Guerrini v The Young Men's Christian Association of Brisbane & Ors [2026] QCAT 98

1. The Applicant was a member of the YMCA gym at Bowen Hills (the gym) for about 7-8 years prior to the incidents in question.
2. The Applicant is a gay man, but does not generally broadcast that fact, or like his sexuality to be openly discussed in public places.
3. Between mid-November 2021 and June 2022, the Applicant was subjected to numerous separate incidents of sexual harassment by a female member of the gym, the former First Respondent. The comments were of a highly sexualized, often suggestive, nature, and included unwanted and disparaging comments in relation to his being gay. On multiple occasions these remarks were said in the company of other members. On at least 3 occasions when she was near the Applicant, Ms DeJong deliberately bent over and pointed her buttocks in the direction of the Applicant.
4. The Applicant repeatedly asked the First Respondent to stop and tried to avoid her, but the conduct continued.
5. The Applicant on numerous occasions reported the harassment to the gym's Centre Manager, Assistant Centre Manager and Fitness and recreation Group Manager (respectively the Third, Fourth and Fifth Respondents), all of whom are or were employees of the Second Respondent (the YMCA). On 29 November 2021, he wrote a four-page letter to the managers, setting out in detail his complaints against Ms DeJong (Exhibit A to the Affidavit).
6. Despite initially saying that they would address his concerns and were taking the matter "very seriously" (email of 23 February 2022), the YMCA took not active steps to investigate the Applicant's complaints or sanction Ms DeJong.
7. The Applicant made numerous reports about the conduct in question. The YMCA's managers were dismissive, unresponsive and unwilling to take his complaints seriously. One manager would frequently refer him to another manager, who also did not act on his reports in a timely or appropriate manner. This fostered an environment in which the discrimination was allowed and enabled to continue.
8. The organizational response of the YMCA, through its employees, was very unsupportive of the Applicant throughout the process. The Applicant asked to speak to a manager on more than 40 occasions, but his requests were refused. No support was provided, nor was there any reference to any gym policies, any formal reporting forms, or any means of escalating the complaint. Eventually, YMCA staff were directed not to speak to the Applicant.
9. After a long period of trying to get the YMCA to act, the only solution offered by the YMCA · management team was that the Applicant attend a mediation with Ms DeJong. Considering the prolonged failure of the YMCA to take his complaints seriously, the Applicant thought he would feel emotionally unsafe to undergo mediation with Ms DeJong and had no confidence that YMCA staff would be able to act as impartial mediators. The YMCA's proposal was in the circumstances inadequate and inappropriate.
10. As a result of the ongoing failure to adequately respond to his complaints, the Applicant made another attempt to raise the matter with YMCA management. On 15 June 2022, the Applicant spoke to deputy manager Suzanne Reilly, raising his concerns that the situation was potentially in breach of anti-discrimination legislation. He followed this up the next day with an email to all the managers to the same effect. The YMCA referred the matter to its lawyers.
11. By email of 30 June 2022, the YMCA, through its lawyers, terminated the Applicant's gym membership. This was purportedly based primarily on the Applicant's allegedly aggressive conduct towards Ms Reilly on 15 June 2022, an interaction that was, or should have been, captured on the gym's CCTV camera. Despite making prompt and repeated requests for the YMCA to show the Applicant the CCTV footage of the incident, the YMCA has failed or declined to produce it. The Applicant believes the allegation is fabricated and that the real reason for the termination of his gym membership was because of his intention to raise an anti-discrimination complaint.
12. At the same time as terminating his membership, the YMCA also terminated the membership of Ms DeJong. According to a letter to the Applicant, this was as a result of its investigation into the conduct by Ms DeJong which the Applicant had complained of, going back to November 2021.
13. Aside from Ms DeJong's behaviour towards him, the Applicant was very happy at the gym and was a long-standing member. If his membership had not been terminated by the YMCA, he would still be a member of the gym today. Because of the termination, he was forced to join a different gym, which is considerably more expensive than the YMCA.

[52] Despite the order that required him to set out in the SOC what he claimed he sought to incorporate as part of the "factual basis for the claim", what was in his complaint to the QRHC and his affidavit filed in this Tribunal on 10 July 2022, which were indiscriminate in what claims were made against whom and based on what facts.

[53] Under the heading "Legal Basis of the Claim", the SOC contends as follows:

1. The YMCA is responsible for the acts and defaults of its employees the Third, Fourth and Fifth Respondents, pursuant to section 133(1) of the Ad Act.

[54] There is no allegation that the YMCA is responsible for the acts and defaults of the former First Respondent. There is no allegation describing any particular conduct of the natural persons, the Third, Fourth and Fifth Respondents as being discriminatory, and how it was caught by the AD Act as unlawful or in what area of activity any of them was engaged in. It is not identified how an employee of an organisation that engages in an area of activity individually also engage in that activity when they work for the employer.

[55] The SOC then sets out the definition of sexual harassment in section 119 of the AD Act and continues:

The Act specifically gives as examples of conduct contrary to paragraph (c): "unwelcome and uncalled for remarks or insinuations about a person's sex or private life" and "suggestive comments about a person's appearance or body".

Ms DeJong engaged in sexual harassment of the Applicant on numerous occasions by reason of her conduct and her public comments about him.

[56] That allegation is not one made against the YMCA Respondents.

[57] Under the heading "Vilification" he alleges that Ms De Jong, by her public acts in the gym, incited severe ridicule of the Applicant on the grounds of his being gay. That allegation is not one made against the YMCA Respondents either.

[58] Under the heading "Victimisation" he sets out the definition in the AD Act then alleges that "the YMCA victimized him by terminating his membership of the gym shortly after the Applicant made it clear that he intended to allege a contravention of the Act." No specific person is identified as having done that act on behalf of the YMCA.

[59] As I referred to earlier under the heading "Sex Discrimination", he sets out the definition of direct discrimination and then alleges:

In this case, the Applicant contends that the YMCA discriminated against him on the basis of his male sex, and treated him less favourably that they would have treated a woman in similar circumstances in that they:

1. Did not take any action in relation to his complaint for more than six months;

2. Asked him to attend a meeting with the person accused of harassing him;

3. Terminated his membership of the gym on spurious grounds.

If the Applicant had been a female gym member complaining of harassment in similar circumstances, the YMCA would have:

1. Taken action to investigate the complaint at a much earlier stage;
2. Not asked the applicant to meet with the person accused of harassment;
3. Terminated the membership of the harasser at a much earlier stage;
4. Not terminated the membership of the applicant.

[60] This then is an allegation that he was directly discriminated against on the basis of his being a male, when a woman would have been treated differently in the same or similar circumstances. No specific person is identified as having done that act on behalf of the YMCA either.

[61] He only alleges sexual harassment by the person who has since been removed as a party. Section 119 of the AD Act defines a form of discrimination usually called sexual harassment and which is prohibited.

[62] In Queensland the prohibition on sexual harassment is not constrained to one particular area but is without limits and can apply to all facets of life. The law as it relates to sexual harassment, in the context of a matter also involving homosexual vilification, is set out in my decision in Wilson v Lawson [2008] QADT 27 at [73]- [78].[1] As I explained there, joking and ridicule because of homosexuality may amount to harassment. I held:

[73] Unlike the position in most other Australian States, the prohibition on sexual harassment in the Act is not one that limits its operation to any particular categories of relationship, such as employment, education or the supply of goods or services. It is therefore possible to offend s.119 where the events occur between strangers, or indeed even friends.

[63] It seems to me that the applications of each side throw up two questions for my determination. First, whether the provisions of the AD Act which prohibit discrimination in the club membership and affairs area (chapter 2 division 9 of the Act) do not apply to the YMCA Respondents because each of them is not a "club" as that term is defined in the dictionary to the Act. The YMCA Respondents have not addressed this issue at all despite the QHRC referral having treated the complaint as alleging sex, age and sexuality discrimination in the area of goods and services and by a club in membership and affairs, two different bases.

[64] Secondly, whether the provisions of the Act which prohibit discrimination in goods and services area (chapter 2 division 4 of the Act) do not apply so that therefore the YMCA Respondents are exempt because of the provisions in section 46(2) of the Act which apply to entities which are established for social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purposes but which do not carry out its purposes for the purpose of making a profit. The interaction between the two relevant parts of the Act is such that the practical purposes each mirrors the other in the manner in which it operates. The YMCA Respondents have addressed this issue and urge a decision that resolves this issue in its favour. It is also the foundation for the Applicant's application which looks like some pre-emptive attempt to decide the issue separately from the other issues in case his entire case falls over on that basis.

[65] Section 46 of the AD Act provides as follows:

(1) A person who supplies goods or services (whether or not for reward or profit) must not discriminate against another person -

(a) by failing to supply the goods or services; or

(b) in the terms on which goods or services are supplied; or

(c) in the way in which goods or services are supplied; or

(d) by treating the other person unfavourably in any way in connection with the supply of goods and services.

(2) In this section, a reference to a person who supplies goods and services does not include an association that -

(a) is established for social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purposes; and

(b) does not carry out its purposes for the purpose of making a profit.

[66] To the extent that it might be contended that the provision of, or facilitation of, a gymnasium is a supply of "services" within section 46, there is no prohibition on discrimination by the organisation which supplied the service if it was established, inter alia, for sporting purposes and "does not carry out its purposes for the purpose of making a profit". None of the terms in section 46(2) are defined in the Act itself.

[67] I have been referred to no authority on the point by the parties but it also seems to me that no element of a claim of victimisation requires establishing that it occurred by a person who supplies goods or services whether or not for reward or profit.

[68] That means that even if the YMCA Respondents succeed in showing that the exemption for "not for profits" applies to their alleged discriminatory conduct, there will still be a live issue in relation to the victimisation claim which will have to go to a hearing.

[69] There may also still be a live issue as to whether this is discrimination by a club in club membership. Section 93 of the AD Act prohibits a "club" from discriminating in club membership. Sections 94 and 95 contain prohibitions on discrimination in determining who should be members, and in respect of members' discrimination by the club in the membership and affairs area.

[70] The Applicant may well have an arguable case on the evidence that in some way the directly discriminatory conduct to which he says he was subjected arguably fell within the prohibitions in sections 94 and 95 and that the Second Respondent was a club caught by those provisions.

[71] The definition of "club" appears in the schedule 1 dictionary, and is defined as follows:

(a) is established for social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purposes; and

(b) carries out its purposes for the purpose of making a profit.

[72] The word "association" is not defined in the AD Act. The prohibitions in club membership areas only apply to clubs which carry out their purposes for the purpose of making a profit and do not apply in circumstances, to use the wording of section 46, where the association "does not carry out its purposes for the purpose of making a profit".

[73] I gave careful consideration to these issues in the decision in David Yohan representing PAWES (Providing Awareness with Education and Sport) v Queensland Basketball Incorporated & Brisbane Basketball Incorporated (No. 2) [2010] QCAT 471 ("Yohan"). Neither party referred me to it, or any other decision on point either.

[74] In Yohan I said, after noting that there was nothing in the Explanatory Memorandum to the AD Act, nor in the parliamentary debates which introduced it, which is relevant to or sheds any light upon what was sought to be achieved by the exclusion from the operation of the provisions of the AD Act, sporting and like associations that did not carry out their purposes for the purpose of making a profit:

1. In the preamble to the Act, the Parliament has set out its reasons for enacting the Act. One of those is to make provision for the promotion of equality of opportunity for everyone by protecting them from unfair discrimination "in certain areas of activity". Similarly, section 6 of the Act states that one of its purposes is "to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation. Implicitly, those stated objects, and the scope of the prohibitions in the Act themselves appear to recognise that it is not sought to extend its operation to provide protection from unfair discrimination in all areas of activity which it might be encountered in the community. It may therefore be inferred that the exclusion of its operation to, inter alia, sporting associations which do not carry out its purposes for the purpose of making a profit is a policy decision designed not to provide protection from discrimination in that context.
2. There have been four decisions of the Anti-Discrimination Tribunal of Queensland which have dealt with the issue currently under consideration; re; Women's Legal Service Inc [1996] QADT 21; Lawson v Stadium Redevelopment Authority & Qld Rugby Football League [2003] QADT 12; Dolores Jackson & Ors v Cairns Golf Club [2005] QADT 34 and Haycox v The Uniting Church in Australia Property Trust (Q) trading as the Wesley Hospital [2005] QADT 35. None of those decisions discuss the legislative policy behind the exclusion of not-for-profit organisations from the operation of the Act. In only one of those, the first, concerning the Women's Legal Service, was the issue of whether a particular organisation was within the definition actually determined. The rest, whilst discussing the relevant principles, each proceeded in essence to decide that it was not appropriate that the question be determined on a summary basis.
3. Some idea of the policy behind equivalent provisions can be seen from the decision of the New South Wales Administrative Decisions Tribunal in Strong v The Hospitals Contribution Fund of Australia Limited [2004] NSWADT 176. In that case the relevant provision which provided an exclusion from the operation of the legislation referred to a body that is "carried on otherwise than for profit and which is not established by an Act". There was no question that the relevant Hospital Contribution Fund was not established by an Act, so the Tribunal conducted an examination of whether it carried on otherwise than for profit. It is to be noted that the provision under consideration there was different to that here in that it was not referenced to the carrying out of purposes for the purpose of making a profit, but rather referenced whether the body itself "carried on" otherwise than for profit.
4. The Tribunal in the decision of Strong v The Hospitals Contribution Fund of Australia Ltd identified what it saw as some legislative policy that sought to exclude organisations which have a distinctive characteristic that "a substantial amount of their activities are carried out by people who are unremunerated, and that they operate to meet the special interests of a defined group of people". At paragraph 89 of its reasons, the Tribunal said:

"The heading to section 57 is "Voluntary bodies". As we noted above, in other Australian discrimination legislation a voluntary body is defined as one that that is carried on otherwise than for profit. There is an implication, made stronger by the definitions in other anti-discrimination legislation, that parliament intended by referring to a body whose activities are carried on otherwise than for profit, to refer to a voluntary body. In our experience it is distinctive of voluntary organisations, though not exclusive to them, that a substantial amount of their activities are carried out by people who are unremunerated, and that they operate to meet the special interests of a defined group of people."

1. Hence it concluded in that case that the entity existed to provide health insurance service to its members, and that to do so it necessarily tried to generate an operating surplus. Even though it was carried on otherwise than for profit for the purposes of income it did not distribute its profits, it operated "for profit" in that sense. It concluded that "whether it has a profit or a loss, and whether it calls a profit and surplus, and a loss and deficit, the question is "what is its character? It asked; does it have "the character of a relatively small voluntary body, the activities of which could be carried on by an unincorporated association of people for purposes of pursuing a common interest?" The exception provided for in [the] section was in their view, directed towards such bodies, and that it is bodies with that character that are identified by the term "carried on otherwise not for profit".
2. In arriving at that conclusion, the Tribunal, appeared to have placed significance upon a parliamentary speech which suggested that the removal of registered clubs from the exception provided for under the NSW legislation recognised that there was a relief from compliance only for "small private concerns, that have memberships and on which other businesses are not dependent for their viability". Such a distinction does not exist in the Queensland legislation.
3. Exemptions to similar effect to those in section 46(2)(b) may be found in other legislation; see for example Section 39 of the Sex Discrimination Act (Commonwealth) 1984, Section 36 the Age Discrimination Act 2004 (Commonwealth), Section 31 Discrimination Act 1991 (ACT) and section 71 Equal Opportunity Act 1984 (WA). The exemptions there reference voluntary bodies which are defined as associations or other bodies, the activities of which are not engaged in for the purpose of making a profit. There have been some decisions about whether particular organisations fell within that definition; see for example Kalgoorlie Taxi Car Owner's Association Inc & Ors v Frank Regan & Ors [1998] WASCA 9; Gardnea v AANA Ltd [2003] FMCA 81; (2003) EOC 93-277 which concerned the activities of the South Australian Netball Association.

[75] Reference was also made to the decision in Strong which discussed some English authority on the meaning of the expression "otherwise than for profit". In particular the Tribunal adopted an approach taken from the decision in Customs & Excise Commissioners v Bell Concord Educational Trust Ltd [1989] 2 WLR 679 where, at 681 Browne-Wilkinson VC said that if consideration of the phrase "otherwise than for profit":

"requires one to look at the constitution of the organisation to discover the purposes for which it is established, there is a clear and unambiguous test as to whether the supply is made for profit. If the commissioner's test is correct the consequential difficulties are formidable."

"If the phrase "otherwise than for profit" implies that a charitable organisation can carry on a business for "profit" the question once arises as to what is meant by "profit". In relation to what period does one assess the profit? How often does one have to ask the question, is the organisation providing its services otherwise than for profit?" "...I find it inconceivable that Parliament should have intended the question of exemption to depend on ascertaining the subjective state of mind of an educational body at (quarterly) intervals. Commonsense suggests the exemption should depend on some longstanding objective yard stick rather than on this frequent review of the state of mind of those running the organisation".

1. His Honour went on to say [at 683] "In my judgment, parliament is far more likely to have considered that the phrase 'otherwise than for profit' meant bodies which were non-profit making bodies in the ordinary sense of the word rather than bodies which, from time to time, aim to make a surplus on revenue account. Administration of the tax for educational purposes becomes so complex on any other view that, apart from any guidance from the directive, I would reject the commissioners' construction."

2. In National Deposit Friendly Society Trustees v Skegness Urban District Council [1958] AC 293 at 319, Lord Denning concluded that the fact that a friendly society had made profits did not mean that it was conducted for profit or conducted for the purpose of making profit:

"Many charitable bodies, such as colleges and religious foundations, have large funds which they invest in interest in stocks and shares, or purchase land which they let at a profit. Yet they are not established or conducted for profit. The reason is that because their objects are to advance education or religion, as the case may be. The investing of funds is not one of their objects properly so called, but only a means of achieving those objects. So it here seems to me that if the making of profit is not one of the main objects of an organisation, but is only a subsidiary object - that is to say if it is only a means whereby its main objects can be furthered or achieved - then it is not established or conducted for profit."

1. Applying a similar approach, the Court in Bell Concord concluded that the making of a monetary surplus was incidental to and not an object of the company, and it was therefore not supplying its educational services for profit in the relevant sense.
2. It may be seen that this analysis introduces a distinction between the main objects and the subsidiary objects of an association. That distinction may not be relevant for the purposes of consideration here if the reference to the carrying out of purposes in section 46(2)(b) is a reference to the stated purposes as referenced in the constitution, rather than the notion of a purpose as particular activity. Hence under the former analysis, all that is necessary is to consider whether the purposes set out in the constitution of the organisation include as a purpose the making of a profit, not whether in the carrying out of any of those stated purposes, they are carried out for the purpose of making a profit. That enquiry might also therefore be largely limited to an analysis of what is contained in the constitution, rather than an analysis of what actually occurs on a daily, quarterly or annual basis by the relevant entity.
3. This narrow approach was that applied by the then President of the Anti-Discrimination Tribunal in Women's Legal Service [1996] QADT 21, where the President primarily had regard to the constitution of the association in arriving at the conclusion that it was established for community service and did not carry out its purposes for the purpose of making a profit. She also had regard to the fact that the Australian Tax Office had granted a taxation exemption because of its status as a benevolent institution.
4. In Jackson & Ors v Cairns Golf Club [2005] QADT 34, Tribunal Member Venables construed that decision as one which applied "indicia...relevant in determining the question of whether an association does or does not carry out its purposes for the purpose of making a profit, but they are not decisive in their own right." In her reasons at [20] Member Venables said:

"The real issue to be determined in this jurisdiction is the motive of the association under consideration. That is to say that the real question is whether the association sets out to make a profit by the carrying out of its purposes. What it is permitted to do with that profit according to the terms of its instrument incorporation, although relevant, is of less significance".

1. In Haycox v The Uniting Church in Australia Property Trust (Q) trading as the Wesley Hospital [2005] QADT 35 Mr Jackson QC was considering an application like the present for summary dismissal, but decided that there were insufficient facts placed before him to enable him to form a view as to whether the Respondent in fact carried out its purposes for the purpose of making a profit. In arriving at that conclusion, he took the view [at 44] that it was necessary in consideration of the wording of section 46(2)(b) to look at the "facts by which the association carries out its purposes, rather than purely towards the associations' constitutional documents". He took the view that the constitution of an association did not necessarily limit the factual enquiry involved in answering the question of whether an association carried out its purposes for the purpose of making a profit. He rejected the narrower and thought to be a "more practical" approach of limiting the enquiry to the constitutional documents, which were seemingly the basis for the decision in Bell Concord. In the context of that discussion Member Jackson said:

"38. In my opinion, it is clear that the "purposes" referred to in paragraph 46(2)(b) are the purposes for which the association is established. Once that is identified, it is also clear, in my opinion, that the requirement in paragraph (b) looks to the operation of the association in one further respect. The question is whether the respondent carries out its constitutional purposes for the purpose of making a profit. The ordinary meaning of profit in a context like this is pecuniary gain in the form of an excess of revenues or returns over expenses or capital outlaid. However, paragraph (b) does not confine itself to whether an association is established as a not-for-profit association. It is directed to the wider inquiry whether the association carries out the constitutional purposes for the additional purpose of making a profit.

1. It follows, in my opinion, that the question raised by paragraph (b) cannot always be answered simply by having regard to the constitutional purposes of an association. It also may be necessary to have a look at its operation in fact.
2. In the case of an association like the respondent, the question which is raised is whether it carries out its purposes for the purpose of making a profit if, in fact, its operations are profitable and are conducted on that basis. In particular, if the respondent operates the hospital profitably on a year to year operational basis, does that mean that the respondent carries out its purposes for the purpose of making a profit, where any hospital profits are utilised for other non-profit activities or purposes of the respondent or so as to become retained profits to provide for future working capital, capital improvements or other works in the respondent's existing and planned operations at the hospital. And what is the impact, if any, of the respondent's other operations?
3. The respondent's contention is that the constitutional limitations upon the respondent operating as a for-profit organization mean that it is irrelevant to consider whether the hospital in fact operates at a profit on a year to year basis. It relied on Customs and Excise Commissioners v Bell Concord Educational Trust Ltd.
4. In my opinion, it does not necessarily follow that if the respondent operates the hospital from year to year or in some years at a profit, that it is carrying out its purposes for the purpose of making a profit. However, I do not consider that the constitutional documents of an association necessarily limit the factual inquiry in answering the question whether the respondent carries out its purposes for the purpose of making a profit under section 46(2). Although that might be a convenient result, I consider that if the only relevant inquiry under paragraph (b) is whether the association was also established for a purpose of not making a profit, the language would be different, having regard to the text of paragraph (a). Paragraph (b) is directed to what is happening, in my view. For example, an association's constitution might permit it to carry out its purposes for profit or not, but if in fact it does not carry them out for the purpose of making a profit it is entitled to the exemption in section 46(2).
5. Granted, it will be an unusual case where an association whose constitution provides that its operations are to be non-profit, that prohibits the distribution of any dividends to its members and which provides that on winding up its assets are to be applied for religious or charitable purposes will be found to be carrying out its purposes for the purpose of making a profit. That is likely to be so, whether or not its operational policy is to make a profit in supplying the relevant services.

[76] For the reasons I have set out above, the constitutional documents of an association do not necessarily limit the factual inquiry in answering the question whether the YMCA carries out its purposes for the purpose of making a profit under section 46(2). Paragraph (b) is directed to what is happening so an association's constitution might permit it to carry out its purposes for profit or not, but if in fact it does not carry them out for the purpose of making a profit it is entitled to the exemption in section 46(2). Conversely an association whose constitution provides that its operations are to be non-profit and which prohibits the distribution of any dividends to its members and which provides that on winding up its assets are to be applied for religious or charitable purposes might still be found to be carrying out its purposes for the purpose of making a profit. Since paragraph (b) directs itself towards the actual facts by which the association carries out its purposes, rather than purely towards the association's constitutional documents, in my opinion this is not an appropriate case to exercise the power conferred on the Tribunal to summarily dismiss this aspect of the claim. Neither the Applicant nor the YMCA Respondents have chosen to place before the Tribunal any facts concerning the YMCA's actual operations of the gym or its other affairs.

[77] The application by the Applicant is misconceived because he is inviting the Tribunal to determine a preliminary question about a point raised by his opponents, when, in fact, the material about that falls short of what is sufficient to determine the matter at a hearing and does not address the factual issues which would need to be considered to decide that point for either party. That is because it is not just about looking at the constitution of the entity to decide what it does.

[78] It is also based on the false premise that the only basis for the referral was that the conduct occurred in the course of supply of goods or services, but in fact, the referral was also potentially on the basis of it being activity in clubs and associations.

[79] It is not for the Tribunal to trawl through the material to see what arguments and evidence might support a conclusion on that issue. In any event it only goes to the direct discrimination claim and would still leave the victimisation claim to be dealt with.

The application to strike out the SOC because of lack of merit to the direct discrimination case

[80] The YMCA Respondents also submit that the direct discrimination case against the Applicant on the grounds of sex should be struck out because it says it can show that the YMCA:

Promptly considered information raised by the Applicant regarding the alleged conduct of the First Respondent, when raised by the Applicant. The Second Respondent proposed avenues to resolve issues arising between the Applicant and First Respondent, including by offering to organise facilitated mediation between them.

That the Respondents' view of and responses to the conduct complained of by the Applicant did not align with the Applicant's own views or expectations does not mean that the Second Respondent discriminated against the Applicant.

The Respondents were in the process of considering the Applicant's most recent complaints about the First Respondent's conduct when the Applicant's inappropriate conduct towards the Fifth Respondent on 14 and 15 June 2022 occurred. The Applicant's conduct towards the Fifth Respondent caused her to feel concerned for her health and safety at her workplace, and contravened the terms and conditions of the Applicant's membership of and attendance at the Gym.

As a result, and in-keeping with its duties of care to the Fifth Respondent and other workers at the Gym under section 19(1)(a) of the Work Health and Safety Act 2011 (Qld) (WHS Act), the Second Respondent took the reasonably practicable action of cancelling the Applicant's membership of the Gym. Simultaneously, the Second Respondent informed the Applicant that after considering the information provided by him about the alleged conduct of the First Respondent, it had decided to cancel the First Respondent's membership of the Gym.

The Second Respondent's actions regarding the Applicant's membership of the Gym: (a) had nothing to do with his complaints about the First Respondent's conduct, his male sex, nor any characteristic imputed to people of male sex; and (b) were taken for the sole reason of upholding its duties under the WHS Act, to ensure the health and safety of its workers while at work

[81] This invites findings of fact favourable to the YMCA Respondents based on submissions made for those parties as to what their case is, and why they acted as they did. That invitation is being extended without the Tribunal having the benefit of evidence on the issue, or that evidence being challenged. Indeed, this application is being determined on the papers. The relevant rest is whether there is a "high degree of certainty" that the Applicant's case will fail if it goes to trial. Since the Tribunal can only strike out the SOC on the basis that it does not disclose a reasonable cause of action if, on the face of the pleading, it is obvious that the claim is bound to fail and cannot be remedied by amendment. Secondly, if it has prospects of success, but the claim is not adequately expressed in the pleading, the duty of the Tribunal is to not dismiss the proceedings or the particular claim, but should grant leave to the Applicant to file an amended statement of claim.

[82] It may fairly be said that in relation to each of the complaints, there is little if any evidence which pointed directly to the conduct of any of the Respondents having been unequivocally or directly made on the basis of his sex as a male and in respect of which there was protection from discrimination under the AD Act.

[83] It may well be that the Applicant's case will be a circumstantial one, or dependent upon the Tribunal drawing inferences from the evidence with a view to establishing the requisite level of connection between the bases of relevant decisions, and there being some discriminatory basis for it.

[84] It is well established both in this and other jurisdictions in Australia where discrimination is alleged, that the applicant bears the onus of proof of direct discrimination. A respondent would bear the onus of showing that it may rely upon an exemption or exception which attaches to its conduct.[2]

[85] The difficulties which present themselves to an applicant seeking to prove discrimination by circumstantial evidence have been well recognised.[3] Discussion on that topic can be traced to the frequently referenced decision of Fullagar J in Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319 ("Arumugam") where the Court overturned a finding of unlawful discrimination based on inference. The case was one in which there was an allegation of racial discrimination because the applicant had not been successfully appointed to a professional position within a Government Department. Inferences were drawn as to the reason why the candidate was not successful and it was concluded that those were racially based. Fullagar J held as follows:

If the facts before explanation contain no direct proof of discrimination of the kind charged (be it political, sexual, racial, or impairment-grounded), the industrial tribunal may still be able to draw an inference of discrimination of the kind charged; if the proper inference in the absence of explanation is discrimination of the kind charged, and there is either no explanation or an unacceptable explanation, then the inference of discrimination of the kind charged will mean the complaint succeeds.

[86] A body of other judicial authority has had cause to consider and apply the approach of Fullagar J in Arumugam including Lightning Bolt Co Pty Ltd v Skinner & Anor [2002] QSC 62; Cocks Macnish & Anor v Biundo [2004] WASCA 194; Gama v Qantas Airways Limited (No. 2) [2006] FMCA 1767; Kapoor v Monash University [2001] VSCA 247; [2001] 4 VR 483.

[87] The approach to the drawing of inferences in discrimination cases was the subject of further careful analysis by Kiefel J in Sharma v Legal Aid Queensland [2001] FCA 1699; (2002) EOC 93-191 and in that matter on Appeal by the Full Federal Court [2001] FCA 1699. This too was a case involving alleged discrimination in employment on the basis of national origin. Kiefel J at the trial level accepted that statistical evidence "may be able to convey something about the likelihood of being not being advanced because of factors such as race or gender". She cited the decision in West Midlands Passenger Transport Executive v Singh [1988] 2 All ER 873 and noted that ultimately it was "a question of fact in each case".

[88] In the Full Court, the decision of Kiefel J was upheld, and the following comment was made in the joint judgment of the Court, at [40]- [41]:

It is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1997] UKHL 54; [1998] 2 All ER 953, 958. There may be cases in which the motivation is subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] UKHL 36; [1999] 3 WLR 425, 433. It was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-362. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugan [1988] VicRp 42; [1988] VR 319, 331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature.

In a case depending on circumstantial evidence, it is well established that the trier of fact must consider 'the weight which is to be given to the united force of all the circumstances put together'. One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone: Chamberlain v The Queen [No.2] (1983-1984) [1984] HCA 7; 153 CLR 521 at 535. It is the cumulative effect of the circumstances which is important, provided, of course, that the circumstances relied upon are established as facts.

[89] In many such cases there are real issues of proving causation or drawing inferences from proven facts. In a carefully written article entitled 'Reducing the Burden of Proving Discrimination in Australia' (2009) 31 Sydney Law Review page 579-605, the author, Dominique Allen, explained as follows:

The first obstacle the complainant faces is attempting to access relevant evidence. The respondent has what Laurence Lustgarten terms a 'monopoly of knowledge' about the process of decision-making that led to the complainant's treatment. Lustgarten describes it this way because the respondent controls the information that the complainant needs to establish their complaint. Furthermore, the respondent is not under any obligation to explain their decision. If there are witnesses, Lustgarten says they are usually what he terms 'interested parties', such as employees of the respondent, so they may not be interested in testifying against the respondent and jeopardising their own situation. The second obstacle for the complainant is that direct evidence may not exist. Discrimination is often unconscious, so the respondent may not have articulated a reason for their decision. Alternatively, the evidence may not be available. For instance, in regard to establishing proportionality in an indirect discrimination complaint, the necessary statistical data may not have been collected.

Without a 'smoking gun' or access to sufficient information, the complainant must rely on circumstantial evidence and ask the court to consider the 'cumulative effect' of the evidence. The court will be asked to draw an inference of discrimination based on the evidence adduced, even if, when viewed on its own, none of the evidence would have supported the inference. However, particularly with regard to race discrimination complaints, courts are reluctant to infer discrimination without sound evidence....

The respondent is not required to tender any evidence to refute the complaint or offer an explanation for their behaviour. In Arumugan, the Victorian Supreme Court said that an inference cannot be drawn from the respondent's failure to explain a decision.26 Therefore, the respondent can remain silent, forcing the complainant to discharge their burden and, if they do not, the respondent can make a 'no case' submission. (References omitted)

[90] On the issue of drawing inferences from the facts, according to oft-approved dicta of Street CJ in Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261 at [264]:

There must be evidence affording ground for treating it as a matter existing as a matter of inference and not of conjecture ... the existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability - a mere scintilla of probability such as would not warrant a finding in a civil action ... to such practical certainty as would justify a conviction in a criminal prosecution.

[91] In Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, Kitto J stated at [305]:

One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed...

[92] This is not the place to decide the merits of the Applicant's discrimination claim based on what the YMCA Respondents say they will prove.

[93] In my view, those are not matters to be determined summarily on an application of this kind.

[94] The real concern that the parties should have in relation to this matter, concerns the failure to identify specific conduct by any of the Respondents individually and to focus on how non-action in relation to a complaint on the evidence could have been on the basis that he was male.

[95] In the end, this is a relatively narrow case, which involves a circumstantial case. That person's acted or engaged in inaction in relation to a complaint that he had been sexually harassed on the basis of his sex and discriminated against him on that basis.

[96] It seems to me, without deciding the point, is that the evidence which the Applicant relies upon is minimal if not non-existent in terms of demonstrating that was the basis for any of this inaction.

[97] The Respondents put on a case saying that they did none of those things and somehow invite the Tribunal to decide the case by accepting the evidence of those witnesses and reject the Applicant's speculative account.

The strike out in relation to the victimization claim

[98] The other bases for the strike out application is that in relation to the complaint of victimisation it is submitted that the Applicant has failed to adequately particularise how the YMCA's decision to cancel his gym membership could have been an act of victimisation pursuant to section 130(1)(a)(ii) of the AD Act. It is submitted that the SOC is unclear on whether it is alleged that each of the YMCA Respondents has victimised the Applicant, or only the YMCA, and the extent to which (if at all) the Applicant seeks to rely on section 133(1) of the AD Act to argue that the Second Respondent victimised the Applicant as alleged.

[99] Under section 130 of the AD Act, victimisation happens if a respondent does an act, or threatens to do an act, to the detriment of another person (complainant):

(a) because the complainant, or a person associated with, or related to, the complainant:

(i) refused to do an act that would amount to a contravention of the AD Act;

(ii) in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the AD Act; or

(iii) is, has been, or intends to be, involved in a proceeding under the AD Act against any person; or

(b) because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned.

[100] As for these two arguments, I agree that the SOC is unclear on whether it is alleged that each of the YMCA Respondents has victimised the Applicant, or only the YMCA, and the extent to which (if at all) the Applicant seeks to rely on section 133(1) of the AD Act to argue that the Second Respondent victimised the Applicant as alleged.

[101] The first seems to invite me to decide the strike out application on the issue as if I had all the testimony that would have been in issue at a trial itself and prefer the YMCA Respondents' version of what happened and why.

[102] The YMCA Respondents argue that the Applicant claims his gym membership was terminated shortly after he made it clear to the YMCA that he intended to allege a contravention of the AD Act. The basis for this claim alleged by the Applicant is in paragraph 15 of his Statement, which says that he "believes the allegation [that he was aggressive and engaged in inappropriate conduct towards the Fifth Respondent as a reason for terminating his gym membership] is fabricated and that the real reason for the termination of his gym membership was because of his intention to raise an anti-discrimination complaint".

[103] The YMCA Respondents don't put on evidence in relation to that but point to their response to the Statement, filed 29 April 2024, which contends that:

(a) the Respondent's gym membership was terminated as the Applicants were in the process of considering the Applicant's most recent complaints about the former First Respondent of this case, Ellena De Jong, when the Applicant's inappropriate conduct towards the Fifth Respondent on 14 and 15 June 2022 occurred. The Applicant's conduct towards the Fifth Respondent caused her to feel concerned for her health and safety at her workplace, and contravened the terms and conditions of the Applicant's membership of and attendance at the gym;

(b) as a result, and in-keeping with its duties of care to the Fifth Respondent and other workers at the gym under section 19(1)(a) of the Work Health and Safety Act 2011 (Qld) (WHS Act), the Second Respondent took the reasonably practicable action of cancelling the Applicant's gym membership. Simultaneously, the Second Respondent informed the Applicant that after considering the information provided by him about the alleged conduct of Ms De Jong, it had decided to cancel Ms De Jong's gym membership; and

(c) the Second Respondent's actions regarding the Applicant's gym membership: (i) had nothing to do with his complaints about Ms De Jong's conduct, his male sex, nor any characteristic imputed to people of male sex; and (ii) were taken for the sole reason of upholding its duties under the WHS Act, to ensure the health and safety of its workers while at work.

[104] Again, in my view, this is not the place to decide the merits of the Applicant's victimisation based on what the YMCA Respondents say they will prove. In my view, those are not matters to be determined summarily on an application of this kind.

[105] Having said that I agree that the case he is advancing against each of the YMCA Respondents is devoid of requisite detail in the SOC or elsewhere. I accept that he has not provided a sufficient basis or particulars of how the YMCA Respondents or Mr Lynem did know or could have known of any intention held by the Applicant to raise an anti-discrimination complaint; despite having had ample opportunity to do so.

[106] He has not identified any communication or other means by which any of them might have had relevant knowledge and of what matters so as to satisfy what is required to prove victimisation on any of the bases set out in section 130 of the AD Act. There is some assertion that there was an oblique attempt by the Applicant to threaten the YMCA with media coverage about his concerns if the YMCA did not do as the Applicant wanted, supported by vague and passing references to the QHRC and the AD Act.

[107] In the end, if the Applicant wishes to proceed with his complaint although the YMCA says it does not supply goods or services or is excluded because it engages in that conduct for an excluded purpose, that is a matter for the Applicant to make decisions about. It should not be for this Tribunal to peremptorily decide that point, particularly since it will not result in a determination of all of the issues arising in the matter.

[108] Since the issues are relatively narrow, apart from the fact that the SOC does not identify the specific conduct being relied upon despite orders that those matters be identified, in my view it is appropriate that the matter be set down for a hearing and for further orders to compel compliance by the Applicant with the previous orders of the tribunal; and in particular the following orders that, in my view, he has not complied with or not adequately complied with in a way which would enable the Respondents to be properly informed of the case against them.

[109] The appropriate course is for the following orders to be made:

(a) I dismiss the Applicant's amended application filed 13 December 2024.

(b) I dismiss the YMCA Respondents' application to strike out the Statement of Contentions filed on 21 March 2025.

[110] I give the Applicant leave to file and serve, and I order that within 21 days of the making of these orders, that the Applicant file and serve an Amended Statement of Contentions, which sets out in the specific ways set out below, with respect to the matters the subject of the referral from the Queensland Human Rights Commission alleging direct discrimination and victimisation:

(a) The material facts relied upon to establish the conduct allegedly constituting direct discrimination against him by each of the Young Men's Christian Association of Brisbane, Michael Tsiamis, Philip Lynem and Suzanne Reilly and sets out the legal foundation for such a claim and the relief or remedies sought in respect of it;

(b) That his sex as a male is the sole attribute which is the basis for the complaint;

(c) That the discrimination alleged is direct only;

(d) Whether it is alleged that each of Young Men's Christian Association of Brisbane, Michael Tsiamis, Philip Lynem and Suzanne Reilly directly discriminated against the Applicant or only the Young Men's Christian Association;

(e) What was the conduct alleged to be an ongoing failure of the Young Men's Christian Association of Brisbane, Michael Tsiamis, Philip Lynem and Suzanne Reilly to appropriately or effectively address his complaints or provide him with any means of support in regards to this harassment;

(f) What was the conduct that constituted a failure to prevent discrimination from occurring on the YMCA premises allegedly enabling the harassment to continue and fostering an environment that was unsafe and discriminatory;

(g) How conduct that constituted a failure to prevent discrimination from occurring on the YMCA premises constituted direct discrimination;

(h) Under the heading "Legal Basis of the Claim, the SOC contends as follows:

(i) Insofar as it is alleged that the YMCA is responsible for the acts and defaults of its employees the Third, Fourth and Fifth Respondents, pursuant to section 133(1) of the Ad Act how is it contended if it be the case that the YMCA is responsible for the acts and defaults of the former First Respondent;

(j) What is the particular conduct of the natural persons, the Third, Fourth and Fifth Respondents which was discriminatory, and how it was caught by the AD Act as unlawful or in what area of activity any of them was engaged in;

(k) How the Third, Fourth and Fifth Respondents as employees of an organisation that engages in an area of activity individually also allegedly engage in that activity when they work for the employer;

(l) The area of activity in which discrimination has occurred and specifically whether the sex discrimination is alleged to have been in the area of goods and services, and by a club in membership and affairs;

(m) How the sex discrimination alleged to have been engaged in by the Young Men's Christian Association of Brisbane, Michael Tsiamis, Philip Lynem and Suzanne Reilly was committed individually by each of them;

(n) How the sex discrimination alleged to have been engaged in by the Young Men's Christian Association of Brisbane, Michael Tsiamis, Philip Lynem and Suzanne Reilly was committed individually in the area of goods and services and/or by a club in membership and affairs and how they accrue liability individually;

(o) How the Applicant was treated less favourably compared to another person who is not male, by each of the Young Men's Christian Association of Brisbane, Michael Tsiamis, Philip Lynem and Suzanne Reilly was committed individually the Respondents individually;

(p) Which of the Young Men's Christian Association of Brisbane, Michael Tsiamis, Philip Lynem and Suzanne Reilly did not take any action in relation to his complaint for more than six months and what action should they have taken;

(q) Who asked him to attend a meeting with the person accused of harassing him;

(r) How was the termination of his membership of the gym on spurious grounds;

(s) Which of the Young Men's Christian Association of Brisbane, Michael Tsiamis, Philip Lynem and Suzanne Reilly terminated his membership of the gym and in respect of each of them what did each do to terminate it;

(t) How each of the Young Men's Christian Association of Brisbane, Michael Tsiamis, Philip Lynem and Suzanne Reilly knew or could have known of any intention held by the Applicant to raise an anti-discrimination complaint;

(u) In respect of the victimisation claim, which identifies any communication or other means by which each of the Young Men's Christian Association of Brisbane, Michael Tsiamis, Philip Lynem and Suzanne Reilly had or is alleged to have had knowledge and of what matters so as to satisfy what is required to prove victimisation on any of the bases set out in section 130 of the AD Act;

(v) In respect of the victimisation claim whether it is alleged that each of the YMCA Respondents has victimised the Applicant, or only the YMCA, and the extent to which (if at all) the Applicant seeks to rely on section 133(1) of the AD Act to argue that the Second Respondent victimised the Applicant as alleged;

(w) What the basis for the claim for general damages for psychological injury, distress, hurt and humiliation, damages for medical expenses incurred, damages for the extra costs incurred by reason of having to join a different gym is in respect of each of the claims made, and how they were caused by what conduct of each Respondent individually;

(x) Whether he continues to seek an order under section 114(b) of the QCAT Act that his membership of the gym be reinstated and why, and against whom he is seeking that order;

(y) Particulars of the way in which the alleged act of victimisation, or threat to do an act of victimisation, is to his detriment;

(z) The reasons upon which each of the Respondents each engaged in the alleged acts of victimisation, or threat to do an act of victimisation, to his detriment, by reference to s 130(1) of the AD Act in particular setting out whether it is because Lorenzo Guerrini, or a person associated with or related to Lorenzo Guerrini:

(i) refused to do an act that would amount to a contravention of the Act, specifying the act and the section/s of the Act that would be contravened; or

(ii) alleged or intended to allege that a person committed an act that would amount to a contravention of the Act, setting out:

1. how/why the allegation or intention to make the allegation is in good faith;

2. the allegation;

3. whether the allegation was made or how an intention to make the allegation was conveyed to Ellena De Jong, the Young Men's Christian Association of Brisbane, Michael Tsiamis, Philip Lynem and Suzanne Reilly;

4. the nature of the act or threat to do the act;

5. what section of the Act would be contravened; or

(iii) is or has been or intends to be involved in a proceeding under the Act against any person, stating the nature of the involvement including by reference to s 130(2) of the Act; or

(iv) the factual basis upon which it is alleged that, the Young Men's Christian Association of Brisbane, Michael Tsiamis, Philip Lynem and Suzanne Reilly believed that Lorenzo Guerrini or a person associated with, or related to Lorenzo Guerrini was doing, had done, or intended to do one of the things mentioned in (i), (ii) (iii) above, setting out the basis for that belief.

[111] The parties have liberty to apply in respect of any other consequential or other orders which might be required to be made.

[1] And see also Fitz-Gibbon & Park v Liu [2022] QCAT 259 for a recent application of these principles.

[2] See Anti-Discrimination Act 1991 (Qld) s 204; O'Callaghan v Loder [1984] EOC 92-023, 75,511; Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537, [132].

[3] See Jonathon Hunyor, 'Skin-Deep: Proof and Inferences of Racial Discrimination' [2003] SydLawRw 24; (2003) 25(4) Sydney Law Review 535.