Hickson- Jamieson v University of the Sunshine Coast - [2020] QCAT 523

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hickson- Jamieson v University of the Sunshine Coast & Ors [2020] QCAT 523

PARTIES: BREE HICKSON- JAMIESON

(applicant)

v

KENNETH YOUNG

(first respondent)

UNIVERSITY OF THE SUNSHINE COAST

(second respondent)

ROS CAPENESS

(third respondent)

QUEENSLAND COLLEGE OF TEACHERS

(fourth respondent)

APPLICATION NO/S:

ADL010-18

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

20 October 2020

HEARING DATES:

27 August 2020
3 September 2020

HEARD AT:

Brisbane

DECISION OF:

Member P Roney QC

ORDERS:
1. The application by the First Respondent to strike out and dismiss the application against him is upheld, and the Applicant’s application against him is dismissed pursuant to s 47 of the QCAT Act.

2. The application by the Third and Fourth Respondents to strike out and dismiss the application against them is upheld, and the Applicant’s application against them is dismissed pursuant to s 47 of the QCAT Act.

3. The application by the Second Respondent to strike out and dismiss the application against it founded upon claims of direct discrimination is upheld and the Applicant’s application against it on that ground is dismissed pursuant to s 47 of the QCAT Act.

4.   In respect of the balance of the claims by the Applicant against the Second Respondent arising solely in respect of alleged indirect discrimination against her by the Second Respondent, the application by the Second Respondent to strike out or dismiss those claims is refused save in respect of any claims for indirect discrimination which relate to claims of discriminatory conduct which predate 9 March 2016.

5. Insofar as the Applicant brings any claims for indirect discrimination against the Second Respondent or discriminatory conduct which predates 9 March 2016, that application is dismissed pursuant to s 47 of the QCAT Act.

6.   The Applicant is directed to file and serve on the Second Respondent within 21 days of the delivery of these Reasons a new points of contention document which coherently identifies the material facts relied upon to establish conduct allegedly constituting indirect discrimination against her by the Second Respondent on or after 9 March 2016 and sets out the legal foundation for such a claim and the relief or remedies sought in respect of it.

7.   The parties have liberty to apply in respect of any other consequential or other orders which might be required to be made.

CATCHWORDS:
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - striking out application – allegation of direct discrimination by university and educational institutions related to teaching profession - indirect discrimination - striking out and/or dismissal of an Applicant's claim set out in an amended Statement of Contentions pursuant to s 47 of the QCAT Act – where noncompliance with directions – when power to strike out is to be used – whether abuse of process – where complaint required to be made within 12 months of the relevant discriminatory conduct and out of time - whether discriminatory conduct “on the basis of” a relevant attribute - parental responsibilities - discrimination in the education and pre-education area - “educational authority”- whether discrimination by persons who have the power to grant, renew or extend a qualification or authorisation for, or facilitate the practice of a profession or a trade – where Tribunal not bound by characterisation of the complaint by the ADCQ in referral to the Tribunal.

Anti-Discrimination Act 1991 (Qld) s 5, s 7, s 8, s 10,
s 11, s 21, s 22, s 39, s 178, s 204

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 47

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Aigner v State of Queensland and Anor [2012] QCAT 397
Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
Carr v Baker (1936) 36 SR (NSW) 301
Cocks Macnish & Anor v Biundo [2004] WASCA 194
Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713
Department of Health v Arumugam [1988] VR 319
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Gama v Qantas Airways Limited (No. 2) [2006] FMCA 1767
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Gough v State of Queensland [2013] QCAT 320
Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261
Jones v Dunkel (1959) 101 CLR 298
Julian Moti v R (2011) 283 ALR 393
Kapoor v Monash University [2001] 4 VR 483
Lightning Bolt Co Pty Ltd v Skinner & Anor [2002] QSC 62
MM and MD v State of Qld [2014] QCAT 478
O’Callaghan v Loder (1984) EOC 92-024
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62
Qantas Airways Ltd v Gama (2008) 167 FCR 537
R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155
Sharma v Legal Aid (Queensland) (2002) EOC 93-231
Sharma v Legal Aid Queensland (2002) EOC 93-191; [2001] FCA 1699
Shaw v State of New South Wales [2012] NSWCA 102
Waters & Ors v Public Transport Corporation (1991) 103 ALR 513; [1991] HCA 49
West Midlands Passenger Transport Executive v Singh [1988] 2 All ER 873
Wilson v Lawson [2008] QADT 27

Yohan v Qld Basketball Incorporated [2010] QCAT 459

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondents:
First and Second respondents represented by M Minucci of Counsel instructed by Clayton Utz

Third and Fourth respondents represented by S Hamlyn–Harris, of Counsel instructed by Crown Law

REASONS FOR DECISION

The First and Second Respondents have filed an application dated 8 May 2020 seeking to strike out and/or dismiss the Applicant's claim as set out in her amended Statement of Contentions filed 7 June 2019 (ASOC), pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). In effect they seek summary dismissal of the entire claim brought in this Tribunal. The Third and Fourth Respondents have also filed an application dated 7 May 2020 to strike out and/or dismiss the Applicant's claim as set out in her ASOC, also pursuant to s 47 of the QCAT Act. Some of the bases for those two applications correspond, but in material respects they do not.
For their purposes the First and Second Respondents rely on affidavits of the First Respondent Dr Kenneth Young, Shelley Louise Dole, Tammy Ann Thompson, Alexandra Sharp, and Jane Anderson. The Third and Fourth Respondents rely on the affidavits of the Fourth Respondent and Deanne Fishburn. Those seven affidavits are the affidavits that those parties were to rely on at a trial or full merits hearing. I am invited by the Respondents to have regard to all of that evidence in the strike out applications. It is a matter that has troubled me considerably that in order to decide the strike out application, the Tribunal has been in effect required to analyse all the testimony that would have been in issue at a trial itself.
The Applicant filed her original application in the Tribunal on 21 March 2018 and it has now been ongoing for more than two and a half years. The Respondents contend that the Applicant has been on notice since at least April 2018, of what were said to be fundamental deficiencies regarding her application and given opportunities by the Tribunal to amend her claim to address such deficiencies.
The First and Second Respondents have previously applied to strike out the claim. It was submitted before me that the Applicant was given a further opportunity subsequent to that strike out application, to again amend her claim. In reasons delivered by Member Cranwell on 26 February 2019, this tribunal rejected submissions that the Applicant had engaged in an abuse of process in the manner in which she had conducted the matter, and was not prepared to accept that she was the cause of delays that had occurred. He rejected arguments, such as the alleged failure by the Applicant to mitigate her loss as not being a basis to summarily dismiss the application. He also rejected the contention that her case was so obviously lacking in merit as against the First and Second Respondents that it should be struck out. As the reasons observe, the Third and Fourth Respondents did not put forward any differing arguments than those put up by the First and Second Respondents, in that earlier strike out application, merely adopting them. In large part, but not entirely, the same arguments as were rejected by Member Cranwell in the reasons of 26 February 2019 have been remade to me, with other supplemental argument accompanying.
The First and Second Respondents filed and rely in their applications before me of some 52 pages of written submissions. The essence of the arguments put is that despite the Applicant being granted “an inordinate number of opportunities to do so, and consistently being late with compliance or seeking extensions of time after deadlines have passed above and contrary to what the Applicant asserts about this issue), the Applicant has failed in every material respect” to:
(a)properly plead any claims against the Second Respondent;
(b)properly identify any relevant cause of action and to provide evidence which supported her claims against either the First or Second Respondents;
(c)address that the allegations against the First Respondent are out of time so far as they relate to matters arising in 2015; and
(d)address the proposition that the evidence cannot substantiate any finding that the Respondents had discriminated against the Applicant as alleged in the ASOC or otherwise.

Issues of legal principle – striking out under s 47 of the QCAT Act

QCAT has the power to bring an early end to proceedings under s 47 of the QCAT Act if the Tribunal considers the proceeding is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process.
The First and Second Respondents’ submissions are almost entirely devoid of references to any case law authority in support of any of the arguments put forward, or as to the correct approach to be adopted in an application of this type.
I will set out in what follows what the settled approach is.
The power to strike out is to be used sparingly and only in clear cases. To summarily dispose of the proceedings is one which calls for the exercise of “exceptional caution”: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 (at 129) per Barwick CJ.
The power cannot be exercised “once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it”: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 (at 91) per Dixon J.
It is only to be exercised “when the action is clearly without foundation and … to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff”: Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 (at 720) per Dixon J.
The “Court is not concluded by the manner in which the litigant formulates his case in his pleadings”: Cox v Journeax (No 2) (at 720) per Dixon J.
The fatal defects in an Applicant’s case must be very clear before the Court will intervene to strike out a pleading: Shaw v State of New South Wales [2012] NSWCA 102 (at [30]ff) per Barrett JA (Beazley, McColl, Macfarlan JJA and McClellan CJ at CL agreeing); Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 (at 944 – 945) per Cross J.
A “high degree of certainty” that the Applicant’s case will fail if it goes to trial is required: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 (at [57]) per Gaudron, McHugh, Gummow and Hayne JJ. Hence a Court will only strike out the pleading on the basis that it does not disclose a reasonable cause of action if, on the face of the pleading, it is obvious that the claim is bound to fail and cannot be remedied by amendment.
If it has prospects of success, but the claim is not adequately expressed in the pleading, the Court should not dismiss the proceedings or the particular claim, but should grant leave to the Applicant to file an amended statement of claim or cross-claim (in the case of an application in respect of a cross-claim). See generally Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 943–944.
An application to strike out a part of a pleading is inappropriate where to resolve the argument the Court needs to consider disputed questions of fact, or review the entirety of the Applicant’s case, having regard to all of the evidence adduced at trial in order to resolve the alleged inadequacies, or to determine complex questions of law which are best left to final submissions at a trial. Sadly, in this case the Tribunal has been invited to consider disputed questions of fact, or review the entirety of the Applicant’s case, having regard to all of the evidence filed so far. In this Tribunal it is well recognised that there is a duty on an Applicant to actively progress matters to a hearing.
In Gough v State of Queensland [2013] QCAT 320 Senior Member Endicott said in relation to a strike out that anti-discrimination cases are not dismissed lightly as the law expects that everyone should have the right to equal protection under the law.
[20] The respondent has relied on the authority of the decision by the High Court of Australia in Brisbane South Regional Health Authority v Taylor1 in which McHugh J discussed why a significant delay in bringing proceedings gives rise to prejudice. His comments are, in my view, as equally pertinent to how prejudice will arise when there is a significant delay in finalising a proceeding. McHugh J’s comments apply in this case to reinforce the sentiment that it would be oppressive to the respondent to allow this complaint to be delayed in its resolution long after the circumstances which gave rise to the complaint have passed. I accept that the public interest requires that disputes are resolved as quickly as possible.
[21] The respondent submitted that there is in fact a statutory obligation on QCAT to progress the complaint as expeditiously as possible in s 3(b) of the QCAT Act. The complaint has been before the Commission and then at QCAT for a period in excess of two years now and apart from filing her contentions, there have been no steps undertaken by Ms Gough to progress that complaint. The respondent submitted that the failure of Ms Gough to progress the complaint has resulted in the time and resources of the tribunal being diverted from other applicants who wish to progress their applications conscientiously.
…
[30] Anti-discrimination cases are not dismissed lightly as the law expects that everyone should have the right to equal protection under the law. However civil rights are accompanied by civil responsibilities and once proceedings are on foot, it is in the public interest that parties participate fully and expeditiously in the process, without causing unnecessary disadvantage to each other and that parties are willing to take advantage of the processes for dispute resolution before a hearing.
In Aigner v State of Queensland and Anor [2012] QCAT 397 Senior Member Endicott held as follows:
[11] In addition, this case is one where Ms Aigner contends that her human rights have been breached by the actions of the respondents. That is a factor that bears on the consideration of how QCAT must discharge its statutory obligations to deal with matters in a way that is accessible and fair as well as being just. QCAT must also act with as little formality and technicality as a proper consideration of the matters before the tribunal permits.2 It is the antithesis to being accessible for QCAT to dismiss a proceeding without a hearing on its merits when the case for dismissal is based on a technical construction of the evidence and not on evidence tested by questioning at a hearing.
[12] The reasons for passing anti-discrimination legislation is set out in the preamble to the Anti-Discrimination Act 1991. It is expressly stated that everyone should have the right to equal protection and benefit of the law without discrimination, that the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society and that the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone.
[13] Given that legislative foundation, it would be incongruous, in view of QCAT’s own statutory obligations to be accessible and fair, should QCAT be too ready to prevent a person having the benefit of an independent hearing about an alleged breach of their human rights. There will be cases where nothing more than mere assertions are made about an alleged breach or where the filed evidence is sufficiently tangential to the issues to be determined to warrant summary dismissal but this case is not one of those.

The uncontroversial factual background to the principal application in this Tribunal

In very broad terms, the factual background to the application by Ms Hickson- Jamieson in this Tribunal arises out of the fact that the Applicant was, in 2015 and early 2016, enrolled in studies to receive a Graduate Diploma in Education at the University of the Sunshine Coast, which is the Second Respondent to the application. Had she received the Graduate Diploma for which she was enrolled, she would have been entitled, assuming other procedural requirements were met, to be a secondary school teacher. The Applicant is the mother of two children for whom she cares, one of whom suffers from a seizure disorder and an intellectual impairment.
It is common ground that for the purposes of completing the course for the Diploma, she was required to participate in and complete a period of supervised professional experience (which I shall refer to in these reasons as professional experience or SPE) at a particular school.
It is common ground that the Fourth Respondent has responsibility for setting the requirements for registration as a teacher in Queensland, including accreditation. To be registered as a teacher in Queensland and teach in a Queensland School, a person must meet the relevant requirements established by the Fourth Respondent. One of those requirements is the completion of an accredited education course. The Graduate Diploma in Education (Secondary) (the Diploma) offered by the Second Respondent was one such course. The Diploma was accredited by the Fourth Respondent on 5 December 2014. As part of the accreditation, the Fourth Respondent approves the course content and any significant changes must be approved by the Fourth Respondent.
In broad terms, the Fourth Respondent, the Queensland College of Teachers, is established by statute, under the Education (Queensland College of Teachers) Act 2005 (Qld). Under Chapter 10 of that Act, the College of Teachers is established, and it has allocated functions concerning registration of teachers and giving permission for teachers to teach, testing applicants for registration, certification of teachers, and approval of pre-service teacher education programs. It was in the latter capacity in relation to the approval of pre-service teacher education programs that it was in communication with the Applicant during 2015 and 2016.
According to uncontroversial evidence, teacher education programs are nationally accredited, and one of the requirements, which is a minimum requirement set nationally and recorded in a relevant standard, is that trainee teachers perform a minimum of 60 days’ supervised teaching experience for a graduate course. That was a position in 2015 and 2016 when the events relevant to this claim occurred.
The Queensland College of Teachers has the capacity to approve particular courses at educational institutions, and in this particular case the College of Teachers had approved the course “Graduate Diploma in Education (Secondary)” at the First Respondent’s University. The approved course at the Second Respondent University required 62 days of SPE/professional experience or under two modules described as “teaching practice”.

It is common ground that in or about September 2015, the Applicant was placed at Maroochydore State High School to complete the SPE requirement for one of the courses she was enrolled in. The Applicant had requested that for her SPE she be placed in a school that was close to where her son was going to school initially verbally and then through the SPE form. The placement at Maroochydore State High School met that criteria.
It is uncontroversial that the SPE for the purposes of the Diploma was performed at a placement school with registered teachers conducting supervision of the students undertaking the SPE. Schools and registered teachers participate in the SPE voluntarily, that is the School and supervising teachers offer their time for furthering the education of preservice teachers. For the purposes of the two relevant courses the SPE involved a 31-day block of full-time supervised teaching in order to meet QCT's SPE requirements. This was outlined in USC's University Graduate Diploma of Education SPE Handbook. As outlined in the Handbook, the SPE requires that students arrive at the school at which they are placed at least 30 minutes before the SPE site day begins and remain behind after the formal school period to attend staff meetings, review lessons and meet with the supervising teacher as required. Students are also expected to, proactively, make contact with the SPE school once placement is confirmed to make a time to meet with their supervising Teacher or coordinator in order to commence the necessary planning and preparation for teaching.
According to the uncontroversial evidence of the Director of the Queensland College of Teachers, Ms Fishburn, at the time of the relevant events, there was no approved Queensland program that accommodated a part-time pathway for completing the professional experience component. On her evidence, however, the College of Teachers had previously considered and approved adjustments for professional experience requirements at universities in exceptional circumstances, examples of which included permitting part-time completion to a student living with a disability and another involving a student with a hearing impairment.
It is also uncontroversial that if a student wished to seek a variation to the SPE, that this must be approved by the Fourth Respondent. If the First Respondent permitted a student to vary the SPE without first seeking the Fourth Respondent’s approval, there is seen to be a risk that the student would not be granted provisional teacher registration on graduation.
The practice, disclosed by apparently uncontroversial evidence, is that if a student feels, for their particular personal circumstances, that they cannot complete SPE in any semester, they have enough time to make alternative arrangements or otherwise defer the relevant course to another semester. Minor adjustments necessary because of students not being able to attend on a particular day due to illness or other exceptional circumstances, are contemplated by the student being able to apply for an absence and a corresponding extension to their SPE placement. That is accommodated where such adjustments cause little disruption to their SPE and do not alter the inherent requirements. Where adjustments that would otherwise impact on whether the student can meet the approved SPE requirements are sought, these need to be approved by Fourth Respondent, on the recommendation of the Second Respondent University. In this case, the Second Respondent did not recommend any adjustment to accommodate the Applicant’s circumstances.
The Applicant ultimately accepted her placement at Maroochydore State High School for the purposes of the SPE. The Respondents contend that at no time prior to the commencement of the SPE did the Applicant advise the First Respondent of the particular circumstances of her son, or otherwise provide the First Respondent with any information other than the fact that she needed to be placed in close proximity to her home and her son’s school. The Applicant also did not make contact with the First Respondent to raise issues with the SPE placement at Maroochydore State High School or to suggest that her son's circumstances had changed such that it would impact on her being able to complete the SPE. The Applicant, along with 14 other students, was due to commence her SPE on 10 September 2015, and be completed by 20 November 2015. However, on 8 September 2015, the Applicant wrote to Maroochydore State High School and advised them that she would not be attending for SPE on 10 September.
On 16 September 2015, the Applicant met with the First Respondent and requested to change her placement. She said that she was the carer for her son who had special needs but asked the Second Respondent to keep that information confidential.
On 18 September 2015, the First Respondent wrote to the Applicant to schedule a meeting to discuss a number of concerns that had been raised by Maroochydore State High School about her lack of performance. A meeting was then held.
The Applicant attended Maroochydore State High School for two days on 8 and 9 October 2015. Between 10 September 2015 and 15 October 2015, the Applicant only attended for four days of the scheduled SPE. On 15 October 2015, the Applicant wrote to the First Respondent and advised him she had not prepared the timetable as they had discussed.
In October 2015, the Applicant was provided with a timetable of classes she needed to attend, given some flexibility regarding her start times at the beginning of the day, and told that the school would ensure the class the Applicant would teach would be in the middle of the day. The Applicant did not attend any further SPE days at the school.
On 19 October 2015, the Applicant met with the Deputy Principal of Maroochydore State High School to discuss possible alternative SPE arrangements or relocating to another school. The Applicant asked whether they could accommodate restricted hours and days of SPE, but the school could not.
On 23 October 2015, the Applicant’s placement at Maroochydore State High School was terminated and she was advised she would receive a fail grade for the course. The principal reason given for terminating the placement was because the Applicant was not able to meet the requirements of the placement, including arriving on time and staying after school when required.
In Semester 1, 2016, the Applicant again enrolled to undertake the same course as previously. On 29 February 2016, the Second Respondent wrote to the Applicant and advised her that he was willing to progress any application for proposed adjustments to her SPE requirements. The Second Respondent told the Applicant that she would need approval from the Fourth Respondent and would need to provide details of any accommodations sought, and how this would allow her to complete the mandatory 31-day SPE requirement. On 4 March 2016, the Applicant provided her SPE form to Ms Thompson and nominated five schools. In her form, the Applicant indicated that she could not attend a school that was more than 20 minutes from the Special School which her son attended, due to the fact that she was a carer for her son.
The Applicant made reference to a so-described Learning Access Plan several times. The Respondents contend that the Applicant did not at any time make an application for a Learning Access Plan, but such a Plan was not necessary for the Applicant’s purposes, given that any student can seek reasonable academic adjustments and a Learning Access Plan was not required for adjustments relating to carers.
It is critical under the Anti-Discrimination Act 1991 (Qld) (the AD Act) to note that any complaint was required to be made within 12 months of the relevant discriminatory conduct. Since the complaint was made on 9 March 2017, it could only concern discriminatory conduct on or after 9 March 2016. The referral of the matter to this Tribunal was only of those elements of the complaint that were not out of time. That distinction is not apparently drawn in the way the Applicant seeks to advance her case, and it seems to include allegations concerning discriminatory conduct which occurred before 9 March 2016. Whilst this factual background may be relevant, and included in the narrative set out in the points of contention, to discriminatory conduct which occurred on or after 9 March 2016, matters that are said to have occurred from June 2015 and in or about October 2015 are out of time, were not referred to the Tribunal and were beyond the jurisdiction of the Tribunal. On that basis, any claims that are said to have arisen prior to 9 March 2016 must be struck out.
The events I now describe occurred within time, i.e. on or after 9 March 2016. Those previously set out above do not.
In March 2016, the Applicant requested a placement within 20 minutes of her son’s Special School on the basis that she was a carer for her son. On 10 March 2016, Ms Thompson asked the Applicant whether she would consider going to the Caloundra State High School. But the Applicant said that would not be convenient to her because of the time at which classes at that school would finish.
On 24 March 2016, the Second Respondent wrote to the Applicant and observed that as they cannot accommodate SPE for her within the dates and times that she had specified in her previous emails, it may be better for her to withdraw from the subject, as the Applicant indicated in her email. Without making any further contact with the Second Respondent or Ms Thompson, on 8 April 2016, the last day for withdrawal from enrolment in the subject, the Applicant wrote to the Second Respondent University requesting an adjustment to her SPE.
On 15 April 2016, the Applicant wrote to the Second Respondent University, via Ms Thompson, asking whether her request for an adjustment to the SPE had been approved. Ms Thompson replied that the Fourth Respondent needed to approve an alteration to the conditions of the SPE placement; and Ms Thompson could only approach schools to negotiate on an altered SPE placement arrangement once approval had been given by the Fourth Respondent to alter the SPE requirement.
On 18 April 2016, the Applicant then emailed the Second Respondent University via Professor Dole again and said that she had tried to find out which school she had been allocated to for the purposes of her SPE placement, but that she was told she could not be allocated to a school until the Fourth Respondent approved her placement. That same day, Professor Dole wrote back and said that in order for the First Respondent to make an application to the Fourth Respondent to alter the SPE placement arrangements on the Applicant’s behalf, the Applicant needed to provide specific information.
The objective documentary evidence suggests that the Applicant did not, at any time, provide that further information to the First Respondent to substantiate any formal submission in relation to a change of SPE requirements for the subject and therefore the Applicant was not allocated to a school for the purposes of the SPE requirement in the subject in 2016. She subsequently received a fail grade for the course as she did not withdraw prior to the requisite date and did not complete SPE.
The Applicant alleges inter alia that her SPE placement in 2015 was terminated because the Respondents refused to accommodate her request.
She alleges that the First Respondent discriminated against her by reason of his email dated 24 March 2016. She alleges that she has not been able to complete her SPE placement, because of the conduct of the Respondents. She alleges she has suffered loss and damage because she is now unable to graduate from the Diploma and now the course requirements have changed. She alleges that the Respondents denied her a Learning Assistance Plan and that the Respondents lost her documents, and did not support her.

Relevant provisions of the AD Act

Section 7 of the AD Act prohibits discrimination on the basis of certain attributes and these attributes include relevantly for present purposes, impairment and parenting responsibilities.
Section 10 of the AD Act provides the definition of direct discrimination on the basis of an attribute. It provides as follows:
10 Meaning of direct discrimination
(1)     Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
Example—
R refuses to rent a flat to C because—
·C is English and R doesn't like English people
·C's friend, B, is English and R doesn't like English people
·R believes that English people are unreliable tenants.
In each case, R discriminates against C, whether or not R's belief about C's or B's nationality, or the characteristics of people of that nationality, is correct.
(2)     It is not necessary that the person who discriminates considers the treatment is less favourable.
(3)     The person's motive for discriminating is irrelevant.
Example—
R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R's conduct amounts to discrimination against C.
(4)     If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
(5)     In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.
The question that must be answered affirmatively if such a claim is to succeed is whether the particular conduct which is complained of here has been shown to be “on the basis of an attribute” within the meaning of s 8 and s 10 of the AD Act.
Section 8 of the AD Act provides:
8   Meaning of discrimination on the basis of an attribute
Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of:
(a)     a characteristic that a person with any of the attributes generally has; or
(b)     a characteristic that is often imputed to a person with any of the attributes; or
(c)     an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
(d)     an attribute that a person had, even if the person did not have it at the time of the discrimination.
Example of paragraph (c):
If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.
Section 10(3) of the AD Act provides that “the person’s motive for discriminating is irrelevant”.
Example—
R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C.
Section 11 of the Act, provides as follows:
11 Meaning of indirect discrimination
(1)     Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
(a)with which a person with an attribute does not or is not able to comply; and
(b)with which a higher proportion of people without the attribute comply or are able to comply; and
(c)that is not reasonable.
(2)     Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
(a)the consequences of failure to comply with the term; and
(b)the cost of alternative terms; and
(c)the financial circumstances of the person who imposes, or proposes to impose, the term.
(3)     It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
(4)     In this section—
term includes condition, requirement or practice, whether or not written.
Example 1—
An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.
Example 2—
An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.

The case which the Applicant wishes to advance against the First and Second Respondents

The most recent attempt at articulating her case apart from what was put in argument in resisting the present application, appears in the Applicant’s Statement of Contentions served on the other parties on 7 June 2019. It appears that this Statement of Contentions which she calls her “Revised Statement of Contentions”, and which I am calling the ASOC, was the result of her obtaining legal advice. In an email to the other parties of 7 June 2019, she said she was able to obtain legal advice on 5 June 2019 and had “applied that advice”.
The ASOC is in many respects identical to her original Statement of Contentions dated 23 August 2018. The revised Statement of Contentions is not marked up to show where it differs from the earlier Statement of Contentions.
After citing relatively innocuous facts it contends at paragraph 45 and 46 in relation to the conduct of the College of Teachers and Ms Capeness that she was subjected to direct discrimination in being told that she ought to “reconsider whether she should be a registered teacher given her family’s circumstances”. I deal with whether this is capable of constituting direct discrimination later.
The second allegation which is difficult to grasp conceptually, is that a person unidentified at the Second Respondent University, that is, it is not said who it was, engaged in discriminatory conduct, because the Second Respondent University’s procedure was not followed when the Applicant’s placement at Maroochydore State High School was terminated. It is not apparent how the failure to comply with a procedure in and of itself constitutes direct discrimination and the treatment of her less favourably than other students would have been treated. Those respects in which the procedure is said not to have been followed concerns whether a meeting or discussion of other options were offered to her prior to the placement being terminated, and what is said to be her not being initially offered or provided with a referral to student services or counselling services.
Again, it is not immediately obvious, or even upon careful review how not presenting those options, was direct discrimination against her, even if the procedures of the Second Respondent University did contemplate those events occurring.
Entirely absent from the case that she puts is that the Second Respondent University’s conduct in that regard occurred on the basis of the protected attribute, namely her parental responsibilities.
In paragraphs 47 to 55, she seeks to articulate a case of indirect discrimination. What is said is not directed to the conduct of any particular Respondent except the Fourth Respondent, although there is a rolled-up proposition in paragraph 55 that both the Second Respondent University, and the College of Teachers, breached s 39 of the Act as educational authorities by treating her unfavourably in connection with her training and instruction. No particular conduct was identified in that regard.

Demonstrably one of the matters that she relies upon, as set out in paragraph 54 of her ASOC, concerns events which are out of time in that they occurred in 2015, and no times are put on any of the other matters referred in that paragraph, so it is not immediately obvious whether they occurred within time or not. She references a request to complete the part-time modification at the suggestion of the College of Teachers, however the Second Respondent University “imposed the full-time term requirement” and the Second Respondent University did not “put the Applicant’s modification request forward to QTC”. These complaints all appear to be directed solely to the Fourth Respondent. None of them appear to be directed to any of the other Respondents.

The case against Dr Young, the First Respondent

The First Respondent, Dr Young, is a lecturer, and the Education and Program Coordinator at the Second Respondent University.
As the Program Coordinator, he is required to have a working knowledge of the accreditation requirements of the Graduate Diploma in Education (Secondary) that the Applicant was enrolled in at the Second Respondent University.
The elements of the Diploma course were accredited by the College of Teachers and in that context, the College of Teachers approves the course content. The course content included two compulsory courses which I have already described, as essentially “Prac-teaching”. Therefore the course requirements of the Second Respondent University were that all students undertaking the Diploma course do those two practice subjects. The SPE was set out in detail in the University handbook, and as I have described elsewhere specific requirements and attributes. There is nothing to suggest that Dr Young had any discretionary power to waive any of those requirements, whether in his role as the Program Coordinator, or otherwise.
Therefore, the suggestion that he, or the University vicariously, directly discriminated against the Applicant by enforcing the course requirements in that regard is fundamentally misconceived. The course requirements were not brought into existence because of her, or because of her attribute or in any way enforced in a way which was in any way different to the way the course requirements were enforced against all other students.
I will turn to the alternative argument that there was some indirect discrimination against her on the University’s part by not modifying the requirements where it would have been reasonable to have done so in a moment. Suffice it to say that the notion that simply by managing the requirements of the University in relation to Prac-teaching for students enrolled in those subjects cannot amount to discrimination on the part of Dr Young. Conceptually it might amount to indirect discrimination on the part of the Second Respondent University which ultimately was the entity which potentially had the power to waive or modify the requirements in her particular circumstances, circumstances in which it was unreasonable that they did not.
There is no specific conduct at all alleged against the First Respondent in the ASOC. The evidence though shows that the First Respondent wrote the Applicant a letter on 22 March 2016. In that letter, in his capacity as the program coordinator, Dr Young, wrote to the Applicant stating that for particular reasons, he was not going to approve and did not approve her request for an adjusted program for her SPE. On that basis he said that the Second Respondent University could not “progress” her case to the College of Teachers. He urged her effectively to look at other avenues that might provide her with financial support to meet the program requirements, which included the necessity for full days of attendance. In other words, he was not prepared to alter the specific program requirements or to advance the case for the QTC to allow that to occur.
The basis upon which he explained his position in that letter was that the Queensland College of Teachers had advised that it was an essential program requirement that the SPE be taken in a block, not broken-up, as she had requested over six weeks’ placement for three days at a time followed by two weeks’ placement of five days per week and other days here and there. He seemed to take the view based on the advice of others that a recommendation to adjust an SPE placement could not occur if it altered the “inherent or essential requirements of the placement program”.
He refers in that letter to having spoken to the Third Respondent Ms Capeness on behalf of the College of Teachers, and her advice was that the “block practicums are the most appropriate means for pre-service teachers to demonstrate attainment of the Australian Professional Standards for Teachers at the Graduate level”. He was not apparently closing off any possible adjustments to the program, but noted that it had to be approved by the Second Respondent University program coordinator and then sent to the QTC for their approval. Assuming that to be true, the Second Respondent had some control or influence over the situation.
The second issue he mentioned concerned nuts and bolts issues about particular schools that she might have been able to attend, but he was concerned about her inability to attend a full day and in his view, as he had previously advised her, it was necessary for her to be in attendance at the school 30 minutes prior to the beginning and 30 minutes after the conclusion of the school day for specified reasons.
Since Dr Young was not satisfied that she could attend full days as required by the program, he did not approve her request for an adjusted program.
A reading of that letter, together with contentions made against the Second Respondent University, does not self-evidently identify any case that she seeks to bring against Mr Young personally.
The Applicant does not make any allegation that the First Respondent himself engaged in any discriminatory conduct, either directly or indirectly. If an employee or officer of an organisation, in the course of their duties, writes a letter or makes a decision on behalf of their employer, it does not necessarily follow, that without more that individual has personally engaged in discriminatory conduct.

The direct discrimination case against the Second Respondent University

As I shall mention shortly, the nature and character of the Applicant’s case has taken a different direction to that set out in her ASOC and is described differently again in the submissions which she filed resisting the present application. As identified in those submissions, she contends that the direct discrimination against her by the Second Respondent University was on seven different bases and in subtle respects is different to the bases outlined in her ASOC:
(a)She did not fit the criteria for a Learning Access Plan which would give her support in the school placement or in requesting reasonable adjustments that would allow her to participate as other students did. This cannot, in my view, amount to direct discrimination.
(b)She would have difficulty with the school placement policy if it placed her at a school up to 50km from her home. This cannot, in my view, amount to direct discrimination.
(c)She could not comply with the requirement to attend for a full day at the Maroochydore State High School and that it was assumed she lacked organisation and planning skills regarding her parental responsibilities. This cannot, in my view, amount to direct discrimination.
(d)The limited teaching hour timetable at the Maroochydore State High School in 2015 was not adequate to allow her to complete the school placement experience. This cannot, in my view, amount to direct discrimination.
(e)Her placement at the school was terminated because of her responsibilities and they were not recognised as a valid reason for an adjustment. This conceptually could constitute direct discrimination.
(f)She was denied adjustments based on assumptions about her ability. This conceptually could constitute indirect discrimination, but it is not direct discrimination.
(g)Her personal information about her difficulties, or her attribute was communicated with the Third Respondent without her consent. This might raise privacy law issues but I cannot see how it amounts to direct discrimination.
Fundamentally, the First and Second Respondents contend that none of those grounds could objectively amount to discrimination even if they were established on the evidence.
The First and Second Respondents also contend that the evidence in the Applicant’s own case does not support those allegations in any event.
The case which the Applicant seemingly wishes to advance against the Second Respondent University, noting that it is not necessarily the same as has been advanced in the differing versions of her Statements of Contentions, has three elements:
(a)The Second Respondent University directly discriminated against her by not following the procedure called the USC Learning Access Plans or any other procedure for developing and providing reasonable adjustments that would permit her to get SPE on the same basis as other students. She contends that because of her parental and carer responsibilities, she would have had difficulty with the existing policy insofar as it required her to be placed at a school which might be up to 50km from her home where her children lived. She also complained that because of those parental/carer responsibilities, she could not comply with the requirement to produce a schedule of full days of attendance at a school at which she was placed.
(b)Specifically, the Second Respondent University is alleged to have directly discriminated against her by not following some kind of procedure which would have accommodated adjustments when terminating a professional experience placement of her at the Maroochydore State High School. This proposition involves two contentions. The first is said to have been the failure to hold a meeting or discuss options with her in 2015. Secondly, in not offering or providing her with a referral to student services or counselling services in 2015 because she was a parent. These propositions may be gleaned from the ASOC at paragraph 46.2. Both events occurred more than 12 months before her complaint was made and are out of time.
There is nothing in her points of contention that develops any relationship between the failure by the Second Respondent University to follow some procedure and meeting with her or that the like amounts to discriminatory conduct in the sense contemplated by s 10 of the Act concerning direct discrimination.
The third ground of complaint against the Second Respondent University is that it indirectly discriminated against her by requiring a six-week full-time practical placement to complete her studies. And also by not putting her request for a modified practical placement requirement to the College of Teachers in circumstances where students who were not parents with disabled children or children were more readily able to comply with those two requirements, but which were unreasonable in her personal circumstances. These contentions may be found at paragraphs 52 and 54 of the ASOC.
The nub of her case on indirect discrimination appears in paragraph 53 of her ASOC and that is that it was imposing the condition that she complete a six-week practical placement at Maroochydore State High School with which she could not comply as a result of her parental status. I develop the details behind that claim later in these reasons from paragraph 105.
The proposition relied upon is certainly lacking in detail and there is no contention as to why it is that the requirement to place her in a six-week practical placement at that school was not reasonable. As I mention elsewhere in these reasons, the onus of proof that the imposition of a term is reasonable lies with the party imposing it. That does not mean however that an Applicant who contends for an indirect discrimination case need not identify why it was that imposition of the term was not reasonable, and to set out in points of contention, and in any witness statements to be relied upon, in what respects it is not reasonable.

Treatment “on the basis of” a protected attribute – the causal element for direct discrimination

It is clear from what I have set out above, that s 10(1) of the AD Act requires that the Applicant establish that the Respondent has treated her or proposed to treat her in a discriminatory way “on the basis of” the relevant attribute. Section 10 of the AD Act provides that a person’s motive for discriminating is irrelevant.
The High Court in Australian Iron and Steel Pty Ltd v Banovic[1] was concerned with allegations of direct discrimination on the basis of sex, or gender. It was alleged that workers were retrenched because they had not been employed before a particular date. It was said that this amounted to discrimination on the basis of gender because the waiting period for employment with that employer was for a longer period for women than it was for men. Hence female workers were being retrenched because the male workers had in effect been employed longer, and before the relevant cut-off date. In the joint judgment of Justices Deane and Gaudron JJ it was held that:
... in the ascertainment of the true basis of an act or decision it may well be significant that there is some factor, other than the ground assigned, which is common to all who are adversely affected by that act or decision. In certain situations that common factor may well be seen to be the true basis of the act or the decision. And that may also be the case where some factor is identified as common to a significant proportion of those adversely affected.
Even if it could be said that a factor common to all or a significant proportion of those who were adversely affected by the decision of AIS to retrench by the “last on, first off” method was that they were women, a further finding that that was the true basis of the decision would be necessary to render [the equivalent to section 10] applicable .... There is no finding to that effect by the Tribunal.
[1](1989) 168 CLR 165 at 176-7.
Hence the court in Australian Iron and Steel Pty Ltd v Banovic concluded since the reason for retrenchment was the time at which employees were employed, and even though women were more affected by those retrenchments because they were more likely to have been employed later, there was no direct discrimination. The court went on to consider the alternative case of whether it was a case of indirect discrimination.
Shortly after Banovic was decided the High Court revisited the issue in Waters & Ors v Public Transport Corporation (1991) 103 ALR 513; [1991] HCA 49.
The complaints of discrimination there arose out of a direction by the Minister for Transport to the Public Transport Corporation to introduce changes to the public transport system. One of these changes was a new ticketing system for public transport involving travellers making a scratch mark on tickets. The other change involved the removal of conductors from some trams. The disabilities of the individual appellants made it difficult or impossible for them to use the scratch tickets. Some of them could not travel on trams which did not have conductors. The Board determined that the changes involved discrimination and ordered the Corporation to discontinue the changes.
In examining the extent to which a causal connection need be shown between the basis for the relevant act and alleged direct discrimination, members of the Court differed. Mason CJ and Gaudron J (Deane J agreeing) held under the heading “Section 17(1): does it require an intention or motive to discriminate?” at pages 520-521 as follows:
There is some force in the suggestion that the expressions “on the ground of the status” and “by reason of the private life” in s 17(1) look to an intention or motive on the part of the alleged discriminator that is related to the status or private life of the other person: see Department of Health v Arumugam [1988] VR 319, per Fullagar J at 327. However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose: Ontario Human Rights Commission v Simpsons-Sears Ltd, at 547; see also Street, at CLR 487, 566. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, “to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status”. It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s 17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations. A material difference in treatment that is so based sufficiently satisfies the notions of “on the ground of” and “by reason of”.
A similar view was adopted by the House of Lords in R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 in relation to section 1(1)(a) of the Sex Discrimination Act (UK) which proscribed less favourable treatment on the ground of sex. Lord Goff of Chieveley (with whom the other members of the House agreed) said (at 1194): “The intention or motive of the defendant to discriminate… is not a necessary condition of liability”.
His Lordship noted (at 1194) that, if intention or motive were relevant:
…it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy. In the present case, whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys
(See also the discussion by Deane and Gaudron JJ in Banovic, at CLR 176–7.)
McHugh J differed with this approach, distinguishing between the tests to be applied as to motive, intent and causation depending on whether the discrimination was direct or indirect. He said in Waters v Public Transport Corporation (1991) 103 ALR 513 at 552-553:
The words “on the ground of the status or by reason of the private life of the other person” in s 17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against. I am unable to accept the statement of Lord Goff of Chieveley in R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 at 1193–4, and the statements of Deane and Gaudron JJ (at CLR 176-7) in Banovic concerning intention or motive to discriminate if they are intended to suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator (the discriminator) be actuated by status or private life in a provision such as s 17(1).
With great respect to Deane and Gaudron JJ, I think that the examples given by them in Banovic as to intention or motive not being a necessary condition of liability are cases which are caught by the concept of indirect discrimination which fall within section 17(5). The words “on the ground of” and “by reason of” require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act (the victim). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did. Of course, in determining whether a person has been treated differently “on the ground of” status or private life, the Board is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then “the ground of” the act of the discriminator was the status or private life of the victim: see Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61, per Mahoney JA at 66. But if the discriminator would have acted in the way in which he or she did, irrespective of the factor of status or private life, then the discriminator has not acted “on the ground of the status or by reason of the private life” of the victim. Likewise, if the discriminator genuinely acts on a non-discriminatory ground, then he or she does not act on the ground of status or private life even though the effect of the act may impact differently on those with a different status or private life. Thus, in Director-General of Education v Breen (1982) 2 IR 93, the Court of Appeal of New South Wales held that the Director-General had not acted “on the ground of sex” in selecting principals for non-secondary schools from a primary school promotions list rather than an infant’s school promotions list even though the use of the former list favoured male teachers. Only 1.5 per cent of teachers on the infants list were male but on the primary schools list 39 per cent of the teachers were male. Absent an intention to use the primary list to disadvantage females, discrimination in a case such as Breen can be established only by relying on a provision similar to section 17(5). At the relevant time, however, the Act had no such equivalent.
The effect of the introductory words of section 17(5), however, is that an act which falls within that sub- section is deemed for the purpose of section 17(1) to constitute treating “the other person less favourably than the first-mentioned person treats or would treat a person of a different status or with a different private life”. If the alleged discriminator has in fact treated the other person “less favourably”, in the circumstances specified in section 17(1), then discrimination is made out and section 17(5) is irrelevant. Section 17(5), therefore, operates only in situations where section 17(1) is inapplicable. The hypothesis upon which section 17(5) is built is that the alleged discriminator has not in fact treated the other person “less favourably”. Yet discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different. Thus, both direct and indirect discrimination involve the notion of one person being treated “less favourably” than another.
How then can a case of indirect discrimination come within section 17(5) and yet not come within section 17(1)? The answer is that in section 17(5) “discrimination” is defined in an artificial sense and is dealing with situations where a requirement or condition is imposed equally but has an adverse or more adverse effect on persons of a particular status or with a different private life. A person may be guilty of discrimination under section 17(5) although he or she was not actuated in any way by status or private life.

All that is alleged here on that topic is the making of the statement, or giving advice one might characterise it, about whether with the types of responsibilities she had, she could effectively do the job of a teacher. She was not refused anything. She was not told she would be refused adjustments to allow here to teach and she was not refused any such adjustments by the Fourth Respondent.
Nor is there anything whatsoever advanced on the Applicant’s case, in evidence or plausibly in any submission, to show an arguable basis for contending here that the basis for the alleged decision here to say what was allegedly said to her by the Fourth Respondent and vicariously by the Fourth Respondent about considering her position as a future teacher “if you graduate” (as she contends for, noting that the relevant conversation is denied) was the relevant attribute (her family responsibilities) in the sense contemplated by s 10 of the Act.
The claim against the Third and Fourth Respondents therefore based upon direct discrimination must fail even on the version of it most favourable to the Applicant.
The claim against them is struck out and the application against them dismissed.

The abuse of process argument

In support of the arguments that the application is an abuse of process the Respondents refer to the decision Julian Moti v R (2011) 283 ALR 393. They contend that proceedings which comprise an abuse of process have been described as including those that are “seriously or unfairly burdensome, prejudicial or damaging” or that produce “serious and unjustified trouble and harassment” (see Julian Moti v R (2011) 283 ALR 393 at [10] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). It should be noted that this is a mere example of how the conduct of a proceeding might constitute an abuse of process. The submissions for the Respondents on this issue were not particularly focused, nor did they deal with a considerable body of authority which was against their arguments.
All courts and this Tribunal have an inherent or implied jurisdiction to prevent their processes from being used as an instrument of oppression. Courts are able to modify their procedures to avoid such prejudice and take any steps that are necessary to prevent an abuse of process (Clyne v New South Wales Bar Association (1960) 104 CLR 186; Barton v R (1980) 147 CLR 75; Connelly v DPP [1964] AC 1254; Neill v County Court of Victoria [2003] VSC 328).
In Clark v R [2016] VSCA 96 at [14], the Court of Appeal explained:
The concept of abuse of process extends to the use of the court’s processes in a way that is inconsistent with two fundamental requirements arising in criminal proceedings. These are, first, that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that unless the court protects its ability to function in that way, its failure will lead to an erosion of public confidence. The court’s processes will be seen as lending themselves to oppression and injustice.
The concept of abuse of process overlaps with the obligation of a court to provide a fair trial. The content of these obligations cannot, however, be stated exhaustively or analytically. These obligations rely on intuitive judgments formed by experience (Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46; Ridgeway v R (1995) 184 CLR 19; [1995] HCA 66).
The obligation on a court is to provide a fair trial in accordance with law. Legislation may vary existing trial procedures, the elements of offences and the laws of evidence. Subject to issues of constitutional validity and interpretive principles concerning modification of existing common law principles, courts must apply the law set by Parliament. Therefore, the right to a fair trial may be modified by Parliament and courts are extremely reluctant to consider arguments that a court must grant a stay where legislative amendment interferes with the fairness of a trial (see Grills v R [1998] HCATrans 351; R v PJE, Unreported, NSWCCA, 9 October 1995).
Courts have noted that the obligation is not to provide a perfect trial, but to provide a trial as fair as possible. A perfect trial is an unrealistic aspiration (Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46; R v Glennon (1992) 173 CLR 592; [1992] HCA 16).
Where a proceeding has been regularly commenced, courts have an obligation to exercise their jurisdiction and determine the matter. A court should not lightly refuse to exercise its jurisdiction. However, the right to a fair trial is paramount and if a proceeding cannot be conducted fairly, a court may grant a permanent stay (Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46; Barton v R (1980) 147 CLR 75; Attorney-General (NSW) v Watson (1987) 20 Leg Rep SL 1).
There is little to suggest that what the Applicant has done means that two well legally represented, inferentially well-funded public organisations have been treated in a way which is “seriously or unfairly burdensome, prejudicial or damaging” or has produced “serious and unjustified trouble and harassment”.
The Respondents contend that it is relevant to that assessment to see whether the proceedings have been conducted in a manner consistent with s 3 of the QCAT Act. By sections 3 and 4 of the QCAT Act the Tribunal is to conduct proceedings in a manner which is accessible , fair,just, economical informal and quick and it must ensure that proceedings are conducted in a manner which minimises costs to parties, and with as little formality and technicality as a proper consideration of the matter permits.
The Respondents contend that the proceeding is an abuse of process, “including” because the Applicant's case remains fundamentally deficient, and the Respondents have been put to unnecessary expense and time in attempting to extract proper particulars and prepare a meaningful response. That the Respondents have been put to unnecessary expense and time in attempting to extract proper particulars and prepare a meaningful response is not the test for whether a matter is an abuse of process.
The Respondents also contend that the proceeding is an abuse of process because there have been extensive failures by the Applicant to comply with orders and there have been extensive failures by the Applicant to comply with the Tribunal's directions, meaning that the matter has continued for an unnecessarily long period, and the First and Second Respondents have been put to unnecessary expense in defending the matter.
The Respondents contend that there have been multiple failures by the Applicant to comply with directions made by QCAT, despite being granted indulgences and extensions of time, including:
(a)the directions of 26 February 2018 and 8 August 2018, regarding the filing of the SOC and amending the SOC (resulting in the original strike out application);
(b)the directions of 16 April 2019, regarding the filing of the ASOC, and then a late application by the Applicant for an extension of time;
(c)the directions of 10 June 2019, regarding the filing of the ASOC, which was complied with late by the filing of the ASOC on 7 July 2019;
(d)the directions of 10 June 2019, regarding the filing of witness statements, which was followed by a late application from the Applicant for an extension of time;
(e)the directions of 5 September 2019, providing an extension to the Applicant for the filing of witness statements, which was then followed by a late application from the Applicant for a further extension of time and request to place the proceeding in abeyance until 16 December 2019;
(f)the directions made on 28 October 2019, providing an extension of time to the Applicant to file her material to 22 November 2019;
(g)the directions of 29 November 2019 that the Applicant file her witness statements by 20 December 2019 failing which the matter may be struck out by QCAT, which was still complied with late by the Applicant.
The Respondents also contend that the proceeding is an abuse of process because the Applicant's claim is otherwise misconceived, and the Applicant continues to press matters not supported by the evidence. The Respondents also contend that the proceeding is an abuse of process because the additional matters raised by the Applicant in her submissions are similarly misconceived, false and directly contradictory to the evidence. One does not conduct a trial or assess the merits overall of a case and the strength of the evidence to decide if it is an abuse of process. I reject these contentions.
The Respondents also contend that the proceeding is an abuse of process because the Applicant has failed to take any steps to mitigate her loss. That submission was rejected by Member Cranwell last year. It is not an indicator, even if established on the evidence, that the proceeding is an abuse of process. It may diminish the sum she recovers, if any, by way of compensation.
The Respondents also contend that this is not otherwise a situation where the Applicant will be denied the opportunity to articulate her case if it is struck out. The parties have filed their material and articulated their respective positions. That may be true. She has had many opportunities to articulate her case. What she will be denied is an opportunity to elicit the evidence in support of her contentions and seek to persuade a member of this tribunal of the merits of her case.
The Respondents contend that the evidence is clear: it cannot substantiate any finding that the First and Second Respondents engaged in discrimination towards the Applicant. The Respondents contend that to the contrary, the evidentiary material before the Tribunal demonstrates there was no discrimination as pleaded by the Applicant or otherwise. That invites yet another finding on the merits. As I said earlier, one does not conduct a trial or assess the merits overall of a case and the strength of the evidence to decide if it is an abuse of process. I reject these contentions.
The Respondents contend that “the conduct of this matter by the Applicant is the antithesis of the requirement in s 3 of the QCAT Act and should be struck out as an abuse of process”. I do not accept that proposition.
There can be little doubt that the Applicant has been given numerous opportunities to articulate in an understandable and reasonably arguable way the case which she seeks to bring against the four individual Respondents. The Applicant is clearly not a person lacking in intelligence. In 2009 she completed a Bachelor of Arts degree and commenced an Honours program in relation to that degree. In 2010 she enrolled in a program to receive her PhD. She completed her Honours degree and whilst studying for her PhD took leave to finish her teaching degree. There is no suggestion however that she has any legal qualifications and it is obvious from the history of the matter, that she has conducted this application without the assistance of legal advice as to the proper way in which to articulate claims of discriminatory conduct.
The matter has been before the Tribunal and orders made by Tribunal Members on at least twenty occasions since the proceeding was commenced. Many of those orders simply provide for directions for the conduct of the proceeding to have it ready for trial. On 16 April 2019, and again on 10 June 2019, Member Traves made directions which ought properly have taken the matter to a trial, and made orders that the matter would be listed for a hearing for two days later in 2019, with the dates yet to be allocated. After the unsuccessful strike out application which was filed on 20 September 2018 was determined adversely to the Respondents in February 2019, the Tribunal had cause on three occasions to make specific orders that if she failed to comply with a particular direction or other which the Tribunal had made and has not provided a reasonable excuse for non-compliance within s 48 of the QCAT Act, that the application would be dismissed without further notice to the parties. Orders to that effect were made on 5 September 2018, 28 October 2019 and 29 November 2019. In each case the failure which was referenced was a failure by her to file her witness statements, and that of any witnesses that she proposed to rely upon at the trial, as well as any documents to which that evidence referred. On 3 January 2020, Member Traves ordered that the Applicant file in the Tribunal copies of two proposed witness statements “if any” from two proposed witnesses that she wished to call. No such witness statements have been filed. The outcome of that non-compliance is that in the event that there is a trial, she is unlikely to be able to rely upon evidence from those proposed witnesses unless leave is given to adduce oral evidence from them without the benefit of a statement.
Notwithstanding that there had been periodic non-compliances with directions to progress the matter to trial, it seems to me that the material which has been filed would indicate that the matter is in fact ready for a trial and that a trial could be conducted at a time convenient to the parties.
There is no affidavit from any of the Respondents which has identified that there is any particular, or even general, prejudice which has flowed from any of these non-compliances. Although this matter has gone on for an inordinately long period, having regard to the fact that the events to which it relates are now more than four and a half years old, I see no basis to conclude that the Applicant’s conduct of the matter has been such as to characterise it as an abuse of process.
There are very significant problems with the poorly articulated way in which the Applicant has sought to put her case in her Statement of Contentions. But as is evident from a reading of the submissions relied upon the by the First and Second Respondents in bringing the strike out application, they are able to articulate what the claim against them is; they just cannot see how it has any prospects of success. I do not accept that the Respondents will be thwarted in receiving a fair trial of the proceeding should it occur.
In my view, the conduct of the Applicant has not been such as to undermine the capacity of the Respondents to meet it at a trial and there is no evident significant prejudice which has flowed to them.
The orders that I make are:
1. The application by the First Respondent to strike out and dismiss the application against him is upheld, and the Applicant’s application against him is dismissed pursuant to s 47 of the QCAT Act.
2. The application by the Third and Fourth Respondents to strike out and dismiss the application against them is upheld, and the Applicant’s application against them is dismissed pursuant to s 47 of the QCAT Act.
3. The application by the Second Respondent to strike out and dismiss the application against it founded upon claims of direct discrimination is upheld and the Applicant’s application against it on that ground is dismissed pursuant to s 47 of the QCAT Act.
4.     In respect of the balance of the claims by the Applicant against the Second Respondent arising solely in respect of alleged indirect discrimination against her by the Second Respondent, the application by the Second Respondent to strike out or dismiss those claims is refused save in respect of any claims for indirect discrimination which relate to claims of discriminatory conduct which predate 9 March 2016.
5. Insofar as the Applicant brings any claims for indirect discrimination against the Second Respondent or discriminatory conduct which predates 9 March 2016, that application is dismissed pursuant to s 47 of the QCAT Act.
6.     The Applicant is directed to file and serve on the Second Respondent within 21 days of the delivery of these Reasons a new points of contention document which coherently identifies the material facts relied upon to establish conduct allegedly constituting indirect discrimination against her by the Second Respondent on or after 9 March 2016 and sets out the legal foundation for such a claim and the relief or remedies sought in respect of it.
7.     The parties have liberty to apply in respect of any other consequential or other orders which might be required to be made.