Boles & Walsh v Vonk & ors [2022] QCAT 144

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Boles & Walsh v Vonk & ors [2022] QCAT 144 PARTIES: LEACHIA BOLES DAVID WALSH (applicants) v JASMIN VONK GAURAV SINGH CORDIUM ADMIN PTY LTD CORDIUM MEDICAL STAFF PTY LTD (respondents) APPLICATION NO/S: ADL052-21 MATTER TYPE: Anti-Discrimination matters DELIVERED ON: 1 March 2022 REASONS DELIVERED: 26 April 2022 HEARD AT: Brisbane DECISION OF: Member Traves ORDERS: The application for an interim order filed by the applicants on 26 November 2021 is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application for an interim order before referral of discrimination complaint – whether interim order should be made Anti Discrimination Act 1991 (Qld) s 6, s 144, s 209 Beck v Headland Golf Club [2021] QCAT 354 Coop v State of Queensland [2014] QCATA 205 Jones v Queensland Health [2010] QCAT 700 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] On 25 October 2021 Ms Boles and Mr Walsh were informed that the medical practice they attended had decided to discontinue their treating relationship with them. The reason for this was said by the respondents to be because the applicants repeatedly -- 1 of 6 -- 2 refused to comply with a policy of the medical practice which required that for patients to attend face to face appointments the patient must have no flu like symptoms and wear a face mask at all times. If the patient was unable to meet those requirements, the patient was expected to wait outside until called by their doctor. [2] The applicants refused to wear masks and claim they each have a medical exemption from the requirement to wear a mask. They say that the receptionist at the practice asked them to wait outside and, ultimately, that her “ongoing discrimination” against them culminated in Dr Singh stating that Mr Walsh and Ms Boles had “threatened and abused” clinic staff and were barred from attending the clinic. They also refer to the following comment allegedly made by the receptionist to them in the reception area: “I don’t want your kind in my clinic”. They submit that this comment constituted ‘racial discrimination’ and/or racial vilification. [3] On 26 November 2021 the applicants filed an application for interim order seeking the following: 1. The respondents are restrained from further applying the provisions of Dr Singh’s letters (sic) dated 25 October 2021 until the substantive complaints (BNE5415216 & 17) lodged with the Human Rights Commission are determined by either of the Human Rights Commission or QCAT. 2. That neither applicant is subject to ‘policies’ of the Ashgrove Clinic where those policies are inconsistent with the Covid-19 Regulations as promulgated by the Queensland Health Department. 3. That the applicants are permitted to attend, jointly or severally, Ashgrove Clinic for consultations with their attending doctors. 4. That the applicants are to continue to conduct themselves when at the Ashgrove Clinic and or interacting with staff from the Ashgrove Clinic in a normal courteous and non-confrontational manner. [4] In effect, the interim orders sought required the medical practice to continue to treat the applicants notwithstanding they would not wear a mask. [5] The Tribunal has power under s 174A of the Anti-Discrimination Act 1999 (Qld) (ADA) ‘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 ADA provides: 144 Applications for orders protecting complainant’s interests (before reference to tribunal) (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 of 6 -- 3 (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 ADA sets out the relief which may be granted by the Tribunal after a hearing if it decides that a respondent has contravened the ADA. 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. The application for an interim order pre-referral [8] On 21 December 2021 the Tribunal made directions requiring the applicants to file an affidavit and any witness statements or submissions in support of the interim application, including setting out the legal basis for their complaint to the Queensland Human Rights Commission and the precise orders sought in the interim application. The respondents were directed to file a response. The applicants’ submissions [9] The applicants’ complaint for the purposes of the s 144 application is that the receptionist’s attempts to enforce an ‘unlawful policy’, described by them as ‘mask wearing for people who have a medical exemption’ and their subsequent exclusion from the practice, was discrimination based on the attribute of ‘medical impairment’ s 7(h) ADA) in the provision of medical services (s 46(1)(a) – (d) ADA).1 [10] The applicants submit elsewhere that requiring them to wear a mask in circumstances contrary to Directives and when other patients did not, was direct discrimination on the bases of race and impairment.2 [11] The applicants also submit that in demanding first that they wait in the building’s common area, and on a subsequent occasion, outside the building, constituted indirect discrimination. [12] The applicants submit that the inconvenience or injury they would be likely to suffer if the injunction was refused would be outweighed by any injury the respondents would suffer if it was granted. They argue, in effect, that an order made after the final hearing to permit them to attend the clinic would not prevent the potential for adverse medical outcomes for the applicants in the interim. The Tribunal, they submit, is not to assume that appropriately qualified and experienced medical practitioners are readily available to the applicants. Further, that their medical records may be improperly dealt with by the respondents in the event the records are required to be transferred to other GP practices.3 [13] The applicants in their submissions re-framed the orders sought by their original application as follows: 1 Applicants’ submissions filed on 12 January 2022 at 5, [4k]. 2 Ibid at 6, [5c]. 3 Ibid at 11, [7i]. -- 3 of 6 -- 4 1. The respondents are prohibited from excluding the applicants from attending the [clinic] for medical services until the applicants’ discrimination complaint dated 28 October 2021 has been heard and determined in the Queensland Civil and Administrative Tribunal, or until further order. 2. The respondents are prohibited from publishing the letters dated 25 October 2021 from Dr Singh to the applicants to any third party. 3. The respondents are prohibited from enforcing any [clinic] policy that is contrary to or inconsistent with the Public Health Face Mask Requirements Direction (No 4) in force or as amended. 4. Other such order as determined by the Tribunal. The respondents’ submissions [14] The respondents submit that the mask policy introduced in August 2021 was their response to an evolving global pandemic and variable advice of Queensland Health. They submit that they would have discontinued their treating relationship with any patient who was being non-compliant with the clinic’s policy and who repeatedly intimidated and threatened staff, provided it was safe to do so.4 Accordingly, that the applicants were not treated any less favourably than any other patient would have been treated, in circumstances that were the same or not materially different. [15] The respondents dispute all allegations of racial vilification. They submit that the allegations are baseless and entirely inconsistent with the clinic staff’s recollection of events.5 Further, that at no time was the matter of Ms Boles’ race expressly or implicitly raised by the receptionist or any other staff member at the clinic and that it was only brought up by Ms Boles, seemingly without context or justification.6 [16] The respondents submit that the inconvenience and injury which they are likely to suffer if the interim orders are granted outweighs any the applicants might suffer if the orders are refused. To allow the applicants to continue to attend the clinic until such time as their QHRC complaint is determined would, it is submitted, pose a serious and ongoing risk to the health and safety of both the Clinic’s vulnerable patients, as well as its staff. Staff at the Clinic had allegedly been made to feel intimidated and uncomfortable and, in the case of the receptionist, fearful for her personal safety. [17] The respondents say that they have made all reasonable attempts to mitigate any inconvenience or injury to the applicants arising from terminating the treating relationship. In particular, the respondents consulted with the applicants’ treating doctors, who advised that it would not compromise the applicants’ care to refer them to another practice and that an additional three weeks of Telehealth appointments had ben offered at the Clinic while the applicants sourced an alternative treatment provider, upon which time the respondent agreed to promptly facilitate the transfer of their respective medical files. [18] Further, the respondents stated that the applicant’s treating doctors at the Clinic both supported the decision to discontinue the applicants’ treatment at the Clinic. In any 4 Respondents’ submissions filed on 27 January 2022 at [21]. 5 Ibid at [24]. 6 Ibid at [25]. -- 4 of 6 -- 5 event, both doctors have since left the Clinic and the applicants would each need to establish a rapport with another doctor in any event. [19] Finally, the respondents submit that the applicants have failed to establish that if the interim orders are not granted, that this would cause prejudice to the investigation or conciliation of the complaint, or prejudice the orders which the Tribunal might otherwise make at a hearing. In any event, if the complaint is proven, that the Tribunal may make an order for compensation pursuant to s 209(1)(c) of the ADA for any unjustified termination of their treatment at the Clinic. Consideration [20] 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. In this case, the applicants have been excluded from attending the Clinic either in person or via telehealth appointments. Although an order might not be made prohibiting the termination of the treating relationship between the applicants and the Clinic, given that has already occurred, an order might be made prohibiting their continued exclusion, so that the applicants’ treatment at the Clinic may be resumed. [21] Recently, the Tribunal in Beck v Headland Golf Club7 observed: The Tribunal has approached the issue of the making of an interim order under s 144 of the ADA by applying the principles relevant to the grant of an interlocutory injunction: Jones v Queensland Health [2010] QCAT 700; Coop v State of Queensland [2014] QCATA 205 at [80] 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: 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 at [19] per Gleeson CJ and Crennan J and [67] per Gummow and Hayne JJ. 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: Beecham at 622-623. (emphasis added) [22] For relief to be available under s 144, the act which the order prohibits must be an act that might prejudice: (i) the investigation or conciliation of the complaint; or (ii) an order the Tribunal might make after a hearing.8 [23] In considering the application under s 144, it is accordingly necessary for the applicants to identify what prejudice will be caused to an investigation or conciliation of the complaint or to the orders that the Tribunal might make after a Hearing. The applicants have failed to do so. [24] For a complaint to constitute unlawful discrimination under the Anti-Discrimination Act 1991 (Qld) there must be discrimination on a ground set out in Part 2, of a type set out in Part 3 and in an area of activity set out in Part 4. 7 [2021] QCAT 354. 8 Coop v State of Queensland [2010] QCAT 700 at [87]. -- 5 of 6 -- 6 [25] The applicants allege that they were discriminated against because of their race and impairment in the provision of medical services. They rely upon the following treatment as the basis for discrimination: (a) the Clinic’s mask policy; (b) the way the receptionist allegedly treated them; (c) the letter of 25 October 2021 from Dr Singh which, in effect, excluded them from attending the practice in the future, excepting telehealth appointments which were offered until 14 November 2021 to ensure ‘continuity of care’; and (d) the refusal by the Clinic to forward evidence of Ms Boles’ medical exemption to the hospital when requested. [26] In my view and on the present material the direct discrimination claim is relatively weak. It is likely that criterion applied by the Clinic and its staff and which informed their conduct was adherence to the mask policy. The reason the applicants were asked to wait outside until their appointment was because they refused to wear a mask, not because of their race or due to their underlying medical conditions. [27] In relation to whether there is a prima facie case of indirect discrimination, the terms of the Clinic’s mask policy (whether written or a practice) need to be considered. The policy, based on the submissions of the parties, was that masks were to be worn inside the Clinic and that patients who refused to wear a mask (for whatever reason) should wait outside the Clinic until called for their appointment. [28] It is doubtful whether a policy in these terms is discriminatory. It is a defence to indirect discrimination for the respondent to show that the term, here the policy, was reasonable. In my view, the respondent may well be able to show, in the face of a global pandemic and in view of the nature of services being provided, that the policy was reasonable. [29] On the present material, bearing in mind the terms of s 144 and the arguments otherwise advanced by the applicants, I am not satisfied the applicants have a prima facie case. [30] As to the balance of convenience, the applicants can attend another medical practice and have their records transferred. Their treating doctors at the Clinic are no longer there. In the event the Tribunal were to make an order, after a hearing, that the applicants had been unlawfully discriminated against under the ADA, then orders could be made compensating them for any unjustified exclusion from the Clinic. [31] Accordingly, the application for an order under s144 of the ADA is refused. -- 6 of 6 --