Sinden v State of Queensland
[2011] QCAT 436
•23 August 2011
| CITATION: | Sinden v State of Queensland [2011] QCAT 436 |
| PARTIES: | Derek Sinden also known as Thalia Sinden |
| v | |
| State of Queensland |
| APPLICATION NUMBER: | ADL007-09 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 23 August 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The Tribunal grants leave to the applicant to amend her complaint and contentions to include a failure to investigate allegation as part of her complaint of unlawful discrimination |
| CATCHWORDS: | ANTI-DISCRIMINATION – amendment of contentions filed in a complaint based on gender identity – where additional issue sought to be included – where issue arose from expert evidence to be relied on in the case – where prejudice to complainant if amendment not allowed is greater than consequential cost to respondent Aon Risk Services Australia v Australian National University (2009) 239 CLR 175 |
APPEARANCES and REPRESENTATION (if any):
The application was heard on the papers in the absence of the parties under section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Derek Sinden, the complainant, identifies as a transgender female person although born as a male person. In these reasons, I will refer to the complainant as Ms Sinden and I will use female pronouns when referring to the complainant.
Ms Sinden has been a prisoner in custody in correctional institutions since 1999. Her attempts to commence female hormone medication have been unsuccessful while in custody. Her complaint that she has been unlawfully discriminated against by the State of Queensland on the basis of her gender identity has been referred to QCAT for determination.
The original contentions had alleged that discrimination had occurred when the respondent had refused to allow Ms Sinden to commence female hormone medication. Leave was sought to add an alternative allegation that discrimination had occurred when the respondent had failed to conduct a full clinical investigation before refusing female hormone treatment for Ms Sinden. The respondent opposed leave being granted to amend the contentions.
It was not disputed that QCAT has the power to amend a complaint and the contentions prepared about that complaint.[1] The respondent however argued that QCAT should not exercise discretion to allow the amendment being sought in this case and relied on the principles set out by the High Court in Aon Risk Services Australia v Australian National University.[2]
[1]Section 178 of the Anti-Discrimination Act 1991 and section 64 of the Queensland Civil and Administrative Tribunal Act 2009.
[2] (2009) 239 CLR 175.
In particular, the respondent quoted a passage by the majority in that case which included the following: “The objectives stated in r21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case.”
The respondent argued that the amendment was sought at a very late stage of the proceedings and that no explanation was proffered as to why the new allegation was not raised at an earlier stage. I was not persuaded by that argument. Although the proceedings have progressed through the initial stages in QCAT, there is still at least one interlocutory step to be taken (an experts’ conclave) and a date for hearing has not yet been set and is unlikely to be set until early 2012.
The submissions made by Ms Sinden’s representatives did contain an explanation as to why the amendment was being sought at this stage: the perceived need for the alternative contention arose from statements made in the expert reports filed by the respondents that female hormone treatment should not be commenced if a full clinical examination has not been conducted.
Although Ms Sinden’s representatives were in possession of those reports for some time before raising their desire to amend the contentions, the delay in seeking an amendment of the contentions has not in my view materially impacted on the finalisation of this proceeding. The steps taken by Ms Sinden’s representatives over the past few months to obtain expert evidence from overseas would have in any event affected the length of time that this proceeding will take to finalise quite apart from the effect of the sought after amendment.
The respondent in its submissions referred to the sought after amendment as an expansive amendment of Ms Sinden’s complaint. Categorisation of the amendment as “expansive” was not appropriate in my view. The addition of an alternative contention arose from evidence already put forward by the respondent. I preferred the submissions of Ms Sinden’s representatives that the amendment in effect gives rise to a closely related question to what was already in the original contentions.
[10] Allowing the amendment to the contentions would permit QCAT the opportunity to ensure that all relevant issues were before the tribunal when determining the complaint. It could be reasonably anticipated that the respondent’s expert witnesses had considered that the absence of a full clinical examination of Ms Sinden was a relevant issue. By placing that issue into the contentions, QCAT could ensure that all relevant issues were known to the parties and could be the focus of their evidence and legal arguments at the hearing.
[11] Although the respondent will inevitably be put to some cost in responding to the amended contentions and in gathering additional evidence to support its case, I was satisfied, after applying the principles in Aon Risk Services Australia v Australian National University, that the prejudice to Ms Sinden, if the amendment were not to be granted, would be greater than any concomitant prejudice to the respondent.
[12] QCAT is required to deal with matters in a way that is accessible, fair and just. It would be contrary to those statutory objects for QCAT to refuse leave to a complainant to more accurately set out her case in circumstances when the tribunal is satisfied that the prejudice to the complainant in refusing leave would be greater than any prejudice caused to the respondent should leave be granted.
[13] I was satisfied that QCAT should exercise discretion to grant leave to Ms Sinden to amend her contentions to include “a failure to investigate” allegation as part of her complaint of unlawful discrimination.
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