DA v College [2025] QCAT 73

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DA v College [2025] QCAT 73 PARTIES: DA (applicant) v COLLEGE (respondent) APPLICATION NO/S: ADL012-25 MATTER TYPE: Anti-discrimination matters DELIVERED ON: 27 February 2025 HEARING DATE: 27 February 2025 HEARD AT: Brisbane DECISION OF: Senior Member Traves ORDERS: The application for an interim order is refused. CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION LEGISLATION - GROUNDS OF DISCRIMINATION – RELATION TO A PERSON IDENTIFIED ON THE BASIS OF IMPAIRMENT – where applicant’s child wants to ride an e-bike to secondary school and store it on school premises – where school policy prohibits students from using and storing e-bikes on school premises – application for interim order made before referral of complaint made – whether interim order under s 144 of the Anti-Discrimination Act 1991 (Qld) should be made Anti-Discrimination Act 1991 (Qld) s 144, s 191 Human Rights Act 2019 (Qld) ss 15, 31 Beck v Headland Golf Club & anor [2021] QCAT 354 Coop v State of Queensland [2014] QCATA 205 XA (by ZA) v School [2024] QCAT 15 Lenz v Rinami Pty Ltd [2024] QIRC 71 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) -- 1 of 5 -- 2 REASONS FOR DECISION [1] The applicant, Ms DA, is the mother of a child enrolled at the respondent, secondary school. The parties’ names have been de-identified in order to protect the privacy of the child in question.1 [2] Ms DA says she wants her child to be able to ride an e-bike to and from school and to store the e-bike on school grounds. Ms DA says that she had her leg amputated last year and so needs her child to be able to ride an e-bike to enable the child to buy groceries and prescription medication for her on the way home from school. [3] Ms DA says that the school introduced a new policy in relation to e-bikes and scooters prohibiting the storage of e-bikes on school grounds and that, as a consequence, her child has been prevented access to the school’s bike facilities. Ms DA is seeking an order to allow her child to use an e-bike for transport to and from school and to be able to use the bike storage shed on school grounds, like other students with pedal bikes are permitted to do. Ms DA broadly submits that the school, in seeking to enforce the policy, has engaged in conduct that amounts to unlawful discrimination in the area of goods and services. Ms DA in the Complaint says she is not making the complaint on behalf of someone else but later states that the school’s policy discriminates against ‘her’ and that ‘an action would need to be brought to ensure the student is able to continue attending school.’ This suggests Ms DA is in fact making the Complaint on behalf of her child which would mean the area of activity in which the alleged discrimination may have occurred would most likely be in the area of education. [4] The respondent submits that it has no power to, nor has it sought to prohibit the applicant’s child from using their e-bike for transport to and from school; that the respondent has broadly prohibited students from using and storing their e-bikes on school premises; and, accordingly, that students may travel to and from school on e- bikes provided they do not bring their e-bikes on school grounds. The respondent submits that the applicant has not addressed how the acts in respect of which prohibitions are sought by the applicant, would prejudice the investigation of her complaint or an order that the tribunal might make after a hearing. Accordingly, it is submitted, the requirements of s 144 of the Anti- Discrimination Act 1991 (Qld) (‘AD Act’) have not been met, and the application for an interim order should be dismissed. Pre-referral applications for interim orders: s 144 AD Act [5] The Tribunal has power under s 174A of the AD Act ‘in relation to complaints that are referred, or to be referred, to QCAT … to make orders under section 144 before the complaints are referred to the tribunal’. [6] Section 144 of the AD Act provides: 144 Applications for orders protecting complainant’s interests (before reference to tribunal) 1 Anti-Discrimination Act 1991 (Qld) (‘AD Act’) s 191. -- 2 of 5 -- 3 (1) At any time before a complaint is referred to the tribunal, the complainant or the commissioner may apply, as provided under the relevant tribunal Act, to the tribunal for an order prohibiting a person from doing an act that might prejudice— (a) the investigation or conciliation of the complaint; or (b) an order that the tribunal might make after a hearing. (2) A party or the commissioner may apply, as provided under the relevant tribunal Act, to the tribunal for an order varying or revoking an order made under subsection (1). (3) If the tribunal is satisfied it is in the interests of justice, an application for an order under subsection (1) may be heard in the absence of the respondent to the application. [7] Section 209 of the AD Act sets out the relief which may be granted by the Tribunal after a hearing if it decides that a respondent has contravened the AD Act. That relief includes an order requiring the respondent to do ‘specified things’ to address loss or damage suffered by the complainant because of the contravention. [8] The Tribunal has approached the issue of the making of an interim order under s 144 of the AD Act by applying the principles relevant to the grant of an interlocutory injunction2 in the context of the statutory requirements in s 144.3 Those principles require, first, the applicant to establish that there is a prima facie case, in the sense that if the evidence remains as it is, there is a sufficient likelihood of success to justify the preservation of the status quo pending the hearing.4 Secondly, it must be determined whether the inconvenience or injury which the applicant would be likely to suffer if an injunction is refused outweighs, or is outweighed by, the injury which the respondent would suffer if an injunction were granted.5 [9] In Coop v State of Queensland,6 in considering the application of s 144 of the AD Act, Judge Horneman-Wren held: [86] Determining the balance of convenience in any case requires consideration to be given to the injury or inconvenience which is likely to be suffered by the appellant if the injunction is not granted, and for that to be weighed against the injury or inconvenience which is likely to be suffered by 2 XA (by ZA) v School [2024] QCAT 15 [7] citing McIntyre v Hastings Deering (Australia) Ltd and Anor [2012] QCAT 438. 3 Ibid [8]; Coop v State of Queensland [2014] QCATA 205 [80]. 4 Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622 – 623; Australian Broadcasting Incorporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 [19] per Gleeson CJ and Crennan J and [67] per Gummow and Hayne JJ. 5 Beecham at 622-623. 6 [2014] QCATA 205. -- 3 of 5 -- 4 the respondent if it is. That requires, as a first step, the identification of the injury or inconvenience to the appellant, and an understanding of the nature and content of the injunction. [87] In the context of an application under s 144 of the ADA the injury or inconvenience which is likely to be suffered is defined by the section itself. It is prejudice to the investigation or conciliation of the complaint in the ADCQ, or to the orders which might be made by the Tribunal after a hearing. [10] There is, in my view, at least some doubt as to whether the principles which apply to the grant of an interlocutory injunction are applicable when deciding an application under s 144.7 Section 144 identifies the purposes for which an interim order may be granted. The Tribunal is not compelled to grant the order if the act complained of ‘might’ have the effect in s 144(1)(a) or (b). It retains a discretion which, in the absence of express statutory guidance, must be exercised in accordance with the purposes of the AD Act. Whether the principles applying to injunctions are applicable, or not, the result must be the same, for the following reasons. Consideration [11] An order under s 144 may, in an appropriate case, be directed to prohibiting an act by the respondent which, if unrestrained, might cause the relevant prejudice identified in s 144. There is no power under s 144 to make an order that is mandatory in nature.8 [12] In this case, the applicant’s child has been prevented from accessing and storing her e-bike within the school premises. An order might be made prohibiting the school from preventing the child from accessing and storing her e-bike within school premises. The question is whether, applying s 144, that unless such an order is made there is a material risk of prejudice to either: (a) the investigation or conciliation of the complaint; or (b) an order that the tribunal might make after a hearing.9 [13] The relevant material risk of prejudice must emanate from the act to be prohibited or restrained. Here, that means that the question is whether the ‘no e-bikes on school premises’ policy might prejudice the investigation or conciliation of the applicant’s complaint, or an order that QCAT might make after a hearing. [14] In this case, the applicant demonstrates no particular prejudice which might be caused to the investigation or conciliation of her complaint. If the Tribunal does not make an order effectively allowing the applicant’s child to access and store her e- bike on the school’s premises, the result will be that the applicant’s child will be able to use her e-bike as transport to and from school and may store it outside the school’s premises or store it on the school’s premises without the battery. Such a result would not prejudice any investigation or conciliation of the matter. [15] If the matter is not resolved at conciliation the matter may be referred to the Tribunal for a determination of the complaint. A possible order is that the applicant’s child 7 Lenz v Rinami Pty Ltd [2024] QIRC 71. 8 Coop v State of Queensland [2014] QCATA 205 [88]. 9 Jones v Queensland Health [2010] QCAT 700 [13]. -- 4 of 5 -- 5 has been the subject of unlawful discrimination in the terms on which she is admitted as a student with a consequent order for compensation. That outcome is possible whether or not an interim order is made to preclude the school from prohibiting the storage of e-bikes (with batteries) on school premises. [16] I conclude there is no prejudice to the QHRC process or any order the Tribunal might make if no interim order is made in the terms sought by the applicant. Human Rights Act 2019 (Qld) (‘HR Act’) [17] I turn now to consider the application of the HR Act. An interim order of this nature is a matter of practice and procedure. It does not finally determine rights between the parties.10 In this case I am exercising a discretion conferred by statute. The Tribunal has held that in doing so it is acting in an administrative capacity and that the determination must be made in a way which meets the obligations under s 58 of the HRA.11 [18] I have considered Ms DA’s human rights to recognition and equality before the law including a right to equal and effective protection against discrimination12 and the right to a fair hearing.13 All of Ms DA’s rights under the AD Act remain available to her. She is able to pursue the Complaint without the benefit of the interim order. [19] Ms DA has been given a full opportunity to make submissions to this Tribunal with respect to the interim order. No final determination of her rights has been made. In these circumstances, I do not consider that refusal of an interim order will result in a limitation of Ms DA’s human rights, nor do I consider the decision to be incompatible with human rights. Conclusion [20] For the reasons above, the application for an interim order pursuant to s 144 of the AD Act is refused. 10 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 [8]. 11 XA (by ZA) v School [2024] QCAT 15 [37]. 12 Human Rights Act 2019 (Qld) s 15. 13 Ibid s 31. -- 5 of 5 --