Hoban v Zhang [2025] QCATA 103

[5] It is apparent from the bundle of documents filed by the applicant that there is regular police involvement with respect to the respondent's behaviour and his repeated breaches of the orders.

[8] At the commencement of the hearing, it appeared that Mr Hoban did not have any documents with him. He indicated that he had not been served with anything. Although that seemed unlikely, and there was evidence of service provided by the applicant, Mr Hoban was provided with a copy of the applicant's evidence and afforded the opportunity to read it and to request an adjournment should he so wish.

[9] After a short recess, Mr Hoban informed the Tribunal that he wished the matter to continue and for it "to be over with".

[10] In hearing this matter, the Tribunal has a number of functions under s 174A of the Act. It has power to hear and decide complaints such as this and may make a wide range of orders pursuant to s 209 of the Act. The orders may include a prohibition on further contraventions of the Act, orders for compensation, and orders for an apology.

[12] The applicant has filed several statements including sworn statements given to the police and the Magistrates Court. Her material includes orders of that court and statements by other witnesses, Spurway, Daly, Carnes and Millard.

[13] A petition to the owner of the building in which the parties reside was signed by the applicant and four of Mr Hoban's neighbours alleging bullying, threats, aggression, physical harm and trespass on his part. This was exhibited to the applicant's statement as was photographic evidence showing damage to property and trespass.

[14] The applicant and Mr Spurway gave oral evidence as to the veracity of their statements and Mr Hoban was offered the opportunity to cross examine them and to give evidence himself. He did not wish to do so.

[15] The evidence showed an ongoing pattern of racial vilification, assault, theft, abusive language and aggression over a ten-year period, such behaviour taking place quite publicly in front of neighbours and others.

[16] The effect of this behaviour on Ms Zhang's physical and mental health is concerning and is confirmed by a health professional report from a psychologist to whom Ms Zhang was referred by her general practitioner.

[17] Additionally, Mr Hoban has requested and encouraged others to participate in similar prohibited conduct in a public forum, again resulting in police involvement.

[18] The evidence shows that Mr Hoban's behaviour is motivated by the applicant's Chinese heritage.

[19] Although no evidence was led by Mr Hoban, in oral submissions he asserted that the evidence is "completely false" and that he had been "constantly harassed and bullied".

[20] The Tribunal accepts the evidence that the public actions of Mr Hoban have incited hatred towards, serious contempt for and severe ridicule of Ms Zhang on the grounds of race. Those actions include requesting or encouraging others to act similarly.

[21] This constitutes a breach of ss 122 and 124A of the Act.

[22] The purpose of the Act is to promote the equality of all people by prohibiting such objectionable conduct.

[23] Ms Zhang should not need to live in fear due to continued harassment.

• [4] Orders were made that the appellant be restrained from approaching within 150 metres of the respondent and her residence, be restrained from contacting her either directly or indirectly and be restrained from discussing her with any other person.
• [5] Critically an order was also made that the appellant Charles Hoban was to vacate his tenancy at Unit 15, 542 Lower Bowen Terrace, New Farm within 28 days of the date of that order.
• [6] The Tribunal's order requiring the appellant to vacate his tenancy was held to be made on the basis of findings by the Tribunal at paragraphs [20] and [21] of the reasons, that the Appellant had acted in breach of ss 122 and 124A of the Anti-Discrimination Act 1991 (Qld) ('AD Act') by inciting "hatred towards, serious contempt for and severe ridicule of the [Respondent] on the grounds of race". The Tribunal referred (at [15]) to "an ongoing pattern of racial vilification, assault, theft, abusive language and aggression over a ten-year period, such behaviour taking place quite publicly in front of neighbours and others".
• [7] The respondent below appealed that decision and the making of that order. The grounds of appeal are mostly incoherent and unfocussed. They refer to the decision being "completely false" and suggest he was not given a proper hearing. As to the latter, there is no basis whatsoever to suggest he was not given a proper hearing, and the transcript of the hearing reveals that he had ample opportunity to file and present material both prior to and at the hearing and have a full say on the issues about which he wanted to be heard.
• [8] It is also inconsistent with the findings of the Tribunal below which state that the appellant did not file any material in support of his case, was afforded and refused an opportunity to request an adjournment of the hearing, refused an opportunity to cross-examine his opponent's witnesses and refused to give evidence himself.
• [9] How the decision was said to be false or perhaps factually erroneous, or contrary to the evidence is not evident. I do not propose to speculate about what he says the correct findings ought to have been or why.
• [10] Pursuant to s 142 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'), an appeal only lies to this Tribunal on questions of law, unless in relation to appeals on a question of fact or a question of mixed law and fact the Appellant has obtained the Appeal Tribunal's leave to appeal. Pursuant to s 146, in deciding an appeal against a decision on a question of law, the Appeal Tribunal is not engaged in a rehearing of the matter. By s 147 an appeal to this Tribunal on a question of fact only or a question of mixed law and fact, if leave is granted, is by way of rehearing.
• [11] On 3 April 2025 the Tribunal ordered that the operation of that decision is stayed pending determination of the application for leave to appeal or appeal. No stay was granted in relation to the remaining orders in the decision made in ADL073-22 made 18 September 2024.
• [12] On 9 June 2025 the Tribunal ordered that an application by the respondent for miscellaneous matters namely to dismiss filed on 1 May 2025 was refused and made a series of procedural orders which included that the time for the appellant to comply with Direction 8 of the Appeal Tribunal Directions, to file and serve any transcript of the hearing below, an appeal book and appeal submissions together with copies of any cases relied upon was extended to 13 June 2025. He did not comply in any respect with those orders. The time for the respondent to file and serve an appeal book, appeal submissions in response and a copy of any cases that support the response was extended to 27 June 2025. Submissions were filed. No responsive submissions were filed by the appellant.
• [13] On 25 September 2025 the Tribunal heard an application on the papers seeking an order striking out the appellant's application for leave to appeal or appeal on the basis of non-compliance with the Appeal Tribunal's directions and because it is said the appellant has no arguable case in the application for leave to appeal or appeal. The Tribunal dismissed the application holding:

[7] The appeal raises a novel point as to the jurisdiction of the Tribunal to order the applicant to vacate his tenancy within 28 days of the date of the order within the context of the power given to the Tribunal under s 209(1)(c) of the Anti-Discrimination Act 1991 (Qld). A stay of that part of the order made on 18 September 2024 was made on 3 April 2025, pending final determination of the appeal proceeding.

[8] I requested submissions from both parties on the jurisdiction. of the Tribunal to make the order requiring the applicant to vacate his tenancy. The respondent has provided submissions. The applicant has not.

[9] If I dismiss the application for leave to appeal or appeal and if I order the stay be removed as a result, the decision below will stand. A decision arrived at as a result of an error of law should not be allowed to stand.

[10] For that reason, I do not consider the application to dismiss or strike out the proceeding can be decided without a final determination of the proceeding.

• [14] Section 209(1) of the AD Act provides as follows:
  1. Orders the tribunal may make if complaint is proven

(1) If the tribunal decides that the respondent contravened the Act, the tribunal may make 1 or more of the following orders -

(a) an order requiring the respondent not to commit a further contravention of the Act against an affected person specified in the order;

(b) an order requiring the respondent to pay to an affected person, within a specified period, an amount the tribunal considers appropriate as compensation for loss or damage caused by the contravention;

(c) an order requiring the respondent to do specified things to redress loss or damage suffered by an affected person because of the contravention;

(d) an order requiring the respondent to make a private apology or retraction;

(e) an order requiring the respondent to make a public apology or retraction by publishing the apology or retraction in the way, and in the form, stated in the order;

(f) an order requiring the respondent to implement programs to eliminate unlawful discrimination;

(g) an order requiring the respondent to pay interest on an amount of compensation;

(h) an order declaring void all or part of an agreement made in connection with a contravention of this Act, either from the time the agreement was made or subsequently.

• [15] In section 209 "damage", in relation to a person, is defined to include the offence, embarrassment, humiliation, and intimidation suffered by the person.
• [16] Section 209(4) provides that:

In this section, the specified things a respondent may be required to do, include, but are not limited to -

(a) employing, reinstating or re-employing a person; or

(b) promoting a person; or

(c) moving a person to a specified position within a specified time.

• [17] In my view the only part s 209 specifically that might justify the orders made was that which refers to "an order requiring the respondent to do specified things to redress loss or damage suffered". It was not an order like that contemplated by s 209(1)(a) requiring the respondent not to commit a further contravention of the Act against an affected person specified in the order although it was designed to have that effect. There is no part of s 209(1)(a) that specifically says there can be an order requiring the respondent to do something which would make it more difficult for a person to commit a further contravention of the AD Act against an affected person specified in the order.
• [18] The respondent submits that the Tribunal has the power to order the appellant to vacate his tenancy under s 209(1)(c) of the AD Act. She submits that s 209(1)(c) is broadly expressed and that is appropriate given that one of the purposes, identified in s 6(1), is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation. The respondent submits that s 209(1)(c) provides that if the Tribunal decides that the respondent contravened the AD Act, the Tribunal may make an order "requiring the respondent to do specified things to redress loss or damage suffered by an affected person because of the contravention". She submits that this section provides a broad power to QCAT to order a person "to do specified things to redress loss or damage suffered". She submits that what constitutes the "specified things" is not defined but that non-exhaustive examples of things a respondent may be required to do are provided in subsection (4), including employing, reinstating or promoting a person.
• [19] What then is the scope of a power to make an order requiring the respondent to do specified things "to redress loss or damage suffered by an affected person because of the contravention"? At first glance it seems to be about redressing damage suffered, in the sense that it is damage which has already occurred not damage which might occur in the future. In my view that is an unduly restrictive approach and would prevent orders being made which might prevent further damage or exacerbate damage already inflicted. Clearly s 209 contemplated that the Tribunal could act to prevent further acts of discriminatory conduct, whether or not there was damage. Section 209(4) provides for example that it can be ordered that someone be promoted. Section 209(1)(a) permits an order requiring the respondent not to commit a further contravention, whether or not there was damage or would be further damage.
• [20] In all Australian jurisdictions a court or tribunal may make an order in which the respondent is directed to take some positive action to redress loss or damage sustained by the victims of acts of unlawful discrimination; even in those jurisdictions where there is no express reference to a power to do so, the courts and tribunals have held that the general power to make mandatory injunctions may be used to make orders of this nature.[1]
• [21] In a number of jurisdictions, as well as here because of section 209(1)(c) of the AD Act, the statutory provisions which grant the power to make mandatory injunctions expressly stipulate that the order must be designed to redress any loss or damage suffered by the complainant. Consequently, it has been suggested[2] that orders made in reliance on these powers must be for the personal benefit of the complainant. Self-evidently the orders made here were for the personal benefit of the respondent to partially assist in remedying the consequences of what had occurred to her already but also to prevent them re-occurring.
• [22] The respondent submits that section 209 has also been applied outside of an employment context and refers to two decisions. The first was Sandy v Queensland Human Rights Commissioner (2022) 12 QR 556. That case did not involve the application of section 209, but did mention it in passing. Submissions for the respondent also referred to Molesworth v Campbell and Patcono Pty Ltd [2004] QADT 30. That case is also of no assistance as only s 209(1)(b) was referred to, not s 209(1)(c), and then purely as the basis for assessing the appropriate amount to award for compensation for loss and damage.
• [23] Ultimately however it is not necessary to decide what the scope of that power is because pursuant to section 59 of the QCAT Act the tribunal may, by order, grant an injunction in a proceeding if it is just and convenient to do so. By s 59(5) the tribunal's power under s 59(1) is in addition to, and does not limit, any power of the tribunal under an enabling Act to make an order in the nature of an injunction. In this context the AD Act is an enabling Act in the relevant sense, but the tribunal's power goes beyond what is in section 209(1)(c) of the AD Act.
• [24] In Le Roy v Brisbane City Council [2025] QCAT 314 I made a declaration that the Council unlawfully discriminated against the applicant and class members and ordered it to cease enforcing a resolution not to allow an environmental protest group Extinction Rebellion to use its meeting rooms. That remedy can be compared to a mandatory injunction to discontinue current discriminatory conduct, and prevent further discriminatory conduct.
• [25] In Wilson v Stevens [2024] QCAT 471 a man complained that a female neighbour in a set of 12 public housing units directed profanities towards him that were heard by people in the woman's unit and other neighbours. Orders were made that the respondent not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of the applicant on the grounds of his race or sexuality. That was also preventative of further discriminatory conduct.
• [26] In Fitz-Gibbon & Park v Liu [2022] QCAT 259, a sexual harassment case involving men in a same-sex relationship who complained about the conduct of a female neighbour who used insulting language publicly about their relationship, it was ordered that the respondent not commit further contraventions of the AD Act.
• [27] In Taniela v Australian Christian College Moreton Ltd [2020] QCAT 249 a boy of Cook Island descent commenced school in 2020 at a Christian private school attended by his older sister. It was a Cook Island custom to not cut the firstborn son's hair until a hair-cutting ceremony is held. It was ordered that the student was not to be unenrolled for failure to comply with a policy in relation to hair length. That remedy can also be compared to a mandatory injunction to prevent further discriminatory conduct.
• [28] In Coop v State of Queensland [2013] QCAT 263 the Tribunal briefly considered the scope of s 144 of the AD Act and s 59 of the QCAT Act to make an order compelling the employer to take what would be a mandatory step to withdraw or to extend the notice of termination in a discrimination context. The member touched on the broadness of the powers in s 59 and held:

[15] The answer lies in my view on the nature of the relief provided in s 144. The statutory scheme set up by the Anti-Discrimination Act 1991 (Qld) requires a complaint about unlawful discriminatory conduct to be referred to QCAT only after investigation and conciliation at the Commission. That referral stage has not yet been reached in Ms Coop's complaint and so the complaint itself cannot be considered to be a proceeding in QCAT. Given that there was no proceeding before the Tribunal when the application was made under s 144, the injunctive provisions in s 59 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) are not called into play. Neither can the provisions for an interim order in terms of s 58 of the QCAT Act be used.

[16] As already stated in [6], s 144 is intended to protect the interests of a complainant before referral of the complaint to QCAT. However, the scope of the protection available to a complainant is limited by the wording of s 144. The power of the Tribunal is limited to prohibiting a person from doing an act: the section does not authorise the Tribunal to require the doing of an act. It is a power to restrict action and not a power to compel action. The powers in ss 58 and 59 of the QCAT Act are much wider but they are not available in this case.

• [29] The respondent did not point to s 59 of the QCAT Act, and the Tribunal was not referred to any authority on the scope of s 59 but there are no reasons to treat it as having a narrow scope or purpose, or any different purpose to that which would apply were the Supreme Court hearing an injunction, for example to require a tenant to vacate premises or restrain the commission of a tort. The power is enlivened to make such an order here "if it is just and convenient to do so".
• [30] The Parliament of Queensland, when establishing QCAT under the QCAT Act, provided in s 164 that QCAT is a "court of record". It may be added that by s 53 QCAT may take over certain matters from a court, by s 122 must give written reasons on request, by s 162(b) is not subject to direction or control by any entity and by s 237(1) its adjudicating members enjoy the same protection and immunity as a Supreme Court judge performing judicial functions.
• [31] The Court of Appeal held in Owen v Menzies [2012] QCA 170; [2013] 2 Qd R 327 that QCAT is a court of a State by virtue of s 164 of the QCAT Act. I note the recent criticism of the conclusions of the Court of Appeal in Owen v Menzies by one member of this Tribunal[3] who has said that the Court of Appeal should reconsider the decision in Owen v Menzies, "at least so far as it concerns the characterisation of the Tribunal as a court of a state". I do not agree with those views. QCAT matters frequently involve residents of different states. This has jurisdictional significance in other States and has caused delay expense and uncertainty, for example in New South Wales and Victoria where it has been held that the New South Wales Civil and Administrative Tribunal and Victorian Civil and Administrative Tribunal have both been found by the superior courts not to be a court of a State. The State Courts at every level have been able to deal with matters that frequently involve residents of different states. The Tribunals of those States ought, in principle, to be able to do the same without having to deal with barren jurisdictional arguments.
• [32] In any event the powers of this Tribunal to make orders of the kind made in this case do not depend on whether the Tribunal is a court of record. Powers to require occupiers or tenants of premises to vacate are unexceptional and commonly exercised including in the residential tenancy's jurisdiction of the Tribunal. The respondent points to the fact that courts often include "ouster conditions" in domestic violence orders under s 63 of the Domestic and Family Violence Protection Act 2012 (Qld) which prohibit a person from remaining at certain premises, although such an order could not be made here since the parties are not in a relevant relationship.
• [33] The broad power given by s 209(1)(c) as well as the power in s 59 of the QCAT Act to make injunctive orders sit in unison with the express power given to the Tribunal on the application of the lessor or the tenant's domestic associate, pursuant to s 345A of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) to terminate a tenancy in public or community housing where there has been "objectionable behaviour".
• [34] In my view the jurisdiction to make the order made here was enlivened and no error of law has been demonstrated in making the orders which were made.
• [35] The Tribunal below did not refer to the human rights implications of making such an order. Pursuant to the Human Rights Act 2019 (Qld) every person has the right and freedom to choose where to live[4]. A human right may be subject to reasonable limits that can be demonstrably justified. There are many examples in everyday experience where we see limits placed on this right, and some statutory examples have been mentioned already. The purpose of the limitation here was and is to protect the safety and human rights of the Respondent to effective protection against discrimination and vilification by the applicant. Bric Housing, which runs his present premises manages over 900 tenancies across more than 200 properties, according to its own website. Nothing in these orders would prevent it from permitting him to reside at other premises it controls and it should be encouraged to do so. It is reasonable to infer that he will find alternate accommodation. Indeed, he has previously given an undertaking to the tribunal on 18 September 2020, after a compulsory conference, to vacate the premises once he found a "comparable unit". That suggests he saw a solution that involved him vacating the subject unit.
• [36] The appeal is dismissed. It is ordered that the appellant Charles Hoban is to vacate his tenancy at Unit 15, 542 Lower Bowen Terrace, New Farm within 28 days of the date of the making of these orders. I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.

[1] See Neil Rees, Katherine Lindsay and Simon Rice, Australian Anti-Discrimination Law (The Federation Press, 1st ed, 2008) [11.8.2].

[3] Ritson v Ryan [2023] QCATA 86.

[4] Human Rights Act 2019 (Qld) (HRA) s 19