Smith v The Lutheran Church of Australia Queensland District trading as St Peters Lutheran College (No 2)
[2011] QCAT 304
•30 June 2011
| CITATION: | Smith v The Lutheran Church of Australia Queensland District trading as St Peters Lutheran College (No 2) [2011] QCAT 304 |
| PARTIES: | Elizabeth Sian Margaret Smith |
| v | |
| The 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: | 30 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Claims in Ms Smith’s case which are allegations of discrimination based on sexuality and presumed sexuality are struck out. 2. Leave is granted to Ms Smith to amend her contentions to include a claim that St Peters College has breached section 124 of the Act by asking Ms Smith, her parents and her psychiatrist for unnecessary information. |
| CATCHWORDS: | ANTI-DISCRIMINATION – complaint lodged on ground of sexuality – information in the complaint referred to an impairment – Commission not satisfied complaint on ground of sexuality reached threshold – Commission accepted complaint on ground of impairment – amendment sought to include allegations of discrimination based on sexuality and requests for unnecessary information in complaint Anti-Discrimination Act 1991, ss 124, 136,139, 142, 178 Hopper v Mt Isa Mines (1999) 2 QdR 496 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Elizabeth Sian Margaret Smith represented by Lynch Morgan Lawyers |
| RESPONDENT: | The Lutheran Church of Australia Queensland District trading as St Peters Lutheran College represented by Ai Group Legal Pty Ltd |
REASONS FOR DECISION
Ms Smith made a complaint to the Anti-Discrimination Commission Queensland against St Peters Lutheran College. The complaint has been referred to the tribunal for determination. The contentions of Ms Smith about the complaint have been filed in the tribunal. The representatives of St Peters College seek an order to strike out part of the contentions. Ms Smith opposes that outcome and has sought leave to amend her complaint and contentions.
The history of the complaint since lodgement in the Commission is relevant to both the strike out application and the application to amend the complaint. Ms Smith had lodged her complaint in the Commission with the assistance of her lawyers. The complaint was made on the complaint form of the Commission and also attached 16 documents to the form.
The ground of complaint was specified as sexuality. The form contained the wording “I believe that St Peters acted on an incorrect presumption, assuming that I was homosexual. I am not homosexual.” The form contained five pages of additional typewritten content in which there were several references to discrimination based on sexuality or presumed sexuality that was alleged to have occurred in 2007.
The complaint form (and most likely the documents attached to that form but that was not able to be ascertained from the information supplied to the tribunal) was sent to the legal representatives of St Peters College for comment, particularly on the out of time aspect of the complaint.
In a letter dated 27 August 2009 the representatives of St Peters College made submissions that the complaint ought not to be accepted by the Commission as they argued that the complaint contained no factual basis for any justifiable or legitimate complaint against St Peters College. The letter finished with this paragraph: “In relation to the matters set out in these paragraphs, the Respondent repeats and relies upon the major basis for its objection to this complaint, namely that there is no evidence for the allegation that there has been discrimination practised against the Complainant by the College or any of its employees….In our respectful submission, there is no basis upon which an investigation can be conducted by the Commission”.
The legal representatives of Ms Smith were given an opportunity to respond to these submissions and addressed aspects of the out of time submissions but they did not address what was described as the major objection by St Peters College to the complaint.
The Commission considered the complaint and the submissions made on behalf of Ms Smith and on behalf of St Peters College. In a letter dated 20 January 2010 a delegate of the Anti-Discrimination Commissioner set out her decision to accept the complaint. In doing so, the decision maker specifically stated that the decision letter consisted of decisions in terms of section 138 and 139 of the Anti-Discrimination Act 1991.
The decision letter sets out the reasoning followed by the delegate which led her to accept the out of time allegations under section 138 of the Act. There is no dispute before the tribunal about the out of time element of the complaint. The dispute is about the proper description of what is actually the complaint before the tribunal.
When setting out her reasons for reaching a decision under section 139 of the Act, the delegate commented that section 139 had not been specifically quoted in the submissions made on behalf of St Peters College but as no allegations had been accepted by the Commission prior to the date of the letter, an application to reject a complaint before acceptance could only be made under section 139.
[10] While that comment is strictly correct, the wording used in the fifth page of her letter reveals to the tribunal that the delegate had used a two stage process to reach her decision under section 139. The first stage involved the use of section 136 of the Act to define what would even be considered as part of the complaint (a threshold test) and the second stage involved a consideration of whether the defined complaint was frivolous, trivial or vexatious, misconceived or lacking in substance.
[11] The delegate expressly quoted section 136 in terms that a complaint must set out reasonably sufficient details to indicate an alleged breach of the Act. It is apparent that the delegate applied those words as a threshold test in the complaint lodged by Ms Smith so that any allegations that she considered did not set out reasonably sufficient details of an alleged breach of the Act would not form part of the allegations going forward for acceptance or rejection.
[12] In other words, a decision to accept or reject allegations of a breach of the Act cannot logically be made until such time as there are sufficient details provided to the Commission of the alleged breach. The mere setting out a factual history of some events, no matter how well worded, is not enough to satisfy the threshold test in section 136: it is the alleged breach of the Act that must be sufficiently detailed before a decision to accept or reject a complaint can be undertaken.
[13] This is made clear by the following words used by the delegate in the decision letter: “I am satisfied that the complaint has provided sufficient details to allege impairment discrimination in the area of education in that the complainant and her parents as well as the complainant’s peers and their parents were allegedly told by the respondent that the complainant was suspended for health and safety reasons and a large group of the complainant’s peers were allegedly told by the respondent that the complainant was expelled because of her mental health.”
[14] Further clarification of the process which had been followed by the delegate under section 136 is found in the words: “As explained above, the allegations that satisfied the threshold in term of section 136 were that of impairment in the area of education and not the attribute of sexuality to which the respondent’s submissions refer.” Put simply, the allegations of discrimination based on sexuality or presumed sexuality were not part of the complaint that went forward for acceptance by the Commission.
[15] The delegate found that in her opinion the allegations which had passed the section 136 threshold, i.e. allegations based on a breach of the Act, on the grounds of impairment were not frivolous, trivial or vexatious, misconceived or lacking in substance and so the complaint was not rejected under section 139. It was that complaint that was subsequently referred to the tribunal.
[16] Ms Smith cannot raise allegations based on the grounds of sexuality in her contentions as a complaint on that ground was not validly made to the Commission. A complaint on that ground has not been considered for either acceptance or rejection by the Commission, has not been investigated by the Commission, has not been the subject of an attempt at conciliation by the Commission and has not been referred to the tribunal.
[17] Ms Smith seeks leave to amend her complaint under section 178 of the Act to include a claim that St Peters College has breached the Act by discriminating against her on the basis of her presumed sexuality and has breached section 124 of the Act by asking Ms Smith, her parents and her psychiatrist for unnecessary information.
[18] Dealing first with the section 124 claim, details of the alleged requests for information had been set out in the complaint form in March 2009. Those details are intrinsically linked to the accepted complaint of discrimination based on impairment in the education area. The requests in question were made about an alleged impairment of Ms Smith and how that impairment might impact on her actions in her school environment. Looked at in this way, the requests for information can reasonably be considered as part of the complaint accepted by the Commission. It is clear that the Commission’s categorisation of the accepted complaint was expressed in limited terms but that categorisation does not compel the tribunal to restrict consideration of the complaint to those limited terms.[1]
[1]Wilson & McCollum v Lawson & Anor [2008] QADT 27 at paragraph 101 and McKenzie v Mackay & State of Queensland [2005] QADT 24 at paragraphs 9 & 10.
[19] Ms Smith does not need leave to amend her complaint to include a claim based on a breach of section 124 of the Act. Such a claim is already part of her complaint and she has leave to amend her contentions, if necessary, to set out her case in terms of an alleged breach of section 124 of the Act.
[20] It is quite a different matter when turning to her application for leave to include a claim of discrimination based on sexuality. The representatives for St Peters have submitted that leave cannot be granted under section 178 to include a claim of discrimination based on sexuality due to the provisions in section 142 of the Act whereby that part of Ms Smith’s original complaint has lapsed and cannot be revived by way of amendment of the complaint by the tribunal under section 178 of the Act.
[21] Section 178 provides a wide discretion to the tribunal to amend a complaint even if the amendment concerns matters not included in the complaint. The discretion may be wide but it necessarily must have limits. In a given case the difficulty is to identify where the limit to the exercise of discretion should lie. The new wording in subsection 2 introduced into section 178 in 2009 was said to clarify the power,[2] suggesting that subsection 2 was intended by the Legislature to do no more than express in clearer language the power of the tribunal to amend a complaint.
[2]Explanatory memorandum to Queensland Civil and Administrative Tribunal (Jurisdictional Provisions) Amendment Bill 2009 at page 260.
[22] Ms Smith’s representatives submit that the complaint based on sexuality was not rejected by the Commission and therefore section 142 of the Act does not apply. That argument has some attraction but would require the tribunal to consider if the use of the word “rejected” in section 142 should have the same effect as the term “not accepted”. In an appropriate case a discussion of whether there is any real difference between the concepts of a complaint being rejected as opposed to not being accepted may be more than sophistry but this present case is not such a case.
[23] The correct approach in the opinion of the tribunal arises again from section 136. In Hopper v Mt Isa Mines[3] Moynihan J considered an appeal in which an issue arose where the former tribunal had made findings of a contravention of the Act which had not been the subject of a complaint. His Honour concluded: “the Tribunal’s jurisdiction is in my view founded on a complaint complying with s.136 (b). Findings of contraventions not satisfying that requirement therefore cannot stand because there is no jurisdiction to make them.”[4] The tribunal readily endorses that conclusion as support for the finding made in paragraph 16 that the allegations based on sexuality were never a part of the complaint complying with section 136 and consequently those allegations were neither rejected nor not accepted by the Commission. Section 142 is not relevant in this case.
[3] (1999) 2 QdR 496.
[4] Ibid at page 570.
[24] Despite the wide discretion in the current form of section 178 to amend a complaint, can that section be interpreted as providing the tribunal with the power to extend its jurisdiction? Can allegations that were never part of a validly made complaint, having failed to attain the threshold requirements of section 136, be added by way of amendment as a new complaint?
[25] The representatives for St Peters College have submitted that the correct principle that the tribunal must follow in such cases is that no amendment can be allowed where it has the effect of allowing in a new claim that would otherwise not have been made. It is submitted that amendments are limited to claims that are already on foot. That submission is persuasive.
[26] The representatives of St Peters submit that the effect of the amendment being sought by Ms Smith is to be allowed to introduce a new ground for her complaint.
[27] The tribunal has in the past declined to allow an amendment of a complaint to introduce what is in reality a new complaint that was not referred by the Commission.[5] That approach appears to remain a sound approach and the tribunal accepts the submissions of the representatives of St Peters that such an approach is consistent with the principles that guide amendments in other jurisdictions. The tribunal is satisfied that it does not have the power to extend its jurisdiction to include allegations which were not part of the complaint accepted by the Commission and which did not satisfy the requirements of section 136.
[5] Baldwin v Robinson & Cooroy Golf Club Inc [2010] QCAT 118.
[28] The submission by Ms Smith’s representatives that the claim based on sexuality will not amount to a fresh complaint is not sustainable for the reasons discussed in paragraphs 7 to 16. The tribunal will not allow an amendment in this case which would introduce a new ground for Ms Smith’s complaint.
[29] The tribunal has determined that claims in Ms Smith’s case which are allegations of discrimination based on sexuality and presumed sexuality are struck out and that leave is granted to Ms Smith to amend her contentions to include a claim that St Peters College has breached section 124 of the Act by asking Ms Smith, her parents and her psychiatrist for unnecessary information.
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