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Robertson v McDonald's Australia Limited (No 2)[2022] ICQ 11

Robertson v McDonald's Australia Limited (No 2)[2022] ICQ 11

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Robertson v McDonald’s Australia Limited (No 2) [2022] ICQ 11

PARTIES:

[REDACTED] ROBERTSON

(appellant) v

McDONALD’S AUSTRALIA LIMITED

(respondent)

FILE NO/S:

C/2021/23

PROCEEDING:

Appeal and applications

DELIVERED ON:

29 April 2022

HEARING DATE:

20 April 2022

MEMBER:

Davis J, President

ORDER/S:

  1. The appeal is allowed.
  2. The orders of the Queensland Industrial Relations Commission made on 8 October 2021 are set aside.
  3. The appellant’s application AD/2021/7 be stayed until the appellant files a Notice of Facts and Contentions which places the respondent on proper notice of the case it must meet.
  4. The respondent has liberty to apply for further relief concerning the Notice of Facts and Contention after 8 October 2022.
  5. The application filed on 23 March 2022 is dismissed.
  6. As to the application filed on 25 March 2022, it is ordered that the appellant shall be referred to in the judgments in the appeal proceeding as “Mr Robertson” with no reference to his Christian name.
  7. The first application filed on 28 March 2022 is dismissed.
  8. The second application filed on 28 March 2022 is dismissed.
  9. The third application filed on 28 March 2022 is dismissed.
  10. The application filed on 31 March 2022 is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OF THE COURT BELOW – where the appellant made complaint of contravention of the AntiDiscrimination Act 1991 – where the Queensland Human Rights Commission referred the complaint to the Queensland Industrial Relations Commission (QIRC) – where the QIRC ordered the appellant to file a statement of facts and contentions (SOFC) – where the respondent alleged that the SOFC did not place it on notice of the case it had to meet – where the respondent applied to dismiss or stay the proceedings – where the QIRC stayed the proceedings on terms – where the terms included that the appellant be represented by an independent person – whether the SOFC was defective – whether the proceedings should have been stayed – whether the terms imposed were beyond power – whether the terms imposed were appropriate – whether irrelevant considerations were taken into account in imposing the terms

Anti-Discrimination Act 1991

Industrial Relations Act 2016, s 530, s 554, s 557, s 565

Uniform Civil Procedure Rules 1999

CASES:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, followed

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, followed

House v The King (1936) 55 CLR 499, followed

Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332, cited

Robertson v McDonald’s Australia Limited [2021] QIRC 344, related

Robertson v McDonald’s Australia Limited [2022] ICQ 007, related

APPEARANCES:

Mr Robertson, the appellant and applicant, appeared for himself

P Willoughby instructed by Colin Biggers & Paisley Lawyers for the respondent to both the applications and the appeal

  1. [1]
    The appellant, Mr Robertson, made a complaint against the respondent, McDonald’s Australia Limited (McDonald’s) alleging breaches of the Anti-Discrimination Act 1991.  Those complaints were referred to the Queensland Industrial Relations Commission (QIRC).
  1. [2]
    This appeal is from interlocutory orders made in the QIRC staying Mr Robertson’s proceedings on terms.  Mr Robertson has also brought various applications in the appeal.

Background

  1. [3]
    Mr Robertson applied for employment at a McDonald’s Mount Isa store in 2019.[1] He complains of age discrimination in the course of that application in contravention of the Anti-Discrimination Act 1991.  The Queensland Human Rights Commission referred the complaint to the QIRC.
  2. [4]
    A conciliation conference was heard in the QIRC on 5 May 2021.  That was unsuccessful in resolving the complaint and so a directions order was made.  That required Mr Robertson to file and serve a statement of facts and contentions (SOFC) and then for a response to be made by McDonald’s.
  3. [5]
    Mr Robertson’s conduct became difficult for the Industrial Commissioner managing the case, the Registry staff and McDonald’s.  Mr Robertson sent many emails to the Registry, filed applications which were not sensible and was difficult during mentions of the matter before the QIRC.[2] An SOFC was filed by Mr Robertson, albeit late.  McDonald’s alleged that the SOFC was defective.
  4. [6]
    On 4 August 2021, McDonald’s filed an application.  The primary relief sought was the dismissal of Mr Robertson’s application on the basis that it allegedly disclosed no arguable case.  Alternatively, McDonald’s sought an order that Mr Robertson’s proceedings be stayed until:
    1. he filed a proper SOFC; and
    2. he obtained legal representation in the proceedings.
  5. [7]
    On 8 October 2021, the QIRC made the following orders:

“1.  The application to dismiss or stay proceedings filed on 4 August 2021 by the respondent is dismissed;

  1. Pursuant to s 451(2)(b) and (c) of the Industrial Relations Act 2016 (Qld) matter number AD/2021/7 is stayed until 8 October 2022 or until further order; and
  2. Matter number AD/2021/7 be listed for mention on a date to be advised not before 8 October 2022.”
  1. [8]
    The Industrial Commissioner gave qualified leave to Mr Robertson to apply to lift the stay.  Although not strictly part of the formal orders, that leave was conditioned upon the application being made “through an appropriately engaged independent representative”.
  1. [9]
    Relevantly, the Industrial Commissioner said this in the reasons for judgment:

[62]  In all of those circumstances, I propose to stay these proceedings. I do not intend to stay the proceedings indefinitely. I intend to stay the proceedings for a period of 12 months.

  1. [63]
    I further intend to allow Mr Robertson through an appropriately engaged independent representative to have leave to apply to lift the stay on the basis that the representative will be continuing to represent Mr Robertson. I consider Mr Robertson’s interests would be best served by representation from an independent person or organisation, skilled in advocacy in discrimination complaints.
  1. [64]
    It ought to be understood that the effect of the stay is that, with the exception of an application from a representative acting on his behalf, no further communications will be entered into by my chambers or the Industrial Registry with Mr Robertson in these proceedings. The resources of the Commission and Industrial Registry are reserved for the administration of active matters.
  1. [65]
    If no application to lift the stay is received from Mr Robertson in the 12 month period, I will give consideration to the final disposition of the matter following expiry of the stay.”[3]
  1. [10]
    The appeal proceeded on the basis that the grant of conditional leave to seek to lift the stay was an order made by the Industrial Commissioner.  That was sensible in my view.  In deciding to make the orders which he did, including in relation to the conditional grant of leave to lift the stay, the Industrial Commissioner reasoned:
    1. the SOFC was defective in that it did not explain the case which McDonald’s was called on to meet;[4]
    2. Mr Robertson’s case may have merit;[5]
    3. it is a serious step to summarily determine the case against Mr Robertson and in exercise of discretion the Industrial Commissioner would not do so;[6]
    4. as to the alternative relief sought by McDonald’s, the QIRC has no jurisdiction to order that a party be legally represented;[7]
    5. Mr Robertson has had difficulty in communicating with the QIRC during mentions, and with the Registry staff[8] and it is in his interests that he not represent himself;[9]
    6. therefore, the proceedings ought to be stayed for a period of a year with Mr Robertson to have leave to lift the stay once a complying SOFC is filed and he is represented by an independent representative.

The appeal

  1. [11]
    Mr Robertson’s application to appeal attaches a 12-page document which I will call “the grounds of appeal document” containing 34 numbered paragraphs and finishing with some general allegations.  That document is attached to these reasons as Schedule 1.
  1. [12]
    Many of the allegations in the grounds of appeal document do not directly relate to the decision under appeal.  They consist of allegations against McDonald’s and are relevant, if anything, to the final merits of the case still before the QIRC.
  2. [13]
    In my view, the grounds of appeal document raises the following matters relevant to the appeal:
    1. the Industrial Commissioner is biased and the decision the subject of appeal was made in bad faith;
    2. contrary to what Mr Robertson sees as a finding by the Industrial Commissioner that he has no case, he has a good one;
    3. as to the Industrial Commissioner’s finding that the SOFC is defective, it is not;
    4. it was an improper exercise of discretion to stay the proceedings;
    5. staying the proceedings on condition that he be represented was not appropriate.
  1. [14]
    The appeal was brought pursuant to s 557 of the Industrial Relations Act 2016 (IR Act).  That, relevantly, provides:

557 Appeal from commission

  1. (1)
    The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—
    1. (a)
      error of law; or
    2. (b)
      excess, or want, of jurisdiction.
  2. (2)
    Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than—

 (a)  error of law; or

 (b)  excess, or want, of jurisdiction. …

(4) If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2). …”

  1. [15]
    An appeal can be brought as of right on grounds of error of law or excess or want of jurisdiction[10] and by leave on any other ground.[11]  
  2. [16]
    The application for leave is limited by s 565 of the IR Act.  It provides:

565 When leave for appeal must be given

If an application for leave to appeal is made under section 554, 557 or 560, the Court of Appeal, court or full bench—

  1. (a)
    must give leave if it is satisfied it is in the public interest to do so; and
  2. (b)
    may not give leave other than under paragraph (a).”
  1. [17]
    There is no suggestion that anything in the present appeal raises questions of public interest and so Mr Robertson’s appeal is limited to errors of law or excess or want of jurisdiction.
  2. [18]
    McDonald’s does not cross-appeal.  It does not submit that the Industrial Commissioner committed an error of law or acted beyond jurisdiction in refusing to dismiss Mr Robertson’s application.
  3. [19]
    On 17 March 2022, I heard an application by McDonald’s for leave to be represented by solicitors and counsel upon the hearing of the appeal (the representation application).  The representation application was opposed by Mr Robertson.  I allowed the application and made the following orders on 21 March 2022:

“Leave is given to McDonald’s Australia Limited to be represented by solicitors and counsel upon the hearing of the appeal.”[12]

  1. [20]
    Those orders were made upon acceptance of two undertakings given by McDonald’s in these terms:

“1. to conduct the defence of the appeal as if it were in the position of the model litigant and by applying the model litigant principles; and

 2.  not to seek costs of the appeal against Mr Robertson.”[13]

  1. [21]
    The reference in those undertakings to the “model litigant principles” is a reference to the model litigant principles published by the Queensland government on 4 October 2010.
  2. [22]
    Mr Robertson clearly disagreed with the decision to allow McDonald’s to be represented and he filed a series of applications.
  3. [23]
    Schedule 2 to these reasons contains the details of the decision sought and the grounds of each application.
  4. [24]
    Further applications were sought to be filed by Mr Robertson but were rejected by the Registry.  There is no current appeal or other challenge to the decisions made by the Registrar to reject those applications.  They can be ignored.

Determination of the appeal and the various applications

  1. [25]
    I turn firstly to the applications.

Application 1

  1. [26]
    Application 1 seeks that I disqualify myself for various reasons, namely:
    1. apprehended bias;
    2. actual bias;
    3. conflict of interest;
    4. “interference”;
    5. “error or want in actions”.
  2. [27]
    The grounds are seemingly based on the manner in which I heard and decided the representation application.
  3. [28]
    Any “error” made in deciding the representation application may form a ground of appeal to the Court of Appeal,[14] but not a ground upon which I disqualify myself from hearing the appeal.
  4. [29]
    The essence of Mr Robertson’s complaint is that in allowing McDonald’s to be represented and securing the undertakings given, I “horse traded” with Mr Robertson’s right to appear against an unrepresented litigant.  In other words, Mr Robertson was not interested in the undertakings and does not consider, notwithstanding the undertakings, that McDonald’s should be legally represented.
  1. [30]
    McDonald’s was never going to be represented by a lay person.  McDonald’s has in-house lawyers who could appear as of right.[15] Mr Robertson’s real complaint is that in accepting the undertakings and giving McDonald’s the right to appear by private counsel and solicitors, I have allegedly shown bias against him.
  2. [31]
    In Ebner v Official Trustee in Bankruptcy,[16] the High Court held that a judge ought not hear a case where the lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question that the judge is required to decide in the case.  That requires, firstly the identification of what it is said might lead the judge to decide the question otherwise than on its legal and factual merits, and secondly an articulation of a logical connection between that matter and the risk that the judge will decide the matter otherwise than on its legal and factual merits.
  3. [32]
    Nothing in the disposal of the representation application would lead to any reasonable apprehension of bias in the mind of a lay observer.  McDonald’s had a right to apply under s 530 of the IR Act for the orders which they ultimately obtained.  Whether leave was given was a matter of discretion to be exercised within the express and implied boundaries of s 530.  Extracting the undertakings from McDonald’s was simply a step taken in balancing the respective rights of McDonald’s and Mr Robertson.  Application 1 fails.  I heard the appeal.

Application 2

  1. [33]
    Mr Robertson seeks a “non-publication order” to the limited extent of identifying him only as “B. Robertson” in any appeal judgments.  That application is not opposed.  Mr Robertson has raised this issue before.  In the decision on the representation application,[17] Mr Robertson is described in the heading to the document as “[Redacted] Robertson (appellant)”.  No reference to Mr Robertson’s Christian name appears anywhere in that judgment or this one.  Application 2 is allowed.  I order that the appellant shall be referred to in judgments in the appeal proceedings only as “Mr Robertson” with no reference to his Christian name. Application 3
  2. [34]
    Mr Robertson seeks to have an email from Legal Aid Queensland dated 25 March 2022 received into evidence on the appeal.  That email advises that Mr Robertson will not be given further advice by Legal Aid about the proceedings in the QIRC.  It further advises him that he may apply for legal aid to be legally represented in the proceedings.  
  3. [35]
    The email is irrelevant to the appeal.  The QIRC did not order that Mr Robertson must be legally represented in the proceedings before it.  The only condition was that he be represented “through an appropriately engaged independent representative”.[18]  Application 3 is dismissed.

Application 4

  1. [36]
    Application 4 seeks the admission into evidence of a public notification by the Australian Taxation Office that McDonald’s has been convicted of taxation offences.  That document is irrelevant to the appeal and ought not be admitted.  Application 4 is dismissed.

Application 5

  1. [37]
    Application 5 seeks that “the President, Q.I.R.C release to the applicant, in substantial matter AD 2021/7, [the audio recording of the conciliation conference]”.  The relief, if relevant to anything, is relevant to the principal proceedings in the QIRC, not the appeal.  Application 5 is dismissed.

Application 6

  1. [38]
    Application 6 is completely insensible.  It is dismissed.

The grounds of appeal[19]

The Industrial Commissioner is biased

  1. [39]
    The real question is whether there is an apprehension of bias against the Industrial Commissioner.  Mr Robertson does not need to prove actual bias in order to be successful on this ground.[20]
  2. [40]
    Mr Robertson alleges in various ways that the Industrial Commissioner did not treat him respectfully and that he was hostile and negative towards him.  There are numerous allegations, including that the Industrial Commissioner is a former “pro-commerce barrister”.
  3. [41]
    The transcript reveals that the hearing in the QIRC was difficult.  That was, with respect, a product of Mr Robertson’s conduct, not the Industrial Commissioner’s.
  4. [42]
    The reasons for judgment of the Industrial Commissioner[21] show a conventional approach by the Industrial Commissioner to the application.  Mr Robertson in fact was largely successful.  He successfully defended the dismissal application and was given the right to file a complying SOFC and seek to lift the stay.
  5. [43]
    Mr Robertson had been ordered to file an SOFC.  For reasons that I will explain, it was within the Industrial Commissioner’s assessment to consider that the SOFC which was filed did not properly place McDonald’s on notice of the case that it had to meet.  There was no appeal from the directions order requiring Mr Robertson to file an SOFC.  The order of Dwyer IC gave him another opportunity to do so.  The only contentious issue in my mind was whether the further condition, namely that Mr Robertson be represented by an agent, ought to have been made.  That though does not show either apprehended bias or actual bias by the Industrial Commissioner.  It is clear from the reasons that the Industrial Commissioner imposed that condition for what he saw was the benefit of not only McDonald’s, but also Mr Robertson.
  6. [44]
    There is nothing, in my view, upon which either an allegation of apprehended bias or bias against the Industrial Commissioner could be made out.  This ground fails.

The Industrial Commissioner found that Mr Robertson did not have a good case but in fact he has a good one

  1. [45]
    As appears earlier,[22] the Industrial Commissioner actually found that Mr Robertson may have a meritorious case.  He did not find that Mr Robertson did not have a good case.  However, he made orders to the effect that the case could only proceed if Mr Robertson complied with procedural requirements and filed a proper SOFC.  That was required in order to afford procedural fairness to McDonald’s.
  2. [46]
    This ground is not made out.

Contrary to the decision of the Industrial Commissioner, the statement of facts and contentions that was filed was not defective

  1. [47]
    The SOFC filed by Mr Robertson is a very confusing document.  For example:

“Presently, the concern includes that the discriminators web site has a requirement for the latest employer which requires a start date calendar form to end date calendar form. I contend that this forms the basis the ability to surmise the minimum age of the applicant.

In relation to the current claim,I was in Bundaberg in 2020, I saw a ‘we are hiring’ type advert on the door , of the city center, Mc Donald’s, I and thought to apply for entry level employment . I consulted the careers web page and took offense at the calculated approach of the discriminator. I did not apply. …

The following relate to a company purchased by Mc Donald’s.

Of interest is the extent and impact of the data processing that is alleged in relation to data , sourced from extensively Juniors, and of greater importance legally is from minors.

I seek leave that the commissioner , read, the New Zealand privacy policy of McDonald’s New Zealand , is held s held to be more considerate ,in parts of privacy.

Whilst national data laws may differ the contention is that the local policy is not ‘gold standard’ in comparison.

In 2019 Mc Donald’s purchased dynamic yield for $436 million AU. It is an AI personalisation company . It is used globally the dynamic yield website does not include explanation of how the employment application data is used. I allege McDonald’s Australia uses the cabapiliites of the in - house Dynamic yield company to process and individualizes data provided by applicants to determine the age of applicants and their ability to progress to the interview stage is affected.”[23]

  1. [48]
    The SOFC contains many allegations and statements that are clearly irrelevant to the proceedings before the QIRC.  It is difficult to clearly identify properly articulated allegations of breach of the Anti-Discrimination Act 1991.  
  2. [49]
    The Industrial Commissioner drew the conclusion that it was not fair for the proceedings to continue based on the SOFC filed by Mr Robertson.  In my view, there was no error in the Industrial Commissioner drawing that conclusion.  That ground fails.

It was an improper exercise of discretion to stay the proceedings

  1. [50]
    The justification for appellate intervention in the exercise of a discretion has been settled in Australia since House v The King.[24] The reviewable grounds are:
  1. error of law;
  2. the taking into account of irrelevant considerations;
  3. failing to take into account a relevant consideration;
  4. a factual error.[25]
  1. [51]
    Sometimes, the error will not be apparent but the decision will be set aside on the basis that it is unreasonable.[26]
  2. [52]
    Once the Industrial Commissioner (correctly in my view) concluded that the SOFC did not properly inform McDonald’s of the case it had to meet, the making of a stay until a proper SOFC was filed was all but inevitable.  If the proceedings were not to be dismissed, then the Industrial Commissioner had to take steps to ensure justice was done between the parties.  He did that by staying the proceedings until the defect was remedied.  No error of discretion is established, and this ground fails.

It was an improper exercise of discretion to condition the stay on Mr Robertson being legally represented

  1. [53]
    Mr Robertson misunderstands the order.  The Industrial Commissioner conditioned Mr Robertson’s right to apply to lift the stay upon him being represented “through an appropriately engaged independent representative”.  The Industrial Commissioner did not require Mr Robertson to be represented by a lawyer.
  2. [54]
    In my view though, the Industrial Commissioner did err in imposing that condition.
  3. [55]
    Mr Robertson has a right to represent himself in the proceedings.  All citizens have that right unless labouring under some legal incapacity.[27]
  4. [56]
    The primary concern which the Industrial Commissioner was seeking to address was one of unfairness to McDonald’s.  The unfairness was requiring McDonald’s to defend the proceedings on an SOFC that did not properly identify the facts and contentions which McDonald’s was required to meet.
  5. [57]
    That concern was addressed by orders which ensured that McDonald’s did not face having to defend the proceedings until it were properly placed on notice of the case which it was required to meet.  That was achieved by the Industrial Commissioner by making an order that the proceedings be stayed and the stay only lifted if a proper SOFC was provided to McDonald’s.
  6. [58]
    Requiring Mr Robertson to be independently represented may have been an order made beyond jurisdiction.  In any event, consideration of Mr Robertson’s representation was not relevant to the issue of unfairness to McDonald’s.  If McDonald’s received a proper SOFC which placed it on notice of the facts and contentions that it would need to meet, then it did not matter who the author of that document was.  
  1. [59]
    The imposition of the requirement that Mr Robertson be represented by an independent person was motivated by other factors.  The Industrial Commissioner was concerned that the Registry staff were being harassed by Mr Robertson.  He was concerned that it was in Mr Robertson’s own interests to be represented independently, which it no doubt is.  However, those considerations were irrelevant to the task at hand which was to ensure fairness to McDonald’s by securing a properly informative SOFC.
  2. [60]
    A point might be reached where Mr Robertson’s conduct so affects Registry staff and so disrupts the proceedings that it is an abuse of process for him to conduct the proceedings himself.  I make no comment as to whether it is then within jurisdiction to impose a condition that the proceedings only be allowed to continue if he is represented by an independent person.  That point has not been reached.
  3. [61]
    Also, the consideration of benefit to Mr Robertson must be an irrelevant consideration.  Mr Robertson has legal capacity.  Mr Robertson can choose to represent himself if he wishes.  The proceeding is an adversarial one and the QIRC should not concern itself with whether Mr Robertson is better served not representing himself.
  4. [62]
    The stay should remain.  However, I allow the appeal by removing the condition that in the future conduct of the proceedings in the QIRC, Mr Robertson must be independently represented.  I have reframed the other orders to better meet the circumstances.

Orders

  1. The appeal is allowed.
  2. The orders of the Queensland Industrial Relations Commission made on 8 October 2021 are set aside.
  3. The appellant’s application AD/2021/7 be stayed until the appellant files a Notice of Facts and Contentions which places the respondent on proper notice of the case it must meet.
  4. The respondent has liberty to apply for further relief concerning the Notice of Facts and Contention after 8 October 2022.
  5. The application filed on 23 March 2022[28] is dismissed.
  6. As to the application filed on 25 March 2022,[29] it is ordered that the appellant shall be referred to in the judgments in the appeal proceeding as “Mr Robertson” with no reference to his Christian name.
  7. The first application filed on 28 March 2022[30] is dismissed.
  8. The second application filed on 28 March 2022[31] is dismissed.
  9. The third application filed on 28 March 2022[32] is dismissed.
  1. The application filed on 31 March 2022[33] is dismissed.

Schedule 1

B.Robertson V Mc Donalds Australia Limited.

A.D 2021/7.

1

Within the decision of the commissioner, He has identified the application using my

Christian and Surname whereas the case was transferred to the commission, using a Initial.

I had earlier sought anonymity.

The anonymity was not provided for, the use of my Christian name is in bad faith abuse o0f

proic3ss and legal bastardy.

Presenting as punitive and sly reflection of the distaste for myself, my case and the carriage

that I have.

The commission, identifies as to issues encountered, as to communication.

2

The commissioner, is the subject of numerous complaints.

One is of a general appraisal of the likelihood of the case being successful, as in the

negative.

The commissioner is also the subject of a discrimination complaint with the Queensland

Human Rights Commission since June, 2021.

This is not the limit of concerns and scrutiny sought.

The history of the complaint within these decisions widely incorrect.

The case is of the conduct of Mc Donald's Australia Limited ,of age discrimination being

systematic

3

Within the process of utilizing such data as is sought from applicants.

The case maybe described simply as if Mc Donalds seeks to employ6 juniors over seniors, in

an announced manner. P1

Data processing (employment applications details, data is processed for some Months, with

an indefinite timeframe. P1

The currency of application, is Thirty days, after which another application is required

should employment remain sough.

4

Enquires, indicate the processing exceeds Six Months in duration.

This information is not publically available, the degree that the information is not freely

available is that the detail took some Five (5) Months to obtain.

The information, is in my possession and from Mc Donalds.

This is by way of background, expanded on further, but speak to the accuracy of my

statement of facts and contentions.

5

The accuracy relies in part on considerable effort ass to the statement.

The timeframe ass to preparation was some Seventy hours.

The statement is coherent and significant.

The Mount Isa occurrence of age discrimination, is only for background.

The transferred complaint specifically states the complaint is not included as to the claim of

age discrimination.

5

The 2019, mention of Mc Donalds relates to a declined use of the web page that requires

data, from which age can and is determined.

The allegations of incoherent arise from concerns as to the accuracy and breath of the

claim. P2

Dynamic Yield is held to be the company that processes such data that is held and claimed

to offend age discrimination laws.

The company does not advertise for "juniors" as such.

No mention of vacancies being for juniors is within the careers web page.

6

Therefore Mc Donalds may not seek protection for junior only type advertising and

employment, provided with the Queensland Anti-discrimination act. P2

I did not demand recusal of the commissioner, I sough and requested on perhapss Four

Occasions a he did so.

Matters have declined to a degree that corruption s alleged against the commissioner.

The partial orders made by the commissioner as to replying to the submission to stay the

dismiss/stay the case, is clearly evident.

7

The data sough sought including which percent of employees are junior within Mc Donalds.

The percentage research indicates at some Sixty Seven percent.

This is of a commercial, and organizational preference.

The degree of complexity within the statement, is not extreme, it is however considerable.

The Migration, and consumer acts, exceed the commissioner's understanding, as to why.

The why is unannounced, and speaks to an interest broader and more significant than is his

want or preference.

I do not identify as the same or similar intelligence or intellect as the commissioner.

This is not an unhappy diffence.

8

I seek leave to appeal the stay imposed, with the requirement to obtain council. P3

The stay is sought appealed.

That the respondents application in relation to the stay, had Two parts within the sought

orders.

Namely that the case be dismissed for being "without merit", or the applicant to retain

council, as a pre-condition, as to the case's continuance.

9

The later submission, had only One sought order, that of the retaining council.

The initial sought order was, in bad faith.

The case has significant merit and depth.

The sought dismissal, presented as travesty.

10

The case was and is and is held to be sought terminated by the multination respondent.

The sought orders not being One and the same was permitted by Commissioner Dwyer.

The commissioner has the option to refuse filing of documents.

The submission and or the submission where in error as to being different.

I sought through a form 4, to have the application dismissed from the respondents towards

the dismissal /conditional being technically incorrect, with details of contact options being

in want for the respondents Fax number and applicant's address for service.

11

The orders, made by the commissioner Dwyer offended Due Process.

The orders had the respondent given Two opportunities to contest the orders.

I was provided with but One (1).

The respondents had the initial reply as to orders, and the last. P4

Two times Five pages.

I had but 5 pages.

In every sense bar brevity did the respondent have an advantage.

The relationship between the applicant and the commissioner is not good, with it being

fairly described as bad.

The commissioner is held to have a persona de-distaste for the case and myself.

The decline of matters, are known to the commission.

The commissioner is held to have deliberately acted in a manner to disadvantage myself and

the carriage of the case.

This presents as background.

13

There have been Approximately Four requests for the commissioner to recluse himself.

There has been in the same order of emails to the Commission President/deputy president.

NO plies where received, from either.

A person aor persons within the commisiooOn has interfered with the communication, and

or the parties involved refused to reply.

Either option is offends the duty of care owed to any party.

The statement of facts and contentions, written and submitted by myself was of

considerable effort and some complexity.

14

The commissioner has and is accused of corruption, he is aware of the allegation, as is the

commission. P2

The biased orders, with the anomalies between application and submission is a gross

violation of due process ,and in bad faith. P5

Note all applications, and forms submitted, of the applicants has been refused, with moist

simply being ignored.

15

The majority of applications, and forms, where not acknowledged.

The silence as to the procedural failings (if any) of the majority of applications/forms was

near complete.

This was at my legal disadvantage then and now.

The current disadvantage is that the micro (and greater) aggression inherent in the silence

was for the want of Due process, and in bad faith.

The respondents' where no required to be proved with the statement of facts and

contentions.

16

The orders only ordered that the statement be made to the Q.I.R.C, see orders.

The respondents are held to have hoped and certainly have preferred that the statement

was not submitted.

This is evident in that it took a week, approximately to seek the statement.

Neither the respondents nor the Q.I.R.C responded to the question of why.

Mc Donalds has the services of Three senior council (Q.Cs) Two as council, and One with Mc

Donalds plus its held input as and where wanted.

There exists no practical limit to costs with the respondents

Sect 45, 3 (b) of the Queensland industrial; (tribunal (rules 2011. Has provision for the

commissioner to make a further order as to meet such requirements. P6

17 The commissioner, if of the opinion that the submitted statement was not at a standard

to except, was bound to seek clarity.

The commissioner also has the power to direct the registrar to not file a document.

The commissioner did not instruct the registrar to do so on relation to the statement of

facts and contentions I submitted.

It is held the statement was portrayed as to exceed the commissioner's understanding, in

part by choice.

This provides for his nefarious and punitive approach, to my cost.

18

The choice is linked to the personal distaste for myself, and his pro commercial experience

and bent,

The commissioner is a former pro commerce barrister. P6

In part the statement is not understood, (perhaps) in that the work and content is of

significant effort and not primarily general.

The work was of an effort that exceeded One business week.

The reference of Wilmont V Woolworths, contains details as the finding of the improper and

needless imposed production of "right to work "documents, by applicants prior to

employment, If any.

19

The concerns of Data, within the statement, are important and speak to the conduct of the

respondents.

The respondent seek not to have the .matter further publically understood, or at least

generally known.

Note further enquiries have revealed the concerns and portrayal of the scenario/s within

the statement as being generally correct. P7

20

The sought order/s are in bad faith.

The sought condition of council is objected to and insofar as possible not sought pursued.

I have approached numerous providers, the interest was at or about Nil.

However the case is clear, Mc Donald's careers webpage obtains details that when assessed

personally and or as data determine the age of the applicant.

With this the company discriminates by offering older people less employment interviews,

and this employment.

22

Only Mc Donalds has offended sect 45, failure to comply with orders.

The commissioner accommodated Mc Donalds for the want and excess of jurisprudence

This was made known, One point Five odd, hours before the deadline. P7

No effort was made to engage as to understanding the statement.

The statement is of considerable accuracy.

23

The respondents seek to trouble my carriage in every way possible.

The respondents luxuriate within the process.

Knowing well of the decline of matters, seeking such errors or actions on my part as to

enable the commissioner to dismiss the case.

The commissioner is partial to that notion.

Note the commissioner is the subject of numerous complaints with oversight bodies, he is in

part aware of this.

24

The use of my Christian name as opposed to initial (B) by the commissioner in the stay order

is of bad faith and reflective of the cost he seeks to impose. P8

The identification of myself is objected too.

Jurisprudence is offended nu the use of personal details.

The matter is sought continued with carriage remaining mine,

Legal aid was contacted towards possible engagement, however a Thirty minutes on hold (

within a phone call) was sufficient to consider that the organization, was of concern, and not attractive

24

Note legal aid has a merit based assessment, the case whilst having considerable merit is

rare.

As is successes within cases for applicants, notwithstanding that the case is sought pursued

to that end. P8

The respondents actions, in seeking a dismissal, and or then (?O a stay with a precondition is

a legal ploy.

25

They understand the central thread.

The council and the commissioner had and have the option to obtain assistance and

professional, industry assistance in regard to matters not familiar to them.

The commissioner in not having done so has failed.

27

I have limited to very limited access to public computers, this influences the contents to a

degree.

The failure by the commissioner, to understand is the commissioner's own limitations both

personal and of intelligence. P9

The commissioner is the subject of a complaint of discrimination, corruption, and

incompetence.

28

The commissioner is held to have engaged in malfeasance.

The commissioner has sought direct and or indirectly to discriminate.

The commissioner has sought to stereotype and profile myself.

He having made that error and erred in conduct, has sought through silence to isolate and

marginalize the carriage of case.

29

The behaviour of the commissioner, gives rise to concerns of a character flaw.

I seek to retain carriage of the case.

Sect 265, Queensland industrial relations act sect 7 (7).

"If the registrar is not satisfied that there has been substantial compliance with the order, the registrar must issue a notice (a "show cause notice") under the rules calling on the organisation or person to whom the order was directed to show cause to the full bench at a stated time why the organisation or person should not be dealt with under section 266."

30

This not having occurred indicates the registrar was of a mind that the compliance

was substantial.

It is maintained that the registrar if satisfied, the respondents sought dismissal

and then stay offends actual events.

That the respondents seek to engage in ploys as to the attrition, and cessation, of

the case-.p 10

-This is evident.

31

265 (3) An order must-

"(a) if the order is made against a person-state the person's name; and

(b) state a time for complying with the order; and

(c) direct any of the following to file an affidavit with the registrar within a stated time-

(i) the organisation or person to whom the order is directed;

(ii) the party to the proceedings who sought the order;

(iii) any other party to the proceedings the commission considers appropriate."

32

No Affidavit was required of my statement

This offends the sect 265 (c).

The result is the orders are Mute. P 1O

The commissioner had the option to order a further and better statement of facts and

contentions

He did not do so.

This is a thread through events, as to and towards my legal and procedural detriment.

33

The commissioner has erred in lack, and for want and excess of jurisprudence.

The commission is held in part responsible for the parlour state of affairs between the

commissioner and myself.

The issues, of concerns have been named known to the commission extensively. P11

The concerns made in emails to the president and deputy president of the commission have

not been acknowledge, receipted or replied to.

  1.  

The sought orders is that the stay is revoked, and that legal resprentation is not imposed on

myself.

That the carriage of the case remains with myself.

I seek leave that all court documents retain as per complaint transfer, and anonymity be

afforded myself.

That the respondents reply as per order to my statement of facts and contention.

It is held that Mc Donalds seek to delay and then have terminated the case.

This is to lessened and preclude the discovery process.

The company is private and secretive of the use of the data.

The monopoly of knowledge is in most instances only made known by enforced disclosure.

My statement of acts and contentions, meet the threshold of standards.

The commissioner, troubled by the case and his distaste for my case and carriage has acted

in bad faith and abused power.

Robertson v McDonald's Australia Limited (No 2) [2022] ICQ 11

P12.

Schedule 2

Application 1

Details of decision sought

That under sect 412, 1 (1) That the President of the Queensland Industrial Commission, recuse himself, from all matters related to the appeal, C/2021/23, and in the substantive matter AD. 2021/7 B. Robertson V McDonalds Australia Limited.

Sect 412, 2 (A) AND OR 3,

On the basis of aprended bias, bias, conflict of interest, Interference, error and want in actions.

That pursuant to sect 412(4), that they do delegate the functions to the vice or deputy vice president, as to matters at hand, C/2021/23, A.D 2021/7.

Grounds

  1. That the commissioner did, without lawful authority, interfere with the applicants rights. Namely but not limited to refusing to identify the reasoning, specific to application forms recently submitted. Including as to the applicant’s attempts to obtain, sufficient information as to ascertain, if the President had actually received a series of emails, in which the conduct of Commissioner Dwyer was complained of as to the likelihood of the success and other, in the substantive matter A.D 2021/7.

That the most recent applications, have not been filed, under or related to instruction, By the President as a directive, and or in the alternative that he has instructed the administration, not to engage Via email, (with limited procedural emails only).

That he did not assist the applicant as to the words, “it would fail” spoken, as to the likelihood of success.

That he was or should have been aware as to the extent of the error, and want of Dwyer.

  1. That Davis did not engage as to the excesses of Dwyer.

That Davis cognizant of, or reasonably should have been aware as to the actions, for the repeated expressions, of concerns, did seek to isolate myself from such assistance as any applicant is entitled.

That the interfered with natural justice.

Thus precluding my pursuit as to the concerns.

That the president is overly referential to the respondents, council, and additional council.

Giving leave for a Peta Willoughby to instruct a commercial legal firm, Colin Biggers and Paisley Lawyers, instructed by the Respondents McDonald’s Australia Limited.

  1. That the President was aware of the disparity as to resources, and the refusal of Legal Aid Queensland to provide legal advice.

That Davis “Horse traded”, without my consent knowledge or interest in, as to the '”benefit” if any gained,

Namely “costs”.

  1. That he sought costs, being excluded from McDonald’s, stated intentions (should they be successful) in the matter A.D. 2021/7.

The trade (not limited to the trade, but including other acts and omissions), was the extravagance extended to the respondents, specifically obtaining a Third, member as to the attempt to defend against the claims of age discrimination, and request for unnecessary information.

Note the limits of McDonald’s Australia team, and C.B.P’S limits (of some 500 staff, where not explored by Davis, in the mention 17/3/22. B. Robertson 23/3/2022.

Application 2

Details of decision sought

That pursuant to the, Sect 412, (2) (a).

That any and all use of the applicant name is to be altered as to to that of the complaint, namely ‘B.Robertson” as opposed to the Christian name and surname utilized, by Commissioner Dywer, in desicions.

That any and all further identification, of myself is limited to B.Robertson.

That a non publication order as to my christian name is imposed.

Additionally the commission insofar as reasonable and proper recognize and accomodate the applicant’s circumstances.

Find One (1) attachment, as to circumstances.

I seek leave that these not be made public.

Grounds

1

Namely but not limited to, owning no computer (with the ability to produce documents as per orders).

As in the essentially that of public access computer, with such limitations that entails.

A phone that is limited to unusable.

Itineracy.

That legal aid Queensland, refusing further advice in relation to matters. This is a stated position.

2

That I own, no registered transport.

That Public transport is limited, and essentially unsuitable.

That my personal resources are extremely limited.

That the expenditure of non-discretionary monies, that has and does result in relation to matters at hand, affects my health and wellbeing to a degree that does and may again present as to unwise

That my costs would exceed One Thousand Dollars.

That the efforts I have made, present as to literally Hundreds of Hours.

Application 3

Details of decision sought

That the email from Legal Aid Queensland, is entered into evidence, as to the unavailability of legal advice, in the matter C/2021/23 - A.D 202117.

Grounds

No grounds are articulated but a copy of the email from Legal Aid Queensland is attached.

Application 4

Details of decision sought

That the Media release, Re Mc Donald’s Australia Limited, conviction for failing to comply, is added into evidence.

Grounds

No grounds are stated but a press release from the Australian Taxation Office is attached.

Application 5

Details of decision sought

That the President, Q.I.R.C release to the applicant, in substantial matter A.D 2021/7, the audio, of the “One” on “One ” segment/s, of conciliation, held 5/5/2022.

The audio, recording, between the applicant and Commissioner Dwyer.

To the applicant only, or in the alternative, provide a transcript, absoletly untouched, by Auscript or any other/s, and verified as true and correct by the President of the commission or the Deputy Vice president of the commission, to the applicant only, before the Sixth of March, 2022.

That a copy of either or both are sealed and held by the commission to be used, if and when seen fit.

That the president release all Documents related to the concerns of the applicant A.D 2021/7 to to the applicant, and the respondents.

That the presdident conceeds the use of the documents, within the sought recusal of the president.

Grounds

No grounds are stated.

Application 6

Details of decision sought

That a decision, is made as to the release of any and all applications which could or may not have been filed for whichever reason/s, are provided to the applicant in the substantive mattter, A.D 2021/7.

Including applications, refused, or deemed in want in the matter C/2021/23.

Grounds

No grounds are stated.

Footnotes

[1] And possibly earlier.

[2] Robertson v McDonald’s Australia Limited [2021] QIRC 344 at [4]-[22].

[3] The emphasis appears in the reasons for judgment.

[4] Reasons, paragraph [43].

[5] Reasons, paragraphs [43], [44] and [50].

[6] Reasons, paragraph [42].

[7] Reasons, paragraph [46].

[8] Reasons, paragraphs [51] and [60].

[9] Reasons, paragraphs [46] and [61].

[10] Section 557(1).

[11] Section 557(2).

[12] Robertson v McDonald’s Australia Limited [2022] ICQ 007.

[13] Robertson v McDonald’s Australia Limited [2022] ICQ 007 at [22].

[14] Industrial Relations Act 2016, s 554.

[15] Industrial Relations Act 2016, s 530(1) and (5).

[16] (2000) 205 CLR 337.

[17] Robertson v McDonald’s Australia Limited [2022] ICQ 007.

[18] Clearly a reference to the Industrial Relations Act 2016, s 529(1)(a); and “agent”.

[19] The grounds are set out at paragraph [13] of these reasons.

[20] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; see discussion at paragraph [31] of these reasons.

[21] Robertson v McDonald’s Australia Limited [2021] QIRC 344.

[22] Paragraph [10] of these reasons.

[23] Reproduced exactly as it appears.

[24] (1936) 55 CLR 499.

[25] At 505.

[26] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and generally Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 at [30] and [68].

[27] See, for example, the Litigation Guardian provisions in the Uniform Civil Procedure Rules 1999, Chapter 3, Part 4.

[28] What I have defined as “Application 1”.

[29] What I have defined as “Application 2”.

[30] What I have defined as “Application 3”.

[31] What I have defined as “Application 4”.

[32] What I have defined as “Application 5”.

[33] What I have defined as “Application 6”.

Close

Editorial Notes

  • Published Case Name:

    Robertson v McDonald's Australia Limited (No 2)

  • Shortened Case Name:

    Robertson v McDonald's Australia Limited (No 2)

  • MNC:

    [2022] ICQ 11

  • Court:

    ICQ

  • Judge(s):

    Davis J, President

  • Date:

    29 Apr 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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