Yeo v Brisbane Polo Club Inc
[2013] QCAT 261
| CITATION: | Yeo v Brisbane Polo Club Inc [2013] QCAT 261 |
| PARTIES: | Peter Yeo (Applicant/Appellant) |
| v | |
| Brisbane Polo Club Inc (Respondent) |
| APPLICATION NUMBER: | ADL008-12 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 3 April 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Member |
| DELIVERED ON: | 1 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: |
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| CATCHWORDS: | ANTI-DISCRIMINATION MATTERS- APPLICATION FOR DISMISSAL- where respondent claims an exemption from the operation of the Anti-discrimination Act 1991 - - whether application misconceived- whether proceeding should be struck out Anti-Discrimination Act 1991 s46(2), 206 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 State of Queensland & Anor v Aigner [2013] QCATA 151 David Yohan representing PAWES v Queensland Basketball Incorporated & Brisbane Basketball Incorporated (No 2) [2010] QCAT 471 Aigner v State of Queensland [2012] QCAT 397 Prestige Pool Paving & Landscaping Pty Ltd v Skordou [2011] QCAT 456 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr S Knyvett, Ferguson Cannon, lawyers for Mr Yeo |
| RESPONDENT: | Mr C Murdoch, Counsel, instructed by McCullough Robertson, Lawyers for Brisbane Polo Club inc |
REASONS FOR DECISION
Mr Yeo made a complaint about discrimination by the Brisbane Polo Club Inc for failing to provide him, a person with an impairment, with goods and services on occasions in July and September 2010 and June 2011. Mr Yeo requires an assistive device, namely a wheelchair, for mobility. The Club does not have access for persons in wheelchairs.
The Club makes application under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) for the dismissal of the complaint on the basis that it is misconceived, because it is exempt from the operation of the Anti-Discrimination Act 1991 (AD Act).
Section 46(1) of the AD Act provides that a person who supplies goods and services must not discriminate against another person, including by failing to supply the goods and services. An exemption is claimed by the Club under section 46(2) of the AD Act which provides that a person who provides good and services does not include an association that is established for prescribed purposes,[1] and which does not carry out its purpose for making a profit.[2] Under the AD Act, a party wishing to rely upon an exemption, must raise and prove the issue on the balance of probabilities.[3]
[1] AD Act s 46(2)(a).
[2] AD Act s 46(2)(b).
[3] AD Act s 206.
Mr Yeo concedes that the Club is an association, and that it is established for prescribed lawful purposes under s46(2)(a). However, Mr Yeo argues that it carries out its purposes for the purpose of making a profit. The Club submits that it does not, rather that any profit it makes is only made in the furtherance of its purposes. Therefore, it says, it is entitled to an exemption and Mr Yeo’s claim should be dismissed. Among other things, it is concerned about the likely significant costs of consultants if it is required to prepare for a full and final hearing, in light of the need to adduce evidence about the rectification works that would be necessary to comply with the AD Act and the costs of those works.
Mr Yeo submits that the principles enunciated in Dey v Victorian Railways Commissioners[4] apply. Mr Yeo submits that his application should only be dismissed if there is the clearest case that he can not succeed on the merits of his application. He suggests that the evidence before the Tribunal is scant and that at a contested hearing, the Club may provide additional evidence in support of the claimed exemption which would allow the Tribunal to more closely consider its manner of operation and therefore whether it does in fact carry out its purposes for the purposes of making a profit.
[4] (1949) 78 CLR 62.
Essentially, Dey[5]is authority for the proposition that in considering a strike out application, the evidence should be weighed in order to reach a conclusion about whether or not a claimant has an arguable case. It does not require a determination on the merits. Striking out should be sparingly granted to prevent abuse of process when a claim is groundless or futile. But if there is a real question of law or fact to be determined, then summary dismissal is not appropriate.[6] A lack of any cause of action must be very clear.[7] The party seeking to strike out must demonstrate a high degree of certainty about the outcome if the proceeding is allowed to continue.[8]
[5] Ibid, especially at 84-85 per Latham CJ; and 91-91 per Dixon J.
[6] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.
[7] Ibid.
[8] Agar v Hyde (2000) 201 CLR 552; Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162; Markan v Bar Association of Queensland [2013] QSC 146.
A question of law may be determined on a strike out application,[9] although not an important or difficult question or law.[10] A question of fact may not be determined in summary proceedings.[11] Summary dismissal should not be granted simply because it appears an applicant is unlikely to succeed on an issue of fact, in circumstances where there are factual issues in dispute and capable of dispute.[12]
[9] (1949) 78 CLR 62 at 90-91 per Dixon J.
[10] Goodson v Grierson [1908] 1 KB 761.
[11] Ibid; and Spencer v Commonwealth (2010) 241 CLR 118.
[12] Spencer v Commonwealth (2010) 241 CLR 118.
While conceding that Dey is good law, the Club says that it is not directed to a case like this one where the legislation provides a specific exemption. Simply put, it submits that if the Tribunal accepts that it is entitled to an exemption, then Mr Yeo can not come within s46(1).
The Club relies upon two affidavits of its President, Mr Lynton Rose. He attaches a copy of the Constitution of the Club at the time of the alleged discrimination, copies of the Club’s annual reports for 2009 to 2012 financial years, and documentation regarding tax law applicable to taxable non-profit organisations. Both parties have provided several written submissions, as well as oral submissions at hearing. Mr Yeo’s submission attaches copies of advertising material for the Club. Mr Yeo also relies upon his complaint to the Anti-Discrimination Commission Queensland.
The strike out application was listed for oral hearing and Mr Rose also gave some brief oral evidence and was cross-examined briefly.
Are the Dey principles applicable?
The Tribunal has recognised the applicability of the principles enunciated in Dey and related cases in considering s 47 strike out applications.[13]
[13] For example, see Aigner v State of Queensland [2012] QCAT 397; Rhee v Surfrider Investments Pty Ltd [2012] QCAT 431; Jones v Queensland Health [2012] QCAT 167; Prestige Pool Paving & landscaping Pty Ltd v Skordou [2011] QCAT 456; see also recent Appeal Tribunal decision State of Queensland & Anor v Aigner [2013] QCATA 151.
The Club, while acknowledging that Dey is good law, says it is not applicable without offering any authority to support this argument.
The application filed by the Club is for striking out, not for final determination in respect of a preliminary point. Having said this, in written submissions on the strike out application, the Club does suggest that if the Tribunal considers it more appropriate, it could set the issue down for preliminary hearing. It is not apparent from the file that this submission was raised in any other way for the Tribunal’s consideration about how the matter should proceed or be listed. Directions were made only for the hearing of the strike out application. The directions made by the Tribunal clearly indicate, as does the notice of hearing, that only the application to strike out is before me.
I have not been referred to any authority which supports taking an approach at odds with the approach which was expounded in Dey and other cases on point on the hearing of this strike out application. Also, as the Tribunal said in Aigner v State of Queensland,[14] where it is contended that human rights have been breached, that factor bears on how QCAT discharges its statutory obligations to deal with proceedings in a manner that is accessible, fair and just. [15]
[14] [2012] QCAT 397 at [11-12].
[15] As required by QCAT Act especially ss 3(b), 28(2), 28(3).
The Tribunal in that case referred to statements in the preamble to the AD Act including reference to the protection of fragile freedoms and the right to equal protection and benefit of the law without discrimination. It considered that given this legislative foundation and in light of QCAT’s statutory obligations, that it would be incongruous to too readily prevent an independent hearing about a breach of human rights. I agree.
In my view, I am bound to apply the principles emerging from Dey and the related cases to which I have referred. Only in a plain and obvious case, should an order be made for striking out.
Does Mr Yeo have an arguable case of discrimination?
Unless the alleged exemption applies, on the limited material available, it appears that Mr Yeo has an arguable case. The Club failed to supply him with goods and services. The Club does not appear to submit otherwise, it simply says it is entitled to the exemption.
The exemption will only apply if all components of s46(2) are met. Section 46(2) is in the following terms:
(2) In this section, a reference to a person who supplies goods and services does not include an association that—
(a) is established for social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purposes; and
(b) does not carry out its purposes for the purpose of making a profit.The Club submits that three components must be met, namely that the person is an association; the association is established for any of the prescribed lawful purposes; and that it does not carry out its purposes for the purpose of making a profit.
There is no issue between the parties that the Club is an association and that is established for purposes referred to in s46(2)(a).
There is a real question at issue between the parties, namely whether the Club carries out its purposes for the purpose of making a profit. If it does it will not be entitled to an exemption and the Tribunal will ultimately be required to consider whether it contravened the AD Act.
Application for striking out (under a now repealed section of the AD Act) in circumstances when a respondent sought to rely upon an exemption under s46(2)(b) was considered by the former Anti-Discrimination Tribunal in Haycox v Uniting Church in Australia Property Trust (Q) trading as the Wesley Hospital.[16] In that case, the Tribunal declined to strike out the application because it considered that 42(2)(b) was directed to a factual determination about how the association carries out its constitutional purposes, and whether the constitutional purposes are carried out for the additional purpose of making a profit.[17]
[16] [2005] QADT 35.
[17] Ibid at [38].
More recently in David Yohan representing PAWES v Queensland Basketball Incorporated & Brisbane Basketball Incorporated (No 2), [18] QCAT considered s46(2). It also concluded that s 42(2)(b) required a factual determination namely:
…the enquiry is then whether …these entities actually carried out the purposes for which they are established, namely the promotion of basketball, and carried out those purposes other than for the purpose of making a profit.[19]
[18] [2010]QCAT 471.
[19] Ibid at [34].
I agree with the construction adopted in those cases. In order to determine whether the exemption applies to an association, the Tribunal is required under s42(2)(b) to consider whether the association carries out the purposes (for which it was established and as provided for in its Constitution), for the purpose of making a profit. If it does not, it will be entitled to the exemption. If it does, it will have no entitlement to the exemption.
Such an issue of fact can only be determined on evidence.
There are two points of apparent distinction between Haycox and the present case. Firstly, in that case, neither party had placed ‘… any facts before the Tribunal concerning the respondent’s actual operations…’[20]. In context, I understand the reference to ‘any facts’ to mean any evidence about the actual operations. In the present case, there is some evidence before the Tribunal about the Club’s actual operations.
[20] [2005] QADT 35 at [44].
Secondly, the law concerning summary dismissal applications generally, that is Dey and related decisions was not considered, perhaps in light of the other conclusions reached by the former Anti-Discrimination Tribunal that it could not determine whether the party claiming it was entitled to an exemption.
Am I in the present case, in view of the evidence filed and relied upon, entitled to proceed to examine the evidence and determine the necessary question of fact, in order to reach a conclusion about whether the exemption applies?
Mr Yeo submits that the proceeding raises important questions which are most appropriately dealt with in a full hearing on the merits, essentially because the necessary enquiry requires a thorough examination of the actual operations which are not suited to a summary application of this nature. The Club suggests that it has provided detailed evidence and that Mr Yeo has had time to file any evidence he may wish to rely upon about the issue.
Despite the provision of evidence about the issue, and although the hearing provided some opportunity for Mr Yeo to test Mr Rose’s evidence, the proceeding has been listed before me only for the hearing of the strike out application. This is the application to which Mr Yeo is currently responding. He is entitled to anticipate that I will determine it according to law. Having regard to the well-established principles set out earlier, I am not entitled on a summary application for striking out to determine real questions of fact, which I must do in order to determine whether the exemption applies.
In my view, the Club’s application for strike out is misplaced. It should have requested the final determination of the preliminary point of whether it was entitled to an exemption under s 46(2). The strike out application must be dismissed. I make orders accordingly.
So that the issue is progressed expeditiously and without the need for expensive consultants report being required before determination of the exemption issue, I also make directions listing the issue of the exemption for final hearing as a preliminary issue, after the opportunity is given for both parties to file any further material and submissions to be relied upon. Given that the Club has effectively pressed for interim determination of the issue and its material and submissions substantially address it, I do not require it to file any further material at this stage. Mr Yeo must file any further material and submissions relied upon by him, and the Club can reply.
However, if the Club intends to provide further substantive material in support of the exemption claimed, that ought properly be done before Mr Yeo is required to file. If that is the case, I urge the Club to request amendment to the directions for filing of material immediately upon receipt of these reasons order.
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