Discrimination

Discrimination law governs the protection from and prevention of unlawful treatment on the basis of various attributes including race, sex, sexuality, age, disability, pregnancy, marital status, religion or political belief or activity.

Factsheets

• Discrimination claims in the Federal Circuit Court

External Resources

• Australian Human Rights Commission– The Australian Human Rights Commission is Australia’s independent human rights body which also helps people resolve complaints of discrimination and other breaches of human rights through their complaint handling service.
• Queensland Human Rights Commission (QHRC)– The Queensland Human Rights Commission receives and deals with complaints of discrimination and other contraventions of the Anti-Discrimination Act 1991 (Qld), and promotes human rights in Queensland.
• Discrimination and sexual harassment fact sheet– Legal Aid Queensland provides a detailed fact sheet on the law around discrimination and sexual harassment.

Where to go for help

• Queensland Advocacy for Inclusion (QAI)– Systems advocacy and legal advocacy organisation for people with disability in Queensland
• LawRight is an independent, not-for-profit, community-based legal organisation that operates a civil law referral service for pro bono legal representation and direct legal services for particular disadvantaged client groups. For more information about the help available, and the process for applying for help, please see the LawRight website at lawright.org.au. If your matter has not resolved in the Queensland Human Rights Commission (QHRC) and is proceeding to QCAT, LawRight may be able to help you through our Court and Tribunal Services.

This resource is current as of 21 February 2024

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

Going to QCAT

The Queensland Civil and Administrative Tribunal (QCAT) is an independent tribunal that can resolve disputes, make and review decisions about anti-discrimination, administrative matters, building disputes, disputes over children and young people, guardianship, minor civil disputes, consumer and debt disputes as well as other civil matters if the amount in dispute is less than $25,000.

External resources

• Queensland Civil and Administration Tribunal – QCAT Homepage.

Where to go for help

• LawRight is an independent, not-for-profit, community-based legal organisation that operates a civil law referral service for pro bono legal representation and direct legal services for particular disadvantaged client groups. For more information about the help available, and the process for applying for help, please see the LawRight website at www.lawright.org.au. LawRight runs a Service to assist people representing themselves in QCAT.

This resource is current as of 21 February 2024

Going to QCAT factsheets

• Queensland Civil and Administrative Tribunal – Jurisdiction

• Unmeritorious proceedings and conduct causing disadvantage in QCAT

• Accessing your QCAT file

• Appealing a QCAT decision – Appealing a QCAT decision to the QCAT Appeal Tribunal or Queensland Court of Appeal

• Costs in QCAT

• Enforcement of a monetary decision of QCAT

• Hearings in the Queensland Civil and Administrative Tribunal

• QCAT review of a decision made by Child Safety

• Representation in QCAT

• Witnesses in QCAT

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

Appealing a QCAT decision

This fact sheet outlines the options which may be available to you if you disagree with a decision made by the Queensland Civil and Administrative Tribunal (QCAT), and wish to appeal the QCAT decision to the QCAT Appeal Tribunal or Queensland Court of Appeal.

Reading this fact sheet about the options which may be available to you is the first step. You should then seek legal advice, either by engaging a private solicitor, visiting a lawyer at your local community legal centre, or applying for help from LawRight’s Court and Tribunal Services, before commencing any action.

References to legislation in this fact sheet are to provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and the Queensland Civil and Administrative Rules 2009 (QCAT Rules). An enabling Act may set out requirements which override these provisions. An enabling Act is another Act which gives QCAT the jurisdiction to hear a particular matter. For example, if the matter relates to guardianship and administration, then the enabling Act is the Guardianship and Administration Act 2000.

Applying to re-open a proceeding or set aside a default decision

There are alternative options to appealing a decision which may be available to you depending on the circumstances when the decision was made.

If you did not attend the hearing when the decision was made or if significant new evidence has become available to you since the time of the hearing, you may be able to apply to re-open the proceedings. (ss 136 – 141 QCAT Act).

For an example of QCAT’s consideration of a re-opening application see Davana Timber Industries Pty Ltd v Cool [2012] QCAT 201 (PDF 60KB).

If QCAT has made a decision by default because you did not respond to an application for a minor debt made against you, you may be able to apply to set aside the decision (s 51 QCAT Act). Factors which QCAT will consider in deciding an application to set aside a default decision include:

• whether the applicant can demonstrate a prima facie defence;
• whether the applicant can provide an explanation as to why they failed to file a response;
• whether the applicant delayed in making the application to set aside the decision;
• the applicant’s good faith, including their conduct in the proceedings before and after the default decision was made; and
• whether the other party would be prejudiced if the default decision was set aside.

For an example of QCAT’s consideration of a setting-aside application see Garland and Anor v Bulter McDermott Lawyers [2011] QCATA 151.

Deciding whether or not to appeal

It is very important to first apply for written reasons for the decision. A person is entitled to request reasons for a decision within 14 days after the decision takes effect, which is usually the day on which the decision was made (s 122 QCAT Act).

You can apply for request for reasons online using the QTranscripts online portal. More information about requesting reasons is available on the QCAT website.

QCAT will have 45 days to respond to your request. In response you may receive a transcript or audio recording of the part of the hearing where the reasons for the decision were provided orally (s 123 QCAT Act).

You will need to read through the reasons for the decision carefully, noting how QCAT came to its decision. In particular you should note:

1. What findings of fact were made?
2. What legal rules did QCAT apply?
3. How did QCAT apply the legal rules to the facts?
4. Were there any defects in the procedures that QCAT used?
5. Did QCAT consider everything that it was required to consider, or omit to consider anything that it was required to consider?

Answering these questions will help you to understand how QCAT made its decision and to identify any errors which would justify you commencing an appeal.

If the decision you are seeking to appeal has been made by another entity with appeal rights to QCAT, for example the Office of the Information Commissioner, then you will need to look at the relevant legislation to determine your rights to written reasons, which may be different to those provided by the QCAT Act.

Questions of law versus questions of fact

An appeal of a decision can be made on a question of fact or a question of law, or both.

If you believe QCAT made a decision which is factually wrong, for example, if you believe QCAT misinterpreted the evidence or made a wrong finding of fact, then you would appeal on a question of fact.

If you believe QCAT made a decision which is legally wrong, then you would appeal on a question of law. An appeal on any of the following grounds is an appeal on a question of law:

• the decision applies the wrong law to the facts of the case;
• the decision misinterprets the meaning of legislation;
• the decision fails to apply relevant law;
• the decision makes a finding of fact where there is no evidence to support that finding;
• the Tribunal did not have jurisdiction to make the decision;
• the Tribunal breached the rules of natural justice in making the decision.

For an example of QCAT’s consideration of an appeal based on questions of law see: Commissioner for Children and Young People and Child Guardian v Lister [2011] QCATA 22.

Whether you seek to appeal on a question of law or on a question of fact or both is relevant because it will impact upon whether you need to apply for leave (permission) to commence appeal proceedings.

The distinction between a question of fact and law is one which even the most senior judges of our courts disagree on from time to time so you should not be too concerned if you are unable to categorise the errors which you believe QCAT has made.

If you are unable to make the distinction, you can proceed to apply for an appeal on questions of mixed fact and law.

Can I appeal, and if so, where do I file my appeal?

Your appeal rights will be determined by the type of decision you are seeking to appeal and the type of QCAT member who made the decision.

QCAT members may be judicial or non-judicial.

• A judicial member is the President or the Deputy President of QCAT, or a judge of the Supreme or District Court or a former judge nominated by the President to constitute the tribunal.
• Non-judicial members are all other QCAT members, including adjudicators.

Matters heard by judicial members

QCAT decisions made by judicial members are appealed to the Queensland Court of Appeal.

An appeal can be made on a question of law as of right, or otherwise with the leave of the Court of Appeal (s 149 QCAT Act).

Also, the following decisions of the QCAT Appeal Tribunal can be appealed on a question of law with the Court of Appeal’s leave (s 150 QCAT Act):

• The Appeal Tribunal’s final decision; and
• A cost-amount decision (A cost-amount decision is a decision about the amount of costs to be paid, either fixed or assessed by QCAT under s 107 of the QCAT Act. See our factsheet Costs in QCAT).

Matters heard by non-judicial members

QCAT decisions made by non-judicial members are appealed to the QCAT Appeal Tribunal, which is an internal appellate jurisdiction within QCAT.

You will need to apply for the Appeal Tribunal’s leave to appeal (s 142(3) QCAT Act):

• on a question of fact or mixed fact and law;
• a minor civil dispute decision;
• a decision which is not QCAT’s final decision (unless it is a decision under the Guardianship and Administration Act 2000 (Qld) – see s 101 of that Act) and
• a costs order.

In deciding whether to grant leave to appeal the Appeal Tribunal will consider:

• Is there a reasonably arguable case of error in the primary decision?
• Is there a reasonable prospect that the applicant will obtain substantive relief?
• Is leave necessary to correct a substantial injustice to the applicant caused by some error?
• Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?

See

• Amundsen v Queensland College of Teachers [2011] QCATA 2 (PDF 50KB), which provides an example of the Appeal Tribunal’s consideration of these factors.

See also McDermott v Chief Executive, Office of Liquor and Gaming Regulation [2011] QCATA 065 (PDF 74KB), where the Appeal Tribunal considered an application for leave to appeal an Interlocutory order (non-final decision). In this case, it was confirmed that leave to appeal an interlocutory decision will not normally be granted unless there is sufficient reason to doubt the correctness of the decision and there would be a substantial injustice if leave to appeal is refused.

If you are thinking about appealing a minor civil dispute decision you may also wish to refer to the QCAT fact sheet, Appealing a QCAT decision.

No right to appeal certain decisions

When a person makes an application to QCAT or a matter is referred to QCAT, the principal registrar may decide to reject the application or referral on certain grounds (s 35 QCAT Act). The applicant may request that this decision be referred to QCAT for review (s 35 (4)(b) QCAT Act). The subsequent decision of QCAT, following the review, is not appealable (ss 142(2)(a) and 149(4) QCAT Act).

A decision to either grant or refuse an application to re-open proceedings is also not able appealable. Such a decision is final and cannot be challenged, appealed against, reviewed, set aside, or called in question in another way, under the Judicial Review Act 1991 or otherwise (s139(5) QCAT Act).

Powers and procedure – appeals to the Appeal Tribunal

The QCAT Appeal Tribunal is usually constituted by 1, 2 or 3 judicial members of QCAT. The normal rules and procedures of QCAT apply.

Application to appeal or leave to appeal

• An application for leave to appeal and/or appeal must be made using a QCAT Form 39, Application for leave to appeal or appeal (PDF 284KB).

Time limits

Typically, the Appeal Tribunal will process a leave to appeal and appeal application at the same time. However, the time limits for filing these applications are different, so you can file them separately if you wish.

If you do not need to apply for the Appeal Tribunal’s leave to appeal, then an application to appeal must be filed within 28 days after receiving written reasons for the decision (s143(4)(a) QCAT Act).

If you need to apply for leave to appeal, then that application for leave must be filed within 28 days after receiving written reasons for the decision (s 143(3) QCAT Act). If leave is given, then the application to appeal must then be filed within 21 days after the day leave is given (s143(4)(a) QCAT Act).

The Appeal Tribunal has a discretion to extend these time limits, but will only do so if an extension would not cause prejudice or detriment to a party to the proceedings that is not able to be remedied by an appropriate order for costs or damages (s 61(3) QCAT Act).

See further:

• Litzow v Racing Queensland Pty Ltd [2010] QCAT 414] where QCAT allowed an applicant to file an application for review of a decision out of time.
• Hargreaves v Burnitt [2011] QCATA 351 (PDF 54KB) where an extension of time was not granted because the applicant did not demonstrate a reasonably arguable case on appeal and did not provide sufficient reasons to explain their delay.

Powers on appeal

An appeal is not a chance to “have another go”. The Appeal Tribunal will be limited in what it can do by the functions set out in the QCAT Act. An enabling Act may also confer certain functions on the Appeal Tribunal, or vary or exclude functions conferred by the QCAT Act (s 6 QCAT Act)

If the appeal is on a question of law only, the Appeal Tribunal may:

• Confirm or amend the decision;
• Substitute its own decision;
• Set aside the decision and return the proceeding to QCAT or the other entity who made the decision for reconsideration; or
• Make any other order it considers appropriate (s146 QCAT Act).

If the appeal is on a question of fact or mixed law and fact, the Appeal Tribunal may:

• Confirm the decision;
• Amend the decision; or
• Substitute its own decision (s 147 (3) QCAT Act).

The Appeal Tribunal must decide an appeal on a question of fact or mixed law and fact by way of rehearing. This means that the Appeal Tribunal determines the rights and obligations of the parties under the law as at the date of the rehearing. The Appeal Tribunal may decide an appeal with additional (new) evidence, but this discretion is only exercised where that evidence:

• could not, by reasonable diligence, have been obtained for the original hearing;
• is credible; and
• might have produced an opposite result.

See Folkes v M J G Constructions (Aust) Pty Ltd [2011] QCATA 192, paragraphs 41 – 44 (PDF 149KB).

Reasons for decision

The Appeal Tribunal must give reasons for its final decision in writing to each party to an appeal, any other person required to be given a copy of the reasons under an enabling Act or the QCAT Rules, and any other person the Appeal Tribunal reasonably considers should be given notice of the decision (s 148 QCAT Act).

Powers and procedure – appeals to the Court of Appeal

An appeal to the Court of Appeal is made under the Uniform Civil Procedure Rules 1999 (Qld) (s 151 (2)(a) QCAT Act). The Court of Appeal is a division of the Supreme Court and is very different to the Appeal Tribunal.

Time limits

An appeal, or an application for leave to appeal, to the Court of Appeal against a decision of QCAT must be made within 28 days after the day the person is given written reasons for the decision being appealed against (s 151 (2)(b) QCAT Act).

Powers on appeal

In deciding an appeal on a question of law the Court of Appeal may:

• confirm or amend the decision;
• set aside the decision and substitute its own decision;
• set aside the decision and return the proceeding to QCAT for reconsideration, with or without the hearing of additional evidence; or
• make any other order it considers appropriate (s153 QCAT Act).

In deciding an appeal on a question of fact or mixed law and fact, the Court of Appeal may:

• confirm or amend the decision; or
• set aside the decision and substitute its own decision (s 154 QCAT Act).

An appeal on a question of fact, or mixed law and fact, must be by way of rehearing, with or without the hearing of additional evidence as decided by the Court of Appeal (s 154(2) QCAT Act).

See our fact sheet Appeals in the Queensland Court of Appeal – how to bring an appeal for more information.

Does an appeal stop the operation of the decision?

The start of an appeal does not affect the operation or enforcement of the decision being appealed against. However, the Appeal Tribunal, the Court of Appeal, or QCAT as constituted when the decision was made, may order a stay of the original decision until the appeal has been decided. A stay may be granted on the application of an appellant (ss 145 and 152 QCAT Act). A stay will only be granted if the appellant satisfactorily demonstrates that the balance of convenience favours staying the decision. See King v King [2010] QCATA 84 (PDF 85KB) where the Appeal Tribunal determined that the balance of convenience favoured the granting of a stay.

This resource is current as of 21 February 2024

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.