Stallard v Alsun Aluminium Pty Ltd & Lee
[2011] QCAT 343
•20 July 2011
| CITATION: | Stallard v Alsun Aluminium Pty Ltd & Lee [2011] QCAT 343 |
| PARTIES: | Kimberley STALLARD |
| v | |
| Alsun Aluminium Pty Ltd and Stephen Martin LEE |
| APPLICATION NUMBER: | ADL139-10 |
| MATTER TYPE: | Anti-Discrimination Matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 20 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Application to dismiss is refused. |
| CATCHWORDS : | ANTI-DISCRIMINATION – where respondents submitted complaint was lacking in substance – application made to dismiss – section 47 of the Queensland Civil and Administrative Tribunal Act 2009 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 9 December 2010 a complaint by Kimberley Stallard was referred to the tribunal by the Anti-Discrimination Commission Queensland in which Mr Stallard alleges that Alsun Aluminium Pty Ltd and Stephen Lee contravened the Anti-Discrimination Act 1991 by unlawfully discriminating against him because of an impairment.
The complaint is based on Mr Stallard’s dismissal from employment. The allegations of unlawful discrimination have been denied by the respondents. Contentions have been filed by the parties and the complaint has been listed for hearing on 9 September 2011.
The respondents have applied to the tribunal to dismiss the complaint under section 47 of the Queensland Civil and Administrative Tribunal Act 2009. It is argued that Mr Stallard had failed to provide an adequate summary of facts in his contentions to support the complaint of discrimination and that the information provided by Mr Stallard in this proceeding is inconsistent with the information in his original complaint to the Commission. The respondents submit that Mr Stallard has failed to provide specific details of the alleged workplace incidents and that he has not particularised he alleged discrimination in terms of the Act.
The respondents submit that they do not know what case they are being required to meet at the forthcoming hearing and submit that the complaint is frivolous, vexatious, misconceived, and lacking in substance. Mr Stallard has not yet filed his statements of evidence which are not due until 5 August 2011.
It is a very serious matter for a tribunal to dismiss a claim without allowing a hearing of that claim to take place. Dismissal in this case would deprive Mr Stallard of the opportunity to have a just determination of his complaint which is based on an allegation that his human rights have been contravened.
The Anti-Discrimination Act 1991 was enacted for very noble purposes[1]:
(a) everyone should be equal before and under the law and have the right to equal protection and equal benefit of the law without discrimination; and
(b) the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society; and
[1] See Long Title to the Anti-Discrimination Act 1991
Part of the scheme established by that Act to protect the fragile freedoms of the community is the independent determination by this tribunal of complaints about alleged discriminatory conduct. The opportunity to have complaints determined in this manner should not be unduly restrained. A person with a complaint accepted by the Commission should be given a proper opportunity to present a case based on that complaint at a hearing.
Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 has a valid role to play in ensuring that cases objectively lacking substance do not place a respondent in the position of having to devote time and resources to meeting a case that has little or no chances of succeeding. When considering whether to bring an early end to a case involving allegations of contravention of human rights, the tribunal must be satisfied that factors supporting the complainant having a proper opportunity to establish a complaint have been clearly outweighed by factors involving fairness and justice to a respondent accused of conduct in circumstances which would not be capable of supporting a remedy as claimed.
In this case, Mr Stallard has not yet set out the evidence in support of his complaint. He has not been required to do so. His filed contentions do not comprehensively address the issues that the tribunal expects to find in contentions but that is understandable as Mr Stallard is not legally represented and it appears that he has drafted the contentions himself.
[10] The tribunal does not accept that it is proper or reasonable to bring this proceeding to an early end based on what effectively are arguments that Mr Stallard’s contentions do not set out his case adequately when his evidence is not yet filed. It is clear from the complaint that he has alleged that he was the subject of discrimination based on impairment and that the discrimination resulted in his dismissal. The main elements of a case based on direct discrimination to be met by the respondents are set out in the contentions although the evidence being relied on as support for those elements is not yet filed.
[11] The tribunal is not satisfied that the case is lacking in substance or is misconceived, frivolous or vexatious. The balance between the interests of Mr Stallard and the interests of the respondents must at the present time be found in favour of Mr Stallard and his right to have his complaint proceed towards a hearing. That is not an indication that Mr Stallard will ultimately succeed in his case: the tribunal is merely upholding at the present time his right to present his case at a hearing.
[12] The application brought under section 47 is refused.
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