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- Unreported Judgment
Paul Scott v State of Queensland QIRC 115
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Paul Scott v State of Queensland & Ors  QIRC 115
State of Queensland (Department of Education)
Application in existing proceedings
1 August 2019
1 August 2019
ANTI-DISCRIMINATION – application to dismiss proceeding – where the complainant has repeatedly failed to comply with directions of the Commission – whether discretion to dismiss proceeding is enlivened
Industrial Relations Act 2016 s 548
Industrial Relations (Tribunal) Rules 2011 r 6, r 45
House v The King (1936) 55 CLR 499
Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd (1990) FCR 388
Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd  QIC 73; 180 QGIG 1209
Quinlan v Rothwell & Anor  QCA 176
No appearance for the Complainant
Ms A C Freeman of Counsel instructed by Crown Law for both Respondents/Applicants
Reasons for Decision (ex tempore)
- The State of Queensland (Department of Education) has made an application to this Commission that matter (AD/2019/11) be dismissed pursuant to rule 45(3)(a) of the Industrial Relations (Tribunal) Rules 2011 on the basis that:
- (a)The complainant failed to comply with Order 2 of the Directions dated 13 March 2019;
- (b)The Complainant failed to attend a Directions Hearing on 29 April 2019; and
- (c)The Complainant failed to comply with Order 2 of the Directions dated 30 April 2019.
- The complaint was referred to this Commission from the Anti-Discrimination Commission Queensland under the Anti-Discrimination Act 1991.
- The Applicants rely on r 45(3) of the Industrial Relations (Tribunals) Rules 2011 and upon the chronology of events set out in the affidavit of Victoria Apted, sworn 21 May 2019 and filed in the Industrial Registry on the 22 May 2019. As far as is relevant the affidavit states:
- On 13 March 2019 the Commission sent an email to Ms Melissa Hogg, Senior Lawyer at Crown Law and Mr Scott an email attaching directions orders in relation to matter AD/2019/11. The directions orders required, amongst other things, for Mr Scott to file in the Commission and serve on State of Queensland and Ms Ferguson a statement of facts and contentions by 4:00pm on 3 April 2019.
- On 4 April 2019 the Commission sent Mr Scott an email, copied to Ms Hogg, stating that his statement of facts due on 3 April 2019 had not been received and requesting him to update the Commission by close of business on 5 April 2019 as to the status of his submissions, or seek the State of Queensland and Ms Ferguson's consent for an extension of time.
- On 10 April 2019 Ms Hogg sent an email to the Commission and Mr Scott requesting the current orders be vacated and new orders be issued providing Mr Scott with one final opportunity to file his statement and facts and contentions.
- On 17 April 2019 Ms Hogg received an email from the Commission attaching a notice of listing setting down the matter for a directions hearing on 2:00pm on 23 April 2019 requiring all parties to attend.
- On 18 April 2019 Ms Hogg sent an email to the Commission and Mr Scott requesting that the directions hearing be moved to 29 April 2019.
- On 18 April 2019 Ms Hogg received an email from the Commission attaching an amended notice of listing setting the matter down for a directions hearing at 11:00am on 29 April 2019.
- On 26 April 2019 Ms Hogg sent an email to Mr Scott asking him if he would be in attendance at the directions hearing on 29 April 2019 and if he would be continuing his claim. On 26 April 2019 Mr Scott responded to Ms Hogg's email advising that he would be in attendance at the directions hearing. On 26 April 2019 Ms Hogg responded to Mr Scott's email and asked if he would be continuing with his complaint. Mr Scott emailed Ms Hogg advising that he would like to continue with his claim.
- On the 29th of April 2019 the hearing came before me. Mr Scott was not in attendance. Relevantly, on that occasion attempts were made, and I’ll read from the transcript, as follows:
HIS HONOUR: Thank you, Ms Freeman. My Associate attempted to make contact with the complainant, Mr Scott, at approximately 11.02 this morning. He telephoned Mr Scott on his mobile to ask – and managed to get through – and asked him whether he was aware that the matter had been listed for today at 11 am before the Commission. Mr Scott’s response was, “I forgot.” He was then asked whether he was in a position to talk now. An arrangement would be put in place for him to be given leave and have access to the phone within the courtroom. Mr Scott replied with, “Um,” and then the connection was lost. A short time thereafter my Associate again attempted to contact Mr Scott by telephone unsuccessfully, the phone ringing out.
- As I said then, it was obvious that Mr Scott would not be attending. On the 30th of April 2019 the Commission sent Ms Hogg and Mr Scott an email attaching a further directions order. The order required, amongst other things, for Mr Scott to file in the Commission and serve on the State of Queensland and Ms Ferguson a statement of facts and contentions by 4 pm on the 13th of May 2019. Mr Scott’s statement of facts and contentions was not filed on the 13th of May 2019 or at all. Order 3 of the further directions order provided that in circumstances where the complainant did not file and serve his statement of facts and contentions the State of Queensland and Ms Ferguson are at liberty to make an application to dismiss the proceedings pursuant to rule 45 of the Industrial Relations (Tribunals) Rules 2011.
- Rule 6 sets out the purpose of the rules as follows:
The purpose of these rules is to provide for the just and expeditious disposition of the business of the court, the Commission, a magistrate and the registrar at a minimum of expense.
- In my view, r 6 recognises the obligation placed, in this instance, on the Commission and implicitly on the parties to ensure the expeditious disposition of matters in the Commission. Rule 45(3), in particular, rule 45(3)(a), gives the Commission a power to dismiss the proceedings and is as follows:
45 Failure to attend or to comply with directions order
- (1)This rule applies if–
- (a)a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and;
- (b)the party fails to attend the hearing or conference.
- (2)This rule also applies if–
- (a)A party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
- (b)The party fails to comply with the order.
- (3)The court, commission or registrar may—
- (a)dismiss the proceeding; or
- (b)make a further directions order; or
- (c)make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
- (d)make orders under paragraphs (b) and (c).
- In Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd his Honour President Hall, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell & Anor as follows:
There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules.
- Whilst Quinlan v Rothwell & Anor related to the application of the Uniform Civil Procedure Rules 1999 in respect of application to dismiss for want of prosecution, in my respectful view, the reasoning of Thomas JA has equal application to the current proceedings.
- In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd, Wilcox and Gummow JJ in dealing with a similar provision under the Federal Court Rules stated that the discretion conferred by the rule was:
unconfined, except for the condition of noncompliance with a direction ... [b]ut two situations are obvious candidates for the exercise of the power." The first were "cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period". The second were cases "whatever the applicant’s state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent.
- Their Honours went on to observe:
Even though the most recent non-compliance may be minor, the cumulative effect of an applicant’s defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate, or for some reason, is unable to do so. Such a conclusion would not readily be reached; but where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.
- The complainant did not appear at the mention either in person or by telephone. Whilst an attempt was made by the Commission to give him an opportunity to participate in the mention the call was abruptly terminated. No explanation was given for his non-attendance on 29 April or today. Nor has any explanation been given for the non-compliance with the directions order. Further, as can be seen in the chronology, the applicant has attempted on numerous occasions to communicate with and indeed assist Mr Scott with no success.
- The discretion conferred under r 45 must be exercised judicially. The discretion to dismiss this proceeding has, in my view, been enlivened. Accordingly, having regard to the history of delay, the unjustified non-compliance with the directions orders, the absence of any communications and, in particular, his failing to attend the mention on 29 April 2019 and this hearing are all appropriate grounds to exercise the discretion to dismiss the proceeding. Accordingly, I order that pursuant to rule 45 of the rules, matter AD/2019/11 be dismissed.
- In terms of costs, an application is made in relation to the costs associated with this matter. Submissions have been placed before me today regarding the Commission’s ability to award costs pursuant to section 548 of the Industrial Relations Act 2016, being costs thrown away by the attendance at the directions hearing on the 29th of April and the preparation of the application to dismiss and attendance at the hearing of this matter today. The provision relating to costs concerning proceedings before the Commission under the Anti-Discrimination Act 1991 are set out within schedule 2 of the Industrial Relations Act 2016.
- It is submitted before me that the conduct of the respondent, in this case the complainant, in failing to comply with several directions orders issued by the Commission and his failure to attend the last two hearings are such that the unnecessary cost of preparing and attending at such matters has placed the applicants under a disadvantage, and, accordingly, costs should follow. Furthermore, there has been no attempt by the complainant, as I said before, to explain his failures to comply and attend. The circumstances in which costs against a party can be granted in the interests of justice are provided for in section 4 of schedule 2.
- Having regard to this matter, I’m not minded on this occasion, notwithstanding the submissions that have been made to me, that it would necessarily be in the interests of justice to award costs against the complainant. Some of the material that has been filed in the Industrial Registry and which I’ve had reference to does not necessarily suggest to me that he would be a person who would have an ability, necessarily, to meet a costs order, and in these circumstances I’m not minded to grant the application for costs, which I note is in the sum of some $8830.80.
- I make the following orders:
- The Application is granted; and
- Pursuant to r 45(3) of the Industrial Relations (Tribunal Rules) 2011, I dismiss the proceedings in matter AD/2019/11; and
- I make no order as to costs.
- Published Case Name:
Paul Scott v State of Queensland & Ors
- Shortened Case Name:
Paul Scott v State of Queensland
 QIRC 115
Member O'Connor VP
01 Aug 2019