AAA v State of Queensland[2023] QCAT 108

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is the application about?

1. [1]
   Between August 2020 and December 2020, it is said that the applicant, AAA sent approximately 115 emails to Policelink^[1] in respect of which they received approximately 51 replies.^[2] 
2. [2]
   By an email sent 17 December 2020, Policelink informed the applicant that it refused further contact by email and required in person or telephone contact to progress the applicant’s concerns. The email, authored by the first respondent, said:

Over the past months I have considered the successive emails originating from [redacted]@mail.com to Policelink which now exceed one hundred transmission and it appears from my assessment these emails are generally unwarranted in tone or without substance worthy of any continuance. I’ve further considered the context of these emails and formed a personal view after consult with others, that irrespective of any reply’s (sic) give, the continuous transmission of emails may likely to continue.

To that end, I’ve instructed all future emails, or alternative email addresses, as originating from you be read and automatically finalised without reply.  Moving forward, and to assist you, all your concerns may be adequately addressed by the Officer in Charge of Toowoomba as a most appropriate option.

3. [3]
   The name and contact details for the Officer in Charge of Toowoomba were included in the email.
4. [4]
   The applicant says the decision of Policelink to refuse further contact by email:

   1. (a)
      discriminates against their hearing impairments and against their political beliefs/activity; and
   2. (b)
      breaches their human rights to a fair hearing, to protection from torture, cruel or degrading treatment, to liberty and security, to cultural rights, to take part in public life, to freedom of thought, conscience, religion and belief, to freedom of expression and to privacy and reputation.
5. [5]
   In December 2020 the applicant lodged two complaints with the Queensland Human Rights Commission (QHRC) on those grounds, that were referred to the tribunal on 16 September 2021.

1. [6]
   The tribunal can dismiss a proceeding out if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by not complying with a tribunal order or direction without reasonable excuse.^[3] 
2. [7]
   On 21 February 2023 I dismissed the application pursuant to section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
3. [8]
   A party can request reasons for the decision by filing a “request for reasons for a decision”.  Registry provided a link to the form and information on how to apply to the applicant on 28 February 2023, 13 March 2023 and 15 March 2023. The applicant wanted reasons for the decision but refused to make the request stating, “I do not consent to the form or its use”.  Nonetheless, reasons are provided as follows.

Progress of the referral through the tribunal

4. [9]
   Several interlocutory steps have occurred in the proceeding, including the following:

   1. (a)
      2 February 2022 (on the papers): Directions requiring the filing of a statement of contentions and response material and listing the matter for a compulsory conference on a date to be fixed.
   2. (b)
      10 February 2022 (application): AAA filed an application for miscellaneous matters (AMM) seeking orders that their initial, rather than their Christian name be used when referring to AAA in the proceeding and in any documents filed in the proceeding.
   3. (c)
      22 February 2022 (on the papers): Directions requiring AAA to file their submissions in support of the AMM filed 10 February 2022 and then response submissions by the respondents.
   4. (d)
      3 March 2022 (on the papers): Directions confirmed the 22 February 2022 directions, explaining to AAA that compliance was necessary to enable the tribunal to determine the application for miscellaneous matters.
   5. (e)
      5 April 2022 (on the papers): The AMM filed 10 February 2022 was refused. No submissions had been received.
   6. (f)
      12 May 2022 (notice): Parties were sent notice of a compulsory conference listed for 11 August 2022 at 9:30am.
   7. (g)
      4 July 2022 (application): AAA filed another AMM seeking orders that the second respondent be directed to comply with a right to information (RTI) request made outside the proceeding.
   8. (h)
      5 July 2022 (on the papers): The AMM filed 4 July 2022 was refused on the grounds that it was misconceived. The compulsory conference listed for 11 August 2022 was confirmed.
   9. (i)
      4 July 2022 (application): AAA filed another AMM seeking orders that written communication replace the requirement to attend the compulsory conference on the basis that “attendance is unduly expensive, disruptive and invasive”. 
   10. (j)
       6 July 2022 (notice): Parties were sent an amended notice of compulsory conference listed for 11 August 2022 at 9:15am.
   11. (k)
       14 July 2022 (on the papers): The AMM filed 4 July 2022 was dismissed.  The compulsory conference listed for 11 August 2022 was again confirmed. 
   12. (l)
       4 August 2022 (on the papers):  Directions vacated the compulsory conference and listed the matter for a directions hearing by telephone, with AAA to advise if they preferred to attend the directions hearing in person.
   13. (m)
       5 August 2022 reply email): AAA replied to the directions in an email that simply stated, “I decline to attend”.
   14. (n)
       16 August 2022 (email): AAA wrote to the tribunal requesting “(as a last resort) a telephone hearing”.
   15. (o)
       23 August 2022 (applications): AAA filed five (5) AMMs seeking various orders (recusal by the Member who made previous directions, production of documents, directions).
   16. (p)
       20 August 2022 (notice): Parties were sent the notice of directions hearing listed for 9 September 2022.
   17. (q)
       29 August 2022 (on the papers): The AMMs filed 23 August 2022 seeking directions and recusal were refused. The AMM for production of documents was deferred to be determined after the filing of statements of evidence.  Directions were made explaining the purpose of the directions hearing (namely, to determine the most effective way of the complaint to be determined in view of AAA’s impairments, to determine the timeframes required for filing statements of evidence, to determine what supports might be necessary for the final hearing of the matter, if not to be determined on the papers). Legal representation was granted, and registry assistance offered to AAA.  
   18. (r)
       31 August 2022 (reply to directions, email): AAA submitted that the directions made were onerous, that written communication between the parties should suffice and that “hegemony is alleged” against QCAT, the Member who had made directions, the second respondent and Legal Aid (among others). In a separate email sent 31 August 2022, AAA indicated that they would attend the directions hearing by telephone.
   19. (s)
       16 September 2022 (directions hearing): Directions were made for the filing of statements of evidence, with AAA’s evidence to be filed by 30 September 2022.
   20. (t)
       30 September 2022 (application): AAA filed an AMM alleging that the directions for the filing of evidence including medical evidence to establish impairment were biased, counterproductive, invasive, and deliberately onerous as to preclude the continued carriage of the matter.  AAA said they would not be complying with them given the costs of and waitlists for obtaining medical evidence.
   21. (u)
       21 October 2022 (application): The respondents filed an application seeking an extension of time for the filing of response evidence, given AAA had not then complied with directions to file their evidence.
   22. (v)
       31 October 2022 (application): AAA filed an AMM seeking production of documents and an extension of time and various directions.
   23. (w)
       3 November 2022 (on the papers): The AMM filed 30 September 2022 was dismissed. Time for the filing of AAA’s evidence was extended to 25 November 2022 (with consequential extensions for the filing of response and reply evidence), with further warning that non-compliance would result in the application being dismissed.
   24. (x)
       9 November 2022 (on the papers): The AMM for production of documents was deferred to be determined with the AMM filed 23 August 2022, after the filing of evidence.  The directions made 3 November 2022 were confirmed. 
   25. (y)
       16 January 2023 (on the papers): Directions granted AAA a “final opportunity to comply with the Tribunal’s directions, noting that he has failed to comply with Directions made 16 September 2022 and 3 November 2022”. An extension of time for filing statements of evidence was given to 6 February 2023, together with guidance paragraphs that explain the relevance to the applicant’s case of statements of evidence, including medical evidence regarding the subject impairments and their characteristics which AAA alleges is the attribute that gave rise to the alleged discrimination.  AAA did not comply with this direction.

Legislative framework

5. [10]
   Parties are expected to take active steps to engage in^[4] and are obliged to act quickly in any dealing relevant to the proceeding.^[5] 
6. [11]
   Section 48 of the QCAT Act permits the tribunal to dismiss or struck out a proceeding if it considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding.
7. [12]
   In contemplating a dismissal under section 48 the tribunal must consider:

   1. (a)
      the extent to which the party causing the disadvantage is familiar with the tribunal’s practices and procedures;
   2. (b)
      the capacity of the party causing the disadvantage to understand, and act on, the tribunal’s orders and directions; and
   3. (c)
      whether the party causing the disadvantage is acting deliberately.^[6]
8. [13]
   To “cause disadvantage” includes not complying with a tribunal order or direction without reasonable excuse.^[7]
9. [14]
   In other section 48 matters before it, the tribunal has relevantly stated that:

   1. (a)
      Section 48 is to be construed in the light of the statutory objects under the QCAT Act, which emphasise informality, the minimisation of costs to the parties, and expediting proceedings so far as is consistent with achieving justice.^[8]
   2. (b)
      The unnecessary disadvantage must be of sufficient gravity to justify dismissal or a final decision.^[9]
   3. (c)
      The fact that a claim has significant merit, will not preclude an exercise of section 48 discretion where a party has been recalcitrant or delinquent in their conduct of the proceeding to cause unnecessary disadvantage.^[10] Matters relating to the substantive merits of a claim may in fact be irrelevant to a section 48 consideration.^[11]
   4. (d)
      In determining a section 48 application in accordance with the tribunal’s obligations and objects under the QCAT Act, a balance should be struck between the need for quick procedure and the obligation to deal with matters in a way that is fair and accessible.^[12]
10. [15]
    In all proceedings the tribunal must deal with matters in a way that is accessible, fair, just, economical, informal, and quick^[13] and, to that end, section 4 of the Act requires the tribunal, among other things, to:

    1. (a)
       encourage the early and economical resolution of disputes before the tribunal;^[14] and
    2. (b)
       ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.^[15]
11. [16]
    Section 62(1) of the QCAT Act permits the tribunal to give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding. Interlocutory applications can be decided upon the written submissions of the parties without those parties or their representatives appearing at a hearing.^[16] 

Discussion and decision on strike out

12. [17]
    It is not uncommon, in a self-represented jurisdiction that parties require additional time to comply, and assistance on how to comply with tribunal directions. The tribunal in fact has positive obligations under section 29 of the QCAT Act to take all reasonable steps to:

    1. (a)
       ensure each party to a proceeding understands—

       1. the practices and procedures of the tribunal; and
       2. the nature of assertions made in the proceeding and the legal implications of the assertions; and
       3. any decision of the tribunal relating to the proceeding; and
    2. (b)
       ensure proceedings are conducted in a way that recognises and is responsive to the needs of a party to, or witness in, the proceeding who is a child or a person with impaired capacity or a physical disability.
13. [18]
    The steps that can be taken for ensuring a person understands something include explaining the matters to the person. That is why the directions are made, and guidance is given on the papers, in compulsory conferences and directions hearings to assist the parties to conduct their case. 
14. [19]
    However, this assistance must be limited as to resources and time - it is not for the tribunal to conduct or to perfect the applicant’s case. It can only guide the parties as to what is required and, in this case, more than sufficient guidance has been offered and more than sufficient time given for AAA to file their evidence, to enable the respondents to then file theirs and to enable the AMM’s pertaining to the production of documents to be determined in order that the matter may proceed to an outcome.
15. [20]
    Courts have long shown a willingness to dismiss proceedings for “want of prosecution” and most rules of Court make provision for such an application.^[17] 
16. [21]
    Factors such as the extent of the delay, the applicant’s prospects of success, disobedience with directions and whether there is a satisfactory explanation for the delay are all considered in an exercise of discretion whether to dismiss for want of prosecution.^[18]
17. [22]
    Whilst formality is not part of the tribunal’s mandate, the tribunal nonetheless need be mindful that their resources serve the public as a whole, not just the parties to proceedings before it.   Justice Wilson said just this in Creek v Raine & Horne Real Estate Mossman:^[19]

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”.^[20]  

18. [23]
    In Peter Douglas Fleming v Gladstone Regional Council^[21] the tribunal dismissed an application for review pursuant to section 48 of the QCAT in circumstances where the applicant first sought two extensions of time for the filing of submission on a strike out application (which were granted) and then failed to comply with two further opportunities given as directions to file material.   Member Browne was satisfied that the applicant had failed to provide reasonable excuse for his non-compliance with directions, that he had failed to take care in his dealings with the tribunal^[22] and that he did not take necessary steps to progress his application.^[23]

To what extent is AAA familiar with the tribunal’s practices and procedures?

19. [24]
    I acknowledge that AAA is a layperson, who has identified as itinerant with no ready access to technology and suffering from hearing impairment. Despite these challenges, AAA has been prolific in generating correspondence, and applications for miscellaneous matters and filing them in the tribunal. AAA has responded readily and prolifically to communication and notices (even if only to protest them). 
20. [25]
    The tribunal, including the members making directions and the registry have been painstaking in explaining processes to AAA, including why evidence is needed, in directing AAA to where they might access external advice and in warning AAA of the risk of dismissal for non-compliance.
21. [26]
    Although AAA may not be familiar with tribunal practices and procedures due to any prior dealings, I am satisfied in these proceedings that AAA is sufficiently familiar with tribunal practices and procedures so as not to excuse their non-compliance with directions.

Does AAA have capacity to understand, and act on, the tribunal’s orders and directions?

22. [27]
    As mentioned, AAA is a layperson, who has identified as itinerant with no ready access to technology and suffering from hearing impairment. I also acknowledge AAA’s beliefs and opinions with respect to authority, the corruption of the state and with respect to their freedom to exercise political rights.  In those circumstances, even with the relaxed rules of evidence and informality permitted in tribunal proceedings, I observe that complying with directions might be challenging for AAA.
23. [28]
    I am satisfied however that the tribunal has more than amply assisted AAA to understand and comply and that AAA’s prolific filing of applications, submissions, correspondence and objections establishes AAA’s capacity to understand, and act on, the tribunal’s orders and directions.
24. [29]
    AAA’s conduct evinces a choice to be resistant and delinquent with respect to the substantive progress of their complaint, preferring the resource-consuming path of misconceived interlocutory applications, protest and delay.

Is AAA acting deliberately?

25. [30]
    It is clear from the AMMs, submissions and communication from AAA that their non-compliance with directions is a deliberate act where:

    1. (a)
       AAA will not file evidence to support or establish their complaint and, is it currently stands, their compliant is entirely lacking in utility as there is currently no evidence of the alleged impairment upon which the complaint is grounded; 
    2. (b)
       AAA has objected to usual steps intended to assist AAA to progress their case, such as the compulsory conference and directions hearing; and
    3. (c)
       AAA has been prolific in filing misconceived interlocutory applications and in general communication to the tribunal that does not advance the complaint but has remained non-compliant with the substantive directions for the filing of evidence.

Should the referral be struck out?

26. [31]
    Where AAA has:

    1. (a)
       failed repeatedly and deliberately to comply with tribunal directions to file evidence, take substantive steps to engage in^[24] and to act quickly in any substantive dealing relevant to the proceeding;^[25]
    2. (b)
       no reasonable excuse for failing to comply with tribunal directions (where steps have been explained, extensions of time given and where the applicant in fact protests the directions);
    3. (c)
       been afforded procedural fairness by having received from the tribunal explanations, guidance and extended time to comply; and
    4. (d)
       established, through prolific communication and the filing of interlocutory applications an understanding of tribunal processes, and a capacity to prepare and file documents and submissions (even if misconceived),

27. [32]
    I find that that AAA has unnecessarily disadvantaged the respondents and the tribunal by unnecessarily delaying the proceeding. There is no prospect of the complaint progressing to a contested outcome where the applicant refuses to file evidence. Without evidence, their case must fail. If the referral was to remain on foot despite AAA’s conduct, the tribunal would not be meeting its mandate to conduct matters fairly, quickly, and economically, nor to use its resources appropriately for the public as a whole.

27. [33]
    I am satisfied for those reasons that the referral of a matter (non-disciplinary) filed on 15 September 2021 should be dismissed pursuant to section 48 of the QCAT Act.