The State of Queensland acting through Queensland Health v Ball

[2011] QSC 50

SUPREME COURT OF QUEENSLAND

CITATION:

The State of Queensland acting through Queensland Health & others  v Ball & others [2011] QSC 50

PARTIES:

THE STATE OF QUEENSLAND ACTING THROUGH QUEENSLAND HEALTH
(first applicant)
and
JUNE URQUHART
(second applicant)
and
MARY WHEELDON
(third applicant)
v
JULIE BALL AS DELEGATE OF THE ANTI-DISCRIMINATION COMMISSIONER QUEENSLAND
(first respondent)
and
JULIETTE GAVERAN
(second respondent)

FILE NO/S:

9400 of 2010

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

28 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2011

JUDGE:

Daubney J

ORDER:

1. The application is dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – EXTENSION OF TIME – GENERALLY – where an application is made for judicial review – where a discretion was exercised pursuant to s 138(2) of the Anti-Discrimination Act 1991 (Qld) – where the decision has the effect of extending the limitation period under s 138(1) of the Anti-Discrimination Act 1991 (Qld) – where it is alleged the decision maker made errors sufficient for relief under the Judicial Review Act 1991 (Qld)



ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – EXTENSION OF TIME – PARTICULAR CASES – where an application is made for judicial review – where a discretion was exercised to accept a complaint of discrimination – where the decision has the effect of extending the limitation period under s 138(1) of the Anti-Discrimination Act 1991 (Qld) – where it is alleged the decision maker made errors sufficient for relief under the Judicial Review Act 1991 (Qld)

Anti-Discrimination Act 1991 (Qld), s 138
Judicial Review Act 1991 (Qld) , ss 20, 24

Buderim Ginger Ltd v Booth [2003] 1 Qd R 147, considered

COUNSEL:

C Murdoch for the applicants
A Coulthard for the first respondent
R Reed for the second respondent

SOLICITORS:

Crown Law for the applicants
Julie Ball, Anti-Discrimination Commission Queensland for the first respondent
Ausslaw Pty Ltd for the second respondent

HIS HONOUR:  This is an application for judicial review of the
decision of the first respondent whereby the first respondent
exercised a discretion pursuant to Section 138 Subsection 2 of
the Anti-Discrimination Act to accept a complaint made by the
second respondent of discrimination in so far as the complaint
consisted of allegations of discrimination occurring more than
12 months prior to 17 February 2010, that being the date on
which the complaint was lodged with the Anti-Discrimination
Commission of Queensland.

The first respondent's decision, thereby, had the effect of
extending the limitation period otherwise applicable under
Section 138 subs 1 of the Anti-Discrimination Act.

That section provides:

"(1)  Subject to Subs (2), a person is only entitled to make a
     complaint within one year of the alleged contravention
     of the Act;

(2)  The Commissioner has a discretion to accept a complaint

after one year has expired, if the second respondent
 shows good cause."

Details of the anti-discrimination complaint are set out in
the material before me.  It is sufficient for present purposes
to note that the discrimination complaint arose out of
allegations concerning employment dealings in the course of
the second respondent's employment at the Prince Charles
Hospital.  In particular, the alleged discriminatory conduct
occurred after the second respondent fell pregnant in about
July 2007.

The allegations are that after she fell pregnant, hospital
representatives procured an agreement from her to reduce her
working hours from full-time hours to part-time hours,
purportedly so as to not jeopardise her eligibility for paid
maternity leave, and on a condition that she would revert to
full-time hours when she had recovered from a pregnancy
related condition.

There were further allegations that in January 2009, after her
return to work, representatives of the employer refused her
request to revert to full-time hours.

There were also allegations that the employer’s representatives, in about May 2009, acted to frustrate the second respondent's attempts to supplement her employment at the Prince Charles Hospital by obtaining casual employment at the Royal Brisbane and Women's Hospital.

Some time prior to 7 August 2009 the second respondent retained a firm of solicitors.  On 7 August 2009 that firm wrote to the Prince Charles Hospital "with respect to our client's employment with your hospital and issues of discrimination that our client alleges has occurred during the course of that employment".

The letter set out further detail of the complaints in general
terms to which I have already referred and concluded with a
reservation of the second respondent's "rights under any applicable law to bring legal action against the Department of Health, the Prince Charles Hospital or the Nurse Unit Manager for discrimination".

It is clear on the material before me (as it was on the
material before the decision maker) that the second respondent then changed solicitors and her new solicitors on about 17 February 2010 lodged a formal complaint with the Anti-Discrimination Commission.

It is relevant also to observe that, in the meantime, the second respondent was pursuing the prospect of relief by way of compensation from WorkCover Queensland. She had in June 2009 lodged an application for compensation with WorkCover on the basis that she had suffered physiological symptoms, anxiety, stress and other disorders as a result of her dealings with the Prince Charles Hospital nursing managers and the conditions of her work.

As late as 14 December 2009, after rejection of her claim by WorkCover, she filed an application for a review of the WorkCover decision and then on 29 January 2010 filed a further application for review with QComp.

The time line, therefore, discloses that the instances of alleged discriminatory conduct occurred over a period of years from mid-2007. Given that the formal complaint was filed in February 2010, Section 138 required, in effect, an extension of time in respect of allegations of discriminatory conduct which occurred prior to February 2009.

The necessity for the second respondent to seek extensions of time was identified and the relevant delegate of the Anti-Discrimination Commissioner gave her and the present applicants opportunity to advance their respective arguments as to why the necessary extensions under section 138 ought or ought not be granted.

Ultimately, on 4 August 2010 the decision was made and communicated to the parties.  The decision maker's decision was to accept the complaint. 

In written reasons provided to the parties, the decision maker set out her reasons for deciding to accept the complaint. The written reasons refer specifically to the necessity for the second respondent to show good cause under section 138(2) of the Anti-Discrimination Act.

The decision maker referred appropriately to the approach articulated in Buderim Ginger Ltd v. Booth [2003] 1 Queensland Reports 147, in which Atkinson J said at [22]:

"Although it is not essential to show there is a reason for and a justification for the delay in order to show good cause, such a consideration is always relevant to such a decision.  In forming an opinion that the complainant has shown good cause, the Commissioner is not fettered by ridged rules, but must take into account all of the relevant circumstances of the particular case, such as the length of the delay; whether the delay is attributable to the acts or omissions of the complainant or his or her legal representatives, the respondent, or both; the circumstances of the complainant; whether there has been a satisfactory explanation for the delay; and whether or not the delay will cause prejudice to the respondent."

I note that the decision maker in this case quoted the second sentence from that extract verbatim in her reasons for decision. 

The decision maker went on then to give a description of matters that emerged from the material before her under the headings: 

• Length of Delay
• Circumstances of the Complaint
• Reasons for delay
• Prejudice to the respondents.

The decision maker then expressed the following conclusion:  "I am of the view that:

• The delay is substantial

• A significant part of the delay is attributable to the pregnancy, the birth and maternity leave.
• The second respondent's personal circumstances, namely the pregnancy, being ill during the pregnancy, giving birth and being on maternity leave, experiencing marital problems and then depression may have hindered lodgement of the complaint within the statutory time frame.
• The second respondent endeavoured to resolve her issues through other means.
• The respondent is still able to call most important witnesses.
• The respondent’s records relevant to the complaint will assist in preserving and recalling memories.
• There does not appear to be any actual prejudice to the respondents.

For all the reasons set out above, I am of the view that the second respondent has shown good cause and that it is reasonable to accept the complaint."

I note also that, when articulating matters under the heading "Reasons for Delay", the decision maker, apart from setting out a chronology of matters, said this:

"There is no indication of when the second respondent became aware of the time limit for lodging complaint. The "Reservation of rights to bring legal action for discrimination" in the letter from her then solicitors in August 2009 suggests a possible misunderstanding of the processes and requirements for dealing with complaints under the Act."

The applicant advances three alleged errors which, it is said, were committed by the decision maker and which, so it is argued, vitiate the decision maker's decision and properly found the granting of relief under the Judicial Review Act.

The first of the errors argued was that the decision maker failed to properly apply the test of determining good cause, and this had been shown by a failure to articulate that good cause had been shown for the entirety of the period leading up to the date to which the extension was sought.  In particular, the applicant focused on the period of months between October 2009 (following rejection of the complaints by the applicants then solicitors in response to the letter of 7 August 2009 from the second respondent's first solicitors) and February 2010 when the formal complaint was lodged.

The gist of the argument advanced on behalf of the applicants was that there was nothing in the material before the decision maker from which the decision maker could reach a conclusion that “good cause” had been shown with respect to that period of four months. 

The argument was, in effect, that there was, or needed to be, a continuum of good cause circumstances shown throughout the entirety of the period in respect of which an extension was sought in order for the decision maker to be satisfied that good cause had been shown. 

That argument, it seems to me, must be rejected.  The proper approach of a decision maker in a case such as the present is seen in cases such as that to which I have already referred, namely Buderim Ginger Ltd v. Booth.

Apart from the quote from the judgment of Atkinson J to which I have already referred, I should also refer to the observation of de Jersey CJ, agreeing with Atkinson J, where His Honour said at [2]: 

"Atkinson J has referred to some of the matters which may fall for consideration in determining whether “good cause” has been shown, of which the reason why the complaint was not made within time, the extent of the delay in its being brought forward, and whether accepting the complaint late would occasion prejudice to the respondent, will often feature prominently."

The exercise undertaken by the decision maker here was not to
decide whether, during the entire period of the delay, there
was a continuous state of "good cause".

The task of the decision maker was to examine all of the
relevant circumstances in order to come to a conclusion as to
whether or not, in all of the relevant circumstances, good
cause had or had not been shown.

To accede to the submission advanced on behalf of the
applicants would run directly contrary to the well-accepted
proposition that satisfactory explanation for a delay is not a
condition precedent to the exercise of discretion.  It is well
settled that, whilst such an explanation may (and often will) be relevant to the exercise of the discretion, it is not a
necessary precondition.

The effect of the argument advanced by the applicant would be
to elevate a satisfactory explanation for each and every day of the delay to the height of itself constituting "good cause". That clearly is not the law.

It seems to me, therefore, that no error in the terms of the
first ground of appeal has been demonstrated in the present
case.

The second ground of appeal was an argument that the
decision maker erred by accepting that pursuing other means
to resolve the second respondent’s issues as opposed to lodging a discrimination complaint in circumstances where she was aware that the facts rendered a discrimination complaint open as "good cause" constituted a fatal error in the exercise of the discretion.

When pressed in argument on this point, counsel for the
applicants quite properly conceded that he was unaware of any

authority to support the gist of the argument that he was
seeking to advance.

In the present case, as is apparent from the matters I have
recited above, the second respondent pursued relief against
WorkCover at a time when she could (and perhaps even should)
have been pursuing her remedies under the Anti-Discrimination
Act. But the mere fact that she was pursuing those other
remedies against WorkCover does not, as a matter of law,
disentitle her from seeking to pursue such rights as she might
have under the Anti-Discrimination Act.

Clearly enough, it was relevant for the decision maker to have
regard to the fact that her pursuit of relief against
WorkCover was part of the explanation for the delay in seeking
relief under the Anti-Discrimination Act, but no authority has
been cited to support the propositions, and I would be reluctant in the extreme to find, that pursuit of that relief against WorkCover was relevant to such a magnitude in degree as effectively to disentitle the second respondent from being able to establish good cause under section 138(2).

Accordingly, I find that the second ground of appeal has not
been established.

The present applicant advanced a further ground in reliance on
section 20(2)(h) to the effect that there was no evidence or
other material before the decision maker as to why a complaint
of discrimination had not been made during the period after 8
September 2009 and the date of the complaint, namely, 17
February 2010.

It is, however, clear on the authorities that section 20(2)(h)
must be read with section 24 of the Judicial Review Act, with
the consequence that the ambit of section 20(2)(h) is limited
in its area of operation.

I accept the respondent's submission that the authorities are
now to the effect that the "no evidence" ground, as it was
accepted and applied prior to the advent of Judicial Review
Legislation, is now encompassed in the ground at section
20(2)(f) of the Judicial Review Act.

The grounds set out in section 20(2)(h) of the Judicial Review
Act could only be satisfied in the present case if there was
no evidence or other material from which the decision maker
could reasonably be satisfied that there was "good cause" for
accepting the out-of-time aspects of the complaint.

There was, in point of fact, considerable material before the
decision maker and the fact that she considered that material
is evident from the face of her decision.  It is risky to
mount an argument based only on the summary of conclusions
which appear at the conclusion of a decision.  One needs to
have regard, of course, to the body of the decision itself. When one looks to the decision as a whole it is quite clear that the decision maker had regard to the terms of the material that were before her. To descend further into the decision maker's consideration of that material would involve me impermissibly engaging in a merits review of the decision maker's decision and I expressly decline to do so.

Finally, the applicant advanced an argument that the decision
was so unreasonable that no reasonable person could have
exercised the discretion conferred by section 138 in the way
this decision maker did, that is, the Wednesbury ground of
appeal. It was conceded in argument that, were I otherwise
against the applicant in respect of the grounds of appeal
advanced, no further argument could be advanced in respect
of this final ground of appeal.

In all the circumstances, therefore, I am not satisfied that
the applicant has demonstrated errors on the part of the
decision maker sufficient to found the relief under the
Judicial Review Act sought in this application.

The application will be dismissed.

MR REED:  The application for costs is pressed, your Honour.
There's no reason why they shouldn't follow the event, in my
submission.

HIS HONOUR:  Now, just before I hear from you, what's the
position of the Anti-Discrimination Commissioner on costs?

MS COULTHARD:  The first respondent, your Honour, makes no
application as to costs.

HIS HONOUR:  Makes no application.  All right then.  Can you
resist costs?

MR MURDOCH:  No, I can't, your Honour.

HIS HONOUR:  All right.  Is it applicant or applicants?
Applicants, I suppose.

MR MURDOCH:  Applicants plural, yes.

HIS HONOUR:  The applicants will pay the second respondent's
costs of and incidental to the application. 

Is there anything else, ladies and gentlemen?

MR MURDOCH:  No, thank you, your Honour.

MR REED:  Nothing further from me.

HIS HONOUR:  All right.  Thank you all for your assistance
today.

THE COURT ADJOURNED AT 11.58 A.M.

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