Smith v Lutheran Church of Australia Queensland District trading as St Peters Lutheran College
[2011] QCAT 187
•21 April 2011
| CITATION: | Smith v Lutheran Church of Australia Queensland District trading as St Peters Lutheran College [2011] QCAT 187 |
| PARTIES: | Elizabeth Sian Margaret Smith |
| v | |
| Lutheran Church of Australia Queensland District trading as St Peters Lutheran College |
| APPLICATION NUMBER: | ADL085-10 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 21 April 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application filed on 19 April 2011 is dismissed. |
| CATCHWORDS: | ANTI-DISCRIMINATION – application seeking order for disclosure by respondent –where scope of complaint not yet determined – where disclosure by respondent would be premature until scope of complaint determined |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Elizabeth Sian Margaret Smith represented by Jayne Le, solicitor of Lynch Morgan |
| RESPONDENT: | Lutheran Church of Australia Queensland District trading as St Peters Lutheran College represented by Cecily Tucker, legal practice director, Ai Group Legal Pty Ltd |
The hearing took place on the papers in the absence of the parties under section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
A complaint by Elizabeth Smith that she had been subjected to unlawful discrimination by St Peters Lutheran College was referred to the tribunal and a compulsory conference took place on 3 February 2011.
Directions were made at the conclusion of the conference that the parties each must file and serve a list of documents by 25 March 2011 and statements of evidence by 13 May 2011.
On 28 March 2011 Ms Smith filed a list of documents in the tribunal. A list of documents was not filed on behalf of St Peters College by 25 March 2011. That party via its legal representatives applied to the tribunal for a order to strike out any claim and/or factual material in support of any claim which goes beyond the scope of a complaint based on impairment in the area of education which complaint, it was contended, had been accepted by the Anti-Discrimination Commission and which complaint was, it was contended, the complaint referred to the tribunal.
On 6 April 2011 the tribunal directed Ms Smith to respond to that application by 29 April 2011 and directed that a decision on whether the tribunal would exclude any part of the contentions or complaint would be made by the tribunal not before 6 May 2011.
On 19 April 2011 Ms Smith by her legal representatives lodged an application in the tribunal seeking an order that St Peters Lutheran College be required to make full and proper disclosure by filing a list of documents within 7 days. Further orders were sought to adjourn the making of a determination on the strike out application for a further 14 days after the date sought for the completion of disclosure. An order was sought that if disclosure was not made by St Peters Lutheran College within 7 days, the tribunal should make final orders in favour of Ms Smith in her complaint.
The contentions filed on behalf of Ms Smith allege that St Peters Lutheran College had discriminated against her on the basis of an impairment and on the basis of presumed sexuality. The complaint referred by the Commission to the tribunal was based on impairment solely.
The jurisdiction of the tribunal is to determine the complaint referred to it by the Commission.[1] Complaints may be amended if the tribunal so allows.[2] Ms Smith has not requested the tribunal to amend her complaint. Until such time as Ms Smith applies for an amendment of her complaint and that amendment is allowed, the only ground relevant to this complaint is the attribute in the referred complaint i.e. of impairment.
[1] Sections 174A and 175 of the Anti-Discrimination Act 1991.
[2] Section 178 of the Anti-Discrimination Act 1991.
It is important that the scope of this complaint that Ms Smith wants the tribunal to consider is determined as soon as possible. Any procedural steps must properly be delayed until the scope of the complaint is determined in order to reduce the possibility that the parties will be put to unnecessary expense in responding to components of the complaint that may be found to be outside the jurisdiction of the tribunal.
It is one of the stated objects of the tribunal that it must deal with matters in a way that is accessible, fair, just, economical, informal and quick. This object is achieved in part by the requirements in section 28(3) of the Queensland Civil and Administrative Tribunal Act 2009 that the tribunal is not bound by any practices or procedures applying to courts of record.
[10] Consistent with that object, the tribunal’s rules do not make provision for disclosure of documents by parties in a proceeding. It is generally the expectation of the tribunal that parties will produce to the tribunal and exchange copies of documents on which they will rely in the proceedings. It is unlikely that the tribunal would strike out a proceeding or prevent a party from responding to a proceeding merely because that party failed to produce a list of documents. There are adequate provisions in the Act and in the rules of the tribunal to require the production to the tribunal of a specific document if that document is important for the final determination of an issue in a proceeding.
[11] Section 28(3)(e) of the Act requires the tribunal to ensure so far as is practicable that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. It is the role of the tribunal, not the role of the parties, to determine what material is necessary to be disclosed in order for all relevant facts to come under scrutiny at a hearing of the proceeding.
[12] The tribunal does not consider that subsection 28(3)(e) of the Act requires the resolution of the fundamental question of the scope of Ms Smith’s complaint to be delayed while the parties argue about the production of a list of documents. The scope of the complaint is an issue that must be accorded priority and must be determined as soon as possible in order for the tribunal to deal with the proceeding in a fair and economical manner as required by its legislation.
[13] Orders for disclosure and the other orders sought by Ms Smith in her application filed on 19 April 2011 are not necessary before a determination is made on the scope of her complaint. Her application is dismissed.
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