MM v State of Queensland
[2014] QCAT 478
•8 October 2014
| CITATION: | MM v State of Queensland [2014] QCAT 478 |
| PARTIES: | MM (Applicant) |
| v | |
| State of Queensland (Respondent) |
| APPLICATION NUMBER: | ADL023-14 |
| PARTIES: | MD (Applicants) |
| v | |
| State of Queensland (Respondent) |
| APPLICATION NUMBER: | ADL024-14 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 2 October 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Roney QC |
| DELIVERED ON: | 8 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to s 177 of the Anti-Discrimination Act 1991, joining the Cerebral Palsy League of Queensland (ACN 009 942 269) as a Respondent to the Applicants’ complaints. 2. Pursuant to s 178 of the Anti-Discrimination Act 1991 amending the Applicants’ complaints so as to include: (a) A claim of impairment discrimination in the goods and services area as against the State of Queensland (Department of Housing and Public Works); (b) A claim of impairment discrimination in the goods and services area as against the State of Queensland (Department of Communities, Child Safety and Disability Services); (c) A claim of impairment discrimination in the areas of goods and services and administration of state laws and programs as against the Cerebral Palsy League of Queensland; (d) A claim of victimisation of the Applicants as against the State of Queensland and the Cerebral Palsy League of Queensland, as each claim is set out in the Applicants’ statements of contentions dated 10 July 2014. 3. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 and s 191 of the Anti-Discrimination Act 1991: (a) Prohibiting the publication of any information concerning the subject complaint of the Applicants to be identified; (b) Prohibiting the disclosure of the Applicants’ identities; (c) Ordering that any identification of the Applicants to this proceeding, subject to other order of the Tribunal, shall adopt the pseudonyms for the Applicants of MM and MD. 4. That the application for orders requiring the production of documents by the State of Queensland and the Cerebral Palsy League of Queensland be dismissed. 5. That in respect of the dates for the performance of the events set out in paragraphs 4 and 5 of the order of this Tribunal of 7 August 2014, that that order be varied, such that the date for the filing of amended contentions by the Applicants now occur by 4:00pm on 7 October 2014 and the date for responsive contentions by the State of Queensland as referred to in paragraph 5 of that order be varied to be required by 4:00pm on 28 October 2014. 6. Further, the Second Respondent, the Cerebral Palsy League of Queensland is directed to file two copies and send another copy to the Applicants of contentions in response setting out in numbered paragraphs any disputed facts, contending why the conduct complained of does not amount to a breach of the Anti-Discrimination Act 1991, setting out any defences in that Act that will be relied upon by the Second Respondent, commenting on the disclosed impacts and outcomes sought by the Applicants and stating what outcomes are sought by the Second Respondent, also by 4:00pm on 28 October 2014. 7. Each of the Applicants, and both Respondents are directed to provide disclosure pursuant to s 28 of the Queensland Civil and Administrative Tribunal Act 2009 by filing and serving a list of documents by 4:00pm on 11 November 2014 and for such inspection or provision of copies of that disclosure to occur before 18 November 2014. 8. The parties will participate in the compulsory conference as previously ordered. 9. Further, the Second Respondent shall file in the Tribunal two copies and must send to each of the other parties: (a) A statement from each witness to give evidence for the Second Respondent at the hearing, including experts; and (b) Any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement by 19 January 2015. |
| CATCHWORDS: | Joinder of parties – directions to allow amendment of complaints by the Tribunal even though not referred by the Anti-Discrimination Commission Queensland (ADCQ) Anti-Discrimination Act 1991 ss 129, 136, 139, 177, 178, 191 Wilson v Lawson [2008] QADT 27 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Phillip French, instructed by Australian Centre for Disability Law |
| FIRST RESPONDENT: | Mr C Murdoch instructed by Crown Law |
| SECOND RESPONDENT: | Mr A Ross, Sparke Helmore |
REASONS FOR DECISION
Background to the applications
The present complaints involve two separate proceedings by two separate Applicants, each of whom complains of discrimination on the basis of impairments. Hitherto the claim has been brought by each of them against the State of Queensland, and it is now sought to join as a further and Second Respondent, the Cerebral Palsy League of Queensland.
The Applicant MM contends that she has an impairment which is a protected attribute which caused her to learn more slowly than a person without the condition and which impaired her thought processes, perceptions of reality, emotions and judgment and that resulted in disturbed behaviour. She contends that she has intellectual impairment and a psychosocial impairment, being a mood disorder.
The Applicant MD contends that her impairment is a malfunction of her nervous system, a condition that results in her learning more slowly than a person without the condition and a condition that impairs a person’s thought processes, perceptions of reality, emotions and judgment and that results in disturbed behaviour. She suffers from cerebral palsy, has an intellectual impairment, has a psychosocial impairment, and a schizo-affective disorder.
The Applicants contend that by reason of their disabilities, they sought social housing and disability support services from the State of Queensland and as a condition of this the State required them to reside together and with another person in premises on Bribie Island and to receive Disability Support Services on the basis of pooled funding provided to the proposed Second Respondent, the Cerebral Palsy League of Queensland.
The Applicants contend that they were subjected to violence, or threats of violence and other objectionable conduct by this co-tenant. They claim to have made repeated requests for intervention or assistance from the State, and also from the proposed Second Respondent. Eventually, they contend, they were forced to leave the social housing and lost that housing as well as Disability Support. They contend on various grounds set out in their statement of contentions of 10 July 2014 that both the State of Queensland and the Cerebral Palsy League of Queensland engaged in discriminatory conduct on the basis of their impairments.
I have mentioned their impairments because in the context of the present applications, and critically in respect of an application which is sought to amend the complaint to bring claims of victimisation against both the existing Respondent and the proposed Respondent, it is contended that the explanation for the skeletal nature of the allegations which have hitherto been made in that context is because the impairments of the Applicants have prevented them from providing greater detail than they already have, without the aid of documentation.
There are four issues which are raised in the present application. First, an application to join the Cerebral Palsy League of Queensland as a Respondent. Secondly, applications to amend the complaint in part in respects not substantially objected to by the State of Queensland, but in respect of the complaints or proposed complaints relating to alleged victimisation they are vehemently opposed by both the State of Queensland and the proposed Second Respondent. Thirdly, there is an application for non-publication orders. These are not opposed, and I will make those orders at the conclusion of these reasons.
Fourthly, there are applications for production of documents by the State of Queensland and the Cerebral Palsy League of Queensland. In my view, because the pleadings have by no means closed; indeed they are about to be substantially amended by the Applicants, and there is yet to be any responsive statement of contentions by either the Respondent or the proposed Respondent, in my view the making of that application was premature. Further, given the extraordinarily broad range of documentation which the applications seek, it would have been my view in any event that had the applications not been premature that the categories of documents which were sought were too broad and rather suggestive of a fishing exercise.
As shall also be seen at the conclusion of these reasons, I have directed that the Applicants file amended contentions within a very short time, which will have already been passed by the time these reasons are handed down, and have given abridged dates for the filing of responsive statements of contentions by the Respondents to enable a compulsory conference, which has been set down to occur early next year, to proceed. I have directed that after the exchange of statements of contentions that disclosure occur. That ought provide the Applicants with documents which it can be said are relevant to the matters in issue. They will of course be able to be identified by the time disclosure occurs. I therefore intend to say no more about that aspect of the application.
Joinder
In relation to the application for joinder of the Cerebral Palsy League of Queensland, that application is made pursuant to s 42 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) and s 177 of the Anti-Discrimination Act 1991 (“ADA”). Section 177 makes clear that the Tribunal may join a person as a party and in terms operated without limiting the QCAT Act, s 42 allows the Tribunal to ‘join a person as a party to a proceeding whether or not the person was a complainant for, or a respondent to, the complaint to which the proceeding relates’.
Section 177 in its present form was introduced to the ADA in 2009. The explanatory notes for this provision provide as follows:
The inclusion of a new section 177 is to clarify that QCAT may join a third party to a proceeding where the person is not a complainant or respondent to the complaint to which the proceeding relates. Former decisions of the ADT have narrowly interpreted the former section 177 thus restricting the use of the section 177 to join third parties to a proceeding. The relevant decisions include Lundbergs v QSuper [2003] QADT 8, Mickelo v Kotlaro & Cellcom Pty Ltd t/a Melbourne Hotel [2004] QADT 31, H v T [2006] QADT 20 and Black and White (Quick Service) Taxis Ltd v Sailor & Anor [2008] QSC 77.
As that explanatory note and the plain language of the present section 177 make clear, Parliament clearly intended to give this Tribunal power to join a party to a proceeding with a view to overcoming a body of previous decisions of the Anti-Discrimination Tribunal, and one in the Supreme Court which had suggested that it was not possible, or that there were limited circumstances in which it was possible to join a new party. Clearly the intent of the amendment to s 177 was to ameliorate the effect of those decisions, and to facilitate that joinder to overcome the obstacles which had hitherto been presented.
I do not intend to set out here in detail precisely how the claims are proposed to be articulated against the Cerebral Palsy League of Queensland were it joined, however, subject to what I will say about the victimisation case, and these comments equally apply to the victimisation case which is sought to be brought against the State of Queensland, those claims are prima facie arguable and set out a sustainable basis for a claim.
An explanation is provided for how it came to be that the Cerebral Palsy League of Queensland was not initially joined to the proceeding. I accept that it is appropriate to join that entity as a Second Respondent rather than compel the Applicants to make a second complaint to the ADCQ with a view to having it referred here, so that the two matters are heard together. There is some doubt about whether such a claim would be within time, if it were required to be the subject of a specific complaint separately made now. Essentially the claims which are sought to be made against the Cerebral Palsy League of Queensland fall within the same factual and legal matrix as the claims which are made against the State. In my view, an appropriate exercise of discretion is to make it a party to the proceeding in accordance with s 177, and I so order.
Amendments sought to re-characterise the basis of the claim
The second question concerns various proposed amendments which are sought to be made to the complaint. In large part they are formal in the nature of seeking to extend the categories in which it is contended the impairment discrimination occurred. So for example, it is sought to specifically reference the fact that it will be a claim in the goods and services area and administration of State laws and programs.
There is a respectable line of authority, including Wilson v Lawson [2008] QADT 27 and Yohan v Qld Basketball Incorporated [2010] QCAT 459, which has acknowledged that when examining the complaint which is before this Tribunal, that the Tribunal is not bound by its characterisation by the ADCQ in the referral here. Hence, so long as the essential characteristics of the complaint as made to the ADCQ are identifiable, as it is referred, it is for this Tribunal to determine what the proper basis for the complaint is, and ultimately whether it is made out on the evidence. Hence, whether the character of the complaint is specifically identified, the body of the complaint whether it was in the goods and services area, or some other area, or whether or not the ADCQ in its referral of the complaint made reference to some or other area in which the alleged discriminatory conduct occurred, ought not prejudice a complainant here who seeks to amend to make clear that such is a basis for a claim, or indeed to amend to include such a claim.
There is no, or no substantial objection to my allowing those amendments to be made. They too amount to no more than a re-characterisation of the claim, rather than any significant or material alteration to its foundation, and I will permit those amendments to be made.
Amendments sought to bring new victimisation claims
The final category, and about which there is substantial controversy, is whether claims of victimisation against the State of Queensland and the Cerebral Palsy League of Queensland ought be permitted, with leave to amend to make them given.
I have already expressed reservations about the skeletal nature of those claims. As they stand though they are least arguable, particularly if they are fleshed out in more detail and/or if disclosure throws up documentation that helps to substantiate the evidentiary basis for the complaints. The question is whether s 178 of the ADA permits these amendments to be made.
There is argument about the scope of the power under s 178. Section 178 of the ADA provides as follows:
178 Complaints may be amended
(1) The tribunal may allow a complainant to amend a complaint.
(2) Subsection (1) applies even if the amendment concerns matters not included in the complaint.
This section was introduced in these terms by s 1339 of the Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009. The second reading speech for that compendium of amendments does not specifically refer to that clause of the Bill. The explanatory notes associated with the Bill for that Act explain that the purpose of the amendment was to overcome some perceived narrow interpretation of the scope of a power to amend. The specific language of the explanatory note is as follows:
A new section 178 provides further clarity by providing that QCAT may amend a complaint referred to it by the Commissioner even if the amendment concerns matters not included in the complaint.
One of the arguments for the Respondents is that the use of that language in the explanatory note, referring as it does to providing “further clarity”, indicates that it was not intended to significantly change the law, i.e. it amounted to a recognition of the current status of the legal position. Hence, it is argued, the new s 178 merely confirmed some particular perspective of the law as it then stood. I do not accept that this is so. Even the language of the amendment to s 177, which was clearly expressly designed to overcome a line of authority which was completely different effect to the operation of s 177 was said to “clarify” the position. The use of that expression by Parliamentary draftsmen in explanatory notes is commonplace, even where, on any view of the matter, the provision clearly reverses, or substantially changes the legal status quo.
I turn now to the application which seeks to amend the complaint to make claims of victimisation against both Respondents. Unlike the other amendments which were not substantially opposed, these amendments do not essentially involve re-characterisation of the complaint which was referred to this Tribunal. They are new allegations involving different prohibited conduct than is presently alleged.
For the complainants it is freely conceded that the victimisation claims were not referenced in the complaint made to the Commission on 7 May 2013 and have not been referred to this Tribunal. In the draft proposed statement of contentions, the foundation for the allegations of victimisation is set out as follows:
a) It is alleged that following on from the making of the complaint to the ADCQ alleging discriminatory conduct against the State of Queensland on the basis of the complainants’ impairments, the State of Queensland threatened to do or did acts which were to the detriment of the complainants because of the making of that complaint.
b) The detrimental conduct by the State included:
i)Threatening to convert or assimilate the complainants’ funding for Disability Support Services to a block grant to which she would have no specific entitlement;
ii)Requiring the complainants to vacate their tenancy at the subject site so that the other household member could continue the tenancy despite his having perpetrated violence and abuse upon them; and
iii)The State Housing Officers withdrew an offer of alternative accommodation that had been made to them.
Insofar as the Second Respondent’s conduct was concerned, the case against it is perhaps even less than skeletal. Its officers, who have yet to be identified and their specific conduct detailed, participated in the activity in requiring them to vacate the household, and in the withdrawal of the alternative accommodation offer.
By its very terms, an event giving rise to a victimisation claim involves someone who either has, or intends to commence a complaint or by other means bring a proceeding alleging a contravention of the ADA. It would not of course be necessary for a proceeding to be already commenced, although one could readily understand that if it had not already been commenced, the fact that events of victimisation had occurred and were capable of being identified in the original complaint would be relevant to the question of whether leave would be given to amend. In that respect I refer without setting out here the terms of s 129 of the ADA, and the events which s 129 itself recognises may give rise to an act of victimisation. So there would be many cases in which the fact of the making of a complaint, and the background facts which led to it and stood behind it, would have evidential significance in determining whether other conduct or stating the discriminatory conduct the motivation for what is alleged to be other detrimental behaviour.
The argument before me concerned first, the scope of operation of s 178 of the ADA after its introduction in 2009 specifically allowing this Tribunal to amend the complaint even if the amendment concerned matters not originally raised, or was unrelated to them. For the State of Queensland and the proposed Second Respondent, it was submitted that s 178 had limited operation and provided a narrow discretion. It was submitted that s 178 did not contain a power to entertain a complaint that has not already been made to the ADCQ. As the argument was put, since this Tribunal only has jurisdiction to deal with complaints that have been referred to the Commission, investigated by it and referred to this Tribunal, the making allegations of victimisation now amounts to the making of a fresh complaint which has not gone through the requisite process.
I pause to mention that in the submissions for the State of Queensland it appears to have been accepted that there were some references in the original complaints to victimisation against two named individuals, but the Commission concluded that they did not meet the threshold of s 136 of the ADA because they did not set out sufficient detail to indicate an alleged contravention. Hence, no such contravention was referred to this Tribunal.
Reference has been made, both in submissions here, and in a number of Tribunal decisions to which I will make reference shortly, to the decision in Hopper v Mount Isa Mines (1999) 2 Qd R 496 and as to what effect it has on the amendment issue. Moynihan SJA there accepted that the jurisdiction of the Anti-Discrimination Tribunal, the predecessor of this Tribunal, was founded on a complaint complying with s 136 of the ADA having been made.
Of course, His Honour was not there specifically dealing with the situation which presents here, and it preceded the introduction of s 178. Further, in his oral submissions Mr Murdoch for the State of Queensland acknowledged that the effect of the introduction of s 178 was that in the context in which amendments are sought to be made, it is not necessary to go through the formal process that Justice Moynihan referred to in that case to enable such a claim to be brought.
I turn then to what, in my view, is the meaning and effect of s 178. The first point is that in its terms, which are uncomplicated and devoid of sophistication, complexity or qualification, this Tribunal has discretion to allow a complainant to amend a complaint even if the amendment concerns matters not included in the original complaint. That in my view is sufficiently broad to encompass a situation where it involves not only claims which arise out of the same factual matrix as the original complaint does, but also those which do not. It may even go further, although I need not decide this here, and permit amendments to be made to bring in matters which are entirely unrelated to the matters originally included in the complaint. I express no concluded view about that here, however it seems to me that if the discretion exists, and is to be exercised judicially, there is no reason to think that Parliament did other than decide that where this Tribunal determined that for good reason it was appropriate to make an amendment to include a matter entirely unrelated, that it should do so.
The ADCQ performs an important function, inter alia, in receiving, reviewing, filtering in one sense, and referring to this Tribunal what are recognised as valid complaints. Accepting that to be so, there is no reason in principle why a member of this Tribunal would not be capable, on proper evidentiary material, to decide that in relation to a matter already before the Tribunal, it was appropriate to include other matters which have not been referred to the Commission. In other words, it could not be said that in general this Tribunal, having been seized of a matter is less capable of making a decision about the nature and character of a complaint than the ADCQ.
Pursuant to s 136 of the ADA, a complaint must be in writing in reasonably sufficiently details to indicate an alleged contravention. Pursuant to s 139 the Commissioner must reject frivolous, trivial, vexatious complaints and those misconceived or lacking in substance. The other activity that occurs in the Commission, is the conciliation process. In effect an accepted complaint will be one which will have successfully run the gauntlet of analysis as to whether it is frivolous, trivial or vexatious, misconceived or lacking in substance and is set out in sufficient detail to indicate an alleged contravention of the ADA. There is nothing about this jurisdiction which would place a member of this Tribunal at a disadvantage from staff at the ADCQ in deciding those very matters as a basis for allowing amendment.
In McKenzie v MacKay and State of Queensland [2005] QADT 24, Mr Savage QC examined a body of authority on the question of the power of the then Anti-Discrimination Tribunal to hear proposed amendments to complaints. At paragraphs 39 to 41 of his reasons, he held (footnote omitted):
39. The adoption of a construction which prohibited any amendment produces in many circumstances a manifestly inconvenient outcome. There are many cases in the Tribunal where there is a continuum of activity alleged, some of which is omitted from the original complaint. In those circumstances, by the time the complainant comes to agitate the complaint in the Tribunal, the one year time limit will have already expired. Thus the complainant may be denied the opportunity of agitating those matters, albeit they are in many circumstances entitled to rely upon them as evidence in the hearing to corroborate the referred complaint. Self-evidently the further matters of complaint would not be resolved by conciliation in the Commission. Further costs will be incurred by both parties in the complainant making a fresh complaint, an application for an extension of time to the Commissioner and then proceeding to refer the complaint to the Tribunal for a separate hearing. I can see no good purpose in adopting a construction that has these effects.
40. If in truth the amendment provision is to be regarded as a quasi jurisdictional provision there is nothing in principle wrong with the legislature investing power to a tribunal it creates by one of such general words as in s.178.
41. For those reasons, in my opinion, the power of amendment does not bear the implied limitations suggested by the Respondent. In any event as the analysis of cases above set out show even if that were not the case, in my view here:-
(a) the acts are part of a continuum; or
(b) the acts are referred to in documents filed in the Commission.
and thus the matters can be agitated in the Tribunal without amending the complaint.
That decision then at least opened the door to amendments to Acts which were part of a continuum, or were based on facts which were referred to in documents filed in the Commission.
Shortly before the significant amendment to s 178 came into effect, Mr Savage QC, who by then was the President of the Tribunal, decided X v Q (No 3) [2009] QADT 21. There, he followed the approach that he took in McKenzie v Mackay. X v Q was a case in which there was alleged sex discrimination of a male prisoner. It was alleged in a complaint that there had been sex discrimination in the area of State laws and programs. He then sought to make a claim such as that made here that after the event he had been subjected to victimisation contrary to s 129 of the ADA.
At par 6 and 7 of his reasons Mr Savage QC held as follows:
6. I would allow amendment of the complaint for the reasons I gave in McKenzie v Mackay [2005] QADT 24. I do not think the Tribunal’s power to allow amendment is as limited as the other cases upon which the Respondent relies. None of which are binding upon me. This is of only academic interest.
7. There will be by the time of the hearing in this matter be a much wider power to allow amendment of complaints: cf s.1339 Queensland Civil & Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009 repeals 176-184 and inserts 178 of the Act which makes plain the extent of the jurisdiction of the Tribunal to amend complaints even if those amendments concern matters not included in the complaint. If anything, this case is an illustration of why such an amendment should be allowed. There is no proper reason that a person victimised for making a complaint should not have the complaint and victimisation issue dealt with together at one hearing. There is no real prospect of this complaint (either as amended or not) being settled by the conciliation process adopted by the Commissioner (which in any event could be the subject of orders in the Tribunal) nor any real prospect the Commissioner would not accept the complaint of victimisation at least that which is within twelve months.
That judgment in X v Q was the subject of an appeal to the Supreme Court in matter 1830 of 2010 and came before de Jersey CJ on 15 November 2010. The Chief Justice said in relation to the operation of s 178:
The Tribunal President allowed an amendment of the complaint to add the claims of victimisation, for reasons he had earlier expressed in Mackenzie and Mackay, 2005, QADT 24. They focused on the completely unfettered discretion to amend a complaint accorded by section 178 of the Act. He regarded the alleged victimisation as consequential upon the lodgement of the original complaint, and observed that “there is no proper reason (why) a person victimised for making a complaint should not have the complaint and victimisation issue dealt with together at one hearing”.
The President examined the relation between section 178 which gives the power of amendment, and other provisions including section 175, and the mechanism by which complaints ordinarily reach the Tribunal, having passed through a process of conciliation. He also examined other decisions of the Tribunal bearing on this matter, and a decision of the Court. The President set out in paragraphs 38 to 41 of his reasons for judgment the basis of his conclusion that the discretion to amend is in fact, as it is presented, that is, untrammelled. On that basis he went on to assign a sufficient reason why the amendment should be allowed in the exercise of his discretion, being the circumstance that the victimisation allegedly grew out of the making of the original complaint.
The applicant puts forward no particular reason why it did not appeal against this ruling in relation to amendment within time. Additionally, there is to my mind no sufficient doubt about the correctness of the President’s construction of the power to amend under section 178, to warrant further investigation of that power by way of appeal. I note that a newly worded power has been included in the QCAT legislation. For the aggregation of those considerations I exercise the discretion against extending time for appeal in relation to that ground. If I had extended time I would have dismissed an appeal on that round.
There are some decisions of this Tribunal that have arrived at a different result. These decisions include: Baldwin v Robinson and Cooroy Golf Club Inc [2010] QCAT 118, Daw v QR Limited & Anor [2011] QCAT 319, Smith v The Lutheran Church of Australia Queensland District t/as St Peter’s Lutheran College (No 2) [2011] QCAT 304 and X v Q [2011] QCAT 453, each of which is a decision of Senior Member Endicott and each of which was heard on the papers. There is also a decision to similar effect in Coleman v Ngoonbi Co-operative Society Ltd [2013] QCAT 207. Obviously, each of them post dates the amendment to s 178 and all but the final one post dates the decision on appeal in X v Q. None makes reference to it, and clearly the Tribunal had not been made aware of it.
In those cases it has decided that:
a) Section 178 did not extend in its operation to add a claim for victimisation based on conduct that gave rise to the original complaint because it could only relate to matters related to the original complaint and did not permit matters amounting to “adding a fresh complaint”; Baldwin.
b) That the language used in the explanatory notes to describe the purpose of the introduction of the amendments to s 178 was merely to clarify the power and did no more than express in clearer language the existing power of the Tribunal to amend the complaint. Thus it did not include a power to amend to include a victimisation allegation because they are fresh complaints; Daw v QR Limited and Smith v Lutheran Church of Australia.
c) Despite the wide discretion in s 178 to amend, it did not include power to make an amendment that related to allegations never part of a validly made complaint and therefore which failed to attain “the threshold requirements of s 136”; Smith v Lutheran Church of Australia and X v Q.
d) That the power in s 178 to amend does not provide jurisdiction to QCAT to determine allegations of fresh complaint where the power under s 178 relates to allegations that should be considered “as so close related to the complaint referred by the Commission that they should be formally made part of the complaint by way of amendment”. That did not extend to complaints of victimisation: X v Q. It should be noted that this sought to make further allegations of victimisation in the same case in which the President of the ADT, Mr Savage in X v Q (No 3) allowed an amendment.
In the decision in Daw, Senior Member Endicott expressed the view that whilst it was inconvenient to the complainant not to allow the amendments “issues of convenience or even costs are not relevant in this case to the exercise of the discretion in s 178”. I beg to differ.
In my view it is clear that the amendments which were made to s 178 were facilitative, established in the Tribunal an unfettered discretionary power to allow an amendment to raise a matter notwithstanding that it was not included in the original complaint, and expected this Tribunal to exercise that power in ways which, inter alia, facilitated the just and expeditious hearing of the matters in dispute, to minimise inconvenience and cost associated with that process, and to avoid unnecessary technicality and formality in this process. In my view the decisions of this Tribunal which have held otherwise were incorrectly decided. As the Chief Justice concluded in X v Q, even before the 2009 Amendments to s 178 of the ADA, s 178 gave an “unfettered discretion” to allow amendments to bring new claims.
The just and expeditious determination of the matters in issue between these parties would be facilitated by permitting the amendments sought here. It therefore seems to me to be clear that an appropriate exercise of discretion in this particular case would be to allow the amendments to be made to make allegations of victimisation broadly in the terms which are contained in the proposed statements of contentions.
I therefore order:
a) Pursuant to s 177 of the Anti-Discrimination Act 1991, joining the Cerebral Palsy League of Queensland (ACN 009 942 269) as a Respondent to the Applicants’ complaints.
b) Pursuant to s 178 of the Anti-Discrimination Act 1991 amending the Applicants’ complaints so as to include:
i)A claim of impairment discrimination in the goods and services area as against the State of Queensland (Department of Housing and Public Works);
ii)A claim of impairment discrimination in the goods and services area as against the State of Queensland (Department of Communities, Child Safety and Disability Services);
iii)A claim of impairment discrimination in the areas of goods and services and administration of state laws and programs as against the Cerebral Palsy League of Queensland;
iv)A claim of victimisation of the Applicants as against the State of Queensland and the Cerebral Palsy League of Queensland, as each claim is set out in the Applicants’ statements of contentions dated 10 July 2014.
c) Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 and s 191 of the Anti-Discrimination Act 1991:
i)Prohibiting the publication of any information concerning the subject complaint of the Applicants to be identified;
ii)Prohibiting the disclosure of the Applicants’ identities;
iii)Ordering that any identification of the Applicants to this proceeding, subject to other order of the Tribunal, shall adopt the pseudonyms for the Applicants of MM and MD.
d) That the application for orders requiring the production of documents by the State of Queensland and the Cerebral Palsy League of Queensland be dismissed.
e) That in respect of the dates for the performance of the events set out in paragraphs 4 and 5 of the order of this Tribunal of 7 August 2014, that that order be varied, such that the date for the filing of amended contentions by the Applicants now occur by 4:00pm on 7 October 2014 and the date for responsive contentions by the State of Queensland as referred to in paragraph 5 of that order be varied to be required by 4:00pm on 28 October 2014.
f) Further, the Second Respondent, the Cerebral Palsy League of Queensland is directed to file two copies and send another copy to the Applicants of contentions in response setting out in numbered paragraphs any disputed facts, contending why the conduct complained of does not amount to a breach of the Anti-Discrimination Act 1991, setting out any defences in that Act that will be relied upon by the Second Respondent, commenting on the disclosed impacts and outcomes sought by the Applicants and stating what outcomes are sought by the Second Respondent, also by 4:00pm on 28 October 2014.
g) Each of the Applicants, and both Respondents are directed to provide disclosure pursuant to s 28 of the Queensland Civil and Administrative Tribunal Act 2009 by filing and serving a list of documents by 4:00pm on 11 November 2014 and for such inspection or provision of copies of that disclosure to occur before 18 November 2014.
h) The parties will participate in the compulsory conference as previously ordered.
i) Further, the Second Respondent shall file in the Tribunal two copies and must send to each of the other parties:
i)A statement from each witness to give evidence for the Second Respondent at the hearing, including experts; and
ii)Any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement by 19 January 2015.
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