X v Q
[2011] QCAT 453
•16 September 2011
| CITATION: | X v Q [2011] QCAT 453 |
| PARTIES: | X |
| v | |
| Q |
| APPLICATION NUMBER: | ADC007-06 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 16 September 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Leave to amend the complaint is refused. 2. The respondent must provide to the tribunal no later than 10 business days prior to the hearing of this proceeding video and/or CCTV footage recorded from 4.30am to 11.00am on 28 July 2009 in the residential compound at a Correctional Centre of: · searches of cells 1 to 6; · unit R4B; · cluster 2. 3. The respondent must provide to the tribunal no later than 10 business days prior to the hearing of this proceeding video and/or CCTV footage recorded from 7.00am to 9.00am on 7 August 2009 in the residential compound at a Correctional Centre of: · Unit R4B; · Cluster2. 4. The video and/or CCTV footage provided in response to this order is not to be accessed by any person other than a member of the tribunal without leave from the tribunal. 5. Leave to X to access intelligence information held by Q about placing X on a security order on 26 November 2009 is refused. |
| CATCHWORDS: | ANTI-DISCRIMINATION – complaint on grounds of sex – where amendment to complaint sought – where fresh allegations made – where production of CCTV footage sought from correctional centre Anti-Discrimination Act 1991, s 178 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
In 2005 when he was an inmate in a Correctional Centre X was placed into a maximum security unit. He complained to the Anti-Discrimination Commission in January 2006 that he had been the subject of unlawful discrimination on the basis of sex as female inmates of correctional centres were not placed in maximum security units. His complaint was accepted by the Commission, was unable to be successfully conciliated by the Commission and ultimately referred to the former Anti-Discrimination Tribunal on 25 July 2006.
The complaint had not been determined by the time that the former Tribunal was abolished and QCAT had commenced on 1 December 2009.
In September 2009 X sought to amend the complaint to include allegations of victimisation and on 19 November 2009 the former Tribunal directed that the complaint be amended to include allegations of victimisation.
Amendment of Complaint
On 24 December 2009 QCAT received a letter from X seeking further amendments to be made to his complaint. The respondent opposes leave being granted to X to further amend the complaint.
The proposed amendments can be summarised as follows:
a.Allegations that the respondent discriminated against X in failing to provide him with opportunities to be employed in any other capacity than as a cleaner in the correctional centre;
b.Allegations that the respondent discriminated against X in not allowing him to continue his education studies while in the maximum security unit;
c.Allegations that the respondent discriminated against X in the way in which the respondent processed his placement into the maximum security unit;
d.Allegations that the respondent discriminated against X in not providing him with access to the oval or the gymnasium or to education;
e.Allegations of victimisation by the respondent after 19 November 2009 by way of searches of X and of his unit, from 26 November 2009 until an unspecified date in his letter;
f.Allegations of victimisation by the respondent in removing X from residential accommodation at a Correctional Centre and accommodated him in the detention unit at that Correctional Centre on 26 November 2009; and
g.Allegations of victimisation by the respondent in transferring X from that Correctional Centre on 9 December 2009 to another Correctional Centre.
It was not disputed by the respondent that section 178 of the Anti-Discrimination Act 1991 provides QCAT with the power to amend a complaint even if the amendment concerns matters not included in the complaint. The respondent argued however that the matters sought to be included by way of amendment are in reality fresh complaints and that QCAT should not exercise discretion to amend the complaint as sought by X.
The jurisdiction of QCAT in anti-discrimination matters arises from the referred complaint. Complaints are not able to be made direct to QCAT. Complaints must be first made to, and accepted by, the Commission and only then can be referred to QCAT for determination.[1] As a consequence of this statutory system, allegations of contraventions of the Anti-Discrimination Act 1991 first raised by a complainant at the tribunal stage cannot be part of a valid complaint. The wide power in section 178 of the Act to amend a complaint cannot of itself provide jurisdiction for QCAT to determine allegations of fresh complaints that do not form part of a valid complaint referred by the Commission.
[1] Mount Isa Mines Limited & Ors v Hopper [1998] QSC 287.
The difficult task in each case, when further allegations are made against a respondent at the tribunal stage, must be for QCAT to decide whether in the interests of justice those allegations should be considered as so closely related to the complaint referred by the Commission that they should be formally made part of the complaint by way of amendment.
A strict or pedantic approach should not be taken to the construction of complaints.[2] In accordance with that principle, the former tribunal readily allowed an amendment to the complaint in November 2009 to include allegations of victimisation. X is now seeking to include other incidences of alleged victimisation into his complaint as summarised in sub paragraphs 5(e), (f) and (g) of these reasons. While those further allegations may be seen to be closely related to the referred complaint, I am not persuaded for the following reasoning that it is in the interests of justice that the complaint should be amended to allow those particular allegations of victimisation to be included.
[2] McKenzie v Mackay & Q of Queensland [2005] QADT 24.
[10] X could have taken complaints about victimisation by the respondent post 19 November 2009 to the Commission. He did not do so. What he has chosen to do is to seek to enlarge his existing complaint at the tribunal stage with allegations of ongoing victimisation over a period of time that was difficult to determine from his letter. In his recent submissions, X states that the period of victimisation is actually from 26 November 2009 to 14 January 2010 but as he did not give an explanation about this proposed end date to the victimisation complaints, that end date may not prove to be definite.
[11] The respondent has argued that if amendments in terms of subparagraph 5(e), (f) and (g) were to be allowed, the effect would be that the matters to be heard and determined by QCAT are made uncertain and are impeded from being finalised as the allocation of a hearing date would be delayed as a consequence of the ongoing allegations.
[12] I accept that argument. Enlarging the complaint with these further allegations of victimisation must necessarily widen the scope of evidence required to be produced by the parties to address these further allegations. The evidence would need to cover each and every incident alleged and would involve a significant lengthening of the hearing time of the complaint. Before hearing dates can be allocated, amended contentions must be filed and responded to, statements of evidence filed and relevant documents searched for and found by the respondent. All the additional documents must be produced for consideration by QCAT.
[13] I have not been satisfied that exercising a discretion to amend that would put the parties to this additional work and cost and that would delay the finalisation of this complaint will be in the interests of justice.[3] The High Court of Australia has relevantly discussed the discretion to amend in the following terms: “An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend.”[4]
[3]See comments made in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27.
[4] As above at paragraph 111.
[14] The complaint to be determined by QCAT already involves allegations that the respondent has engaged in behaviour that is being attributed to victimisation of X because he lodged his anti-discrimination complaint. If victimisation is proven, the actions complained of cannot be reversed but some appropriate redress for the fact that he was found to have been victimised could be provided to X.
[15] Even if one incident of victimisation were found to be proven against Q, there should be profound consequences for correctional authorities and such an outcome would properly address any breach of the legal rights of X and other inmates both now and into the future. Endeavours to have QCAT deal with each and every alleged incident of victimisation are unnecessary in that context. A determination on the existing complaint as to victimisation is sufficient in my view to balance the interests of X with the interests of justice generally.
[16] I will not allow amendment to include further allegations of victimisation in this complaint. If X wants to have each and every allegation of victimisation determined, he can lodge a complaint with the Commission.
[17] Turning now to the remaining allegations sought to be included into the complaint by way of amendment, I note that X has not specifically linked these allegations of less favourable treatment to the attribute of sex.
[18] The respondent objects to the proposed amendment on the grounds that the matters amount to fresh complaints and amendment would be inconsistent with part 12A of the Corrective Services Act 2006. Section 319(E) of that Act appears to require X to take a series of specified steps before he can complain of an alleged contravention of the Anti-Discrimination Act 1991. The respondent also argues that the allegations sought to be included in the complaint are out of time in that the alleged contraventions of the Anti-Discrimination Act 1991 predate 24 December 2008 and no justifiable reason has been shown for the allegations not having been raised before December 2009.
[19] X has submitted that the new allegations are merely particulars of his original complaint of sex discrimination. However this submission does not withstand scrutiny. He relies on allegations made in his letter received on 24 December 2009 that he believes he had been treated less favourably as against every other prisoner, male or female. He complains about the process used to declare his maximum security status but does not complain that the process involves less favourable treatment based on his sex. On the contrary, he complains that the respondent failed to follow the correct procedures. I do not accept that the new allegations are mere particulars of his original complaint but appear to be more wide ranging complaints about several aspects of the correctional system that have impacted adversely on him.
[20] I find that the allegations made by X amount to fresh complaints. The allegations in subparagraphs 5(b) and (c) are related to the original complaint only in so far that the allegations refer to the time when X was in the maximum security unit. There is no other connection.
[21] As stated in paragraph 7, allegations of contraventions of the Anti-Discrimination Act 1991 first raised by a complainant at the tribunal stage cannot be part of a valid complaint. I am satisfied that there is no proper basis for orders to be made to include these fresh complaints by way of amendment into the complaint currently referred to QCAT. X should follow the statutory process for making fresh complaints via the Commission after complying with part 12A of the Corrective Services Act 2006.
Production of CCTV footage
[22] X has sought orders for the respondent to produce to QCAT recorded closed circuit television or video footage which is described as follows:
a.Footage from 4.30am to 11.00am on 28 July 2009 from a Correctional Centre residential compound of the search by the Centre Emergency Response team being search of cells 6, 5, 4, 3, 2 and 1, and footage from unit R4B and footage from Cluster 2; and
b.Footage from 7.00am to 9.00am on 7 August 2009 from a Correctional Centre residential compound of a search with footage from unit R4B and footage from Cluster 2.
[23] X has conceded that his request for the production of CCTV footage does not extend to the release of the identified footage to him but that he only seeks that the CCTV footage is made available for viewing by members of QCAT.
[24] The respondent has stated that it has no objection to this material, as identified in the letter of X dated 2 September 2009, being viewed by members of QCAT but does object to the material being viewed by X.
[25] On the basis that the requested CCTV or video footage is likely to be relevant to the complaints of victimisation, I will make an order that the respondent provide to QCAT the CCTV or video footage in the terms set out in paragraph 22.
[26] As the material is provided to QCAT by way of the orders made and is not directed to be filed by the respondent as documents to be relied on by the respondent, the material does not become part the documents accessible under section 230 of the Queensland Civil and Administrative Tribunal Act 2009. Until the material is otherwise placed into evidence, only members of QCAT can access the material and leave of QCAT will be required if any other person seeks to access the material provided under these orders.
Production of security file
[27] X has sought an order from QCAT requiring the respondent to produce a file containing intelligence information that the respondent relied on when it placed X on a safety order on 26 November 2009. The request springs from the request made by X to amend the complaint to include the further allegations set out in his letter received on 24 December 2009.
[28] Leave to amend the complaint to include allegations of victimisation after 19 November 2009 has been refused. Accordingly the information sought to be produced appears to have no relevance to the complaint to be determined by QCAT. I am not persuaded that an order should be made requiring the production of the intelligence information.