Craig v Ravenshoe Community Centre Inc & Ors
[2013] QCATA 177
•14 June 2013
| CITATION: | Craig v Ravenshoe Community Centre Inc & Ors [2013] QCATA 177 |
| PARTIES: | Gordon Craig (Appellant) |
| V | |
| Ravenshoe Community Centre Inc State of Queensland Barbara Treers Trevor Granger |
| APPLICATION NUMBER: | APL294-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Ms Clare Endicott, Senior Member |
| DELIVERED ON: | 14 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appeal, insofar as it involves questions of law, is dismissed. 2. The application for leave to appeal on grounds of fact or mixed fact and law is refused. |
| CATCHWORDS: | APPEAL – ANTI-DISCRIMINATION – DIRECT OR INDIRECT DISCRIMINATION – AGE – where applicant received government funded transportation services – where those receiving the service were required to undergo an assessment regarding suitability for ongoing services – where applicant alleged third respondent said the applicant would no longer be provided the service because it was designed for older people – where applicant alleged fourth respondent threatened to find someone who would assess the applicant’s needs as no longer requiring the service – where applicant brought proceedings in the Tribunal claiming unlawful discrimination - where Tribunal dismissed the claim – where the Member did not accept what the applicant claimed was said by the third and fourth respondents – where applicant seeks to appeal that decision – whether appeal raises questions of law, questions of fact or mixed questions of fact and law – whether leave required Anti-Discrimination Act 1991 (Qld), s 10, s 11 |
APPEARANCES and REPRESENTATION (if any):
| APPELLANT: | Gordon Craig, self represented |
| RESPONDENTS: | Ravenshoe Community Centre Inc and Barbara Treers represented by HBM Lawyers State of Queensland and Trevor Granger represented by the Crown Solicitor |
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
Mr Craig has, for some years, been receiving government funded transportation services to and from his home in Ravenshoe. The services were provided by taxi, and coordinated by the Ravenshoe Community Centre Inc. Ms[1] Treers was, in practical terms, the actual coordinator of the services for the RCC.
[1]The Reasons below refer to this respondent at various points as both ‘Ms Treers’ and ‘Mrs Treers’; no disrespect is intended by the form adopted here.
The service was funded through an organisation called Home and Community Care, itself financed by the State. Mr Granger was the area manager for HACC.
HACC funded services were, according to Ms Treers and Mr Granger, subject to an annual review and in Mr Craig’s case that was to occur in June 2010. A meeting to discuss Mr Craig’s needs was held at Mossman on 9 April 2010. All three attended, and Mr Craig was accompanied by a Mrs Brischetto.
Mr Craig claimed that, at that meeting, Ms Treers told him that the taxi service was for old people only and that, because he was not old, he would no longer be provided with the service. He also claimed that Mr Granger threatened to find an HACC officer who would reassess his needs and find that he was no longer eligible to receive the service.
He brought proceedings in the Tribunal claiming that he was the victim of unlawful discrimination, involving a breach of the Anti-Discrimination Act 1991 (Qld). He alleged, in particular, that he was discriminated against by reason of his age.
His claim was dismissed by a QCAT Member after a hearing in June 2012.[2] In her Reasons published on 23 July 2012 the learned Member found that neither Ms Treers nor Mr Granger spoke the words attributed to them by Mr Craig at the meeting, and that there had been no other form of indirect (or direct) discrimination against him, and his complaint should be dismissed. (As she also noted, there had been no interruption to the transport services provided to Mr Craig, and they were continuing.)
[2] Craig v Ravenshoe Community Centre Inc and Ors [2012] QCAT 315.
Mr Craig has applied to the QCAT Appeal Tribunal. In his application he seeks leave to appeal. He may appeal as of right on questions of law, but needs leave on questions of fact, or mixed fact and law.[3] He is self-represented and has not sought to address the niceties about what are, or are not, questions falling into one or the other category.
[3] QCAT Act s 142(3)(b).
Those niceties have never been successfully, and finally, defined. As the High Court observed in 1995: ‘… no satisfactory test of universal application has yet been formulated.’[4] Briefly stated, the distinction is between ‘pure’ questions of law (e.g., what is the correct test to be applied in deciding a matter?); questions of ‘pure’ fact (what actually took place between the parties?); and mixed questions – e.g., do facts, as found, satisfy legal tests?[5]
[4] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394.
[5]Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at [35] per Iacobucci J.
As will be seen, some of Mr Craig’s grounds in support of his application may fall into different categories. Because those grounds are diffuse and over-lapping we have dealt with them discretely but the result is the same: he has not, for the reasons which follow, established legal grounds which would result in a successful appeal; nor, grounds of fact (or mixed grounds of law and fact) which would warrant a grant of leave to appeal (and a successful appeal).
In his first ground Mr Craig contends that the learned Member demonstrated bias against him during the hearing. He says that she treated the respondents with partiality, but dealt with him in a manner detrimental to his case. In particular, he submits that the Member allowed Counsel for the respondents to pursue a line of questioning of him which was intended to cast doubt upon his powers of recall, and to reflect adversely on his credibility as a witness. He says that this particular line of questioning was prolonged, and amounted to a fishing expedition, and to badgering and harassment of him which was deliberately designed to elicit an explosive, negative reaction from him.
Mr Craig submits that, in contrast, the Member quickly intervened to stop his questioning of one of the respondents when he attempted to test the recall abilities of that person. Mr Craig identifies the question that he was stopped from putting to that witness as: ’Are you now or have you ever been under the care of a psychiatrist?’
The recording of the hearing, available to the Appeal Tribunal, confirms that Mr Craig was questioned about his recall of the meeting of 9 April 2010 – the critical meeting, from which his complaint arises. It also reveals that he became angry, from time to time, during this questioning. Some of the questions concerned the quality of his memory and, inferentially, the effects of his acquired brain injury which underlies the disability that entitles him to benefits like the transport service.
In short, his complaint is that the learned Member allowed questions to be asked of him about his powers of recollection and the reliability of his memory which, by inference, involved some delving into the nature and extent of his disability; but, denied him the opportunity to make similar enquiries of his opposing witnesses. The submission is not, however, supported by the recording of the evidence: it shows that the hearing proceeded in a manner which afforded him a full measure of procedural fairness and contained no element of bias, or partiality.
The learned Member began her deliberations, as her Reasons show, by identifying (in neutral terms) the elements of the critical factual dispute revealed by the evidence she had heard:
a) The purpose for which the meeting on 9 April 2010 was arranged and specifically, whether the purpose of the meeting was to review Mr Craig’s ongoing services;
b) Whether at the meeting Mr Craig was told by Ms Treers, Mr Granger, or both, that his taxi service would be stopped due to funding or whether such was implied;
c) Whether Ms Treers said words to the effect that ‘HACC services are for old people’; and,
d) Whether Mr Granger supported and/or encouraged Ms Treer in making that or a similar comment.
What was said at that meeting was, on any view, central to the complaint of discrimination. The parties were in vivid dispute about that matter. The Member had to make findings of fact about that issue involving, as the case unfolded, questions of credit in order to determine whether Mr Craig’s complaint was made out.
Mr Craig gave evidence that Ms Treers said, at the meeting, that the paid transportation services which had been provided to him under HACC would come to an end because HACC is a funding body for old people; and, that Ms Treers had also said that several old and frail people needed the service, suggesting that Mr Craig was not entitled because he was not old, or frail.
Mr Craig also gave evidence that Mr Granger had said that he would find an officer who would assess Mr Craig as no longer eligible to receive HACC services.
Mr Craig denied, in his evidence, that he had displayed any anger during the meeting but conceded that he had spoken animatedly and over the top of the other people who were talking during the meeting, but at a volume no louder than he had used during the hearing itself.
Ms Treers denied having said that HACC services were for old people, and denied that any decision had been made prior to the meeting of 9 April 2010 to discontinue the paid transportation services to Mr Craig. She also said that Mr Craig was quite rude to Mr Granger, was ‘really stressed’ at the meeting, and that his behaviour there was similar to his conduct at the hearing.
Mr Granger’s evidence was that the RCC was funded to provide HACC services for specific services, not including transportation services; that Ms Treers had explained that the meeting was not an official assessment, but was to inform Mr Craig about the procedure for a new assessment as the funding would not automatically roll over; and, that Mr Granger had explained that the assessment process was required of all HACC clients.
According to Mr Granger, Mr Craig had become verbally aggressive and agitated at the meeting and had spoken over the top of Ms Treers.
Mr Craig sought to rely, at the hearing, on a statement of evidence from his support person, Mrs Brischetto, who had been at the meeting. Mr Craig gave evidence that he had discussed the meeting ‘endlessly’ with her; that he had helped her to re-phrase her statement to put the right ‘emphasis’ in it; and that he had also helped her to prepare the final version of it, which she had signed some 9 months after the meeting. Mr Craig also gave evidence, however, that he had recently fallen out with Mrs Brischetto, and that she had refused to come to the hearing to give evidence.
The learned Member concluded that she should not place any weight upon Mrs Brischetto’s statement. In light of Mr Craig’s own evidence about it and the witness’ unavailability that conclusion is unsurprising and, with respect, unexceptionable.
The learned Member’s reasons for preferring the respondents’ version of the meeting were, firstly, that to her perception Ms Treers had given her evidence in an open and forthright manner, and had been corroborated by Mr Granger.
On the other hand she concluded that Mr Craig had, more probably than not, misinterpreted what he thought he had heard at the meeting because he was angry. Her second, important finding was that he had become angry at the meeting and had been defensive, and argumentative, and had jumped to conclusions about statements made by Ms Treers and Mr Granger and misheard what was, in truth, being said by them.
Her reasoning about these findings relied to a degree[6] upon Mr Craig’s conduct at the hearing itself when, as she observed, he became angry, talked over the top of other parties, and misinterpreted questions and comments. She found[7] on the balance of probabilities that, at the critical meeting, Mr Craig behaved in a similar way and misheard or misconstrued what was said by Ms Treers or Mr Granger.
[6] Craig v Ravenshoe Community Centre Inc and Ors [2012] QCAT 315 at [33]-[35].
[7] Ibid [42].
Those findings have not been directly attacked in Mr Craig’s appeal. They are, with respect, fully exposed and explained in the Reasons and are unexceptionable.
Doing the best we can with Mr Craig’s submissions it seems that he contends, rather, that the Member’s findings on this central issue of fact and credit – whether the alleged discriminatory words were actually spoken – are based upon actual or apprehended bias against him on the part of the Member. The issue involves, then, an assertion encompassing mixed questions of fact, and law: in reaching that finding, was the Member motivated by bias?
The recording of the proceedings reveals no arguable basis for that serious allegation. The learned Member did allow extensive cross-examination of Mr Craig by the respondents on the central factual issue in dispute, but not to an unfair or improper extent. Nothing about that cross-examination suggests a fishing expedition. Not every question was directly on point, but all were arguably relevant to the issues in the case.
It is also noteworthy that the learned Member allowed considerable licence to Mr Craig in his questioning of the respondents. She let him ask questions about a wide range of issues that bore only limited relevance to the meeting of 9 April 2010. On some occasions Mr Craig used cross-examination as an opportunity to air his grievances, rather than to focus on the issues central to his complaint. The Member was tolerant of these diversions.
Nor does the recording provide any support for Mr Craig’s assertion that the learned Member allowed him to be wrongly subjected to cross-examination that amounted to badgering, or harassment. He was questioned in ways that can fairly be described as searching, even robust, but never to a degree that would warrant interruption, restraint or sanction by the presiding Member. It is true that Mr Craig appeared to become angry and at times confused and some questions were repeated (prolonging the hearing) but, again, nothing that occurred gives rise to concern that he was being unfairly treated.
Mr Craig also contends that the Member demonstrated bias by preventing him from cross examining Mr Granger on his state of mental health which, Mr Craig submits, may have had a bearing on many things relevant to the case. He argues that an inference may be drawn that the Member had some prior knowledge about Mr Granger which would have come out if Mr Granger had been allowed to give an honest answer to the question: ‘Are you now or have you ever been under the care of a psychiatrist?’
The question was always irrelevant. Nothing otherwise arising in the case suggested a basis for asserting that, because of some mental problem, Mr Granger’s recall of the critical meeting might not be accurate. The learned Member refused to allow the question on grounds of relevance, and there is no basis for doubting the way she exercised that discretion.
Another of Mr Craig’s submissions typifies the want of focus which plagued his case before the Member, and on appeal. He argues that the Member must have had some knowledge of the working history of Mr Granger from sources other than from the evidence in the case, because of an interjection she made during the hearing to the effect that Mr Granger had been working in aged care prior to his commencing in the position of Peninsula Area Manager of HACC. A statement of evidence filed by Mr Granger a week prior to the hearing set out, in general terms, his prior working history in aged care facilities in Queensland and Victoria.
In summary, there is no basis for concluding that the learned Member displayed any bias against Mr Craig, or in favour of his opponents. Her findings of fact, while adverse to him, were fairly open on the evidence before her and nothing in the recording of the hearing supports his other complaints. The allegation of bias is not made out and, the mixed grounds upon which it relies also not being made out, leave to appeal must be refused.
In his second ground Mr Craig contends that another QCAT Member who had conducted an earlier Tribunal process, a compulsory conference, in December 2011 had also demonstrated bias against him. Mr Craig contends that, as a product of this bias, there was no hope of an early settlement being reached with the respondents.
The submission involves a misapprehension of the compulsory conference process and its purposes under the QCAT Act.[8] It occurs during the course of a Tribunal proceeding, usually (as here) some time before a final hearing. It is a process conducted in private, with the primary intention of promoting a settlement if that is possible. Nothing said at it can be brought into evidence at a subsequent hearing.
[8] Chapter 2, Part 6, Division 2.
The decision under appeal by Mr Craig is the decision made on 23 July 2012. This second ground, referring to a procedure seven months earlier which did not itself produce a decision amenable to being appealed is misguided and unsustainable and, indeed, unarguable. It is difficult to categorise it as a question of law, or fact, or a mixed question. In either event it can neither attract a grant of leave to appeal, nor be accepted as a legitimate appeal point.
Mr Craig’s third ground of appeal is that the decision is unsafe in law. He asserts that he had only to prove, in his complaint, that his age had a bearing on how the respondents acted towards him and to his claim for a disability support service, to any degree. He contends that his relative youth, compared with the older status of other people waiting for HACC services, was a signal factor behind the respondents’ actions towards him before, during and after the meeting on 9 April 2010 and he need prove no more to succeed.
It is said the learned Member was wrong to conclude, as she did, that an older person would have been treated no differently from him when that hypothetical construct was not supported by evidence from any party. This error, it is said, fundamentally afflicts the soundness of the decision; demonstrates a stereotypical perception that discriminatory conduct based on the attribute of age can only affect older persons; and, is wrong in law.
Mr Craig is, for reasons which follow, simply wrong in his contention that all he had to do to succeed in his case was to prove that his age had a bearing on the decision made by the respondents. This is not a correct interpretation of the law as it is set out in s 10 of the Anti-Discrimination Act 1991.
Mr Craig’s complaint was, always, that he had been directly and indirectly discriminated against in the administration of State laws and programs on the basis of age. The respondents argued before the Member that, to establish his complaint, Mr Craig had to satisfy the Tribunal that the respondents had treated him less favourably than another person not of his age (i.e. an old or older person) would be treated in circumstances that were the same, or not materially different.
The respondents put their case, at the hearing, on the basis that the Tribunal had to identify the circumstances in which Mr Craig had allegedly been subjected, by the respondents, to the conduct he had complained about; also had to identify what the respondents would have done to another person who was older than him, in those circumstances; and, if a comparison revealed less favourable treatment of Mr Craig, he must then prove that his age was the reason for that treatment. These determinative steps are well established and accepted: Purvis v New South Wales[9].
[9] (2003) 217 CLR 92.
Mr Craig’s primary problem is that his case fell at the first hurdle. The learned Member did not accept his evidence about, or his version of, what was allegedly said at the critical meeting on 9 April 2010. In particular, she did not accept his assertion that the respondents had told him that the transportation service to him would be cut, or that the third respondent had said to him that HACC’s services were for old people. For the reasons explored earlier, these findings on critical, primary questions of credit were fairly and reasonably open to the presiding Member; reflected the weight of the evidence before her; and, have not been shown to be the product of bias or partiality, or any denial of procedural fairness.
The learned Member found that, at the meeting on 9 April 2010, the respondents had told Mr Craig no more than that his future transport service was subject to a further assessment being undertaken by a HACC nurse as to his needs, and ongoing requirement for that service.
She then properly (following Purvis) went on to consider what would have been done in the case of a person older than Mr Craig and, appropriately, found that an annual HACC assessment would be required for every HACC client regardless of the age of that client – again, a finding that was properly open on the evidence before her, consistent with the weight of that evidence, and not the product of any apparent bias.
When the learned Member compared the circumstances confronting Mr Craig and the circumstances of an older person, she was satisfied that Mr Craig had not been treated less favourably than an older person requiring transportation services from the HACC scheme.
The Member was, with respect, entitled to reach that conclusion at law – there had been no less favourable treatment proven and, accordingly, the complaint made by Mr Craig of direct discrimination had not been established.
The learned Member also addressed, if briefly, the question whether Mr Craig could establish that he had been subjected to indirect discrimination under s 11 of the Anti-Discrimination Act 1991. As she observed, Mr Craig had not asserted that any particular term had been imposed on him by the respondents to bring into account the elements of indirect discrimination under the Act, and she found that the evidence did not establish the imposition of any relevant term. The Member was correct, with respect, in concluding as a matter of law that a complaint on the basis of indirect discrimination could not in those circumstances be sustained.
This third ground of appeal is properly categorised as a question of law, concerning the proper approach to be taken under the statute and in the face of decided cases. Leave is not necessary but, because the appeal ground is not made out, it must be dismissed.
Grounds 4 and 5 of the appeal seek to impugn the decision in ways which do not concern the hearing or the learned Member but, rather, actions alleged to have been carried out by registry staff at QCAT, and by the solicitors for the second and fourth respondents and by other Queensland public servants leading up to the hearing.
Some of the criticism of QCAT registry staff concerns conduct alleged to have occurred after the hearing had concluded. It is not said to have involved the presiding Member during the course of her post-hearing deliberations (her decision was reserved for one month) and is, on any view, immaterial.
Mr Craig says that QCAT failed to honour his requests that the Tribunal issue subpoenas to a large number of persons to attend the hearing. A list of names was filed in the Tribunal at the same time as his contentions, in October 2011. That list was described, by Mr Craig, as people whom he believed needed to be interviewed by authorised QCAT officers with a view to them relating what they knew about matters related to the case. In that document he also expressed his desire that all of the named persons of interest be available for examination, and cross-examination, at the hearing.
The list contained the names of over 50 persons, including staff from the Department of Communities and from Goobidi Bamnaga HACC, HACC Brisbane, the HACC Peninsula Area office, HACC Tablelands/Cairns and Hinterland Community Health, Ravenshoe Community Centre Inc, and the Queensland Ombudsman’s Office; officers from the Queensland Police Service; staff from Queensland Health and from Parliament; Mrs Brischetto; staff from Douglas Shire Community Services Inc; Mr Craig’s own GP Dr Saleras, Ms Gayle Sticher, and Ms Sharron Daniels; and staff from the Anti-Discrimination Commission, Queensland.
Mr Craig was directed on 29 February 2012 and again on 20 April 2012 to file a statement of evidence from each person who was to give evidence for him at the hearing. In an email to QCAT dated 19 March 2012 he said:
[I]t is my understanding that QCAT has no intention what so ever to call anyone to give evidence at the hearing or in the lead up to it. And on the phone with me on Friday you confirmed that as far as you are aware I’m right about that…
On his own admission Mr Craig was aware, three months before the hearing, that QCAT would not initiate the issuing of notices to attend the hearing to the people on the list he filed in October 2011. On 2 April 2012 the QCAT Registry sent him an email providing him with a link to a form he could complete to apply for a notice to attend for persons he wanted to give evidence at the hearing. He did not make an application of that kind before the hearing.
QCAT has power to require a witness to attend a hearing and give evidence[10] but Mr Craig did not establish, prior to the commencement of the hearing in this case, any valid basis for the issue of notices to the wide range of persons he listed in the document he filed in October 2011.
[10] QCAT Act s 97.
The presiding Member did consider, during the hearing, the question whether she should adjourn the hearing to enable witnesses to be called by Mr Craig. After argument she decided not to do so – in particular, because she was not persuaded that the evidence Mr Craig sought to lead from those witnesses was actually contested, or relevant to the matter she had to decide. She noted, too, that Mrs Brischetto declined to come to the hearing and Mr Craig did not seek to compel her attendance.
Given the narrow scope of the issues before the learned Member in this age-related anti-discrimination complaint, there is nothing to suggest that decision involved an incorrect exercise of her discretion generally (or, under s 95 of the QCAT Act). The Tribunal did not deny Mr Craig procedural fairness by failing to act upon a request which was excessive, unsubstantiated and beyond its powers. It also discharged its obligations under s 29 of the QCAT Act by alerting him to the steps he could take, on his own behalf, to summons witnesses if he wished to do so.
This fourth ground of appeal is, essentially, one involving questions of procedure and procedural fairness and may be categorised as a matter of law. It is not, for the reasons set out above, made out and must (as a ground of appeal) be dismissed.
Mr Craig’s fifth contention is that QCAT registry staff, representatives of the respondents and other senior public servants engaged in witness tampering with an intent to pervert the course of justice.
The witness tampering allegations made against QCAT officials are that Mrs Brischetto and his GP Dr Salleras had been contacted by QCAT staff without the consent or knowledge of Mr Craig. No evidence was adduced at the hearing, or in Mr Craig’s documents in support of his appeal, to support or establish these serious allegations. In the absence of any evidentiary basis, they border on the disgraceful. In any event, they are entirely unsubstantiated and must be dismissed.
Mr Craig’s difficulties with Mrs Brischetto were his own, and entirely unaffected by the actions of any other person. He said at the hearing that he had recently fallen out with her over the appropriateness of her husband continuing to drive taxis. He had the opportunity between 31 May 2012 and the start of the hearing on 22 June 2012 to compel her to attend the hearing, and had been informed of the steps he should take to affect that. He did nothing.
Mr Craig had not made specific arrangements, prior to the start of the hearing, to call his GP Dr Salleras but he was given the opportunity at the hearing to make arrangements for the doctor to give evidence after lunch. He decided not to call him. The decision was sensible: Mr Craig’s apparent intention was to ask the doctor whether he had any ‘bogus’ symptoms, or was ‘prone to lie’. When the respondents informed the Tribunal that neither assertion would be raised against Mr Craig, the doctor’s evidence plainly became immaterial. To now assert that the absence of the doctor was the product of some misconduct by his opponents, or QCAT registry staff is mischievous.
He claims that representatives of the second and fourth respondents tampered with witnesses. He appears to base this claim on comments made to him by employees of the Crown that they had been advised not to co-operate voluntarily with his requests to give evidence, but were to await subpoena. The assertion is denied by the representatives of those respondents.
Mr Craig purports to find support for allegation in emails which he now seeks to put into evidence. Regardless of their admissibility[11] they provide no support or corroboration for the allegation. They are messages to and from public servants including the Crown Law Office which contain, unsurprisingly, advice that the Crown will not advise or assist him in the preparation of his case.
[11] QCAT Act s 147(2).
Nothing in them establishes that the Crown prevented Mr Craig from calling Crown employees to give evidence in his case. His position was no different from any other litigant. He had the responsibility of arranging the evidence he wanted to call in his case. He had been directed to file witness statements from all his intended witnesses, but he did not do so. He could have made applications to QCAT to issue notices to attend against those persons whom he could identify as being relevant to the case. He had been given information by QCAT registry staff about how to go about applying for notices to attend, but he did not make any such application.
This ground might reasonably be categorised as one involving mixed questions of fact and law. It cannot, for the reasons just set out, warrant a grant of leave to appeal.
Nothing in Mr Craig’s grounds warrant any grant of leave, or establish a basis for allowing his appeal. In all respects, his application must be dismissed.
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