Bibawi v QHRC [2025] QCA 31

[2025] QCA 31 COURT OF APPEAL MULLINS P GOTTERSON AJA BRADLEY J Appeal No 16148 of 2024 SC No 10989 of 2024 MAGDY BIBAWI Appellant v QHRC Respondent BRISBANE WEDNESDAY, 19 MARCH 2025 JUDGMENT [1] MULLINS P: On 21 August 2024 Mr Bibawi commenced a proceeding in the Trial Division by filing an application for a statutory order of review and an application for review in relation to the decision of the Queensland Human Rights Commission (QHRC) issued on 26 July 2024. The decision was not to accept the complaint of Mr Bibawi against the Queensland College of Teachers (QCT) and Ms Fishburn (who was the director of QCT) that he was subject to unlawful discrimination in contravention of the Anti-Discrimination Act 1991 (Qld) (ADA) and that his human rights were limited and not properly considered in accordance with the obligations on public entities under the Human Rights Act 2019 (Qld) (Act) when his registration as a teacher was suspended by the QCT on 13 May 2021. -- 1 of 4 -- 2 [2] The return date in the application for directions was 13 November 2024. On that day Ms Fulton appeared for the QHRC and Mr Bibawi appeared in person before the learned primary judge. Ms Fulton had prepared a draft order which was handed up to the primary judge. That order sought that the respondent’s name “Queensland Human Rights Commission” be replaced by “Human Rights Commissioner” and for directions that the QHRC provide a copy of Mr Bibawi’s application and supporting affidavit to QCT, Ms Fishburn and the Attorney-General by 27 November 2024, that any application to be made a party to the proceedings be filed and served on the parties by 18 December 2024 and the matter was to be listed for further directions and to consider any application to be made a party to the proceedings on 20 January 2025. Mr Bibawi objected to the proposed order and directions, asserting that the proposed orders were unlawful, as the respondent could not change the name of the registered Queensland Human Rights Commission and they could not legally serve QCT, because it was the decision of the QHRC that was the subject of his applications to the Supreme Court. [3] Mr Bibawi informed the primary judge that if orders were made in accordance with the draft order prepared on behalf of the QHRC, he would not provide a copy of the application or his affidavit to the QCT or the Attorney-General (even though the proposed draft order provided for that to be done by the QHRC) and would discontinue his applications, so that he would not be in breach of s 18 of the Supreme Court of Queensland Act 1991 (Qld). In fact, Mr Bibawi was mistaken about that provision, as he was referring to s 18 of schedule 1 to that Act which sets out the subject matter for rules that can be made pursuant to s 85 of that Act. Section 18 provides for the subject matter of contempt of court to be regulated by the rules, in these terms: “Contempt of court and proceedings for failure to comply with an order, other than an order for the payment of money.” [4] Mr Bibawi considered that it would jeopardise his case if the QHRC invited QCT and Ms Fishburn to become parties to his applications. Ms Fulton submitted to the -- 2 of 4 -- 3 primary judge that the application should be given to QCT (and Ms Fishburn) to give each an opportunity as a person interested in the judicial review proceedings to which s 28 of the Judicial Review Act 1991 (Qld) (JRA) may apply and that the notice should be given to the Attorney-General because the Attorney-General may intervene in any proceedings before the Court pursuant to s 51 of the JRA. When the primary judge indicated that her Honour would make the order in terms of the draft prepared by the QHRC, Mr Bibawi then asked the primary judge to dismiss the case, because he was not taking the case further. He had prepared a notice of discontinuance. Mr Bibawi had added to the reasons for seeking to discontinue the applications set out in the notice that he was seeking “to avoid contempt of court [section 18 of Supreme Court Q.L.D. 1991]”. Before he signed the notice, the primary judge asked to see it. After looking at the document, it did not change the primary judge’s mind about making an order in the terms of the QHRC’s draft. Mr Bibawi was invited by the primary judge to sign the notice of discontinuance and file it with the Court. He signed it and handed the signed copy to the primary judge. The primary judge gave leave to Mr Bibawi to file the notice of discontinuance and the primary judge then dismissed the application. The formal orders that were taken out to reflect the outcome before the primary judge were: 1. Applicant granted leave to file a notice of discontinuance of this application. 2. Application dismissed. [5] Even though Mr Bibawi was given leave to file the notice of discontinuance, the notice of discontinuance is not on the file as a filed document. [6] Amongst the many written submissions which Mr Bibawi has filed in support of his appeal, he seeks to withdraw his request for the dismissal of his application before the primary judge. Any such application for the withdrawal of his request for his applications to be dismissed and of the setting aside of the orders made by the primary judge could proceed in the Trial Division only with consent of the QHRC pursuant to r 667(2)(e) of the Uniform Civil Procedure Rules 1999 (Qld). Ms Ball who appears on behalf of the respondent has indicated that the respondent would consent to such -- 3 of 4 -- 4 an application in the Trial Division. That application in the Trial Division should be dealt with before the appeal. The order which should therefore be made in this Court at this time is: The appeal is adjourned to a date to be fixed to allow Mr Bibawi to apply to a judge in the Trial Division to withdraw his request to the primary judge to give him leave to file the notice of discontinuance and dismiss his application for a statutory order of review and application for review filed on 21 August 2024 on the basis the respondent will consent to the proposed requests by Mr Bibawi and on the basis he misunderstood the effect of the proposed draft directions order prepared by the respondent in the Trial Division. [7] GOTTERSON AJA: I agree. [8] BRADLEY J: I agree. [9] MULLINS P: So these reasons will be published on the court’s webpage. The registrar will send you a copy of the order, and then you make an application as is indicated in the reasons to the trial division. All right. We will take the next matter. [10] Ms BALL: Thank you, your Honour. [11] APPELLANT: Thank you, your Honour. -- 4 of 4 --