Vale v State of Queensland - [2019] QCAT 290

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Vale v State of Queensland & Ors [2019] QCAT 290

PARTIES: JOHN ANTHONY VALE

(applicant)

v

STATE OF QUEENSLAND

(first respondent)

PETER SMALES

(second respondent)

DAVID ROBINSON

(third respondent)

DEBBIE-ANN CATHERINE BROOME

(fourth respondent)

APPLICATION NO/S:

ADL067-16

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

19 September 2019

HEARING DATES:
29 October 2018; 30 October 2018; 31 October 2018;
1 November 2018; 2 November 2018; 5 November 2018

Further written submissions filed on 7 January 2019 and 21 January 2019

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:
1. It is declared that in respect of complaint three the first respondent is liable for a contravention of s 15(1)(f) of the Anti-Discrimination Act 1991 (Qld).

2. It is declared that in respect of complaint four, the first respondent and second respondent are jointly and severally liable for a contravention of s 15(1)(f) of the Anti-Discrimination Act 1991 (Qld).

3.   Complaints one, two, five, six and seven are dismissed.

4.   Complaint eight, alleging victimisation by the first respondent and fourth respondent, is dismissed.

5.   The first respondent and second respondent are jointly and severally liable to pay the applicant the sum of $33, 906.16 within 14 days of the date of this order.

6. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the names of the relevant service users must not be published.

7.   The parties must make submissions as to costs, if any, by 4:00pm on 30 September 2019.

8.   The parties must make submissions as to costs in reply, if any, by 4:00pm on 7 October 2019.

CATCHWORDS:
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – INDIRECT DISCRIMINATION – Direct discrimination, indirect discrimination and victimisation – applicant employed as residential care officer (‘RCO’) with the Department of Communities, Child Safety and Disability Services (‘the Department’) – applicant develops chronic kidney disease which requires him to undertake continuous ambulatory peritoneal dialysis (‘CAPD’) – where applicant performed CAPD during his ‘crib break’ – where applicant prohibited by the Department from performing CAPD while working as an RCO – where applicant redeployed to an administrative role – whether prohibiting applicant from performing CAPD during his crib break as an RCO constituted discrimination on the basis of an impairment within the meaning of ss 10 and 15 of the Anti-Discrimination Act 1991 (Qld) – whether term imposed with which a higher proportion of people without his impairment comply or are able to comply being a requirement which is not reasonable having regard to the circumstances of the case and with which applicant not able to comply – whether requirement that RCOs not perform CAPD during their crib break was a “term” within the meaning of s 11 – whether any such term was reasonable – whether genuine occupational requirements of position meant any discrimination was not unlawful – whether applicant could comply with genuine occupational requirements notwithstanding need to perform CAPD – whether applicant required ‘special services or facilities’ – whether backfill arrangement was a ‘special service’ – whether backfill arrangement imposed ‘unjustifiable hardship’ on the Department within the meaning of s 35 – whether circumstances of the impairment imposed ‘unjustifiable hardship’ on the Department within the meaning of s 36 – whether Department did an ‘act’ that was reasonably necessary to protect the health and safety of people at a place of work within the meaning of s 108 – whether applicant subject to victimisation by the delayed presentation of his 15 year service certificate

Anti-Discrimination Act 1991 (Qld), s 5, s 6, s 7, s 8, s 9, s 10, s 11, s 15, s 25, s 35, s 36, s 108, s 130, s 133, s 204, s 205, s 206, s 208, s 209

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66

Catholic Education Office v Clarke [2004] FCAFC 197

Chivers v State of Queensland [2014] 2 Qd R 561
Collier v Austin Health (2011) 36 VR 1
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1996) 70 FCR 76
Haines v Leves [1987] 8 NSWLR 442
Hurst and Devlin v Education Queensland [2005] FCA 405
Kimberley Stallard v Alsum Aluminium Pty Ltd [2011] QCAT 490
Lyons v State of Queensland [2015] QCA 159
Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 160 ALR 489
New South Wales v Amery (2006) 230 CLR 174
Nojin v Commonwealth of Australia (2011) 283 ALR 800
Purvis v New South Wales (2003) 217 CLR 92
Qantas Airways Ltd v Christie (1998) 193 CLR 280
State of Queensland v Mahommed [2007] QSC 18
State of Victoria v Schou (No 2) [2004] VSCA 71
Tafao v State of Queensland [2018] QCAT 409
Thorne v Toowoomba Regional Council & Tytherleigh [2016] QCAT 212
Waters v Public Transport Corporation (1991) 173 CLR 349

Woodforth v State of Queensland [2017] QCA 100

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

JW Merrell, of counsel instructed by GR Cooper, Crown solicitor

REASONS FOR DECISION

This matter concerns whether Mr Vale was discriminated against at work because of an impairment he developed while employed by the Department of Communities, Child Safety and Disability Services (‘the Department’) as a residential care officer (‘RCO’) working with intellectually disabled people. Mr Vale had chronic kidney disease at the relevant time which meant he had to undertake continuous ambulatory peritoneal dialysis (‘CAPD’) twice during 12-hour shifts and once during an 8-hour shift. At the relevant time, Mr Vale worked three 12 hour night shifts, three 12 hour day shifts and one 8 hour variable shift per fortnight.
Mr Vale would conduct his CAPD during his 30 minute ‘crib break’. An RCO is entitled to two crib breaks in a 12 hour shift and one crib break in an 8 hour shift. CAPD took Mr Vale on average 20 minutes and, if the need arose, the process could be stopped within 30 seconds and resumed at a later time. The Department ultimately determined that Mr Vale could not continue as an RCO while he needed to undertake CAPD and Mr Vale was, as a result, redeployed to an administrative position.
Mr Vale’s principal complaint is that the conduct by the Department in transferring him from the position of RCO to an administrative position constituted unlawful discrimination against him within the meaning of the Anti-Discrimination Act 1991 (Qld) (‘ADA’). Mr Vale also includes in his complaint other conduct which occurred in the lead up to the decision to transfer him and once he began working in the administrative role. Mr Vale argues that the Department both directly and indirectly discriminated against him. Mr Vale has also alleged against the first and fourth respondents that he was subject to victimisation.
The Department deny that their conduct or that of its employees constituted unlawful discrimination but argues, in any event, assuming it did, that the conduct fell within one or more of the exemptions to the Act.
Background facts
Mr Vale commenced CAPD on 4 September 2015.
At that time Mr Vale worked as an RCO at 12 Donald Court, Maryborough where he was required to provide support services to three intellectually disabled persons. Mr Vale had been an RCO for 16 years and had known these three persons for the whole of that time. I accept that he was, accordingly, very familiar with their needs and behaviours.[1]
[1]Applicant’s submissions, [14].
Mr Vale’s role as an RCO was to provide support and quality care to the service users at 12 Donald Court in respect of all aspects of their daily lives. Those duties involved assisting service users with daily activities by providing them with their meals, assisting with personal care and preparing them for outside activities. Mr Vale agreed it was his responsibility to: clean the house; manage the service users’ financial affairs; attend to shopping and banking for the service users; and complete administrative tasks relating to the operation of the house. Mr Vale’s duties regarding personal care of service users included grooming, toileting, showering, bathing, and dressing.
The physical requirements for the RCO role were those set out in a position description, namely:[2]
[2]Statement of David Robinson, Annexure DR-1: Position Description of RCO.
·     Drive a manual car or mini bus…
·     Have and maintain a general level of fitness
·     Stand for long periods of time
·     Sit for long periods of time
·     Bend, kneel and crouch
·     Perform repetitive movements of hands and arms
·     Stay alert on night shifts
·     Lift a range of weights using safe practices when performing manual tasks…
·     Push manual wheelchairs…
·     Physically and mentally react quickly in situations where clients require immediate attention due to being at risk of harm
·     Supporting service users, as required, to develop skills in personal care (including personal hygiene and grooming), taking medication (as prescribed by their treating doctor), and assistance with safe mobility
·     Encouraging and modelling positive and socially appropriate behaviour and providing support with development and implementation of plans, including Positive Behaviour Support Plans
·     Effectively utilising behaviour support strategies to support those service users who exhibit challenging behaviour.
Mr Vale agreed in cross examination that, having regard to the position description, he was also required to assist clients with intrusive medical procedures and to employ protective actions as required to maintain safety and to take action to manage unpredictable and disruptive service user behaviour.[3] Mr Vale also agreed in cross-examination that service users could unintentionally harm other service users or an RCO by grabbing, hitting or pulling at them.[4]
[3]Respondents’ submissions, 3 December 2018, [98].
[4]Ibid [100].
Mr Vale’s dialysis procedure took approximately 20 minutes and had to be done twice during a day shift and once during a night shift. The parties provided an agreed statement of facts outlining Mr Vale’s dialysis procedure.[5] The process involved taking the dual dialyse bag from the heater/storage bag, connecting the line from Mr Vale’s Velcro belt to the draining bag, draining for 6-8 minutes, clamping the line, hanging the fresh dialyse solution from the curtain rod in the office, opening the clamp, releasing fresh dialyse (5-6 minutes), removing the empty fill bag from the curtain rail and placing it in a shopping bag with the empty drain bag, and then placing the shopping bag in the car which was parked immediately outside the front door.
[5]In compliance with Tribunal Directions of 5 November 2018.
Depending on the length of his shift, Mr Vale was entitled to one or two crib breaks during the day lasting 30 minutes in duration. Mr Vale would undertake the dialysis procedure while on his crib break in the office at 12 Donald Court. Mr Vale applied a procedure prior to dialysing whereby he would sit the service users down, either at the table to eat or in front of the TV. The office had clear glass walls which enabled Mr Vale to keep the service users in his ‘line of sight’ while undertaking CAPD.
A crib break is described in the relevant Award Quick Reference Sheet[6] as follows:
[6]Applicant’s statement of 5 April 2018, Attachment 7.

Meal times and rest pauses

Crib break for shifts up to 10 hours

Section 6.2.1(a)

·    30 minutes taken

·    Not to interfere with continuity of work

·    No deduction from wages

Crib break for shifts exceeding 10 hours

Section 6.2.1(a)

·    On a pro rata basis of above

·    One 60 minute break may be split and taken on 2 occasions in the one shift

·    Not to interfere with continuity of work

·    No deduction from wages

The words ‘continuity of work’ must be read, of course, in the context of all of the tasks involved in the job description. Those tasks did not require constant surveillance of the individual service users and would necessarily involve times during which Mr Vale’s attention was occupied doing things other than supervising the service users. Tasks of that nature would include administration of financial affairs, preparing meals and cleaning. Needless to say, there would also be times at which Mr Vale would need to look after his own personal needs, for example, toileting and eating. I would infer also that, during the crib break, there was some relaxation of requirements such that, while not interfering with the continuity of work, would permit Mr Vale, for example, to make necessary telephone calls. There was further evidence, for example, that other RCOs would have a cigarette outside the front door during the crib break.
On 15 September 2015 Mr Vale advised the Department that he had been performing dialysis at work (and would continue to need to do so). The Department responded as follows:
(a)The Department obtained a statement of work capabilities from Mr Vale’s, general practitioner, Dr Paul Cotton;
(b)Employees of the Department identified what they categorised as ‘risks’ in Mr Vale performing dialysis at work;
(c)In October 2015, a risk assessment was conducted of Mr Vale conducting dialysis at work which identified a number of moderate and high level risks to Mr Vale and the three service users;
(d)After considering options to mitigate those risks and meeting with Mr Vale to discuss other options to eliminate risk, the Department conducted a trial between November 2015 and February 2016, which involved other RCO’s and Direct Service Team Leaders (‘DSTLs’) being engaged to cover for Mr Vale while he performed dialysis;
(e)Following an analysis of that trial, the second respondent decided it was not reasonable for the back-filling to occur whilst Mr Vale undertook dialysis. Consequently, Mr Vale was presented with a number of options to consider which included the creation of an administrative position at the Maryborough Service Centre of the Department.[7]
[7]Letter of Mr Smales to Mr Vale of 26 February 2016, Affidavit of Peter Smales, [44]-[49] and Annexure ‘PS 12’.
Mr Vale accepted the administrative position (although he argues he had no choice) and commenced working in that role on 4 April 2016. Mr Vale received the wages he would have received had he still been working as an RCO until 17 June 2016.
From 17 June 2016, Mr Vale was paid as an administrative officer (classification AO3.3) until about 26 November 2016. Mr Vale had a successful kidney transplant on 27 November 2016 and from about that date was paid his ordinary wages as an RCO. Mr Vale recommenced duties at 12 Donald Court as an RCO performing shift work on 2 March 2017.
The complaints
Mr Vale’s complaints are particularised in his amended contentions.[8]
[8]Applicant’s amended contentions dated 3 July 2017.
At the hearing Mr Vale said that the alleged discrimination occurred from

11 November 2015 to 26 November 2016.
Mr Vale has made eight complaints arising out of the respondents’ conduct during that time which he says constitute unlawful discrimination against him. The complaints are as follows:
(a)The risk assessments conducted by the first respondent were erroneous and Mr Vale never had an opportunity to counter errors in relation to the assessments and ultimately was removed from his RCO role due to incorrect information provided in the assessments (complaint one).
(b)The first respondent had no ability to redeploy Mr Vale from the operational stream (under which his RCO position was classified) to an administrative position in the administrative stream (under which Mr Vale’s administrative position was classified) and that the reasons for doing so were incorrectly said to be ‘medical’ when no doctor’s report was in existence stating he was not fit to work as an RCO (complaint two).
(c)Once deployed to an administrative role, Mr Vale should have continued to receive the wages and shift penalties he would have received as an RCO (complaint three).
(d)Mr Vale was directly discriminated against in that he was not treated in the same way as another RCO without his impairment and was not provided with reasonable adjustment by not permitting him to continue as a RCO and instead offering him an administrative position (complaint four).
(e)The way he was treated in the administrative role, namely not receiving a plan of tasks, duties or training and, essentially being left to do meaningless jobs that he was forced to obtain from making his own enquiries around the office. Further, that his first review meeting took place four months after commencing in the role and that little changed after that meeting (complaint five).
(f)That he was redeployed on the basis of incorrect information provided in two reports (‘Analysis for Back-filling for Medical Procedure – John’ and ‘Alternative Duties/Relocation Options – John Vale Report’ and the Regional Manager’s letter of 26 February 2016 (complaint six).
(g)Mr Vale’s supervisors when employed in the administrative role revealed to other staff, without his consent, that he had a medical condition which was an infringement of his privacy (complaint seven).
(h)Mr Vale was the subject of victimisation by the fourth respondent when he was not provided with his 15-year service certificate of recognition at the time it was made available to be provided to him (complaint eight).
The response
The first, second and third respondents deny they unlawfully discriminated against Mr Vale in that a person without his impairment but who was required to work as an RCO at 12 Donald Court for an entire shift placing the service users at risk, would have been treated the same way. In particular, by being subjected to a risk analysis, provided with options to eliminate the identified risks, including by being subject to a back-filling trial, and being employed in a position away from 12 Donald Court.
In respect of the other complaints, the respondents submit they are misconceived because even if all were true, those acts and omissions were not on the basis of Mr Vale’s impairment.
In relation to any claim of indirect discrimination on the basis a term was imposed by the Department that Mr Vale was not permitted to return to work as an RCO until he had a kidney transplant, no such term was imposed or, if it was imposed, it was reasonable in all the circumstances to eliminate risks to Mr Vale and the service users brought on by performing dialysis at work.
If unlawful discrimination has occurred then the respondents contend that the following exemptions apply:
(a)Section 25(1), in that it was a genuine occupational requirement that Mr Vale be able to actively and continuously support and supervise service users during the entire shift without restriction;
(b)Section 35, in that permitting Mr Vale to perform dialysis on a shift would require back-fill support which would impose unjustifiable hardship on the Department including:
(i)       Practical difficulties in sourcing and organising other employees to back-fill the applicant for short periods of time while dialysis was being performed; and
(ii)      The back-filling would have taken more senior staff away from the duties they were required to perform.
(c)Section 36, in that the circumstances of Mr Vale’s impairment would impose unjustifiable hardship on the Department as Mr Vale’s employer;
(d)Section 108, in that the respondents’ treatment of Mr Vale was reasonably necessary to protect the health and safety of people at place of work in that Mr Vale, as an RCO was required to:
(i)       Physically react quickly in situations where service users required immediate attention due to risk of harm; and
(ii)      React quickly and use actions and avoidance strategies to maintain safety, particularly in the management of unpredictable and seriously disruptive service user behaviour, being duties Mr Vale would not be able to perform when performing dialysis at work.

The first and fourth respondents deny they unlawfully victimised Mr Vale within the meaning of s 130 because all the fourth respondent did was to make an enquiry of her senior manager if the certificate should be provided while Mr Vale was on sick leave and his QCAT proceedings were on foot. Further, that there was no evidence that the fourth respondent stopped, hindered or delayed the provision to Mr Vale of his certificate.
I turn now to consider, separately, whether there has been direct discrimination, indirect discrimination or victimisation with respect to Mr Vale.
Prohibited Discrimination
In Collier v Austin Health[9] it was held in the context of a matter involving equivalent provisions of the Equal Opportunity Act 1995 (Vic):
Anti-discrimination legislation gives effect to human rights principles which are of fundamental importance to individuals, society and democracy. In the words of Baroness Hale in Ghaidan v Godin-Mendoza, “[d]emocracy is founded on the principle that each individual has an equal value”. That equality is indispensable to the rule of law which is the foundation of our constitutional and governmental arrangements. It is built on the bedrock value that everyone without exception has a unique human dignity which is their birthright.
Following the statement of those and related principles in Arts 2 and 7 of the Universal Declaration of Human Rights, protection from and against discrimination was specified as a general human right in Art 26 of the International Covenant on Civil and Political Rights. Various conventions went on to specify that protection as a particular human right in given contexts…
…
…the Equal Opportunity Act prohibits discrimination on the basis of specified attributes, including the attribute of impairment. Discrimination has insidious individual effects and harmful social consequences. As I have said previously, to treat someone to their detriment on the basis of an attribute, such as race, gender or disability, is to act on the basis of stereotypical assumptions about them and their behaviour. It is not to act rationally on the basis of their individual worth and merit, but to act arbitrarily on the basis of a negative stigma which is attached to the attribute. The individual is left with feelings of pain, distress, personal injury and damaged self-worth. Depending on its nature and the circumstances, the discrimination can have serious physical, social or economic consequences for the wellbeing of the individual and their families. Most of all, it assaults the dignity which is the essence of their humanity. The consequences go beyond the individual. Returning to Baroness Hale in Ghaidan v Godin-Mendoza, discrimination “is damaging to society as a whole”. The harmful social consequences consist, among other things, in the damage which discrimination does to social cohesion and the wellbeing of the community, the financial and other costs of having and resolving discrimination disputes and the reduced or lost contribution of the complainant in the area of endeavour concerned.[10]
[9][2011] VSC 344.
[10]Ibid 6-7.
Section 208 of the ADA provides that the tribunal is not bound by the rules of evidence and, relevantly, ‘must have regard to the reasons for the enactment of this Act as stated in the preamble’. Relevantly, the Preamble provides that ‘the Parliament considers 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 that ‘the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone’.
Section 6 of the ADA provides that the objects of the Act are (inter alia) to ‘promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work…’. The principle that requires the provisions of an Act to be read in light of its statutory objects is ‘of particular significance in the case of legislation which protects or enforces human rights’.[11]
[11]Waters v Public Transport Corp (1991) 173 CLR 349, 359 (Mason CJ and Gaudron J.)
The ADA meets its objects by prohibiting discrimination on a ground in s 7, of a type in s 10 (direct discrimination) or s 11 (indirect discrimination), and in certain areas of activity, which include the work or work-related area.[12]
[12]ADA, s 6(2)(a).
Section 15 of the ADA provides:
15 Discrimination in work area
(1) A person must not discriminate—
(a) in any variation of the terms of work; or
(b) in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
(c) in dismissing a worker; or
(d) by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
(e) in developing the scope or range of such a program; or
(f) by treating a worker unfavourably in any way in connection with work.
(2) In this section—
"dismissing" includes ending the particular work of a person by forced retirement, failure to provide work or otherwise.
Direct Discrimination
Section 10 defines direct discrimination and provides:
10 Meaning of direct discrimination
(1) "Direct discrimination" on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
Here, the parties agreed that the relevant attribute was ‘impairment’. Impairment is defined to include total or partial loss of a bodily function.[13] I accept that Mr Vale’s chronic kidney disease resulted in, at least, a partial loss of a bodily function.
[13]ADA, s 4, Schedule.
Discrimination on the basis of an ‘attribute’ includes discrimination on the basis of a characteristic that a person with that attribute either generally has or that is often imputed to a person with that attribute (referred to as the ‘attribute extension’).[14] The need to undergo dialysis is a characteristic that a person with chronic kidney disease generally possesses and was, therefore, part of the protected ‘attribute’.
[14]ADA, s 8.
A person directly discriminates against another on the basis of an attribute if the person treats, or proposes to treat, the person with the attribute less favourably than another person without the attribute is, or would be, treated in circumstances that are the same or not materially different.[15] It does not matter whether the discriminator considers the treatment is less favourable.[16] The motive of the discriminator is irrelevant.[17] If there is more than one reason why a person has treated someone with an attribute less favourably, that less favourable treatment will be on the basis of the attribute if the attribute is a substantial reason for the treatment.[18] In determining whether there has been less favourable treatment in circumstances that are the same or not materially different, the fact the person may require special services or facilities is irrelevant.[19]
[15]ADA, s 10(1).
[16]ADA, s 10(2).
[17]ADA, s 10(3).
[18]ADA, s 10(4).
[19]ADA, s 10(5).
The words ‘on the basis of’ require there to be a causal link between the less favourable treatment and a person’s attribute. This is demonstrated by the examples in s 10.[20] It is not enough to show first that a person had an attribute and then only that the person was treated less favourably. There needs to be demonstrated a causal connection between the attribute and the treatment. In other words, it will be necessary to establish that the reason, or at least a substantial reason, for the less favourable treatment was the attribute. However, this is not the same as requiring there to be an intention or motive to discriminate.[21] It is well established that there can be direct discrimination within the meaning of s 10 without any intention to discriminate, provided that the protected attribute is causally relevant, in the sense that it is a substantial reason.
[20]The examples are part of the Act and can be used in interpreting the relevant provision: Acts Interpretation Act 1954 (Qld), s 14(3), s 14D.
[21]See for example, James v Eastleigh Borough Council [1990] 2 AC 751; Reg v Birmingham City Council, Ex parte Equal Opportunities Commission [1989] AC 1155.
The following issues must therefore be determined:
(a)Was the complainant treated less favourably than a person without the attribute would have received in circumstances that are the same or not materially different?
(b)What was the reason or reasons for the less favourable treatment?
(c)If more than one reason, was a substantial reason for the treatment the complainant’s attribute?
The words ‘less favourably’ are to be given their ordinary meaning.[22] They have been held to permit wide scope to the tribunal in applying its judgment to the facts proved in each case.[23] The words require a comparison to be made between the complainant and an actual or hypothetical ‘comparator’ in circumstances that are the same or not materially different.[24]
[22]Garton v Hillcrest Hospital Inc (1984) EOC 92-01, 76-010.
[23]Haines v Leves [1987] 8 NSWLR 442, 471.
[24]Ibid, citing Boehringer Ingelheim Pty Ltd v Reddorp [1984] 2 NSWLR 13.

The comparator for the purposes of s 10

Formulating the appropriate comparator can be difficult. The difficulty lies in excluding from the comparator the attribute and associated characteristics while at the same time giving content to the phrase ‘in circumstances that are the same or not materially different’.
The respondents submitted that the appropriate comparator was:
(a)an RCO, who was well regarded by the second respondent and who was working at 12 Donald Court;
(b)an RCO who was working at 12 Donald Court and who was performing day shifts between 7am and 7pm and night shifts between 7pm and 7am; and
(c)an RCO who did not have the applicant’s impairment of chronic kidney disease and did not have the characteristic of having to conduct Peritoneal Dialysis twice during day shifts and once during night shifts; and
(d)an RCO who:
(i) was partially restricted in their ability to immediately assist and respond to the service users in respect to any situation facing a service user at 12 Donald Court for 20 minutes; and
(ii) who was absolutely restricted in their ability to immediately assist and respond to the service users at 12 Donald Court in an emergency, for at least 30 seconds, due to a self-administered procedure being conducted while at work on a shift when caring for service users.
(e)the restricted abilities of the RCO, referred to in paragraph (d) hereof, were likely to be temporary and not permanent.[25]
[25]Respondents’ submissions, 3 December 2018, p 71.
Mr Vale argued that an appropriate comparator would be an RCO who was a diabetic and needed to self-inject insulin during a shift. There was a suggestion this was an actual comparator, however no evidence as to the identity of an actual person was provided. Mr Vale also refers in his statement to the following comparators:
As a comparison I could be disconnected and attending a Service User within 30 seconds, a shorter period of time than any other staff member who was in the toilet, outside hanging washing on the line or a person outside having a smoke (for up to 20 minutes), at least five metres away from the door.[26] (emphasis added)
[26]Applicant’s statement filed 3 March 2018, exhibit 1, Part A, p 489.
Alternatively, Mr Vale argued that, even adopting the respondents’ hypothetical comparator, he had been treated ‘less favourably’.
In my view, the appropriate comparator is a person without Mr Vale’s attribute of chronic kidney disease and need to undergo peritoneal dialysis.
The more difficult issue is whether the ‘circumstances’ for the purposes of s 10 include, as the respondents submit, where a person is partially restricted in their ability to attend to service users for 20 minutes, and absolutely restricted for 30 seconds due to a self-administered medical procedure?
In Purvis v New South Wales[27] the High Court considered the issue in the context of an equivalent provision in the Disability Discrimination Act 1992 (Cth). However, there was no ‘attribute extension’ provision like s 8 of the ADA. In Purvis, a student with a mental illness which led to disturbed behaviour was excluded from school due to his violent behaviour. It was held that the appropriate comparison was with another student ‘without the disability’, which meant another student without disturbed behaviour resulting from a disorder, not another student who did not misbehave. In other words, relevant ‘circumstances’ for the purposes of the comparison would include violent conduct on the part of another student who is not manifesting disturbed behaviour resulting from a disorder. As Gleeson CJ said, if the comparison was with a student who did not have the disability but who also did not otherwise misbehave, the comparison required by the Act would be purely formal. He said:
If the person without the disability is simply a pupil who is never violent, then it is difficult to know what context is given to the requirement that the circumstances be the same.[28]
[27](2003) 217 CLR 92, 101 (Gleeson CJ.)
[28]Ibid.
Gummow, Hayne and Heydon JJ said in respect of the issue:
[The appellant] sought to refer to a set of circumstances that were wholly hypothetical – circumstances in which no aspect of the disability intrudes. That is not what the Act requires.
In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given ….must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant’s argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.
The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person…It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability.[29]
[29]Ibid 160-161. Agreed by Callinan J at [273].
McHugh and Kirby JJ however in dissent said that the proper comparator was a student who did not misbehave. This was because the behaviour was related to the prohibited ground. If the case was one concerned with the ground of race or sex then the behaviour of the complainant could be considered. Thus it would be appropriate to consider the treatment of a man who behaves badly with that of a woman who behaves badly to see whether the man or woman, as the case may be, was treated less favourably on the ground of sex. They observed that provisions that extend discrimination to include characteristics have the purpose of ensuring anti-discrimination legislation is not evaded by using such characteristics as ‘proxies’ for discriminating on the basic grounds covered by the legislation.
The issue is whether s 8 of the ADA is an example of the type of extension provisions referred to by McHugh and Kirby JJ, and whether the effect of s 8 is not only to prevent characteristics of an impairment forming part of the comparator, but also from forming any part of the circumstances or context in which the comparison takes place.
In Lyons v State of Queensland,[30] the Queensland Court of Appeal had to consider the formulation of an appropriate comparator and circumstances where a deaf person had been excluded from jury duty. There Holmes JA held:
There can be no doubt that the appropriate comparator is a person without the applicant’s attribute of deafness or need to communicate through Aslan. But to posit a comparator with no further qualification than a desire to perform jury service is meaningless; it is to disregard the circumstances in which the relevant treatment of the applicant occurred. Here the circumstances in which the Deputy Registrar made her decision were that she was required to apply a law which, at least in her view, precluded the presence of an outsider in the jury room. That was not a question of the applicant’s needing a special service: the Registrar did not exclude her because of her need for the assistance of an interpreter but because of the perceived impossibility of an interpreter, as a person extraneous to the jury, being present in the jury room. The Tribunal Member appropriately had regard to that consideration as part of the circumstances of the relevant treatment in formulating the comparator of a person with hearing seeking the assistance of another in the jury room.[31]
[30][2015] QCA 159.
[31]Ibid [39].
More recently in Woodforth v State of Queensland,[32] it was held by McMurdo JA:
Section 10 of the AD Act requires the comparison to be made on the hypothesis that the treatment of the person without the impairment would be “in circumstances that are the same or not materially different” from those that constituted the context for the treatment of the impaired person. In that respect s 10 of the ADA is not different from s 5(1) of the DDA. But beyond that likeness, there are differences between the two statutes. The DDA contained no equivalent of s 8 of the ADA, the effect of which, in combination with s 10 of the ADA, is to proscribe discrimination on the basis of a “characteristic”. In the present case it proscribed discrimination on the basis of the applicant’s inability to communicate by speech. That proscription would be ineffective if the characteristic of a disability was also to be treated as a ‘circumstance’ in the comparison for the purposes of s 10. It would mean that there could not be direct discrimination on the basis of a characteristic of an impairment, because the comparator also would be a person with that characteristic.
…the Appeal Tribunal incorrectly likened this characteristic of the applicant’s impairment with the occurrences of violent behaviour that constituted the relevant circumstances in Purvis. They were occurrences which formed part of the factual context in which the student was treated. He was treated, by suspension and expulsion, in response to those occurrences. The required comparison was between the treatment of this student and the hypothetical treatment of another student. That hypothesis required the consideration of what would have been the treatment of another in response to occurrences of the same kind. The complication in Purvis, caused by the student’s behaviour also being an incident of his disability, did not exist in the present case. In the present case the relevant “treatment” was the response of police to a complaint of criminal conduct.
…The applicant’s case required a comparison between her treatment as a person with a hearing impairment and an inability to communicate effectively by conventional speech and a person without that impairment and that characteristic.[33]
[32][2017] QCA 100.
[33]Ibid [53]-[54], [57].
Having acknowledged the difference in the statutes (namely the absence of an ‘attribute extension’ in the DDA) McMurdo JA said:
And the DDA contains no equivalent of s 8 of the ADA, by which the meaning of discrimination on the basis of an impairment is defined to include discrimination on the basis of a characteristic of that impairment. Nevertheless their Honours’ reasoning in that respect is relevant because of its explanation of the need to construe a statute from a consideration of the operation of the statute as a whole, and to avoid, if possible, a construction of a term (“disability” in that case and “impairment” in the present case) which would exclude “from consideration that attribute….which makes that person ‘different’ in the eyes of others”.[34]
[34]Ibid [50], citing Purvis (2003) 217 CLR 92, 157, [212].

The Tribunal in Tafao v State of Queensland[35] purported to reconcile the Purvis and Woodforth decisions. That case concerned the treatment of a transgender woman prisoner in a male correctional facility who was referred to by male pronouns. There Member Fitzpatrick said:
Consistent with Woodforth I must identify any relevant characteristic of a protected attribute. It is also relevant to make a finding as to the occurrences which formed part of the factual context.
I conclude that if, as in Purvis and Lyons the impugned treatment was given in response to an occurrence which encompasses a characteristic of an attribute, that characteristic may form part of the common circumstances. I consider that the views of McMurdo JA in Woodforth in relation to a characteristic of an attribute, not properly forming part of the common circumstances, is limited to circumstances such as those occurring in Woodforth where the impugned treatment was not given in response to an occurrence which encompasses a characteristic of an attribute.
[35][2018] QCAT 409, [60]-[61].
I agree with that approach. The circumstances referred to in s 10 are all of the objective features which surround the actual or intended treatment of the impaired person by the person alleged to be the discriminator. These may include certain consequences of possessing a particular characteristic of an attribute if the impugned treatment occurred in response to an occurrence that resulted from a characteristic of an attribute. If this was not the case, the whole purpose of undertaking a comparison would be lost. Here, that means it is appropriate to take into account as part of the circumstances for the purposes of the comparison, that the comparator is partially restricted for 20 minutes and absolutely restricted for 30 seconds in attending to the needs of service users. I would also add that relevant circumstances would include that the restriction occurs during a crib break. These circumstances, so defined, are in my view, not materially different to Mr Vale’s circumstances at the relevant time.
I do not accept that it is necessary to include the reason for the restriction being to undertake a medical procedure. This is because the restriction occurred during a crib break when RCOs were otherwise free to do as they wished provided it did not interfere with continuity of work. Further, in my view, the CAPD did not materially add to the risk to service users. Defining ‘circumstances that are the same or not materially different’ in terms only of the time restriction identified by the respondents is also, in my view more consistent with the objects of the Act and, in particular with ss 8 and 10. The self-administered medical procedure is a characteristic of the impairment and should not, therefore, form part of the ‘circumstances’ for the purposes of s 10. This would be to ignore s 8.
I appreciate that the same criticism may be directed at defining ‘circumstances’ for the purposes of s 10 to include the time restriction which arises from the need to undergo the medical procedure. However, in my view, to draw that distinction is valid. If the medical procedure is eliminated then the question is whether the treatment would be the same if another RCO was similarly restricted/occupied (but not impaired and not doing dialysis). That is, in my view, is the correct question and one which is consistent with the objects of the ADA. To ask whether the treatment of another RCO would be the same if they were time restricted due to performing a medical procedure, is to effectively ask whether the Department would treat someone who was also impaired and needed to perform a medical procedure, albeit not the same procedure, the same way. This analysis or approach to the comparator exercise would, in my view, be meaningless and would undermine the objects of the ADA.
I agree with the respondents that Mr Vale’s comparators, being RCOs who are using the toilet, hanging washing on the line or smoking outside are not appropriate comparators because they do not deal with sufficient specificity with the partial and absolute restrictions experienced by Mr Vale. Having said that, it is entirely feasible that RCOs occupied in any of those ways would satisfy the hypothetical comparator scenario, presuming they were occupied for the same time (namely 20 minutes). I am satisfied that for each example the response time would have been at least 30 seconds.
My reasoning thus far is that the comparison to be undertaken pursuant to s 10 is between the treatment of Mr Vale and the treatment of:
(a)a person without chronic kidney disease and without the need to undergo dialysis;
(b)who is a RCO at 12 Donald Court;
(c)who, during his or her crib break, is partially restricted from attending to service users for 20 minutes and absolutely restricted from attending to service users for 30 seconds.
At the heart of these proceedings is whether it was unlawful discrimination to, in effect, transfer Mr Vale to an administrative position from his position as an RCO because of his need to undergo CAPD during his crib break. While it is true that Mr Vale ultimately accepted the transfer, I accept Mr Vale’s submission that, effectively, he had no other reasonable option. Related to this is the decision by Mr Smales to not implement the backfilling arrangement. Mr Vale submits that he was transferred because of his impairment in that it had been determined that he could not undertake CAPD at work during his shifts as an RCO. Mr Vale, in short, submits that he could when undertaking CAPD attend to a service user almost immediately, and in that respect was treated less favourably than other RCOs to whom the same expectations did not apply.
Otherwise, Mr Vale makes a number of complaints relating to the way he was treated by the Department once he disclosed he was dialysing at work and as to the way he was treated in the administrative role. Mr Vale submits, in effect, that other RCOs who needed risk assessments, an analysis of special services or support arrangements, or who needed to be transferred to an administrative role would have been treated more favourably than him.
The respondents submit that the hypothetical comparator would have been treated in the same way as Mr Vale, in particular that he or she would have:
(a)been subject to a risk assessment;
(b)been involved in meetings with management of the Department whereby various options would be put to the hypothetical comparator (as were put to Mr Vale) to eliminate the risks to the hypothetical comparator and to the service users;
(c)been subject to the back-filling trial;
(d)been subject to the same consideration about alternative duties as was put to Mr Vale; and
(e)when the back-filling trial turned out not to be reasonable, been offered to perform administrative duties if and until the hypothetical comparator was able to continuously assist and supervise the service users at 12 Donald Court so as to eliminate any risk to service users.
I turn now to consider, in respect of each complaint, whether there has been direct discrimination. In doing so, I will consider the issues outlined above, namely whether the treatment identified by Mr Vale was ‘less favourable’ and, if so, whether that was ‘on the basis of’ his impairment.
I note at the outset that the principal complaint is, in my view, complaint four. The other complaints largely concern conduct incidental to that complaint and which, in my view, do not constitute unlawful discrimination.

Complaint One

The information upon which the two risk assessments relied was inaccurate in important respects and Mr Vale had no opportunity to provide any meaningful input into the reports or to discuss the outcomes. Mr Vale was not provided with a copy of the second risk assessment report notwithstanding it contained a list of items that Mr Vale was expected to action.

I accept that the risk assessments and internal departmental correspondence overestimated the length of time of Mr Vale’s dialysis procedure and omitted that it took approximately 30 seconds to disconnect. I also find that Mr Vale was not afforded adequate opportunity to participate in the risk assessment process or to address any identified perceived risks raised by those assessments.
I also find that Mr Vale’s risk assessments were not conducted as fairly or with as much impartiality as they might have been. The impression from the evidence was that there was no genuine attempt to assess risk but rather an attempt to invent as many as possible. Important information underlying the procedure was inaccurate and other important information, relating to the 30 second disconnect time, was totally absent. The ratings attributed to so-called risks were also inflated. Finally, there was no effort made to have Mr Vale address any of the identified risks. As Mr Vale says, although he was recorded as the person responsible for addressing certain risks, he was not provided with a copy of the second updated risk assessment or other similar assessments.
Mr Vale raised a comparison with a risk assessment conducted while he was in the administrative role in relation to his seating arrangements, called an ergonomic assessment. That assessment was extensive, involved Mr Vale throughout the process and required him to read and ‘sign off’ on the assessment report created.
I note however the evidence of Ms Blanch as to the process which was applied once a risk assessment had been conducted. Ms Blanch said, in effect, that a safety advisor would talk to the employee once the risk assessment had been conducted, not to adjust the risk assessment but to determine what steps the Department might be able to take to assist the employee. Ms Blanch gave no evidence that there was an obligation to give a draft risk assessment to the employee for comment or to settle the risk assessment with the employee.
The respondents submit that even if I accept that the assessments were wrong or that Mr Vale was not given the opportunity to discuss them, there was no evidence that those acts or omissions occurred because of Mr Vale’s impairment.
In my view the risk assessments conducted in relation to Mr Vale were more exacting than would have applied to other RCOs without Mr Vale’s impairment but who were the subject of a similar assessment. In the absence of any other evidence, I rely on Ms Cuskelly’s evidence when she could not explain the extreme ratings she had attributed to certain ‘risks’ identified by her, nor justify why some risks had been included at all.[36] Furthermore, I find that the second updated risk assessment was not done with a view to correcting any errors in the first assessment but rather to ‘sure up’ the conclusions of the first and, ultimately, to provide support for the decision to offer Mr Vale alternative duties.
[36]T3 48-64.
I find this because the risk assessment process seemed to have as its purpose justifying the conduct of the Department rather than accurately assessing any real risk to service users. The risk assessments did not accurately represent the risks of conducting the dialysis procedure at work. Although Mr Vale had advised Ms Cuskelly of the time it took him to undertake dialysis, Ms Cuskelly had instead attached information she had obtained from the internet as to the time dialysis took. This information stated the time taken for the procedure was 30-40 minutes when in Mr Vales’ case it was 20 minutes. There was also no mention of the 30 seconds it took Mr Vale to disconnect from the procedure, this is despite the fact this critical information was disclosed by Mr Vale to the Department on 23 October 2015 and on 11 November 2015. Mr Vale’s suggestions that an onsite assessment take place were also ignored. Further, the second updated risk assessment of 22 February 2016 was not emailed to Mr Smales until 23 February 2016, the day after the decision was made by Mr Smales and communicated by Mr Robinson to Mr Vale that it was ‘not sustainable’ for the backfilling arrangement to continue. Finally, the second updated risk assessment was not provided to Mr Vale even though Mr Vale was identified as the person responsible for ‘actioning’ each ‘identified hazard’. This all suggests, as I have indicated earlier, that the decision was already made and not based on any real material risk to service users. Indeed, I had the distinct impression that the second risk assessment was done ‘after the event’ to support the already formed opinions of the Department.
Having said that, I am not satisfied there is sufficient evidence to conclude that Mr Vale was treated less favourably than another RCO without Mr Vale’s impairment would have been, had he or she needed to undergo a risk assessment. Further, there is no evidence that the risk assessment process, even if it could be shown to be discriminatory, caused loss or damage to Mr Vale. Mr Smales, the person who ultimately made the decisions with respect to Mr Vale, albeit in consultation with others, gave evidence that he knew the true time taken by Mr Vale to undertake CAPD and of the 30 seconds disconnect time but that, in his opinion, 30 seconds was too long.[37]
[37]T 6-47.
This complaint is dismissed.

Complaint two

The Department redeployed him from the operational stream to an administrative stream which it did not have the ability to do. The Department incorrectly stated the reasons were of a medical nature when there was no medical evidence or doctor’s report stating that he was not fit to continue in the role of RCO.

I accept that Mr Vale was transferred from the operational stream to the administrative stream but I make no finding as to whether this was within the power of the Department to do so. I agree that the reasons for doing so were said to be ‘medical’. While I agree that Mr Vale was not medically unfit, I understand the Department to be referring to his kidney disease and consequent need to undergo dialysis.
I am unable to conclude that this was outside the power of the Department, although I note that the first respondent submits it had lawful authority to do what it did.[38] I also cannot be satisfied on the evidence that the Department would not transfer an RCO from an operational stream to an administrative stream in the same or similar circumstances to Mr Vale’s.
[38]Respondents’ submissions, 3 December 2018, [350].
This complaint is dismissed.

Complaint three

When Mr Vale was transferred to the administrative role he was not paid his projected roster, namely wages and shift penalties, that he would have received had he been in the RCO.

I accept that Mr Vale was not paid his projected roster as an RCO when working as an administrative officer from 17 June 2016 to 26 November 2016.
Mr Vale submits that an employee who is transferred for disciplinary reasons is entitled to be paid their original salary under a policy titled ‘Alternative Duties – Administrative Arrangements supporting employees placed on alternative duties during investigation or discipline processes – Guidelines for AS & RS Managers’.[39] Mr Vale submits that if that policy had been applied to him, he would have been entitled to be paid his projected roster, that is, the relevant shift penalties he was earning as an RCO, for the entire time he performed administrative duties.
[39]Exhibit 12.
The first respondent submits that the policy did not, in its terms, apply to Mr Vale and that there was no obligation to pay his projected roster while Mr Vale was working as an administrative officer because he was not working RCO shifts.
I find that Mr Vale was treated less favourably than another RCO would have been had he or she needed to be transferred to alternative duties. This is because an RCO who was transferred for disciplinary reasons would, under the policy, be entitled to their original salary, while Mr Vale was not. In my view, it is no answer to this to say that the policy did not apply to Mr Vale. The fact that the same conditions did not apply in Mr Vale’s circumstances is, in my view, less favourable treatment on the basis of his impairment.
I note that Mr Smales gave evidence that he was never advised that the policy applied to Mr Vale’s circumstances and that he did not have responsibility for this aspect of the decisions made with respect to Mr Vale.[40] I accept this to be the case. This does not mean, however, that the decision to pay Mr Vales at the AO.3 rate was not discriminatory when other employees transferred to alternative duties were entitled to receive their original salary.
[40]T 6-49.
This complaint is allowed as against the first respondent.

Complaint four

Mr Vale was not treated in the same way as another RCO without his impairment and was not provided with reasonable adjustment to enable him to continue in the role of RCO.

This is the broadest complaint. It is also the most substantive. In essence, Mr Vale submits that he was forced to transfer to an administrative role because:
(a)he was not allowed to perform CAPD in his crib break; and
(b)the respondents were not prepared to implement the back-filling arrangement to support him while he undertook CAPD in his crib break.
I agree with Mr Vale, for the reasons which follow, that he was not treated in the same way as another RCO without his impairment would have been treated and that this was ‘less favourable’ treatment on the basis of his impairment within the meaning of s 10. I find, for the reasons which follow, that it was less favourable treatment to, in effect, direct that Mr Vale not perform CAPD in his crib break when he was just as responsive as another RCO who was otherwise occupied in their crib break. I also find that it was less favourable treatment to decide not to continue to backfill in circumstances where it completely eliminated any risks to service users and cost less than employing Mr Vale in a supernumerary administrative role.
The RCO position does not involve full-time observation and supervision, a fact apparent from the job requirements set out above and the manner in which the requirements of the position have, over time, been performed. In other words, there was no requirement that an RCO monitor the activities of a service user 100% of the time. In this respect I accept the submissions of Mr Vale:
The evidence in this matter shows that the risk component of the care model adopted by the Dept for 12 Donald Court residence acknowledged that RCO’s [sic]:
·could not be in all places at once, so to speak, while on shift;
·were not expected to be responsive to or available to all Service Users at the same time at any one time;
·were not expected to accompany each Service User [SU] at all times during their waking or sleeping hours, nor follow them around;
·were expected to be alert and available to react quickly in the event of any adverse incident to a SU;
·in a number of periods on each of their shifts necessarily and legitimately would not be in the “line of sight” of their charges.
I find that there was a greater expectation of Mr Vale in relation to the performance of his duties as an RCO than applied to other RCOs, in particular because the respondents applied to him more onerous requirements than they expected of others. I have given careful consideration to the nature of the position that Mr Vale occupied and in doing so, I find that the position could be fulfilled and performed notwithstanding that over a crib break a person might be occupied in such a manner as would render him or her unable to respond to a situation for 30 seconds. I base this finding on the fact that, during the crib break, it was acceptable for employees to be outside smoking a cigarette, hanging washing on the line, or be in a bathroom looking after their toileting needs. Furthermore, although it was said by the Department that Mr Vale was temporarily disabled from performing duties for 20 minutes, that submission does not take into account that he could almost immediately disengage from the procedure should the need arise.

Accordingly, I do not find that Mr David Robinson, the third respondent, is responsible for these decisions. I therefore find that he is not liable in respect of complaint 3 or 4. Mr Robinson, at the relevant time, was employed as the Manager of the Maryborough Service Centre, Disability Services, Central Queensland Region. Mr Robinson reported to Mr Smales, Regional Director. While Mr Robinson advised Mr Smales and agreed with his assessment of Mr Vale’s situation, it was Mr Smales, ultimately, that made the relevant decisions.[91]
[91]Respondents’ submissions filed 3 December 2018, [195], [226], [252] and [260].
I find, in his position as Manager of the Maryborough Service Centre, that Mr Robinson was responsible for the way Mr Vale was treated, namely, in the way the risk assessments were conducted and the process that was applied generally to Mr Vale including, importantly, the limited ‘options’ presented to him by Mr Robinson at their meeting on 11 November 2015.[92] Having said that, I have not found this treatment, though unsatisfactory, constitutes unlawful discrimination.
[92]Affidavit of David Robinson, 9 May 2018, [42].
The first and second respondents are, accordingly, jointly and severally liable to pay Mr Vale the sum of $33,906.16 within 14 days of the date of this order.
I also order, pursuant to s 66 of the QCAT Act, that the names of the relevant service users must not be published.[93]
[93]Respondents’ submissions filed 25 October 2018, [20]; T 1-14, 1-15.
I direct the parties to make any submissions as to costs on or before 30 September 2019 and any submissions in reply on or before 7 October 2019.