AAA v State of Queensland - [2023] QCAT 108

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

AAA V STATE OF QUEENSLAND & ANOR [2023] QCAT 108

PARTIES: AAA

(applicant)

V

GEOFFREY SMART
(FIRST RESPONDENT)

AND

STATE OF QUEENSLAND

(second respondent)

APPLICATION NO/S:

ADL039-21

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

27 March 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

The application for referral of a matter (non-disciplinary) filed on 15 September 2021 is dismissed.

CATCHWORDS:

DISCRIMINATION – DIRECT DISCRIMINATION – INDIRECT DISCRIMINATION – ATTRIBUTE OF IMPAIRMENT– where allegation that a restriction of email communication constituted unlawful discrimination against and breach of human rights of hearing-impaired applicant – where applicant persistently non-compliant with tribunal directions to file evidence – where referral dismissed pursuant to section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 29, s 32, s 45, s 48, s 62

Uniform Civil Procedure Rules 1999 (Qld) r 389

Abdullahi v Taxi Council of Queensland Incorporated & Anor [2011] QCAT 374
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226

Luscombe v Russell [2013] QCAT 53

Miles v Senior [2014] QCAT 468

Peter Douglas Fleming v Gladstone Regional Council [2021] QCAT 432

Robertson v Airstrike Industrial Pty Ltd [2011] QCAT 625
Schoch v Queensland Building and Construction Commission [2019] QCAT 172

Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is the application about?

Between August 2020 and December 2020, it is said that the applicant, AAA sent approximately 115 emails to Policelink[1] in respect of which they received approximately 51 replies.[2]
[1]The Queensland Police Service reporting service for non-emergency matters, represented by the second respondent through the Queensland Police Service.
[2]Respondents’ Response to the Statement of Contentions filed 14 April 2022, Annexure A.
By an email sent 17 December 2020, Policelink informed the applicant that it refused further contact by email and required in person or telephone contact to progress the applicant’s concerns. The email, authored by the first respondent, said:
Over the past months I have considered the successive emails originating from [redacted]@mail.com to Policelink which now exceed one hundred transmission and it appears from my assessment these emails are generally unwarranted in tone or without substance worthy of any continuance. I’ve further considered the context of these emails and formed a personal view after consult with others, that irrespective of any reply’s (sic) give, the continuous transmission of emails may likely to continue.
To that end, I’ve instructed all future emails, or alternative email addresses, as originating from you be read and automatically finalised without reply. Moving forward, and to assist you, all your concerns may be adequately addressed by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QCAT 108
Decision Date

CaseChat Overview and Summary

AAA, a Queensland resident with hearing impairments, filed a complaint with the Queensland Civil and Administrative Tribunal (QCAT) alleging that the decision by the Queensland Police Service's Policelink to refuse further contact by email constituted unlawful discrimination against them and a breach of their human rights. The application was filed on 15 September 2021, and the QCAT was asked to refer the matter for conciliation or mediation. The first respondent, Geoffrey Smart, and the second respondent, the State of Queensland, opposed the application for referral. The central legal issue was whether AAA's failure to comply with the tribunal's directions to file evidence and other procedural requirements, despite the tribunal's efforts to assist them, constituted unnecessary disadvantage to the respondents and the tribunal, warranting the dismissal of the application under section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

The tribunal considered the legislative framework under which it operates, emphasizing the importance of parties actively engaging in proceedings, acting quickly, and complying with tribunal directions. It noted that AAA, despite their challenges, had been prolific in generating correspondence and filing applications, demonstrating their understanding of tribunal processes and their capacity to prepare and file documents and submissions. The tribunal also highlighted that section 48 of the QCAT Act permits dismissal of a proceeding if a party causes unnecessary disadvantage to another party by not complying with a tribunal order or direction without reasonable excuse. In exercising its discretion, the tribunal must consider the extent to which the party causing the disadvantage is familiar with the tribunal's practices and procedures, their capacity to understand and act on the tribunal's orders and directions, and whether the party is acting deliberately.

In this case, the tribunal found that AAA had failed to comply with the directions to file evidence and other procedural requirements, despite the tribunal's efforts to assist them. AAA had no reasonable excuse for their non-compliance, and their conduct evinced a deliberate choice to be resistant and delinquent with respect to the substantive progress of their complaint. The tribunal concluded that AAA's actions had unnecessarily disadvantaged the respondents and the tribunal by delaying the proceeding. As there was no prospect of the complaint progressing to a contested outcome without evidence, the tribunal found that dismissing the application for referral was warranted under section 48 of the QCAT Act.

The tribunal dismissed the application for referral of a matter (non-disciplinary) filed on 15 September 2021, pursuant to section 48 of the QCAT Act. The dismissal was based on AAA's deliberate non-compliance with the tribunal's directions, which had unnecessarily disadvantaged the respondents and the tribunal by delaying the proceeding. The tribunal emphasized the importance of parties actively engaging in proceedings, acting quickly, and complying with tribunal directions, and found that AAA's actions in this case did not meet those expectations.

Orders