CITATION:	M v Dental Board of Queensland
Dental Board of Australia [2013] QCAT 554	

PARTIES:	M
(Applicant)	
	v	
	Dental Board of Queensland
Dental Board of Australia
(Respondents)	

APPLICATION NUMBER:	ADL033-10	

MATTER TYPE:	Anti-discrimination matters	

HEARING DATE:	9 September 2013	

HEARD AT:	Brisbane	

DECISION OF:	C Endicott, Senior Member	

DELIVERED ON:	13 September 2013	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	M is granted leave to amend his contentions and to rely on Amended Contentions dated 3 September 2013 and filed in the Tribunal on 4 September 2013.
2.	M must pay the costs of the respondents thrown away as a result of the amendment of his contentions being allowed by this order, such costs to be paid no later than 28 days after the decision in this complaint is published to the parties.
3.	The respondents must file in the Tribunal and send a copy to the representatives of M of particulars of the costs claimed by them by 4:00pm on 30 September 2013.
4.	M must file in the Tribunal and send a copy to the representatives of the respondents of his response to the costs claimed by the respondents by: 4:00pm on 18 October 2013. 
5.	The respondents may file any final submissions on the quantification of their costs by 4:00pm on 23 October 2013.
6.	A member of the Tribunal will make a determination fixing the amount of costs to be paid by M on the papers not before 24 October 2013.

7.	The Tribunal refuses leave to the respondents to withdraw any admissions made in relation to the allegation of direct discrimination.
8.	The application by the respondents for a direction that M is complelled to attend a psychiatric assessment is refused.
9.	The respondents must file in the Tribunal two copies and send another copy to the representatives of M of their response to the latest Amended Contentions by 4:00pm on 27 September 2013.
10.	The respondents must file two (2) copies in the Tribunal and give one (1) copy to M of:
a.	their statements of evidence, which must be page numbered;
b.	a statement from each witness to give evidence for the respondents at the hearing including any experts; and
c.	any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement; 
by 4:00pm on 11 October 2013.
11.	The directions hearing scheduled for 30 September 2013 is vacated.
12.	Any application by M for leave to adduce further evidence must be filed in the Tribunal and a copy sent to the representatives of the respondents no later than 14 days prior to the date of the commencement of hearing of this complaint.   

CATCHWORDS:	ANTI-DISCRIMINATION – where leave sought to amend contentions – where an order for costs found to be adequate compensation for late amendment – where costs properly payable at the conclusion of the proceeding – whether further and better particulars required – where expert medical evidence not required for assessment of impact of identified conduct-  whether party could have a fair hearing if leave to withdraw admission refused

Queensland Civil and Administrative Tribunal Act 2009 ss 3, 28(3)(b), 28(3)(d)
Anti-Discrimination Act 1991 s 10

Aon Risk Services Australia Limited v Australian National University [2009] CLR 175
Ridolfi v Riganto Farms Pty Ltd [2001] QCA 292	

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	S Scott-Mackenzie of Counsel instructed by Maurice Blackburn, Solicitors	

RESPONDENTS:	Dental Board of Queensland and Dental Board of Australia represented by K McMillan QC of Counsel instructed by DLA Piper, Lawyers	

REASONS FOR DECISION
[1]	This complaint has been at QCAT since May 2010.  Part of the complaint, based on allegations of indirect discrimination, was finalised in August 2011 but the rest of the complaint remains undecided. QCAT has scheduled a hearing of the complaint of direct discrimination over three days commencing on 28 October 2013.
[2]	At this late stage of the proceedings and after filing his evidence, M applied for leave to amend his contentions. If leave were to be granted, this would be the second occasion when his contentions were amended.  This amendment application has arisen due to new counsel having been briefed in the last month or so and in the context of M having engaged new solicitors in mid 2013.  
[3]	The respondents do not oppose leave being granted if an order for costs is made for M to pay the costs of the respondents thrown away as a result of a third set of contentions being relied on by M at this late stage of the proceedings.  The respondents, while noting the comments made by the High Court of Australia in Aon Risk Services Australia Limited v Australian National University, that an order for costs may not always provide sufficient compensation for the delay in the resolution of a proceeding by late re-pleading, argued that an order for costs would be appropriate in this case.  I agree.
[4]	If M were to be granted leave to amend his contentions, the respondents will suffer prejudice in that they will be put to considerable effort to respond in a short time period to what are significantly different contentions now sought to be relied on by M.  The respondents are not natural persons but are entities comprised of a number of professional men and women.  The structure of the respondent entities and the need to meet together to consider the amended contentions and to provide instructions to their lawyers to prepare a response will involve considerable time and costs being incurred solely as a result of the contentions being amended.   
[5]	I am satisfied that the prejudice resulting to the respondents by M seeking to amend his contentions can be properly compensated by a costs order. Despite the inconvenience caused to the respondents, there is still adequate time for them to respond to the amended contentions and be ready for hearing at the end of October. On that basis any prejudice caused to the respondents should not result in a refusal of the amendment application.  It is appropriate to exercise discretion to allow the contentions to be amended and it is appropriate for the respondents’ costs thrown away to be paid by M.   
[6]	The respondents argued further that M should be ordered to pay the respondents’ costs within 14 days.  They argued that the source of funding used by the respondents to pay their costs in this proceeding is registration fees paid by dentists and is not unlimited.  However I was not persuaded that a consideration of the nature of the funding structure of the respondents would compel a direction that costs should be paid by M immediately and before the conclusion of the proceedings. There was no evidence that the respondents need to rely on the ordered costs to fund their defence of the complaint or that M would not pay costs if ordered to do so. There was no evidence of previous orders for costs being ignored by him. The appropriate time for payment is at the conclusion of the proceeding after the parties are aware of the extent of obligations imposed on them by the final orders made by the tribunal.
[7]	In addition to the application by M for leave to amend his contentions, the tribunal was asked by the respondents to make directions about the progress of the matter. Most of the directions sought by the respondents were designed to provide an amended timetable for procedural steps for filing of various documents prior to hearing. I agree that an amended timetable is necessary for filing by the respondents of a response to the amended contentions and then for filing their evidence as the existing dates are no longer adequate or appropriate. I made directions for those procedural steps. 
[8]	However, the respondents also wanted the tribunal to include specific directions for further and better particulars of the amended contentions to be requested and then provided.  I was not persuaded that such directions were necessary by the arguments put at the hearing of the application on 9 September 2013.  
[9]	The general case being presented by M that he was subjected to direct discrimination is based on what appears to be a confined series of facts known to the respondents and set out in his contentions. The contentions are the framework used by the tribunal to confine the issues considered at a hearing to the content of the referred complaint and to prevent a party or all parties from straying beyond the issues properly before the tribunal.  The contentions are not intended to be as precise or formal as pleadings in the higher courts.  
[10]	QCAT is not bound by any practices or procedures applying to courts but must act with as little formality and technicality as a proper consideration of the matters before the tribunal permit.  QCAT is not designed to follow the forms and procedures of the courts but, in accordance with its statutory objects, to deal with matters in a way that is accessible, fair, just, economical, informal and quick.  The focus is the tribunal resolving disputes fairly but with a minimum of cost and formality.   
[11]	The respondents argued that they would need further particulars of the impact that M contends that the conduct he objects to has had on him.  I do not agree.  M has abandoned his contention that he developed a form of injury because of the respondents’ conduct towards him and that he has lost income as a result. He now contends that he was offended, embarrassed, humiliated and intimidated by the conduct of the respondents. Those contentions are adequate to set out the claimed impact in the framework required by the tribunal.  
[12]	Before he can succeed in recovering compensation, M will need to adduce evidence that is capable of establishing his claims.  The place to provide that evidence is not in his contentions but in his filed statement of evidence.  As discussed at the hearing on 9 September 2013, he has not yet included sufficient evidence to support his claim for monetary compensation in his filed evidence and unless he obtains leave from the tribunal to file more evidence, he may struggle to establish that part of his claim.
[13]	For the reasons set out in paragraph 11, I was not convinced that directions should be made that M attend a psychiatric assessment at the request of the respondents. M is not proceeding with a claim that he had developed a psychiatric injury. The respondents did not satisfactorily explain how expert medical evidence will assist the tribunal to determine claims that M had been offended, embarrassed, humiliated and intimidated. These personal feelings are not a matter for expert evidence.  To incorporate expert medical opinion into an issue that does not require expert evidence will not assist the tribunal in its determinative role but will rather be a hurdle in the path of the efforts of the tribunal to deal with matters in a manner that is economical, informal and quick.   
[14]	The respondents asked for leave to withdraw any admissions made in relation to the allegation of direct discrimination. Counsel for M objected to leave being granted as sought. The first respondent had submitted in October 2011 that it was not disputed that it had discriminated against M within the meaning of section 10 of the Anti-Discrimination Act 1991.  It was not argued for the first respondent that this admission had been made inadvertently or even in error at the relevant time. The first respondent is represented by the same lawyers who had been actively involved in successfully disputing the claim of indirect discrimination against the first respondent.  The admission that its conduct constituted direct discrimination within the meaning of section 10 has been already been relied on by the tribunal when determining an earlier application for strike out.    
[15]	In opposing leave, counsel for M has relied on authorities which emanate from the courts and which involve consideration of the Uniform Civil Procedure Rules and a formalised process of pleadings. The cited authorities were not particularly useful given the less formal procedure of QCAT and the provisions in section 28(3)(b) of the QCAT Act which make it clear that QCAT is not bound by any practices or procedures applying to courts.  
[16]	Nevertheless the following comments made by Williams JA in Ridolfi v Riganto Farms Pty Ltd are helpful when considering how QCAT should exercise its discretion on the question of leave to withdraw admissions: ‘…it encapsulates a principle which a judge must always take into consideration in determining whether or not it is appropriate…to allow a party to withdraw an admission.  Essentially it is no more than a recognition that courts will, so far as possible, ensure that a party has a fair trial.’   The issue is whether refusing leave to the respondents will prevent them from having a fair hearing in this complaint.  I am satisfied that they can have a fair hearing with the admission remaining in place.
[17]	When making the submission that there was no dispute over direct discrimination within the meaning of section 10, the respondents went on to indicate that liability was not being admitted for a breach of the Anti-Discrimination Act 1991 as the case of the first respondent, and by implication, the second respondent as well, was that their actions were exempted from liability by other specific provisions in the Act. The concession made cannot inevitably result in liability but does reduce the issues to be determined by the tribunal and places a focus on the issues arising from the relevant exemptions.  
[18]	If leave to withdraw were to be granted, it is likely that the contentions of M would have to be again amended in addition to the amended version filed on 4 September 2013. There may be a need to call further evidence called from witnesses and the suitability of the allocated hearing date in late October 2013 would come under some challenge.  There must be some finality to this complaint.  It has important issues to be determined, not just for the parties but for other dentists, health professionals and the public in general.  
[19]	As I am satisfied that the respondents will have a fair hearing, even if restricted to whether the statutory exemptions apply in this case, and in the absence of the respondents putting forward a persuasive reason to support the withdrawal of the admission made in October 2011, I am not prepared to exercise discretion to grant leave for the admission to be withdrawn.  While the application made by the respondents sought leave to withdraw “any admissions”, no other specific admissions about direct discrimination were adequately identified during the hearing.