Hickson-Jamieson v Young
[2019] QCAT 416
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Hickson-Jamieson v Young & Ors [2019] QCAT 416
PARTIES:
BREE HICKSON-JAMIESON
(applicant)v KENNETH YOUNG
(first respondent)
UNIVERSITY OF SUNSHINE COAST
(second respondent)
ROS CAPENESS
(third respondent)
QUEENSLAND COLLEGE OF TEACHERS
(fourth respondent)APPLICATION NO:
ADL010-18
MATTER TYPE:
Anti-discrimination matters
DELIVERED ON:
26 February 2019
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Cranwell
ORDERS:
The applications to strike out the proceedings filed on 20 September 2018 are dismissed.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – difficulties of self-represented in articulating case – delay
Anti-Discrimination Act 1991 (Qld), s 209
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 47, s 48REPRESENTATION:
Applicant:
Self-represented
First and Second Respondents:
Third and Fourth Respondents:
Clayton Utz
Crown Law
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
Background
Ms Hickson-Jamieson has been enrolled in a Graduate Diploma in Education (Secondary) at the University of the Sunshine Coast (‘the University’). She is the mother of two children, one of which suffers from a seizure disorder and an intellectual impairment.
As part of her course requirements, she was required to complete a period of supervised professional experience in a placement school. This period of supervised professional experience was also required to meet the Queensland College of Teachers (‘the College’) accreditation requirements.
Ms Hickson-Jamieson sought a number of adjustments in respect of her placement based on her circumstances, which it appears were not able to be accommodated. Ms Hickson-Jamieson claims she was discriminated against by the University and the College, as well as specified employees.
Complaint and proceedings before the Tribunal
Ms Hickson-Jamieson made a complaint to the Anti-Discrimination Commission Queensland on 9 March 2017, and a referral to the Tribunal was subsequently received on 12 February 2018.
On 20 September 2018, Dr Young and the University filed an application for miscellaneous matters in which they sought that the referral be struck out. Alternatively, they sought that they be removed as respondents. In support of this application, they lodged a submission prepared by Clayton Utz which runs to some 111 paragraphs (‘the Clayton Utz submission’).
On the same day, Ms Capeness and the Queensland College of Teachers filed an application for miscellaneous matters in which they sought that the referral be struck out. Alternatively, they sought that they be removed as respondents. They adopted paragraphs 1 to 100 of the Clayton Utz submission.
The strike out application
The Clayton Utz submission sought to have the proceeding struck out pursuant to s 47 and 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). Those sections relevantly provide:
47 Dismissing, striking out or deciding if unjustified proceeding or part
(1) This section applies if the tribunal considers a proceeding or a part of a proceeding is—
(a) frivolous, vexatious or misconceived; or
(b) lacking in substance; or
(c) otherwise an abuse of process.
…
48 Dismissing, striking out or deciding if party causing disadvantage
(1) This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by—
(a) not complying with a tribunal order or direction without reasonable excuse; or
(b) not complying with this Act, an enabling Act or the rules; or
(c) asking for an adjournment as a result of conduct mentioned in paragraph (a) or (b); or
(d) causing an adjournment; or
(e) attempting to deceive another party or the tribunal; or
(f) vexatiously conducting the proceeding; or
(g) failing to attend mediation or the hearing of the proceeding without reasonable excuse.
The Clayton Utz submission alleges that Ms Hickson-Jamieson has abused the processes of the Tribunal, failed to comply with directions, caused delay and unfairly conducted the proceedings to the detriment of the respondents.
The grounds relied on by the respondents were summarised in the Clayton Utz submission at paragraph 5 as follows:
The conduct of the Applicant on which the Respondents rely, is set out further below, and includes:
(a) the Applicant's failure to comply with Directions dated 26 February 2018 and 8 August 2018;
(b) the Applicant's failure to provide particulars of the Statement of Contentions ("Statement") so as to disclose an alleged breach of the Anti-Discrimination Act 1991 on the part of the Respondents, despite being on notice of valid concerns with the Statement, from correspondence dated 3 April 2018 and despite being given detailed explanation by the Respondents as to the concerns which they required to be addressed by correspondence dated 22 August 2018;
(c) the Applicant's failure to particularise the discrimination alleged in the Statement is unreasonable and unfairly disadvantages the Respondents as the Respondents are unable to understand the case they have to answer;
(d) the Applicant's failure to provide a Form 35 seeking to amend her complaint to address matters out of time. despite acknowledging her obligation and intention to do so in her letter of 3 August 2018 and despite being on notice since 3 April 2018 of the Respondents concerns regarding matters out of time;
(e) the Applicant's delay in engaging and failure to engage with the Respondents including:
(i) the Applicant's failure to engage with the Respondents in April and May 2018 as to potential resolution of the proceeding, necessitating the Respondents making application to the Tribunal dated 16 May 2018;
(ii) the Applicant's failure to engage with the Respondents as to potential resolution of the matter after Directions dated 27 June 2018 necessitating the Respondents making application to the Tribunal dated 31 July 2018;
(f) the Applicant's conduct of the proceeding is unreasonable and misconceived because the Applicant's own conduct resulted in her withdrawal from EDU616 Teaching Practice 2 ("EOU616"), as opposed to an act on the part of the Respondents, including by:
(i) the Applicant's failure to articulate the reasons and nature of the accommodation she sought for EDU616 and how this accommodation could meet OCT accreditation requirements; and
(ii) the Applicant's failure to respond to the Respondents when they asked her to articulate the grounds for the accommodation being sought, and what accommodation she alleged she needed; ·
(g) the Applicant's conduct of the proceeding is unreasonable, unfair and oppressive as she has failed to mitigate her position and failed to reasonably take a step to attempt to resolve or progress the matter, including:
(i) the Applicant's failure to respond to the Respondents' letter of 28 November 2017;
(ii) the Applicant's failure to respond to to an offer made by the Respondents, notwithstanding a Tribunal direction that the parties were to hold discussions following a Conciliation Conference;
(iii) the Applicant's failure to provide the Form 35 as acknowledged in her letter dated 3 August 2018; and
(iv) the Applicant's failure to provide an amended Statement of Contention, as required by Directions dated 8 August 2018.
Ms Hickson-Jamieson’s conduct
On 26 February 2018, the Tribunal directed Ms Hickson-Jamieson to file a statement of contentions by 21 March 2018, setting out:
(a) What attribute is the basis for the complaint;
(b) Who or what is the comparator;
i. If the comparator is a real person, who that person is and why they are an appropriate comparator.
ii. If the comparator is hypothetical, a description of that person.
(c) Whether the discrimination is direct, indirect or both,
i. If the complaint is of direct discrimination, how Bree Hickson-Jamieson was treated less favourably,
ii. If the complaint is of indirect discrimination, what was the term that Bree Hickson-Jamieson could not comply with, or was more difficult to comply with, why it was more difficult to comply with that term, how it is that a higher proportion of people without the attribute can comply with the term, and why the term was not reasonable,
(d) What orders Bree Hickson-Jamieson wants the Tribunal to make,
Ms Hickson-Jamieson filed a statement of contentions with the Tribunal on 21 March 2018.
Clayton Utz wrote a detailed letter to Ms Hickson-Jamieson on 3 April 2018 setting out the concerns it had in relation to her statement of contentions. Ms Hickson-Jamieson responded to that letter on 3 August 2018 in an attempt to address those concerns. This correspondence is best encapsulated by Clayton Utz enumerating as one of its concerns “the lack of specificity of the allegations”, and Ms Hickson-Jamieson responding “it is unclear what specificity is being sought”.
On 8 August 2018, the Tribunal directed Ms Hickson-Jamieson to file an amended statement of contentions by 23 August 2018. She did this on 23 August 2018.
It is clear from my review of Ms Hickson-Jamieson’s statement and amended statement of contentions that those documents are not in a form that would be produced by a large national law firm. It is also clear from those documents that Ms Hickson-Jamieson’s has failed to understand a number of the concepts identified in the Tribunal’s directions and contained in the Anti-Discrimination Act 1991 (Qld) (‘the ADA’).
Nevertheless, Ms Hickson-Jamieson has set out in a tolerably clear manner the factual basis for her complaint. Section 28 of the QCAT Act requires that the Tribunal must:
(a) “act fairly and according to the substantial merits of the case” (subsection (2)); and
(b) “act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit” (paragraph (3)(d)).
If self-represented litigants were required to demonstrate an understanding of complex legal concepts as the price of admission to a hearing before the Tribunal, it may be that the Tribunal would conduct few hearings involving self-represented litigants. It is unrealistic to expect a self-represented litigant to approach litigation in the same manner as a large national law firm.
I am satisfied that Ms Hickson-Jamieson has articulated the substance of her claim as best she can within the limits of her understanding. Issues relating to the statement of contentions are essentially ones of pleading only. The Tribunal is not a court, and does not have formal pleadings. While a properly formulated statement of contentions may assist the parties in the preparation of their evidence, the lack of such a statement is not an obstacle to the conduct of a hearing. I note that directions have yet to be made relating to the filing of evidence, and I do not have the benefit of the parties’ evidence in considering these applications.
I am therefore not satisfied that Ms Hickson-Jamieson has abused the processes of the Tribunal or acted in a way that unnecessarily disadvantaged the respondents in relation to her statement of contentions.
Delay
In terms of delay, a review of the file indicates that there have been a number of delays in this matter. The first of these delays was in fact at the instigation of the respondents:
(a)On 26 February 2018, the Tribunal directed the respondents to file a response to Ms Hickson-Jamieson’s statement of contentions by 13 April 2018.
(b)On 23 April 2018, some 10 days after the due date for the response, Clayton Utz on behalf of Dr Young and the University filed an application seeking an extension of time for the respondents to file a response to the statement of contentions.
The evidence before me indicates that Clayton Utz was provided with a medical certificate in respect of Ms Hickson-Jamieson dated 2 May 2018, which stated:[1]
Ms Bree Hickson-Jamieson has an exacerbation of a medical condition which has prevented her being able to attend to her current legal affairs. Bree is currently having treatment for this and I would appreciate it if you could allow her an extension of time she has to put in her response to the current legal proceedings.
[1]Affidavit of William Swain Roberts filed on 20 September 2018, 108.
The evidence also indicates that Clayton Utz was advised by Ms Hickson-Jamieson that they had sent correspondence to her to an incorrect postal address.[2]
[2]Ibid, 109.
I am not satisfied that the delays in this matter are outside of the normal range of delays in a case of this nature. I am also not satisfied that all of the delays were caused by Ms Hickson-Jamieson, or that such delays as were caused by her are unexplained.
I am therefore not satisfied that Ms Hickson-Jamieson has abused the processes of the Tribunal or acted in a way that unnecessarily disadvantaged the respondents in relation to the issue of delay.
Other issues
The Clayton Utz submission also raises issues in relation to Ms Hickson-Jamieson’s failure to mitigate her position, and her failure to amend her complaint to address matters out of time.
It is trite to state that any failure to mitigate her position on the part of Ms Hickson-Jamieson may be relevant to a consideration of the orders set out in s 209 of the ADA in the event that the complaint is proven. Any failure by Ms Hickson-Jamieson to amend her complaint to address matters that are out of time has its own obvious consequences.
These are matters which the respondents are properly entitled to raise as the proceedings progress, but are not a basis for summary disposition of the proceedings.
Disposition
Irrespective of whether Ms Hickson-Jamieson is ultimately unsuccessful in the proceedings before the Tribunal, none of the grounds raised in the Clayton Utz submission are sufficient to deprive her of the opportunity to have her case heard and decided. It cannot be said that her case is so obviously lacking in merit that it should be struck out.
I do not have sufficient evidence before me to delineate between the University and the College their respective responsibilities in relation to placements. In particular, I have no material from Ms Capeness and the College, save for their adoption of the Clayton Utz submission. In these circumstances, I am not satisfied that either group of respondents should be removed.
The strike out applications filed on 20 September 2018 are dismissed.
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