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PROCESS IN THE ANTI-DISCRIMINATION TRIBUNAL QUEENSLAND
It normally takes a month or more for the
Commission to prepare a referral report for the Tribunal and the first
step the Tribunal takes is to issue directions comprising a timetable
for the preparation of the case for hearing. Where a party is legally
represented, the Tribunal will generally require the preparation and
exchange of Points of Claim and Points of Defence as the first step.
The Points of Claim set out the essential facts and grounds of a
complaint. Where a party is unrepresented, the Tribunal will normally
make the exchange of witness statements the first step.
In addition, the Tribunal will require that any
medical reports be filed at this stage. It may be advisable for a
complainant to obtain an independent specialist medical report
providing an independent assessment of their pain and suffering. It is
also open to the respondent/s to have a complainant examined by a
specialist of their choosing.
A further conciliation conference is generally
scheduled after these steps. This conference is similar to the
conference held in the Commission and most matters settle at this
stage. Even if the claim is not settled at this further conference,
further settlement discussions can take place between the parties up to
the date of hearing.
If the matter cannot be resolved at this further
conference, then the Tribunal will make further directions involving
the disclosure of relevant documents by the parties and the preparation
and exchange of witness statements. The principal evidence of witnesses
is given by written statement so it is important that these statements
are as complete as possible. It is also important to have supporting
witness statements if possible. Often there are no first hand witnesses
to discrimination or those witnesses are unwilling for personal reasons
to become involved. In this situation, evidence from any persons,
friends or relatives to whom the complainant reported or mentioned the
discrimination at the time it occurred may be of value.
After these steps have been taken, the matter will
then be listed for dates of hearing before the Tribunal. A single
Tribunal member presides over the hearing. Tribunal members are
normally experienced barristers. The Tribunal hearing takes the same
format as most court cases. In addition to your solicitor, it is normal
practice for both parties to have a barrister presenting their case in
the Tribunal. The barrister for the complainant will make an opening
statement outlining the complainant’s case and the evidence
to be presented. The written witness statements form the principal
evidence for the case. The complainant and each witness who has given a
witness statement for the complainant can be cross examined by the
barrister for the respondent/s. A similar process occurs with the
respondent/s and their witnesses. Each of the party’s
barristers can make closing submissions and the Tribunal member will
then normally go away to consider their decision. The decision is made
in writing with reasons and can take up to a month or more to be
provided.
If a complainant is successful, then the Tribunal
member will consider what compensation should be awarded as a result of
the discrimination. If the complainant is successful, the Tribunal will
normally order that the respondent/s pay the complainant’s
legal costs of the claim, although this will not generally compensate
for all the legal costs of a claim. If the complainant loses their
claim, then costs may be ordered against them. The Tribunal has a
discretion in this regard and it is not automatic for costs to be
awarded against a losing complainant. This is a factor to be considered
in deciding whether to proceed with a claim in the Tribunal or in
defending a claim with the other party’s costs alone often
exceeding $30 000.00 in addition to the legal costs of each party.
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Judicial Process