State of Queensland & Anor v Aigner
[2013] QCATA 151
•25 June 2013
| CITATION: | State of Queensland & Anor v Aigner [2013] QCATA 151 |
| PARTIES: | State of Queeensland (First Appellant) |
| and | |
| Dawnette Le Roux (Second Apellant) v Elizabeth Aigner (Respondent) |
| APPLICATION NUMBER: | APL362-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 3 April 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Michelle Howard, Member Ann Fitzpatrick, Member |
| DELIVERED ON: | 25 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. The appeal is dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – APPLICATION TO STAY PROCEEDINGS – where respondent made complaint against appellants for contravention of the Anti-Discrimination Act 1991 – where matter proceeded to compulsory conference – where appellants sought to strike out complaint – where Senior Member presiding at compulsory conferred heard and decided strike out application – where Senior Member dismissed the application to strike out the complaint – where s 71(3) of the Queensland Civil and Administrative Tribunal Act 2009 provides the person presiding must advise the parties of their rights to object to the person constituting the Tribunal for the proceeding – whether evidence of what was said by the Senior Member at compulsory conference admissible – where appellants seek to appeal decision of the Senior Member – where appellants contend decision affected by apprehended bias – where appellants contend Senior Member failed to give adequate reasons – whether leave to appeal should be granted Anti-Discrimination Act 1991 (Qld), s 11 Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500, followed QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited |
APPEARANCES and REPRESENTATION (if any):
| APPELLANTS: | Dr Max Spry of Counsel, instructed by Crown Law |
| RESPONDENT: | Mr Ken Watson of Counsel, instructed by Susan Moriarty & Associates |
REASONS FOR DECISION
On 21 August 2012, the Tribunal dismissed an application by the State of Queensland and Dawnette Le Roux to strike out complaints of unlawful discrimination made by Elizabeth Aigner against them.
The order was made following a hearing and determination on the papers, pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’). The strike out application was filed after a compulsory conference between the parties, under Division 2 of the QCAT Act.
The appellants now seek leave to appeal the decision to dismiss the strike out application and ask that this Appeal Tribunal to set aside the decision and substitute its own decision, namely that Ms Aigner’s complaint be dismissed.
The appellants submit that the Tribunal erred in law because:
(a)the Tribunal was affected by apprehended bias, in that the Senior Member conducted the compulsory conference and also decided the strike out application;
(b)the Tribunal failed to give adequate reasons for its decision to dismiss the application to strike out the complaint;
(c)the Tribunal misapplied the test in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; and
(d)the Tribunal gave no reasons in relation to the Appellants’ submissions under s 48 of the QCAT Act.
Leave to Appeal
The appellants seek leave to appeal in accordance with s 142(3)(a)(ii) of the QCAT Act on the basis that the appeal raises questions of general importance and a decision would be to the public advantage. Further, they say an appeal is necessary to correct a substantial injustice to the appellants caused by error on the part of the Senior Member below.
The respondent contends that there has been no substantial injustice, there has been no error of law and further no substantive rights have been determined by the decision which would justify the grant of leave to appeal.
The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appellate court or Tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389.
In this case, construction of ss 73 and 74 of the QCAT Act is required, together with consideration more broadly of those sections of the QCAT Act dealing with compulsory conferences. This consideration is of general importance in the operation and implementation of the QCAT Act and the procedures related to compulsory conferences which form a critical part of the operations of the Tribunal. We accept that the appeal raises questions of general importance about which a decision of the Appeal Tribunal is to public advantage.
For these reasons, leave to appeal is granted.
Leave to rely upon further affidavit
The appellants were permitted to file an affidavit of Catriona McPherson, sworn 18 February 2013 at an earlier Directions Hearing. The question of the admissibility of the affidavit is one for the Appeal Tribunal.
Ms McPherson is a senior lawyer in the office of the Crown Solicitor. She attended the compulsory conference in the proceeding. Relevantly, the affidavit deals with the learned Senior Member’s comments at the conclusion of the compulsory conference to the effect that she would have no further involvement in the proceedings and that she did not know which Member would preside over the proceedings concerning the respondent’s complaint.
Mr Watson for the respondent objected to the admission of the affidavit on the basis that the QCAT Act provides for the inadmissibility of evidence of anything said or done at compulsory conference, subject to limited exceptions which are not applicable. The respondent does not seek to file further evidence about the issues addressed by Ms McPherson, in the event that leave is granted to the appellants. By way of explanation, Mr Watson advised the Tribunal that the lawyer who attended the compulsory conference on the respondent’s behalf had in fact left the firm. However, his primary argument was that the evidence was inadmissible.
In particular, Mr Watson submitted that s 74 of the QCAT Act is intractable and that what is said during a compulsory conference should not be admitted into evidence. He submitted that what was said did not amount to a direction or order falling within the exemption from admissibility in s 74(2)(b). He considered it to be merely a statement of intention.
Mr Watson also said that even if the affidavit were to be admitted it does not take the matter anywhere so far as the appellants are concerned. He considered that a decision of the Court of Appeal in Maher v Adult Guardian & Anor[5] was distinguishable on the basis that the Member, in that case, had presided over an earlier determination as opposed to a compulsory conference.
[5] [2011] QCA 225.
The appellants submit that the further evidence is limited to what the Senior Member said at the conclusion of the conference, and does not traverse discussion about the substance or merits of the application which occurred in the conference process. They say that the comments were tantamount to the learned Senior Member disqualifying herself, although she did not make a formal order to that effect, and that they were entitled to rely upon them.
Section 74(1) provides for the inadmissibility of evidence of ‘anything said or done during a compulsory conference’. Section 74(2) sets out limited exceptions to the prohibition established in s 74(1). The exceptions concern evidence that all parties to the proceeding have agreed may be admitted; evidence of a direction given or order made at the conference (or the reasons for it); and evidence relevant to offences and contempt proceedings or orders made in the absence of a party under s 72(1). Similar provisions apply to mediations, save that the exceptions are more limited again in recognition by the Parliament that directions and orders cannot flow from a mediation.[6]
[6] QCAT Act s 83.
Section 74(1) is an absolute prohibition, with few and specific exceptions. It is apparent from Chapter 2 Part 6 Division 2 of the QCAT Act about compulsory conferences that it is the intent of the legislature for parties to be encouraged and they are expected to have fulsome discussions in compulsory conferences. Section 69 sets out the various purposes of conferences, including identification and clarification of issues and promoting settlement of the dispute. It further confirms that if the proceeding is not settled, then a purpose is to make directions and orders about the conduct of the matter or as are appropriate to resolve the dispute. Conferences are generally held in private.[7]
[7] Ibid s 70(2).
These provisions recognise the sacrosanct nature of the discussions which parties are expected to have at compulsory conferences and the confidentiality which they are entitled to expect in relation to those discussions.
Unlike hearings and directions hearings, compulsory conferences are not recorded. Therefore, the Appeal Tribunal does not have the benefit of a transcript of the comments attributed to the learned Senior Member, in an instance such as this appeal presents.
The prohibition and limited exceptions in s 74 are clear and should be strictly construed. Accordingly, the affidavit setting out comments alleged to have been made by the Senior Member is inadmissible.
There is a further reason for refusing to rely upon the affidavit. We appreciate that the appellants say in effect that the learned Senior Member made a direction about her further involvement, which inexplicably she did not formalise.
However, this appeal is not made with the purpose of seeking correction of the order (if indeed the order made is incorrect, which we do not need to consider). They seek to appeal on the basis of apprehended bias. The affidavit for which leave is sought does not reveal the basis for a reasonable apprehension of bias (unless involvement in a compulsory conference per se gives rise to a reasonable apprehension of bias, a proposition which we reject as discussed later), as opposed to proposing a basis for suggesting the order made was incomplete. That being so, the affidavit is in any event, not germane to the issues relied upon to impugn the decision of the learned Senior Member.
Leave to rely upon the affidavit of Ms McPherson is refused.
Apprehended bias
The appellants submit that they filed the strike out application after the compulsory conference. They did not object to the Senior Member constituting the Tribunal for the proceeding as contemplated by s 73(3) of the QCAT Act, because they thought the Senior Member would not do so in light of her statement after the compulsory conference.
It was also submitted, by the appellants, that a compulsory conference in discrimination cases involves the parties seeking a resolution to the matter: the evidence is discussed, the evidence that would be called may be traversed, or the positions of the parties are disclosed and various opportunities are pursued for settlement. The appellants submitted that the over-riding obligation of the Tribunal is one of procedural fairness, and that the Senior Member ought not to have further involved herself in the proceeding, having conducted the compulsory conference. Actual bias of the learned Senior Member is not alleged
The appellants conceded at the hearing that Chapter 2 Part 6 Division 2 of the QCAT Act is structured such that a member who conducts a compulsory conference may also hear the substantive argument, other than where an objection is taken or the member has disqualified him or herself.
Mr Watson referred the Appeal Tribunal to a decision of Michael Wilson & Partners Ltd v Nicholls[8], where the application of the apprehension of bias principle was discussed. Applying the two step process referred to in that decision to the facts of this case Mr Watson said that, first, it is the conduct of the compulsory conference which could be said to lead the Senior Member to decide the case on other than its legal and factual merit. However, on the second point, there needs to be an articulation of the logical connection between the conduct of the compulsory conference and the feared deviation from the course of deciding the case on its merits. He submitted that, in this case, there is no necessary connection.
[8] (2011) 244 CLR 427.
The QCAT Act does not speak in terms of prohibiting the member who has embarked upon the compulsory conference process from further involvement. It invests the member with a discretion and allows the parties themselves to object. There is no inference in the legislation that there is something inherent in the nature of a compulsory conference which might give rise to an apprehension of bias.
However, as a matter of practice, a member who convened a compulsory conference does not constitute the Tribunal for the final hearing unless parties specifically agree to it. That said, it is not uncommon for a member who convened the compulsory conference to constitute the Tribunal for directions hearings and, on some occasions, for other interlocutory hearings.
A reasonable apprehension of bias will be established if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that must be decided.[9] There are two steps in applying the test: identification of what is alleged may lead the decision-maker to decide the case other than on its merits; and the logical connection between the matters identified and the feared transgression.[10]
[9]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 per Gleeson CJ, McHugh, Gummow and Hayne JJ.
[10] Ibid 345.
In our view the nature of the decision made by the learned Senior Member is relevant. The Senior Member was required to weigh the evidence according to the test in Deyv Victorian Railways Commissioners[11] in order to reach a conclusion about whether Ms Aigner has an arguable case. She was not tasked with deciding issues of credit, or determining the proceeding on its merits. Although required to engage with the material, the learned Senior Member’s task was a limited one.
[11] (1949) 78 CLR 62.
Having regard to the limited nature of the exercise to be performed it would be surprising, in the circumstances of the application for strike out or dismissal, that apprehended bias could result from having convened the compulsory conference. Having regard to the two step test for apprehended bias it is apparent that, in the circumstances of the limited task of the Senior Member, there is no logical basis to conclude that convening the compulsory conference would lead a fair-minded bystander to reasonably apprehend that she might not bring an impartial mind to the task.
The appellants say that they were denied the opportunity to object to the Senior Member dealing with the strike out application. That is regrettable from the appellants’ point of view and means that they did not achieve their desired outcome of another member dealing with the strike out application. However from a broader, objective perspective, especially given the structure of Chapter 2 Part 6 Division 2 of the QCAT Act, it does not mean there is an apprehension of bias or that there is any connection between the conduct of the compulsory conference and the outcome of the strike out application.
We conclude that it is not reasonable to find an apprehension of bias on the part of the learned Senior Member, simply because she conducted the compulsory conference. The decision in the strike out application is not impugned for this reason.
We are comforted in that conclusion because we consider the decision stands up to scrutiny as being a reasonable and just result. The basis for this view follows.
The Senior Member acted upon a wrong principle
The appellants say that they urged the Senior Member to consider the respondent’s contentions and to take all her evidence at its highest. In other words, for the purpose of the strike out application they were prepared to accept the truth of her evidence without the need for testing.
On that platform they argued that the respondent could not succeed in her claims. The appellants complain that the learned Senior Member did not address the evidence on the basis of forming her own conclusion but, rather, expressed the view that the evidence should be tested and weighed in a hearing. The appellants say that it was not necessary for a full hearing given the position they had taken, and that the decisions of Dey v Victorian Railways Commissioners[12] and General Steel Industries Inc v Commissioner for Railways (NSW)[13] required her to fully address the evidence before coming to a decision, rather than leaving it to the another member at a hearing.
[12] (1949) 78 CLR 62.
[13] (1964) 112 CLR 125.
The respondent says that the learned Senior Member did consider the contentions, and the evidence, and she found that this was not a case entirely without merit. We accept that submission on the following basis.
The learned Senior Member made the following points in her decision:
(a)The High Court of Australia in Dey’s case and General Steel Industries require a cautious approach to ensure the interests of justice are met;[14] and,
(b)‘There will be cases where nothing more than mere assertions are made about an alleged breach or where the filed evidence is sufficiently tangential to the issues to be determined to warrant summary dismissal but this case is not one of those. It is not a plain and obvious case warranting dismissal’.[15]
[14] Aigner v State of Queensland and Anor [2012] QCAT 397 at [7].
[15] Ibid [13].
The learned Senior Member did consider the evidence in order to form the view that it does not involve mere assertion, or is tangential to the issues. She has not misapplied the tests in Dey’s case and General Steel Industries. On the contrary, she was conscious of the heavy onus not to strike out unless the case is entirely without merit, which both cases emphasise.
The Tribunal’s role was not to decide the case on the evidence before it but, rather, to determine whether an arguable case, no matter how weak, is demonstrated so that a strike out is either warranted, or unwarranted.
The appellants’ complain, too, that Ms Aigner suggested that she intends to file further evidence. That intention was remarked by the learned Senior Member. The appellants say that the possibility of further evidence was an irrelevant consideration in light of the two sets of Directions which had been previously made about delivery of evidence, and in light of s 48(1)(a) of the Act. They complain that s 48(1)(a) of the QCAT Act was not addressed by the learned Senior Member.
We do not think the possibility of further evidence being presented by the respondent had a discernible effect upon the learned Senior Member’s conclusion that this was not a case entirely without merit. She did not acknowledge that any such evidence would be admitted in light of the previous Directions, but said that was properly a matter for argument before the member ultimately hearing the matter. It is not the case that there is a prohibition on further material, which the respondent is seeking to ignore. The Directions provide, as pointed out by the learned Senior Member, that leave of the hearing member will be necessary if additional evidence is to be introduced at the hearing.
The respondent makes two complaints of indirect discrimination in this case. First, that she could not comply with a term imposed by her employer that she transfer from an Older Person’s Mental Health Unit (Grevillea) at the Princess Alexandra Hospital to an Adult Acute Psychiatric Unit (AAPU), at the hospital, regardless of her impairment, because she had not completed mandatory Aggressive Behaviour Management training and she was unable to do so because of an arthritic hip impairment. Secondly, that she could not comply with a term imposed by her employer that she could only return to work, after a period of illness, to the Mental Health Division of the District, comprising Grevillea and the AAPU, regardless of her impairment, because her arthritic hip which prevented her from undertaking work with patients in AAPU.
On the material filed in the proceeding there would seem to be an actual conflict on the evidence as between the parties. This is not a case where, as is contended by the appellants, it can be said there is no evidence or no relevant evidence available to the respondent.
For example, the appellants contend that Aggressive Behaviour Management training was not a mandatory or inherent requirement of the respondent’s position. They say there is no evidence of the alleged impairment. The appellants also say that there is no evidence of a comparator in this case. Further, they say the respondent’s reasons for not wanting to return to the Grevillea unit relate to other issues than her alleged impairment.
The respondent points out that the requirement to work at the AAPU, which exposes her to greater levels of violence, is the relevant term (rather than whether the training was mandatory) and that if she could have successfully completed the Aggressive Behaviour Management training she would have been assisted in dealing with that.
It is said on behalf of the respondent that there is a statement letter from the respondent’s General Practitioner in evidence as well as the evidence of the respondent, a nurse, in relation to the impairment. It is said that it is not the case that there is no evidence; rather, it is a question of the weight to be ultimately afforded that evidence at a hearing
In relation to evidence of a comparator the respondent says that the statement of Mr Allen, filed on 28 May, 2012 refers to people able to be moved to the AAPU, as those people who had completed the Aggressive Behaviour Management training. The people are nominated and they are said to represent a higher proportion of people who can comply with the requirement to transfer, because they have completed the training, than the respondent.
As to the reasons for not wanting to return to Grevillea, Mr Watson points to evidence at paragraph 128 of the respondent’s affidavit filed 28 May 2012 to the effect that she did not want to go back to Grevillea because she had been told there would be absolutely no guarantee that she would stay in Grevillea and no guarantee had been given to her that she would not be removed or transferred to somewhere else as soon as the dust settled. Mr Watson says it is a reasonable inference that she might be transferred to the AAPU in the future, leaving her in the same position.
We accept Mr Watson’s submission that there was evidence of the matters the subject of the Complaints, sufficient to avoid a strike out. We accept his submission that the appellants are seeking to challenge the respondent’s evidence in this application, which is a different proposition to saying the evidence does not substantiate the complaint that has been made.
We accept his submission that it is in the context of the appellants’ challenge to the evidence, particularly as to the respondent’s reasons for not wanting to return to Grevillea, that the Senior Member said the accuracy of the evidence, the creditability of the respondent and the weight to be accorded to her evidence should properly be decided by a member at the final hearing. We reject the appellant’s submissions that this statement by the learned Senior Member demonstrates that she has not considered the evidence, and has simply referred the matter to another Member.
We find that the decision of the learned Senior Member did not involve acting upon a wrong principle. She considered the evidence to a degree sufficient for the purposes of the application to strike out, and then applied the correct principles attaching to the discretion invested in her in an application of that kind.
The Senior Member failed to give adequate reasons for her decision, giving rise to the inference that the Senior Member misunderstood the significance of the evidence or overlooked it, or failed to give consideration to it
The appellants say that the learned Senior Member did not specifically address an alleged lack of medical evidence as to the respondent’s alleged impairment, the evidence of Mr Ollier that successful completion of Aggressive Behaviour Management training is not a genuine occupational requirement of the respondent’s position, the assertion that the respondent is not required to participate in Team Restraints, and the respondent’s evidence that she was only required to return to Grevillea and her reasons for not wishing to do so. It is submitted that the Senior Member’s reasons do not disclose whether she had any regard to these matters.
They also assert a failure to address their application to strike out under s 48 of the QCAT Act with respect to the prospect of further evidence being filed, suggests that the Senior Member failed to take into account a relevant consideration – namely, prejudice or potential prejudice to the appellants.
As remarked earlier, the respondent contends that there was evidence before the learned Senior Member as to impairment. It is also submitted that s 11 of the Anti-Discrimination Act 1991 is not only engaged by a failure to complete the training. In particular, the respondent’s evidence and contentions refer to a requirement to work at the AAPU where ‘take downs’ are common as a result of the risks to staff working there. The evidence of the respondent is that she could not perform that aggressive behaviour technique because of her impairment. Finally, it is the respondent’s evidence that a return to Grevillea was not the only place she might be required to work and that if she was later transferred to the AAPU, she would face the same problems because of her impairment.
There was, then, evidence before the learned Senior Member in relation to all the matters raised by the appellants. The Senior Member observed that ‘Ms Aigner has provided evidence that she contends will support her complaint’[16] and later said that the evidence is not mere assertion or tangential to the issues.[17] We find that these are sufficient reasons to refuse a strike out application in circumstances where the Tribunal’s role is to determine if the respondent’s case is without merit.[18]
[16] Ibid [12].
[17] Ibid [13].
[18] Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507.
As to the complaint that s 48 of the QCAT Act was not specifically addressed by the learned Senior Member, the respondent makes the valid point that a strike out based on s 48 was only raised for the first time in the appellant’s submissions in reply. No amendment of the application was sought, and the respondent had no opportunity to meet the argument. We accept the respondent’s submissions in this regard and reject the appellants’ submissions for these reasons.
Orders
On the basis of the matters set out in this Decision, we order that:
(a)leave to appeal is granted.
(b)the appeal is dismissed.
Neither party sought an order for costs. In light of the matters set out in s 100 of the QCAT Act no order as to costs is made.
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