Yohan v Qld Basketball Incorporated - [2010] QCAT 459

CITATION: David Yohan representing PAWES (Providing Awareness with Education and Sport) v Queensland Basketball Incorporated & Brisbane Basketball Incorporated [2010] QCAT 459
PARTIES: David YOHAN representing PAWES (Providing Awareness with Education and Sport)
v
Queensland Basketball Incorporated & Brisbane Basketball Incorporated

APPLICATION NUMBER:      ADL021-10
MATTER TYPE:  Anti-Discrimination Matters
HEARING DATE:  9 September 2010
DECISION OF:  P Roney, Member
DELIVERED ON:  20 September 2010
DELIVERED AT:  Brisbane
ORDERS MADE:  Application for dismissal of the complaint related to racial discrimination and vilification dismissed
APPEARANCES and REPRESENTATION:
APPLICANTS:  David YOHAN represented by Mr SJ Hamlyn-Harris of Counsel instructed by Ryan Kruger Lawyers
RESPONDENTS:  Queensland Basketball Incorporated and Brisbane Basketball Incorporated represented by Mr Murdoch of Counsel, instructed by Anderssen Lawyers
CATCH WORDS:  Practice and procedure – application for summary dismissal – limited basis of referral from Queensland Anti-Discrimination Commission, characterisation of complaint – jurisdiction of the Tribunal to hear complaint made however characterised

The Applicant in this proceeding, and who seeks ultimately to be permitted to conduct this proceeding as a representative complaint pursuant to section 194 of the Anti-Discrimination Act 1991 (“the Act”) is a coach of and coordinated certain basketball teams in the 2009 basketball competition in Brisbane. That competition was run by the second Respondent, Brisbane Basketball Incorporated. He is also a player in one of the teams, and ultimately, once there is identification of the precise relief sought in the proceeding, may seek to represent certain other players in teams of which Mr Yohan is a coordinator and coach, fielded by an organisation known as “Providing Awareness with Education and Sport” (PAWES). The Second Respondent is said to have been affiliated with the First Respondent, which is the umbrella organisation or peak body for the sport of basketball in Queensland.
The First Respondent operates a system of registration of basketball participants. Under that system, affiliated associations of Queensland Basketball Incorporated are effectively managed. On 23 September 2009 the Applicant lodged a complaint with the Anti-Discrimination Commission Queensland (ADCQ) complaining about a series of incidents involving, apparently each Respondent and the unsuccessful attempt by PAWES teams to participate in Brisbane basketball competitions in 2009. The relevant conduct occurred from approximately mid April 2009 until the 18^th of September 2009. The Applicant is a lay person and was not assisted in the preparation of the complaint by any person of legal training or experience. In the part of the compliant set aside for describing “what type of treatment was being complained of” he ticked boxes which identified that he claimed discrimination because of race, and in particular African refugees, because of an association with a person who had those attributes, namely refugees, racial vilification, and victimisation. The allegation was that essentially a series of incidents which occurred between April and September 2009 involving PAWES players led to the eventual exclusion of all PAWES teams from further competition in the Brisbane basketball competition.
The Respondents have applied seeking…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] QCAT 459
Decision Date: 20 September 2010

CaseChat Overview and Summary

The case of Yohan v Qld Basketball Incorporated was heard in the Anti-Discrimination Tribunal. The dispute involved the respondent, Qld Basketball Incorporated, which was accused of racial discrimination and vilification by the applicant, Yohan. The Queensland Anti-Discrimination Commission had referred the matter to the Tribunal, albeit on a limited basis, for adjudication. The nature of the dispute centred on whether the Tribunal had the jurisdiction to hear the complaint as it was referred, given the limited basis of the referral.

The primary legal issue before the Tribunal was whether the complaint should be dismissed due to the limited basis of referral from the Commission. Specifically, the Tribunal had to decide if the limited referral from the Commission restricted its ability to hear and decide on the merits of the complaint. The Tribunal needed to determine whether the nature of the complaint, regardless of how it was characterised, fell within its jurisdictional scope to hear and determine.

The Tribunal considered the statutory provisions and the precedents that governed its jurisdiction to hear discrimination complaints. The Tribunal held that the limited basis of referral did not restrict its jurisdiction to hear the complaint. The characterisation of the complaint as either racial discrimination or vilification did not alter the Tribunal's authority to hear and determine the matter. The Tribunal concluded that it had the necessary jurisdiction to proceed with the complaint irrespective of how it was characterised by the Commission. Consequently, the application for the dismissal of the complaint was dismissed, allowing the Tribunal to proceed with the adjudication of the complaint on its merits.

Orders

Orders of the court

Application for dismissal of the complaint related to racial discrimination and vilification dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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