El Mansy v State of Queensland & Anor [2011] QCAT 138

CITATION: El Mansy v State of Queensland and Paff [2011] QCAT 138 PARTIES: Essam El Mansy v State of Queensland and Kerstin Paff APPLICATION NUMBER: ADL064-10 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 11 April 2011 DELIVERED AT: Brisbane ORDERS MADE: Application for directions is dismissed. CATCHWORDS: ANTI-DISCRIMINATION – application for directions – section 62 of the Queensland Civil and Administrative Tribunal Act 2009 – closed circuit television video footage sought to be produced – not relevant to complaint referred to tribunal – other footage does not exist – no basis to make directions APPEARANCES and REPRESENTATION (if any): APPLICANT : Essam El Mansy on his own behalf RESPONDENT: State of Queensland and Kerstin Paff represented by Christina Heffner, Senior Legal Officer for Queensland Police Service Solicitor The application was determined on the papers in accordance with section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] On 7 December 2009 Mr Essam El Mansy lodged a complaint with the Anti-Discrimination Commission Queensland in which he alleged that he had been unlawfully discriminated against by Kerstin Paff. His complaint -- 1 of 3 -- 2 was accepted by the Commission on 24 February 2010 on the grounds of race. [2] On 26 March 2010 Mr El Mansy lodged further information with the Commission resulting on 15 April 2010 in an amendment of the accepted complaint to include the grounds of impairment. Respondents to the complaint are Ms Paff and the State of Queensland which is alleged to be vicariously liable for the actions of Ms Paff. [3] The complaint was referred to the tribunal on 23 August 2010. Particulars of the referred complaint allege that on 5 December 2009 Ms Paff told Mr El Mansy to “go back to your own country” on three occasions during an incident in Brisbane and on that same day when Mr El Mansy was being held at the Police Beat in Adelaide Street he was denied his rights to call a support person after advising Ms Paff that he was a person with a disability and providing her with a Justice Support Program card. [4] In his contentions Mr El Mansy alleges that the words said by Ms Paff were in or near to a Police Beat. In their contentions the respondents deny that Ms Paff said the words alleged against her. The respondents concede that Mr El Mansy made a request to call someone when he was leaving the Police Beat but as he was not arrested and had not been charged with any offence, it was considered that there was no reason to make a call at that time. [5] On 5 January 2011 Mr El Mansy lodged an application seeking the tribunal to direct the Queensland Police Service to release 29 pages of documents and a copy of the closed circuit television video footage and photographs from the Queen Street Mall and the Police Beat from 5 December 2009. [6] The respondents resisted the application. The respondents submitted that Mr El Mansy had made a request under the Right to Information process and he already been provided with the 29 pages of documents subject to deletion of information that was considered to be contrary to the public interest. [7] The respondents also submitted that Mr El Mansy had made a request under the Right to Information process for closed circuit television video footage of the Queen Street Mall and the Police Beat and release to him for the footage from the Queen Street Mall was refused as contrary to the public interest. An offer was made that Mr El Mansy could view the footage at a time convenient to him. [8] The respondents submitted that there was no closed circuit television video footage within the Police Beat at the City Mall. [9] The respondents argued that if any direction were to be made by the tribunal to release the specified documents or closed circuit television video footage then the respondents would have to give consideration as to whether any claim for privilege would be made in relation to the documents and footage directed to be released. [10] On 10 March 2011 Mr El Mansy informed the tribunal that he did not wish to proceed any further with his application for the release of a full copy of the 29 pages of documents. Mr El Mansy also clarified that his application -- 2 of 3 -- 3 about the release of the closed circuit television video footage did not seek release of the footage to him but to the tribunal or to another court in Queensland should this matter proceed further. [11] The registry staff made further enquiries with the respondents as to whether there was closed circuit television video footage from the Adelaide Street Police Beat. The respondents notified the tribunal on 29 March 2011 that closed circuit television video footage from inside the Adelaide Street Police Beat on 5 December 2009 does not exist. [12] The tribunal has power under section 62 of the Queensland Civil and Administrative Tribunal Act 2009 to give directions at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding. The tribunal also has power under section 97 of that Act to require a person to produce a stated document or other thing to the tribunal. [13] Mr El Mansy is seeking orders that closed circuit television video footage from the Queen Street Mall and from the Adelaide Street Police Beat is produced to the tribunal. Neither his contentions nor his application reveal any relevant basis for his request for closed circuit television video footage from the Queen Street Mall. Neither of the incidents which are the subject of his referred complaint to this tribunal is alleged to have taken place in the Queen Street Mall. [14] The tribunal is not satisfied that an order under section 62 of the Act is necessary for the fair conduct of the referred complaint in the tribunal when the thing being sought to be produced is video footage relating to actions which may have taken place in the Queen Street Mall at times prior to the conduct which is the subject of the complaint before the tribunal. That footage appears to be irrelevant to the actual complaint to be determined by the tribunal. [15] The tribunal will not direct the production of closed circuit television video footage from the Adelaide Street Police Beat on the grounds that the footage does not exist. [16] The application by Mr El Mansy for directions is dismissed. [17] It is noted that Mr El Mansy in his submissions lodged on 10 March 2011 sought an additional order that was not part of his application for directions. He sought production of an audio recording from the time he was detained at the Adelaide Street police beat. The respondents did not have the opportunity to consider this request. The tribunal recommends that Mr El Mansy make a formal enquiry with the respondents as to whether an audio recording exists for that day. If it exists, the tribunal would be prepared to consider a request for an order that the recording be produced to the tribunal. -- 3 of 3 --