Aigner v State of Queensland and Anor [2012] QCAT 397

CITATION: Aigner v State of Queensland and Anor [2012] QCAT 397 APPLICANT: Elizabeth Aigner v RESPONDENT: State of Queensland (First Respondent) Dawnette Le Roux (Second Respondent) APPLICATION NUMBER: ADL090-11 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 21 August 2012 DELIVERED AT: Brisbane ORDERS MADE: The application to strike out the complaint is dismissed. CATCHWORDS: ANTI-DISCRIMINATION – where complaint set down for hearing – where application made that complaint lacks substance Queensland Civil and Administrative Tribunal Act 2009, s 47 APPEARANCES and REPRESENTATION (if any): APPLICANT: Elizabeth Aigner represented by Susan Moriarty & Associates RESPONDENT: State of Queensland represented by Crown Law Office This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] Elizabeth Aigner is a nurse employed at the Princess Alexandra Hospital. She was rostered to work in the Adult Acute Psychiatric Unit in March 2010 when her usual working position was within the Older Persons’ Mental Health Service. Ms Aigner complains that she has been unlawfully discriminated against by her employer by the decision to roster her in the Adult Acute Psychiatric Unit and then by a decision about her return to work arrangements when she ceased work on stress leave. Her complaint is based on her contention that she has an impairment and that her employer has contravened the Anti-Discrimination Act 1991. The complaint of unlawful discrimination has been denied by the respondents. [2] Contentions have been filed by the parties and directions made for the filing of witness statements in preparation for a hearing to take place over three days commencing on 19 September 2012. An application was made by the respondents seeking orders that the complaint be struck out under section 47 of the QCAT Act. [3] Directions were made on 2 August 2012 for the filing of submissions about that application and arranging for a decision to be made on the papers not before 21 August 2012. [4] The respondents submitted that Ms Aigner has filed no medical evidence in support of the contention that she has an impairment and that her complaint should be struck out on that basis. The respondents argue that in July 2012 the representatives for Ms Aigner provided a copy of a report from Dr Sa-Adi to the effect that Ms Aigner had complained of hip pain in 2009 and that an X-ray revealed minor arthritic changes in the hip. [5] The respondents submitted that previous sworn evidence given by Ms Aigner is contrary to the allegations she makes in this complaint. It was submitted that Ms Aigner cannot substantiate her complaint on the basis of her current evidence filed at QCAT. [6] The representatives for Ms Aigner submitted that evidence would be obtained about the impairment for the hearing. Notices to produce have been issued for the production of various medical records and notices to attend have been issued for the attendance of Ms Aigner’s treating doctors at the hearing. Ms Aigner’s representatives submit that ample evidence has been filed by Ms Aigner and her witnesses which addresses the issues to be determined by the tribunal when it considers the complaint. [7] QCAT has the power to bring an early end to proceedings under section 47 of the QCAT Act if the tribunal considers the proceeding is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. The courts have over the years considered applications under other similar legislation or under the rules of court which effectively have sought to bring a summary end to proceedings without a hearing being conducted on the merits of the substantive case. The High Court of -- 2 of 4 -- 3 Australia has taken a cautious approach in such cases to ensure that the interests of justice are met.1 [8] The authorities suggest that there must be a plain and obvious case that the substantive case will not succeed before a decision is made to prevent a claimant from submitting a case for determination. If it appears that there is a case to be determined as to fact or law then that case should not be summarily dismissed as frivolous or vexatious or as an abuse of process. [9] I was not convinced by the submissions of the respondents that there should be a summary dismissal of this complaint. Ms Aigner has provided evidence that she contends will support her complaint. The usefulness and accuracy of that evidence, the creditability of Ms Aigner and the weight to be accorded to her evidence should properly be decided by the member at the hearing. She has indicated that additional evidence will be produced at the hearing. [10] Arguments as to whether evidence, additional to the evidence already filed, should be permitted at the hearing is best dealt with by the hearing member. The directions made by the tribunal make it clear that leave of the hearing member will be necessary if additional evidence is to be introduced at the hearing. [11] In addition, this case is one where Ms Aigner contends that her human rights have been breached by the actions of the respondents. That is a factor that bears on the consideration of how QCAT must discharge its statutory obligations to deal with matters in a way that is accessible and fair as well as being just. QCAT must also act with as little formality and technicality as a proper consideration of the matters before the tribunal permits.2 It is the antithesis to being accessible for QCAT to dismiss a proceeding without a hearing on its merits when the case for dismissal is based on a technical construction of the evidence and not on evidence tested by questioning at a hearing. [12] The reasons for passing anti-discrimination legislation is set out in the preamble to the Anti-Discrimination Act 1991. It is expressly stated that everyone should have the right to equal protection and benefit of the law without discrimination, that the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society and that the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone. [13] Given that legislative foundation, it would be incongruous, in view of QCAT’s own statutory obligations to be accessible and fair, should QCAT be too ready to prevent a person having the benefit of an independent 1 Dey v Victorian Railways Commissioners [1949] 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] 112 CLR 125. 2 Section 28(3)(d) of the QCAT Act. -- 3 of 4 -- 4 hearing about an alleged breach of their human rights. There will be cases where nothing more than mere assertions are made about an alleged breach or where the filed evidence is sufficiently tangential to the issues to be determined to warrant summary dismissal but this case is not one of those. It is not a plain and obvious case warranting dismissal. -- 4 of 4 --