State of Queensland & Ors v Fraser [2025] QCATA 39

Anti-Discrimination Act 1991 (Qld)

Human Rights Act 2019 (Qld)

Queensland Civil and Administrative Tribunal Act 2009

Fraser v State of Queensland & Ors [2024] QCAT 57 Garcia v Queensland Newspapers Pty Ltd and Prain [2003] QADT 4

Goodwin v Gillespie [1998] QSC 138; [2000] 1 Qd R 517 Kelly v Harris, Madigan, Head and Qantas Airways Pty Ltd [2002] QADT 9

Blair Hall instructed by the QPS Legal Services and Ms Gray

• [1] This is an appeal against a decision made by a Senior Member of this Tribunal on 22 January 2024 ('review decision').
• [2] The appellants lodged appeals APL039-24 and APL055-24. The appeals were consolidated and were heard together. For the purposes of this appeal, it is not necessary to refer to the appellants individually. Therefore, in this decision, the appellants collectively will be referred to as the 'appellants'.
• [3] Dr Jennifer Fraser who is the complainant, will be referred to as the 'respondent'.

• [4] The respondent made a Queensland Human Rights Commission ('QHRC') complaint about direct discrimination alleged to have occurred on 14 January 2021, on the grounds of race and alleged breaches of section 59 of the Human Rights Act 2019 (Qld) ('HR Act').
• [5] For the purposes of this appeal, it is not necessary to consider the merits of the complaint. On 24 August 2023, the complaint was referred to the Tribunal.
• [6] The appellants do not take issue with the facts as found by the decision-maker.1 The complaint was not able to be conciliated with the result that the Commissioner was required to issue a notice to the respondent pursuant to s 165 of the Anti- Discrimination Act 1991 (Qld) ('AD Act') ('s 165 letter').

• [7] The facts as found by the review decision-maker are as follows:2

(a) On 15 May 2023, a letter declaring the complaint inconciliable was forwarded to the respondent by email at 3:42pm. The letter was copied to the respondent's legal representatives on that day.

(b) On 29 May 2023, the respondent verbally advised the QHRC that she had received correspondence "last week" but was unable to specify a day. The QHRC formed the view the s 165 letter was delivered no earlier than 22 May 2023, being Monday of last week.

(c) On 29 May 2023, the QHRC sent a further email to the respondent, reattaching the s 165 letter and advising the respondent had 21 days to refer the complaint. (That is 28 days from 22 May 2023 - expiring on 19 June 2023).

(d) On 19 June 2023, the QHRC contacted the respondent and advised it was her last day to refer her complaint.

(e) On 19 June 2023, the respondent emailed the QHRC and asked for an extension of time within which to refer her complaint.

(f) On 20 June 2023, the QHRC emailed the respondent and requested advice as to whether the s 165 letter had been read by the respondent on 22 May 2023.

(g) On 20 June 2023, the respondent emailed the QHRC advising she had received and read the email dated 29 May 2023 but had not read correspondence prior to this.

(h) On 22 June 2023, QHRC emailed the respondent advising of the s 166 process.

• [8] It is accepted by the parties that, if the complaint was not filed within time, namely, within 28 days of the Commissioner telling the respondent that the complaint cannot be resolved by conciliation, then the Tribunal had no jurisdiction to deal with the complaint.3 This is said to be, within 28 days of the respondent being notified of the notice required under s 165.

• [9] The grounds of appeal are listed as follows:

(a) The Senior Member erred in law by finding that the Tribunal has jurisdiction to determine the complaint.

(b) The Senior Member erred in law by finding that the respondent received notification pursuant to s 165 of the AD Act on 29 May 2025.

(c) The Senior Member erred in law by failing to find that the respondent received notification pursuant to s 165 of the AD Act on 15 May 2023.

• [10] This appeal, being from a final decision of the Tribunal, requires leave.

2 Fraser v State of Queensland & Ors [2024] QCAT 57 [11] ('Fraser').

3 See Appellants submission filed 11 February 2023, paragraph 12.

• [11] This is an appeal on a question of law only. Section 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') says that, in deciding an appeal against a decision on a question of law only, the Appeal Tribunal may-

(a) confirm or amend the decision: or

(b) set aside the decision and substitute its own decision; or

(c) set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration -

(i) with or without the hearing of additional evidence as directed by the appeal tribunal; and

(ii) with the other directions the appeal tribunal considers appropriate; or

(d) make and other order it considers appropriate, whether or not in combination with an order made under paragraph (a) (b) or (c).

• [12] For the reasons set out below, I am satisfied that leave should be granted due to the general importance of the question of law that is raised and its impact for the present parties but also for the administration of the referrals by the QHRC more broadly.

If the Commissioner believes that a complaint cannot be resolved by conciliation, the Commissioner must promptly tell the complainant and the respondent by written notice.

Within 28 days of being notified that the complaint can not be resolved by conciliation, a complainant may, by written notice, require the commissioner to refer the complainant to -

• [15] Section 263C of the AD Act, as amended in 2010, says that:

The address for service of a relevant party for a complaint as advised to the commissioner must be a residential or business address, a post office box or an email address.

• [16] Prior to the amendment, service by email address was not included in the section. The respondent agreed that the email address used by the appellants to send the notice was her correct email address.4
• [17] Section 263G says:

(1) This section applies if the commissioner is required or permitted under this Act, in relation to a complaint, to communicate with a relevant party

1. See Complaint Form (p 28 of the Appeal Book filed in the Tribunal on 28 June 2024) "Address for service" email address entered by the respondent, and "Email". The respondent agreed this was her correct email address.

for the complaint including, for example, by doing any of the following -

(a) notifying the relevant party of something, whether or not in writing;

(b) asking or telling the relevant party something, whether or not in writing;

(2) The commissioner may effect the communication by -

(a) putting the substance of the communication into a document; and

(b) giving the document to the relevant party in a way provided for under this part for the giving of a document to a relevant party for a complaint.

(1) For a complaint, the address for service of a relevant party for the complaint is the relevant party's address for service -

(a) for the commissioner - as most recently notified to the commissioner; or [...]

• [19] The Senior Member posed the following question:5

Can one say that until 29 May 2023 [the respondent] was not "notified" that the complaint was [in]conciliable, and that she had 28 days to request referral or an extension of time? Or is it the case that [the respondent] is fixed with notification by virtue of having an email sent to her on 15 May 2023, despite not having read that email?

• [20] Relying on the decision in Goodwin v Gillespie [1938] QSC 138; [2000] 1 Qd R 517 ('Gillespie'), the Senior Member further noted that it:6

is clear that personal notification is required by s 166. That is, [the respondent] must have a personal or conscious awareness of the contents of the notice that she might act to require a referral to the Tribunal. That is, she must have read the email notification from the QHRC.

It is not the point that [the respondent] might be deemed to have received the notice. If she has not read the notice, she cannot have a conscious awareness of its contents.

• [21] Relying on the decision of Garcia v Queensland Newspapers Pty Ltd and Prain

[2003] QADT 4 [13]-[14], where it was said by Member Douglas QC that:

the statutory prerequisite of "being notified" is what is important to establish, not what the common law presumes about when the letter reaches its destination.

• [22] This was a decision where the then Anti-Discrimination Tribunal Queensland considered whether a complainant could be said to have been notified under s 166 of

the AD Act where the notice was delivered to a post office box, being the last known address of the complainant. The Senior Member here stated that '[t]he same point can be made about the date of receipt of an electronic communication'.7

• [23] The Senior Member went on to say, again noting what was said in Gillespie, that:8

when the request was received by the complainant personally is a matter which would have to be established by evidence before the appropriate tribunal of fact. The only evidence I have as to when [the respondent] read the notification from QHRC comes from [the respondent]. I have no reason to disbelieve her. Accordingly, I accept [the respondent's] evidence and find that having read the notification letter on 29 May 2023 the application for an extension of time was lodged within time.

• [24] The Senior Member went on to note that, relying on the observations of President Sofronoff QC in Kelly v Harris, Madigan, Head and Qantas Airways Pty Ltd [2002]

insofar as personal notification is required, it may be possible for a complainant by inaction and by keeping himself or herself incommunicado, to keep a complaint alive, to the vexation of a respondent. However, that is a matter that can only be addressed by an amendment to legislation.

• [25] The Senior Member concluded that:10

the referral was validly made on 24 August 2023, as amended on 9 January 2024 and that this Tribunal has jurisdiction to determine the Complaint.

• [26] The amended QCAT referral dated 9 January 2024 stated:

The Commission relied on s 166(3) of the AD Act and the reasoning in [Gillespie] with respect to determining the timeframe of the complaint specified in s 166(1) AD Act.

• [27] The appellants submit that the authorities relied on by the Senior Member do not support the finding that "conscious awareness" of a notice under s 165 is required. The Senior Member fell into error by finding that it did. The appellants submit that the preferable interpretation for the AD Act is that a s 165 notice in writing sent to the nominated address for service is permitted. Accordingly, the referral of the complaint to the Tribunal was out of time and the Tribunal has no jurisdiction to hear the complaint ('Ground 1').
• [28] It is submitted that if I am satisfied that Ground 1 is made out, the Senior Member erred in finding that the notice pursuant to s 165 was received on 29 May 2023.
• [29] It is further submitted that if I am satisfied that Ground 1 is made out it must follow that the Senior Member erred in failing to find that the respondent received notification on 15 May 2023, pursuant to s 165 of the AD Act and the referral is out of time.

• [30] The appellants conclude that, for the reasons developed above, the learned Senior Member fell into error. The Commissioner's s 165 notice of 15 May 2023 was effective when received at the respondent's email address and the respondent's referral of the complaint was out of time. What inevitably flows from this is that the primary proceeding is beyond the jurisdiction of the Tribunal and must be dismissed.
• [31] I invited the appellants to make a submission about what I should make of the finding of fact by the Senior Member that on 29 May 2023, the QHRC sent a further email to the respondent reattaching the s 165 letter and advising the respondent she had 21 days to refer the complaint. The response was that it was irrelevant to the decision I was being asked to make.
• [32] The respondent attended the hearing in person at some considerable inconvenience to her. It appears she did not understand or decided not to take advantage of a direction order that she was permitted to appear by audio-visual link.
• [33] In any event, it is not unsurprising that the respondent, being self-represented, made few submissions supportive of her position. Originally, she was represented by Caxton Legal Service. The respondent noted that she answered emails on a "needs basis". She said that she was out of the country on 15 May 2023 and did not return until 19 May 2023. A travel itinerary was provided in the Appeal Book on page 109. This is fresh evidence as the Senior Member was not aware of this. Whilst s 146(c)(i) of the QCAT Act allows for the hearing of additional evidence as directed by the Appeals Tribunal, no application was made by the respondent for its admission. This issue is explored further below.
• [34] It was clear that the respondent was extremely unhappy at the way she had been treated by the appellants. She submitted that she had agreed to extensions of time when asked and that the whole matter was so drawn out and consequently causing her significant distress. She referred to a "broken system", a "culture of bullying" and "institutional abuse". She asked why the case was taking so long and that it was a "blatant disregard for her human rights".

• [35] In addressing this appeal, I need to have regard to the:

(a) legislation;

(b) authorities;

(c) fresh evidence; and

(d) interactions of the appellants and respondent during the period.

• [36] It seems to be unarguable that a notice sent pursuant to s 165 of the AD Act to the notified address for service of a party is all that is required to notify the party.
• [37] In this case, the notice was sent to the respondent's notified address for service on 15 May 2023. The provisions of the AD Act provide in s 165 that the Commissioner must promptly tell the complainant and the respondent by written notice. It seems clear to me that the act of sending an email to the respondent's email address constitutes service by virtue of s 263C, which as amended provides: an address for service of a relevant party... must be... or an email address.
• [38] As noted, s 263G provides that if the Commissioner is required to communicate with a relevant party by (a) notifying the relevant party of something, whether or not in writing and (b) asking or telling the relevant party something, whether or not in writing; the Commissioner may effect the communication by (a) putting the substance of the communication into a document; and (b) giving the document to the relevant party in a way provided for under this part.
• [39] It does not seem to me to be of assistance to the respondent, even accepting that she was out of the country till 19 May 2023. If she had read the email on say 19 or 20 May 2023 (being a date when it could be said to have been notified of the email), notice would have had to be given by about 16 June 2023. Notice was not given until 19 June 2023. In other words, being overseas till 19 May 2023 was not the reason the respondent did not respond in time.
• [40] In the Affidavit of Katherine Morrison filed 15 January 2024, the timeline is set out. It seems to me that 29 May 2023 is the critical date. On that day, the complaint handler advised the respondent that she had 21 days (from 29 May 2023) to refer the complaint. This was based on what I can call an assumed notice date of 22 May 2023. Whether this was done erroneously or not, the clear implication for the respondent is that she was under the clear apprehension that the final day to respond was 29 May 2023 which she complied with.
• [41] On 19 June 2023, the complaint handler contacted the respondent to advise her that it was the last day to refer her complaint. The respondent requested an extension of time on 29 May 2023.
• [42] Clearly, the Commissioner was attempting to assist the respondent as much as possible.
• [43] The appellants, in their appeal, do not place any weight on this. They seem to argue that, since the authorities are distinguishable, that subject notice was not necessary and that the respondent was, pursuant to the provisions of the Act set out above, deemed to have been notified when the notice was sent to her email address for service on 15 May 2023, irrespective of what transpired after 15 May 2023.
• [44] I accept that the decision of Gillespie is of little value to this case. There, His Honour was dealing with s 167 and not s 166. His Honour said that the asking can be directed to the complainant through the agent, but the 28-day period does not commence until the request has reached the complainant personally. When the request was received by the complainant personally is a matter which would be established by evidence.
• [45] In particular, his Honour said:11

The consequences of failing to respond within the 28 days are very serious for the complainant (the complaint lapses and cannot be renewed). Justice would normally demand that such a consequence only follow a conscious act of the complainant.

• [46] I accept that the authorities relied on by the Senior Member did not support the decision she made. To that extent, the Senior Member made an error of law. The decision is set aside.

11 Pp 6-7.

• [47] However, pursuant to s 146(a) of the QCAT Act, for the reasons that follow, I confirm the original decision but for different reasons.
• [48] The issue here is when the respondent was given notice in accordance with the AD Act and hence when the 28 days commenced. The appellants say it is clearly 15 May 2023. It is clear, and was accepted by the Senior Member, that the email was sent on that day to the respondent's address for service, although that point was not made to the Senior Member.
• [49] However, given the guillotine effect of the section, it is important for the Tribunal to look at the interaction between the Commissioner and the respondent. It is clear that the respondent advised she was not aware of the notice given on 15 May 2023. As a result, the Commissioner sent a further notice on 29 May 2023 to the respondent and advised her that she had 21 days to reply. It is clear that this is the date of the notice. It would be inappropriate to hold the respondent to the original date when she was advised by the Commissioner, whose responsibility it is to give the notice, that she had 21 days from 29 May 2023.
• [50] So, but for the intervening events, in the ordinary course, the time to reply would be 28 days from the date when the email is sent to the respondent's address for service.
• [51] The review decision is affirmed but for different reasons and accordingly, the appeal is dismissed.

The application for leave to appeal granted. The appeal is dismissed.

The original decision of the Tribunal made on 22 January 2024 is affirmed but for the reasons set out.