Daw v QR Limited and Anor [2011] QCAT 319

CITATION: Daw v QR Limited and Anor [2011] QCAT 319 PARTIES: Sami Daw v QR Limited and Steven Hales APPLICATION NUMBER: ADL095-10 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 22 June 2011 DELIVERED AT: Brisbane ORDERS MADE: Application to amend complaint is dismissed. CATCHWORDS: ANTI-DISCRIMINATION – amendment sought of complaint to include victimisation, impairment and to add other respondents – where matters had failed threshold test and found not to be within jurisdiction of Commission – where matters not accepted by Anti-Discrimination Commission and not referred to tribunal – where further matters constituted fresh complaints Anti-Discrimination Act 1991, ss 136, 142(1), 175, 178 Hopper v Mt Isa Mines (1999) 2 QdR 496 APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties under section 32 of the Queensland Civil and Administrative Tribunal Act 2009. -- 1 of 4 -- 2 REASONS FOR DECISION [1] Sami Daw is the complainant in proceedings in the tribunal brought under the Anti-Discrimination Act 1991. In his complaint lodged on 30 September 2009 in the Anti-Discrimination Commission Queensland Mr Daw sought to complain about alleged contraventions of the Act by QR Limited, Steven Hales, Francisco Siliezar and Wayne Longley. Mr Daw specified in his complaint form that the attributes on which his complaint was based were race and religious belief. He alleged that unlawful discrimination had occurred at work and he alleged that he had been subject to victimisation. [2] The Commission determined that only the allegations against Steven Hales which occurred between January 2007 and February 2008 reached the threshold for acceptance under section 136 of the Act. The Commission accordingly did not accept as part of the complaint to be investigated, conciliated and referred any allegations by Mr Daw of events occurring after February 2008, any allegations by Mr Daw against Mr Siliezar and Longley and the allegations of victimisation. [3] The Commission was unable to conciliate the accepted complaint and referred the complaint to the tribunal on 27 September 2010. [4] In his contentions filed in the tribunal on 31 January 2011 Mr Daw set out a summary of his allegations as comprising direct discrimination based on race against QR Limited and Steven Hales, victimisation by QR Limited, Francisco Siliezar and Wayne Longley and direct discrimination based on impairment against Wayne Longley and QR Limited. [5] Mr Daw stated in his contentions that the allegations of victimisation had not been accepted by the Commission and he requested that the tribunal exercise discretion to allow the necessary amendment to his complaint to include the victimisation allegations. Mr Daw stated further in his contentions that the allegations based on impairment had not been part of his original complaint and he requested that the tribunal exercise discretion to allow the necessary amendment to his complaint to include the impairment discrimination allegations. [6] In response to directions made by the tribunal, Mr Daw filed submissions in support of his requests for amendments to the complaint. The tribunal has also received submissions on behalf of QR Limited and Steven Hales objecting to any amendments being made. [7] The tribunal has power to amend complaints under section 178 of the Act including the power to allow amendments concerning matters not included in the complaint. Mr Daw relies on that power in support of his requests that his complaint is amended to include allegations that had been set out in his original complaint form as well as to include allegations that were not specifically raised by him prior to January 2011. [8] Section 178 provides a wide discretion to the tribunal to amend a complaint but at the same time the discretion must necessarily have limits. In a given case the difficulty is to identify where the limits to the exercise of -- 2 of 4 -- 3 the discretion should stop. The new wording in subsection 2 introduced into section 178 in 2009 was said to clarify the power,1 suggesting that subsection 2 was intended by the Legislature to do no more than express in clearer language the existing power of the tribunal to amend a complaint. [9] Section 178 categorises the power as a power to amend: there is no express power given in either section 178 or elsewhere in the Act to the tribunal to entertain a complaint that has not been made to the Commission. The jurisdiction of the tribunal is to deal with complaints that have been referred by the Commission.2 The whole scheme of the Act requires complaints to be made to the Commission and does not provide for complaints to be made direct to the tribunal. [10] The Act provides a means for complaints to be investigated by the Commission and gives the Commission power to reject complaints in section 139. A person whose complaint is rejected does not have any right of review to this tribunal but can seek judicial review of that decision under the Judicial Review Act 1991. Unless judicial review is successful, a rejected complaint lapses and cannot be the subject of a further complaint.3 [11] In the correspondence of the Commission it is not stated that the complaint of victimisation made against Mr Siliezar and Mr Longley had been rejected. What the Commission has stated was that those allegations did not meet the threshold of section 136 of the Act i.e. that part of the original complaint had not set out reasonably sufficient details to indicate an alleged contravention of the Act. Those particular allegations have as a result not been part of the complaint subsequently accepted by the Commission and referred to the tribunal after a failed attempt at conciliation. [12] In Hopper v Mt Isa Mines4 Moynihan J considered an appeal in which an issue arose where the former tribunal had made findings of a contravention of the Act which had not been the subject of a complaint. His Honour concluded: “the Tribunal’s jurisdiction is in my view founded on a complaint complying with s.136 (b). Findings of contraventions not satisfying that requirement therefore cannot stand because there is no jurisdiction to make them.”5 [13] Applying the principles outlined in that authority, the tribunal is satisfied that it must conclude that the allegations of victimisation were never a part of the complaint complying with section 136 and consequently those allegations were neither rejected nor not accepted by the Commission and relevantly cannot form part of the complaint referred to the tribunal. 1 Explanatory memorandum to Queensland Civil and Administrative Tribunal (Jurisdictional Provisions) Amendment Bill 2009 at page 260. 2 Section 175 of the Anti-Discrimination Act 1991. 3 Section 142(1) of the Anti-Discrimination Act 1991. 4 (1999) 2 QdR 496. 5 Ibid at page 570. -- 3 of 4 -- 4 [14] As stated in paragraph 9, section 178 does not provide the power to include allegations of victimisation that were not part of the referred complaint. The allegations of victimisation as well as the allegations of impairment discrimination cannot be included into the complaint by exercise of discretion under section 178. They comprise fresh complaints that have to be made to the Commission. This is no doubt inconvenient to Mr Daw but issues of convenience or even cost are not relevant in this case to the exercise of the discretion in section 178. [15] On a different but related point, Mr Daw has referred in his submissions to case authorities that have determined that the tribunal is not bound by the categorisation of a complaint by the Commission.6 The effect of what Mr Daw appears to be suggesting is that an amendment to his complaint may not be necessary in any event to allow the tribunal to entertain allegations of victimisation against Mr Siliezar and Mr Longley if the categorisation of the referred complaint as being based on racial discrimination alone is incorrect. The tribunal does not agree. [16] The principles in those case authorities are now well accepted but they do not provide support for widening the scope of the allegations able to be determined by the tribunal to allegations against Mr Siliezar and Mr Longley based on victimisation. For the reasons discussed in paragraphs 11 to 14, this is not a case where the complaint has not been appropriately categorised by the Commission before the complaint was referred to the tribunal. It was not possible for either the Commission or the tribunal to categorise the complaint as one based on victimisation as the original allegations of victimisation failed the threshold in section 136 and did not indicate an alleged contravention of the Act. [17] The tribunal is satisfied that there is no basis to allow the amendments sought by Mr Daw and his application to amend the complaint is dismissed. 6 Yohan v Queensland Basketball Incorporated & Brisbane Basketball Incorporated [2010] QCAT 459, McKenzie v McKay [2005] QADT 24, Wilson v Lawson [2008] QADT 27, El Mansy v Lane [2009] QADT 12. -- 4 of 4 --