Ali v State of Queensland [2019] QCAT 68

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Ali v State of Queensland [2019] QCAT 68 PARTIES: RAYMOND ALI (applicant) v STATE OF QUEENSLAND (QUEENSLAND CORRECTIVE SERVICES) (respondent) APPLICATION NO/S: ADL019-18 MATTER TYPE: Anti-discrimination matters DELIVERED ON: 14 March 2019 (original decision 11 February 2019) HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Gordon ORDERS: UPON hearing the application by the State of Queensland (Queensland Corrective Services) on the papers to strike out the complaint under section 48 of the Queensland Civil and Administrative Tribunal Act 2009, the application is refused. THE TRIBUNAL FURTHER DIRECTS THAT: 1. Raymond Ali must provide answers to the questions in direction 2 to the State of Queensland (Queensland Corrective Services) and to the Tribunal by:- 4:00pm on 20 March 2019. 2. The questions referred to in direction 1 are:- (a) Section 7 of the Anti-Discrimination Act 1991 lists the attributes on the basis of which the Act prohibits discrimination. It can be understood from the Summary of Contentions that Raymond Ali relies on the attribute of “religious belief”. Does he rely on any other attribute? (b) What are the dates between which Raymond Ali was denied the use of a toaster at the Woodford Correctional Centre? (c) What are the dates between which Raymond Ali was fed non Halal food at the PA Hospital? (d) Raymond Ali makes a complaint of direct discrimination. Section 10 of the Act says that -- 1 of 17 -- 2 would happen if he was treated less favourably than a person who does not have the attribute of religious belief. It can be understood from the Summary of Contentions that the less favourable treatment was that he was:- (i) denied a toaster; and (ii) fed non Halal food. Does Raymond Ali confirm that this is the less favourable treatment relied on? (e) The definition of direct discrimination in section 10 of the Act suggests a comparison of the treatment of Raymond Ali with different treatment of another person who does not have the attribute of religious belief. Is Raymond Ali relying on different treatment of another person? If so that person must be identified, and the circumstances of that person described, and the difference in treatment of that person explained. Note that if Raymond Ali does not rely on different treatment of another person the tribunal will apply the test in section 10 to a hypothetical person. (f) Is it contended that any of Prisoners Singh, Zane, Zaack Ali or Guy Gillespie did not have the attribute of religious belief? (g) Raymond Ali makes a complaint of indirect discrimination. Section 11 of the Act says that would happen if a term (including a condition, requirement or practice) was imposed and the term was one (a) with which he does not or is not able to comply and (b) with which a higher proportion of people without the attribute comply or are able to comply and (c) that is not reasonable. It can be understood from the Summary of Contentions that Raymond Ali contends that the term which was imposed was that he had to use the general population grill. Is it to be understood that Raymond Ali contends that he could not comply with that term? (h) For the test of reasonableness in section 11 what facts and matters are relied on by Raymond Ali to show that it was unreasonable to expect him to use the general population grill? 3. If the Applicant fails to provide the answers to the questions by the required date the complaint may be struck out. 4. If the Applicant does provide the answers to the -- 2 of 17 -- 3 questions by the required date the State of Queensland (Queensland Corrective Services) must file in the Tribunal two (2) copies and give to Raymond Ali one (1) copy of their response to the Applicant’s Summary of Contentions (as further particularised as required by these directions) by: 4:00pm on 17 April 2019. 5. If the Applicant does provide the answers to the questions by the required date the complaint will be listed for a Directions Hearing in Brisbane. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – where respondent applied under section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to strike out the applicant’s discrimination complaint for non-compliance with tribunal directions – whether the events listed in section 48 at (a) to (g) are examples only or can be determinative of the application to strike out – whether application should be struck out Anti-Discrimination Act 1991 (Qld), s 11, s 138, s 175 Acts Interpretation Act 1954 (Qld), s 14B Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 4(e), s 28(2), s 28(3)(b), s 28(3)(d), s 45, s 43(3)(a), s 48, s 49, s 69(a), s 69(c), s 122, s 126 Abdullah v Taxi Council of Queensland Incorporated and Vogt [2011] QCAT 45 Alexander v State of Queensland & Anor [2016] QCAT 142 Ali v State of Queensland [2013] QCAT 319 Birkett v James [1978] AC 297 Field v Luxor Products Pty Ltd & Anor [2009] QSC 218 Gill v Roberts [2011] QCAT 515 Kurepa-Rofe v State of Queensland & Makinson [2013] QCAT 530 McCauley v Club Resort Holdings Pty Ltd and Anor [2012] QCAT 590 Robson & Anor v Robson & Ors [2010] QCA 330 Thomas v St George Bank [2013] QCA 136 WK v Department of Communities (Child Safety Services) [2010] QCAT 208 REPRESENTATION: Applicant: Skilled Objective Solutions Respondent: Crown Law -- 3 of 17 -- 4 APPEARANCES: 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 12 September 2018 the State of Queensland applied to the tribunal to strike out a discrimination complaint made by Raymond Ali under the Anti-Discrimination Act 1991 (Qld) (ADA) which had been referred to the tribunal by the Anti-Discrimination Commission Queensland (ADCQ). [2] The strike out application was referred to me for a decision and on 11 February 2019 I decided to refuse the application to strike out, and I made some further directions. [3] On 19 February 2019 Crown Law for the State of Queensland asked for reasons to be given for the decision made on 11 February 2019. This request was made under section 122 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Under that section the tribunal must provide reasons for some decisions but not others. Reasons do not have to be given for most directions, however a decision whether or not to strike out a complaint appears to be one for which the tribunal must give reasons if they are requested. [4] The strike out application was made under section 48 of the QCAT Act. The grounds for the application were that Mr Ali had failed to comply with the tribunal’s orders and directions without reasonable excuse in a way which unnecessarily disadvantaged the State of Queensland. [5] My decision on this application turns on the extent to which a person bringing a discrimination complaint who is not legally represented should comply strictly and precisely with tribunal directions which are aimed at identifying the factual and legal issues for determination. [6] In order to consider this I need firstly to set out the main order which it is said was not complied with, the response to that order by Mr Ali, and the alleged non-compliance identified by the State of Queensland. The main order [7] The main order which it is said Mr Ali did not comply with, was a directions order made by the tribunal on 9 August 2018. [8] The relevant part of that order was as follows: 3. Raymond Ali must file in the Tribunal two (2) copies and give to State of Queensland (Queensland Corrective Services) one (1) copy of a summary of his amended Statement of Contentions, no more than five (5) pages, which must set out: a. What attribute is the basis for the complaint; b. Who or what is the comparator; i. If the comparator is a real person, who that person is and why they -- 4 of 17 -- 5 are an appropriate comparator. ii. If the comparator is hypothetical, a description of that person. c. Whether the discrimination is direct, indirect or both, i. If the complaint is of direct discrimination, how Raymond Ali was treated less favourably, ii. If the complaint is of indirect discrimination, what was the term that Raymond Ali could not comply with, or was more difficult to comply with, why it was more difficult to comply with that term, how it is that a higher proportion of people without the attribute can comply with the term, and why the term was not reasonable, d. What orders Raymond Ali wants the Tribunal to make, by: 4pm on 30 August 2018. e. The amended Statement of Contentions must only include allegations that were accepted by the Anti-Discrimination Commission Qld and referred to the Tribunal. 4 If Raymond Ali fails to comply with direction 3 above, the complaint will be dismissed without further notice to the parties. Mr Ali’s response to the order [9] On 30 August 2018 a document headed ‘Applicant’s Summary of Contentions’ was filed in the tribunal on Mr Ali’s behalf. It read as follows: APPLICANT’S SUMMARY OF CONTENTIONS 1. That the Applicant was denied to use of a toaster at the Woodford Correctional Centre despite the Official Visitor advising the general manager that it was the Applicant’s basic right to have one due to his religious beliefs. 2. That whilst in the care of Queensland Corrections at the P.A. Hospital the Applicant was fed non Halal food including pork which is forbidden by his religion. 3. Almost all units that have been in had toasters and many prisoners had personal sandwich makers as the Applicant did in other prisons to name a few, Prisoners Singh, Zane and Zaack Ali and Guy Gillespie. When I was sent to Woodford Correctional Centre the Applicant was not permitted to have these items. 4. (a) The discrimination was direct discrimination as the staff and the general manager of Woodford Correctional Centre were aware of the Applicant’s religious dietary needs and his file was marked accordingly. (b) The discrimination is indirect discrimination as a term was placed on the Applicant in that he had to either used the general population grill that has pork prepared on or miss some meals. 5. The Applicant is seeking an Order for compensation in the amount of $20,000. Case Law Ali v State of Queensland APL377-13 Mahommed v State of Queensland [2006] QCADT 21 (24/05/200 -- 5 of 17 -- 6 The particulars of non-compliance alleged [10] The application to strike out contends that the document filed and served on 30 August 2018 failed to comply with direction 3 because: (a) The Applicant has failed to identify the attribute on which he relies in bringing his complaint. (b) The Applicant has failed to identify who or what is the comparator. (c) With respect to paragraph 1, the Applicant has not provided any particularity around the allegation, including providing the dates on which the matters the Applicant seeks to rely on is said to have occurred. (d) With respect to paragraph 2, the Applicant has not provided any particularity around the allegation, including providing the dates on which the matters the Applicant seeks to rely on is said to have occurred. (e) With respect to the Applicant’s claim of direct discrimination, the Applicant has failed to identify the less favourable treatment and has not set out the basis on which he alleges direct discrimination has occurred. (f) With respect to his claim of indirect discrimination, the Applicant has made a general assertion about a term placed on him but has failed to explain why he was unable to comply with the term or why a higher proportion of people without the attribute can comply with the term and the Applicant has failed identify why the term was unreasonable. [11] The application to strike out also says that Mr Ali had failed to comply with earlier orders of the tribunal. One was a direction that he file a Statement of Contentions by 14 May 2018. It is said that contentions were not received by that date. On 30 May 2018 the tribunal enlarged the time for Mr Ali to provide the contentions to 22 June 2018. It is said that although it appeared that Mr Ali sent his contentions to the tribunal by an email dated 22 June 2018 they were not served on the State of Queensland. Then five days later the State of Queensland received the contentions from Mr Ali with an explanation that he was now residing in Fiji and that he had believed that the tribunal would have forwarded his contentions to the lawyer acting for the State of Queensland. [12] The application reminds the tribunal that the State of Queensland had applied for the contentions in the email dated 22 June 2018 to be struck out. This was done by application dated 2 August 2018. In that application it was said that not only did Mr Ali give his contentions to the State of Queensland five days late, but also they were not in compliance with the tribunal’s order because they lacked details about the attribute relied on, the comparator, whether the discrimination was direct or indirect and the order that the tribunal was being asked to make. [13] The tribunal considered this application on the papers and did strike out Mr Ali’s contentions in the email of 22 June 2018. That strike out was done in an earlier direction in the order dated 9 August 2018. -- 6 of 17 -- 7 The purpose of the tribunal order [14] The purpose of the order of 9 August 2018 needs to be considered to assess the seriousness of any breach of that order. [15] It should be born in mind that a complaint of this sort starts in the ADCQ. Since the ADCQ cannot accept a complaint which is not about a contravention of the Act and must reject a complaint which is misconceived or lacking in substance, it necessarily analyses and categorises the complaint.1 The ADCQ will also consider whether the complaint is in time.2 A complaint which is accepted is then notified to the respondent and a response is sought. Usually the ADCQ tries to conciliate the complaint. Complaints which are not resolved during this process may be referred to the tribunal.3 [16] If there is a reference to the tribunal, the tribunal receives from the ADCQ the complaint and the documents supporting the complaint, formal correspondence, and any response from the respondent. The ADCQ also informs the tribunal about its categorisation of the complaint. [17] Traditionally, the tribunal then requires the complainant to file ‘contentions’. The order directing this is in the form of the order made on 9 August 2018. The tribunal also directs the respondent to file a response to those contentions. Then in almost every case a compulsory conference is held soon after the contentions are filed. Since one of the purposes of a compulsory conference is ‘to identify and clarify the issues in dispute in the proceeding’ and to ‘identify the questions of fact and law to be decided by the tribunal’,4 it is to be hoped that any uncertainties, inconsistencies, lack of clarity and lack of particulars in the complainant’s case can be identified and dealt with in the compulsory conference. [18] In discrimination cases, it has been recognised that the compulsory conference is an ideal opportunity to ensure the factual and legal issues to be decided by the tribunal are set out in writing and agreed by the parties. In Kurepa-Rofe v State of Queensland & Makinson [2013] QCAT 530 which was a strike out application similar to this one, Senior Member Endicott at [7], confirmed that a compulsory conference was the preferred method of dealing with disputes about how the contentions had been drafted by a complainant, rather than by strike out. [19] Identifying the factual and legal issues in a discrimination case is essential to enable both sides to know what evidence they need to obtain and what documents are relevant for disclosure. It helps the parties in settlement negotiations. It helps the tribunal to deal with interlocutory matters and in case management, and it helps to ensure that the time estimate for the hearing is correct. It reduces the chance of surprises at the hearing of the matter, and ensures that the parties and the tribunal are not working at cross purposes. 1 The relevant provisions are sections 134 to 143 of the ADA. 2 It must be made within 1 year of the alleged contravention: section 138(1). 3 Sections 164A to 167 of the ADA. 4 Sections 69(a) and (c) of the QCAT Act. -- 7 of 17 -- 8 [20] This is required therefore not only for good case management, but also because the tribunal has an obligation fairly and justly to hear and determine a complaint.5 [21] There is another reason why it is necessary to identify the factual and legal issues in the complaint before the tribunal. The complaint before the tribunal must be the complaint that has been accepted by the ADCQ.6 Any complaint which is outside the original complaint to the ADCQ can only be heard by the tribunal if the complaint is amended.7 Obviously if any such amendment is required it should be dealt with as early as possible in the tribunal process. [22] In some discrimination complaints the issues are unclear upon a reference to the tribunal. For example, a complainant may present a set of facts to the ADCQ and say that what has happened is ‘discriminatory’ without any analysis of what contraventions of the Act might apply if the facts are found to be true. Where the assertions in a discrimination case are generalised in this way, the ADCQ will need to be satisfied that the complaint is about a contravention of the Act, and if so it will accept the complaint. But the ADCQ does not have a role to identify the factual and legal issues which need to be resolved by the tribunal. [23] In such cases the tribunal will have further work to do in establishing the factual and legal issues which need to be resolved. And in such cases the tribunal’s obligation to take all reasonable steps to ensure that each party understands the nature of assertions made in the proceeding and the legal implications of the assertions would seem to be engaged.8 [24] It can be seen therefore that the order of 9 August 2018 was made as part of a process. That process started with the ADCQ and would, in the usual case, end in a compulsory conference. At the end of the process, it is to be hoped that the nature of the complaint and the factual and legal issues which needed to be resolved by the tribunal would have been identified. [25] Two things follow from this of importance for this strike out application. [26] Firstly, a failure by a complainant precisely to comply with the order of 9 August 2018 ought not in the usual course of events be fatal to the complaint. There are mechanisms available to iron out lack of clarity and uncertainties. To this should be added the fact that contentions are not pleadings. In fact, the tribunal does not have pleadings and they are not required or even contemplated in the QCAT legislation. Instead, the tribunal is not bound by any practices or procedures applying to courts of record, other than to the extent the tribunal adopts them,9 and the tribunal must act with as little formality and technicality as a proper consideration of the matter before the tribunal permits.10 [27] Secondly, the contentions of 30 August 2018 should not be read in isolation. They should be read in the context of the ADCQ referral documents and Mr Ali’s other filed material. It is right therefore for me to consider this other material when considering 5 Sections 3(b) and 28(2) of the QCAT Act. 6 Sections 164A, 166, 167, 174A of the ADA. 7 Which can be done under section 178 of the ADA. 8 Section 29(1)(a)(ii) of the QCAT Act. 9 Section 28(3)(b) of the QCAT Act. 10 Section 28(3)(d) of the QCAT Act. -- 8 of 17 -- 9 the alleged non-compliance and whether any non-compliance is serious enough to strike out the complaint. Other material from Mr Ali [28] For the above reasons I have reviewed Mr Ali’s email of 22 June 2018 and also the original complaint that he made to ADCQ. [29] Starting with the email of 22 June 2018, this was in narrative form. In it, Mr Ali says he was transferred to Woodford Correctional Centre on 5 July 2016 and then became very sick. He was treated at the prison medical centre at first, and then transferred to Caboolture hospital and from there to PA Hospital. Mr Ali says he was in hospital for two weeks but during that time he was given pork meals such as a roast pork sandwich, pea and ham soup and a cheese and ham croissant despite being Muslim and it being known that he should be given Halal products only. [30] In the email Mr Ali says that after he returned to Woodford Correctional Centre from hospital he asked his unit officer for his own toaster because there was only one industrial griller and most of the inmates cooked ham on it. The unit officer advised him to write to the General Manager which he did, requesting a toaster. This request was denied. [31] In the email Mr Ali says that he was told to use the griller and that he could wash it before using it. This was impossible for him to do because the prisoners were unlocked at about 7.30am and he started work at 8.00am and ‘it was impossible for me to wash the griller while 50 other inmates waited in the queue’. ‘This would have created a lot of violence in the unit’. [32] In the email Mr Ali says that he said that he had a prison issued sandwich maker in his property but he was not allowed to have that either. That sandwich maker had been issued to him by Wolston Correctional Centre (where he was before Woodford) and he had previously been able to use it on transfers to Maryborough Correctional Centre and Brisbane Correctional Centre. [33] In the email Mr Ali said that he complained about the toaster to three different Official Visitors and to prison management but he was still denied the toaster. For his last week at Woodford however he was moved to another unit where there was a toaster. Then he was moved back to Wolston. [34] Mr Ali signed off the email by saying ‘These are my contentions and I hope this will fulfil the requirements of the directions of the Senior Member. If any further information is required please do contact me.’ [35] Mr Ali’s original complaint was made by letter to the ADCQ dated 8 January 2017. This letter contains the same complaints about being given non Halal food whilst in hospital. In addition to the foods mentioned in his email of 22 June 2018 however, he also mentions being given ham and pasta bake and roast pork sandwiches (in the plural, rather than one such sandwich). [36] The letter also contains the complaint about not being given a toaster on his return to Woodford but he points out that the inmates used the industrial griller not only to cook ham but also to cook hot dogs. -- 9 of 17 -- 10 [37] In passing I would point out that the letter also complained about being given non Halal food at Woodford Correctional Centre, a complaint which he is not making before the tribunal. In the application what is said to be the effect of the alleged non-compliance? [38] I note that direction 4 of the order of 9 August 2018 stated that if direction 3 was not complied with then ‘the complaint will be dismissed without further notice to the parties’. [39] In this application it is not suggested that this means that the complaint is already dismissed as a result of the alleged non-compliance. It must be correct that this has not happened, because the order is not an automatically executing order. It requires some further action by the tribunal for the complaint to be dismissed. [40] Further, in this application it is not suggested that upon being notified by the State of Queensland that Mr Ali has not complied with direction 3, the complaint automatically stands dismissed. Again, it must be correct that the order would not work in this way. It is not for the opposing party to decide the question of non- compliance. That is for the tribunal. [41] But it is not suggested in this application either that the sole task for the tribunal is now to decide whether direction 3 was complied with, and that therefore on a finding of fact that Mr Ali has not complied with the direction the tribunal is bound to dismiss the complaint and has no alternative course of action. Any such submission would of course be bound to fail because it would be incorrect: the tribunal can give relief from a peremptory order. This must be why this submission has not been made. [42] Instead, the way it is put is that Mr Ali had failed to comply with this direction, and that he failed to comply with others too and hence his complaint should be dismissed. The State of Queensland rely solely on section 48 of the QCAT Act. [43] It is necessary to set out section 48 of the QCAT Act in full: 48 Dismissing, striking out or deciding if party causing disadvantage (1) This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by— (a) not complying with a tribunal order or direction without reasonable excuse; or (b) not complying with this Act, an enabling Act or the rules; or (c) asking for an adjournment as a result of conduct mentioned in paragraph (a) or (b); or (d) causing an adjournment; or (e) attempting to deceive another party or the tribunal; or (f) vexatiously conducting the proceeding; or -- 10 of 17 -- 11 (g) failing to attend mediation or the hearing of the proceeding without reasonable excuse. (2) The tribunal may— (a) if the party causing the disadvantage is the applicant for the proceeding, order the proceeding be dismissed or struck out; or (b) if the party causing the disadvantage is not the applicant for the proceeding— (i) make its final decision in the proceeding in the applicant’s favour; or (ii) order that the party causing the disadvantage be removed from the proceeding; or (c) make an order under section 102, against the party causing the disadvantage, to compensate another party for any reasonable costs incurred unnecessarily. Note— See section 108 for the tribunal’s power to order that the costs be paid before it continues with the proceeding. (3) In acting under subsection (2), the tribunal must have regard to the following— (a) the extent to which the party causing the disadvantage is familiar with the tribunal’s practices and procedures; (b) the capacity of the party causing the disadvantage to understand, and act on, the tribunal’s orders and directions; (c) whether the party causing the disadvantage is acting deliberately. (4) The tribunal may act under subsection (2) on the application of a party to the proceeding or on the tribunal’s own initiative. (5) The tribunal’s power to act under subsection (2) is exercisable only by— (a) the tribunal as constituted for the proceeding; or (b) if the tribunal has not been constituted for the proceeding—a legally qualified member or an adjudicator. Considerations [44] Section 48 permits the tribunal to strike out a complaint on the happening of an event; that is, where the complainant is acting in a way that unnecessarily disadvantages another party. The section goes on to say ‘including by’ and then lists a number of situations in paragraphs (a) to (g). On a literal reading of these words it might be thought that paragraphs (a) to (g) are intended non-exclusively to define when a party is unnecessarily disadvantaged. On that construction, section 48 is engaged whenever one of (a) to (g) occurs, and without more. An alternative construction is that (a) to (g) are merely examples of when a party might be unnecessarily disadvantaged. -- 11 of 17 -- 12 [45] This ambiguity is resolved by the explanatory note to the Bill when it was introduced to Parliament. By section 14B of the Acts Interpretation Act 1954 (Qld) an explanatory note can be considered in the case of ambiguity. The note reads: Clause 48 confers a discretionary power on the tribunal to dismiss or strike out a proceeding or order that a party be removed from the proceeding if a party unnecessarily disadvantages another party. Subsection (1) sets out examples of the circumstances in which the power may be exercised. Again, this power applies to all proceedings before the tribunal. Under this section, it is the way in which a party is conducting the proceeding that is the focus, whereas, under clause 47, it is the substance or merits of the proceeding. The tribunal may also order the party causing the disadvantage to pay another party any reasonable costs incurred. [46] This must be the correct construction because it is possible to think of instances in (a) to (g) which would not in fact disadvantage the other party – for example where both parties want an adjournment or where both parties fail to attend mediation. [47] This is also the construction applied by the tribunal in a number of previous decisions.11 In those decisions, the tribunal considered it necessary to find that the other party had been unnecessarily disadvantaged before the power to strike out under section 48 could be exercised. [48] Where the other party can show unnecessary disadvantage caused by the complainant, the tribunal has a discretion whether or not to act under section 48. In exercising that discretion, by section 48(3) the tribunal must have regard to three things. [49] The first thing to which the tribunal must have regard is the extent to which the party causing the disadvantage is familiar with the tribunal’s practices and procedures. In this case it is said that Mr Ali ought to be familiar with these since he had previously made a complaint heard by the tribunal.12 [50] The second thing to which the tribunal must have regard is the capacity of the party causing the disadvantage to understand, and act on, the tribunal’s orders and directions. [51] I have some concerns here. The first thing to say is that discrimination law around the world tends to be complex. Queensland discrimination law has its own nuances. A complainant has a difficult task understanding the elements of a discrimination claim. Mr Ali is represented here by a non-lawyer representative. Non-legal representatives have the same difficulties as their clients unless they are practised in the area. [52] In direct discrimination complaints there is a difficulty being able accurately to distinguish between ‘less favourable treatment’ relevant for the purposes of section 10 of the Act, and other things which are more appropriately put in the category of background material. There is difficulty understanding the concept of a comparator, 11 For example, Member Guthrie as she then was in Alexander v State of Queensland & Anor [2016] QCAT 142, Senior Member Endicott in Abdullah v Taxi Council of Queensland Incorporated and Vogt [2011] QCAT 45, [13] and Member Howard as she then was in WK v Department of Communities (Child Safety Services) [2010] QCAT 208, [17]. 12 Ali v State of Queensland [2013] QCAT 319. -- 12 of 17 -- 13 with the need for the comparator to be in the same or not materially different circumstances, but without the attribute relied on, and even more difficulty with a hypothetical comparator. The correct comparator needs to be informed by the terms of section 8 of the Act which provides that discrimination on the basis of an attribute includes discrimination on the basis of the characteristics of that attribute.13 These are complex legal questions in some cases. [53] That a particular set of facts might disclose a valid indirect discrimination complaint is not always obvious even to those practised in the area. A non-legally represented complainant will find it difficult to understand the concepts involved, and will probably not appreciate for example that the word ‘term’ in section 11 is widely defined and will probably have difficulty with the concept of disproportional effect of a term on those with an attribute, taking into account the effect of section 8 of the Act. [54] For these reasons, an application to strike out a complaint where a non-legally represented complainant has failed to get the contentions correct as he has been directed to do, is highly problematical. [55] It appears from the contentions filed by Mr Ali that there was confusion about the information he was directed to provide, in particular about the comparator [56] In some cases, consideration about the capacity of the person to understand the order is allied to another factor; that is, whether the complainant has a good explanation for non-compliance with the tribunal’s order. If the order itself is capable of leading to confusion then the complainant will have a good reason for non-compliance in so far as it results from that confusion. [57] The third thing to which the tribunal must have regard is whether the party causing the disadvantage is acting deliberately. The importance of this consideration may vary depending on the circumstances. But it appears from the authorities to be an important consideration.14 [58] Here there is nothing to suggest that Mr Ali intentionally flouted the directions of the tribunal. To the contrary, it appears to me that he and his advisers have tried to comply with the directions but have found it difficult to do so. [59] When exercising the discretion under section 48 there are a number of other things which can be taken into account. [60] One is the question of accessibility. The tribunal is bound to deal with matters in a way that is accessible.15 To strike out a complaint because of a failure by a complainant properly and precisely to identify the elements he has been directed to identify reduces the accessibility of the tribunal. [61] Allied to this issue, is whether Mr Ali would be able to bring his complaint again. If a complaint is struck out under section 48, then section 49 applies. It reads: 49 Restriction on new application or referral 13 This short description is not accurate: the provisions themselves need to be considered. 14 See for example Thomas v St George Bank [2013] QCA 136, [29] and [32]. 15 Sections 3(b) and 4(e) of the QCAT Act. -- 13 of 17 -- 14 (1) This section applies if the tribunal has ordered— (a) a proceeding or a part of a proceeding be dismissed or struck out under section 47; or (b) a proceeding be dismissed or struck out under section 48. (2) Another proceeding or a part of a proceeding of the same kind relating to the same matter can not be started before the tribunal without the leave of the president or deputy president. (3) The president or deputy president may give the leave if the president or deputy president considers the interests of justice requires it to be given. (4) In giving leave to start another proceeding or part of a proceeding, the president or deputy president may extend any time limit for starting the proceeding or part. [62] These provisions require the leave of the President or Deputy President before allowing another proceeding of the same kind to be started in the tribunal and specifically subsection (4) permits an extension of time to start the proceedings. However, a further complaint would need to be made to the ADCQ and must be within a year of the alleged contravention.16 Although this time can be enlarged by the Commissioner this is only if Mr Ali can ‘show good cause’. Then a further reference to the tribunal can only be accepted by the tribunal if it considers that, on the balance of fairness between the parties, it would be reasonable to do so.17 There are therefore three separate hurdles in the way of a new complaint on the same grounds being considered by the tribunal. [63] This may be contrasted with the situation where remedy may be available elsewhere – for example a building dispute or minor civil dispute which could be re-commenced in the Magistrates Court.18 It is right therefore to regard a strike out of a discrimination claim as a drastic order. As Senior Member Endicott said in McCauley v Club Resort Holdings Pty Ltd and Anor [2012] QCAT 590 at [12] when deciding an application to strike out for failure to serve statements of evidence: The tribunal when exercising its discretion to dismiss a claim without allowing a hearing of that claim must act with caution. Dismissal of the complaint without a hearing would deprive Ms McCauley of the opportunity to have an independent determination made on her claim that her human rights have been unlawfully contravened. [64] That passage was followed by Senior Member Guthrie (at that time Member Guthrie) in Alexander referred to above. That was another strike out application. [65] Another important factor, mentioned by Lord Diplock in Birkett v James [1978] AC 297 at 318 (English House of Lords) was whether it was still possible to have a fair trial of the issues. Although this was mentioned in that case in the context of delay, it has been recognised that the question of fairness to the party seeking to strike out is 16 Section 138 of the ADA. 17 Section 175 of the ADA. 18 Subject of course to any arguments about res judicata for the building dispute. Res judicata cannot apply to a minor civil dispute: section 126 of the QCAT Act. -- 14 of 17 -- 15 of great importance and comes into play not only in cases of delay but where that party is put to unnecessary expense or difficulty in conducting the proceedings by for example the failure of a party to give disclosure of relevant documents.19 [66] Since the complaint before the tribunal is the same as was made to ADCQ, and also in fact required a prior internal prison complaint, the likelihood is that it has already been investigated by the State of Queensland and a response documented. It is not suggested in the submissions filed by the State of Queensland that this is not the case. Instead, the submissions concentrate on the inability of the State of Queensland to identify the nature of the case it has to meet. Although I find this submission surprising when considering the contentions filed on 30 August 2018 as supplemented by the original complaint and the contentions filed on 22 June 2018 albeit their having been ‘struck out’, any uncertainties can clearly be clarified by further directions as I have endeavoured to do. The usual course of holding a compulsory conference may be difficult because Mr Ali has now moved to Fiji. [67] It is clear that a fair trial of the issues is still possible. Was Mr Ali in breach of the order? [68] From the contentions of 30 August 2018 it can be seen that Mr Ali is contending in the direct discrimination claim that he was treated less favourably than a person without the attribute of religious belief would have been treated by: (a) being denied his own toaster and/or sandwich maker at the Woodford Correctional Centre; (b) being fed non Halal food including pork whilst in the care of Queensland Corrective Services at the PA Hospital. [69] From the contentions of 30 August 2018 it can be seen that the indirect discrimination claim is that Mr Ali had to use the general population grill which was used by everyone else, this being the ‘term’.20 What is not clear from the contentions is whether this term was at the Woodford Correctional Centre or at the PA Hospital. This is clear however, from his email of 22 June 2018. It was at the Woodford Correctional Centre. [70] Mr Ali seems to be saying that he could not comply with this term but this is unclear in the contentions. And he seems to be saying that a higher proportion of Muslims would be unable to comply with the term but this is unclear in the contentions. However, again these things are clear in his email of 22 June 2018. [71] He does not address the question of reasonableness as he was directed to do. However, he provides some argument about this in his email of 22 June 2018. [72] I turn to the non-compliance alleged by the State of Queensland. These are set out in paragraphs (a) to (f) above, taken from the submissions filed. 19 For example, Robson & Anor v Robson & Ors [2010] QCA 330 and Field v Luxor Products Pty Ltd & Anor [2009] QSC 218, [48] and [66] (P Lyons J). 20 As widely defined in section 11 of the ADA to include ‘condition, requirement or practice, whether or not written’. -- 15 of 17 -- 16 [73] As for (a) I do not agree that Mr Ali failed to state in his contentions what attribute he relies on. This is clearly ‘religious belief’ as stated in paragraph 1 of the contentions. [74] As for (b) I agree that Mr Ali has not given clear enough information about the comparator or comparators. It appears that he or his representatives misunderstand the concept. But this is not surprising bearing in mind the complexity of the law in this area. If prisoners Singh, Zane and Zaack Ali and Guy Gillespie are Muslim then they cannot be comparators. This is because a person with the same attribute as relied on by the complainant cannot be a comparator for the purpose of the test of direct discrimination. If they are not Muslim then it is possible that they might be comparators but more information is needed about why they are said to be comparators. The fresh directions are an attempt to clarify this matter. [75] As for (c) which is lack of particulars about the less favourable treatment including dates when things happened, I do not agree that this was non-compliance. Mr Ali was not directed to provide any particulars including dates. [76] As for (d) which is the same as (c) I do not agree that this failed to comply for the same reasons. [77] As for (e) I do not agree that Mr Ali has failed to identify the less favourable treatment. It is also said that Mr Ali has failed to set out the basis on which he alleges direct discrimination has occurred. However, this is not non-compliance: he was not directed to include this in his contentions. [78] As for (f) I agree that Mr Ali has failed in the contentions of 30 August 2018 to explain why he was unable to comply with the term, why a higher proportion of people without the attribute can comply with the term and why the term was unreasonable. However this is covered in his other filed material. [79] Overall therefore, concentrating only on the contentions filed on 30 August 2018, I agree that they were non-compliant with the order of 9 August 2018 as said above when considering (b) (comparators) and (f) (elements of indirect discrimination). Taking into account Mr Ali’s other filed material however, any non-contravention is only technical and arises because, on the application of the State of Queensland, the tribunal struck out the email of 22 June 2018 as ‘contentions’. The fact is that that email remains on the file and is in the possession of the State of Queensland and largely provides the missing information. Should the tribunal exercise its discretion to strike out the complaint? [80] Although for section 48 to be engaged, the question whether Mr Ali acted in a way which unnecessarily disadvantaged the State of Queensland needs to be answered, it is much easier to answer the question whether, on the assumption that section 48 is engaged, I should strike out this complaint. [81] On that assumption and applying the statutory tests in section 48 and considering the other things of relevance, I find that although Mr Ali is non-compliant this is only technical because the nature of the complaint appears reasonably well from the contentions now filed, but also is particularised in his other documents. Any gaps can be filled by further tribunal directions. -- 16 of 17 -- 17 [82] He has a reasonable explanation for the non-compliance with the more technical directions because of the complexity of the law which applies. [83] Mr Ali did not act deliberately in his non-compliance, a fair trial of this complaint is still possible despite the non-compliance, striking out the complaint at this stage would be a drastic step, and if the complaint were to be struck out, the tribunal would not be offering an accessible hearing of the complaint in a fair and just manner as it is obliged to do. [84] The merits of this application to strike out are quite different from those in Gill v Roberts [2011] QCAT 515, where Senior Member Endicott said that both the tribunal and the respondent were left to guess what the complainant’s case was, which of course was unacceptable. In that case there was no attempt by the complainant to provide contentions and there was no response from the complainant when she was required to show cause why the complaint should not be dismissed under section 48. Further, the attempts by the tribunal to contact the complainant by telephone were in vain. In deciding whether to strike out the complaint the Senior Member inferred from the lack of contact with the tribunal that the complainant’s non-compliance was deliberate. [85] The application to strike out the complaint fails. -- 17 of 17 --