David Yohan representing PAWES (Providing Awareness with Education and Sport) v Queensland Basketball Incorporated & Brisbane Basketball Incorporated [2010] QCAT 459

QCAT Queensland Civil and Administrative Tribunal CITATION: David Yohan representing PAWES (Providing Awareness with Education and Sport) v Queensland Basketball Incorporated & Brisbane Basketball Incorporated [2010] QCAT 459 PARTIES: David YOHAN representing PAWES (Providing Awareness with Education and Sport) v Queensland Basketball Incorporated & Brisbane Basketball Incorporated APPLICATION NUMBER: ADL021-10 MATTER TYPE: Anti-Discrimination Matters HEARING DATE: 9 September 2010 DECISION OF: P Roney, Member DELIVERED ON: 20 September 2010 DELIVERED AT: Brisbane ORDERS MADE: Application for dismissal of the complaint related to racial discrimination and vilification dismissed APPEARANCES and REPRESENTATION: APPLICANTS: David YOHAN represented by Mr SJ Hamlyn-Harris of Counsel instructed by Ryan Kruger Lawyers RESPONDENTS: Queensland Basketball Incorporated and Brisbane Basketball Incorporated represented by Mr Murdoch of Counsel, instructed by Anderssen Lawyers CATCH WORDS: Practice and procedure – application for summary dismissal – limited basis of referral from Queensland Anti- Discrimination Commission, characterisation of complaint – jurisdiction of the Tribunal to hear complaint made however characterised -- 1 of 8 -- 2 1. The Applicant in this proceeding, and who seeks ultimately to be permitted to conduct this proceeding as a representative complaint pursuant to section 194 of the Anti-Discrimination Act 1991 (“the Act”) is a coach of and coordinated certain basketball teams in the 2009 basketball competition in Brisbane. That competition was run by the second Respondent, Brisbane Basketball Incorporated. He is also a player in one of the teams, and ultimately, once there is identification of the precise relief sought in the proceeding, may seek to represent certain other players in teams of which Mr Yohan is a coordinator and coach, fielded by an organisation known as “Providing Awareness with Education and Sport” (PAWES). The Second Respondent is said to have been affiliated with the First Respondent, which is the umbrella organisation or peak body for the sport of basketball in Queensland. 2. The First Respondent operates a system of registration of basketball participants. Under that system, affiliated associations of Queensland Basketball Incorporated are effectively managed. On 23 September 2009 the Applicant lodged a complaint with the Anti-Discrimination Commission Queensland (ADCQ) complaining about a series of incidents involving, apparently each Respondent and the unsuccessful attempt by PAWES teams to participate in Brisbane basketball competitions in 2009. The relevant conduct occurred from approximately mid April 2009 until the 18 th of September 2009. The Applicant is a lay person and was not assisted in the preparation of the complaint by any person of legal training or experience. In the part of the compliant set aside for describing “what type of treatment was being complained of” he ticked boxes which identified that he claimed discrimination because of race, and in particular African refugees, because of an association with a person who had those attributes, namely refugees, racial -- 2 of 8 -- 3 vilification, and victimisation. The allegation was that essentially a series of incidents which occurred between April and September 2009 involving PAWES players led to the eventual exclusion of all PAWES teams from further competition in the Brisbane basketball competition. 3. The Respondents have applied seeking summary determination of the question of whether in fact there had been any referral to this Tribunal of any of the allegations other than those which related to the claims of victimisation. This was said to be important because, inter alia the defences which might present would be different, and as to the question of whether the matter ought proceed as a representative complaint. In particular, one of the issues, about which there will be further consideration on the further hearing of this matter, is whether the Respondents have an absolute defence under s.46(2) of the Act because it is a non-profit Association established for sporting purposes. That defence would be available to any complaint of unlawful discrimination which is properly before the Tribunal, but would not provide any defence to a complaint of victimisation. 4. Material attached to the complaint to the ADCQ included a considerable body of correspondence, as well as statements from those who were able to cast light upon the relevant events. It included a letter from the First Respondent pointing out that it was aware that a complaint had been lodged to the ADCQ, and although Basketball Queensland was awaiting a report from an investigator it had determined to suspend consideration of the report until the commission concluded its enquiries. 5. On or about 21 October 2009 a delegate of the Anti-Discrimination Commissioner wrote to the Respondents stating that the Commission had accepted the complaint and advising that the Commission would deal with the -- 3 of 8 -- 4 matter as a representative complaint. The letter then provided “the complaint seems to allege victimisation under the Anti-Discrimination Act 1991 (“the Act”) To assist you to understand the complaint, I have attached a “summary of allegation” which indicates the basis of the decision to accept the complaint. The decision to accept the complaint does not indicate that the complaint has any merit. It simply means that the allegations fall within the jurisdiction of the Act”. In the attachments there was a summary of allegations which identified the parties to it, that there were two dates when the complaints were lodged, namely 23 September 2009 and 5 September 2009 and identified the contravention as “victimisation”. In the summary of allegations there is included beside the asserted contravention of victimisation a reference to the prevention of PAWES teams from participating in the competition because the Applicant had “brought this complaint to ADCQ”. There seems to have been no specific letter which summarised the allegations which were not in the character of victimisation claims, but those which related to racial discrimination or vilification. But demonstrably the summary of allegations assumed the existence of such a complaint, because it referred to it. In the referral document which brought the matter before this Tribunal in Part C the details of the matter referred to the Tribunal, and which attached the complaint received 23 September 2009 reference was made to the “alleged contravention” as victimisation. There was no mention per se of any alleged contravention on either of the other two basis mentioned specifically in the complaint. 6. The function of the ADCQ in relation to complaints received by it is set out in Chapter 7 on the Act. Under s.141 the commission must decide whether to accept or reject a complaint within 28 days of its receipt. Under s.134(4) the -- 4 of 8 -- 5 Commissioner may accept the complaint only if the Commissioner is satisfied of certain things, namely that the complaint is made in good faith, that the alleged contravention is likely to affect the relevant persons, i.e. the complainant or persons with related interests, and it is in the interests of justice to accept the complaint. There is nothing in s.134 which specifically obliges or indeed invites the ADCQ to actually identify the specific character of the complaint as any particular type of complaint caught by the Act. Section 136(b) requires that the complaint set out reasonably sufficient details to indicate an alleged contravention of the Act. There could be no doubt that that has occurred in this complaint, and the Respondents do not contend otherwise. Pursuant to s.139, the Commissioner must reject complaints if it is of the reasonable opinion that the complaint is frivolous, trivial, or vexatious, misconceived or lacking in substance. The referral to this Tribunal occurred in accordance with the rights of the Complainant to cause that to occur pursuant to s.164A of the Act. 7. The Respondents submit that the Applicants have sought to agitate a broader case than that which was “accepted” by the Commissioner because in some way or another the Commissioner accepted and referred only a victimisation complaint. It seems to me that this submission misconceives the function of the ADCQ and wrongly imputes to the Commission some exercise of judgment about which of the grounds upon which the complainant brought the complaint was the proper or appropriate one for the purposes of a referral to the Tribunal. As can be seen from the letter directed to the Respondents notifying them of the referral, the relevant officer of the ADCQ seemed to be equivocal about just how to characterise the complaint, but each of the complaints was made within time, and otherwise neither fell short of the requirements under s.134(4) and -- 5 of 8 -- 6 were not liable to rejection under s.139. 8. There have been a number of decisions of the Anti-Discrimination Tribunal which have in general terms considered the application of the provisions of the Act in circumstances in which there has been some doubt about whether there were properly particularised contraventions specified in a complaint which had been referred1 . In McKenzie v McKay & State of Queensland (Department of Education and the Arts) [2005] QADT 24 Mr Savage, subsequently the chairperson of the Tribunal, took the view that there should not be any strict or pedantic approach taken to the construction of complaints, and that the complaints identified in the submissions being made to him were mostly found in the original complaint of the Commissioner. 9. In Wilson & McCollum v Lawson & Anor [2008] QADT 27 I said in the context at [101] – [102]: “101. There has been no formal application to amend the complaint, but were one to be made at this time, there would be no prejudice to the respondents, they having resisted the case throughout the trial on the basis that harassment was part of the complainants’ case. Having said that, in my view, it is not necessary for there to be any amendment before there can be a finding of harassment. The material which went before the Commission is before me, although not tendered formally in evidence. It comprised a pro forma complaint with a body of attached material including a lengthy chronology. The complaint referred to the incidents which I have found in this case constituted vilification and harassment. Although the complainants did not “tick the box” within the complaints form which asked whether they had been sexually harassed, that is understandable, as to a lay person that would ordinarily suggest something more in the nature of sexual approaches rather than harassment of the kind that I have identified here. The referral report referred to it as a case of vilification, however that is a mere characterisation which does not bind the Tribunal. It is not a characterisation of the complaint by the Commission which determines the Tribunal’s jurisdiction. The Tribunal’s jurisdiction is one to hear and determine complaints about breaches of the Act, although those complaints must be made at first instance to the Commissioner.[39] In McKenzie v Ross Mackay & State of Queensland (Dept of Education 1 See Hopper v Mt Isa Mines (1999) 2 QdR 496 at 570; Quartermaine v Picard & Queensland Department of Health [2000] QADT 16 and Sailor v Village Taxi Cabs Pty Ltd v Markwick (2004) QADT 15 at [69]. -- 6 of 8 -- 7 and the Arts), Member Savage SC made the following remarks when a similar point was taken in that case:- “8. The complainant submits that most if not all of the matters referred to in her Points of Claim filed in the Tribunal were in fact referred to in her original complaint. The balance of those allegations were, so it was said, mere matters of evidence which would be admissible in the hearing to be conducted in the Tribunal in any event and which did not affect either the extent of her complaint or any relief to be sought. 9. Most of the matters that are referred to in the Points of Claim appear in one guise or another in the complaint itself. The complaint is in the form of a lengthy letter with attachments. The attachments include (for example) minutes of meetings which record or purport to record various events. No separate identifiable complaint about those events appears in the complaint, other than that the complaint is introduced as one concerning racism engaged in by the Department of Education in a general sense over a prolonged period of time in respect of many people other than the complainant herself. 10. I do not think any strict or pedantic approach should be taken to the construction of complaints. 11. Viewed in that light, the complaints identified by the Respondents in their submission are mostly found in the original complaint to the Commissioner. The events in the document record parts of a continuum of conduct that the complainant generally described as racist. 12. Thus the Respondents’ first contentions largely fail because of the form of the complaint.” 102. I do not propose to take a strict or pedantic approach to the construction of these complaints. Demonstrably, the Commission might have referenced the complaint as one of harassment in addition to vilification. That it did not do so does not limit the ability of this Tribunal to make a finding based on a re-characterisation of the legal bases for the facts identified in the original complaint.” 10. The President adopted and applied this decision in Wilson & McCollom v Lawson and more recently in El Mansy v Lane & Brisbane City Council [2009] QADT 12 at 16. They make clear that it is not the characterisation of complaints or referral by the ADCQ which is determinative of the jurisdiction of this Tribunal to hear and determine complaints made and referred to it. 11. In my view the complaint referred to this Tribunal includes, in addition to the -- 7 of 8 -- 8 complaint of victimisation, a complaint of racial discrimination and racial vilification, and both of those are open to be determined on their merits in the current proceeding. I therefore dismiss the Respondents’ application. -- 8 of 8 --