BA (by BB) v State of Queensland [2025] QCAT 124

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: BA (by BB) v State of Queensland [2025] QCAT 124 PARTIES: BA (BY BB) (applicant) v STATE OF QUEENSLAND (respondent) APPLICATION NO/S: ADL052-24 MATTER TYPE: Anti-Discrimination matters DELIVERED ON: 31 March 2025 HEARING DATE: 31 March 2025 HEARD AT: Brisbane DECISION OF: Senior Member Traves ORDERS: IT IS THE DECISION OF THE TRIBUNAL THAT: 1. The application for miscellaneous matters (dismiss/strike out) is dismissed. THE TRIBUNAL DIRECTS THAT: 1. The State of Queensland must file in the Tribunal two (2) copies and give to BA by her father BB one (1) copy of any submissions in response to the application for miscellaneous matters (directions) filed on 25 February 2025, by: 4:00pm on 28 April 2025. 2. BA by her father BB must file in the Tribunal two (2) copies and provide to the State of Queensland one (1) copy of any submissions in reply, by: 4:00pm on 26 May 2025. 3. Unless otherwise ordered by the Tribunal, the application for miscellaneous matters (directions) filed on 25 February 2025 will be determined on the papers, without an oral hearing, after 26 May 2025. 4. BA by her father BB must file in the Tribunal two (2) copies and provide to the State of Queensland one (1) copy of all material upon which the Applicant intends to rely at the hearing. The material must: -- 1 of 9 -- 2 (a) contain statements of all witnesses; (b) each witness statement must have attached to it all relevant documents with an explanation in the statement as to how they are relevant; and (c) all attachments must be sequentially page numbered and must be referred to in the statements, by: 4:00pm on 28 April 2025. 5. The State of Queensland must file in the Tribunal two (2) copies and give to BA by her father BB one (1) copy of any material upon which it intends to rely at the hearing. The material must: (a) contain statements of all witnesses; (b) each witness statement must have attached to it all relevant documents with an explanation in the statement as to how they are relevant; and (c) all attachments must be sequentially page numbered and must be referred to in the statements, by: 4:00pm on 26 May 2025. 6. BA by her father BB must file in the Tribunal two (2) copies and provide to the State of Queensland one (1) copy of any material in reply, by: 4:00pm on 9 June 2025. 7. No party will be allowed to present any evidence at the hearing that is not contained in the statements without justifying the need for such additional evidence to the Tribunal. 8. Unless the Tribunal otherwise orders, all witnesses must attend the hearing in person for cross examination. Any application for a witness to attend the hearing by a remote means or by remote conferencing must be made prior to 14 days before the hearing. 9. The Compulsory Conference on 17 April 2025 at 9:15am is vacated. 10. The matter is listed with ADL055-24 for a joint Compulsory Conference in Brisbane at a date and time to be advised, but in a morning session, after 9 June 2025. -- 2 of 9 -- 3 CATCHWORDS: DISCRIMINATION – DIRECT DISCRIMINATION – INDIRECT DISCRIMINATION – ATTRIBUTE OF IMPAIRMENT – where complaint accepted as alleging impairment discrimination in the area of education and goods and services – where complaint contains out of time allegations – where respondent seeks out of time allegations to be struck out – where respondent submits there are fresh allegations in the complaint – whether out of time allegations should be struck out Anti-Discrimination Act 1991 (Qld), s 47, s 175, s 178 Bond v State of Queensland [2019] QCATA 60 Brisbane South Regional Health v Taylor (1996) 186 CLR 541 Stewart v State of Queensland [2024] QIRC 103 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] This matter involves a complaint made on behalf of a child, BA which alleges impairment discrimination in the area of education. [2] The complaint was made to the Queensland Human Rights Commission (‘QHRC’) on 30 August 2023. [3] Under s 138 of the Anti-Discrimination Act 1991 (Qld) (‘AD Act’) a person is entitled to make a complaint about alleged contraventions of the AD Act which occurred within one year of the making of the complaint. In this case, that meant the complaint could cover matters which occurred after 30 August 2022, but not before. [4] In this matter, after considering submissions by each party, the QHRC exercised its discretion and found there was ‘good cause’ to accept the out of time allegations pursuant to s 138(2). The earliest out of time allegation occurred in January 2021. [5] On 5 August 2024 BA filed her Statement of Contentions. [6] On 27 September 2024 the respondent filed its Response to the Contentions and an application to strike out part of the Contentions. It is the application to strike out part of the complaint that is before me. Background [7] BA attended school in Victoria in 2020. She completed ‘Prep’ but her parents claim her grade 1 year was compromised due to COVID. [8] In or around December 2020 the family moved to Queensland. [9] From 27 January 2021 to 21 April 2021 BA was enrolled at Edens Landing State School. BA’s parents have raised a number of allegations about her time at Edens Landing including their dissatisfaction with the way the enrolment interview was -- 3 of 9 -- 4 conducted; unwillingness to accept the medical diagnosis they had from a Victorian specialist; requiring them to obtain another medical diagnosis from a Queensland medical practitioner; placing her in year 2 when BA had not satisfactorily completed year 1; lack of support while there; inadequate monitoring of her consumption of water during school; failing to provide a safe learning environment including in allowing her to run away at recess time and failing to follow her; and generally failing to provide her with an education that took account of her needs including by failing to provide an individual behaviour or curriculum plan. [10] BA’s parents cancelled her and their son’s enrolment at Edens Landing in around April 2021. [11] BA’s parents applied to six local schools but were unable to secure enrolment. BA’s parents say they wrote to the Department of Education complaining that their catchment policy was preventing their children from being able to attend school. [12] BA was enrolled from term three 2021 in year 3 at Windaroo State School. BA’s parents say they were advised against BA repeating. BA’s parents say that as the year progressed they became increasingly dissatisfied that BA was not receiving one-on- one or small group support away from the noisy classroom. BA’s parents requested that BA repeat year 2 but this request was denied. BA’s parents say that BA was never given a chance to catch up with her peers via intensive teaching and learning experiences. [13] On 22 January 2023 BA was enrolled with the Home Education Unit. Her parents considered they had no other option as the school wanted to put her in grade 4 when she was only at a year one level. [14] The remedy sought includes providing BA a school where she can access the curriculum at her level with a high level of special disability trained staff support in a small group of peers with similar cognitive skills. BA’s parents say they have suffered financial hardship by being unable to send BA to an appropriate school. Application to strike out part of the complaint [15] The respondent seeks an order: (a) striking out the allegations contained in the Complaint which occurred before 30 August 2022; and (b) striking out the allegations contained in the Complaint which were not referred to the Queensland Civil and Administrative Tribunal by the QHRC. [16] In relation to the strike out ground (a), the respondent says that the tribunal may only deal with the parts of the Complaint which occurred before 30 August 2022 if the tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so. It submits that it would not be reasonable to deal with allegations that occurred prior to 30 August 2022. [17] In relation to the strike out ground (b), the respondent alleges the applicant has included fresh allegations in the Contentions that were not referred to the Tribunal, and, as such, leave must be obtained from the tribunal to amend the Complaint to include the fresh allegations. The respondent says that leave has not been sought, and even if it had, the tribunal should not exercise its discretion to amend the Complaint. -- 4 of 9 -- 5 [18] The respondent identifies the ‘fresh allegations’ to be the reference by BA to a number of State schools including Mount Warren Park State School, Eagleby State School, Waterford State School, Eagleby South State School, Beenleigh South State School and Windaroo State School and the allegation that these schools directly discriminated against BA in about April 2021. [19] BA strongly opposes the application to strike out allegations that are ‘out-of-time’. It is said that any delay was not due to inaction but resulted from genuine and ongoing efforts to try to engage with the Department of Education to resolve the issues. Further, that the issues persisted across multiple schools which indicated a systemic failure rather than isolated incidents. BA’s parents also refer to the difficulties they experienced prior to lodging their Complaint including that they were caring for severely distressed children due to their school experiences; that they lacked advocacy support; had language barriers and no family or close friends to assist, having recently migrated to Queensland. In relation to the ‘fresh allegations’ it is argued that the allegations were identified in their Complaint form and subsequent submissions of 6 February 2024 and that, if formal leave is necessary to include additional allegations, that leave is sought and should be granted. Statutory provisions [20] Section 47 of the QCAT Act confers on the Tribunal the power to dismiss or strike out proceedings and relevantly provides that: (1) This section applies if the tribunal considers a proceeding or a part of a proceeding is— (a) frivolous, vexatious or misconceived; or (b) lacking in substance; or (c) otherwise an abuse of process. (2) The tribunal may— (a) if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; … [21] Section 175 deals with complaints made more than one year after an alleged contravention of the AD Act. Section 175 provides: 175 Time limit on referred complaints (1) The tribunal must accept a complaint that is referred to it by the commissioner, unless the complaint was made to the commissioner more than 1 year after the alleged contravention of the Act. (2) If the complaint was made more than 1 year after the alleged contravention, the tribunal may deal with the complaint if the tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so. [22] Section 178 of the AD Act gives the tribunal a broad power to allow a complainant to amend a complaint. Section 178 provides: 178 Complaints may be amended (1) The tribunal may allow a complainant to amend a complaint. -- 5 of 9 -- 6 (2) Subsection (1) applies even if the amendment concerns matters not included in the complaint. Consideration [23] The respondents have applied to strike out part of the applicant’s contentions on the basis they are out of time and/or constitute fresh allegations. The tribunal has the power to strike out a part of a proceeding on a number of bases including that it is misconceived or an abuse of process.1 Out of time allegations [24] I note that the QHRC accepted the out of time allegations on 24 May 2024. The Tribunal is not bound by that decision, indeed s 175 expressly requires QCAT to consider, on the balance of fairness between the parties, whether it is reasonable to accept a complaint referred to it which includes a complaint made more than one year after the alleged contravention of the AD Act.2 [25] In exercising my discretion I have considered the following relevant factors: (a) the length of the delay; (b) any explanation by the complainant for the delay; (c) any prejudice to the respondent, should the discretion be exercised in the complainant’s favour; (d) any prejudice to the complainant, should the discretion be exercised in the respondent’s favour; and (e) whether there is a lack of merit to the complaint.3 [26] It appears from the Contentions that the ‘out-of-time’ allegations comprise the following: (a) 22 January 2021, when the enrolment interview at Edens Landing State School took place. (b) 26 March 2021, BA ran away from school at recess and school made no attempt to follow her. (c) Between 27 January to 19 April 2021: (i) enrolling BA in an inappropriate year level given she had missed most of year 1 due to COVID lockdowns; (ii) informal suspensions with no formal paperwork; (iii) failure to watch and manage BA’s water consumption; (iv) BA’s inability to access earmuffs at all times to control noise; (v) no one-on-one or small group learning available to BA. (vi) no curriculum plan or behaviour plan provided in respect of BA. 1 QCAT Act, s 47. 2 Bond v State of Queensland [2019] QCATA 60, [67]. 3 Stewart v State of Queensland [2024] QIRC 103, [13]. -- 6 of 9 -- 7 (d) unsuccessful attempts in April 2021 to enrol BA in six different schools. [27] The length of delay in making the complaint is a factor against exercising the discretion. The earliest date of an allegation that may give rise to a contravention of the AD Act was around January 2021. This is 1 year and 7 months outside the statutory time limit. I accept the respondent’s submissions that the length of the delay itself gives rise to a general presumption of prejudice.4 [28] I accept that one of the reasons for the delay was that BA’s parents were, from 2021, engaged with the various relevant schools and with the Department of Education attempting to resolve their issues without recourse to litigation. I also accept that the following factors may have contributed to the delay in making the Complaint: that the situation BA’s parents were dealing with was stressful; that their children had challenging behaviours and consumed much of their time; that English for one or both of them is not their first language; and that they were, for the most part, unrepresented. [29] On the other hand, I accept the respondent’s submissions that BA’s family received legal advice from Queensland Advocacy Incorporated in October 2021 about their legal options and decided not to proceed with a Complaint. The applicant’s response is that they decided not to make a Complaint at that time because they began to receive inclusive education but that this changed when the support they were receiving reduced and then ultimately ceased altogether in 2022. Even if I accept that to be the case, this does not explain why the Complaint was not made until 30 August 2023. I also note that BA’s parents have written several lengthy letters setting out their grievances to the Department and appear able to have made a Complaint to the QHRC. I find the applicant’s explanation for the delay in making a Complaint to be not altogether satisfactory. [30] BA submits that those involved in the Complaint all still work for the Department of Education and that the respondents have not claimed they are unavailable. The respondent submits that the delay may impact the memories of some witnesses and may mean records are no longer available. I accept that adding the allegations will, at the least, add to the time and effort required to defend the Complaint and, ultimately, to the cost. On the other hand, in my view, the allegations form part of a continuum of BA’s experience with the education system as a child with impairments. The earlier allegations give context to the Complaint and may of themselves give rise to potential contraventions of the AD Act. [31] In my view, on balance, although I consider the applicant to be responsible for the delay and accepting the out of time allegations will cause some prejudice to the respondent, I do not think the prejudice to the respondent if the allegations remain outweighs the prejudice to the applicant if the allegations are struck out. [32] In my view, for the reasons above, on the balance of fairness between the parties, the allegations should be dealt with. [33] Accordingly, I refuse the application to strike out the out of time allegations. Fresh allegations [34] I turn to the application to strike out the ‘fresh allegations’. 4 Brisbane South Regional Health v Taylor (1996) 186 CLR 541. -- 7 of 9 -- 8 [35] The Complaint was made verbally over the phone by BA’s father who required assistance putting the Complaint in writing. BA’s father confirmed when the Complaint was read to him that it was his Complaint. The Complaint says, relevantly: We wrote a complaint to the Department of Education a 6 page letter was sent on 21 st of April 2021. We notified school we cancelling enrolment. We were looking for new school for children we applied to 6 local schools and some of them don’t answer to our enquiries and the rest of schools denied or rejected our enrolment application for both my children. None of them ever offered any waiting list, we wrote a second complaint on the 30th of April 2021 to the Department of Education requesting a new school, because of their policy which was not allowing my children to attend school. Also made numerous phone calls to the department of Education. Then finally we received an answer from the Dept of Education on the 6 th May 2021, they dismissed our concern. [36] The Contentions provide as follows: 04.2021 We have tried to enrol our children to the following schools: - Mount Warren Park SS, Eagleby SS, Waterford SS, Eagleby South SS, Beenleigh SS, Windaroo SS. They all either rejected their application or never answered for our written enquiries. BA received direct discrimination from the above mentioned schools, the way they were processing the prospective student’s applications; not following the DoE Qld enrolment procedures. 1. The schools failed to provide applications for enrolment forms and accept applications for admission as a prospective student. 2. Rejecting applications for enrolment, even before receiving application forms; not providing waiting list for my daughter. In their response they failed to provide information about the complaint process. 3. The schools were hindering parents who have the responsibility of choosing a suitable education environment for their children. The schools are using the catchment policy as a ‘tool’ to pick and choose from students as they please. All the schools that we applied rejected our children because of their ‘strict’ enrolment policy, not accepted my daughter to enrol; despite the fact that those schools are allowing a large percentage of students from out of their catchment area: Windaroo SS: 43%; Eagleby South SS: 23%; Waterford SS: 29%; Waterford West SS: 29% out of catchment students. I have contacted the DoE via phone and told them that none of the schools is willing to enrol our children. [37] In my view the Complaint did raise the allegations concerning the failure of six State Schools to offer to enrol BA. While I accept that more detail was provided in the Contentions, the substance of the allegation had been sufficiently made in the Complaint. I also take into account that the applicant is a child who is represented by her father who is self-represented and has a difficulty with the English language. [38] Accordingly, I refuse the application to strike out this part of the Complaint on the basis they are ‘fresh allegations’. -- 8 of 9 -- 9 [39] For completeness, I also would not strike out that part of the Complaint on the basis it was out of time. Although the period within which the enrolment rejections occurred was around April 2021, which is more than one year prior to the date the Complaint was made, I am satisfied, pursuant to s 175(2) of the AD Act that, on the balance of fairness between the parties, it is reasonable to deal with those allegations. The substance of the Complaint is that BA, as a child with impairments, was discriminated against in the way she was schooled but also in the way her applications for enrolment were processed and either ignored or rejected. -- 9 of 9 --