Craig v Ravenshoe Community Centre Inc & Ors [2012] QCAT 67

CITATION: Craig v Ravenshoe Community Centre Inc & Ors [2012] QCAT 67 PARTIES: Gordon Craig (Applicant) v Ravenshoe Community Centre Inc (First Respondent) State of Queensland (Second Respondent) Barbara Treers (Third Respondent) Trevor Granger (Fourth Respondent) APPLICATION NUMBER: ADL056-11 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: R M Clifford, Member DELIVERED ON: 20 February 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. That the application by the First and Third Respondents to strike out the complaint is dismissed. 2. That the application by the Second and Fourth Respondents to dismiss or strike out the complaint is dismissed. CATCHWORDS: ANTI-DISCRIMINATION – Applications to dismiss or strike out – referral under the Anti-Discrimination Act 1991 – claims exemption – misconceived or lacking in substance Queensland Civil and Administrative Tribunal Act 2009, s 47 APPEARANCES and REPRESENTATION (if any): -- 1 of 8 -- 2 APPLICANT: Gordon Craig – self represented RESPONDENT: First and Third Respondents represented by HBM Lawyers. Second and Fourth Respondents represented by the Crown Solicitor REASONS FOR DECISION Background [1] Gordon Craig is a 58 year-old man who acquired a brain injury following a fall in 1996. Mr Craig also experiences epilepsy, depression, and arthritis and has been diagnosed with post-traumatic stress syndrome. Mr Craig is currently of no fixed abode. [2] In November 2007 Mr Craig commenced receiving services through Ravenshoe Community Centre Inc under the Rural and Remote Home Care Services, HACC program. [3] From June 2009, after various assessments and attempts at providing home care, the service that was ultimately provided to Mr Craig was a weekly taxi service plus one additional taxi service per month. [4] R&R Care however was not approved to provide transport only services from HACC funding and so additional funding needed to be sourced. After Ministerial involvement funds were allocated to fund the taxi service to Mr Craig for a period of 12 months with a review to be undertaken at the end of the period. [5] Mr Craig, concerned that the service would not continue beyond June 2010 made various representations to try and obtain some certainty. [6] However in October 2010 Mr Craig complained to the Anti-Discrimination Commission Queensland alleging discrimination by Barbara Treers, Manager, Ravenshoe Community Centre Inc, and Trevor Granger, Area HACC Manager, Peninsular region, Queensland Health. [7] The ADCQ assisted Mr Craig in writing his complaint. [8] Mr Craig’s complaint particularly concerned a meeting between Mr Craig and the Respondents held on 9 April 2010 at the Mossman Post Office. [9] It appears this meeting was essentially triggered following a complaint Mr Craig made to Disability and Community Complaints Unit in the Department of Communities. The general purpose of the meeting was to involve Mr Craig in discussions regarding the services Mr Craig received through Ravenshoe Community Centre Inc and to discuss the process for review. [10] Mr Craig claims at the meeting Ms Treers advised him that HACC services are for older people and so the service he was receiving was to be withdrawn from 30 June 2010. [11] Mr Craig claims at the meeting Mr Granger supported Ms Treers’ contention HACC services are for old people and declared it was his intention to find a -- 2 of 8 -- 3 HACC service officer to reassess Mr Craig as no longer eligible to access HACC services. [12] In the complaint to ADCQ Mr Craig also claims he suspects gender bias and that he has had issues concerning services for the past 10 years. [13] Furthermore in an email dated 2 November 2010, in response to ADCQ seeking Mr Craig’s verification of the content of the complaint, Mr Craig observes there is no mention of discrimination on the grounds of disability in the text of his complaint. [14] In its correspondence to the respondents and referral to the Tribunal the ADCQ summarise and accept Mr Craig’s complaint as: a. alleged age discrimination in the provision of goods and services by Barbara Treers and Ravenshoe Community Centre Inc as vicariously liable for the alleged actions of Ms Treers; b. alleged request or encouragement of contravention of the Act, in the administration of State laws and programs by Mr Granger and the State of Queensland as vicariously liable for the alleged actions of Mr Granger. [15] The ADCQ complaint was unable to be resolved and the matter was referred to the Tribunal on 29 June 2011. [16] In his contentions to the Tribunal Mr Craig claims agreements have not been honoured and contends that actions of the respondents breach various laws including the Disability Services Act 2006, Public Service Act 2008 and both State and Commonwealth Anti-Discrimination Acts. Specifically Mr Craig contends it is unlawful to discriminate against people on the basis of their age. [17] Mr Craig asks, amongst other things that the matter be fully investigated by the Tribunal and the Tribunal deliver a verdict based on the evidence. [18] On 28 November 2011 the Second and Fourth Respondents filed contentions in response denying any discrimination and contending that the complaint is lacking in substance under s 47 of QCAT Act 2009 and advising a further application and submissions would be made in this regard. [19] On 28 November 2011 the First and Third respondents filed contentions in response denying any discrimination and contending that the area under which it is alleged the respondents discriminated against Mr Craig is exempt under s 46 of the Anti-Discrimination Act 1991 and the complaint should be struck out pursuant to s47 of the QCAT Act 2009 or alternatively that the complaint be dismissed on the basis the allegations are not made out. [20] On 7 December 2011 the Second and Fourth Respondents filed submissions in support of an application to have the complaint dismissed or struck out in its entirety as it is lacking in substance and/or misconceived as there has been no discrimination as defined by the Anti-Discrimination Act 1991. [21] On 6 January 2012 Mr Craig filed a reply opposing the applications for dismissal/strike-out. -- 3 of 8 -- 4 Ravenshoe Community Centre Inc and Ms Treers submissions (First and Third Respondents) [22] The Respondents submit that the discrimination is alleged to have occurred is in the ‘goods and services’ area and that area is governed by section 46 of the Anti-Discrimination Act 1991. [23] Section 46 states that a person who supplies goods or services (whether or not for reward or profit) must not discriminated against another person by failing to supply good or services or in the terms or way in which those goods or services are supplied. [24] However, section 46(2) provides that a reference to a person who supplies goods and services does not include an association that is established for such things as social, community services or any other similar lawful purpose and does not carry out its purpose for the purpose of making a profit. [25] The Respondents submit Ravenshoe Community Centre Inc is an association established for social and community services, and does not carry out its purposes for the purpose of making a profit and that it is therefore exempt from those provisions of the Anti-Discrimination Act 1991. [26] The Respondents provide a copy of the Centre’s Constitution which outlines it aims and objectives and which clearly sets out that it is a not for profit organisation. [27] The Respondents seek an order that the complaint be struck out pursuant to section 47 of Queensland Civil and Administrative Tribunal Act 2009 or in the alternate dismissed on the basis the allegations are not made out. Findings and conclusions [28] The Tribunal can bring an early end to a proceeding by dismissing it or striking out a proceeding in whole or in part. [29] Section 47 of the QCAT Act provides that an early end to a proceeding may apply if the Tribunal considers a proceeding or part of a proceeding is either: a. frivolous, vexatious or misconceived; b. lacking in substance c. otherwise an abuse of process. [30] Mr Craig is a person who has acquired a brain injury and has been diagnosed amongst other things with Post Traumatic Stress Disorder. There appears to be little doubt Mr Craig is a person who requires some assistance for various life activities and social inclusion. [31] The Ravenshoe Community Centre has been providing services to Mr Craig through a program that has clear parameters and budget and one that is overseen by State Departments. [32] Although Mr Craig appears to have broader concerns about the type and level of services that he and others in similar situations may or may not be entitled to, the only matter before this Tribunal is a matter relating to an alleged contravention of the State anti-discrimination law. -- 4 of 8 -- 5 [33] Whilst the Anti-Discrimination Act 1991 proscribes discrimination on particular attributes such as age in particular areas of public life it does not make all discrimination unlawful. The Anti-Discrimination Act 1991 provides for a number of defences and exemptions and the Respondents submit Ravenshoe Community Centre Inc is caught by such an exemption. [34] In light of the Centre’s Constitution the Tribunal is satisfied the Centre was established for social and community service and that it does not carry out its purposes for the purpose of making a profit and is the type of association envisaged by the Anti-Discrimination Act 1991 to be exempt from the provisions of section 46 of the Act. [35] Whilst the Tribunal recognises, given the background to the matter, that there is potential for Mr Craig to raise primary liability against the Centre during the proceeding the Tribunal is clear that the only matter it may be required to determine in relation to the Centre at this stage is whether it is vicariously liable for any yet to be determined alleged discriminatory conduct of its employee Ms Treers. [36] In the circumstances the Tribunal is not convinced that a strike-out order is necessary and given the Tribunal’s finding noted above at [34], the Tribunal is satisfied that should the issue of primary liability arise it could be quickly addressed in the proceeding and determined and incorporated in final reasons for decision and order. [37] The Tribunal notes, as an employee of the Centre, Ms Treers does not come within the provisions of section 46 and is not exempt under that section. [38] The Respondents seek in the alternative to a strike out that the complaint be dismissed on the basis the allegations have not been made out. [39] Mr Craig claims that at a meeting with Ms Treers, and others, Ms Treers suggested he would no longer receive services because of his age. The Tribunal understands that the Respondents have a different view but the claims and evidence of parties and witnesses relating to the meeting have yet to be tested. Mr Craig has provided a statement from a witness at the meeting and that statement, along with the testimony of other attendees needs to be given fuller consideration by the Tribunal. [40] In the circumstances the application for an early end to the proceedings in relation to the First and Third Respondents is dismissed. [41] The Tribunal orders that the application by the First and Third Respondents to strike out the proceeding because an exemption applies or dismissed because the allegations have not been made out is dismissed. State of Queensland and Trevor Granger submissions (Second and Fourth Respondents) ‘ [42] The Second and Fourth Respondents submit that Mr Craig’s complaint against the Respondents is lacking in substance and/or misconceived and should be struck out in its entirety, as there has been no unlawful discrimination as defined under the Anti-Discrimination Act 1991. -- 5 of 8 -- 6 [43] The Respondents submit Mr Granger’s role is not in the provision of goods and services but agrees the role does involve the administration of State laws and programs. [44] The Respondents deny Mr Craig was advised the services were for ‘old people’ only and deny that Mr Granger threatened to find a HACC assessment officer to reassess Mr Craig as ‘no longer eligible to access HACC services period’. [45] The Respondents deny that Mr Granger requested or encouraged Ms Treers to contravene the Anti-Discrimination Act 1991. [46] The Respondents in essence submit Mr Craig misconstrued what the purpose of the meeting was for and misinterpreted the information he was provided at the meeting about the nature of the service and its funding. [47] The Respondents submit Mr Craig continued to receive services through the program after the meeting until he moved residence. [48] By way of background the Respondents outline the Home and Community Care (HACC) Program and advise that it is a joint Commonwealth and State program under a Commonwealth law. The Commonwealth provides 60% of the funding and HACC Review Agreements exist between the Australian Government and the States/Territories. [49] The objective of the program is to provide basic maintenance and support services for frail aged people and younger people with disability and their carers, and to support them to be more independent at home and in the community. [50] Eligibility for services is based on frailty related to impaired functional capacity. Individuals do not qualify for services solely on the grounds of advanced age. Special needs groups, including people living in remote isolated areas have been identified as being eligible for services. [51] Assessment is carried out in relation to HACC set criteria prior to being identified for HACC services. HACC targets it services according to relative need, cost effectiveness and an individual’s assessment needs. [52] The State of Queensland enters into service provider contracts with organisations to provide necessary HACC services in each region. The State entered into such an agreement with Ravenshoe Community Centre Inc to provide Rural and Remote Home Care Services, HACC Program. [53] The Respondents advise Mr Granger is the Area HACC Manager for the Peninsular region, HACC, within Queensland Health. Mr Granger’s role is to support the service providers within the region and follow up on client complaints made in relation to service providers. [54] The Respondents advise Mr Craig received transport only services from June 2009. The Respondents advise Rural and Remote Home Care Services does not receive funding to provide client transportation so additional funding for Mr Craig’s transport service was sought and allocated, through Ministerial involvement, until 30 June 2010 with review at the end of the period. -- 6 of 8 -- 7 [55] The Respondents state Mr Craig was advised of the approval, the terms of the service and an updated care plan by letter dated 9 June 2009. [56] The Respondents advise Mr Craig returned the care plan with hand written amendments including ‘This agreement will automatically roll-over 2010- 2011 if client still requires the above’. [57] The Respondents wrote to Mr Craig on 25 June 2009 confirming, amongst other things, automatic rollover after 30 June 2010 could not be confirmed and would be dependent on funding. [58] The respondents advise that Mr Granger and Ms Treers engaged in a Quality Action Plan Audit of the Rural and Remote Home Care Services in 15 October 2009. This involved a regular audit to measure against the organisation’s three-year continuous improvement goals. [59] The Respondents advise that prior to the meeting on 9 April 2010 the Respondents were advised of a complaint Mr Craig made to Department of Communities in December 2009 about not being involved in a meeting about services he received. The Respondents advise that this meeting was a business review meeting to which clients are not invited. The Respondents learned through this complaint Mr Craig wanted a meeting about his services and Mr Granger suggested to Ms Treers one be convened. The 9 April 2010 meeting was therefore arranged. [60] The Respondents submit that at the meeting Ms Treers did not advise that Mr Craig’s support had been arbitrarily pre-decided and was to be curtailed. [61] The Respondents deny Mr Granger or Ms Treers informed Mr Craig HACC services were for ‘old people’ only and deny that Mr Granger threatened to find a HACC assessment officer to reassess Mr Craig as ‘no longer eligible to access HACC services period’. [62] The Respondents, in summary, submit that the meeting commenced cordially but once conversation turned to the review process for services after 30 June 2010 Mr Craig became agitated. The Respondents submit Mr Craig ultimately agreed to participate in the required review with the HACC assessment nurse and he requested that such assessment occur as soon as possible. [63] The Respondents advise on 5 July 2010 Mr Craig was reassessed and following funding approval from the responsible Minister a further 12 month period of service was granted. The organisation Goobidi Bamanga was retained as the HACC service provider given the deteriorating relationship between Mr Craig and the First and Third Respondents. [64] The Respondents advise that in a letter dated 25 February 2011 Goobidi Bamanga advised, amongst other things, that Mr Craig had moved from his Julatten address and so the service coordinated through Goobidi Bamanga was suspended. [65] The Respondents submit that Mr Craig’s claim is lacking in substance and/is misconceived and should be struck out in its entirety pursuant to section 47(2) of the QCAT Act. Findings and conclusions -- 7 of 8 -- 8 [66] As noted above in relation to the First and Third Respondents’ submissions the Tribunal may bring an early end to a proceeding by dismissing it or striking out a proceeding in whole or in part if the Tribunal considers a proceeding or part of a proceeding is either: a. frivolous, vexatious or misconceived; b. lacking in substance c. otherwise an abuse of process. [67] The Respondents’ submissions in essence rely on the Tribunal accepting that their version of the meeting on 9 April 2010 is established fact and is preferred to the evidence of Mr Craig and his witness and that Mr Craig misconceived the facts of the meeting. [68] Whilst the Tribunal accepts the Respondents have a different view as to the conduct of the meeting on 9 April 2010 it is the Tribunal’s view that contested facts should be fully considered by the evidence of the parties and witnesses to the meeting and not be dealt with in a summary manner. [69] After testing the evidence the Tribunal will be better placed to decide which evidence it prefers. The Tribunal will then apply the legislation to those facts and decide if Mr Craig has established a contravention of the Anti- Discrimination Act 1991. [70] Mr Craig’s allegation of age discrimination/requested or encouraged contravention of the Anti-Discrimination Act 1991 in State laws and programs is not outside the jurisdiction of the anti-discrimination law. No exemption applies to either the Second or Fourth Respondents, and although the allegations are narrow in terms of the alleged acts of discrimination they cannot be said to be lacking in substance or misconceived as to law. [71] In the circumstances the application for an early end to the proceedings in relation to the Second and Fourth Respondents is dismissed. [72] The Tribunal orders that the application by the Second and Fourth Respondents to have the complaint dismissed or struck out in its entirety as it is lacking in substance and/or misconceived is dismissed. -- 8 of 8 --