Leading Authorities

The tables on this page give brief details about cases that provide the leading authority for interpretation of anti-discrimination law in Queensland, and are arranged by topic.

They include cases decided by:

  • Queensland tribunals (the Queensland Civil and Administrative Tribunal and its predecessor the Anti-Discrimination Tribunal Queensland);
  • Queensland Industrial Relations Commission (for work-related matters from 2017);
  • Queensland Supreme Court and Court of Appeal;
  • Commonwealth courts and the High Court of Australia.


The following abbreviations are used in the Leading Authorities tables:

AD Act Anti-Discrimination Act 1991 (Qld)
ADTQ Anti-Discrimination Tribunal Queensland
J, JJ Judge, Judges
para paragraph
PS Act Public Service Act 2008 (Qld)
QCA Supreme Court of Queensland Court of Appeal
QCAT Queensland Civil and Administrative Tribunal
QCAT Act Queensland Civil and Administrative Tribunal Act 2009 (Qld)
QCATA Queensland Civil and Administrative Appeal Tribunal
QIRC Queensland Industrial Relations Commission

Cases referenced in the Leading Authorities list are available from legal websites:

Authorities by topic

Statutory interpretation

Leading authorities - statutory interpretation
Case NameNotes
Waters v Public Transport Corporation (1992) 173 CLR 349; [1991] HCA 29 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.)
  • remedial legislation designed to prevent discrimination and protect human rights should be construed beneficially and not narrowly
  • courts have special responsibility to take account of and give effect to the objects and purposes of such legislation.
State of Queensland v Attrill [2012] QCA 299 (M McMurdo P, Homes JA, Douglas J)
  • inconsistency and whether provisions in different Acts are capable of a sensible concurrent operation
  • Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50, discussed
  • Anthony Hordon & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9, discussed
  • Goodwin v Phillips (1908) 7 CLR 1; [1908] HCA 55, applied
  • exercise of power under section 175 of the Public Service Act 2008 (Qld) is not subject to the prohibitions in the Anti-Discrimination Act 1991
  • power in section 178 of the PS Act is subject to prohibitions in the AD Act.

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Amendment of complaint

These applications are made under section 178 of the AD Act to amend a complaint.

Leading authorities – amendment of complaint
Case nameNotes
MM v State of Queensland [2014] QCAT 478
  • tribunal not bound by any characterisation of the complaint by the Commission. See para [16]
  • the use of the expression clarify in explanatory notes is commonplace, even where the position clearly reverses or substantially changes the legal status quo. See para [22]
  • section 178 of the AD Act permits the amendment of a complaint to bring new allegations involving different prohibited conduct
  • section 178 gives an unfettered discretion to allow amendments to bring new claims
  • the amendments to section 178 established an unfettered discretionary power to allow an amendment to raise a matter notwithstanding that it was not included in the original complaint, and expected the tribunal to exercise the powers in ways which, inter alia, facilitate the just and expeditious hearing of the matters in dispute, to minimise inconvenience and cost associated with that process, and to avoid unnecessary technicality and formality in the process. See para [42]
  • discussion of cases and history of sections 177 and 178, including Mt Isa Mines v Hopper [1999] 2 Qd R 496, [1998] QSC 287, and the unreported decision of de Jersey CJ in Q v X , matter 1830 of 2010.

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Applications to dismiss or strike out

These applications are made under sections 47 and 48 of the QCAT Act to dismiss or strike out a proceeding.

Leading authorities – applications to dismiss or strike out
Case nameNotes
Dey v Victorian Railway Commissioners (1948-1949) 78 CLR 62
  • case must be very clear to justify the summary intervention of the Court to prevent a plaintiff submitting a case for determination in the appointed manner by the Court — see para [91].

Aigner v State of Queensland and Anor [2012] QCAT 397 (Senior Member Endicott)

Note: Affirmed on appeal – State of Queensland v Aigner [2013] QCATA 151 (A Wilson J, Members Howard and Fitzpatrick)

  • claim that human rights have been breached is a factor that bears on the consideration of how QCAT must discharge its statutory obligations to deal with matters in a way that is accessible and fair as well as being just — see para [11]
  • it is the antithesis to being accessible for QCAT to dismiss a proceeding without a hearing on its merits when the case for dismissal is based on a technical construction of the evidence and not on evidence tested by questioning at a hearing — see para [11]
  • given the reasons for passing the AD Act set out in the preamble, it would be incongruous should QCAT be too ready to prevent a person having the benefit of an independent hearing about an alleged breach of their human rights — see para [13].
Gough v State of Queensland [2013] QCAT 320 (Senior Member Endicott)
  • anti-discrimination cases are not dismissed lightly as the law expects that everyone should have the right to equal protection under the law — see para [30]
  • however civil rights are accompanied by civil responsibilities and once proceedings are on foot, it is in the public interest that parties participate fully and expeditiously in the process, without causing unnecessary disadvantage to each other and that parties are willing to take advantage of the processes for dispute resolution before a hearing — see para [30].

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Applications to protect a complainant's interests

These applications are made under section 144 of the AD Act for orders protecting a complainant's interests before referral to QCAT.

Leading authorities – applications to protect a complainant's interests
Case nameNotes
Connor v Evans and Salvation Army [1998] QADT 14 (Member Holmes)
  • not necessary for the applicant to establish a prima facie case, but the tribunal must be satisfied of the existence of a serious issue to be tried.
Brackenreg v Queensland University of Technology [1999] QADT 11 (President Copelin)
  • acceptance of a complaint by the Commissioner is not a necessary prerequisite under the terms of section 144, however, in view of the wide powers of the tribunal under the section, it is preferable that the complaint has been accepted by the Commissioner.
Hastie v Ryan & Ors [2003] QADT 29 (President Sofronoff)
  • the threshold for the applicant to establish the existence of a serious issue to be tried is not a high one
  • having determined the existence of a serious issue to be tried, it is not appropriate for the tribunal to make any further observations.
Transport Workers Union of Australia, Boss and Wood v Boral Resources (Qld) Pty Limited [2006] QADT 10 (Member Forrest)
  • the threshold that an applicant has to clear to establish the existence of serious issue to be tried is not a high one — see para [17]
  • not appropriate for the tribunal to express a concluded view on the serious issue to be tried — see para [26].
Jones v Queensland Health [2010] QCAT 700 (A Wilson J)
  • undertaking as to damages is not an essential or even a necessary condition to the granting of relief under section 144 — see para [11]
  • section 144 uses the words might prejudice — prejudice is plainly used in its ordinary meaning, as a transitive verb: …to affect disadvantageously or detrimentally — see para [12].
McIntyre v Hastings Deering (Australia) Ltd & Anor [2012] QCAT 438 (A Wilson J)
  • wide discretionary power to make orders directed to the maintenance of the status quo for the purpose of enabling the processes under the AD Act to be effectively pursued, and to maximise the opportunity for its objectives to be achieved — see para [14]
  • the nature of any possible prejudice is likely, at this early stage, to lack precision — obligation on applicant to show that a possibility of prejudice exists that is tangible, or, at least, perceptible and plausible, and not too remote or unlikely — see para [18]
  • applications are brought within a discrete statutory framework, not the common law jurisdiction — see para [21].

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Assessment of damages

Leading authorities – assessment of damages
Case nameNotes
Hehir v Smith [2002] QSC 92 (Wilson J)
  • appeal from tribunal where an amount for aggravated damages was awarded — grounds of appeal included, inter alia, the quantum of damages
  • error of principle in the application of the distinction between exemplary damages and aggravated damages — the tribunal made findings of reprehensible conduct which might perhaps have warranted punishment, rather than findings of the infliction of hurt, insult and humiliation — error in law in awarding aggravated damages — see para [42]
  • anti-discrimination proceedings are legally of a different character to proceedings brought in tort — see para [44].
Hall v Sheiban (1989) 20 FCR 217 (Lockhart J)
  • aggravated damages may be awarded in discrimination cases
  • cited with approval authority to the effect that aggravated damages might be awarded where a defendant behaved high handedly, maliciously, insultingly or oppressively in committing the act of discrimination
  • the circumstances in which the conduct occurred may also give rise to an element of aggravation, such as that of employee and employer
  • it is fundamental that an award of a larger amount of damages by way of aggravated damages serves to compensate the victim on the damage occasioned by the defendant's conduct and not to punish the defendant.
Edwards v Hillier & Educang Ltd [2006] QADT 34 (President Dalton SC)
  • section 209(1) of the AD Act does not give the tribunal power to award exemplary damages
  • the power is to compensate, not to punish
  • aggravated damages are in theory regarded as compensatory.
Lee v Smith [2007] FMCA 59 (Connolly FM)
  • significant pain, suffering, hurt and humiliation suffered for 5 or 6 years
  • $100,000 relatively modest sum
  • substantial injury caused by sexual harassment culminating in rape, made worse by victimisation because of making a complaint.
Carey v Cairns Regional Council [2011] QCAT (Member Roney SC)
  • dismissal because of political belief or activity
  • dismissal was a very public event and subject of media coverage, although little evidence to suggest loss of reputation — $30,000 general compensation.
On appeal – Cairns Regional Council v Carey [2012] QCATA 150 (J Thomas AM QC, Senior Member Endicott)
  • grounds of appeal included the assessment of future economic loss, future medical expenses, and general compensation
  • future economic loss must be based on loss of chance to obtain extension of contract of employment — very slight at best — the award of $50,000 was grossly excessive on the evidence — reduced to $10,000
  • same criticism of award of $6,000 for future medical expenses —  claim not made out on evidence
  • evidence of stress and embarrassment due to dismissal — the award of $30,000 was within the discretion of Member.
Gray v Queensland Rail [2000] QADT 3 (Member Pope)
  • correct way to approach assessment of damages envisaged by s 209(1)(b) is to compare the position in which the complainant might have expected to be if the discriminatory conduct had not occurred, with the situation in which the complainant is now placed by reason of the conduct
  • relief must include proper compensation for the loss and damage cause by the contravention
  • in assessment of general damages, take into account any personal injury (in the proper sense) suffered because of the discriminatory conduct, together with damages akin to those awarded in a defamation case
  • complainant only has to act reasonably in mitigating loss
  • onus on the respondent to prove that the complainant acted unreasonably, and failed to mitigate
  • in this case, not reasonable for the complainant to endure consequences of unlawful conduct (as opposed to taking voluntary retirement as he did) pending a determination of his rights.
Barney v State of Queensland [2012] QCAT 695 (Member Suthers)
  • damages for racial discrimination at work — major depressive episode
  • principles similar to those for assessment of damages in tort [132]
  • general damages assessed at $55,000 — discounted by 30% for other causes to $40,000.
On appeal – State of Queensland v Barney [2013] QCATA 104 (A Wilson J, Senior Member Oliver)
  • causal connection between illness and offending acts was addressed by the tribunal and the same temporal connection was found — that finding was open on the evidence — finding of significant cause was open — decision to reduce by 30% was unexceptionable.
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 (Kenny, Besanko and Perram JJ)
  • damages for non-economic loss for sexual harassment increased from $18,000 to $100,000
  • assessment of non-economic loss is not to be determined by an accepted range but rather by the nature and extent of the person's injuries and prevailing community standards
  • community standards now accord a higher value to compensation for pain and suffering and loss of enjoyment of life than before.
McCauley v Club Resort Holdings Pty Ltd (No. 2 ) [2013] QCAT 243 (Member Gordon)
  • remoteness of damage
  • loss or damage caused by the contravention in section 209(1)(b) — common law test of remoteness does not apply, but as the tribunal must make an award that is appropriate , there is scope to adjust award once the loss or damage caused by the contravention is ascertained — the result might achieve same or similar result as remoteness test
  • correct test for causation — the but for test is a useful tool to demonstrate what is not caused by the contravention — conduct materially contributes to loss and damage
  • principle for awarding interest: the reason for an award of interest is to compensate for the loss or detriment which is suffered by being kept out of the money during the relevant period — awarding interest on non-financial loss assessed at its correct amount at the date of the hearing will over compensate a complainant and would therefore not be appropriate within the meaning of that word in section 209(1)(b).

Green v State of Queensland [2017] QCAT 008

Member Gordon

  • discussion on how QCAT should assess damages in light of the 2014 decision of the Full Court of the Federal Court in Richardson v Oracle
  • cases citing Richardson examined
  • consistency in awards is important, and required under the QCAT Act
  • where there is a recognisable personal injury, QCAT should continue the approach of consistency with Queensland Court awards in personal injury cases
  • where there is no recognisable personal injury, and therefore no comparable Queensland awards, QCAT can be influenced by Richardson to increase level of awards if it is appropriate to do so
  • when considering previous awards, those awards should be adjusted for inflation
  • interest on non-financial loss should be awarded unless there is a proper reason for not doing so, though not at a commercial rate

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Burden of proof

Leading authorities — burden of proof
Case nameNotes
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Latham CJ, Rich, Starke, Dixon and McTiernan JJ)
  • principle: in determining whether evidence allows that degree of persuasion that amounts to proof of an allegation, a tribunal of fact must bear in mind the gravity of the allegation made and the seriousness of the consequences to a party against whose interest any adverse finding might be made.
  • the decision-maker must be reasonably satisfied , or feel an actual persuasion or feel comfortably satisfied they have reached a correct and just conclusion — at 361.
McCauley v Club Resort Holdings Pty Ltd (No. 2 ) [2013] QCAT 243 (Member Gordon)
  • no shifting of onus if prima facie case established — one step process, not a two step process
  • when inferences are properly reached — must be evidence from which facts may be found or inferred — tribunal must be satisfied by rational deduction and more than mere speculation, guesswork or assumption, that discrimination has occurred
  • no issue estoppel or res judicata in proceedings before QIRC on WorkCover claim.
D v G & O Pty Ltd [1997] QADT 8 (Member Keim)
  • complaint of race discrimination in pre-accommodation area
  • principles applying to circumstantial evidence and drawing inferences:
    • an inference must not be drawn if there are more probably explanations available than the alleged discrimination
    • if a credible explanation is not available, that does not of itself establish the interference sought to be drawn from the circumstances
    • however a lack of credible explanation may allow an inference already available on the primary facts to be drawn with greater certainty.

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Direct discrimination

Leading authorities – direct discrimination
Case nameNotes
Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92; [2003] HCA 62 (Gleeson CJ, Callinan, Gummow, Hayne, Heydon, Kirby and McHugh, JJ.)
  • meaning of disability
  • circumstances that are the same or are not materially different
  • comparator test — identify the circumstances
  • whether less favourable treatment because of disability.
Woodforth v State of Queensland [2017] QCA 100; [2018] 1 Qd R 289 (Holmes CJ, McMurdo JA, Bond J.)
  • need to construe the statute from a consideration of the statute as a whole
  • Purvis distinguished
  • the Disability Discrimination Act 1992 did not contain an equivalent of s 8 of the Anti-Discrimination Act 1991 , by which the meaning of discrimination on the basis of an impairment is defined to include discrimination on the basis of a characteristic of that impairment
  • deafness is an impairment, and communication by means of Auslan is a characteristic that persons who are deaf usually possess ( Lyons v State of Queensland (2016) 90 ALJR 1107; [2016] HCA 38)
  • the effect of s.8 of the Anti-Discrimination Act , in combination with s 10, is to proscribe discrimination on the basis of the applicant's inability to communicate by speech
  • that proscription would be ineffective if the characteristic of the impairment was also treated as a circumstance in the comparison for the purpose of s 10
  • the complication in Purvis of the behaviour also being an incident of the disability, did not exist in the present case.
Waters v Public Transport Corporation (1992) 173 CLR 349; [1991] HCA 49 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.)
  • direct and indirect disability discrimination
  • intention or motive to discriminate not necessary
  • exemption under Vic Act — necessary to comply with provision of another Act.
IW v The City of Perth & Ors [1997] HCA 30 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby, JJ.)
  • meaning of services
  • whether applicant an aggrieved person
  • identification of comparator
  • whether refusal on the ground of
Bellamy v McTavish & Pine Rivers Shire Council [2003] QADT 15 (Member Dalton)
  • hypothetical comparator — paras [50] to [53]
  • substantial reason.

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Application of Purvis by ADTQ

Leading authorities – direct discrimination  - application of Purvis
Case nameNotes
Cockin v P & N Beverages Australia Pty Ltd [2006] QADT 42 (Member Rangiah)
  • In my view, Purvis does not compel a comparison which takes into account circumstances which are entirely improbable. — para [66]
Edwards v Educang Ltd [2006] QADT 34 (President Dalton SC)
  • Philosophically there is a risk that in closely defining attributes with the meaning of s 7 of the Act and conceptually separating them from their sequelae, the notion of what an attribute comprises will be stripped of meaning, so that s 10 of the Act will only operate to prohibit the grossest kind of discrimination…. — para [86]
  • The objective features attendant on or surrounding the treatment are to be considered as part of the 'circumstances which are the same or not materially different' for the purposes of s10(1)… para [88].

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Genuine occupational requirements

Leading authorities – Genuine occupational requirements
Case nameNotes
Flannery v O'Sullivan [1993] QADT 2 (Member Atkinson)
  • section 25 is objective in its terms — it is not sufficient for a potential employer to set a requirement if it is not objectively required
  • police officers were not required to complete and pass any further fitness / medical tests in order to remain in the service — there was no requirement to report any deterioration.
  • not possible to conclude that eye sight standard was genuine occupational requirement.
Toganivalu v Brown & Department of Corrective Services [2006] QADT 13 (Member Mullins)
  • section 25 involves a 2 stage test — firstly, what are the genuine occupational requirements — secondly, is the complainant capable of performing the genuine occupational requirements — para [95]
  • the determination of what is a genuine occupational requirement is wholly factual - para [103].
Walsh v St Vincent de Paul Society Queensland (No. 2) [2008] QADT 32 (Member Wensley QC)
  • applied the principles in Toganivalu in considering whether being a Roman Catholic was a genuine occupation requirement for the position of President of a Conference
  • viewed objectively, whether being a Roman Catholic is necessary for the discharge of the obligations of president — whether a president who is a non-Catholic, as opposed to a Catholic, would have difficulty in carrying out the position successfully — whether it is essential and indispensable that a president be Catholic — whether the position of president would be essentially the same if the president were not required to be Catholic — para [89].

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Indirect discrimination

Leading authorities – Indirect discrimination
Case nameNotes
Waters v Public Transport Corporation (1992) 173 CLR 349; [1991] HCA 49 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.)
  • inter-relation between direct and indirect discrimination
  • the words requirement or condition should be construed broadly so as to cover any form of qualification or prerequisite — per Dawson and Toohey JJ at 393, and McHugh J at 406-407
  • not necessary that the requirement was imposed, or proposed to be imposed, by way of a positive act or statement
  • compliance may be required even if the requirement or condition is not made explicit: it is sufficient if a requirement or condition is implicit in the conduct which is said to constitute discrimination — per Mason CJ and Gaudron J at 360.
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165; [1989] HCA 56 (Brennan, Deane, Dawson, Gaudron and McHugh JJ.)
  • sex discrimination
  • past discrimination rendered retrenchment on the last on, first off principle discriminatory.
Cocks v State of Queensland [1994] QADT 3 (Member Atkinson)
  • access to premises (Brisbane Convention & Exhibition Centre)
  • special services or facilities exemption
  • unjustifiable hardship
  • reasonableness of term
  • representative complaint.
Mahommed v State of Queensland [2006] QADT 21 (President Dalton SC)
  • Muslim prisoner discriminated against by non-provision of Halal meat
  • differential treatment for direct discrimination
  • identification of the term for indirect discrimination
  • test for reasonableness — objective test, less demanding that a test of necessity but more demanding that a test of convenience — weigh the nature and extent of the discriminatory effect against the reasons advanced in favour of the term on the other, and all other circumstances including those specified in s 11(2).
On appeal - State of Queensland v Mahommed [2007] QSC 018 (A Lyons J)
  • appeal dismissed
  • procedural fairness — consider nature of tribunal in light of statutory obligations
  • tribunal set up in a way whereby it is intended to operate differently from a court
  • that the tribunal may inform itself on any matter it considers appropriate means the tribunal is an inquisitorial tribunal and not a strictly adversarial tribunal (at the time, section 208(1)(b) of the AD Act, now QCAT Act section 28(3)(c), says the tribunal may inform itself in any way it considers appropriate).
C v A [2005] QADT 14 (Member Savage SC)
  • access to residential apartment building by occupant who relied on assistance dog, motorised wheelchair and portable respirator
  • access as a service
  • special services or facilities required — provision of a proximity device to open doors.
Travers v New South Wales [2000] FCA 1565 (Lehane J)
  • ability to comply
  • a reasonably liberal approach is required in assessing whether a complainant was able to comply with the relevant condition — at paragraph [17]
  • (the complainant could literally comply with a condition about using a toilet, but only with seriously embarrassing and distressing consequences).
Hurst v State of Queensland [2006] 151 FCR 562; [2006] FCAFC 100 (Ryan, Finn and Weinberg JJ)
  • ability to comply — serious disadvantage test
  • ...it is sufficient to satisfy that component of... (inability to comply) that a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can cope with the requirement or condition. A disabled person's ability to achieve his or her full potential, in educational terms, can amount to serious disadvantage. — at 585.

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Review of decisions to lapse complaint under s 169

Leading authorities – Review of decisions to lapse complaint under s 169
Case nameNotes
Kavannagh v Cox & WorkCover Queensland [2001] QADT 21 (President Sofronoff QC)
  • the evidential onus under the section is not heavy — explain failure to notify commissioner within the 28 days, and then assert a genuine interest in continuing with the complaint
  • respondent has right to be heard — show rational basis for opposition.
NB: This decision preceded address for service provisions in sections 263F and G which commenced 1 April 2003.
Kelly v Harris, Madigan, Head & Qantas Airways Pty Ltd [2002] QADT 9 (President Sofronoff QC)
  • the function of the tribunal is to consider the matter afresh — not whether the commissioner's decision was justified
  • decide whether the complainant has a genuine interest in continuing with the complaint
  • no obstacle to putting forward new material not before the commissioner
  • matters for tribunal to consider are whether the application for review has been competently made, and whether satisfied the complainant has a genuine interest in continuing with the complaint.
Monion v Baronia, Louanda Enterprises & Jasak Holdings Pty Ltd [2006] QADT 28 (Member Venables)
  • interpretation of s 169(4) — has a genuine interest in continuing
  • function of tribunal to consider afresh the complainant's interest in pursuing the complaint.

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Sexual harassment

Leading authorities –  Sexual harassment
Case nameNotes
Perry v State of Queensland [2006] QADT 46 (President Dalton SC)
  • meaning of unwelcome — paras [120] to [123]
  • in relation to — para [124]
  • posters as indirect sex discrimination
  • distinction between direct and indirect discrimination.
Nunan v Aaction Traffic Services Pty Ltd [2013] QCAT 565 (Member Gordon)
  • comments, banter, sounds and gestures, culminating in an incident — emotional breakdown — major depressive disorder — resigned from job
  • discussion of the different ways of coping with sexual harassment — ideal approach may not be available if employer is likely to be unsupportive or require proof — para [49]
  • decision to resign not unreasonable in the circumstances.

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Unjustifiable hardship

Leading authorities – Unjustifiable hardship
Case nameNotes
K v N School [1997] QADT 1 (Member Holmes)
  • primary school child with learning and intellectual impairments
  • financial hardship to school and stress to inexperienced teachers
  • fine balance between justifiable and unjustifiable hardship
  • unjustified to require small school like N to apply its resources to benefit a small number of children when other schools in the area are equipped to deal with special needs children.
Cocks v State of Queensland [1994] QADT 3 (Member Atkinson)
  • provision of access to front entrance of major public building under construction
  • special facility is lift or other device to provide access with dignity to front entrance
  • cost of $300k small in multi-million dollar project and absence of evidence of financial circumstances — delay of 6 weeks would not delay opening — benefit to many — 10.2% of population of Qld unable to use steps because of impairment.

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Vicarious liability

Leading authorities – Vicarious liability
Case nameNotes
JKL Limited v STU [2018] QCATA 029 (Sheridan J, Member Roney QC)
  • meaning of ‘in the course of work’
  • examination of case law on vicarious liability at common law and statute
  • compares ‘in the course of work’ in human rights and workers’ compensation jurisdictions — workers’ compensation legislation has demonstrably different purposes to anti-discrimination legislation
  • observe importance of context, general purpose, and policy of the statutory provision
  • remedial provisions in legislation that protects human rights ought to be broadly construed
  • the expression ‘in the course of work’ should be applied broadly — wrong to import the doctrine of vicarious liability in tort into an anti-discrimination statutory context
  • ‘in the course of work’ is a limitation on vicarious liability of an employer that does not require the actual performance of a work task
  • would be anomalous if test for vicarious liability of principal/agent was materially different to test of employer/worker
Lee v Smith [2007] FMCA 59 (Connolly FM)
  • discussion of authorities from other jurisdictions where the requirement is ‘in the course of work’ — paras [202] to [205]
  • work related social functions an extension of employment — conduct between employees, arising out of a work situation, and had potential to affect the work environment
  • employer liable for rape of an employee by another employee — rape was the culmination of earlier incidents of sexual harassment directly in the workplace — conduct was an extension or continuation of pattern of behaviour that started and continued to develop in the workplace — nexus with workplace not broken — para [206]
  • the defence (for vicarious liability) should be assessed rigorously with respect to the obligation to take all reasonable steps.
Mt Isa Mines Limited v Hopper [1999] 2 Qd R 496, [1998] QSC 287 (Moynihan J)
  • appeal from tribunal — damages for sex discrimination and sexual harassment — whether tribunal acted on findings not complained of — vicarious liability of employer — adequacy of reasons
  • grounds of appeal included misapplication of sections 132(2) and 175 reasonable steps
  • briefing sessions to 600-700 out of 4,000 employees — printed material distributed to supervisors which made no mention of need to educate employees — no follow up to check on dissemination of information — instructions to remove offensive posters and graffiti — no follow up — employees' handbook distributed — employees gave evidence of no training or information and no complaint mechanisms
  • failed to ensure policies communicated effectively — failed to ensure message about anti-discrimination was known in areas where there was likely to be problems — no attempt to monitor the effectiveness of the training of targeted supervisors — crews not prepared for the induction of women into previously all-male workplace — no monitoring of attrition rate of female employees.
Webb v State of Queensland [2006] QADT 8 (Member Roney)
  • reasonable steps — paras [39] to [58]
  • emphasis is on what steps were taken to prevent the contravention, not the steps taken to mitigate the effects of a contravention — although the extent to which the respondent did provide treatment or counselling to mitigate the effects of the harassment are relevant — para [30]
  • the making of a complaint is not a pre-condition to an employer being required to take action to prevent harassment — para [51]
  • open door complaints policy but nothing more, did not satisfy requirements of section 133(2) — Lulham v Shanahan & Watkins Steel [2003] QADT 11
  • not sufficient to inform complainant that she should speak to harasser and ask him to stop the behaviour, and nothing more — para [58].
KW v BG Limited & Ors [2009] QADT 7 (Member Hogan)
  • reasonable steps — paras [226] to [245]
  • employer did not take reasonable steps to ensure its supervisors fully appreciated that it is their primary responsibility to act so as to provide a work environment free from harassment, and that the respect to be accorded to the wishes of complainants should be subservient to this overriding responsibility — para [243].

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Leading authorities – Victimisation
Case nameNotes
Wadsworth v Akers [2007] QADT 17 (Member Wilson)
  • elements of victimisation
    (a) that a person must do or threaten to do an act — factual issue
    (b) to the detriment of another — discussion of authorities — determined objectively and not subjectively
    (c) causal nexus between detriment and matters in s 130(1)(a) or (b) — matter must be substantial and operative factor behind the conduct.
Cockin v P & N Beverages Australia Pty Ltd [2006] QADT 42 (Member Rangiah)
  • substantial reason for detrimental conduct.

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Leading authorities – Vilification
Case nameNotes
Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen [2012] QCA 170 (De Jersey CJ, M McMurdo P, Muir JA)
  • case stated from QCAT
  • section 124A is not inconsistent with the implied protection of freedom of political communication — section 124A(2)(c) ensures that section 124A is reasonably appropriate and adopted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government
  • QCAT is a court of the State
  • a bisexual person may have standing to bring a complaint of sexuality vilification, depending on the circumstances of the alleged vilification.
Wilson & McCollum v Lawson [2008] QADT 27 (Member Roney)
  • summary of relevant principles to be applied in relation to incitement — para [46] — from GLBTI v Wilks & Anor [2007] QADT 27 at [15], namely:
    (a) The respondents' intent to incite is irrelevant: Burns v Dye [2002] NSWADT 32, para 21; John Fairfax Publications Ltd v Kazak [2002] NSWADTAP 35 at para 1-; Velosky & Anor v Karagiannakis & Ors [2002] NSWADTAP 18, para 24; Burns v Radio 2UE Sydeny Pty Ltd & Ors [2004] NSWADT 267, para 12.
    (b) What is required is that there has been incitement to another to hate etc. rather than a mere conveyance of a hatred already held by the speaker: Burns v Dye supra; Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92-701, 78-266.
    (c) Incite , hatred , contempt and ridicule should all be given the ordinary natural meaning i.e. to incite – urge on, stimulate or prompt to action: Burns v Dye supra 19; John Fairfax Publications Ltd v Kazak supra, para 40.
    (d) It is not necessary that it be proved that any particular person was incited, but that the capacity of the public act to incite the ordinary reasonable person is what must be made out: Deen v Lamb [2001] QADT 20, see also John Fairfax Publications Ltd v Kazak supra; Catch the Fire Ministries v Islamic Council of Victoria [2006] VSCA 284; Burns v Laws (No. 2) [2007] NSWADT 47.
    (e) The incitement to hatred must be on the grounds of sexuality meaning that that matter was a substantially contributing factor : Waterhouse v Bell (1991) 25 NSWLR 99, 106 per Clark JA; Velosky supra; Burns v Dye supra at para 24; Sexuality is defined in the Act's scheduled Dictionary as inter alia homosexuality.
Peters v Constance [2005] QADT 9 (President Dalton SC)
  • Not necessary to show an intention to incite, and not necessary to show that anyone was actually incited [4] — refers to Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267.
Deen v Lamb [2001] QADT 20 (President Sofronoff QC)
  • Not necessary to show that any particular person was incited. The section directs attention towards the nature of the act, not the result of it.
  • The exception for an act done reasonably in good faith for a purpose in the public interest applied in this case
  • good faith refers to the purpose for which the act is done
  • the pamphlet was concise and had been written in moderate language, and there was no suggestion that it had been published or disseminated other than in the electorate
  • The public has an interest in knowing the opinions of candidates, even when those opinions are unreasonable, unsupported, one-sided or even plainly wrong.
Menzies v Owen [2014] QCAT 661 (Member Fitzpatrick)
  • test for act done reasonably — the question of what section 124A(2)(c) contemplates as done reasonably is to be judged by the standards of a contemporary, educated community which is appreciative and respectful of the dignity and worth of everyone. See paragraph [25]
  • test for good faith — referred to the decision of the former Anti-Discrimination Tribunal in Deen v Lamb [2001] QADT 20 and to the decision of the Victorian Supreme Court in Catch the Fire Ministries v Islamic Council of Victoria Inc (2006) 15 VR 207 — the test is whether the conduct was engaged in with the subjectively honest belief that it was necessary or desirable to achieve public discussion of matters in the public interest.See paragraphs [19] to [23] and [66]
  • test for purposes in the public interest — the reference to a purpose in the public interest in section 124A(2)(c) should bear its ordinary meaning of affecting the public at large. See paragraph [26].

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Work health and safety

Leading authorities – Work health and safety
Case nameNotes
Parker v North Queensland Animal Refuge [1998] QADT 4 (Member Coates)
  • where it was not possible to organise the work of an animal refuge to ensure a pregnant worker did not come into contact with cats or cat faeces and the whole of the refuge was a high risk for toxoplasmosis infection — work at the refuge would impose an unacceptable health hazard for the pregnant worker and her unborn child.

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