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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Purje v Department of Education and Training  QCAT 303
Department of Education and Training
General administrative review matters
4 August 2020
On the papers
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – GENERALLY – where case does not comply with technical rules of pleading – where much material unrelated to orders that Tribunal could make – where threshold to dismiss application is high – where material facts can be gleaned from reading of contentions and material as a whole – where Tribunal is not jurisdiction where parties expected to exchange particularised pleadings – where findings in other jurisdictions not determinative of issues before Tribunal – where questions of fact properly considered at full hearing and not dealt with summarily – where seeking orders outside jurisdiction is not ground to summarily dismiss application – where summarily dismissing application for failing to properly plead outcomes would effectively impose unnecessary technical requirement on person with impairment, contrary to Tribunal’s statutory obligations – where Tribunal not satisfied that applicant understood risk of complaint being dismissed if he did not confine outcomes to those within Information Privacy Act 2009 (Qld)
Information Privacy Act 2009 (Qld) s 176, s 178, Schedule 3
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, s 29, s 47, s 48, s 95, s 97, s 98, s 99
Alexander v State of Queensland & Anor  QCAT 142
Attorney-General v Michael  WASCA 181
Beck v Kerry M Ryan Pty Ltd  QCAT 38
Craig v Ravenshoe Community Centre Inc. & Ors  QCAT 67
Dey v Victorian Railways Commissioner (1949) 78 CLR 62
Felstead v Bundaberg Homes Pty Ltd  QCAT 294
General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gobus v Cairns and Hinterland Hospital and Health Service & Ors  QCAT 134
Harrison v Terra Search Pty Ltd & Ors  QCAT 128
Jones v Queensland Health  QCAT 167
Lohe v Bird  QSC 23
McKinnon v State of Queensland and Anor (No 2)  QCAT 566
Mineral Resources Engineering Services Pty Ltd v Commonwealth Bank of Australia  QSC 232
Murtagh v QBCC  QCAT 258
Olindaridge Pty Ltd & Ors v Tracey  QCATA 40
Property Three Pty Ltd v Kallar & Anor  QCATA 127
Singh v Chief Executive of the Department of Transport and Main Roads  QCAT 497
Smith v Corporation of the Synod of the Diocese of Brisbane & Ors  QCAT 117
Spencer v Commonwealth (2010) 241 CLR 118
State of Queensland & Anor v Aigner  QCATA 151
Talbot v Boyd Legal (A Firm) & Anor  QSC 80
Virgtel Ltd & Anor v Zabusky & Ors  QSC 213
Yeo v Brisbane Polo Club Inc.  QCAT 261
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
What is this application about?
- The issue I must decide is whether I grant or refuse a miscellaneous matters application to dismiss OCL032-19 made by the Department of Education and Training (the Education Department).
- In deciding this matter, I am not deciding the substantive issue that is the subject referral. I must decide whether the referral should be dismissed or struck out. Having said that, in determining that application, I need to decide if the referral is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process. To do this I need to examine the submissions of the parties. This includes all the submissions made to date. This consideration is for the purposes of this application only and is in no way a substitute for a decision being made in any other aspect of OCL032-19.
- On 29 August 2018 Dr Purje (the respondent in this miscellaneous application but hereafter referred to as applicant due to being the applicant in the substantive matter) lodged with the Office of the Information Commissioner Queensland (the Office) a privacy complaint against the Education Department (the applicant in this miscellaneous matters application but hereafter referred to as the respondent due to being the respondent in the substantive matter) under the Information Privacy Act 2009 (Qld) (IPA).
- On 9 January 2019 the Office accepted the complaint of Dr Purje on the basis that there was a possible argument for a breach of the IPA. The mediation discussions took place between 9 January and 15 April 2019 with the matter ultimately remaining unresolved.
- Section 175 of the IPA provides that if a privacy complaint lodged with the Office is not able to be resolved then the Office is required under the IPA to inform the parties that they have the option of referring the matter to the Queensland Civil and Administrative Tribunal (QCAT).
- As a consequence of this information being imparted to the parties a referral was received by QCAT on 29 April 2019.
- In this referral Dr Purje claims, inter alia, that he is the victim of inappropriate action towards him on the part of the Education Department and that this action amounts to a breach of the IPA.
Miscellaneous matters application
The Education Department submissions – Miscellaneous Matters application
- The respondent Education Department made an application for miscellaneous matters. This application applied to dismiss or strike out proceeding OCL032-19. The respondent seeks the dismissal or striking out on the basis that Dr Purje’s application it is frivolous, vexatious or misconceived or is otherwise an abuse of process.
- Submissions received from the Education Department (20 February 2020) referred to the characterisation of the respondent’s behaviour in Dr Purje’s application. The Education Department submitted that this behaviour did not amount to a breach of the IPA. It was their submission that it therefore followed that there is no reasonable prospect that the tribunal would find that the email, the behaviour in question, breached the respondent’s obligations under the IPA Information Privacy Principle (IPP) 8.
- It was submitted that the information in the email was accurate and that the respondent had taken reasonable steps to ensure that it was accurate at the time the information was used. Further it was “doubtful” that the information contained in the document was under the respondent’s control as required by IPP 8.
- The respondent submitted that only part of the relief sought by the applicant was available pursuant to section 178 of the IPA.
- The applicant sought relief as follows: of $190,000 in lieu of superannuation; the loss of wages for period of three years and seven months; a letter of apology and financial compensation of $500,000.
- The respondent pointed out that section 178(a)(iv) provides that the Tribunal could make an order that Dr Purje is entitled to a maximum amount of not more than $100,000.
- It was submitted that apart from an order for apology as provided by section 178(a) (iii) the applicant was seeking relief that was not available to him under the IPA. Additionally, the amounts claimed, presumably as compensation, were unsupported by evidence filed by the applicant. A further submission was there is no prospect that the applicant could establish on the balance of probabilities that such losses were suffered by him because of the act or practice complained of i.e. he could not blame a breach of the respondent’s obligations under the IPA by use of his personal information in an email dated 8 August 2017 for any of the loss he claims he has suffered.
- The respondent submitted that even if the applicant could establish a breach of their obligations and the IPP 8 (which was denied by them) there is no prospect that the applicant could establish that the breach caused the economic losses suffered.
- A further limb to their submissions was that the referral should be dismissed or struck out pursuant to section 48(1) Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) due to the applicant conducting the proceedings in a way that unnecessarily disadvantaged the respondent. Examples of such disadvantage were cited as by failing to comply with tribunal directions and/or vexatiously conducting the proceedings.
- Additionally, it was alleged that the 77-page document filed by the applicant on 10 June 2019 did not address the directions issued. It was submitted that the document contains submissions and further allegations and rhetorical statements that may be largely irrelevant to any issue open to the tribunal. Also, the earlier 28-page document filed on 2 December 2019 did not address the relevant directions.
- The respondent stated that they were greatly disadvantaged because the applicant had not complied with the directions of the tribunal requiring him to particularise his case and identify the evidence he intended to rely upon.
- The respondent submitted that it could not comply with the tribunal’s directions because it could not understand the case that it was to meet. It was submitted that the failure of the applicant to comply with the directions of the tribunal had caused ongoing cost to the respondent and a delay in the proceedings, causing additional disadvantage to the respondent.
- In summary they said the referral lacked reasonable grounds and the applicant had demonstrated disregard for the procedural directions of the tribunal.
Dr Purje’s submissions – miscellaneous matters application
Allegations against legal representatives
- Dr Purje filed material in the Tribunal on 24 February 2020. This document made allegations against the Education Department, including very serious allegations. Dr Purje in his submissions of 7 February 2020 makes allegations against the legal representatives of the respondent. In the absence of any justification for these allegations I find no basis for such allegations and find them to be inappropriate and baseless.
History of submissions
- The applicant referred to external events including the Australian Royal Commission into Banking without linking this in any way to his own application. He also attached the Code of Conduct for the Queensland Public Service. Dr Purje’s submissions relating to the inclusion of this material did not link the subject matter to his own circumstances. It was difficult to establish what Dr Purje saw as his claim and what remedies he submitted flowed from this claim. It was difficult to appreciate what evidence he would be relying upon to prove this claim.
- Due to an ongoing lack of clarity in the matter I issued directions on 15 April 2020. I directed that the parties file a joint agreed chronology of relevant dates and events relating to the dispute. The parties did not comply with this direction as neither party could agree to a chronology.
- Ultimately submissions in response to the directions of 15 April 2020 were received by the tribunal from both parties.
- The specific question that I am required to resolve is whether there should be a dismissal of Dr Purje’s referral to the tribunal.
Orders sought by Dr Purje
- Originally Dr Purje requested from the tribunal orders that quite arguably could not all be provided under the legislation. Dr Purje filed his response on 3 June 2020 to the detailed directions issued by the tribunal. He set out his own chronology, commencing with the statement “context is everything”. Dr Purje outlined a series of no doubt distressing events that occurred to him commencing with the tragic death of a work colleague (in 2012). The applicant then proceeded to traverse material and information that had already been dealt with in previous submissions e.g. material about a Work Cover Queensland claim including medical history details. This material did not relate directly to the allegation that was made in relation to a possible breach of IPP 8.
Submissions in response to the tribunal directions of 15 April 2020
- In his response to whether it was common ground that he had provided his curriculum vitae on 18 November 2016 he started with the date (18 November 2016) he emailed his resume/ curriculum vitae to Ms McGuire. This was followed by a long recitation of what he saw as the history of his interactions with the Education Deportment dating from this time.
- In 2017 Dr Purje applied to be transferred to Doomadgee State School. At this time, he was no longer a teacher at Burrowes State School. He stated that the Education Department “had not chosen to return him to work until August 2016 and that took place at Beerwah State School”. He remained at Beerwah State School till the end of 2016. He was informed at the end of 2016 that he would not be returning to that school. He said no return to work was put in place by the Education Department. He informed the Queensland Teachers Union that he wanted to be transferred to Doomadgee to be with his wife. There was communication between the Queensland Teachers Union and the Education Department. He was informed by the Queensland Teachers Union that his transfer to Doomadgee was in place. In April 2017 he joined his wife who was living in Doomadgee.
- Dr Purje submitted that he was not asked to provide a resume in his 2017 application and that Ms McGuire had already received his resume in 2016.
Provision of resume and the accuracy of the email 8 August 2017
- When asked whether there was a distinction between curriculum vitae and resume he stated that they were used for the same purpose. The second part of the direction that required submissions on was the accuracy of Ms Wasson’s email of 8 August 2017. The submissions sought were on the point of whether the accuracy or otherwise was an essential issue in the application and if so does it involve a dispute as to whether previous submission of the curriculum vitae in 2016 was sufficient. Dr Purje’s response was that Ms Wasson’s email of 8 August 2017 was incorrect.
- He submitted that both Ms Wasson and Ms McGuire (Principal, Doomadgee State School) deliberately lied. He said the correct version of events was that when he arrived in Doomadgee in April 2017 he went to the supermarket, Ms McGuire was shopping at the same time, his wife introduced him, Ms McGuire responded with a cursory nod and then Ms McGuire and his wife were involved in small talk. He said that this was the only time he had met with Ms McGuire in 2017. Dr Purje did not clarify what he was trying to convey with this information or how it related to a possible breach of the IPA. He stated that was the only day he had met Ms McGuire in 2017.
- At the start of the new school year (2018) he said that he was met by the Deputy Principal, Ms Jackson. Ms Jackson presented him with a one-page sheet of paper and informed him that the sheet of paper was his teaching duties and times. He did not see Ms McGuire.
- The directions of 15 April 2020 required the parties to respond to whether Dr Purje was transferred to Doomadgee on 18 January 2018. The applicant responded that he was transferred to Doomadgee in April 2017. Based on other material filed in this proceeding this is the date of his residential transfer not his work commencement date.
- He started that Ms McGuire and Ms Wasson and senior members of “the Mary St Office of the Department” as well as the Queensland Teachers Union were aware of his arrival in Doomadgee. He said he was not offered work in Doomadgee when he arrived. He was in contact with the Queensland Teachers Union as the month went by. He was informed by the Queensland Teachers Union that they had no idea why he was not being placed at Doomadgee. He was informed by the Queensland Teachers Union that the Education Department administrators were saying that “he would never be employed by the Department”.
- Dr Purje made several allegations about the Education Department. He said that they had not met their own code of conduct. He stated that what took place in 2017 (not specifically the email of 7 August 2017) had caused him financial stress . To alleviate this financial stress the Queensland Teachers Union provided him with a $5,000 loan. His submission was that the Queensland Teachers Union continue to engage with the Education Department to have him placed in Doomadgee in 2017 but that this did not occur in 2017.
- Dr Purje submitted that Ms Wasson, through the Queensland Teachers Union, directed him to attend a third medical appraisal. He did this under duress and protest. In December 2017 Dr Purje said that he received a generic email informing him that he had been placed as a teacher in Doomadgee and that he was to start in 2018.
- Direction 2 (g) of 15 April 2020 required submissions on the following: in the light of the successful application to transfer what remedies could be available to Dr Purje, for example, further than an apology or an order under section 178 (b) of the IPA.
- Dr Purje’s submission in response to this this appears to be housed under heading of “remedies”. He stated that “the (Education) Department were aware of the impact of their decisions and actions on his person, his professional standing and in his life”. He submitted that this awareness was through Work Cover and the Queensland Government Code of Conduct and this awareness and knowledge of the impact of the decisions directed at him was supported by the email sent on 28 July 2017. This email was authored by Ms Samantha Byrne writing to Ms Wasson, with a carbon copy being sent to Ms Rena West. It was stated that this email included communication of decisions that were taking place and being made by Ms Paula McGuire.
- Dr Purje considered it inconceivable that as part of the communication process and information being openly shared that Ms Wasson and Ms McGuire were not aware or had not known or had not discussed the resume he had sent on 18 November 2016. He believed that information such as this “is shared and declared as policy and standard procedure”. He submitted that this email of November 2016 informed Ms McGuire about his professional expertise and included his resume.
- In paragraphs nine and ten of his submissions Dr Purje said that his life matters. He submitted that the remedies he sought would never outweigh “the damage, humiliation and immense financial damage the Education and Training Department had deliberately inflicted upon (him)”. Further “the remedies need to be openly and transparently reflecting this damage”. He repeated “my life matters”.
- Dr Purje referenced Mr Lim’s, Acting Privacy Commissioner, letter of 6 February 2019 that included the words that “financial compensation for injury to feeling or humiliation suffered can be a component of resolution of a privacy complaint”. Based on Mr Lim’s quote from the IPA legislation the applicant submitted that the remedies that were the available to him were maximum amount of $100,000 and the unreserved apology. Dr Purje attached a lengthy draft apology. He submitted that the public interest necessitates it be published as a full-page publication in the earliest edition of the Courier Mail, a newspaper.
- The remedies ultimately sought by Dr Purje in his latest submissions represent a change to the original orders he sought from the tribunal.
- Doctor Purje also attached a document called “What is justice” - a transcript of a lecture given in August 2014 by the then Chief Judge of Victoria.
Education Department further submissions – miscellaneous matters application
- On 3 June 2020 the respondent’s submissions in response to the directions of 15 April 2020 were received by the Tribunal. The respondent had submitted a chronology on 6 May 2020. In these submissions they stated that there “clearly remained many facts in issue in the proceedings”. (emphasis added)
- The respondent submitted that it was established that the applicant provided a curriculum vitae to Ms McGuire by email on 16 November 2016.
Resume and application to transfer
- It was agreed that the applicant was employed by the respondent throughout 2017 but was absent on leave from his substantive positions at Landsborough State School then Beerwah State School and this was the case through terms one and two. The applicant applied to transfer to Doomadgee State School on 28 July 2017.
- They submitted that Dr Purje’s 28 July 2017 application for transfer was submitted by email to the respondent's Director of Human Resources, Business Partner, partnering in the South East region. The respondent’s contention is that the applicant did not attach his resume to the application of 28 July 2017 and he did not nominate referees and provide their contact details. They submit this is relevant in assessing whether a breach of the IPA has occurred.
- Ms Wasson's email of 8 August 2017 appears to be an issue for Dr Purje. The Education Department submitted that although Dr Purje had emailed a resume to Ms McGuire on 18 November 2016, he had not provided a resume with his application for transfer on 28 July 2017. The respondent submits that Ms Wasson’s email was referring to the application of 28 July 2017. It therefore follows that if there was not a resume attached with the application on 28 July 2017, Ms Wasson was accurate when she wrote that “ He has not provided a resume, refused to provide referees and directed the Principal not to contact his previous supervisors that there was no resume with his application”.
- As Ms McGuire was an employee when Dr Purje sent her his resume (18 November 2016) the respondent accepted the statement made by Ms Wasson “that he had not provide the resume was strictly not was strictly inaccurate”. However, there does not appear to be a dispute between the parties that the applicant had not provided a resume to the respondent with his application for transfer made on 28 July 2017. There is no dispute between the parties that the applicant did not provide referee details to the respondent at any time before Ms Wasson's email of 8 August 2017. Therefore, it is the respondent’s submission that Ms Wasson’s statement about the resume is not a central issue.
Breach of IPP 8?
- The respondent submitted that the central issue in the application is whether or not the respondent breached IPP 8 of the IPA by failing to take all reasonable steps to ensure, that having regard to the purpose for which the information is proposed to be used, the information is accurate and completely up to date in that context. The respondent relied upon submissions made as part of an earlier response to the application (29 July 2019).
- In summary they state that they received the applicant’s application for transfer to Doomadgee then various emails were exchanged internally. Within these emails it was identified that the applicant’s transfer application had an omission of a resume and referees’ details. They also noted the applicant’s previous absence from work due to illness.
- During this time period Ms Byrnes had been liaising with Ms McGuire in relation to the applicant’s transfer. Ms Byrnes would relay the information provided by Ms McGuire to Ms Wasson.
- Specific emails are referred to e.g. on 28 July 2017 Ms Byrnes emailed Ms Wasson additional information including that the Doomadgee State School Principal’s “background checkes [sic] have proven unfavourable and she's determined Dr Purje would not be a not be a good fit for the Doomadgee community”.
- In an email dated 28 July 2017 from Ms Byrne to Ms Wasson she wrote:
Please note: In addition to information previously provided this application has been approved by the substantive region with no resume uploaded, no supporting documents for compassionate transfer and no referees indicated. There is great concern that the applicants applying for positions in remote locations are expected to provide less information than those applying for positions in major centres, when in fact it should be the opposite considering the context they will be required to teach in.
- On 3 August 2017 Ms Wasson received an email from Ms Byrne which stated that the application of Dr Purje was missing a resume, referee details and support documents. This email also included that the application had been supported by the South East region as pressing personal circumstances. This was due to the information received about the applicant’s circumstances (it named separation from spouse) then the application was in the category of compassionate transfer. As no supporting documents had been uploaded to indicate the transfer should be on grounds of exceptional hardship and given the grounds for pressing personal circumstances “the guidelines clearly state the application is to be considered as part of the usual transfer process therefore our region is not required to consider it the applicant for transfer prior to commencement of the new school year”.
- Another email referred Ms Wasson’s of 8 August 2017. This email was sent to Ms Hastie-Burrows and copied in Ms Byrne and Ms Payne. This email is in largely similar terms to the “disputed” email. The “disputed” email is Ms Wasson's email of 8 August 2017. On 8 August 2017 Ms Wasson attempted to recall an email she had sent as she sought to add some additional wording. Then on 8 August 2017 Ms Wasson sent the “disputed” email as extracted in the submissions before the tribunal. The “disputed” email was a slightly revised version of the email sent earlier.
- It was submitted by the respondent that in the proper context in which Ms Wasson sent the disputed email her statement that “the applicant had not provided a resume as required” was accurate. Further it was it is submitted by the respondent that Ms Wasson took all reasonable steps to ensure that the information was accurate having regard to the purpose for which the information was used.
Submissions in favour of dismissal
- In submissions in response to direction 2 (g) of the directions of 15 April 2020 the respondent relied upon previous submissions (20 February 2020). These stated that the tribunal could not be satisfied that the applicant’s complaint was substantiated and as such the complaint should be summarily dismissed. This dismissal should occur pursuant to sections 47 and/or 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)(the QCAT Act) or dismissed with a finding that the complaint is not substantiated pursuant to section 178 of the IPA.
If complaint is substantiated - remedies
- The respondent submitted that if the tribunal is satisfied that the applicant’s complaint is substantiated the only remedies available to the applicant, having regard to these successful application to transfer, would be an order pursuant to section 178(a)(iii) that the respondent apologise for its interference with the applicant’s privacy and an order pursuant to section 178 of the IPA that if the complaint is substantiated an accompanying order be made in the terms that no further action is required to be taken.
- The respondent relied upon and repeated previous submissions on summary dismissal. The Education Department stated that apart from an order for an apology provided by section 178 (3) the applicant sought relief not available to him by a complaint under the IPA.
- It was further submitted that the amounts claimed as compensation were unsupported by any evidence filed by the applicant.
- It was the Education Department’s submission that even if the applicant could substantiate his claim for lost income and superannuation there was no prospect that the applicant could establish, on the balance of probabilities, that such a loss was suffered by him because of the action or practice complained of i.e. a breach of the respondent’s obligations under the IPA caused by use of his personal information in the email dated 8 August 2017.
- Additionally if it was possible for the applicant to establish a breach of the respondent’s obligations under IPP 8, by use of his personal information in email (which was denied by the respondent), it was submitted that the applicant could not establish that the breach caused the economic losses allegedly suffered.
- The respondent also submitted that there was no evidence before the tribunal that any practice of the respondent warranted any order pursuant to section 178 (a)(i) or section 178 (a)(ii) and as such no order was sought. Similarly, the order pursuant to section 178 (a)(iv) sought by the applicant is not supported by any evidence before the tribunal that the applicant has suffered any expenses in connexion with making the complaint therefore no remedy pursuant to section 178(d) is available.
- To this point I have spent a large part of these reasons setting out the factual issues and the submissions. This is a process made more difficult by the simple fact that an enormous amount of what has been submitted by Dr Purje is completely irrelevant to his application.
- Multiple attempts have been made by the tribunal to narrow the issues and to focus the parties, in particular the applicant, upon the issues that could be determined within the jurisdiction of the tribunal. These attempts have been largely unsuccessful. Dr Purje continued to file material that, while obviously very close to his own heart and experience, was completely irrelevant to the legal issues at hand. This information was also outside of the factual scope of what is to be decided by the tribunal. Additionally this material it did not relate directly to his circumstances.
- The courts have traditionally exercised the summary jurisdiction to dismiss claims with caution and it is with such caution that I approach this application.
- It is abundantly apparent that this dispute has already taken an enormous toll timewise, financially and perhaps emotionally on all parties, most particularly Dr Purje. As is often the case in disputes of this nature people adopt defensive positions and seek to prosecute what they perceive to be other wrongs or harms that have been done to them. A referral to the tribunal of a complaint under the IPA is not a vehicle for such collateral goals. The tribunal cannot consider these irrelevancies but does recognise the personal impact of these disputes on individual parties.
- As previously stated, I have spent a large part of these reasons outlining the material submitted by both parties. Such a discussion does not mean that I accept the relevancy of these submissions nor does it mean that I can expand the tribunal’s jurisdiction to accommodate Dr Purje’s long list of issues.
- My role in this matter is to decide whether the miscellaneous matters application for striking out or dismissal should be granted or refused. In order to fulfil this obligation it was necessary for me to consider all of the material filed in the tribunal. As the member deciding the issue of dismissal I will not and have not entered the arena and sought to assist either party with their submissions or the conduct of their cases. In making my decision I am exclusively guided by my legislative duties and the case law surrounding this area of jurisdiction.
- I refer to the decision of Member Hughes in the decision of Gobus v Cairns and Hinterland Hospital and Health Service & Ors. While that case dealt with an Anti-Discrimination Act claim and this matter involves an alleged IPA breach there is much commonality between this case and the discussion had by the learned member in that case. In particular the discussion of the appropriate approach of a tribunal when a case involves an applicant who is unrepresented and this applicant files irrelevant material and does not address the appropriate issues under the legislation and/or address any appropriate remedies including any proof of the amount of compensation being claimed.
… great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.
That caution is amplified within the Tribunal context to conduct proceedings in a way that is accessible, fair, just and according to principles of natural justice. Summary relief to end proceedings early should only be granted in clear cases.
The threshold to dismiss a complaint of reprisal without a full and proper hearing is therefore high. To surmount this, the respondents assert that they have been unnecessarily disadvantaged in responding to the contentions and that continuing to a hearing is an abuse of process.
On its face, much of Mr Gobus’s material is at worst, scandalous and best, irrelevant. Allegations of conspiracy and judicial reprisal and seeking forms of relief not within the Tribunal’s jurisdiction may be considered vexatious. However, the Tribunal is not a jurisdiction where parties are expected to exchange particularised pleadings as would be the case in a court.
The adequacy of Mr Gobus’s contentions is to be considered in a reasonable, realistic and pragmatic way: perfection in pleading practice is not an end in itself. This is especially so in a jurisdiction that contemplates self-representation, embraces cost-effectiveness and eschews an unnecessarily technical approach.
The material facts can be gleaned from a reading of the contentions and material as a whole. Despite the Respondents’ submissions that many of Mr Gobus’s contentions make it impossible to respond in any meaningful way, they have proceeded to analyse them, respond to them, cite evidence and make submissions to refute them. The Respondents have therefore shown a commendable understanding of the case they must meet and not been unnecessarily disadvantaged.
- After consideration of all of the evidence filed in this matter, I find that there is only one incident that may possibly give rise to a breach of the IPA in particular IPP 8. To be clear the incident is the sending of the email of 8 August 2017 and whether that email of itself forms a breach of IPP 8 and the consequences that flow from that. I find this question is most appropriately one for a tribunal member to determine after a hearing. It is at that this time that a decision can be made after a conclusion is reached about whether the facts as established lead to a breach of the IPA and an appropriate remedy.
- It would be well advised for Dr Purje to acknowledge and understand that my finding about dismissal is not a wholesale invitation for him to continue to file irrelevant material. I have decided not to dismiss the application because there is one issue that may be within the tribunal’s jurisdiction i.e. whether the email of 8 August 2017 breached the IPA, in particular IPP 8 and if so what if any remedies may flow from that.
- Member Hughes in Gobus stated:
In a jurisdiction where parties are often not legally represented, it is not unexpected that many of (the applicant’s) contentions have not been articulated with legal precision or may on their face appear to lack merit. The rules and procedures of the Tribunal do not result in the precise identification and statement of the issues in the way court procedures do. Those issues that may be considered vexatious or irrelevant may be curtailed with proper management during the conduct of the hearing. One of the respondents is the State of Queensland. As a model litigant, it will be able to assist the Tribunal.
- Those words ring true in the current circumstances. Dr Purje is not legally represented; he has not articulated his contentions with legal precision and on their face many of them appear to lack merit.
- In common with the Gobus decision many of Dr Purje’s contentions “re-ventilate questions of fact and issues the subject of determinations in other jurisdictions, those findings are not determinative of the issues before the Tribunal”. A tribunal needs to be mindful of its jurisdiction and I caution all parties to be aware of the tribunal’s obligations as a creature of statute.
When should a dismissal be granted?
- In determining whether a dismissal should be granted I considered the decision of State of Queensland & Anor v Aigner  QCATA 151, .
The Tribunal’s role [is] not to decide the case on the evidence before it but, rather, to determine whether an arguable case, no matter how weak, is demonstrated so that a strike out is either warranted, or unwarranted.
- On the face of the material Dr Purje may find it difficult to establish that there has been a breach of the IPA and that any remedy flows from that in his favour. The Education Department has filed a large amount of information that indicates that contrary findings could be made on the evidence i.e. other findings than those sought by Dr Purje.
- However, summary dismissal should not be granted simply because it appears an applicant is unlikely to succeed on an issue of fact. This will need to be properly explored and considered at a full hearing, rather than dealt with summarily.
- Dr Purje should be given an opportunity to present his case in relation to a possible breach of the IPA at a full hearing. From the submissions and evidence before me it appears that there is a question of fact in relation to whether the email of 8 August 2017 was accurate or inaccurate and what if any relevance this has to Dr Purje’s complaint.
- Section 47 of the QCAT Act confers on the Tribunal the power to dismiss or strike out proceedings and relevantly provides that:
- (1)This section applies if the tribunal considers a proceeding of a part of a proceeding is-
- (a)frivolous, vexatious or misconceived; or
- (b)lacking in substance; or
- (c)otherwise an abuse of process.
- (2)The tribunal may-
- (a)if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out;
- In the Tribunal case of Murtagh v QBCC, Member Traves noted that:
- Pursuant to section 47(2)(a) the tribunal may exercise its discretion to strike out or dismiss a proceeding or part of a proceeding brought by an applicant. If a proceeding has been dismissed or struck out under section 47 a proceeding of the same kind relating to the same matter cannot be started before the tribunal without leave.
- The power applies to both the original jurisdiction and the review jurisdiction of the Tribunal.
- The power should be exercised sparingly so that claims that are groundless or which lack merit are barred. If there is a real question to be tried then dismissal at an interlocutory stage is not appropriate.
- Additionally, in the case of Felstead v Bundaberg Homes Pty Ltd, Senior Member Brown noted that:
- Section 47(2)(a) empowers the tribunal to strike out or dismiss a proceeding or part of a proceeding brought by an applicant. It requires the exercise of a discretion by the tribunal. In exercising the discretion it is necessary to consider whether it is either necessary or appropriate to do so in the circumstances.
- The exercise of the discretion to strike out requires a consideration of the factors relevant in an application under UCPR r 171: ensuring the relevant documents filed in the Tribunal disclose a reasonable cause of action or defence, do not prejudice or delay the fair trial of the proceeding, are not unnecessary or scandalous, frivolous or vexatious or otherwise an abuse of process.
- In Beck v Kerry M Ryan Pty Ltd, Senior Member Brown also noted that:
- Section 47 of the QCAT Act is, in effect, a summary judgment power. In an application for summary judgment under the Uniform Civil Procedure Rules 1999 (Qld) current QCAT President Daubney J found in Elderslie Property Investments No 2 Pty Ltd v Dunn:
... the court needs to be satisfied not only that the defendant has no real prospect of successfully defending all or a part of the claim, but also that 'there is no need for a trial of the claim or the part of the claim'.
- As to the onus of proof in an application for summary judgment, Daubney J held:
As this is the plaintiff's application, the burden of satisfying the court of the matters referred to in UCPR 292(2)(a) and (b) rests on the plaintiff: see Qld Park Pty Ltd v Lott; as his Honour observes there, this approach is consistent with that under the former rules. As under the former rules, where a plaintiff leads evidence to make out a prima facie entitlement to judgment, the evidentiary onus shifts to the defendant: see Qld Park Pty Ltd v Lott.
- Summary judgment will be granted in only the clearest of cases. The power conferred by s 47 should only be exercised in those cases where it is clear that a party has no real prospects of success and there is no need for a hearing. For KMR to be successful in the application for summary dismissal, I must be satisfied that has no real prospect of success in the proceeding and that there is no need for a hearing in respect of his claim against KMR. As McMeekin J observed in Reardon v Deputy Commissioner for Taxation:
The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
- Dr Purje’s application is not one where I can be satisfied that I have a high degree of certainty of the ultimate outcome of the proceeding if it were to go to trial in the ordinary way.
- As a result of this I think that it is only fair and reasonable to allow the matter to go ahead regarding the one area that the tribunal has jurisdiction over and not the multiple areas described in Dr Purje’s material and that is whether or not there has indeed been a breach of the Information Privacy Act and if so what was that breach and what if any damage any remedies flow from such a breach.
- Dr Purje has failed to properly identify and submit or plead relevant evidence. However, a careful reading of the material and the submissions does indicate that there is one area of evidentiary contention or factual contention i.e. the accuracy of the email sent by Ms Wasson on 8 August 2017.
- I am not convinced that Dr Purje has understood that conducting his case in the manner that he has done so to date may result in the proceedings being dismissed. In this tribunal examples of parties misunderstanding their obligations are not uncommon. The tribunal is a jurisdiction where most parties are not legally represented. I do not intend to deny Dr Purje a hearing because he does not know what is expected by the tribunal.
- As stated in the Gobus decision:
The Tribunal has an overarching discretion on who can be called to give evidence and may refuse to allow a party to call evidence on a matter or cross-examine a witness.
- This would appear to be an opportune case for the tribunal to exercise the discretion referred to in the previous paragraph.
- It is always a very serious step to deprive a party of a cause of action without a hearing on the merits, and ‘extreme care’ must be taken before doing so.
- It may be that the Dr Purje is ultimately unable to substantiate any of his contentions, but I am of the view that it is appropriate that he be given an opportunity to do so at a hearing.
- As I have decided that this matter should progress to a hearing, unless the parties arrive at an alternative solution, it is appropriate that the issue of any application for costs arising out of this application be reserved and are to be dealt with at the conclusion of the substantive proceedings in OCL032-19.
- The miscellaneous matters application to dismiss or strike out proceeding OCL032-19 is refused.
- Any application for costs arising from this application be reserved to be dealt with at the conclusion of the substantive proceedings in OCL032-19.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 47.
QCAT Act, ss 47, 48.
  QCAT 134, -.
General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125,  (Barwick CJ).
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 28(3)(a).
Dey v Victorian Railways Commissioner (1949) 78 CLR 62; Agar v Hyde (2000) 201 CLR 552,
McKinnon v State of Queensland & Anor (No 2)  QCAT 566, .
Attorney-General v Michael  WASCA 181, , cited with approval in Lohe v Bird  QSC 23 (McMurdo J).
Smith v Corporation of the Synod of the Diocese of Brisbane & Ors  QCAT 117, .
Virgtel Ltd & Anor v Zabusky & Ors  QSC 213,  (Daubney J).
Talbot v Boyd Legal (A Firm) & Anor  QSC 80.
Mineral Resources Engineering Services Pty Ltd v Commonwealth Bank of Australia  QSC
232; Harrison v Terra Search Ltd & Ors  QCAT 128, .
McKinnon v State of Queensland & Anor (No 2)  QCAT 566, .
 QCAT 134, .
Olindaridge Pty Ltd & Ors v Tracey  QCATA 40, .
 QCAT 134, .
Yeo v Brisbane Polo Club Inc.  QCAT 261,  citing Spencer v Commonwealth (2010) 241
 QCAT 258.
 QCAT 294.
 QCAT 38.
 QCAT 134, .
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 95, 97, 98, 99.
Property Three Pty Ltd v Kallar & Anor  QCATA 127, .
- Published Case Name:
Ragnar Purje v Department of Education and Training
- Shortened Case Name:
Purje v Department of Education and Training
 QCAT 303
04 Aug 2020