Coleman v Ngoonbi Co-operative Society Ltd

[2013] QCAT 207

CITATION: Coleman v Ngoonbi Co-operative Society Ltd and Ors [2013] QCAT 207

PARTIES:	Ann-Maree Coleman (Applicant)
v
Ngoonbi Co-operative Society Ltd (First Respondent) Glenis Grogan (Second Respondent) Andrew Duffin (Third Respondent) Rhonda Duffin (Fourth Respondent) Mona Mona Bulmba Aboriginal Corporation (Fifth Respondent)

APPLICATION NUMBER:   ADL085 - 12

MATTER TYPE: Anti-Discrimination Matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane 

DECISION OF: Susan Gardiner, Member

DELIVERED ON: 10 May 2013

DELIVERED AT:      Brisbane

ORDERS MADE: 1.    The applications to amend the complaint contained in letters dated 13 December 2012 and 15 April 2013 are dismissed.

CATCHWORDS : 

ANTI-DISCRIMINATION – amendment sought of complaint to include substantial number of extra grounds of discrimination– where matters had failed threshold test and found not to be within jurisdiction of Commission – where matters not accepted by Anti-Discrimination Commission and not referred to tribunal

Anti-Discrimination Act 1991 s78

Hopper v Mt Isa Mines [1998] QSC 287; (1999) 2 Qd R 496 followed

Daw v QR Limited and Anor [2011] QCAT 319 followed

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. In August 2012 the Anti-Discrimination Commission of Queensland referred Ms Coleman’s complaint to QCAT.  The complaint centred on alleged discrimination under the Anti-Discrimination Act 1991 on the ground of race in the area of accommodation.

2. Ms Coleman now wants to expand her contentions referred under the complaint to add many other grounds of alleged discrimination, in particular,[1] allegations of discrimination on the grounds of race (further allegations), sex, religious activity and beliefs, parental status, family responsibilities and association with or relation to a person identified on the basis of any of these attributes.

   [1]        As she requests in her letters to QCAT dated 13 December 2012 and 15 April 2013

1. All of the respondents in this matter oppose Ms Coleman’s applications.

2. Ms Coleman is of the view that once the door is open, she can raise any issue she considers is, or has in the past, been discriminatory of either herself or any member of her family. 

3. That is not how the Anti-Discrimination Act is structured. Section 178 of the Anti-Discrimination Act does give QCAT the right to allow Ms Coleman to amend her complaint.  However, there are restrictions and these are set out in the case law surrounding this section.  

4. The first restriction is that any complaint that comes to QCAT first must be lodged with the Anti-Discrimination Commission of Queensland and it is the Commission that refers the matter to QCAT.  Ms Coleman has no right to start a fresh complaint directly with QCAT[2].

   Mount Isa Mines Limited & Ors v Hopper [1998] QSC 287: (1999) 2 Qd R 496; Daw v QR Limited and Anor [2011] QCAT 319.

5. For many of the alleged grounds Ms Coleman now wants to add to her contentions, this is exactly what she is trying to do.   

6. The learned senior member in Daw v QR Limited and Anor[3] specifically discussed this issue, relying in her decision on the Supreme Court decision in Mount Isa Mines Limited & Ors v Hopper[4] and I respectfully adopt the comments of the learned Senior Member in the Daw matter.  She says[5]

   In Hopper v Mt Isa Mines  Moynihan J considered an appeal in which an issue arose where the former tribunal had made findings of a contravention of the Act which had not been the subject of a complaint.  His Honour concluded: “the Tribunal’s jurisdiction is in my view founded on a complaint complying with s.136 (b).  Findings of contraventions not satisfying that requirement therefore cannot stand because there is no jurisdiction to make them.   

   As stated applying the principles outlined in that authority, the tribunal is satisfied that it must conclude that the allegations of victimisation were never a part of the complaint complying with section 136 and consequently those allegations were neither.

   [3] [2011] QCAT 319.

   [4] 1998] QSC 287: (1999) 2 Qd R 496.

   [5] Ibid beginning at para 7.

7. Applying these principles, most of the new contentions Ms Coleman wishes to add to her complaint cannot be not allowed as they have not been considered by the Commission and did not form part of the complaint referred to QCAT by the Commission.

8. On this basis, leave to amend Ms Coleman’s complaint to add all of the fresh complaints raised by Ms Coleman in her recent letters (those relating to race (further allegations that do not go to accommodation), sex, religious activity and beliefs, parental status, family responsibilities and association with or relation to a person identified on the basis of any of these attributes is refused.

9. Any evidence that supports Ms Coleman’s complaint as it expressed currently is, of course, relevant to the hearing of this matter but the identification of such evidence is a matter for the member who conducts this hearing.

10. All parties should confine themselves to only addressing the issues in the original complaint from this point.