DT v Lutheran Church of Australia

[2012] QCAT 535

CITATION: DT v Lutheran Church of Australia & Ors [2012] QCAT 535

PARTIES:	DT (Applicant)
v
Lutheran Church of Australia RG SF (Respondents)

APPLICATION NUMBER: ADL004-11

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 2 October 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Lutheran Church of Australia, Queensland District, RG, SF must file in the Tribunal two copies and send another copy to DT of the following documents:

a.    A written statement of evidence, which must be page numbered;

b.    The statement from each witness to give evidence for Lutheran Church of Australia, Queensland District, RG, SF at the hearing including any experts and;

c.    Any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement, by:

4:00pm on 12 October 2012.

2.    DT must file in the Tribunal two copies and send another copy to Lutheran Church of Australia, Queensland District, RG, SF of any statements of evidence in reply by:

4:00pm on 16 November 2012.

CATCHWORDS:

ANTI-DISCRIMINATION – where parties required to file statements of evidence – where application made to strike out parts of filed evidence – where variation of directions necessary to implement proper timeline for filing of evidence prior to hearing

Queensland Civil and Administrative Tribunal Act 2009 - s 62

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. The complaint by DT of unlawful discrimination by the respondents is one of four complaints by members of the family against the Lutheran Church and others currently in QCAT. A hearing of all the complaints is scheduled to commence on 10 December 2012. The hearing dates were set in November 2011 and were made known to the parties at that time.

2. Various procedural directions have been made under section 62 of the QCAT Act throughout the proceeding at QCAT. In particular directions have been made setting the times by which the parties are required to file their statements of evidence to be relied on at the hearing. The tribunal has directed that no party will be allowed to present any evidence at the hearing that is not contained in filed statements unless the tribunal is satisfied there is a need for further evidence.

3. Directions for the orderly filing of evidence is part of the tribunal’s usual process for preparation for a hearing that ensures as far as practicable that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.[1] The tribunal must act fairly and must observe the rules of natural justice.[2]

   [1] Section 28(3)(e) of the QCAT Act.

   [2] Section 28(2) & (3)(a) of the QCAT Act.

4. A direction had been made requiring the applicants to file their statements of evidence by 29 April 2012. The tribunal on two later occasions varied that direction and allowed until 20 July 2012 for the filing of the applicants’ statements of evidence. Consequential variations were made to the times by which the respondents were required to file their statements of evidence and on 26 June 2012 a direction was made that the respondents’ statements of evidence were to be filed by 21 September 2012.

5. After the applicants’ statements of evidence were filed, the respondents applied to QCAT on 6 August 2012 to strike out part of the applicants’ filed evidence. The strike out application had not been determined by 21 September 2012 when the respondents’ evidence was due to be filed. As the tribunal was seeking information relevant to the strike out application, a date had not been allocated when a decision would be made on that application. The decision was likely to be made on the papers without an oral hearing on any specific date.

6. Unless a variation was made to the directions to permit filing by the respondents of their statements of evidence, the tribunal and the applicants would not have the benefit of reading the respondents’ evidence at any early stage as part of an orderly preparation process for the hearing. In such a scenario, the respondents could choose to wait until the commencement of the hearing before disclosing their evidence and then seek leave to adduce their evidence in response to the applicants’ case. It was essential for a fair hearing that all parties have the opportunity and obligation to have their evidence placed before the tribunal in a timely manner before hearing.

7. Neither party nor the tribunal would be advantaged by the absence of a proper timeline for the filing of evidence leading up to the hearing. It was clear that until a decision was made on the strike out application the scope and relevancy of the applicants’ evidence supporting their case would not be readily apparent. Until that time, the scope of the respondents’ evidence which would be needed to respond to the applicants’ case was also not readily apparent. It was a logical progression to extend the timeline for the filing of the respondents’ evidence until after the time when it was anticipated that the strike out application would be finalised.

8. In order for the tribunal to act fairly to all parties and to observe the rules of natural justice, an orderly timetable for filing of evidence had to be re-implemented. On that basis, a direction was made on 2 October 2012 requiring the respondents to file their statements of evidence by 12 October 2012 as it was reasonable to anticipate that a decision on the strike out application would be made prior to that date. A consequential variation was made requiring any evidence in response to be filed by the applicants by 16 November 2012.