Q v X
[2010] QCAT 297
•24 June 2010
| CITATION: | Q v X [2010] QCAT 297 |
| PARTIES: | Q (Applicant) |
| v | |
| X |
APPLICATION NUMBER: ADC007-06
| MATTER TYPE: | Application for stay |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 24 June 2010
DELIVERED AT: Brisbane
ORDERS MADE: The orders made by the President of the Anti-Discrimination Tribunal Queensland on 19 November 2009 be stayed pending the determination of Q’s application to the Supreme Court of Queensland for an extension of time to appeal the decision which lead to those orders and (if that application is granted) the determination of Q’s appeal against that decision and those orders.
| CATCHWORDS : | PRACTICE AND PROCEDURE – STAY OF PRIMARY DECISION – ANTI-DISCRIMINATION Anti-Discrimination Act 1991, s 129, s 248, s 249 Alexander v Cambridge Credit Corp Ltd [1985] 2 NSWLR 685, applied |
REASONS FOR DECISION
The respondent X is a prisoner who has, until the advent of QCAT, been prosecuting a complaint of discrimination in the Anti-Discrimination Tribunal (ADT). He alleged that some actions of prison authorities, like regular searches and the seizure of his property, constitute victimisation contrary to s 129 of the Anti-Discrimination Act 1991 (AD Act).
During a directions hearing in the ADT on 14 August 2009 X raised fresh allegations of victimisation allegedly occurring on 28 July and 7 August 2009. Those allegations post-dated the referral of his complaint to the ADT and had not previously been made to the Anti-Discrimination Commission, Queensland. At the hearing the then ADT President invited X to write to the ADT regarding those allegations, to request that his complaint be amended. In subsequent correspondence, Crown Law, acting for Q, asserted that the ADT had no jurisdiction to deal with a fresh complaint that had not been referred to it by the Commissioner.
Both parties were allowed to make further submissions in writing and on 19 November 2009 the President determined, on the papers, that X could amend his complaint to include the allegations of victimisation; and that Q must produce to X copies of CCTV footage that X was seeking from it, which had been referred to in X’s letter to Q dated 2 September 2009.
On 23 February 2010, Q filed a notice of appeal of the President’s decision in the Supreme Court at Brisbane, together with an application for an extension of time for that appeal. Now, it seeks an order that QCAT stay the operation of the orders made by the ADT President pending determination of that application and, if successful, Q’s appeal.
Under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) X’s proceeding in the ADT is a pending proceeding before QCAT, and the ADT is a former Tribunal.[1] Section 256 of the QCAT Act gives QCAT jurisdiction to deal with pending proceedings; but under s 271, it only has the functions of the former Tribunal and can only make the decisions open to that Tribunal.
[1] QCAT Act, ss 244, 245 and Schedule 1.
Under the AD Act the ADT had the power to take any action incidental or conducive to the discharge of its functions of hearing and determining complaints, and to make rules for that purpose.[2] Rule 16 of the Anti-Discrimination Tribunal Rule 2005 gave the ADT power to make orders and give directions about the conduct of a proceeding that “it considers appropriate”.
[2] AD Act, ss 248 and 249.
That power has been held to include jurisdiction to stay a proceeding: Waite v King’s College [2004] QADT 22, in which the ADT President at the time, Mr Sofronoff QC, observed that the “stay” sought in that case was in reality (as here) a request to postpone any further steps in the ADT until other proceedings, in another court, had been determined. As he observed, the power is “…simply the exercise of a power by the Tribunal to regulate its own affairs in a way appropriate to the proceeding before it in the interests of securing justice for the parties according to law”.[3]
[3] Waite v King’s College (supra) at para [8].
The applicant Q acknowledges that it is seeking, here, a stay of the orders made by the former President on 19 November 2009 for two reasons: first, because it wishes to test the power, purportedly exercised by the former President, to amend the complaint; and, secondly, because the order for disclosure of the CCTV footage carries, it says, a risk of real prejudice to it.
Before a stay may be granted in a matter the applicant must demonstrate that it is an appropriate case for an order of that kind.[4] The questions affecting the exercise of the discretion to grant a stay will, here, revolve around Q’s prospects in the appeal itself, and whether it has an arguable case; any risk that its appeal might prove abortive or nugatory if the stay is not granted; and the balance of convenience.[5]
[4] Williams v Chesterman [1992] QCA 198; Croney v Nand [1992] 2 Qd R 342.
[5] Alexander v Cambridge Credit Corp Ltd [1985] 2 NSWLR 685, at 694-5.
I am satisfied that Q’s written submissions in support of its application[6] show that it has a reasonably arguable case that the former Tribunal may have made a mistake of law in that it arguably lacked power to allow amendments of the type and nature sought by X; and, gave no reasons for its decision compelling disclosure of the CCTV footage and, perhaps, wrongly denied Q the opportunity to make submissions opposing an order for that disclosure. These are necessarily, of course, no more than preliminary views about those matters.
[6] Filed 10 June 2010.
Q’s submissions point to decisions of the ADT and QCAT which appear to support its arguments against the power to amend: Simpson v Button [1998] QADT 7 (Member Holmes, as her Honour then was); Quartermaine v Picard and Queensland Department of Health [2000] QADT 16, at p 7 (Member Pagani); Lundbergs v Q-Super [2003] QADT 8; and, Beanland v State of Queensland and Queensland Studies Authority [2007] QADT 16. In HJ Baldwin v Robinson and Cooroy Golf Club Inc [2010] QCAT 118, Senior Member Endicott also accepted that the power to amend a complaint of discrimination does not include a power to accept a fresh complaint of victimisation relating to allegations arising after referral of the original discrimination complaint to QCAT.
Q must also, of course, confront the fact that its appeal is out of time, but the delay has been addressed in an affidavit of Mark Spehr sworn 19 March 2010, filed in the Supreme Court proceedings. He says that it took some time to collate the CCTV footage and it was not until he saw all of it in early February 2010 that he formed the view that its production would compromise the security and good order and safe management of Queensland’s correctional facilities. Again, for present purposes I accept that on the material provided Q has an arguable case for an extension.[7]
[7]Queensland Trustees Limited v Fawckner [1964] Qd R 153; Horne v Commissioner of Main Roads [1991] 2 Qd R 38.
Q also has a reasonable argument that, absent the orders it seeks, its appeal would be rendered futile because disclosure would be made before resolution of the application to appeal, and for reasons discussed below, the harm that might be done by disclosure may not be readily remedied or reversed.[8]
[8] Alexander v Cambridge Credit Corp Ltd (supra) at 695.
As to the balance of convenience, Mr Spehr’s affidavit alleges that disclosure of the footage would compromise the security and good order of the Maryborough Correctional Centre, and potentially other correctional centres; would not be in the public interest; and would potentially compromise the safety of correctional officers, other prisoners, and the public. He says that the CCTV systems are an integral element of the security elements at correctional centres and, if undisclosed, carry the benefit that persons who are filmed are not aware of precisely what has been filmed, or what can be viewed; and that other centres, including the centre at which X is currently detained, have similar or almost identical physical layouts and CCTV arrangements. He also alleges that X has on two previous occasions been subjected to Maximum Security Orders and has at various times been regarded as a high escape risk.
In his submissions X alleges that CCTV footage from inside prisons is regularly released to Queensland police officers, and to the legal representatives of prisoners, and has been released to instruments of the media from time to time. These assertions, even if correct, do not negate the force and effect of the facts and matters sworn to in Mr Spehr’s affidavit.
X has also filed a cross-application in QCAT for an order that Q’s application for a stay be struck out because Q failed to comply with a QCAT order made on 20 April 2010 that it must file and serve any application for a stay by 4pm on 30 April 2010. The QCAT file shows that Q did file its application for a stay on that day, but X asserts he was not served then (while conceding that the application was sent by fax to the General Manager at the correctional centre where he is presently located) but he did not personally receive it until 4 May. The non-compliance appears to be outside Q’s control and does not warrant the order X seeks.
For these reasons, Q has established that an order in the nature of a stay is warranted. The appropriate order is that the operation of the orders made by the President of the Anti-Discrimination Tribunal Queensland on 19 November 2009 be stayed pending the determination of Q’s application to the Supreme Court of Queensland for an extension of time to appeal the decision which lead to those orders and (if that application is granted) the determination of Q’s appeal against that decision and those orders.
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