Beck v Headland Golf Club & anor [2021] QCAT 354

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Beck v Headland Golf Club & anor [2021] QCAT 354 PARTIES: ANDREW BECK (applicant) v HEADLAND GOLF CLUB JOHN WELCH (respondents) APPLICATION NO/S: ADL019-21 MATTER TYPE: Anti-discrimination matters DELIVERED ON: 19 October 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Traves ORDERS: The application for an interim order 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 95(e), s 144, s 209 Coop v State of Queensland [2014] QCATA 205 Jones v Queensland Health [2010] QCAT 700 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented 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 Andrew Beck was suspended as a member of the Headland Golf Club on 24 May 2021. On 25 May 2021 he lodged a complaint with the Queensland Human Rights -- 1 of 6 -- 2 Commission (QHRC). The Tribunal is not aware of any further action having been taken by the QHRC to date in relation to that complaint. On 18 June 2021 Mr Beck applied to the Tribunal for interim orders to: (a) stay the decision by the Management Committee of the Headland Golf Club to suspend his membership; and (b) prohibit any suspension, revocation or cancellation of his membership until a Tribunal Hearing of his complaint. 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’. 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) 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. 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. By s 209(4)(a) the specified things the Tribunal may order to be done include requiring the respondent to employ, reinstate or re-employ a person. The application for an interim order pre-referral On 17 September 2021 the Tribunal made directions requiring the parties to file submissions in relation to the application for an interim order and, in respect of Andrew Beck, requiring him to set out the legal basis for his complaint to the QHRC. Mr Beck, in his submissions, refers to s 95(e) of the ADA and states: I am decent (sic) of the Gudjal and I have suffered Direct Discrimination by the Conduct of Headland Golf Club Management Committee in being denied my common law right to Principles of Natural Justice by Headland Golf Club Management Committee conducting an unlawful investigation unlawfully for the purpose to impose a penalty upon me, without me being provided with a copy of any Written Complaint being relied upon by Headland Golf Club to initiate an investigation. -- 2 of 6 -- 3 Mr Beck also made a complaint of victimisation. I note that in his original complaint to the QHRC Mr Beck claimed he had been discriminated against on the basis of his ‘political belief or activity’. It is not disputed that Mr Beck’s membership was suspended “effective immediately and until further notice” by email on behalf of the Board of the Club on 11 June 2021. Mr Beck, in effect, seeks a mandatory injunction requiring the Club to re-instate his membership prior to his complaint being referred to the Tribunal by the QHRC. The submissions of the parties Mr Beck seeks an order that the decision by the Club on 11 June 2020 to suspend his membership be stayed until the Tribunal makes orders and that the Club be prohibited from “making any suspension, revocation or cancellation” of his membership until after the Tribunal makes orders. Mr Beck alleged in his submissions that he has been discriminated against the Club for the following reasons: (a) He was not given a copy of the written complaint made against him; (b) He was not informed as to which rule or by-law he had contravened; (c) He was not informed of the facts that led to the Club undertaking an investigation and imposing a penalty upon him; (d) He is a descendent of the Gudjal and has suffered direct discrimination by being denied common law rights of natural justice (no complaint or pleading having been provided); (e) Using his refusal to participate in the investigation he considered to be unlawful as the basis for his suspension. Mr Beck’s complaint appears to stem from the alleged failure of the Club’s management committee to follow due process in investigating and dealing with two unrelated complaints made against Mr Beck: one by a ground staff employee and the other by another Club member. In relation to the staff member, Mr Beck is alleged to have expressed derogatory comments in forceful language about the staff member’s supervisor which the staff member considered inappropriate and personally distressing. In relation to the fellow member, Mr Beck is alleged to have approached the member outside the clubhouse entrance and to have expressed strong criticism of that member’s work as a volunteer within the Club. Mr Beck does not make any submissions that either attribute, namely race1 or ‘political belief or activity’2 (as mentioned in his complaint) was the basis for the Club’s alleged treatment of Mr Beck in dealing with the complaints made against him. Further, Mr Beck does not address how he might be prejudiced by the Tribunal not making orders under s 144 or how the circumstances would, as a matter of discretion, favour orders of the nature he seeks. The Club denies that they treated Mr Beck less favourably than another member would be treated in the same circumstances. They maintain that the Club applied the 1 ADA, s 7(g). 2 ADA, s 7(j). -- 3 of 6 -- 4 procedures set out in s 6 of the Club’s by-laws in dealing with the complaints and that their decision to suspend Mr Beck’s membership emanated from his refusal to participate in the Club’s process for the settlement of written complaints against members or guests as set out in the by-laws. The Club submits that, as it is a not-for-profit, member’s club, it falls outside the statutory definition of club for the purposes of s 95(e) of the ADA. Further, that Mr Beck has not demonstrated a prima facie case in relation to either the discrimination or victimisation complaint. The Club submits that the essence of Mr Beck’s grievance is a complaint that the Club has not complied with its rules. They submit that, pursuant to s 72 of the Incorporated Associations Act 1981 (Qld), that the Supreme Court of Queensland has jurisdiction to make interim orders giving directions for the performance and observance of the rules of an incorporated association and declaring and enforcing the right and obligations of members. Consideration 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, Mr Beck has been suspended. Although an order might not be made prohibiting his suspension, given that has already occurred, an order might be made prohibiting his continued suspension, or, as Mr Beck states in his submissions, prohibiting the revocation or cancellation of his membership. 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.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 In Coop v State of Queensland,6 in considering the application of s 144 of the ADA 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 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. In 3 Jones v Queensland Health [2010] QCAT 700; Coop v State of Queensland [2014] QCATA 205 at [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 at [19] per Gleeson CJ and Crennan J and [67] per Gummow and Hayne JJ. 5 Beecham at 622-623. 6 [2010] QCAT 700. -- 4 of 6 -- 5 considering any application under s 144 in which the prejudice alleged is to orders which the Tribunal might ultimately make, it will be necessary to identify with some precision what orders are said to be potentially prejudiced, and in what way. [88] The nature and content of the injunction also has a statutory context in an application under s 144. The nature of the order is that it must be, in all cases, prohibitory not mandatory. The content of the order in any particular case is that it will restrain the act or acts which have been identified as those which, if unrestrained, would cause potential prejudice to the orders which the Tribunal may otherwise make after a hearing. [89] In my view, this case demonstrates the need for precision in respect of these matters. The prohibition of the particular act or acts identified as those which might prejudice an order the Tribunal may make is all that is authorised under s 144. I turn to consider whether, applying the principles above, an order under s 144 should be made. Has Mr Beck demonstrated a serious question to be tried or prima facie case Mr Beck’s complaint, for the purposes of his s 144 application, is that he was discriminated against by the club in relation to his membership on the basis of his political belief and, possibly also, although he has not explicitly said so, on the basis of race, and was the subject of victimisation. Before making an order under s 144 the Tribunal has applied general principles applicable to the granting of injunctions by requiring that the complainant has demonstrated a serious question to be tried or prima facie case and that the balance of convenience favours the grant of such a relief. Section 144(1) requires that the act prohibited must be one that “might prejudice: (a) the investigation or conciliation of the complaint; or (b) an order that the tribunal might make after a hearing.” 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 I am not satisfied, based on the material before me, that a serious question to be tried exists. The matter, as currently framed, is a complaint about the Club’s processes and whether they were followed in relation to Mr Beck and whether he was afforded procedural fairness. Mr Beck has not articulated in his complaint or in his submissions to the Tribunal the basis for alleging that he was discriminated against or treated less favourably than another member would be treated in Mr Beck’s circumstances, without his attributes, whether of political opinion/belief or race. Further, I am not satisfied that if an order is not made prohibiting the continued suspension of Mr Beck, or prohibiting the revocation of his membership, that this would cause prejudice to the orders which the Tribunal might otherwise make after a hearing. In the event the Tribunal were to make an order, after a hearing, that Mr Beck had been unlawfully discriminated against under the ADA, then orders could be made 7 ADA, s 6. -- 5 of 6 -- 6 compensating Mr Beck for any unjustified suspension or unjustified revocation of his membership. Accordingly, the application for an order under s 144 of the ADA is refused. -- 6 of 6 --