White v James[2021] QIRC 169

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

1. [1]
   Ms Alicia White ('the Complainant') filed a complaint in the Queensland Human Rights Commission alleging breaches of the Anti-Discrimination Act 1991 (Qld) ('AD Act') in the workplace against Mr Nathan James, Mr Brice Hooke and Marina International Mackay Management Pty Ltd (together, 'the Respondents').

2. [2]
   On 11 December 2019, the Complainant's matter was referred to the Queensland Industrial Relations Commission ('the Commission') in accordance with s 166 of the AD Act.

3. [3]
   On 28 May 2020, the Commission conducted a conciliation conference between the parties, however, the matter was not resolved. A Directions Order was subsequently issued to the parties on the same day, requiring parties to file a Statement of Facts and Contentions and disclose between the parties all documents relevant to the matter. A second conciliation conference ('the second conference') was to be held upon compliance with the requirements of the Directions Order.

4. [4]
   On 12 August 2020, an Amended Directions Order was issued extending the time for the Respondent to file its Statement of Facts and Contentions and disclose relevant documents as a result of the Complainant's delay in filing their Statement of Facts and Contentions. The Respondents' Statement of Facts and Contentions was then filed on 28 August 2020.

5. [5]
   On 2 November 2020, a Notice of Listing was issued by the Industrial Registry to the parties, requiring parties to attend the second conference on 9 November 2020. However, due to the unavailability of the Respondents and their legal representatives, the listed conference was adjourned.

6. [6]
   On 11 November 2020, a further Notice of Listing was issued, requiring the parties to attend the second conference on 22 December 2020.

7. [7]
   On 15 December 2020, the Complainant's legal representative filed a Form 35, Notice of Withdrawal of Appointment of Lawyer or Agent, and withdrew as the legal representative for the Complainant in this matter.

8. [8]
   On 21 December 2020, the Respondent's legal representative sent correspondence to the Industrial Registry, advising of non-compliance with the Amended Directions Order by the Complainant with respect to the disclosure of documents:

Pursuant to the orders made by Commissioner Power on 12 August 2020 (albeit with some delay), the Complainant's list of documents was provided on 22 September 2020. Despite request, and in breach of paragraph 4 of the abovementioned orders, the Complainant had not provided their documents by 25 September 2020.

The Complainant subsequently provided some, but not all, of the requested documents on 6 November 2020. The remaining documents have not been provided. As at the date of sending, the Respondents have not received all of the requested documents. Further, some of the documents that have been provided are incomplete.

9. [9]
   The Complainant failed to attend the second conference on 22 December 2020 and the issue of non-compliance relating to disclosure by the Complainant was reiterated by the Respondent's legal representative.

10. [10]
    Correspondence was emailed to the Complainant from the Registry requesting that she make contact following her failure to appear at the second conference. This correspondence was sent on 22 December 2020 and again on 2 February 2021.

11. [11]
    A Commission Associate telephoned the Complainant on 11 February 2021 to ascertain if the Complainant had received the correspondence, as two email addresses had previously been used. The Complainant advised that she had been having trouble accessing her email but would like to progress the matter to 'finalise everything'. She was then given the Industrial Registry's email address and was asked to send an email to the Registry as soon as possible providing up to date contact information and confirming her intention to progress the matter. The Complainant was informed that the matter would be progressed upon receipt of her email.

12. [12]
    No email was received from the Complainant.

Submissions

13. [13]
    Following the failure to comply with directions, non-attendance of the Complainant at the second conference, and failure to email her intentions and contact details as requested, a Directions Order was issued requiring both parties to provide written submissions on whether the matter should be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules').

14. [14]
    Neither party filed submissions.

Rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld)

15. [15]
    Rule 45 of the Rules provides:

45     Failure to attend or to comply with directions order

1. (1)
   This rule applies if—

1. (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
2. (b)
   the party fails to attend the hearing or conference.

2. (2)
   This rule also applies if—

1. (a)
   a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
2. (b)
   the party fails to comply with the order.

3. (3)
   The court, commission or registrar may—

1. (a)
   dismiss the proceeding; or
2. (b)
   make a further directions order; or
3. (c)
   make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
4. (d)
   make orders under paragraphs (b) and (c).

16. [16]
    In Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd,^[1] his Honour President Hall cited with approval, the reasoning of Thomas JA in Quinlan v Rothwell & Anor ('Quinlan'),^[2] 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.^[3]

17. [17]
    In the matter of Paul Scott v State of Queensland & Ors,^[4] Vice President O'Connor stated that although the matter in Quinlan related to the application of the Uniform Civil Procedure Rules 1999 (Qld), the reasoning of Thomas JA has equal application to the matter in those proceedings. This involved the application of r 45 of the Rules.   
18. [18]
    In dealing with a similar provision under the Federal Court Rules, Wilcox and Gummow JJ stated in Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd,^[5] 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: 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.

…

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.

19. [19]
    The Complainant did not comply with the Directions Orders with respect to the disclosure of documents and did not attend the second conference. After providing a verbal explanation of having difficulty accessing emails, the Complainant did not comply with the request to confirm her intention to progress the matter and provide current contact details in a return email. The Complainant made no submissions in accordance with the Directions Order regarding the potential dismissal of the matter. No further contact has been made by the Complainant.

20. [20]
    I am of the view that the Complainant's non-compliance indicates an unwillingness to engage with the Commission to progress the matter to a further conference or hearing. I am satisfied that appropriate grounds exist to exercise a discretion to dismiss the Complainant's proceeding.

Order

21. [21]
    I make the following Order:

That matter AD/2019/122 is dismissed pursuant to rule 45(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld).