Smith v Corporation of the Synod of the Diocese of Brisbane & Ors

[2013] QCAT 117

CITATION: Smith v Corporation of the Synod of the Diocese of Brisbane & Ors [2013] QCAT 117

PARTIES:	Ms Peta Smith (Applicant)
v
Corporation of the Synod of the Diocese of Brisbane Archbishop Phillip Aspinall Bishop Geoff Smith (Respondents)

APPLICATION NUMBER: ADL036-11

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Dr Bridget Cullen, Member

DELIVERED ON: 14 March 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.     The Respondents’ Application to strike-out, dated 6 November 2012, is dismissed.

CATCHWORDS:

ANTI-DISCRIMINATION – Dispute about which “in-time” and “out-of-time” complaints were accepted by the Commission, and what complaints should be heard by the Tribunal. Application to strike out portions of the Applicant’s complaint dismissed, on the basis that the totality of complaint was accepted by the Commission and referred to the Tribunal, and there was no basis under s47 of QCAT Act for strike out.
Anti-Discrimination Act 1991 (Qld), s138

Queensland Civil and Administrative Tribunal Act, s47

Buderim Ginger Ltd v Booth [2002] QCA 177

APPEARANCES and REPRESENTATION (if any):

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

Proceedings in the Commission

1. The Applicant in this matter, Peta Smith, was the Executive Director of the Anglican Schools Commission.  Her 5-year employment contract ended on 26 July 2009. 

2. On 23 April 2009, prior to the expiry of her contract, Ms Smith filed a complaint with the Queensland Anti-Discrimination Commission.  In her referral form, Ms Smith made complaints against her former employer, the Corporation of the Synod of the Diocese of Brisbane (First Respondent), and also against Archbishop Phillip Aspinall (Second Respondent) and Bishop Geoff Smith (Third Respondent).  Although Ms Smith provided the Commission with a document entitled “Schedule – Details of Complaint” which enumerated 12 specific “complaints”, it is more accurate to characterise Ms Smith as having made complaints of sexual harassment and discrimination, discrimination on the basis of sexuality, and victimisation, of which her 12 enumerated paragraphs provide the particulars thereof.

3. On 1 May 2009, Ms Smith’s lawyers wrote to the Commissioner, and said:

   “Whilst it somewhat goes without saying, we are instructed to specifically include in the complaint the non-renewal of our client’s contract as an additional and separate complaint arising as a result of the sex discrimination and/or victimisation or [sic] client. In particular, our client’s position is that her contract was not renewed at its expiration as a result of the fact that her contract was not renewed at its expiration as a result of the fact that our client was female and as a result of the fact that she had previously made a complaint in relation to discrimination on the grounds of sex.”

4. The “in time” allegations contained in Ms Smith’s complaint were accepted on 12 June 2009, and the “out of time” allegations were accepted on 6 April 2010.   The issues surrounding the timing of Ms Smith’s complaint have been disputed since the matter was filed in the Commission, and generated significant correspondence between legal representatives for the parties.  The Commission endeavoured to resolve this matter, considered submissions on the point, and a delegate of the Commission wrote to the parties on 6 April 2010. 

5. Although some of Ms Smith’s allegations were made outside the statutory 1-year time limit contained in the Anti-Discrimination Act 1991 (Qld), the Commission decided to accept the complaint, and provided extensive reasons for doing so in its letter dated 6 April 2010.  In a subsequent letter to the Respondents’ lawyers, dated 5 July 2010, the Commission endeavoured to assist by summarising the complaints in the following terms:

SUMMARY OF ALLEGATIONS

File No:	70 62853:TL
Complainant:	Peta Smith
Respondent 1:	Corporation of the Synod of the Diocese of Brisbane
Respondent 2:	Archbishop Aspinall
Respondent 3:	Bishop Smith
Date complaint lodged:	23/04/2009
Date complaint accepted:	11/08/2009 (in-time allegations) 06/04/2010 (out-of-time allegations)
Alleged contraventions:	Sexual harassment; Victimisation

Respondent	Contravention	Summary of Allegations
Corporation of the Synod of the Diocese of Brisbane	Sexual harassment	Vicarious liability for the conduct of unknown person(s) who allegedly initiated and/or transmitted a rumour that the complainant was in a lesbian relationship with a colleague
	Victimisation	Vicarious liability for the alleged conduct of Archbishop Aspinall and Bishop Smith (see below), and non-renewal of the complainant’s contract following her complaints of sex discrimination.
Archbishop Aspinall	Victimisation	After the complainant complained to Archbishop Aspinall on 20 Feb 2008 about the alleged sex discrimination, his behaviour changed, including allegations of: -   isolating the complainant, -   failing to respond to her emails, -   declining to discuss important issues, -   bypassing her on matters within her role and -   being bullying, condescending and interrogating.
Bishop Geoff Smith	Victimisation	From June/July 2008, when the complainant complained to Bishop Geoff Smith about the alleged sex discrimination and victimisation, his behaviour allegedly changed, including: -   failed to make meeting times, -   sent the complainant “blunt and harassing” emails, and -   “berated” her over a report she had prepared.

Referral to the Tribunal

1. The matter did not resolve in the Commission, and was referred to the Tribunal on 18 April 2011.

2. On 6 November 2012, the Respondents filed an Application in this Tribunal, seeking various directions in relation to the hearing of this matter, and the following relief:

   1.That all allegations in the Applicant’s Amended Statement of Contentions and Statement of Evidence in relation to the acts or omissions of Ian Turner, Bishop Rob Nolan, Canon Richard Tutin, Peter Read, Andrew Knox, Norm Hunter and Rod McLarry be struck out.

2.That all allegations in the Applicant’s Amended Statement of Contentions and Statement of Evidence in relation to complaints of sexual harassment and/or discrimination by the Corporation of the Synod of the Diocese of Brisbane, Archbishop Aspinall and Bishop Smith included in the Amended Statement of Contentions and the Statement of Evidence, other than the allegations in relation to the rumour in 2006, be struck out.

1. The Respondents argue that the “Summary of Allegations” forwarded by the Commission is the document that indicates which of the complaints were accepted by the Commission, and assert that any aspect of Ms Smith’s complaint that falls outside the “Summary of Allegations” should be struck out.  I do not agree with the Respondents that this is the correct approach, and think it is incorrect to suggest that the “Summary of Allegations” can be taken to be a document that defines the complaints that have been accepted.

The Commission accepted Ms Smith’s complaint in totality

1. As I read the correspondence between the parties and the Commission, the whole of the matters raised by Ms Smith were accepted by the Commission, and the “Summary of Allegations” was simply an effort on the part of the Commission to, as suggested in the Commission’s letter annexing the “Summary of Allegations”, “assist you [the Respondents] to understand the complaint”.  In other words, the “Summary of Allegations” does not take the place of the actual Complaint, which was accepted in its entirety by the Commission on 6 April 2010, but is, as the title suggests, simply a “summary”. 

2. Further, I note that although the summary, and indeed the referral by the Commission to this Tribunal, refers to the nature of Ms Smith’s complaints as “sexual harassment” and “victimisation”, it is abundantly clear that Ms Smith also raised complaints of discrimination on the basis of sexuality and sex discrimination in relation to what she considers to be different treatment on the basis of sex in relation to her contract of employment.  If there was any doubt that this was the case, the letter sent to the Commission by Ms Smith’s lawyers on 1 May 2009 made it clear that this was the case.  This letter was sent prior to the Commission’s acceptance of the whole of Ms Smith’s complaint on 6 April 2010, and is referred to within the Commission’s letter of 6 April 2010 as a document that the Commissioner has considered by way of “further information” about the complaint.  Thus, the complaint as accepted by the Commission consists of the allegations contained in Ms Smith’s complaint dated 23 April 2009, as well as the “further information” provided in the letter of 1 May 2009 by her lawyers.  It is my view that Ms Smith has clearly raised complaints in the areas of sexual harassment, sex discrimination, discrimination on the basis of sexuality and victimisation. 

The Respondents’ “Strike Out” Application must fail

1. As to the Respondents’ application to strike out the allegations made by Ms Smith in relation to the acts or omissions of Ian Turner, Bishop Rob Nolan, Canon Richard Tutin, Peter Read, Andrew Knox, Norm Hunter and Rod McLarry, I do not consider the application to have merit.  As Ms Smith’s employer, the Synod can be held to be vicariously liable for the acts and omissions of its employees.  I understand that to be the reason for Ms Smith’s having made allegations against them.  I think it would be fair to say that Ms Smith has not made a complaint “against” these persons as such – they are not named Respondents.  Rather, Ms Smith has made a complaint against the Synod, the employer of these men, and she has merely provided particulars about the conduct she alleges they have engaged in for which the Synod may be vicariously liable.

2. I do not consider there to be a lack of clarity about the nature of Ms Smith’s complaint, as is asserted by the Respondents.   The Tribunal is not a jurisdiction where parties are expected to exchange particularised pleadings as would be the case in a court.  Here, there is sufficiently particularity in Ms Smith’s materials to place the Respondents on notice, from the perspective that I believe them to have been afforded procedural fairness, such that they cannot possibly argue they will be taken by surprise by the allegations at the hearing of the matter.

3. The Respondents also seek that the Tribunal strike out all allegations raised in Ms Smith’s Amended Statement of Contentions and, curiously, also her Statement of Evidence in relation to complaints of sexual harassment and/or discrimination by the Corporation of the Synod of the Diocese of Brisbane, Archbishop Aspinall and Bishop Smith, other than the allegations in relation to a rumour in 2006.  It concerns me that the Application for strike out appears to re-ventilate the matters raised at the time that Ms Smith sought to file an Amended Statement of Contentions in the Tribunal.  The Tribunal granted Ms Smith such leave on 4 November 2011.  The issues raised by the Respondents in this application relating to the timeliness of Ms Smith’s complaints and what complaints were accepted by the Commission were also squarely raised at the time Ms Smith made this Application. 

4. The power to strike out all, or part, of a proceeding can be found in s47 of the Queensland Civil and Administrative Tribunal Act 2009:

   47 Dismissing, striking out or deciding if unjustified proceeding or part

   (1) This section applies if the tribunal considers a proceeding or a part of a proceeding is—

   (a)     frivolous, vexatious or misconceived; or

   (b)     lacking in substance; or

   (c)     otherwise an abuse of process.

   (2) The tribunal may—

   (a)     if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or

   (b)     for a part of a proceeding brought before the tribunal by a party other than the applicant for the proceeding—

   (i) make its final decision in the proceeding in the applicant’s favour; or

   (ii) order that the party who brought the part before the tribunal be removed from the proceeding; or

   (c)     make a costs order against the party who brought the proceeding or part before the tribunal to compensate another party for any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding or part.

   Note—

   See section 108 for the tribunal’s power to order that the costs be paid before it continues with the proceeding.

   (3) The tribunal may act under subsection (2) on the application of a party to the proceeding or on the tribunal’s own initiative.

   (4) The tribunal’s power to act under subsection (2) is exercisable only by—

   (a)     the tribunal as constituted for the proceeding; or

   (b)     if the tribunal has not been constituted for the proceeding—a legally qualified member or an adjudicator.

5. There is nothing in relation to the conduct of this matter by Ms Smith which suggests that s47(1) has been triggered; the proceedings are not frivolous, lacking in substance, or an abuse of process. Ms Smith’s complaint was accepted in totality by the Commission, and has now been further articulated in the Amended Statement of Contentions. There is no basis for dismissal.

6. The Application to strike out Ms Smith’s Statement of Evidence in advance of the hearing is premature, and should be made at the time of the hearing, if at all.  If the Tribunal were to grant the Respondents this particular relief, it would have the effect of not allowing Ms Smith to raise the factual circumstances surrounding her allegations that the Synod should be liable for the conduct of its employees, if proven.  There is no process in the Tribunal that is directly analogous to the process that lawyers often engage in prior to court proceeding in objecting to paragraphs of the other parties’ affidavit material.

7. The Respondents do not explain how the Tribunal could possibly “strike out” a Statement of Evidence. At the core of QCAT proceedings is the concept of procedural fairness. In my view, it is more appropriate for the Member with conduct of the hearing to hear any submissions the Respondents wish to make about the relevancy of the matters raised in Ms Smith’s Statement of Evidence, and the weight to be given to it. The formal rules of evidence do not apply in the Tribunal. A “Statement of Evidence” is not a “proceeding” or “part of a proceeding” that can be struck out pursuant to s47 of the QCAT Act.

8. The Respondents also draw the Tribunal’s attention to sections 58 and/or 64 of the QCAT Act in support of what they call “interim orders”. These sections of the QCAT Act have no particular utility here, and there are no submissions by the Respondents explaining the reliance upon same, and therefore, I will say nothing further insofar as sections 58 and 64 of the QCAT Act are concerned.

9. The Respondents correctly point out that s138 of the Anti-Discrimination Act 1992 (Qld) contains a time limit for the making of complaints:

   (1) Subject to subsection (2), a person is only entitled to make a complaint within 1 year of the alleged contravention of the Act.

   (2) The commissioner has a discretion to accept a complaint after 1 year has expired if the complainant shows good cause.

10. The Respondents also accept that the Tribunal does not “have a strict approach to the construction of a complaint and is not bound by the characterisation of a complaint by the Commission,” but argue that Ms Smith has now widened her allegations in an impermissible way.  I do not accept this argument for the reason that I have taken the view that Ms Smith did raise these matters before the Commission, and consider that the Commission accepted the entirety of her claim.  Ultimately, Ms Smith may fail to prove her claim, but I can see no good basis to depart from the Commission’s view that she should be allowed to pursue her complaints against the Respondents.

11. The Commission, in its letter of 6 April 2010 provides extensive reasons for its acceptance of both the “in time” and “out of time” portions of Ms Smith’s complaint, citing Her Honour Justice Atkinson’s authoritative and binding decision in Buderim Ginger Ltd v Booth [2002] QCA 177. I see no reason to now depart from the Commission’s views – in circumstances where Ms Smith alleges a pattern of conduct in an employment context where she was concerned about renewal of her contract, and made internal complaints during her employment. Any prejudice caused to the Respondents through the effluxion of time is outweighed by the grave injustice that would befall Ms Smith if she were not permitted to have the Tribunal hear and determine her complaint.

12. For these reasons, I dismiss the Respondents’ Application to Strike-Out (referred to by the Respondents as an “Application for Interim Orders”, dated 6 November 2012).  The balance of the relief sought by the Respondents in their 6 November 2012 Application has been addressed through Directions of Senior Member Endicott, issued 14 March 2013, and therefore no determination is required by me in relation to the Respondents’ requests for Ms Smith to provide them with a List of Witnesses and paginated Statements of Evidence.

Orders

1. The Respondents’ Application to strike-out, dated 6 November 2012, is dismissed.