in that the [Council] treated [Ms Le Roy] less favourably than [it] would have treated other persons who were not identifying as being part of, or affiliated with, the Extinction Rebellion.” Ms Le Roy contends that such discriminatory conduct “was unlawful as contrary to section 46 of the ADA”.
  6. [7]
    As for the case for having her complaint dealt with as a representative complaint, Ms Le Roy contended that “in the premises” of the contended facts, her complaint should be dealt with as a representative complaint pursuant to Chapter 7, Division 1, Subdivision 2 of the ADA because she alleges that the Council has contravened the ADA “against a number of people.”
  7. [8]
    Ms Le Roy contended that her complaint meets the criteria for making a representative complaint “as set out in section 195(1) of the [ADA]” as:
    1. (a)
      She is affiliated with a movement which has affiliates who have been affected or are reasonably likely to have been affected by the Council’s conduct;
    2. (b)
      She has been affected by the Council’s conduct;
    3. (c)
      The many and disparate affiliates of the Extinction Rebellion (ER) movement make joinder of all those who are affected impractical;
    4. (d)
      The questions of law and fact are common to all of those associated with the movement;
    5. (e)
      The material allegations of the complaint are the same as the material allegations in relation to other affiliates; and
    6. (f)
      The Council has acted on grounds apparently applying to Extinction Rebellion and anyone who associates with them as a whole.
  8. [9]
    Ms Le Roy seeks relief against the Council in the form of a declaration that she has been unlawfully discriminated against on the basis of her political belief and activity, namely her affiliation with the Extinction Rebellion. She also seeks an order that the Council not deny any booking request for its facilities made by any person on the basis of that person’s affiliation with the Extinction Rebellion movement and an order that the Council publish a press release stating that it is no longer banning any person affiliated with Extinction Rebellion from booking or using its facilities. She also seeks costs.

THE FIRST INSTANCE HEARING AND DECISION

  1. [10]
    Member Traves (as she was then) heard the application to have the complaint dealt with as a representative hearing on the papers, having received and considered some affidavit evidence relied upon by Ms Le Roy and written submissions from Ms Le Roy and counsel for the Council who opposed Ms Le Roy’s application. Member Traves had invited the parties to file affidavits and written submissions addressing the issue. Member Traves delivered her decision and reasons on 2 July 2021.
  2. [11]
    In her written reasons, the Member set out the contentions of fact made by Ms Le Roy and then turned to a consideration of relevant provisions of the ADA. She correctly cited section 194 of the ADA that says:-

If a complaint alleges that the respondent contravened the Act against a number of people, the tribunal must determine, as a preliminary matter, whether the complaint should be dealt with by it as a representative complaint.

  1. [12]
    The Member then pointed out, again correctly, that the determination required by section 194 is a discretionary one. The Member then set out all of section 195 of the ADA which sets out matters that the Tribunal needs to be satisfied of before it exercises the discretion to deal with a complaint as a representative complaint. That sections provides:-
  1. (1)
    The tribunal may deal with a complaint as a representative complaint if the tribunal is satisfied that—
  1. (a)
    the complainant is a member of a class of people, the members of which have been affected, or are reasonably likely to be affected by, the respondent’s conduct; and
  1. (b)
    the complainant has been affected by the respondent’s conduct; and
  1. (c)
    the class is so numerous that joinder of all of its members is impracticable; and
  1. (d)
    there are questions of law or fact common to all members of the class; and
  1. (e)
    the material allegations in the complaint are the same as, or similar or related to, the material allegations in relation to the other members of the class; and
  1. (f)
    the respondent has acted on grounds apparently applying to the class as a whole.
  1. (2)
    If the tribunal is satisfied that—
  1. (a)
    the complaint is made in good faith as a representative complaint; and
  1. (b)
    the justice of the case demands that the matter be dealt with by means of a representative complaint;
  1. the tribunal may deal with the complaint as a representative complaint even if the criteria set out in subsection (1) have not been satisfied.
  1. [13]
    The Member then proceeded to ask and answer a number of questions. The first one was the question required by section 194 of the ADA to be answered as a threshold question, namely, did the complaint allege the Council contravened the Act against a number of people?
  2. [14]
    The Member answered that question by firstly acknowledging that Ms Le Roy had, when she completed her complaint to the Queensland Human Rights Commission, stated that she was not making the complaint on behalf of someone else. The Member, however, then went on to discuss Ms Le Roy’s description of her complaint in which Ms Le Roy had said she is “part of the Extinction Rebellion (XR) movement” and that the Council had recently prohibited the use of its public libraries “to groups planning illegal activities but particularly calling out XR by name.”
  3. [15]
    The Member then went on to answer the question, saying:-

In my view, it is clear from Ms Le Roy’s description of her complaints that she is alleging that the Brisbane City Council has contravened the AD Act against a number of people, namely members of the Extinction Rebellion group, although she also had been affected as an affiliate of the group. This is not affected, in my view, by her statement at the commencement of the pro forma complaint form that she was making the complaint personally and not on behalf of someone else. The question is not in what capacity was the complaint made but what was alleged? While Ms Le Roy made the complaint in her personal capacity she alleged that the AD Act had been contravened by the [Brisbane City Council] against all members of the Extinction Rebellion group, not just her.

Accordingly, I am satisfied that the relevant pre-condition in s 194 has been met.

  1. [16]
    The Member then went on to consider each of the matters set out in section 195 of the ADA, seriatim.
  2. [17]
    Firstly, she turned to the question of whether Ms Le Roy is a member of a class of people, the members of which have been affected, or are reasonably likely to be affected by, the Brisbane City Council’s conduct. The Member stated that Ms Le Roy submits that she “is a member of the XR movement which has approximately 4000 members in Queensland and 29,000 members Australia wide.” She noted that Ms Le Roy “says she joined XR global movement at the beginning of October 2019 when Grey Power (a group to which she belonged) became an affinity group of XR.” The Member goes on to quote Ms Le Roy as saying that “[t]he structure of XR means that there is no one single group or organisational body however, grounds (sic) are formed as ‘affinity groups’ which identify as being part of, and contributing towards, the XR movement.” The Member went on to observe that Ms Le Roy says “that to qualify as a ‘member’ of the XR movement, individuals may sign up to a global database to receive updates and information.” 
  3. [18]
    The Member noted that Ms Le Roy submits that she is affected by the Council’s conduct because she is unable to make use of Council facilities to hold education and other activities associated with XR and/or Grey Power (the affiliate group of which she is a member) and, as a member of XR, is unable to use the Council’s facilities to hold meetings.
  4. [19]
    The Member pointed out that affidavits by four other people in support of the application for the complaint to be dealt with as a representative complaint were filed Each of the four deponents are said to have asserted that they were members of Extinction Rebellion Brisbane West and they that had been affected by the Council’s conduct by being unable to make use of Council facilities to hold meetings and education sessions.
  5. [20]
    The Member then referred to the Council’s submission that Ms Le Roy “has not identified the group or class of people she represents and that, even assuming she could, for discretionary reasons, including the amorphous and ever-changing nature of the group, that its members are not readily identifiable and where it is unclear that anyone beyond Ms Le Roy wishes to pursue the complaint, it should not be dealt with as a representative complaint.” The Member also noted the Council’s submission that there is a difference between becoming a member and being an affiliate by virtue of being a member of an organisation that declares affinity which unlike membership, is essentially a unilateral act.”  
  6. [21]
    The Member then stated, as a proposition of law, I discern, that the “members of the class do not need to have authorised the complaint or the referral of that complaint to the Tribunal nor does the class need to be static.” The Member then observed that it is important though for Ms Le Roy to “define the class she represents.” The Member asked rhetorically “is it Extinction Rebellion or only the Queensland members of Extinction Rebellion?” The Member went on then to observe that Ms Le Roy states “that the relevant class of people are “members of the Extinction Rebellion organisation”, that there are approximately 4000 XR members in the South East Queensland region and that the members of XR are definable by the database of individuals or groups (like Grey Power) who have signed the “Join the Rebellion” sign up form on the XR official website.” The Member went on:-

Given there are no submissions or evidence addressing how members of the global movement have been affected by the Council’s resolution, I will assume, for the purposes of the application, that the class was intended to be defined as the Queensland members of Extinction Rebellion from 15 October 2019”.

  1. [22]
    Secondly, the Member considered whether the complainant has been affected by the Council’s conduct. The Member answered that straight away by saying that she accepted that Ms Le Roy “has been affected by the [the Council’s] conduct as she is a person who, via her membership of Grey Power, is a member of Extinction Rebellion and unable to attend Council facilities on behalf of Extinction Rebellion or to make a booking to use the facilities on their behalf.”
  2. [23]
    The Member acknowledged the submission for the Council that Ms Le Roy has not been affected because she has personally and as a member of Grey Power used the Council libraries after the resolution, but she responded saying that “does not mean that as a member of Extinction Rebellion she would not be so affected.”
  3. [24]
    Thirdly, the Member observed that she accepted Ms Le Roy’s evidence that Extinction Rebellion has approximately 4,000 Queensland members and that it would be impracticable to join each of them to the proceedings.
  4. [25]
    Fourthly, the Member considered whether there are questions of law or fact common to all members of the class. The Member cited High Court authority, Carnie v Esanda Finance Corporation Ltd (1994-1995) 182 CLR 398, that considered the NSW Supreme Court Rule requirement for parties to have “the same interest” before they can be represented in representative proceedings. The High Court held that rule should “not be restrictively interpreted” but rather is a “flexible rule of convenience in administration of justice.” The Member held that whether the Council’s email of 16 October 2019 and the Council’s resolution which preceded it constituted unlawful discrimination is a question of law and fact common to all Queensland members of Extinction Rebellion.
  5. [26]
    Fifthly, the Member considered whether material allegations in the complaint are the same as or related to, the material allegations in relation to the other members of the class. She found that the material allegations are that a resolution was passed and a subsequent email sent to a member of Extinction Rebellion which unlawfully prevented its members from meeting at Council facilities or making bookings to meet there. The Member found the allegations the same in relation to “other members of the class.”
  6. [27]
    Finally, the Member considered whether the Council has acted on grounds apparently applying to the class as a whole and found that it had acted upon grounds which expressly applied to all members of Extinction Rebellion.
  7. [28]
    The Member then said that on balance, she was satisfied that the matter should be dealt with as a representative complaint. She stated:-

It would be impractical for separate Queensland members of Extinction Rebellion to bring actions for unlawful discrimination in relation to the use of Council facilities or library meeting room bookings. All the members were potentially affected in the same way in that they were unable to use the facilities as Extinction Rebellion members. In my view, dealing with the complaint as a representative complaint is in the interests of justice by promoting the most efficient resolution of a dispute which concerns a class of persons with a common question of law or fact and which affects all the members.

  1. [29]
    The Member then went on to add that even if she had not been satisfied that the criteria in s 195(1) were met, she was satisfied that the complaint was made in good faith as a representative complaint and that justice of the case demands it be dealt with as a representative complaint as allowed for in s 195(2). The Member found that it would not be dealing with the issue at the heart of the complaint to have it dismissed on the basis that Ms Le Roy did not personally make library meeting room bookings or had not personally been refused access to the library.
  2. [30]
    The Member then directed that the matter be dealt with as a representative complaint on behalf of the Queensland members of Extinction Rebellion, being those members resident in Queensland who had subscribed to the XR official website either as an individual or as a member of an affiliate group from 15 October.

THE APPLICATION FOR LEAVE TO APPEAL AND THE APPEAL

  1. [31]
    The Council seeks leave to appeal the Member’s decision. Given this is an appeal from a decision that was not the Tribunal’s final decision in a proceeding, leave to appeal must first be obtained before any appeal proceeds.[1] Leave to appeal is also required where an appeal is in relation to questions of fact and/or mixed fact and law.[2] Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[3]
  2. [32]
    In this instance, the question of leave to appeal and the merits of the appeal itself were argued simultaneously on the papers. At the same time, the Council also seeks leave to rely on evidence filed since the Tribunal Member’s decision and not relied upon by it in the original hearing. I shall return to this matter later.
  3. [33]
    For the Council, it is submitted that there is error in the first instance decision, the correction of which is necessary to avoid injustice. I note again that the decision against which leave to appeal is sought was a discretionary decision. Established principles govern the manner in which an appeal against an exercise of discretion should be determined. It is not sufficient for the appellate Tribunal to consider that, if it had been in the position of the first instance Tribunal, it would have taken a different course. There must have been some identifiable error in the exercise of the discretion. If the first instance decision maker has acted upon a wrong principle, if she has allowed extraneous or irrelevant matters to guide or affect her, if she has mistaken the facts, if she has not taken into account some material consideration, then her determination is reviewable and the appellate Tribunal may exercise its own discretion in substitution for hers if it has the materials for doing so.[4]
  4. [34]
    The questions are then was there such error, and, if there was, has it caused or led to an injustice that requires leave to appeal to be given so that the error can be corrected?

The Council’s Grounds of Appeal

  1. [35]
    In its first ground of appeal, the Council submits that the Member correctly identified that Ms Le Roy had an obligation to define the class that she applied to represent and that Ms Le Roy was seeking to do that by way of “membership” of Extinction Rebellion. However, it is submitted that the Member then erred:-
    1. (a)
      In overlooking, or failing to take into account, the uncontroverted evidence that Extinction Rebellion is a ‘global movement’, a ‘political movement’ with a structure that means ‘there is no one single group or organisational body’ but rather ‘groups… formed as “affinity groups” which identify as being ‘part of and contributing towards the XR movement’ when the effect of such evidence is to embrace unilateral association (and disassociation) and affiliation (and de-affiliation), which concepts are expressly inconsistent (inferentially, deliberately so) with ‘membership’ and so with the sufficient identification of a class of persons as required by s 195(1) of the ADA;
    2. (b)
      In accepting the evidence was that, or allowed an inference that, ‘membership’ of Extinction Rebellion is possible when the evidence was (and is) to the contrary;
    3. (c)
      In finding that the global database concerned ‘membership’ or otherwise demonstrated a membership of Extinction Rebellion, whether global or limited to Queensland, when the uncontroverted evidence was (and is) that such database was of people who had signed up to receive updates and information and had nothing to do with membership;
    4. (d)
      In accepting Ms Le Roy’s submission that she and each of Mr Grace, Ms Holmes, Mr Keller and Ms Melloy were members of Extinction Rebellion when the evidence was to the contrary;
    5. (e)
      In relying on the concept of ‘membership’ of Extinction Rebellion, which the evidence showed was illusory (inferentially, deliberately so) as foundation to hold that Ms Le Roy represented a sufficiently identifiable class; and
    6. (f)
      In holding that the class Ms Le Roy contended she represented was sufficiently identifiable when the evidence was to the contrary.
  2. [36]
    In its second ground of appeal, the Council submits that the Member correctly identified that a pre-condition to satisfaction under s 195(1) of the ADA was that Ms Le Roy has been affected by the Council’s resolution, but that she the Member then erred:-
    1. (a)
      In finding this pre-condition made out on the basis that Ms Le Roy was a member of Extinction Rebellion when the evidence was (and is) to the contrary;
    2. (b)
      In finding this pre-condition made out when, in truth, all she found was that (even on the aforementioned erroneous findings and assumptions) Ms Le Roy might be affected by the resolution; and
    3. (c)
      In finding this pre-condition made out when the evidence was to the contrary.
  3. [37]
    In its third ground of appeal, the Council submits that the Member erred in determining under s 195(1) of the ADA that the matter should be dealt with as a representative complaint when the premises of the matters referred to in the first two grounds of appeal were unreasonable or manifestly wrong.
  4. [38]
    In its final ground of appeal, the Council submits that the Member erred in determining under s 195(2) of the ADA that the Tribunal should deal with Ms Le Roy’s complaint as a representative complaint because:-
    1. (a)
      That determination reflected the anterior finding that a sufficiently identifiable class of person (‘all Queensland members of XR’) existed when, in the premises of the matters referred to in the first two grounds of appeal, the evidence was to the contrary; and
    2. (b)
      In the premises of the matters referred to in the first two grounds of appeal, such decision was unreasonable or manifestly wrong.
  5. [39]
    In her original statement of contentions, Ms Le Roy asserted that the Council had directly discriminated against “persons who identify themselves as part of the Extinction Rebellion movement.” She went on to assert that she identified herself as a member of the ER global movement and that she was a member of a group that had “officially joined the ER global movement as an ‘affinity’ group.” She also refers to “persons affiliated with the ER movement” and she later asserts she was treated by the Council “less favourably than… other persons who were not identifying as being part of the ER.”
  6. [40]
    In its response, the Council denied that Ms Le Roy had identified herself as a member of ER at any material time, but that if she had, “that is an insufficient connection or association to found in her standing to complain about the Council’s resolution.” In an amended Response, the Council said further, that if Ms Le Roy had identified herself as a member of ER at any material time that was not a matter the Council could know and, in that event, it was not a matter which would mean the resolution would affect Ms Le Roy because she has not ever and could not ever, legitimately seek to hire a Council meeting room on behalf of or for Extinction Rebellion.
  7. [41]
    In her amended contentions (filed after the Council’s amended response), Ms Le Roy contended that “a group, known as Grey Power, which [Ms Le Roy] is a member of, officially joined the Extinction Rebellion global movement as an affinity group, thereby affiliating itself and its members with the movement.” She further contended that the Council, by its actions, treated her less favourably than it would have treated other persons “who were not identifying as being part of, or affiliated with, the Extinction Rebellion.” Ms Le Roy went on to contend that her complaint met the criteria for making a representative complaint pursuant to s 195(1) of the ADA as she “is affiliated with a movement which has affiliates who have been affected or are reasonably likely to have been affected by the [Council’s] conduct.” Ms Le Roy also contended that “the many and disparate affiliates of the Extinction Rebellion movement make joinder of all those who are affected impractical” and “the questions of law and fact are common to all of those associated with the movement.”
  8. [42]
    Before the first instance decision, Ms Le Roy filed and relied upon an affidavit she had affirmed. In that, she said she was, prior to October 2019, a member of Grey Power, an environmentalist group with approximately 500 members within the south-east Queensland region. She said that in the beginning of October 2019 she “joined the ER global movement when Grey Power became an affinity group of XR.” She said “I have been and remain a member of XR as at the time of making this affidavit.” She also said “As a member of XR, I am a member of a class of people which have been affected by the [Council’s] conduct.” Ms Le Roy also said the following:-

To qualify as a “member” of the XR Movement, there is a Global Database whereby individuals may sign up via www.ausrebellion.earth to receive updates and information. This database continues to grow in size but is currently estimated to have approximately 4,000 members in Queensland and just over 29,000 Australia wide. This database includes all XR Groups including Grey Power.

  1. [43]
    Ms Le Roy also said “XR has approximately 4,000 members within the South-East Queensland Region.”
  2. [44]
    Ms Le Roy also filed and relied upon four other affidavits of persons who each said they were a “member of Extinction Rebellion Brisbane West” and had been “affiliated with XR” since various dates in 2019.
  3. [45]
    The Council began its submissions for the first instance determination submitting that Ms Le Roy had not identified the group or class of people she proposed to represent. The submission went on to assert that the “apparently intended group is, on [Ms Le Roy’s] evidence, amorphous, ever changing, completely unascertainable and vast in number.”  For the Council, it was submitted that it would be “vexed…  meeting a case advanced by [Ms Le Roy] on behalf of many, many people who cannot be reliably identified, and whose claims would be disparate and, incomprehensible at any reasonable expenditure of time and money.” The submission went on – “[Ms Le Roy] does not say who is in the class or attempt to define it in any way and even if one speculates about what that group might be it produces an answer that renders the case inappropriate to be accepted as a representative complaint.” Significantly, the submission went on even further. It was submitted:-

In her amended contentions [Ms Le Roy’s] case is that she identifies herself as a member and affiliate of Extinction Rebellion. This is a subjective characterisation – it is she who has assessed her relationship with Extinction Rebellion in that way. Also, and self-evidently, the concepts of membership and affiliation are, in this context, mutually exclusive – the former is tangible, closer, more formal, and can be fixed by some record or identifiable commitment. The latter is flexible, non-permanent and invisible.

  1. [46]
    The submission went on, after citing Ms Le Roy’s explanation of how one ‘qualifies’ as a member of XR, to say:-

That does no more than drive home the point, that who [Ms Le Roy] contends the class is that she should be allowed to represent, remains utterly unresolved. The contention is unsupported by any document or other tangible demonstration that the loose equation of membership with the entering of details on a database in order to receive updates and information, is anything more than [Ms Le Roy’s] subjective characterisation of things. Of course, what will constitute ‘membership’ of anything will depend on many things but membership here remains a concept that cannot be tested – certainly the boundaries of a group of people described by reference to membership of Extinction Rebellion would be invisible.

A database to which one may ‘sign up’ in order ‘to receive updates and information’ does not of itself, make one a member of the organisation that operates such a database; it does not even mean one is affiliated with the operator of a database. Many people may for example subscribe to certain podcasts or follow twitter feeds or review websites, operated by many and varied organisations, but that would not, of itself, render them a member of such organisations or even affiliated with them. …

… On [Ms Le Roy’s] evidence Extinction Rebellion has no true members; it is not an organisation with any legal character. It is a political movement to which people ascribe or with which they sympathise or have affinity for; it is comprised of people who from time to time label themselves as Extinction Rebellion or declare their affiliation to it, simply by having a state of mind of affiliation. Apparently, the number of people who are connected with it in this way is 4,000 in Queensland and 29,000 in Australia.

  1. [47]
    After receipt of those submissions, some months went by before the Tribunal Member delivered her decision on the issue, allowing Ms Le Roy’s claim to proceed as a representative claim. Then the Council filed its application for leave to appeal and filed another affidavit that, as I have already observed, it seeks to rely upon now in support of its application.
  2. [48]
    That is an affidavit of Ms Raisa Conchin, a solicitor in the firm of solicitors representing the Council. In it, Ms Conchin set out the results of internet searches she did on a couple of Extinction Rebellion websites that, it is submitted, goes to the question of membership of ER.
  3. [49]
    For the Council, it is submitted that leave to rely on that affidavit in this application should be granted as “it is credible and necessary to clarify a matter of fact about which the learned Member was led into error.” It is submitted that “had the true position been clearer, as Ms Conchin’s evidence makes it, the application below would have been dismissed.”
  4. [50]
    For the Council, however, it is conceded that such evidence did exist and could have been led on the application below. But that said, it is submitted that the failure to lead the evidence is made “explicable and excusable” because of the way the cases of the parties were put below and the fact that the parties’ submissions were exchanged on the same day and because the application was heard without an oral hearing.
  5. [51]
    The granting of leave to allow fresh evidence to be relied upon at this stage is a discretionary determination which involves consideration of a number of factors. It will usually only be allowed if it could not have been obtained with reasonable diligence at the time of the first instance hearing, is apparently credible and, if it had been given at the time, it would have had an important, though not necessarily decisive, influence on the result.[5]
  6. [52]
    Considering those matters and the Council’s submissions, I am not moved to give leave for Ms Conchin’s affidavit to be relied upon. There is no dispute that the evidence it contains did exist and could have been led on the first instance application. There is absolutely no doubt that the Council was, at the time, acutely attuned to the questions surrounding ‘membership’ of Extinction Rebellion. It had the evidence of Ms Le Roy and the other persons whose evidence she relied upon. It made considered and detailed submissions to the Member directly on the ‘membership’ point and how that was relevant to the discretionary exercise. I do not accept the submission that failure to lead the evidence then was explicable and excusable. It could have been done and reasons for doing so were open for consideration by the Council and its representatives.
  7. [53]
    Accordingly, I will not have regard to that evidence on the Council’s application for leave to appeal.

The Council’s First Ground of Appeal

  1. [54]
    For the Council, it was submitted that the Member determined the application below in the way that she did because she was persuaded that Ms Le Roy was a member of a relevant class of people capable of adequate identification. I accept that submission. It was also submitted that the class Ms Le Roy was seeking to represent was the “membership of Extinction Rebellion.” I accept that is also correct. Indeed, it is clear that the Member ultimately determined that the relevant class of people was properly identified as “the Queensland members of Extinction Rebellion, being those members resident in Queensland who had subscribed to the XR official website either as an individual or as a member of an affiliate group from 15 October 2019.”
  2. [55]
    For the Council, it was then essentially submitted that the Member erred because she accepted the evidence that Ms Le Roy was a member of XR and that others who had made affidavits were members of XR, when XR is a political movement with an amorphous structure that no-one can actually be a formal member of, making the class Ms Le Roy was seeking to represent impossible to adequately identify.
  3. [56]
    In determining whether the Member did so err, I am satisfied that the Council’s position was that one could not be a member of XR in the classic sense of joining an association, a club, a political party, or similar organisation by paying a membership fee, subscribing to the rules or constitution and being accepted as a constituent member. I am also satisfied that the Member was conscious of that and considered that against the position contended for by Ms Le Roy. The Member, in [22] of her reasons, acknowledged correctly that it was important for Ms Le Roy to define the class she seeks to represent. The Member quoted Ms Le Roy’s contention being that “the members of XR are definable by the database of individuals or groups (like Grey Power) who have signed the “Join the Rebellion” sign up form on the XR official website” and that there were approximately 4,000 XR members in south-east Queensland. Having acknowledged the Council’s argument about this and correctly pointing out that the class of persons sought to be represented does not have to be  static, I am not persuaded that the Member took into account a wrong principle, allowed irrelevant material to guide her, mistook the facts or did not take into account some material consideration. I am satisfied that the Member did not conflate Ms Le Roy’s position of asserted ‘membership’ with one of formal ‘membership’ of the kind that I have mentioned above, the kind that the Council has apparently argued is the necessary kind to have to meet the need for sufficient particularity of identification, an argument I respectfully do not accept.
  4. [57]
    Useful guidance as to the question of adequate particularity of identification of the class sought to be represented is found in the judgment of Sackville J in the Federal Court’s decision in Petrusevski v Bulldogs Rugby League Ltd [2003] FCA 61 in paragraphs [10]–[24]. That decision considered the issue against the provisions of the Federal Court Act 1976 (Cth) that dealt with representative matters which provisions are relevantly similar to the provisions of the ADA applicable in this matter. Adequate particularity of identification of the class was said to be required otherwise it may be difficult to ascertain whether the claims of all the group members give rise to a substantial common issue of law or fact. Another reason for adequate particularity is to enable group members to decide whether or not to opt out of the representative proceeding. Sackville J said at [21] of Petrusevski that it “must be possible for persons who may be within the represented group to ascertain from the pleadings whether they are in fact group members.” In making this point, his Honour cited Hedigan J of the Victorian Supreme Court in Cook v Pasminco Ltd [2000] VSC 534, who said at [59], in relation to similar Victorian legislation:-

It is beyond doubt that in a group proceeding the description of a group membership must be such so that it is at least possible to determine who falls within the group as described. Persons contemplated as being within the group would themselves not understand whether they were within it, unless the definition of the group is intelligible, although not necessarily exact. Members of the group are entitled to know what constitutes the essentials of the group. A decision concerning opt-out cannot be sensibly made unless it is known what it is that is being opted out from.

  1. [58]
    In Petrusevski, Sackville J went on to say:-

It follows from his Honour's observations that a person must be able to ascertain from the description of the represented group whether he or she is a member of that group.

…

Clearly enough, not every description or identification of the represented group will satisfy the requirements of s 33H(1)(a) of the Federal Court Act. A useful, although not necessarily exhaustive test, is whether the description is such as to enable a person, with the assistance of a legal adviser if necessary, to ascertain whether he or she is a group member. If the description incorporates a reference to conduct alleged in the pleadings, a person or his or her adviser ought to be able, by reading the description and the relevant portion of the pleadings, to determine whether he or she is a member of the represented group. If a person cannot reasonably be expected to do this, the definition is unlikely to satisfy the requirements of s 33H(1)(a).

  1. [59]
    Adopting that approach, I do not accept Council’s apparent submission that some form of formal membership of XR is necessary to adequately define the class Ms Le Roy seeks to represent, nor do I accept that the Member considered that is what she was dealing with when deciding Ms Le Roy’s application, such that she could be said to have erred by defining the limits of the identified class as she did in [31] of her reasons. By that description, anyone can ascertain whether they are or are not a member of the group that Ms Le Roy was determined to represent. Are they resident in Queensland? Have they subscribed to the XR official website, either as an individual or as a member of an affiliate group, from 15 October 2019? If the answer to each of those questions is “yes”, then they are a member of the group. If they do not consider themselves to be a part of XR, because, for example, they may have just subscribed to the website to get some information about XR, then they will be in a position to opt out of the proceedings if they want.
  2. [60]
    The first ground of appeal is unsuccessful.

The Council’s Second Ground of Appeal

  1. [61]
    The Council’s second ground of appeal relies on the same argument that underpinned its first ground of appeal, namely that Ms Le Roy was not ‘formally’ a ‘member’ of XR in the classic sense I have already discussed.  Council’s submission was that as Ms Le Roy was not such a ‘member’ she could not have been affected by the Council’s resolution and determination not to let the XR group use any of its libraries or other public spaces, one of the several things to consider in the exercise of the discretion conferred by s 195(1) of the ADA. 
  2. [62]
    The Member found, in [23] of her reasons, that Ms Le Roy has been affected by the conduct of the Council “as she is a person, via her membership of Grey Power, is a member of Extinction Rebellion and unable to attend Council facilities on behalf of Extinction Rebellion or to make a booking to use the facilities on their behalf.” The Member considered Council’s further submission that Ms Le Roy had not been affected as she “has personally and as a member of Grey Power used the Council libraries after the resolution.” The Member plainly rejected that submission by observing that “does not mean that as a member of Extinction Rebellion she would not be so affected.”
  3. [63]
    In dismissing this second ground of appeal, I simply observe that the extension of the Member’s point there is that if Ms Le Roy went along to a Council library and said that she wished to make a booking on behalf of Extinction Rebellion or a group of ‘members’ or ‘affiliates’ of Extinction Rebellion, consistent with the Council’s resolution and the email sent to Mr Keller, Council staff would probably refuse Ms Le Roy the booking. That conclusion is sufficient, as the Member found, to accept that Ms Le Roy has been affected by the Council’s conduct.

The Council’s Third Ground of Appeal

  1. [64]
    The Council’s third ground of appeal essentially relies on success in the first two grounds to found a third overarching argument that the Member’s determination pursuant to the considerations set out in s 195(1) of the ADA was “unreasonable or manifestly wrong.” Consistent with my rejection of the Council’s arguments in respect of those first two grounds of appeal, it follows that I will also reject the broader submission that the Member’s discretionary determination was “unreasonable or manifestly wrong.” I do not consider that it can be so described and this ground, too, must, therefore, fail.

The Council’s Fourth Ground of Appeal

  1. [65]
    Having rejected Council’s grounds of appeal in respect to the Member’s discretionary determination pursuant to s 195(1) of the ADA, it is really not necessary to determine the fourth ground as it relates to the exercise of discretion under the alternative source of that discretionary power, namely s 195(2). If, as I am satisfied, the appeal against the discretionary determination made pursuant to s 195(1) of the ADA, would fail, then leave to appeal must be refused, whatever I would determine in respect of this ground. Nevertheless, for completion, I will consider the submissions advanced under this fourth ground.
  2. [66]
    In her reasons, at [30], the Member said that even if she had not been satisfied that the criteria considered pursuant to s 195(1) established good grounds to find in favour of Ms Le Roy’s application for the matter to proceed as a representative action, she was satisfied, alternatively, that the complaint was made in good faith as a representative complaint and that the justice of the case demands it be dealt with as a representative complaint. Those are the two matters the Tribunal must be satisfied of pursuant to s 195(2) of the ADA to alternatively determine that a matter shall proceed as a representative complaint.
  3. [67]
    For the Council, again the same argument as was raised by the first two grounds of appeal was relied upon to found this fourth ground of appeal, namely that the Member’s satisfaction reflected “the anterior finding that a sufficiently identifiable class of person (‘all Queensland members of XR’) existed” when it did not. I have already rejected the argument in respect of the first two grounds of appeal, so this fourth ground, reliant on the same argument, must also fail. But, before I move on, I also observe again that the class is not just identified as “all Queensland members of XR” but importantly further includes those “who had subscribed to the XR official website either as an individual or as a member of an affiliate group from 15 October, 2019.”
  4. [68]
    Having determined that all four grounds of appeal mooted by Council against the determination of the Member would be unsuccessful, it follows that I am not satisfied that are good grounds for granting leave to appeal. I do not grant it.
  5. [69]
    The matter returns to the Tribunal for the directions hearing that will now be necessary to progress the complaint in its representative form.
  6. [70]
    I make the orders set out at the commencement of these written reasons.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(ii).

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b).

[3] Pickering v McArthur [2005] QCA 294.

[4] House v The King (1936) 55 CLR 499.

[5]Clarke v Japan Machines (Australia) Pty. Ltd. [1984] 1 Qd R 404.

Close

Editorial Notes

  • Published Case Name:

    Brisbane City Council v Le Roy

  • Shortened Case Name:

    Brisbane City Council v Le Roy

  • MNC:

    [2023] QCATA 90

  • Court:

    QCATA

  • Judge(s):

    Judicial Member Forrest SC

  • Date:

    20 Jul 2023

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
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
2 citations
Jump To
Cite 1 - [1984] 1 Qd R 404
Cite 2 - [1984] 1 Qd R 404
Cook v Pasminco Ltd [2000] VSC 534
1 citation
Jump To
Cite 1 - [2000] VSC 534
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Petrusevski v Bulldogs Rugby League Ltd [2003] FCA 61
2 citations
Jump To
Cite 1 - [2003] FCA 61
Cite 2 - [2003] FCA 61
Pickering v McArthur [2005] QCA 294
2 citations
Jump To
Cite 1 - [2005] QCA 294
Cite 2 - [2005] QCA 294

Cases Citing

Case NameFull CitationFrequency
Le Roy v Brisbane City Council [2025] QCAT 3142 citations
1

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