JVM v Brisbane City Council - [2024] QCAT 578

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

JVM v Brisbane City Council & Ors [2024] QCAT 578

PARTIES:

JVM

(applicant)

v

BRISBANE CITY COUNCIL
(FIRST RESPONDENT)

MARK PIERCE
(SECOND RESPONDENT)

JULIE STEVENSON
(THIRD RESPONDENT)

DAVID SIMONS

(fourth respondent)

APPLICATION NO/S:

ADL018-23

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

17 December 2024

HEARD AT:

Brisbane

DECISION OF:

Acting Member Dalling

ORDERS:

1. The respondents provide a private written apology to JVM.

2. The first respondent; Brisbane City Council is ordered to pay to JVM, within 28 days of the date of these orders, the amount of $13,847.60 as compensation for the loss or damage caused by contravention of s 101 of the Anti-Discrimination Act 1991 (Qld).

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION –– GROUNDS OF DISCRIMINATION – DISABILITY OR IMPAIRMENT – where Applicant has significant disabilities – whether Applicant has attribute

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – INDIRECT DISCRIMINATION – where complaint of indirect discrimination on basis of impairment – where applicant alleges inability to complete form – where applicant states need further time – whether term complained of is reasonable

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – HUMAN RIGHTS LEGISLATION – whether a public entity considered the complainant’s human rights when making decision – whether limits imposed on human rights are justified

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – common law and statutory presumption against retrospective application of legislation – where legislation was amended following referral of complaint

Acts Interpretation Act 1954 Qld), s 20

Anti-Discrimination Act1991 (Qld), s 7, s 11, s 46, s 101, s 106, s 204, s 205, s 206, s 208, s 209, Schedule 1
Information Privacy Act 2009 (Qld), s 43, s 96
Human Rights Act2019 (Qld), s 3, s 5, s 48, s 58, s 59
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 5, s 28, s 32, s 58
Respect at Work and Other Matters Amendment Act 2024 (Qld), s 2, s 47, s 51

Right to Information Act2009 (Qld), s 24, s 62, s 82, s 192

Explanatory Memorandum (first reading), Respect at Work and Other Matters Amendment Bill 2024 (Qld)
Explanatory Memorandum (third reading), Respect at Work and Other Matters Amendment Bill 2024 (Qld)

Respect at Work and Other Matters Amendment Bill 2024 (Qld)

Catholic Education Office v Clarke [2004] FCAFC 197

Edwards v Hillier & Educang Ltd t/as Forest Lake College [2006] QADT 34
Hickson-Jamieson v University of the Sunshine Coast [2023] QCAT 66
Howe v Qantas Airways Ltd [2004] FMCA 242
Hurst v State of Queensland [2006] FCAFC 100
Maxwell v Murphy (1957) 96 CLR 261
New South Wales v Amery (2006) 230 CLR 174
Waters v Public Transport Corporation (1991) 173 CLR 349

Wotton v Queensland (No 5) [2016] FCA 1457

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

Applicant:

Self-represented

Respondents:

M Lalovic, Wotton Kearney

REASONS FOR DECISION

Introduction

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QCAT 578
Decision Date: 17 December 2024

CaseChat Overview and Summary

In the matter of JVM v Brisbane City Council, the applicant, who has significant disabilities, brought a complaint against the Brisbane City Council regarding discrimination on the basis of impairment. The dispute was heard by the Queensland Civil and Administrative Tribunal (QCAT), which needed to determine whether the applicant had an attribute that amounted to a disability or impairment under the Anti-Discrimination Act 1991 (Qld), whether the terms complained of were reasonable and constituted indirect discrimination, and whether the respondent had considered the applicant’s human rights when making its decision. The applicant alleged that the Council had not provided reasonable adjustments to allow for completion of a form, and that the Council’s decision to not extend the deadline amounted to indirect discrimination on the basis of impairment.

The Tribunal considered whether the applicant had a disability or impairment, finding that the applicant did indeed have a disability or impairment as defined under the Act. The Tribunal then addressed the issue of indirect discrimination, determining that the Council had not provided reasonable adjustments, and that the term complained of was not reasonable. The Tribunal further found that the Council had not considered the applicant’s human rights when making its decision. Given that the legislation was amended following the referral of the complaint, the Tribunal had to consider the burden of proof that existed at the time the complaint was made. The Tribunal held that the former onus of proof provisions applied, which required the applicant to prove the contravention of the Act on the balance of probabilities.

The Tribunal ordered the Brisbane City Council to provide a private written apology to the applicant and to pay compensation in the amount of $13,847.60 within 28 days of the date of the orders. The Tribunal did not order any further action by the Council as it found that the Council had taken appropriate steps to address the issue and had ceased the conduct that was found to be discriminatory.

Orders

Orders of the court

1. The respondents provide a private written apology to JVM.

2. The first respondent; Brisbane City Council is ordered to pay to JVM, within 28 days of the date of these orders, the amount of $13,847.60 as compensation for the loss or damage caused by contravention of s 101 of the Anti-Discrimination Act 1991 (Qld).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 101 of the ADA provides:101 Discrimination in administration of State laws and programs areaA person who—(a)performs any function or exercises any power under State law or for the purposes of a State Government program; or(b)has any other responsibility for the administration of State law or the conduct of a State Government program;must not discriminate in—(c)the performance of the function; or(d)the exercise of the power; or(e)the carrying out of the responsibility. If an exemption applies, it is not unlawful to discriminate with respect to a matter that is otherwise prohibited.[7][7]Ibid, s 103. With respect to the burden of proof in this case, at the time of the referral of the complaint, the ADA requires that: (a)It is for JVM to prove, on the balance of probabilities, that the respondent contravened the ADA, subject to the requirements in ss 205 and 206 of the ADA;[8](b)In respect of the allegation of indirect discrimination, the respondent must prove, on the balance of probabilities, that a term complained of is reasonable;[9](c)Insofar as the respondent wishes to rely on an exemption, the respondent must prove, on the balance of probabilities, that it applies.[10][8]Ibid, s 204 as it appeared between commencement of the ADA and 30 November 2024.[9]Ibid, s 205 as it appeared between commencement of the ADA and 30 November 2024.[10]Ibid, s 206 as it appeared between commencement of the ADA and 30 November 2024. The question of the correct formulation of the burden of proof in this case faces some complexity because of the passing of amending legislation that leaves the matter in some doubt. On 1 December 2024, amendments arising from the Respect at Work and Other Matters Amendment Act 2024 (Qld) commenced. In particular, section 47A of the Respect at Work and Other Matters Amendment Act 2024 (Qld) amended ss 204 – 206 of the ADA. Section 51 of the Respect at Work and Other Matters Amendment Act 2024 (Qld) includes:285A Burden of proof for complaints about pre-commencement conduct (1) This section applies in relation to— (a) a complaint made before the commencement that, immediately before the commencement, had not been finally dealt with; or (b) a complaint made after the commencement in relation to an alleged contravention of the Act that happened before the commencement(2) New sections 204 and 205 do not apply in relation to the complaint. (3) Former sections 204 to 206 continue to apply in relation to the complaint. The effect of the proposed section 285A is that complaints not dealt with prior to commencement would continue under the previous onus of proof provisions. However, section 285A did not commence on 1 December 2024 and will commence on 1 July 2025.[11][11]Respect at Work and Other Matters Amendment Act 2024 (Qld), s 2(2)(a). In determining this matter based on the onus of proof that existed at the time the referral was made, I have considered the presumption at common law that retrospectivity of legislation does not apply.[12] This is further enshrined in section 20 of the Acts Interpretation Act 1954 (Qld). [12]Maxwell v Murphy (1957) 96 CLR 261.