Peng v Bak10CUT Pty Ltd[2022] ICQ 5

INDUSTRIAL COURT OF QUEENSLAND

Reasons for Decision

1. [1]
   In June 2018 the Appellant was a 28-year-old female residing in Australia on a working holiday. She answered a Facebook advertisement posted by the Second Respondent seeking hairdressers at the First Respondent's shop in the Moreton Bay suburb of Kippa-Ring.
2. [2]
   The Second Respondent is the sole director of the First Respondent.
3. [3]
   On 17 June 2019 the Appellant made a complaint to the Queensland Human Rights Commission alleging that she had been sexually harassed, and or discriminated against on the ground of her sex contrary to ss 118, 7(a), 10 and 15 of the Anti-discrimination Act 1991 (Qld).
4. [4]
   The matter was unsuccessfully conciliated before the Human Rights Commission and was referred to the Queensland Industrial Relations Commission ('the Commission') on 11 October 2019.
5. [5]
   The proceedings were set down for a three-day hearing commencing on 7 October 2020.
6. [6]
   On 13 April 2021 a notice of change of lawyer was filed in the Industrial Registry advising that Ms Jiabei Qi was acting for the Respondents.
7. [7]
   An application, together with an affidavit in support, was filed in the Industrial Registry on 22 April 2021 seeking the following:

The order for the reopening of the stated matter pursuant to the (sic) section 484 and section 485 of the Industrial Relations Act 2016 to:

1. Adduce further affidavit evidence, and

2. For the reopening of the hearing

Alternatively, if not reopened seeks:

3. The date for filing written submissions of 30 April 2021 be vacated; and

4. A new date of 15 June 2021 for filing be made.

8. [8]
   On 28 April 2021 the Industrial Registry emailed the parties in the following terms:

…a mention will be listed next week so that procedural issues may be discussed.

9. [9]
   On 30 April 2021 the Industrial Registry sent a notice of listing setting the matter down for mention on 7 May 2021 before the Industrial Commissioner.
10. [10]
    The matter was mentioned on 7 May 2021 and the Industrial Commissioner determined the application and ordered that pursuant to s 484 of the IR Act the proceedings be reopened.
11. [11]
    During oral argument, a consent position was reached between the parties. These written reasons provide a factual and legal background to the orders made at the hearing on 9 February 2022.

Grounds of Appeal

12. [12]
    On 28 May 2021, an appeal was filed by the Appellant. The grounds of appeal were expressed as follows:

1.  The Appellant was denied a fair hearing and the learned Commissioner erred in granting the Respondents’ interlocutory application filed 22 April 2021 by:

(a) failing to give notice during the directions hearing on 7 May 2021 that she would decide the application at the directions hearing where the parties had a legitimate expectation that they would have an opportunity to make further submissions;

(b)  denying the Appellant the opportunity to make appropriate submissions on the interlocutory application.

2.  The learned Commissioner erred in granting the Respondents’ interlocutory application filed 22 April 2021 by:

(a) failing to take into account relevant considerations, namely:

(i) prejudice or unfairness to the Appellant that would arise if the Respondents’ application to re-open their case and cross-examine the Appellant’s witnesses a second time were allowed;

(ii)  reopening the proceedings would be contrary to the interests of justice and allow the Respondents an unfair forensic advantage in the proceedings;

(iii)  a refusal to allow the application would not have denied the Respondents a fair hearing;

(b) fettering her discretion by taking into account an irrelevant consideration, namely that refusing to allow the Respondents’ application to re-open their case would result in the Respondents appealing the final decision in the substantive proceeding;

(c)  failing to state adequately the relevant considerations and the process of reasoning by which these were balanced to reach a decision that facilitated the fair and practical conduct of the proceeding.

3.  The learned Commissioner erred by unreasonably exercising her discretion in ordering that the hearing would be re-opened without making any order pertaining to the scope of the further evidence that could be adduced, or the scope of any further cross-examination that would be allowed.

4.  The learned Commissioner understood that the Commission would fall into appealable error by refusing to allow a party to re-open its case if the further evidence could materially affect the outcome, thereby fettering her discretion according to a wrong principle.^[1]

The Proceedings before the Commission

13. [13]
    At the mention on 7 May 2021 the Industrial Commissioner commenced the proceedings by telling the parties:

This is a mention in matter AD 2019 107, Yu-Rong Peng v Bak10cut Pty Limited and Wenxin Andy Yuan.^[2]

14. [14]
    The Commissioner proceeded to outline the reason for listing the mention:

Now, just a little bit before I hear from each of you on the matter. Further to the hearing conducted on the 7th to the 9th of October last year and the directions orders issued, the complainant has filed her closing submissions on the 24th of March and, as I understand it, on the 6th of April this year Mr Yuan engaged new legal representation and they have filed an application in the existing proceedings and an accompanying affidavit on the 22nd of April asking that further affidavit evidence be adduced and the hearing be reopened or, alternatively, that there be a new date for filing submissions, that being the 15th of June. So the grounds on which that’s sought, and the scope of the matters sought to be subject of the additional evidence is particularised in the affidavit of the 22nd of April. So how I want to approach this is to hear from Ms Hillard first on essentially her application and then give the complainant’s representatives an opportunity to comment as well. Okay. So, Ms Hillard, over to you, please.

15. [15]
    Ms Hillard, Counsel for the Respondent's made the following submissions in response:

MS HILLARD: Yes, thank you, your Honour. Can I just say that we had anticipated that this was simply a directions hearing for further steps rather than having to argue the merits of the application itself. So I just wanted to clarify what you really wanted from me.^[3]

COMMISSIONER: Well, I guess what I’m doing is giving each of you the opportunity to talk about it and I understand that, you know, the grounds on which you’re seeking that the hearing be reopened and the scope of matters have been particularised in the document that is the certificate of exhibit to affidavit. So I’ve seen and I understand, I think, the argument that you’re making and the scope, importantly, of what you’re seeking to have the hearing reopened about. ^[4]

16. [16]
    Mr Hii, Counsel for the Complainant responded to the Commissioner in the following terms:

MR HII: Thank you, Commissioner. The application, as I understand it, is to reopening proceedings to give further evidence or, in the alternative, for an extension of time to file written submissions. We don’t oppose the application insofar as they need additional time to file submissions. I do not cast any blame on Ms Hillard or her instructing solicitor for Mr Yuan’s late engagement of them. We oppose the application to reopen, but, given that there is that application before you, that will need to be properly determined. My suggestion, Commissioner, is that that should be done on the papers. Ms Hillard has provided very lengthy further written submissions which have been attached to Ms Qi’s affidavit. If she does require any further material, there’s no reason why that can’t be done within a week. They have been engaged by Mr Yuan since the beginning of April. It’s now a month later.^[5]

MR HII: - - - would mean that the matter would be almost a year since the matter was heard, evidence was given, just to determine whether we need a further hearing. It’s certainly not in the interests of the parties and in the interests of justice for this to be delayed and ongoing that much further. I appreciate that Ms Hillard needs an opportunity to get further instructions. There’s nothing that Ms Qi isn’t able to do in the meantime to get those instructions. I understand that she has court commitments. Again, I believe that if it’s written closing submissions – it’s difficult to see what else they need to put in evidence from Mr Yuan that’s not already here. He’s already stated the reason why he wants to reopen is because he’s given certain instructions to his former solicitors and that they weren’t put to the court. Now, I’ve got something to say about that – not today, but if there’s anything else, unless they plan on particularising exactly what that is – which they have, it seems, from the reasons/submission that’s attached to the affidavit – it’s difficult – I’m not too sure what else there is to say.^[6]

Ground 1 – Denial of a Fair Hearing

17. [17]
    As to the first ground of appeal, it is submitted that unfairness occurred because the Commission had indicated that the matter was listed as a mention for directions only. As such, the Commission failed to give notice to the parties that it was going to decide the application on that day, it being a decision that affected the Appellant's interests.
18. [18]
    Fundamental to the disposition of this appeal is the determination of the question whether the Appellant was afforded procedural fairness by the Industrial Commissioner. In doing so, it is not necessary to delve into the merits of the substantive application to re-open the proceedings.
19. [19]
    Procedural fairness conveys '...the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case'.^[7] Mason J (as his Honour then was) in Kioa v West,^[8] went on to observe:

The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: cf. Salemi [No.2], per Jacobs J.

When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned.^[9]

20. [20]
    In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam,^[10] Gleeson CJ discussed the manner in which procedural fairness cases are approached by the courts:

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.^[11]

21. [21]
    In the present case, the rule of procedural fairness relied upon by the Appellant is the audi alteram partem rule, that is, the hearing rule. As Mr Hii rightly contends, the rule essentially requires that persons be given a fair hearing before decisions are made that affect their rights. The critical question is whether the Commission failed to observe the rule.

22. [22]
    It is accepted that the statutory power to re-open under s 484 of the IR Act is constrained only by the proper exercise of discretion. As was observed in Bell v Simon Blackwood (Workers' Compensation Regulator).^[12]

The Commission's power to reopen a proceeding is discretionary and is not subject to any statutory conditions. The power is to be exercised to serve the interests of justice and should not be construed narrowly. The guiding principle in deciding whether to exercise the discretion to grant leave to reopen is whether or not the interests of justice are better served by allowing or rejecting the application.^[13]

23. [23]
    Decisions of the Commission, even decisions involving the exercise of discretion, are amenable to appeal on the ground of error of law.^[14] In considering this appeal, I am cognisant of the wide powers vested in the Commission to control the conduct of its own proceedings,^[15] and the latitude afforded a decision maker in exercising a discretionary power which by its very nature carries with it the scope for difference of opinion in a particular case about the proper exercise of discretion. Moreover, this Court should be astute not to find fault with decisions about matters of practice and procedure.^[16]

24. [24]
    The discretion under s 484 of the IR Act must be exercised judicially.^[17] 

25. [25]
    In my view, it is fundamental that prior notice ought to have been given by the Commissioner that she was intending to make a decision that may affect a party’s interests. This was not done. The Industrial Registry corresponded with the parties advising that the matter was to be listed for the purpose of discussing procedural issues. Consistent with that advice it was listed for mention, and the Industrial Commissioner opened the proceedings as a mention.
26. [26]
    It is not in contention that the expectation of both parties was that the matter was listed so that directions orders could be issued for the proper conduct of the matter.
27. [27]
    It was not immediately apparent prior to the adjournment that the Commissioner intended to dispose of the substantive application.
28. [28]
    The Commissioner did not afford the Appellant procedural fairness and this, in turn, affected the way in which the Commission exercised its discretion.
29. [29]
    The failure to afford procedural fairness is an error and an error which, by itself, justifies the granting of this appeal. It is unnecessary, in the circumstances, to consider the other grounds of appeal.

30. [30]
    The Court was invited to determine the s 485 application. Ms Hillard told the Commission at the mention that, consequent upon the change of solicitor, she was not in possession of complete instructions. Further, she may need to adduce further evidence and make submissions over and above the submissions already made. In those circumstances and recognising that the Commissioner heard evidence over three days, the Commission would be in a far better position than the Court to make a determination as to whether the proceedings should be reopened. In my view, the appropriate order is for the matter to be remitted back to the Industrial Commissioner to hear and determine.

Costs

31. [31]
    Whilst s 545 of the IR Act provides a general power to award costs, it does not have application to proceedings heard by the Commission or the Court under the ADA.
32. [32]
    Section 548 of the IR Act provides:

548 Costs provisions

3. (1)
   The provisions for costs in schedule 2 apply to a proceeding—

1. (a)
   heard by the commission under the Anti-Discrimination Act 1991; or

2. (b)
   for an appeal to the court under part 6 against a decision of the commission in relation to a proceeding mentioned in paragraph (a).

3. (2)
   If a provision of schedule 2 is inconsistent with any other provision of this Act, the schedule prevails to the extent of the inconsistency.

33. [33]
    Schedule 2 of the IR Act provides:

1 Definitions for schedule

In this schedule—

commission, for an appeal to the court under chapter 11, part 6 against a decision of the commission in relation to a proceeding heard by the commission under the Anti-Discrimination Act 1991, includes the court.

proceeding means a proceeding mentioned in section 548.

And:

2 Each party usually bears own costs

Other than as provided under this schedule, each party to the proceeding must bear the party’s own costs for the proceeding.

And:

4 Costs against party in interests of justice

3. (1)
   The commission may make an order requiring a party to the proceeding to pay all or a stated part of the costs of another party to the proceeding if the commission considers the interests of justice require it to make the order.

3. (2)
   In deciding whether to award costs under subsection (1) the commission may have regard to the following—

1. (a)
   whether a party to the proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding;

2. (b)
   the nature and complexity of the proceeding;

3. (c)
   the relative strengths of the claims made by each of the parties to the proceeding;

5. (e)
   the financial circumstances of the parties to the proceeding;

6. (f)
   anything else the commission considers relevant.

And:

9 Fixing or assessing costs

3. (1)
   If the commission makes a costs order under a provision of this schedule, the commission must fix the costs if possible.

3. (2)
   If it is not possible to fix the costs having regard to the nature of the proceeding, the commission may make an order requiring the costs to be assessed under the rules.^[18]

3. (3)
   The rules may provide that costs must be assessed by reference to a scale under the rules applying to a court.

34. [34]
    Rule 70 of the Industrial Relations (Tribunal) Rules 2011 (Qld) provides:

70 Costs

3. (1)
   This rule applies if the court or commission makes an order for costs under section 545 of the Act.^[19]

3. (2)
   The court or commission, in making the order, may have regard to—

1. (a)
   …

3. (c)
   for a proceeding before the court—the costs payable on the scale of costs for the Supreme Court under the Uniform Civil Procedure Rules 1999, schedule 1; or

4. (d)
   any other relevant factor.

3. (3)
   The court may order that costs be assessed by the registrar and, in assessing costs, the registrar may have regard to the Uniform Civil Procedure Rules 1999, chapter 17A.

35. [35]
    Nothing has been raised before me that would persuade me that I should depart from the requirement that each party to the proceedings bear their own costs. The interests of justice are not such as to require the Court to make a costs order. In coming to that conclusion, I have had regard to the matters set out in Schedule 2 paragraph 4 (2).
36. [36]
    In all the circumstances I consider that the appropriate order is that there be no order as to costs of the appeal before the Court. 

Order

1. The appeal is allowed.

2. The order of the Commission in matter AD/2019/107 and dated 7 May 2021 is set aside.

3. The matter is remitted back to the Industrial Commissioner to be determined according to law; and

4. I make no order as to costs on this appeal.