Queensland Civil and Administrative Tribunal|2010-09-20

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.
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 18th 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 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.

"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 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."

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."

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.
In my view the complaint referred to this Tribunal includes, in addition to the 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.

[1] See Hopper v Mt Isa Mines [1998] QSC 287; (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].

David Yohan representing PAWES (Providing Awareness with Education and Sport) v Queensland Basketball Incorporated & Brisbane Basketball Incorporated [2010] QCAT 459 (20 September 2010)

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

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Parties

Cases Cited (2)

David Yohan representing PAWES (Providing Awareness with Education and Sport) v Queensland Basketball Incorporated & Brisbane Basketball Incorporated [2010] QCAT 459 (20 September 2010)