Ryle v Venables

Case [2021] QSC 60

SUPREME COURT OF QUEENSLAND

CITATION:

Ryle v Venables & Ors [2021] QSC 60

PARTIES:

LINDA RYLE

(applicant)

v
RUTH VENABLES
(first respondent)
ANTI-DISCRIMINATION COMMISSION
(second respondent)

STATE OF QUEENSLAND

(third respondent)

FILE NO/S:

BS No 3443 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

31 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

16 November 2020

JUDGE:

Davis J

ORDER:

1.   The application is dismissed.

2.    The applicant pay the third respondent’s costs of the application.

3.    There be no order as to costs as between the applicant and the first and second respondents.

CATCHWORDS:

ADMINISTRATIVE LAW - JUDICIAL REVIEW - STANDING TO INSTITUTE PROCEEDINGS - GENERALLY - where the applicant was employed by the Department of Justice and Attorney-General - where the applicant made a public interest disclosure in relation to a bail program being run by the applicant’s colleague, W - where the applicant alleges that W spread exaggerated allegations of criminal conduct against the applicant in the workplace as reprisal for the applicant’s disclosure - where the applicant was cleared of any wrong doing or criminal conduct by a departmental investigation - where the applicant suffered a psychiatric injury as a result of the alleged reprisal - where the applicant suffered alleged discrimination as a result of the psychiatric injury - where the applicant made a complaint of reprisal contrary to the Public Interest Disclosure Act 2010 - where the applicant made a complaint of impairment discrimination contrary to the Anti-Discrimination Act 1991 - where both complaints were made after the statutory time limit had expired - where the complaint of reprisal was accepted by the first respondent acting in her function as the delegate of the Anti-Discrimination Commissioner - where the complaint of impairment discrimination was rejected by the first respondent acting in her function as the delegate of the Human Rights Commissioner on the basis of it being out of time - where the applicant sought judicial review of the decision to reject the impairment discrimination complaint - whether the applicant has made out one of the grounds of review.

Acts Interpretation Act 1954, s 14A, s 14B
Anti-Discrimination Act 1991, s 6, s 7, s 8, s 15, s 134, s 135, s 136, s 138, s 139, s 141, s 142, s 154A, s 158, s 164A, s 166, s 167, s 168, s 174B, s 174C, s 175, s 178, s 204, s 205, s 206, s 207, s 208, s 209, s 23A
Human Rights Act 2019, s 3, s 118
Industrial Relations Act 2016, s 429, s 448, s 451
Judicial Review Act 1991, s 4, s 7, s 20, s 23
Public Interest Disclosure Act 2010, s 11, s 40, s 41, s 42, s 43, s 44
Limitation of Actions Act 1974
Uniform Civil Procedure Rules 1999, r 171

ABT17 v Minister for Immigration and Border Protection & Anor [2020] 383 ALR 407, cited
Alcan (NT) Alumina Pty Ltd…

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AGLC
Ryle v Venables [2021] QSC 60
Case
[2021] QSC 60
Decision Date

CaseChat Overview and Summary

The case of Ryle v Venables involved an application for judicial review of a decision by Ms Venables, acting as a delegate of the Human Rights Commissioner, to reject a complaint of impairment discrimination made by Ms Ryle. Ms Ryle, who had previously made a public interest disclosure, alleged that she suffered reprisal in the form of discrimination due to a psychiatric injury she sustained as a result of the disclosure. The primary issue for the court was whether Ms Ryle had demonstrated a ground for review of the decision, namely, whether Ms Venables had failed to exercise her discretion under s 138 of the Anti-Discrimination Act 1991 as required, or failed to take into account relevant considerations and took into account irrelevant considerations.

The court considered Ms Ryle's argument that the delegate had an error of law in distinguishing between the "complaint" and the "contravention" alleged within the complaint. Ms Ryle contended that the delegate should have accepted the impairment discrimination allegations as part of the same complaint that included reprisal allegations, which had been accepted beyond the statutory time limit. However, the court found that the delegate's decision was not in error, as the two sets of allegations pertained to different legal frameworks—the Public Interest Disclosure Act 2010 and the Anti-Discrimination Act 1991—and thus could justifiably be treated as separate complaints.

Furthermore, the court held that the delegate had exercised her discretion appropriately in rejecting the impairment discrimination complaint as being outside the statutory time limit. Despite Ms Ryle's difficult circumstances and her efforts to pursue her rights, the court found that she had not shown good cause to accept the complaint beyond the time limit, particularly given the significant delay in lodging the complaint. The court concluded that accepting the complaint after such a lengthy delay risked prejudicing the respondents.

Accordingly, the application for judicial review was dismissed, and the applicant was ordered to pay the costs of the application. No order as to costs was made between the applicant and the first and second respondents.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant pay the third respondent’s costs of the application.

3. There be no order as to costs as between the applicant and the first and second respondents.

Background

Background to the litigation

It was properly conceded by the State that the decision of Ms Venables was a “decision under an enactment”[8] and that Ms Ryle is a “person aggrieved” by the decision.[9] Therefore, the decision is one that is subject to judicial review and Ms Ryle has standing to challenge it. The only issue is whether Ms Ryle has made out one of the grounds of review identified in s 20 of the Judicial Review Act 1991 (the JR Act).[8]Judicial Review Act 1991, ss 4 and 20 and see Griffith University v Tang (2005) 221 CLR 99.[9]Judicial Review Act 1991, ss 7 and 20.Background The PID Act is designed to “facilitate the disclosure in the public interest of information about wrongdoing in the public sector and to provide protection for those who make disclosure”.[10] Those are called “public interest disclosures”.[11] Provisions of the PID Act recognise the possibility of reprisal against persons making public interest disclosures.[12] Reprisal is recognised as a tort by s 42 of the PID Act but statutory remedies are also created. By s 44, a complaint may be made of reprisal and that complaint is then dealt with as a complaint made under the AD Act.[13] [10]Long title to the Public Interest Disclosure Act 2010.[11]Public Interest Disclosure Act 2010, s 11.[12]Sections 40, 41, 42 and 43.[13]Chapter 7. The provisions of the AD Act are central to the determination of this application and are analysed in detail later. However, where a complaint concerns a “work related matter”,[14] the complaint may ultimately be heard by the Queensland Industrial Relations Commission (the QIRC).[15] Where a complaint does not relate to a “work related matter”, the complaint may be heard by the Queensland Civil and Administrative Tribunal (QCAT).[14]See Anti-Discrimination Act 1991, s 4, Schedule Dictionary definitions of “work related matter” and “work”.[15]Constituted under the Industrial Relations Act 2016, s 429. The AD Act recognises various species of discrimination. One of those is discrimination on the basis of “impairment”.[16] “Impairment” is defined in the Schedule to the AD Act but it is unnecessary to refer to that definition.[16]Section 7(h). On 25 July 2018, Ms Ryle lodged a complaint with the Anti-Discrimination Commission. That complaint took the form of a lengthy and detailed letter in which Ms Ryle explained the conduct of which she complained, the surrounding circumstances and the damage caused to her, and why the complaint should be accepted out of time. As already explained, Ms Ryle is now a lawyer. The structure and content of the complaint reflects her legal training. She clearly intended the complaint to be one against reprisal.[17][17]See the last paragraph of the letter. Ms Ryle’s complaint was directed at W. Ms Ryle had earlier made a public interest disclosure to the effect that W, also an employee of DJAG, had run a bail program and had caused participants in that program to work on his private property. That public interest disclosure complaint was accepted in 2011 and W was counselled.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

After considering various issues, Ms Venables reached the following conclusion:“The allegations in this complaint were first advised to the Commission on 26 July 2018, but it was not until further detail was provided on 27 February 2019 that the Commission commenced dealing with the complaint including seeking submissions on the time limit issue. Having decided that the complaint was made on the earlier date, it is unfortunate that the Commission did not deal with it promptly after receiving the complainant’s verbal confirmation in August 2018 that she intended to pursue it. It is important to ensure that no party’s rights are compromised as a result of the Commission’s delay. I have therefore approached this decision as I would have, had I dealt with it promptly after the complaint was first made.The onus to show good cause always rests with the complainant and there are significant factors that weigh heavily in support of her case. Having found herself in an extremely unenviable position with her professional and personal reputation tarnished through no fault of her own, it is hardly surprising that her mental health deteriorated and her workplace relationships were adversely affected.Difficult personal and financial circumstances no doubt added to the burden, as did the significant energy the complainant expent to investigate the facts and circumstances giving rise to her complaint of reprisal and to pursue her rights in respect of that and other matters.Whether or not her decision to pursue each and every one of her concerns was wise with hindsight, I regard the fact that she did so as relevant in the sense that they demonstrate just how difficult the complainant’s circumstances were during the period of the delay.While the length of the delay is not, of itself, prohibitive of a finding that good cause has been shown, in the context of a one year time limit, a delay that continued for more than three years after the time limit had already expired, weighs substantially against acceptance and sets the bar to show good cause quite high. While the complainant’s circumstances coupled with her lack of awareness of her right to complain go some way towards clearing that bar, in a situation where she was aware of the relevant facts and circumstances giving rise to the complaint at the time they arose, had consulted solicitors experienced in discrimination matters in relation to those issues and had demonstrated an ability to pursue her rights, I am not persuaded that she has cleared that bar. Arguments concerning the Commission’s interactions with the complainant, all of which occurred after the impairment complaint had been made, do not persuade me otherwise.The fact that the Commission accepted the reprisal complaint after an even longer delay does not render a conclusion that there is good cause to accept this complaint inevitable, although I accept that many of the same factors relied on to support the decision in the reprisal complaint also apply here. The case for good cause in the reprisal complaint relied substantially on some specific, unique and exceptional circumstances. The two complaints are not comparable in many ways in my view.Significantly, the complainant expressed a very real fear that the reprisal complaint may have necessitated an airing of painful allegations, risking serious damage to her professional and personal reputation. This factor weighed heavily in my decision to allow such lenience to the complainant in her efforts to show good cause for the lengthy delay in lodging that complaint. They do not apply to this complaint. Other distinguishing features of the reprisal complain include the complainant’s submission to the effect that she was not even aware that an act of reprisal had been committed until well after the (alleged) fact, whereas in this case, the complainant was aware of the individual respondents’ actions in real time, and in fact took steps to address her concerns about them at that time. While there are many persuasive factors in the complainant’s favour in this case, when weighed against those that support the respondents’ case, including the very real risk of prejudice were I to accept the complaint after such a lengthy delay, I am not persuaded that good cause has been shown.For all the reasons set out above and weighing all the factors together, I am of the view that the complainant has not shown good cause to accept the complaint outside the statutory time limit.” (emphasis added)

Ratio Decidendi

Legal Principle Established

Ms Ryle filed an application for judicial review on 26 March 2020. Pursuant to an order of Dalton J made on 14 April 2020, Ms Ryle filed an amended application. The amended application alleges seven grounds. Only three were pressed. They were:1.“The decision involved an error of law” (ground 1);2.“[Ms Venables] failed to exercise her discretion as required by s 138 of the [Anti-Discrimination Act 1991]” (ground 2);3.“[Ms Venables] failed to take into account relevant considerations and took into account irrelevant considerations” (ground 4).ConsiderationGround 1:The decision involved an error of law Ms Ryle submits that the discretion under s 138 of the AD Act is to accept or not accept a “complaint”. The “complaint”, Ms Ryle submits, is the document the contents of which are prescribed by s 136 and which initiates the processes of Chapter 7. The “complaint” is the document containing allegations. The allegations themselves are not the “complaint”, Ms Ryle submits. This is said to be the proper meaning of “complaint”, primarily because of s 135 which provides that “a person may make a complaint” alleging “more than one contravention” of the AD Act, and because in a number of other sections the terms “complaint” and “contravention” are used.[23] Therefore, Ms Ryle submits, there is a distinction between the “complaint” (which must be the document lodged) and the “contravention” which is the breach of the AD Act alleged in the “complaint”. In Ms Ryle’s submission, the discretion in s 138 is to accept a “complaint”, that is the document which complies with s 136, or to not accept the “complaint”. The discretion does not extend, Ms Ryle submits, to accepting that part of a “complaint” (being the document complying with s 136) which alleges a contravention of the AD Act (or the PID Act) and rejecting that part of the complaint which alleges other contraventions.[23]Sections 6, 117, 121-123, 125, 127, 130, 131C, 131F, 132-140, 140A, 141, 141A, 142-154, 154A, 155, 158, 160, 164, 164A, 164AA, 165-168, 168A, 169, 170, 171, 174A-C, 175, 178, 189, 191, 193, 193A, 194-200, 207, 209, 210, 226, 231, 235, 263A, 263B, 263C, 263E-I, 266, 267, 268, 270, 271, 273-276 definitions in the dictionary of “complainant”, “contravention”, “respondent” and “work-related matter”. It follows, so it is submitted, that having accepted the reprisal allegations beyond time, the impairment allegations had to be accepted as they were part of the same “complaint”. Here, there were in fact two separate complaints. The letter of 25 July 2018 was treated as a reprisal complaint and the letter of 27 February 2019 was treated as a separate complaint of impairment discrimination. Arguably then, the point does not arise for decision at all. However, the two separate complaint documents unquestionably came about as a result of Ms Corkhill’s suggestions. Ms Ryle’s real point is that Ms Corkhill was wrong when she suggested that a separate complaint ought to be made in relation to impairment discrimination. Section 135 expressly provides that a “complaint” may allege more than one “contravention”. Therefore, on Ms Ryle’s submissions, the letter of 25 July 2018 ought to have been regarded as a “complaint” which contained allegations of more than one “contravention”, being reprisal contrary to the PID Act and impairment discrimination contrary to the AD Act.