Bond v State of Queensland and Anor (No. 2) [2017] QCAT 185

CITATION: Bond v State of Queensland and Anor (No. 2) [2017] QCAT 185 PARTIES: Robyn Bond (Applicant/Appellant) v State of Queensland Christine Thomas (Respondents) APPLICATION NUMBER: ADL089 -15 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 5 June 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The application by Robyn Bond to amend her complaint to include allegations of victimisation by reason of the appointment of Sean Harvey as decision- maker in her public interest disclosure complaint to the Department of Justice and Attorney General is refused. CATCHWORDS: HUMAN RIGHTS – ANTI – DISCRIMINATION – DIRECT DISCRIMINATION – VICTIMISATION – REJECTED COMPLAINT – where subsequent complaint had been rejected by the Anti- Discrimination Commission Queensland – where applicant seeks leave to amend her current complaint to add in the allegations made in the rejected complaint – whether added complaint was part of original complaint – whether the Tribunal has power to amend a complaint to add in allegations rejected by the Anti-Discrimination Commission Queensland Anti-Discrimination Act 1991 (Qld) s 142, s178 -- 1 of 4 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] On 2 May 2017, the tribunal allowed Robyn Bond to amend her complaint about alleged discriminatory conduct and victimisation. The tribunal left open one question; whether Ms Bond should be permitted to amend her complaint to include an allegation of victimisation. The respondents were given leave to file further submissions. They have done so. [2] The allegation Ms Bond wants to include is: a) On or around 27 May 2014, she and her husband, Kirk Bond, made a public interest disclosure to the Crime and Misconduct Commission (CMC) alleging multiple Code of Conduct violations by Christine Thomas. b) The Department of Justice and Attorney General (DJAG), the employer of the Bonds and Ms Thomas investigated the disclosure for approximately 16 months. DJAG’s Public Interest Disclosure Policy provides that ‘the principle of natural justice (procedural fairness) will apply to all investigations of matters the subject of public interest disclosures.’ c) On 27 August 2015, the Bonds filed fresh complaints in the Anti- Discrimination Commission (ADCQ) alleging that Sean Harvey, Assistant Director General of Youth Justice Services, the section of DJAG in which the Bonds were employed, victimised them. d) Mr Harvey is coordinating the respondents’ defence to these proceedings. Mr Harvey authorised the terms of settlement of Ms Bond’s ADCQ complaint. e) When Mr Bond requested an independent examination of discrimination and bullying complaints, in October 2015, DJAG appointed Mr Harvey as its decision maker in the public interest disclosure investigation. f) By letter of 17 October 2015, the Bonds objected to Mr Harvey’s appointment as being contrary to the principles of natural justice. g) Mr Harvey found that the Bonds’ allegations were not substantiated. [3] Ms Bond says that this amounted to victimisation in that it denied her an unbiased decision-maker and therefore denied her natural justice. [4] The Bonds lodged a complaint with the ADCQ in 23 November 2015. That complaint included a reference to Mr Harvey’s involvement in the public -- 2 of 4 -- 3 interest disclosure investigation. The facts described in that section mirror those in paragraph 2 above but go further. Ms Bond stated that: a) She lodged a complaint with the Queensland Ombudsman on 29 October 2015. b) Three days later, Mr Harvey directed her to attend a medical examination. c) Mr Bond advised DJAG that Ms Bond would not be attending that examination, as her treating psychiatrist had determined she was unfit to attend. d) Nevertheless, Mr Harvey directed Ms Bond attend the medical examination. [5] Ms Bond concludes that section by submitting that the requirement to attend a medical examination was not for any legitimate reason but a reprisal for lodging a complaint and/or continuing her claim in the tribunal. [6] The ADCQ rejected that complaint. The respondents say that the complaint Ms Bond wants to add is the same as the complaint rejected by the ADCQ. They say the Bonds should not be permitted to add a complaint that was rejected. [7] Ms Bond says that the complaint is different. She says the 23 November 2015 complaint was directed to victimisation in the form of requiring her to attend a medical examination whereas the proposed complaint relates to victimisation by failing to provide natural justice. I agree with Ms Bond that the allegations are differently pleaded. [8] The respondents say that Ms Bond has simply repurposed her complaint when it was rejected by the ADCQ. They say that, if the complaint was legitimate, Ms Bond should have included it in her initial complaint. [9] Ms Bond says that the reason she did not include the complaint about bias and denial of natural justice was because her legal representative did not have knowledge of the Anti-Discrimination Act 1991 (Qld) at the time. [10] I do not accept Ms Bond’s explanation for failing to include this allegation in her complaint. In his letter to DJAG dated 17 October 2015, which formed part of the complaint to ADCQ, Mr Bond asked DJAG to void Mr Harvey’s decision on the ground that it was made in the absence of natural justice. He also asked that the reports be provided to an unbiased decision-maker. [11] In her complaint to the ADCQ lodged on 29 October 2015, which formed part of the 23 November complaint, Ms Bond asked that Mr Harvey’s decision be declared void because natural justice was absent and he was a biased decision-maker. The issue was clearly within Ms Bond’s contemplation; she did not need a lawyer to point out what she already knew. -- 3 of 4 -- 4 [12] Section 142(1) of the Anti-Discrimination Act states that, if a complaint is rejected, it lapses and the complainant is not entitled to make a further complaint relating to the act or omission that was the subject of the complaint. [13] Ms Bond says that I should read that section subject to the tribunal’s power to amend a complaint1 even if the amendment concerns matters not in the complaint. It would be an odd reading of the Anti-Discrimination Act to find that the prohibition on re-ventilating a rejected and lapsed complaint could be circumvented by allowing an amendment of the complaint now before the tribunal. [14] Ms Bond raised the issue that she now wants the tribunal to add to her complaint. It was rejected. The complaint is at an end and I will not revive it by allowing an amendment to the complaint now the subject of the tribunal proceedings. 1 Anti-Discrimination Act 1991 (Qld) s 178. -- 4 of 4 --