Hickson-Jamieson v University of the Sunshine Coast & Ors [2020] QCAT 523

Hickson-Jamieson v University of the Sunshine Coast & Ors [2020] QCAT 523 | Case summary | Zoe

[36]

[1] The First and Second Respondents have filed an application dated 8 May 2020 seeking to strike out and/or dismiss the Applicant's claim as set out in her amended Statement of Contentions filed 7 June 2019 (ASOC), pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). In effect they seek summary dismissal of the entire claim brought in this Tribunal. The Third and Fourth Respondents have also filed an application dated 7 May 2020 to strike out and/or dismiss the Applicant's claim as set out in her ASOC, also pursuant to s 47 of the QCAT Act. Some of the bases for those two applications correspond, but in material respects they do not.
[2] For their purposes the First and Second Respondents rely on affidavits of the First Respondent Dr Kenneth Young, Shelley Louise Dole, Tammy Ann Thompson, Alexandra Sharp, and Jane Anderson. The Third and Fourth Respondents rely on the affidavits of the Fourth Respondent and Deanne Fishburn. Those seven affidavits are the affidavits that those parties were to rely on at a trial or full merits hearing. I am invited by the Respondents to have regard to all of that evidence in the strike out applications. It is a matter that has troubled me considerably that in order to decide the strike out application, the Tribunal has been in effect required to analyse all the testimony that would have been in issue at a trial itself.
[3] The Applicant filed her original application in the Tribunal on 21 March 2018 and it has now been ongoing for more than two and a half years. The Respondents contend that the Applicant has been on notice since at least April 2018, of what were said to be fundamental deficiencies regarding her application and given opportunities by the Tribunal to amend her claim to address such deficiencies.
[4] The First and Second Respondents have previously applied to strike out the claim. It was submitted before me that the Applicant was given a further opportunity subsequent to that strike out application, to again amend her claim. In reasons delivered by Member Cranwell on 26 February 2019, this tribunal rejected submissions that the Applicant had engaged in an abuse of process in the manner in which she had conducted the matter, and was not prepared to accept that she was the cause of delays that had occurred. He rejected arguments, such as the alleged failure by the Applicant to mitigate her loss as not being a basis to summarily dismiss the application. He also rejected the contention that her case was so obviously lacking in merit as against the First and Second Respondents that it should be struck out. As the reasons observe, the Third and Fourth Respondents did not put forward any differing arguments than those put up by the First and Second Respondents, in that earlier strike out application, merely adopting them. In large part, but not entirely, the same arguments as were rejected by Member Cranwell in the reasons of 26 February 2019 have been remade to me, with other supplemental argument accompanying.
[5] The First and Second Respondents filed and rely in their applications before me of some 52 pages of written submissions. The essence of the arguments put is that despite the Applicant being granted "an inordinate number of opportunities to do so, and consistently being late with compliance or seeking extensions of time after deadlines have passed above and contrary to what the Applicant asserts about this issue), the Applicant has failed in every material respect" to:

[42]

[6] QCAT has the power to bring an early end to proceedings under s 47 of the QCAT Act if the Tribunal considers the proceeding is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process.
[7] The First and Second Respondents' submissions are almost entirely devoid of references to any case law authority in support of any of the arguments put forward, or as to the correct approach to be adopted in an application of this type.
[8] I will set out in what follows what the settled approach is.
[9] The power to strike out is to be used sparingly and only in clear cases. To summarily dispose of the proceedings is one which calls for the exercise of "exceptional caution": General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 (at 129) per Barwick CJ.
[10] The power cannot be exercised "once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it": Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 (at 91) per Dixon J.
[11] It is only to be exercised "when the action is clearly without foundation and ... to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff": Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 (at 720) per Dixon J.
[12] The "Court is not concluded by the manner in which the litigant formulates his case in his pleadings": Cox v Journeax (No 2) (at 720) per Dixon J.
[13] The fatal defects in an Applicant's case must be very clear before the Court will intervene to strike out a pleading: Shaw v State of New South Wales [2012] NSWCA 102 (at [30]ff) per Barrett JA (Beazley, McColl, Macfarlan JJA and McClellan CJ at CL agreeing); Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 (at 944 - 945) per Cross J.
[14] A "high degree of certainty" that the Applicant's case will fail if it goes to trial is required: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 (at [57]) per Gaudron, McHugh, Gummow and Hayne JJ. Hence a Court will only strike out the pleading 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.
[15] If it has prospects of success, but the claim is not adequately expressed in the pleading, the Court should not dismiss the proceedings or the particular claim, but should grant leave to the Applicant to file an amended statement of claim or cross-claim (in the case of an application in respect of a cross-claim). See generally Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 943-944.
[16] An application to strike out a part of a pleading is inappropriate where to resolve the argument the Court needs to consider disputed questions of fact, or review the entirety of the Applicant's case, having regard to all of the evidence adduced at trial in order to resolve the alleged inadequacies, or to determine complex questions of law which are best left to final submissions at a trial. Sadly, in this case the Tribunal has been invited to consider disputed questions of fact, or review the entirety of the Applicant's case, having regard to all of the evidence filed so far. In this Tribunal it is well recognised that there is a duty on an Applicant to actively progress matters to a hearing.
[17] In Gough v State of Queensland [2013] QCAT 320 Senior Member Endicott said in relation to a strike out that anti-discrimination cases are not dismissed lightly as the law expects that everyone should have the right to equal protection under the law.

[47]

[19] In very broad terms, the factual background to the application by Ms Hickson- Jamieson in this Tribunal arises out of the fact that the Applicant was, in 2015 and early 2016, enrolled in studies to receive a Graduate Diploma in Education at the University of the Sunshine Coast, which is the Second Respondent to the application. Had she received the Graduate Diploma for which she was enrolled, she would have been entitled, assuming other procedural requirements were met, to be a secondary school teacher. The Applicant is the mother of two children for whom she cares, one of whom suffers from a seizure disorder and an intellectual impairment.
[20] It is common ground that for the purposes of completing the course for the Diploma, she was required to participate in and complete a period of supervised professional experience (which I shall refer to in these reasons as professional experience or SPE) at a particular school.
[21] It is common ground that the Fourth Respondent has responsibility for setting the requirements for registration as a teacher in Queensland, including accreditation. To be registered as a teacher in Queensland and teach in a Queensland School, a person must meet the relevant requirements established by the Fourth Respondent. One of those requirements is the completion of an accredited education course. The Graduate Diploma in Education (Secondary) (the Diploma) offered by the Second Respondent was one such course. The Diploma was accredited by the Fourth Respondent on 5 December 2014. As part of the accreditation, the Fourth Respondent approves the course content and any significant changes must be approved by the Fourth Respondent.
[22] In broad terms, the Fourth Respondent, the Queensland College of Teachers, is established by statute, under the Education (Queensland College of Teachers) Act 2005 (Qld). Under Chapter 10 of that Act, the College of Teachers is established, and it has allocated functions concerning registration of teachers and giving permission for teachers to teach, testing applicants for registration, certification of teachers, and approval of pre-service teacher education programs. It was in the latter capacity in relation to the approval of pre-service teacher education programs that it was in communication with the Applicant during 2015 and 2016.
[23] According to uncontroversial evidence, teacher education programs are nationally accredited, and one of the requirements, which is a minimum requirement set nationally and recorded in a relevant standard, is that trainee teachers perform a minimum of 60 days' supervised teaching experience for a graduate course. That was a position in 2015 and 2016 when the events relevant to this claim occurred.
[24] The Queensland College of Teachers has the capacity to approve particular courses at educational institutions, and in this particular case the College of Teachers had approved the course "Graduate Diploma in Education (Secondary)" at the First Respondent's University. The approved course at the Second Respondent University required 62 days of SPE/professional experience or under two modules described as "teaching practice".
[25] It is common ground that in or about September 2015, the Applicant was placed at Maroochydore State High School to complete the SPE requirement for one of the courses she was enrolled in. The Applicant had requested that for her SPE she be placed in a school that was close to where her son was going to school initially verbally and then through the SPE form. The placement at Maroochydore State High School met that criteria.
[26] It is uncontroversial that the SPE for the purposes of the Diploma was performed at a placement school with registered teachers conducting supervision of the students undertaking the SPE. Schools and registered teachers participate in the SPE voluntarily, that is the School and supervising teachers offer their time for furthering the education of preservice teachers. For the purposes of the two relevant courses the SPE involved a 31-day block of full-time supervised teaching in order to meet QCT's SPE requirements. This was outlined in USC's University Graduate Diploma of Education SPE Handbook. As outlined in the Handbook, the SPE requires that students arrive at the school at which they are placed at least 30 minutes before the SPE site day begins and remain behind after the formal school period to attend staff meetings, review lessons and meet with the supervising teacher as required. Students are also expected to, proactively, make contact with the SPE school once placement is confirmed to make a time to meet with their supervising Teacher or coordinator in order to commence the necessary planning and preparation for teaching.
[27] According to the uncontroversial evidence of the Director of the Queensland College of Teachers, Ms Fishburn, at the time of the relevant events, there was no approved Queensland program that accommodated a part-time pathway for completing the professional experience component. On her evidence, however, the College of Teachers had previously considered and approved adjustments for professional experience requirements at universities in exceptional circumstances, examples of which included permitting part-time completion to a student living with a disability and another involving a student with a hearing impairment.
[28] It is also uncontroversial that if a student wished to seek a variation to the SPE, that this must be approved by the Fourth Respondent. If the First Respondent permitted a student to vary the SPE without first seeking the Fourth Respondent's approval, there is seen to be a risk that the student would not be granted provisional teacher registration on graduation.
[29] The practice, disclosed by apparently uncontroversial evidence, is that if a student feels, for their particular personal circumstances, that they cannot complete SPE in any semester, they have enough time to make alternative arrangements or otherwise defer the relevant course to another semester. Minor adjustments necessary because of students not being able to attend on a particular day due to illness or other exceptional circumstances, are contemplated by the student being able to apply for an absence and a corresponding extension to their SPE placement. That is accommodated where such adjustments cause little disruption to their SPE and do not alter the inherent requirements. Where adjustments that would otherwise impact on whether the student can meet the approved SPE requirements are sought, these need to be approved by Fourth Respondent, on the recommendation of the Second Respondent University. In this case, the Second Respondent did not recommend any adjustment to accommodate the Applicant's circumstances.
[30] The Applicant ultimately accepted her placement at Maroochydore State High School for the purposes of the SPE. The Respondents contend that at no time prior to the commencement of the SPE did the Applicant advise the First Respondent of the particular circumstances of her son, or otherwise provide the First Respondent with any information other than the fact that she needed to be placed in close proximity to her home and her son's school. The Applicant also did not make contact with the First Respondent to raise issues with the SPE placement at Maroochydore State High School or to suggest that her son's circumstances had changed such that it would impact on her being able to complete the SPE. The Applicant, along with 14 other students, was due to commence her SPE on 10 September 2015, and be completed by 20 November 2015. However, on 8 September 2015, the Applicant wrote to Maroochydore State High School and advised them that she would not be attending for SPE on 10 September.
[31] On 16 September 2015, the Applicant met with the First Respondent and requested to change her placement. She said that she was the carer for her son who had special needs but asked the Second Respondent to keep that information confidential.
[32] On 18 September 2015, the First Respondent wrote to the Applicant to schedule a meeting to discuss a number of concerns that had been raised by Maroochydore State High School about her lack of performance. A meeting was then held.
[33] The Applicant attended Maroochydore State High School for two days on 8 and 9 October 2015. Between 10 September 2015 and 15 October 2015, the Applicant only attended for four days of the scheduled SPE. On 15 October 2015, the Applicant wrote to the First Respondent and advised him she had not prepared the timetable as they had discussed.
[34] In October 2015, the Applicant was provided with a timetable of classes she needed to attend, given some flexibility regarding her start times at the beginning of the day, and told that the school would ensure the class the Applicant would teach would be in the middle of the day. The Applicant did not attend any further SPE days at the school.
[35] On 19 October 2015, the Applicant met with the Deputy Principal of Maroochydore State High School to discuss possible alternative SPE arrangements or relocating to another school. The Applicant asked whether they could accommodate restricted hours and days of SPE, but the school could not.
[36] On 23 October 2015, the Applicant's placement at Maroochydore State High School was terminated and she was advised she would receive a fail grade for the course. The principal reason given for terminating the placement was because the Applicant was not able to meet the requirements of the placement, including arriving on time and staying after school when required.
[37] In Semester 1, 2016, the Applicant again enrolled to undertake the same course as previously. On 29 February 2016, the Second Respondent wrote to the Applicant and advised her that he was willing to progress any application for proposed adjustments to her SPE requirements. The Second Respondent told the Applicant that she would need approval from the Fourth Respondent and would need to provide details of any accommodations sought, and how this would allow her to complete the mandatory 31-day SPE requirement. On 4 March 2016, the Applicant provided her SPE form to Ms Thompson and nominated five schools. In her form, the Applicant indicated that she could not attend a school that was more than 20 minutes from the Special School which her son attended, due to the fact that she was a carer for her son.
[38] The Applicant made reference to a so-described Learning Access Plan several times. The Respondents contend that the Applicant did not at any time make an application for a Learning Access Plan, but such a Plan was not necessary for the Applicant's purposes, given that any student can seek reasonable academic adjustments and a Learning Access Plan was not required for adjustments relating to carers.
[39] It is critical under the Anti-Discrimination Act 1991 (Qld) (the AD Act) to note that any complaint was required to be made within 12 months of the relevant discriminatory conduct. Since the complaint was made on 9 March 2017, it could only concern discriminatory conduct on or after 9 March 2016. The referral of the matter to this Tribunal was only of those elements of the complaint that were not out of time. That distinction is not apparently drawn in the way the Applicant seeks to advance her case, and it seems to include allegations concerning discriminatory conduct which occurred before 9 March 2016. Whilst this factual background may be relevant, and included in the narrative set out in the points of contention, to discriminatory conduct which occurred on or after 9 March 2016, matters that are said to have occurred from June 2015 and in or about October 2015 are out of time, were not referred to the Tribunal and were beyond the jurisdiction of the Tribunal. On that basis, any claims that are said to have arisen prior to 9 March 2016 must be struck out.
[40] The events I now describe occurred within time, i.e. on or after 9 March 2016. Those previously set out above do not.
[41] In March 2016, the Applicant requested a placement within 20 minutes of her son's Special School on the basis that she was a carer for her son. On 10 March 2016, Ms Thompson asked the Applicant whether she would consider going to the Caloundra State High School. But the Applicant said that would not be convenient to her because of the time at which classes at that school would finish.
[42] On 24 March 2016, the Second Respondent wrote to the Applicant and observed that as they cannot accommodate SPE for her within the dates and times that she had specified in her previous emails, it may be better for her to withdraw from the subject, as the Applicant indicated in her email. Without making any further contact with the Second Respondent or Ms Thompson, on 8 April 2016, the last day for withdrawal from enrolment in the subject, the Applicant wrote to the Second Respondent University requesting an adjustment to her SPE.
[43] On 15 April 2016, the Applicant wrote to the Second Respondent University, via Ms Thompson, asking whether her request for an adjustment to the SPE had been approved. Ms Thompson replied that the Fourth Respondent needed to approve an alteration to the conditions of the SPE placement; and Ms Thompson could only approach schools to negotiate on an altered SPE placement arrangement once approval had been given by the Fourth Respondent to alter the SPE requirement.
[44] On 18 April 2016, the Applicant then emailed the Second Respondent University via Professor Dole again and said that she had tried to find out which school she had been allocated to for the purposes of her SPE placement, but that she was told she could not be allocated to a school until the Fourth Respondent approved her placement. That same day, Professor Dole wrote back and said that in order for the First Respondent to make an application to the Fourth Respondent to alter the SPE placement arrangements on the Applicant's behalf, the Applicant needed to provide specific information.
[45] The objective documentary evidence suggests that the Applicant did not, at any time, provide that further information to the First Respondent to substantiate any formal submission in relation to a change of SPE requirements for the subject and therefore the Applicant was not allocated to a school for the purposes of the SPE requirement in the subject in 2016. She subsequently received a fail grade for the course as she did not withdraw prior to the requisite date and did not complete SPE.
[46] The Applicant alleges inter alia that her SPE placement in 2015 was terminated because the Respondents refused to accommodate her request.
[47] She alleges that the First Respondent discriminated against her by reason of his email dated 24 March 2016. She alleges that she has not been able to complete her SPE placement, because of the conduct of the Respondents. She alleges she has suffered loss and damage because she is now unable to graduate from the Diploma and now the course requirements have changed. She alleges that the Respondents denied her a Learning Assistance Plan and that the Respondents lost her documents, and did not support her.

[59]

[54] The most recent attempt at articulating her case apart from what was put in argument in resisting the present application, appears in the Applicant's Statement of Contentions served on the other parties on 7 June 2019. It appears that this Statement of Contentions which she calls her "Revised Statement of Contentions", and which I am calling the ASOC, was the result of her obtaining legal advice. In an email to the other parties of 7 June 2019, she said she was able to obtain legal advice on 5 June 2019 and had "applied that advice".
[55] The ASOC is in many respects identical to her original Statement of Contentions dated 23 August 2018. The revised Statement of Contentions is not marked up to show where it differs from the earlier Statement of Contentions.
[56] After citing relatively innocuous facts it contends at paragraph 45 and 46 in relation to the conduct of the College of Teachers and Ms Capeness that she was subjected to direct discrimination in being told that she ought to "reconsider whether she should be a registered teacher given her family's circumstances". I deal with whether this is capable of constituting direct discrimination later.
[57] The second allegation which is difficult to grasp conceptually, is that a person unidentified at the Second Respondent University, that is, it is not said who it was, engaged in discriminatory conduct, because the Second Respondent University's procedure was not followed when the Applicant's placement at Maroochydore State High School was terminated. It is not apparent how the failure to comply with a procedure in and of itself constitutes direct discrimination and the treatment of her less favourably than other students would have been treated. Those respects in which the procedure is said not to have been followed concerns whether a meeting or discussion of other options were offered to her prior to the placement being terminated, and what is said to be her not being initially offered or provided with a referral to student services or counselling services.
[58] Again, it is not immediately obvious, or even upon careful review how not presenting those options, was direct discrimination against her, even if the procedures of the Second Respondent University did contemplate those events occurring.
[59] Entirely absent from the case that she puts is that the Second Respondent University's conduct in that regard occurred on the basis of the protected attribute, namely her parental responsibilities.
[60] In paragraphs 47 to 55, she seeks to articulate a case of indirect discrimination. What is said is not directed to the conduct of any particular Respondent except the Fourth Respondent, although there is a rolled-up proposition in paragraph 55 that both the Second Respondent University, and the College of Teachers, breached s 39 of the Act as educational authorities by treating her unfavourably in connection with her training and instruction. No particular conduct was identified in that regard.
[61] Demonstrably one of the matters that she relies upon, as set out in paragraph 54 of her ASOC, concerns events which are out of time in that they occurred in 2015, and no times are put on any of the other matters referred in that paragraph, so it is not immediately obvious whether they occurred within time or not. She references a request to complete the part-time modification at the suggestion of the College of Teachers, however the Second Respondent University "imposed the full-time term requirement" and the Second Respondent University did not "put the Applicant's modification request forward to QTC". These complaints all appear to be directed solely to the Fourth Respondent. None of them appear to be directed to any of the other Respondents.

[61]

[62] The First Respondent, Dr Young, is a lecturer, and the Education and Program Coordinator at the Second Respondent University.
[63] As the Program Coordinator, he is required to have a working knowledge of the accreditation requirements of the Graduate Diploma in Education (Secondary) that the Applicant was enrolled in at the Second Respondent University.
[64] The elements of the Diploma course were accredited by the College of Teachers and in that context, the College of Teachers approves the course content. The course content included two compulsory courses which I have already described, as essentially "Prac-teaching". Therefore the course requirements of the Second Respondent University were that all students undertaking the Diploma course do those two practice subjects. The SPE was set out in detail in the University handbook, and as I have described elsewhere specific requirements and attributes. There is nothing to suggest that Dr Young had any discretionary power to waive any of those requirements, whether in his role as the Program Coordinator, or otherwise.
[65] Therefore, the suggestion that he, or the University vicariously, directly discriminated against the Applicant by enforcing the course requirements in that regard is fundamentally misconceived. The course requirements were not brought into existence because of her, or because of her attribute or in any way enforced in a way which was in any way different to the way the course requirements were enforced against all other students.
[66] I will turn to the alternative argument that there was some indirect discrimination against her on the University's part by not modifying the requirements where it would have been reasonable to have done so in a moment. Suffice it to say that the notion that simply by managing the requirements of the University in relation to Prac-teaching for students enrolled in those subjects cannot amount to discrimination on the part of Dr Young. Conceptually it might amount to indirect discrimination on the part of the Second Respondent University which ultimately was the entity which potentially had the power to waive or modify the requirements in her particular circumstances, circumstances in which it was unreasonable that they did not.
[67] There is no specific conduct at all alleged against the First Respondent in the ASOC. The evidence though shows that the First Respondent wrote the Applicant a letter on 22 March 2016. In that letter, in his capacity as the program coordinator, Dr Young, wrote to the Applicant stating that for particular reasons, he was not going to approve and did not approve her request for an adjusted program for her SPE. On that basis he said that the Second Respondent University could not "progress" her case to the College of Teachers. He urged her effectively to look at other avenues that might provide her with financial support to meet the program requirements, which included the necessity for full days of attendance. In other words, he was not prepared to alter the specific program requirements or to advance the case for the QTC to allow that to occur.
[68] The basis upon which he explained his position in that letter was that the Queensland College of Teachers had advised that it was an essential program requirement that the SPE be taken in a block, not broken-up, as she had requested over six weeks' placement for three days at a time followed by two weeks' placement of five days per week and other days here and there. He seemed to take the view based on the advice of others that a recommendation to adjust an SPE placement could not occur if it altered the "inherent or essential requirements of the placement program".
[69] He refers in that letter to having spoken to the Third Respondent Ms Capeness on behalf of the College of Teachers, and her advice was that the "block practicums are the most appropriate means for pre-service teachers to demonstrate attainment of the Australian Professional Standards for Teachers at the Graduate level". He was not apparently closing off any possible adjustments to the program, but noted that it had to be approved by the Second Respondent University program coordinator and then sent to the QTC for their approval. Assuming that to be true, the Second Respondent had some control or influence over the situation.
[70] The second issue he mentioned concerned nuts and bolts issues about particular schools that she might have been able to attend, but he was concerned about her inability to attend a full day and in his view, as he had previously advised her, it was necessary for her to be in attendance at the school 30 minutes prior to the beginning and 30 minutes after the conclusion of the school day for specified reasons.
[71] Since Dr Young was not satisfied that she could attend full days as required by the program, he did not approve her request for an adjusted program.
[72] A reading of that letter, together with contentions made against the Second Respondent University, does not self-evidently identify any case that she seeks to bring against Mr Young personally.
[73] The Applicant does not make any allegation that the First Respondent himself engaged in any discriminatory conduct, either directly or indirectly. If an employee or officer of an organisation, in the course of their duties, writes a letter or makes a decision on behalf of their employer, it does not necessarily follow, that without more that individual has personally engaged in discriminatory conduct.

[83]

The words "on the ground of the status or by reason of the private life of the other person" in s 17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against. I am unable to accept the statement of Lord Goff of Chieveley in R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 at 1193-4, and the statements of Deane and Gaudron JJ (at CLR 176-7) in Banovic concerning intention or motive to discriminate if they are intended to suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator (the discriminator) be actuated by status or private life in a provision such as s 17(1).

With great respect to Deane and Gaudron JJ, I think that the examples given by them in Banovic as to intention or motive not being a necessary condition of liability are cases which are caught by the concept of indirect discrimination which fall within section 17(5). The words "on the ground of" and "by reason of" require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act (the victim). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did. Of course, in determining whether a person has been treated differently "on the ground of" status or private life, the Board is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then "the ground of" the act of the discriminator was the status or private life of the victim: see Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61, per Mahoney JA at 66. But if the discriminator would have acted in the way in which he or she did, irrespective of the factor of status or private life, then the discriminator has not acted "on the ground of the status or by reason of the private life" of the victim. Likewise, if the discriminator genuinely acts on a non-discriminatory ground, then he or she does not act on the ground of status or private life even though the effect of the act may impact differently on those with a different status or private life. Thus, in Director-General of Education v Breen (1982) 2 IR 93, the Court of Appeal of New South Wales held that the Director-General had not acted "on the ground of sex" in selecting principals for non-secondary schools from a primary school promotions list rather than an infant's school promotions list even though the use of the former list favoured male teachers. Only 1.5 per cent of teachers on the infants list were male but on the primary schools list 39 per cent of the teachers were male. Absent an intention to use the primary list to disadvantage females, discrimination in a case such as Breen can be established only by relying on a provision similar to section 17(5). At the relevant time, however, the Act had no such equivalent.

The effect of the introductory words of section 17(5), however, is that an act which falls within that sub- section is deemed for the purpose of section 17(1) to constitute treating "the other person less favourably than the first-mentioned person treats or would treat a person of a different status or with a different private life". If the alleged discriminator has in fact treated the other person "less favourably", in the circumstances specified in section 17(1), then discrimination is made out and section 17(5) is irrelevant. Section 17(5), therefore, operates only in situations where section 17(1) is inapplicable. The hypothesis upon which section 17(5) is built is that the alleged discriminator has not in fact treated the other person "less favourably". Yet discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different. Thus, both direct and indirect discrimination involve the notion of one person being treated "less favourably" than another.

How then can a case of indirect discrimination come within section 17(5) and yet not come within section 17(1)? The answer is that in section 17(5) "discrimination" is defined in an artificial sense and is dealing with situations where a requirement or condition is imposed equally but has an adverse or more adverse effect on persons of a particular status or with a different private life. A person may be guilty of discrimination under section 17(5) although he or she was not actuated in any way by status or private life.

[111]

[164] His Honour said that motive and purpose should be treated as largely irrelevant so long as it can be shown that the person charged intended to do an act that in fact amounts to unlawful discrimination.

[165] It is true that statements of Toohey J and Gummow J in IW v City of Perth might appear to support a "but for" test in discrimination cases. Kirby J, after referring to the "reasons for the conduct of the alleged discriminator", said that the "but for" test applied by the House of Lords in James and by this Court in Banovic and Waters was "the correct test". In IW v City of Perth, however, the references to the "but for" test were expressed in relation to a decision of a corporate body that was made by its Councillors casting votes.

[166] The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act. The Commissioner appears to have wrongly characterised the principle that he applied - which was the correct principle. He correctly held that the benevolent motive of the principal did not excuse the discriminatory treatment of Mr Hoggan.

[167] The Commissioner also correctly found that, because Mr Hoggan was treated less favourably because of his behaviour, he was discriminated against on the ground of his disability. Mr Hoggan's behaviour is a manifestation of his disability. In X v McHugh (Auditor-General for the State of Tasmania), Sir Ronald Wilson said that it is enough if an employer is shown to have discriminated because of a manifestation of a disability. The decision in X v McHugh was followed in Y v Australia Post where the Commission said:

[114]

[101] As Justice McHugh said in Waters v Public Transport Corporation "on the ground of" and "by reason of" require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of "the victim". The protected attribute, to use the language of the Queensland Act must be at least one of the factors which moved the discriminator to act as he or she did. And as his Honour said, of course, in determining whether a person has been treated differently "on the ground of" that matter this Tribunal is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then "the ground of" the act of the discriminator was the status or private life of the victim.
[102] Having full regard to what I have already identified as the proper approach to be taken when considering a strike out application under s 47 of the QCAT Act and the requirement to not exercise that power once it appears there is a real question to be determined on fact or law, and when the action is clearly without foundation, it seems to me that whichever of the versions of the case the Applicant seeks to bring against the Second Respondent University, she cannot establish the fundamental elements that are required to be established to make out a case of direct discrimination. There is no evidence, circumstantial, documentary or otherwise direct which established that any decision of any kind made by the Second Respondent University or its staff in relation to the categories of alleged direct discrimination, even if they occurred, could satisfy the requirements that I have described that that conduct was on the basis of her attribute.
[103] The proposition that in some way or another it was on the basis of her attribute as a person with parental responsibilities is founded upon nothing more than assertion or assumption unsupported by any evidence. It necessarily follows that the Applicant's case for direct discrimination by the Second Respondent is struck out, both in respect of those elements of it which are out of time, and those which are not out of time.

[116]

[104] The nub of her case on indirect discrimination appears in paragraph 53 of her ASOC and that is that it was imposing the condition that she complete a six-week practical placement at Maroochydore State High School with which she could not comply as a result of her parental status.
[105] As I have identified already, the elements are certainly lacking in detail and there is no contention as to why it is that the requirement to place her in a six-week practical placement at that school was not reasonable. As I mention elsewhere in these reasons, the onus of proof that the imposition of a term is reasonable lies with the party imposing it. An Applicant who contends for an indirect discrimination case need still identify why it was that imposition of the term was not reasonable, and to set out in points of contention, and in any witness statements to be relied upon, in what respects it is not reasonable.
[106] As I have said, doing the best I can with the case which the Applicant seeks to articulate as founding an indirect discrimination case against the University, the case is that it indirectly discriminated against her by requiring her to complete the necessary six week practical placement requirements of the subject. An ancillary aspect of that indirect discrimination was not submitting her request to modify that placement requirement to the College of Teachers.
[107] There are many aspects of the way that she has articulated this case which raise concern as to whether it has any material prospects whatsoever. Not the least of matters of concern are the factual issues that I have already identified as to whether she actually provided sufficient information to the Second Respondent University to permit it to even consider allowing her to complete or modify the practical placement course, or to submit to the College of Teachers that there be a modified placement.
[108] Whilst I have very real concerns about both the way in which she has sought to articulate this case after having had many opportunities to do so and a real concern that the factual basis for her case is lacking in substance, in my view it is not appropriate that this aspect of her case be struck out.
[109] The issue of what precisely were the relevant circumstances of her attempts to obtain some modification of the requirements of the course, and the extent to which the Second Respondent University was empowered or enabled to engage with the College of Teachers to modify the requirements, are factual matters which it will be necessary to consider at a full hearing.
[110] I have mentioned already that to the extent that there was conduct which conceptually involved the imposition by the Second Respondent University of a term, namely the requirement to complete SPE in a particular way, this was something with which a person with an attribute could not comply and which persons without that attribute would be able to comply. I have mentioned the reversal of onus which applies in relation to claims of indirect discrimination.
[111] I therefore decline the application insofar as it relates to the dismissal of the indirect discrimination case against the Second Respondent University.
[112] The appropriate course is for the following orders to be made:

[122]

[114] The Applicant's case against the College of Teachers, and its employee Ros Capeness, who was at the material times the Manager, Accreditation and Professional Standards at the College of Teachers, is of relatively narrow compass, as explained by the Applicant in her oral submissions, and to some degree, though without clarity, in her written submissions in response to the Third and Fourth Defendants' application to strike out.
[115] She now seeks to bring her claim as one arising under s 21 of the Anti-Discrimination Act, as one brought against persons who have the power to grant, renew or extend a qualification or authorisation for, or facilitates the practice of, a profession or a trade.
[116] She concedes the correctness of what was the foundation of the application by the Third and Fourth Respondents to strike out her claim, that she cannot bring her claim on the basis of it being discrimination by an Education Authority in the prospective student area in the ways prohibited by s 38 of the AD Act, because neither the Third or Fourth Respondents is an educational authority within the definition of that expression in the dictionary to the Act.
[117] Despite her pleaded case, she concedes that the College of Teachers was not and is not an educational authority as defined by the AD Act, and was not a body administering a school, college, university or other institution providing any form of training or instruction.
[118] The Third and Fourth Respondents otherwise stand in the shoes of the First and Second Respondents in seeking the dismissal of the proceedings on the basis that it is misconceived, and lacking in substance based on the evidence.
[119] Counsel for the Third and Fourth Respondents conceded that conceptually, and without comparing the evidence said to exist in support of the complaint by the Applicant against the Third and Fourth Respondents, it was possible to contend that they were persons with powers to grant, renew or extend qualifications, and therefore might conceptually be brought on the basis that it is discrimination by a qualifying body in a pre-qualification area under s 21 of the Act.
[120] Having said that, the discrimination alleged against the Third and Fourth Respondents in that area differs significantly from that alleged against the First and Second Respondents.
[121] In her initial complaint of 9 March 2017, her complaint that she had been discriminated against by the College of Teachers and Ms Capeness, was said to have occurred on only one date, namely 23 March 2016.
[122] In her complaint to the ADCQ, she identified that she had initially contacted the College of Teachers to ask for information about their procedures for accommodating reasonable adjustments in their accredited university programs to show that she could meet the College of Teachers' requirements for pre-service teaching training. She did this so she could maintain her role as a carer of a child with impairments. She referred to the fact that she had been informed by the Second Respondent University that it was not within the Second Respondent University's rules or procedures, which would be an impediment to obtaining reasonable adjustments, but rather the requirements of the College of Teachers. She identified that the College of Teachers had previously given helpful information to her about adjustments that could be made. She complained that later the College of Teachers told her that the previous information she had received was incorrect, that adjustments could not be made to allow her to complete the final practicum, and was told by Ms Capeness to "reconsider what you think you would do if you graduate" because of her carer role for a child with impairments. This was alleged to have been said in a phone call by Ms Capeness to the Applicant on 23 March 2016. The Applicant alleges that Ms Capeness had been in contact with the Second Respondent University, and that the Second Respondent University had disclosed information about her role as a carer of an impaired child. She concluded that on the basis of the information that had been obtained from the Second Respondent University, the College of Teachers "deemed it appropriate to make assumptions about my ability and future capabilities". She also complained that the College of Teachers presupposed what her goals were upon completing her degree, and was attempting to dissuade her from graduating as a teacher.
[123] Suffice it to say that the evidence of Ms Capeness contests these events in their entirety. In her written submissions of 9 June 2020, the Applicant takes issue with the sworn evidence of Ms Capeness about their conversations. For the purposes of this application, I will proceed on the basis of considering whether the case that the Applicant seeks to make out, were she to be believed, and her evidence treated as credible, has any real prospects of success.
[124] In essence, she says:

[138]

[127] In my view, those are not matters to be determined summarily on an application of this kind. The Applicant has submitted in her responsive submissions that the application "should not be dismissed because most of the evidence and the only witnesses are in the control of the respondents and I need to rely on giving oral evidence at a hearing". It may be inferred then that at any hearing, she does not intend to call witnesses other than herself, and seeks to rely make out her case on oral evidence given by the respondents' witnesses including by way of cross-examination of them. Also fraught with difficulty, there is nothing novel about such an approach particularly where a party seeks to put some kind of circumstantial or inferential case.
[128] 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 the attribute or attributes which were said to exist here, i.e. parental responsibilities; and in respect of which there was protection from discrimination under the Act.
[129] 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.
[130] It is well established both in this and other jurisdictions in Australia where discrimination is alleged, that the complainant bears the onus of proof of direct discrimination. In Queensland, unlike most other States, there is an exception where the claim is one of indirect discrimination. In a direct discrimination case, the onus falls to the Respondents to show that the condition being imposed which is potentially discriminatory is reasonable. Similarly, a respondent would bear the onus of showing that it may rely upon an exemption or exception which attaches to its conduct. [2]
[131] The difficulties which present themselves to a complainant 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 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 complainant 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:

[143]

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)

[149]

[138] I have already mentioned above that the Applicant accepts that neither the Third Respondent nor the Fourth Respondent is an "educational authority" within the meaning of the Anti-Discrimination Act 1991 (Qld) and that she now contends, for the first time, that they unlawfully discriminated against her in the work or pre-work area under s 21 or s 22 of the Act.
[139] The Third and Fourth Respondents submit that the Applicant's case against all four Respondents has always been expressly stated to be a complaint of unlawful discrimination in the education area. That much is clear. She has not previously contended that any of the conduct she complains of is unlawful discrimination under any other part of the Act.
[140] The Third and Fourth Respondents submit that the Applicant should not be permitted, at this late stage in the history of the proceedings, to amend her contentions in this way and present a different case against them. No reason is advanced as support for that proposition. In fact it is a mere legal re-characterisation of the same case as has always been put, albeit involving a different legal test for whether the particular provision now sought to be relied on applies.
[141] There is a line of authority, including MM and MD v State of Qld [2014] QCAT 478, Wilson v Lawson [2008] QADT 27 and Yohan v Qld Basketball Incorporated [2010] QCAT 459, which has acknowledged that when examining the complaint which is before this Tribunal, that the Tribunal is not bound by its characterisation by the ADCQ in the referral here. Hence, so long as the essential characteristics of the complaint as made to the ADCQ are identifiable, as it is referred, it is for this Tribunal to determine what the proper basis for the complaint is, and ultimately whether it is made out on the evidence. Hence, whether the character of the complaint is specifically identified, the body of the complaint whether it was in the goods and services area, or some other area, or whether or not the ADCQ in its referral of the complaint made reference to some or other area in which the alleged discriminatory conduct occurred, ought not prejudice a complainant here who seeks to amend to make clear that such is a basis for a claim, or indeed to amend to include such a claim.
[142] In MM and MD v State of Qld [2014] QCAT 478, I held as follows at [31] ff:

[150]

I turn then to what, in my view, is the meaning and effect of s.178. The first point is that in its terms, which are uncomplicated and devoid of sophistication, complexity or qualification, this Tribunal has discretion to allow a complainant to amend a complaint even if the amendment concerns matters not included in the original complaint. That in my view is sufficiently broad to encompass a situation where it involves not only claims which arise out of the same factual matrix as the original complaint does, but also those which do not. It may even go further, although I need not decide this here, and permit amendments to be made to bring in matters which are entirely unrelated to the matters originally included in the complaint. I express no concluded view about that here, however it seems to me that if the discretion exists, and is to be exercised judicially, there is no reason to think that Parliament did other than decide that where this Tribunal determined that for good reason it was appropriate to make an amendment to include a matter entirely unrelated, that it should do so.

The ADCQ performs an important function, inter alia, in receiving, reviewing, filtering in one sense, and referring to this Tribunal what are recognised as valid complaints. Accepting that to be so, there is no reason in principle why a member of this Tribunal would not be capable, on proper evidentiary material, to decide that in relation to a matter already before the Tribunal, it was appropriate to include other matters which have not been referred to the Commission. In other words, it could not be said that in general this Tribunal, having been seized of a matter is less capable of making a decision about the nature and character of a complaint than the ADCQ.

Pursuant to s.136 of the AD Act, a complaint must be in writing in reasonably sufficiently details to indicate an alleged contravention. Pursuant to s.139 the Commissioner must reject frivolous, trivial, vexatious complaints and those misconceived or lacking in substance. The other activity that occurs in the Commission, is the conciliation process. In effect an accepted complaint will be one which will have successfully run the gauntlet of analysis as to whether it is frivolous, trivial or vexatious, misconceived or lacking in substance and is set out in sufficient detail to indicate an alleged contravention of the AD Act. There is nothing about this jurisdiction which would place a member of this Tribunal at a disadvantage from staff at the ADCQ in deciding those very matters as a basis for allowing amendment.

In McKenzie v MacKay and State of Queensland [2005] QADT 24, Mr Savage QC examined a body of authority on the question of the power of the then Anti-Discrimination Tribunal to hear proposed amendments to complaints. At paragraphs 39 to 41 of his reasons, he held (footnote omitted):

[155]

That judgment in X v Q was the subject of an appeal to the Supreme Court in matter 1830 of 2010 and came before De Jersey CJ on 15 November 2010. The Chief Justice said in relation to the operation of s.178:

The Tribunal President allowed an amendment of the complaint to add the claims of victimisation, for reasons he had earlier expressed in Mackenzie and Mackay, 2005, QADT 24. They focused on the completely unfettered discretion to amend a complaint accorded by section 178 of the Act. He regarded the alleged victimisation as consequential upon the lodgement of the original complaint, and observed that "there is no proper reason (why) a person victimised for making a complaint should not have the complaint and victimisation issue dealt with together at one hearing".

The President examined the relation between section 178 which gives the power of amendment, and other provisions including section 175, and the mechanism by which complaints ordinarily reach the Tribunal, having passed through a process of conciliation. He also examined other decisions of the Tribunal bearing on this matter, and a decision of the Court. The President set out in paragraphs 38 to 41 of his reasons for judgment the basis of his conclusion that the discretion to amend is in fact, as it its presented, that is, untrammelled. On that basis he went on to assign a sufficient reason why the amendment should be allowed in the exercise of his discretion, being the circumstance that the victimisation allegedly grew out of the making of the original complaint.

The applicant puts forward no particular reason why it did not appeal against this ruling in relation to amendment within time. Additionally, there is to my mind no sufficient doubt about the correctness of the President's construction of the power to amend under section 178, to warrant further investigation of that power by way of appeal. I note that a newly worded power has been included in the QCAT legislation. For the aggregation of those considerations I exercise the discretion against extending time for appeal in relation to that ground. If I had extended time I would have dismissed an appeal on that round.

[159]

[146] No submissions were made for any of the Respondents concerning the effect of s 10 of the AD Act in the context of the claim for direct discrimination in telling someone something that might be regarded as career advice. Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
[147] Ms Capeness has sworn that on 23 March 2016, she contacted Ms Hickson-Jamieson by telephone. In the course of my conversation with her, she discussed the QCT's expectations of the delivery of an approved ITE program and explained that any request for adjustments must come from her university and not from her as an individual student. She discussed Ms Hickson-Jamieson's parental responsibilities in terms of her host school and their expectations about her attendance at the school during the professional experience block. She explained that the school is a separate entity to the Second Respondent University in the professional experience partnership and whatever adjustments she required needed to be acceptable to both the Second Respondent University and the school hosting her as a preservice teacher. She advised that when the Second Respondent University was satisfied that an adjustment was possible, they would bring the matter to the QCT.
[148] She did not take any notes of her conversation with Ms Hickson-Jamieson. She denies the allegation that she stated that she ought to reconsider whether she should be a registered teacher, given her family circumstances. She had no further contact with Ms Hickson-Jamieson following that telephone discussion.
[149] There is nothing whatsoever advanced on the Applicant's case, in evidence or plausibly in any submission, to show an arguable basis for contending here that what was allegedly said to her by the Third Respondent and vicariously by the Fourth Respondent about considering her position as a future teacher "if you graduate" (as it appears in her complaint to the ADCQ), or as it is described in the Applicant's witness statement having "instructed her to assess if she could ever work in her chosen career given her circumstances as the carer of a child with a disability" was less favourable treatment than another person without parental responsibilities is or would be treated in circumstances that are the same or not materially different. Nor in my view is it arguably discriminatory to say to someone they ought to reconsider whether they should be a teacher, given her family circumstances, if that was what was in fact said.
[150] All that is alleged here on that topic is the making of the statement, or giving advice one might characterise it, about whether with the types of responsibilities she had, she could effectively do the job of a teacher. She was not refused anything. She was not told she would be refused adjustments to allow here to teach and she was not refused any such adjustments by the Fourth Respondent.
[151] Nor is there anything whatsoever advanced on the Applicant's case, in evidence or plausibly in any submission, to show an arguable basis for contending here that the basis for the alleged decision here to say what was allegedly said to her by the Fourth Respondent and vicariously by the Fourth Respondent about considering her position as a future teacher "if you graduate" (as she contends for, noting that the relevant conversation is denied) was the relevant attribute (her family responsibilities) in the sense contemplated by s 10 of the Act.
[152] The claim against the Third and Fourth Respondents therefore based upon direct discrimination must fail even on the version of it most favourable to the Applicant.
[153] The claim against them is struck out and the application against them dismissed.

[162]

[157] The concept of abuse of process overlaps with the obligation of a court to provide a fair trial. The content of these obligations cannot, however, be stated exhaustively or analytically. These obligations rely on intuitive judgments formed by experience (Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46; Ridgeway v R (1995) 184 CLR 19; [1995] HCA 66).
[158] The obligation on a court is to provide a fair trial in accordance with law. Legislation may vary existing trial procedures, the elements of offences and the laws of evidence. Subject to issues of constitutional validity and interpretive principles concerning modification of existing common law principles, courts must apply the law set by Parliament. Therefore, the right to a fair trial may be modified by Parliament and courts are extremely reluctant to consider arguments that a court must grant a stay where legislative amendment interferes with the fairness of a trial (see Grills v R [1998] HCATrans 351; R v PJE, Unreported, NSWCCA, 9 October 1995).
[159] Courts have noted that the obligation is not to provide a perfect trial, but to provide a trial as fair as possible. A perfect trial is an unrealistic aspiration (Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46; R v Glennon (1992) 173 CLR 592; [1992] HCA 16).
[160] Where a proceeding has been regularly commenced, courts have an obligation to exercise their jurisdiction and determine the matter. A court should not lightly refuse to exercise its jurisdiction. However, the right to a fair trial is paramount and if a proceeding cannot be conducted fairly, a court may grant a permanent stay (Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46; Barton v R [1980] HCA 48; (1980) 147 CLR 75; Attorney-General (NSW) v Watson (1987) 20 Leg Rep SL 1).
[161] There is little to suggest that what the Applicant has done means that two well legally represented, inferentially well-funded public organisations have been treated in a way which is "seriously or unfairly burdensome, prejudicial or damaging" or has produced "serious and unjustified trouble and harassment".
[162] The Respondents contend that it is relevant to that assessment to see whether the proceedings have been conducted in a manner consistent with s 3 of the QCAT Act. By sections 3 and 4 of the QCAT Act the Tribunal is to conduct proceedings in a manner which is accessible , fair,just, economical informal and quick and it must ensure that proceedings are conducted in a manner which minimises costs to parties, and with as little formality and technicality as a proper consideration of the matter permits.
[163] The Respondents contend that the proceeding is an abuse of process, "including" because the Applicant's case remains fundamentally deficient, and the Respondents have been put to unnecessary expense and time in attempting to extract proper particulars and prepare a meaningful response. That the Respondents have been put to unnecessary expense and time in attempting to extract proper particulars and prepare a meaningful response is not the test for whether a matter is an abuse of process.
[164] The Respondents also contend that the proceeding is an abuse of process because there have been extensive failures by the Applicant to comply with orders and there have been extensive failures by the Applicant to comply with the Tribunal's directions, meaning that the matter has continued for an unnecessarily long period, and the First and Second Respondents have been put to unnecessary expense in defending the matter.
[165] The Respondents contend that there have been multiple failures by the Applicant to comply with directions made by QCAT, despite being granted indulgences and extensions of time, including:

[170]

[166] The Respondents also contend that the proceeding is an abuse of process because the Applicant's claim is otherwise misconceived, and the Applicant continues to press matters not supported by the evidence. The Respondents also contend that the proceeding is an abuse of process because the additional matters raised by the Applicant in her submissions are similarly misconceived, false and directly contradictory to the evidence. One does not conduct a trial or assess the merits overall of a case and the strength of the evidence to decide if it is an abuse of process. I reject these contentions.
[167] The Respondents also contend that the proceeding is an abuse of process because the Applicant has failed to take any steps to mitigate her loss. That submission was rejected by Member Cranwell last year. It is not an indicator, even if established on the evidence, that the proceeding is an abuse of process. It may diminish the sum she recovers, if any, by way of compensation.
[168] The Respondents also contend that this is not otherwise a situation where the Applicant will be denied the opportunity to articulate her case if it is struck out. The parties have filed their material and articulated their respective positions. That may be true. She has had many opportunities to articulate her case. What she will be denied is an opportunity to elicit the evidence in support of her contentions and seek to persuade a member of this tribunal of the merits of her case.
[169] The Respondents contend that the evidence is clear: it cannot substantiate any finding that the First and Second Respondents engaged in discrimination towards the Applicant. The Respondents contend that to the contrary, the evidentiary material before the Tribunal demonstrates there was no discrimination as pleaded by the Applicant or otherwise. That invites yet another finding on the merits. As I said earlier, one does not conduct a trial or assess the merits overall of a case and the strength of the evidence to decide if it is an abuse of process. I reject these contentions.
[170] The Respondents contend that "the conduct of this matter by the Applicant is the antithesis of the requirement in s 3 of the QCAT Act and should be struck out as an abuse of process". I do not accept that proposition.
[171] There can be little doubt that the Applicant has been given numerous opportunities to articulate in an understandable and reasonably arguable way the case which she seeks to bring against the four individual Respondents. The Applicant is clearly not a person lacking in intelligence. In 2009 she completed a Bachelor of Arts degree and commenced an Honours program in relation to that degree. In 2010 she enrolled in a program to receive her PhD. She completed her Honours degree and whilst studying for her PhD took leave to finish her teaching degree. There is no suggestion however that she has any legal qualifications and it is obvious from the history of the matter, that she has conducted this application without the assistance of legal advice as to the proper way in which to articulate claims of discriminatory conduct.
[172] The matter has been before the Tribunal and orders made by Tribunal Members on at least twenty occasions since the proceeding was commenced. Many of those orders simply provide for directions for the conduct of the proceeding to have it ready for trial. On 16 April 2019, and again on 10 June 2019, Member Traves made directions which ought properly have taken the matter to a trial, and made orders that the matter would be listed for a hearing for two days later in 2019, with the dates yet to be allocated. After the unsuccessful strike out application which was filed on 20 September 2018 was determined adversely to the Respondents in February 2019, the Tribunal had cause on three occasions to make specific orders that if she failed to comply with a particular direction or other which the Tribunal had made and has not provided a reasonable excuse for non-compliance within s 48 of the QCAT Act, that the application would be dismissed without further notice to the parties. Orders to that effect were made on 5 September 2018, 28 October 2019 and 29 November 2019. In each case the failure which was referenced was a failure by her to file her witness statements, and that of any witnesses that she proposed to rely upon at the trial, as well as any documents to which that evidence referred. On 3 January 2020, Member Traves ordered that the Applicant file in the Tribunal copies of two proposed witness statements "if any" from two proposed witnesses that she wished to call. No such witness statements have been filed. The outcome of that non-compliance is that in the event that there is a trial, she is unlikely to be able to rely upon evidence from those proposed witnesses unless leave is given to adduce oral evidence from them without the benefit of a statement.
[173] Notwithstanding that there had been periodic non-compliances with directions to progress the matter to trial, it seems to me that the material which has been filed would indicate that the matter is in fact ready for a trial and that a trial could be conducted at a time convenient to the parties.
[174] There is no affidavit from any of the Respondents which has identified that there is any particular, or even general, prejudice which has flowed from any of these non-compliances. Although this matter has gone on for an inordinately long period, having regard to the fact that the events to which it relates are now more than four and a half years old, I see no basis to conclude that the Applicant's conduct of the matter has been such as to characterise it as an abuse of process.
[175] There are very significant problems with the poorly articulated way in which the Applicant has sought to put her case in her Statement of Contentions. But as is evident from a reading of the submissions relied upon the by the First and Second Respondents in bringing the strike out application, they are able to articulate what the claim against them is; they just cannot see how it has any prospects of success. I do not accept that the Respondents will be thwarted in receiving a fair trial of the proceeding should it occur.
[176] In my view, the conduct of the Applicant has not been such as to undermine the capacity of the Respondents to meet it at a trial and there is no evident significant prejudice which has flowed to them.
[177] The orders that I make are:
1. The application by the First Respondent to strike out and dismiss the application against him is upheld, and the Applicant's application against him is dismissed pursuant to s 47 of the QCAT Act.
2. The application by the Third and Fourth Respondents to strike out and dismiss the application against them is upheld, and the Applicant's application against them is dismissed pursuant to s 47 of the QCAT Act.
3. The application by the Second Respondent to strike out and dismiss the application against it founded upon claims of direct discrimination is upheld and the Applicant's application against it on that ground is dismissed pursuant to s 47 of the QCAT Act.
4. In respect of the balance of the claims by the Applicant against the Second Respondent arising solely in respect of alleged indirect discrimination against her by the Second Respondent, the application by the Second Respondent to strike out or dismiss those claims is refused save in respect of any claims for indirect discrimination which relate to claims of discriminatory conduct which predate 9 March 2016.
5. Insofar as the Applicant brings any claims for indirect discrimination against the Second Respondent or discriminatory conduct which predates 9 March 2016, that application is dismissed pursuant to s 47 of the QCAT Act.
6. The Applicant is directed to file and serve on the Second Respondent within 21 days of the delivery of these Reasons a new points of contention document which coherently identifies the material facts relied upon to establish conduct allegedly constituting indirect discrimination against her by the Second Respondent on or after 9 March 2016 and sets out the legal foundation for such a claim and the relief or remedies sought in respect of it.
7. The parties have liberty to apply in respect of any other consequential or other orders which might be required to be made.

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