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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Oliver v Eacott Nominees Pty Ltd & Anor  QIRC 080
Eacott Nominees Pty Ltd
Application in existing proceedings
10 June 2020
On the papers
Pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011, the Complainant's proceeding is dismissed.
ANTI-DISCRIMINATION – application to dismiss proceeding – where the Complainant has failed to comply with directions of the Commission – Complainant's proceeding is dismissed
Anti-Discrimination Act 1991, s 166
Industrial Relations (Tribunals) Rules 2011, r 5, r 6 and r 45
Paul Scott v State of Queensland & Ors  QIRC 115
No appearance for the Complainant.
Ms C. Eacott for the First and Second Respondents.
Reasons for Decision
- Mr Robert-John Oliver was employed by the First Respondent as a Trades Assistant.
- On 8 May 2019, after a period of approximately ten weeks, Mr Oliver's employment with the First Respondent came to an end.
- By complaint form dated 15 October 2019, Mr Oliver lodged a complaint with the Queensland Human Rights Commission alleging that he had been the subject of discrimination on the basis of sexuality and impairment, in contravention of the Anti‑Discrimination Act 1991, by the Second Respondent who was the owner of the First Respondent.
- On 26 February 2020, Mr Oliver's complaint was referred to the Queensland Industrial Relations Commission ('the Commission') in accordance with s 166 of the Anti‑Discrimination Act 1991 ('the Complainant's proceeding').
- Following an initial conference held before me on 2 April 2020, where Mr Oliver was represented by an organisation called 'A Whole New Approach Pty Ltd', by a Further Directions Order made that day, Mr Oliver was directed to file in the Industrial Registry and serve on the Respondents, by 4.00 pm on 23 April 2020, a statement of facts and contentions in relation to his complaint. The Respondents were directed to file and serve on Mr Oliver, by 4.00 pm on 14 May 2020, their responses to Mr Oliver's statement of facts and contentions. The Further Directions Order also provided that following disclosure, the parties were directed to participate in a further conciliation conference before me at 10.00 am on 23 June 2020.
- Mr Oliver did not and has not filed and served a statement of facts and contentions as ordered.
- By application in existing proceedings filed by the Respondents on 15 May 2020 ('the Respondents' application'), the Respondents applied for an order that 'the matter' be dismissed. The Respondents' application did not particularise the statutory provision upon which it sought that order. Pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'), the Commission has the power to make the order sought by the Respondents.
- The basis for the order as sought by the Respondents is set out in an affidavit affirmed by Ms Catherine Eacott on 14 May 2020 and filed with the Respondents' application namely, that the First Respondent was unable to adhere to the Further Directions Order because it had not received 'any correspondence' from Mr Oliver.
- By Directions Order dated 18 May 2020, Mr Oliver was ordered to file and serve on the Respondents any submissions and, or in the alternative, any affidavit in response to the Respondents' application, by 4.00 pm on 1 June 2020. The Respondents were ordered to file and serve on Mr Oliver any submissions and, or in the alternative, any affidavit in reply by 4.00 pm on 15 June 2020. It was also ordered that the Respondents' application be determined on the papers, unless either party required a hearing of the matter.
- No submissions or affidavit were filed by Mr Oliver.
- Rather than filing submissions or a further affidavit, on 8 June 2020, the Respondents filed a further application in existing proceedings seeking an order that 'the matter' be dismissed. Notwithstanding the failure of the Respondents to at least file any submissions in support of their application, I will proceed to determine their application.
- Rule 5 of the Rules relevantly provides that the Rules apply to a proceeding before the Commission. Rule 6 relevantly provides that the purpose of the Rules is to provide for the just and expeditious disposition of the business of the Commission at a minimum of expense.
- Rule 45 provides:
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.
- (3)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.
- (4)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 Paul Scott v State of Queensland & Ors, Vice President O'Connor stated in respect to r 45 of the Rules:
- 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.
- Vice President O'Connor also said that the discretion conferred under r 45 must be exercised judicially.
The Complainant's proceeding should be dismissed
- Following the making of the Further Directions Order dated 2 April 2020, no material has been filed by Mr Oliver.
- In my view, this is a case where I should exercise my discretion to dismiss the Complainant's proceeding.
- This is because Mr Oliver's non‑compliance with Orders made by the Commission indicates an inability or unwillingness to cooperate with the Commission and the Respondents in having the matter ready to be dealt with by the Commission either by way of conciliation or final hearing.
- For the above reasons, pursuant to r 45(3)(a) of the Rules, I dismiss the Complainant's proceeding.
- Published Case Name:
Oliver v Eacott Nominees Pty Ltd & Anor
- Shortened Case Name:
Oliver v Eacott Nominees Pty Ltd
 QIRC 80
Member Merrell DP
10 Jun 2020