Lyons v State of Queensland - [2012] QCAT 569

CITATION:

Lyons v State of Queensland [2012] QCAT 569

PARTIES:	Gaye Prudence Lyons (Applicant)
v
State of Queensland (Respondent)

APPLICATION NUMBER:

ADL075-12

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

7 November 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

Application to issue a notice to produce is dismissed.

CATCHWORDS:

ANTI-DISCRIMINATION – where application for the production of documents to the tribunal – where objection to application as a substitute for disclosure

Queensland Civil and Administrative Tribunal Act 2009, ss 62, 97

Witness v Marsden (2000) 49 NSWLR 429

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Gaye Prudence Lyons represented by Phillip French, Australian Centre for Disability Law
RESPONDENT:	State of Queensland represented by G R Cooper, Crown Law

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Ms Lyons has referred to QCAT a complaint that she has been unlawfully discriminated against by the State of Queensland when she was excused from jury duty because she is deaf and required an Auslan interpreter in order to perform jury duty. Ms Lyons complains that she has been unlawfully discriminated against on the basis of an impairment in the provision of services to her and by the administration of state laws and programs contrary to the Anti-Discrimination Act 1991.
In preparing her case before QCAT, Ms Lyons has applied for a notice to be issued by QCAT to the Deputy Registrar, Ipswich District Court to produce to the tribunal the following documents:
a) Any documentary record whatsoever of communications, whether electronic or in hard-copy, between the Deputy Registrar, Ipswich District Court, (including any such communication on behalf of the Deputy Registrar, Ipswich District Court) and Gaye Lyons during the period 1 January 2012 to 9 October 2012; and
b) Any documentary record whatsoever of communications, whether electronic or in hard-copy, between Katrina Britton, Ipswich District Court, (including any such communication on behalf of the Deputy Registrar, Ipswich District Court) and the Sheriff of Queensland (and any person acting on behalf of the Sheriff of Queensland) during the period 1 January 2012 to 9 October 2012 in relation to Gaye Lyons and persons who are deaf and jury duty generally.
Ms Lyons also applied for a notice to be issued by QCAT to the Sheriff of Queensland to produce to the tribunal the following documents:
a)    Any policy, guideline, direction or other document whatsoever of or pertaining to the Sheriff of Queensland, whether electronic or hard-copy, relating to deaf persons and jury duty that was operative during the period 9 November 1995 to 9 October 2012; and
b)    Any documentary record whatsoever of communications, whether electronic or in hard-copy, between the Sheriff of Queensland and any person acting on behalf of the Sheriff of Queensland and the Deputy Registrar of Ipswich District Court and any person acting on behalf of the Deputy Registrar of Ipswich District Court during the period 1 January 2012 to 9 October 2012 in relation to Gaye Lyons and persons who are deaf and jury duty generally; and
c)    Any documentary record whatsoever, whether electronic or in hard-copy, and whether deliberative or determinative (including any draft document) relating to the purported performance of the Sheriff’s functions under subsection 36(2)(b) and or section 24 of the Jury Act 1995 (Qld) in relation to Gaye Lyons and persons who are deaf and jury duty generally in the period 9 November 1995 up to 9 October 2012.
These applications are opposed by the State of Queensland on the grounds that the applications are an abuse of process because they seek, in effect, discovery against non-parties to this proceeding. The State argues that the QCAT Act has specific provisions for the production of documents by parties and non-parties and that those specific provisions come with safeguards to ensure that they are not used as an abuse of process.
Section 97 of the QCAT Act which provides power to QCAT to issue notices for the production of documents is found in division 5 of Part 6 dealing with the conduct of hearings. A notice issued under section 97 is designed to ensure that a stated document is produced at a hearing so that all relevant material is disclosed to the tribunal to enable it to decide the proceeding. The hearing date set in this proceeding is in June 2013 however the applications seek the production of documents in November 2012.
The applicant has explained that access to the requested documents is reasonably necessary for Ms Lyons to reply to the contentions of the State. It is clear that the notices to produce are not being sought for the prime purpose of disclosing to the tribunal relevant information to enable it to decide the proceeding but to assist Ms Lyons to prepare her case. Although it has not been specified in the application, I expect that Ms Lyons will ask the tribunal for leave to access and to copy the documents produced to the tribunal.
The applications made under section 97 of the QCAT Act are in my view misguided and seek in reality an order for disclosure of documents from the State. The persons against whom the notices are sought are part of the fabric of the State in its operation of the justice system in Queensland. I am not persuaded that at this stage of the proceedings that there is utility in seeking production of documents to the tribunal some seven months out from the date of hearing. I adopt the comments made by Heydon JA (as he then was) in Witness v Marsden that a notice of this type should not be used as a substitute for discovery.[1]
[1] (2000) 49 NSWLR 429 at 440.
It is appropriate to dismiss the applications on the basis that notices under section 97 should not be used as a vehicle for disclosure of documents by parties. It is clear that what Ms Lyons seeks is for the State to disclose documents to her that she believes may exist and which may assist in the preparation of her case. The notices do not refer to stated documents as required by section 97 but rather to documents belonging to certain categories. Those documents may or may not exist.
A party who has not been able to obtain copies of documents relevant to the proceeding from another party can apply for an order under section 62 of the QCAT Act. Unlike the civil courts, QCAT does not have specific rules requiring disclosure of documents by parties as a matter of course in its proceedings. The tribunal is required to act with as little formality and technicality as a proper consideration of a matter permits.[2]
[2] Section 28(3)(d) of the QCAT Act.
The tribunal expects parties in anti-discrimination matters to respond voluntarily to requests for copies of relevant documents. The tribunal does not generally make orders for disclosure of documents as such a course rarely achieves the tribunal’s statutory objects of dealing with matters in a way that is economical, informal and quick. Documents that are to be relied on as evidence should in most cases be produced into evidence attached to statements of a party or witness and in this way be available to the tribunal for its deliberations. Filing and exchanging copies of documents as a matter of course in a disclosure process incurs unnecessary costs for parties and diverts attention from the essential task of parties endeavouring to resolve their dispute as economically and fairly as possible.
I note that the State has suggested that an order should be made for the parties to make formal disclosure of documents relevant to the factual issues on the proceeding. I am not prepared to depart from the usual process described above and therefore I will not make such an order at the present time.
I would expect that the State makes reasonable endeavours to ascertain if the documents of the type referred to by Ms Lyons in her applications exist. If documents within the categories do exist, and if the State objects to providing copies to Ms Lyons of all or any of the ascertained documents, then the parties can at that stage seek a direction from QCAT for the release of copies of the actual documents in dispute to Ms Lyons. Such an application will then focus on documents that exist and not use up resources discussing the release of documents that may not even be in existence.