DJ v Lutheran Church of Australia, Queensland District and Ors (No 2) [2012] QCAT 498

CITATION: DJ v Lutheran Church of Australia, Queensland District and Ors (No 2) [2012] QCAT 498 PARTIES: DJ and on behalf of DT and DA (Applicant) v Lutheran Church of Australia, Queensland District RG FS (Respondents) APPLICATION NUMBER: ADL-004-11 / ADL005-11 / ADL006-11 / ADL122-11 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: R M Clifford, Member DELIVERED ON: 10 October 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Any claim in the Statement of Evidence filed in the Tribunal on 20 July 2012 by the Complainants relating to discrimination against DA concerning the confiscated bracelet is struck out. 2. Any claim in the Statement of Evidence filed in the Tribunal on 20 July 2012 by the Complainants relating to any discrimination against XM is struck out. 3. All other parts of the application to strike out particulars of the Statement of Evidence filed in the Tribunal by the Complainants are dismissed CATCHWORDS: ANTI-DISCRIMINATION – application to strike out parts of complaint – what is the complaint – whether parts of complaint -- 1 of 8 -- accepted or rejected Anti-Discrimination Act 1991, s 141 APPEARANCES and REPRESENTATION (if any): The application was decided on the papers in the absence of the parties pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION Background [1] On 9 February 2011 the Tribunal received three (3) referrals from the Anti- Discrimination Queensland (ADCQ) pursuant to section 166 of the Anti- Discrimination Act 1991 relating to the three complainants DJ, DT and DA. [2] On 11 November 2011 the Tribunal received one further referral relating to the same three complainants. [3] All the complaints are in relation to various experiences the complainants allege occurred whilst DT and DA were enrolled as students at a school of the First Respondent. [4] DJ lodged the first complaint with the ADCQ in April 2010 on her own behalf, and on behalf of her children, DT and DA. [5] That complaint, as indicated in the Complaint Form and attachments, alleges discrimination based on impairment in relation to DT and DA, and victimisation in relation to DJ. [6] The main claim concerning DT, who has the medical condition hypertrophic cardiomyopathy, relates to his alleged forced participation in a school camp in 2009 and arrangements and issues around that event. [7] The main claim concerning DA, who has a back condition, also relate to her participation in the school camp in 2009 and the arrangements and issues around that event including over-medication, as well as issues concerning arrangements when DA was unable to participate in school sports. [8] The main claim concerning DJ related to feeling attacked in her work as a volunteer at the school tuck shop and ultimately being discharged from the tuck shop duties after she raised the complaints relating to DT and DA. [9] One of the attachments to the first complaint included a copy of a letter from Terence O’Connor, Solicitor, to the school requesting the return of a bracelet confiscated from DA and expressing the concern of DJ that the singling out of DA around this issue may be a consequence of DJ’s dispute with the school. -- 2 of 8 -- [10] A further document attached to the first complaint referral documents is an email from DJ to FL relating to her daughter XM being excluded from a class for the fourth time. In that email DJ claims direct discrimination based on XM’s impairment of dyslexia, dysgraphia and meres irlin syndrome. DJ states in that email “I therefore put the school on notice that I will take this to the discrimination commission”. That document is date stamped ‘Received 04 May 2010 ADCQ’. [11] The second complaint was lodged with the ADCQ on 24 June 2010. This complaint in essence claims alleged victimisation flowing from the first complaints. [12] The covering letter refers to the first complaint and what the school has unleashed on us for complaining to the commission. The letter and attachments mainly concern DA and her proposed participation in school trip to New Zealand and the need for written permission by DJ before DA could be included. The letter also included issues relating to the manner (via ‘snail mail’) in which DJ was required to liaise with the school. [13] The third complaint lodged with the ADCQ on 17 May 2011 was by cover letter of Terence O’Connor Solicitor. That letter refers to the first and second complaints and raises fresh complaints. Mr O’Connor indicates the new complaints have been foreshadowed to the Respondents’ solicitors. [14] The Complaint Form attached indicates claims of impairment discrimination and victimisation. The ‘Supplementary Contentions’ attached clearly outline three incidents relating to the contended discrimination and victimisation. [15] Two incidents relate to DT concerning issues of reasonable accommodation for a Legal Studies Assignment and an English Exam in the final term of 2010. [16] The third incident relates to the termination of DT and DA’s enrolment. The details of the third incident outline a culmination of alleged events since the lodgement of the first complaints in April 2010 including the particulars of the first complaint and new particulars concerning a ‘turn’ in mid 2010 and issues about DT’s prospect of being able to climb the stairs at the school. [17] It is contended the third incident is either discrimination on the basis of impairment against DT and DA or alternatively victimisation based on the first complaints. [18] Since referral of these matters the Tribunal has directed, amongst other things, that the Complainants file their statements of evidence and documents on which they intend to rely in support of the matters before the Tribunal. [19] On 20 July 2012 the Tribunal received the Complainants’ statement of evidence and seventy nine (79) attachments. -- 3 of 8 -- [20] On 6 August 2012 the Tribunal received applications from the Respondents seeking to strike-out parts of the complainants’ complaints of discrimination and victimisation included in the statements of evidence. [21] The Respondents claim various complaints in the statement of evidence were either rejected by the ADCQ or were never made to the Commission. [22] The Respondents refer to sections 141(1) and 142(1) of the Anti- Discrimination Act 1991 and the decisions of Senior Member Endicott in Daw v QR Limited and Steven Hales [2011] QCAT 319 and Aleksic v Commonwealth Bank of Australia [2011] QCAT 342 to support their application. [23] In summary the Respondents submit that the claim of discrimination against DT and DA and/or claim of victimisation against all three complainants in relation to the termination of enrolment of DT and DA should be struck out as it was ‘rejected’ by the ADCQ as the ‘Basis of Jurisdiction’ document, provided to the Respondents by the ADCQ, made no reference to this claim. [24] The Respondents also submit that the claim of victimisation against DA and DJ in relation to the ‘Confiscation of the Bracelet’ worn by DA should be struck out as it was ‘rejected’ by the ADCQ as the ‘Basis of Jurisdiction’ document made no reference to this claim. [25] The Respondents further submit that the claims of victimisation against DJ concerning: a) removing DJ from the Tuckshop roster; b) not providing details of alleged harassment claims. against others by DJ to her; c) refunding deposit money to the children’s father; d) deciding not to allow DA to go to New Zealand; e) alleged inappropriate conduct by the Respondent relating to XM; and f) alleged breach of privacy should be struck out because these claims were not referred to the Tribunal. [26] The Respondents submit either the complaints were never made (XM; deposit money; privacy claim) or the ADCQ rejected them (tuckshop; details of alleged harassment; New Zealand claim), as there was no reference to them in the Basis of Jurisdiction document. -- 4 of 8 -- [27] On 31 August 2012 the Tribunal received the Complainants’ submission in relation to the applications to strike out various parts of the claims in the statement of evidence. [28] In summary the Complainants submit that striking out parts of the statement will diminish the facts on which they intend to rely to show a pattern of behaviour on the part of the Respondents. The Complainants submit they are disadvantaged because they aren’t legally represented and submit the Member determining the matter should deal with these technical legal points otherwise it would diminish their legal rights to a fair and equitable hearing. [29] DJ notes she has contacted the ADCQ to clarify which complaints were referred to the Tribunal and requests the Tribunal to liaise with the ADCQ in this regard. [30] DJ submits that large parts of her complaint were not included in the ADCQ‘s ‘Basis of Jurisdiction’ documents and that she previously raised this with the ADCQ. DJ submits the Respondents however responded to the contentions concerning the termination of enrolment and her removal from the tuckshop roster and thus those claims were not rejected by the ADCQ. [31] DJ confirms the discrimination claim relating to DA and the confiscation of the bracelet was rejected by the ADCQ and agrees this complaint does not need to be considered by the Tribunal. [32] DJ further submits that parts of the statement of evidence the Respondent is seeking to have struck out relates to background information such as the issue concerning the refund for deposit money for enrolment, or it relates to her claim of victimisation and in particular evidences the way in which the Respondents interacted with her. [33] DJ submits that the issues relating to XM are under review as it appears documents concerning XM are missing. [34] On 5 October 2012 the ADCQ advised the Tribunal that the complaint of DT consisted of the complaint form and documents expressly listed in the notification letter, which was included in the referral report. [35] The ADCQ also drew to the Tribunal’s attention that the Basis of Jurisdiction document expressly states that the Queensland Civil and Administrative Tribunal is not bound by the Commission’s characterisation of the complaint. [36] By email dated 6 October 2012 DJ requests that the Tribunal delay making its decision relating to the strike out application as she is seeking review of some of the ADCQ decisions and in particular concerning where XM’s complaint has disappeared. Decision -- 5 of 8 -- [37] This whole mater raises a number of complaints and numerous claims and alternate claims that are complicated and which intersect with each other. It raises claims of discrimination based on the impairments of DT and DA and victimisation relating to DJ and/or all three Complainants. Although all parts intersect the matter is complicated further by differing referral dates and component parts. [38] The issue of what constitutes the complaint is often vexed and one that has been previously considered by this Tribunal as referred to in the Respondents’ application. [39] All complaints alleging discrimination must firstly be lodged with ADCQ. They can only reach the Tribunal by way of referral from the ADCQ on the request of a party to the complaint, most commonly the Complainant. [40] Before referral to the Tribunal section 141 of the Anti-Discrimination Act requires the Commissioner to accept or reject a complaint within 28 days of receiving it. [41] The Respondents in essence rely on the ADCQ’s ‘Basis of Jurisdiction’ document to infer that if certain claims are not summarised in that document then that part of the complaint has been rejected. The Respondents further rely on Senior Member Endicott’s statement in Aleksic’s case that “the only conclusion in that case is that those parts of the original complaint that were not expressly accepted must have in reality been rejected by the Commission.” [42] In relation to the ‘Basis of Jurisdiction’ document the Tribunal does not accept that this document, on its own, can constitute the referred complaint or be solely relied on to infer whether a complaint has been accepted or rejected. The ADCQ itself puts parties on notice not to rely on this document for this purpose. [43] A complaint may take many forms. It may consist of an ADCQ Complaint Form, a hand written letter, a statutory declaration, a formal statement or a sworn affidavit. A complaint may be a combination of documents and attachments. The Basis of Jurisdiction document is in essence an administrative short cut. This document is generally forwarded to Respondents by the ADCQ with an accompanying letter notifying the Respondents of the complaint listing and attaching the documents that constitute the complaint. [44] In relation to the previous decisions of the Tribunal, whilst I do not disagree with Senior Member Endicott that in particular cases complaints not expressly accepted must have been rejected, all complaints need to be considered on a case-by-case basis. [45] If a complaint or a claim in a complaint has not been formally rejected by the Commissioner one of the first issues to consider is what was the intention of the Complainant and how was the intention evidenced on the face of the documents. -- 6 of 8 -- [46] On examination of the documents that formed the referral to the Tribunal the Tribunal is satisfied that DJ, through her then lawyer, clearly intended that the termination of DT’s and DA’s enrolments by the school constituted a major claim in one of the complaints. Any omission to include the claim in the Basis of Jurisdiction document is clearly an administrative oversight. Mr O’Connor in his cover letter stated the Respondents were aware of this claim before the complaint was lodged with the ADCQ and DJ states the Respondents responded to this claim in response to the complaint. The application to strike out this claim is dismissed. [47] Whilst the Tribunal acknowledges that the particulars relating to alleged victimisation are varied and extensive, on reading the material the Tribunal is satisfied that the intention by DJ to make such claims of victimisation, in the documents constituting the complaint, are clear. The Tribunal is therefore not persuaded any particulars relating to these issues should be struck out and dismisses the application in that regard. [48] The Tribunal notes DJ states that information relating to the refund of deposit money is background information only and is not a new claim. The Tribunal is not persuaded that background particulars in this case should be struck out as they give a fuller picture to DJ’s claims. Furthermore the Tribunal is satisfied that any issue concerning these types of background particulars can be dealt with or clarified if required during the hearing. The Tribunal accordingly dismisses the application in that regard. [49] DJ concedes the claim concerning DA and the confiscated bracelet was rejected by the ADCQ. The Tribunal is satisfied that part of the case requires no determination by the Tribunal and all reference to it in the statement of evidence as it relates to DA should be struck out. [50] In relation to claims concerning XM the Tribunal notes DJ has on-going issues with the ADCQ concerning missing documents, however, the Tribunal is not prepared to delay making its decision on this application as requested by DJ. This matter has already been listed for a three-day hearing in December 2012 and the Tribunal is reluctant to put those dates in jeopardy that would cause delay on the matter and inconvenience to the parties and Tribunal. [51] Furthermore, the only document concerning XM contained in the current complaints is the email attachment referred to earlier that, although expressed a view that certain actions against XM constituted discrimination, only ‘put on notice’ an intention to lodge a complaint with the Commission. [52] In the circumstances the Tribunal is satisfied that any claim alleging discrimination in relation to XM in the statement of evidence is not currently a matter for determination by the Tribunal and all reference to it in the statement of evidence should be struck out. -- 7 of 8 -- [53] Overall the Tribunal is satisfied that with such extensive and intersected complaints, many of the issues raised in this application, are more appropriately dealt with by the Member at the hearing. [54] The Tribunal dismisses the applications for strike out except so far as they relate to the bracelet claim in regards to DA and any claim in relation to XM. -- 8 of 8 --