Sheriff v Wridgways People Pty Ltd
[2020] QIRC 233
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- Unreported Judgment
- Sheriff v Wridgways People Pty Ltd[2020] QIRC 233
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Sheriff v Wridgways People Pty Ltd[2020] QIRC 233
Sheriff v Wridgways People Pty Ltd[2020] QIRC 233
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Sheriff v Wridgways People Pty Ltd [2020] QIRC 233 |
PARTIES: | Sheriff, Alanzo Appellant v Wridgways People Pty Ltd Respondent |
CASE NO: | AD/2020/67 |
PROCEEDING: | Referral of complaint made under the Anti-Discrimination Act 1991 (Qld) |
DELIVERED ON: | 24 December 2020 |
HEARING DATES: | Conferenced on 11 August 2020 and 27 November 2020 |
MEMBER: | McLennan IC |
HEARD AT: | Brisbane |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW - ANTI-DISCRIMINATION – where the complainant was directed to attend a conference and failed to do so – where the complainant was directed to file materials and failed to do so – consideration of rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) |
LEGISLATION: | Industrial Relations (Tribunals) Rules 2011 (Qld) r 41, r 45 |
CASES: | Cady v Capital SMART Repairs Australia Pty Ltd & Anor [2019] QIRC 144 Cooper v. Hopgood & Ganim [1998] QCA 114 House v R (1936) 55 CLR 499 Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200 Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73 Quinlan v Rothwell & Anor [2001] QCA 176 Seymour v Workers' Compensation Regulator [2017] QIRC 061 Treanor v State of Queensland [2019] QIRC 146 Witten v Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405 Workers' Compensation Regulator v Varga [2019] QIRC 028 Workers’ Compensation Regulator v Bero [2019] QIRC 36 |
Reasons for Decision
- [1]Mr Alanzo Sheriff (the Complainant) filed a Form 85 – Referral (the Complaint) on 7 July 2020. The Complaint relates to various allegations of discrimination on the basis of race, along with victimisation and public vilification.
- [2]On 11 August 2020 I conducted a conciliation conference between the parties. At that conference, Mr Sheriff was informed a Further Directions Order would be forthcoming, requiring him to file materials including a Statement of Facts and Contentions. I then took Mr Sheriff through the directions in considerable detail, and his questions about the process were answered. Further, Mr Sheriff was advised that the transcript of the conference would be made available to him, and that a second conference would be convened.
- [3]A Further Directions Order was issued to the parties on 11 August 2020 requiring the parties to file a Statement of Facts and Contentions and a list of witnesses to be called, and notifying the parties that the matter would be listed for a second conference on 27 November 2020.
- [4]A Notice of Listing for that second conference was issued by the Industrial Registry to both parties, using the same email addresses as had been used to provide the parties with the first Notice of Listing. That was also the same email address that Mr Sheriff used to correspond with this Commission at other times.
- [5]Despite all that, Mr Sheriff failed to comply with the Further Directions Order in several respects. First, he did not file any material whatsoever in respect of those Directions. Even now those Directions remain unfulfilled. Second, Mr Sheriff failed to attend the second conference of this matter.
- [6]Following that non-attendance and non-filing, I issued Further Directions to the parties inviting submissions on whether the matter should be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld).[1]
- [7]For the reasons that follow, I have determined that Mr Sheriff’s continued and inadequately explained non-compliance with my directions warrants the dismissal of his Complaint.
Submissions
- [8]Following the Directions being sent to both parties, Mr Sheriff sent several emails to the Industrial Registry. I have taken those to be his submissions, as nothing else has been received. Those emails may be summarised as follows:
I am requesting this matter that is before the Queensland Industrial Commission to postpone the proceedings indefinitely until it is safe to proceed with my complaint.
I have to leave Australia for New Zealand because I am constantly harassed, intimidated and my life was in danger, now that I am in New Zealand my life is still in danger, I am harassed and intimidated. I am unable at this time to proceed in this environment of fear and intimidation.
…
The reason for not attending rearing on 27 November 2020 before commission McLeeannan because I did not receive notice from the Queensland Industrial Commission of the rearing date or order requiring me to attend the hearing, and circumstances beyond my control will prevent me from attending any future hearing due to the covid-19 restriction I will not be able to travel to Australia because of the border closed by the Government of Australia.
(sic)
- [9]The Respondent did not file submissions about the issue.
Non-compliance with directions
- [10]Mr Sheriff has failed to comply with Directions for filing materials, and has failed to comply with a Direction for attendance. Those Directions were explained to Mr Sheriff in the conference. He was provided ample opportunity to discuss the issue with the Industrial Registry, or a legal representative if he so elected. I have no doubt that Mr Sheriff understood his obligations under the Directions, namely that he file materials and attend a conference at this Commission.
- [11]I do not accept Mr Sheriff’s account that he was not aware of the conference. He was emailed a notice of listing, and a Directions order, which each specified the date, time and location of the second conference. That email address was clearly accessible to him; he received the Further Directions Order about the matter being dismissed on that address. He was also told in the first conference that another conference would be convened. The fact that he chose to leave the country would not have prevented him from requesting to appear by phone or asking that the conference be adjourned to a later date prior to its commencement.
- [12]Neither do I accept Mr Sheriff’s entirely unparticularised account that he has been unable to comply with the Directions due to harassment and intimidation. Neither did Mr Sheriff take any steps to seek extensions within time. Given his ability to write to the Commission about whether his proceeding should be dismissed, it appears he is certainly capable of filing appropriate materials in accordance with the Directions. He has not done so.
- [13]I advised Mr Sheriff, by way of correspondence from the Registry dated 1 December 2020, that his emails were inadequate explanations for his non-compliance. He was invited to file further submissions to explain his position, but none were forthcoming.
- [14]I am aware that both parties are self-represented, though the Respondent has the benefit of a human resources employee. A lack of representation is a misfortune, which should be met with necessary procedural assistance, but is not a privilege entitling a self-represented litigant to special consideration at the expense of the party or parties who are represented or more experienced in the jurisdiction.[2]
- [15]In that vein, I would note that even now Mr Sheriff has not complied with the Directions for filing and exchanging materials. Mr Sheriff’s non-familiarity with the jurisdiction might explain a slightly deficient or poorly set out pleading, but not a total absence of any further filed material. The true explanation for Mr Sheriff’s lack of filed materials appears to be that he has simply chosen not to comply with Directions or to prosecute his case.
- [16]The question is then whether such non-compliance warrants dismissal of this appeal.
Rule 45
- [17]Rule 45 of the Rules provides (emphasis added):
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).
- [18]The power under rule 45(3)(a) involves an exercise of discretion. Foremost, discretionary powers must be “exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion.”[3] In exercising that discretion, I am informed by several factors, which are set out below. Ultimately, however, I must consider the particular circumstances of this case.[4]
- [19]In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd, their Honours Wilcox and Gummow JJ considered a provision under the Federal Court Rules which is materially similar to rule 45. In that case, their Honours identified two broad types of failure to comply with directions which would warrant the dismissal of a matter (emphasis added):
As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: 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 and 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. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. 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.
In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the Court's directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent.[5]
- [20]Such reasoning was followed by his Honour O'Connor VP in this jurisdiction in Workers' Compensation Regulator v Varga [2019] QIRC 028, and Seymour v Workers' Compensation Regulator [2017] QIRC 061, as well as by his Honour Merrell DP in Cady v Capital SMART Repairs Australia Pty Ltd & Anor [2019] QIRC 144.
- [21]Mr Sheriff’s default is certainly continuing, given his ongoing failure to file and serve the Statement of Facts and Contentions and witness list. It also imposes an unacceptable burden on the Respondent, as they are unable to meaningfully respond to the Complaint without understanding Mr Sheriff’s case. That is further emphasised by Mr Sheriff providing scant detail in the Complaint.
- [22]In the exercise of my discretion under rule 45, I am also minded to consider the purpose of the Tribunal Rules, as set out in rule 6:
- Purpose of rules
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.
- [23]The terms ‘just’ and ‘expeditious’ may sometimes appear to be at odds. Australian courts and tribunals often wrestle with the task of maintaining the precarious balance between expeditious resolutions, and the ability of parties to prepare for and present their case. In considering that balance while dealing with an application to dismiss for want of prosecution, his Honour Thomas JA in Quinlan v Rothwell & Anor provided (my emphasis):
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.[6]
- [24]While his Honour Thomas JA was considering the Uniform Civil Procedure Rules 1999 (Qld), that passage has been adopted in this jurisdiction on a number of occasions,[7] as the underlying question to be determined is consistent with the exercise of discretion under rule 45.
- [25]In this matter, Mr Sheriff’s failure to comply with directions has resulted in a fundamental undermining of the Respondent’s ability to fully prepare their case. As such, were this matter to progress to hearing, in the current state of the Mr Sheriff’s noncompliance, it would be fundamentally unjust to the Respondent.
- [26]One alternative to dismissal would be to place this matter into abeyance until either Mr Sheriff complies with the directions, or the matter lapses due to inactivity. However, Mr Sheriff has never expressed any genuine desire to comply with the directions, presently or at some stage in the future. He has not explained to any sufficient extent why he failed to attend the second conference, or why the Directions for filing have not been complied with, or why extensions or adjournments were not sought within time. While Mr Sheriff suggests he has had to leave the country, and that he was “constantly harassed, intimidated, and (that his) life was in danger”, there is nothing before me to support that extraordinary claim. If that were the case, I would expect Mr Sheriff to avail himself of assistance from the police, and I would expect Mr Sheriff to have asked for extensions within time. He remains clearly capable of communicating with this Commission.
- [27]Mr Sheriff’s attitude as to his non-compliance and his failure to prosecute his complaint is exposed by his total unwillingness to file even an attempt at the Statement of Facts and Contentions.
- [28]Mr Sheriff’s decision not to take any steps to prosecute his complaint evinces, to my mind, an intention that he was not, and is not, genuinely intending to comply with my Directions. As such, further delay would create a futile and unnecessary impediment to the expeditious resolution of this matter, which has already been on foot since July 2020.
- [29]Therefore, in my opinion, the purpose of the Tribunal Rules is best fulfilled in this case by exercising the discretion under rule 45 to dismiss this appeal.
Costs
- [30]Given that this matter has resolved without proceeding past conference stage, I am not minded to award costs.
Conclusion
- [31]Mr Sheriff has failed to comply with Directions to file materials in his complaint and has failed to comply with a Direction to attend a second conference in this matter. Those failures have not been adequately explained in his materials, and the Direction to file materials has still not been complied with. That is despite being provided with significant assistance to understand his obligations under the Directions. Mr Sheriff has been entirely unwilling to take the necessary steps to prosecute his case.
- [32]As such, I find that this Complaint should be dismissed under rule 45. I order accordingly.
Orders
- That the complaint is dismissed.
Footnotes
[1] ‘the Rules’.
[2] See, eg, Workers’ Compensation Regulator v Bero [2019] QIRC 36; Treanor v State of Queensland [2019] QIRC 146.
[3] House v R (1936) 55 CLR 499, 503.
[4] Cooper v. Hopgood & Ganim [1998] QCA 114, 6; citing Witten v. Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405.
[5] Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200.
[6] Quinlan v Rothwell & Anor [2001] QCA 176, 8.
[7] See, eg, Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73; Workers' Compensation Regulator v Varga [2019] QIRC 028, 5-6.