State of Queensland v Bond

CITATION:

State of Queensland & Anor v Bond [2017] QCATA 97

PARTIES:	STATE OF QUEENSLAND (First Applicant/Appellant) and CHRISTINE THOMAS (Second Applicant/Appellant)
v
ROBYN BOND (Respondent)
APPLICATION NUMBER:		APL170-17

MATTER TYPE:

Application and Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

DELIVERED ON:

12 September 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

1. Application to stay the decision in ADL089-15 delivered on 2 May 2017 is granted.

CATCHWORDS:

APPLICATION TO STAY DECISION UNDER APPEAL – where decision pending under appeal permits the respondent to amend a discrimination complaint to add (a) out of time allegations and (b) a victimization allegation post-dating the referral of the complaint to QCAT – whether case of error strong enough to justify stay until appeal proceedings are finalised

Crinis v Ray White Paradise Group [2016] QCATA 90

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32
Anti-Discrimination Act 1991 (Qld) ss 138, 142, 178

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

This is an application to stay pending appeal against discretionary procedure decisions permitting the respondent to amend a discrimination complaint filed on 6 February 2015 to add (a) out of time allegations (b) a victimization allegation post-dating the referral of the complaint to QCAT.
Section 138 of the Anti-Discrimination Act 1991 (Qld) limits complaints to alleged contraventions occurring within the preceding year.
The respondent lodged her complaint on 6 February 2015.
The Anti-Discrimination Commission Queensland (ADCQ) decided to accept the complaint except for allegations of acts of discrimination or victimization before 6 February 2014.
The tribunal held that because a valid complaint is limited to allegations within a year those outside that period were never part of a valid complaint and while time barred complaints could be included by the commission under s 138(2) they were not part of the application and therefore, they had not been rejected by the commission or lapsed in terms of s 142 of the Act consequently the tribunal’s s 178 discretion was unfettered.
The applicant must satisfy the following criteria to obtain a stay of the original decision:
1.the applicant must present a reasonably arguable case for obtaining effective relief in the substantive proceedings because the original decision appears to be infected by some form of legal, factual or discretionary error that would warrant appellate intervention to correct it;
2. the applicant must establish that a refusal of the stay would cause a material detriment to the applicant; and
3.the applicant must demonstrate that the balance of convenience favours the granting of a stay of the operation of the original decision.
These requirements are cumulative. If the applicant fails to discharge any one of the three requirements, the applicant must fail.[1]
[1]Crinis v Ray White Paradise Group [2016] QCATA 90 at [39]-[40].
A reasonably arguable case of error has been demonstrated and there are matters of general importance raised by the application.
The applicants have thus made out a case for a stay until the appeal is decided.
The applicants should not be put to the time and expense of addressing contentions that may be redundant and there is no prejudice to the respondent that cannot be remedied.
Orders accordingly.

In the matter of the State of Queensland and Bond, the applicant sought a stay of a decision made by a tribunal, which was under appeal. The application was brought before the Queensland Civil and Administrative Tribunal's Appeal Tribunal. The dispute centred around whether the tribunal's decision should be stayed pending the finalisation of appeal proceedings, given that the respondent intended to amend a discrimination complaint to include out-of-time allegations and a victimization claim that occurred after the complaint was referred to the tribunal. The tribunal was asked to determine whether the case for error was sufficiently strong to warrant a stay of the decision until the appeal proceedings were concluded.

The tribunal was required to decide whether the presence of an appeal pending against the tribunal's decision justified staying the decision to allow for the respondent to amend the discrimination complaint to include out-of-time allegations and a post-dating victimization allegation. This involved assessing the merits of the appeal and the potential impact of the amendments on the fairness of the proceedings. The tribunal needed to balance the respondent's right to amend their complaint against the potential for undue delay and the principle of finality in tribunal decisions.

The tribunal found that the appeal against the decision had sufficient merit to justify staying the decision until the appeal proceedings were finalised. The tribunal considered the potential for prejudice to the respondent if the decision was not stayed, and the likelihood of the appeal being successful. It was determined that the case for error was strong enough to warrant a stay, particularly given the significant changes proposed in the amended complaint. The tribunal concluded that staying the decision was necessary to ensure a fair and just outcome in the appeal proceedings.

The Appeal Tribunal granted the application to stay the decision in ADL089-15, delivered on 2 May 2017. This stay was put in place to allow for the appeal proceedings to be finalised, ensuring that the tribunal's decision would not be prejudiced by the proposed amendments to the discrimination complaint.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established