Boles & Walsh v Vonk - [2022] QCAT 144

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Boles & Walsh v Vonk & ors [2022] QCAT 144

PARTIES:

LEACHIA BOLES
DAVID WALSH

(applicants)

v

JASMIN VONK
GAURAV SINGH
CORDIUM ADMIN PTY LTD
CORDIUM MEDICAL STAFF PTY LTD

(respondents)

APPLICATION NO/S:

ADL052-21

MATTER TYPE:

Anti-Discrimination matters

DELIVERED ON:

1 March 2022

REASONS DELIVERED:

26 April 2022

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

The application for an interim order filed by the applicants on 26 November 2021 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application for an interim order before referral of discrimination complaint – whether interim order should be made

Anti Discrimination Act 1991 (Qld) s 6, s 144, s 209

Beck v Headland Golf Club [2021] QCAT 354

Coop v State of Queensland [2014] QCATA 205

Jones v Queensland Health [2010] QCAT 700

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

On 25 October 2021 Ms Boles and Mr Walsh were informed that the medical practice they attended had decided to discontinue their treating relationship with them. The reason for this was said by the respondents to be because the applicants repeatedly refused to comply with a policy of the medical practice which required that for patients to attend face to face appointments the patient must have no flu like symptoms and wear a face mask at all times. If the patient was unable to meet those requirements, the patient was expected to wait outside until called by their doctor.
The applicants refused to wear masks and claim they each have a medical exemption from the requirement to wear a mask. They say that the receptionist at the practice asked them to wait outside and, ultimately, that her “ongoing discrimination” against them culminated in Dr Singh stating that Mr Walsh and Ms Boles had “threatened and abused” clinic staff and were barred from attending the clinic. They also refer to the following comment allegedly made by the receptionist to them in the reception area: “I don’t want your kind in my clinic”. They submit that this comment constituted ‘racial discrimination’ and/or racial vilification.
On 26 November 2021 the applicants filed an application for interim order seeking the following:
1.The respondents are restrained from further applying the provisions of Dr Singh’s letters (sic) dated 25 October 2021 until the substantive complaints (BNE5415216 & 17) lodged with the Human Rights Commission are determined by either of the Human Rights Commission or QCAT.
2.That neither applicant is subject to ‘policies’ of the Ashgrove Clinic where those policies are inconsistent with the Covid-19 Regulations as promulgated by the Queensland Health Department.
3.That the applicants are permitted to attend, jointly or severally, Ashgrove Clinic for consultations with their attending doctors.
4.That the applicants are to continue to conduct themselves when at the Ashgrove Clinic and or interacting with staff from the Ashgrove Clinic in a…

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: [2022] QCAT 144
Decision Date

CaseChat Overview and Summary

In the matter of Boles and Walsh v Vonk, the applicants sought interim orders to prevent the respondents from applying certain policies of the medical practice and to allow them to continue attending the practice. The applicants alleged discrimination based on race and medical impairment, and claimed that the policy requiring face masks and waiting outside if they were unable to comply was discriminatory. The respondents argued that the policy was a reasonable response to the COVID-19 pandemic and that the applicants were treated no differently than any other non-compliant patient. The Tribunal had to decide whether an interim order should be granted under section 144 of the Anti-Discrimination Act 1991 (Qld) to protect the applicants' interests before the complaint was referred to the Tribunal.

The Tribunal considered the applicants' arguments that the mask policy was discriminatory and that the receptionist's conduct amounted to racial discrimination and vilification. However, the Tribunal was not satisfied that the applicants had established a prima facie case of discrimination. The Tribunal found that the mask policy was likely reasonable in the context of the global pandemic and the nature of services provided. The Tribunal also considered the balance of convenience and found that the applicants could attend another medical practice and have their records transferred, and that their treating doctors at the Clinic were no longer there. The Tribunal concluded that the applicants had not demonstrated that the granting of the interim orders would cause prejudice to the investigation or conciliation of the complaint or the orders that the Tribunal might make after a hearing.

The application for an interim order under section 144 of the Anti-Discrimination Act 1991 (Qld) was dismissed. The Tribunal found that the applicants had not established a prima facie case of discrimination and that the balance of convenience favoured the respondents. The Tribunal noted that if the applicants were ultimately found to have been unlawfully discriminated against, orders could be made compensating them for any unjustified exclusion from the Clinic. The final orders of the Tribunal were that the application for an interim order filed by the applicants on 26 November 2021 is dismissed.

Orders