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TURSA Employment & Training Limited v Rinaldi[2021] QIRC 214

TURSA Employment & Training Limited v Rinaldi[2021] QIRC 214

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

TURSA Employment & Training Limited & Anor v Rinaldi [2021] QIRC 214

PARTIES: 

TURSA Employment & Training Limited

(First Applicant)

&

Doherty, Danielle

(Second Applicant)

v

Rinaldi, Dion

(Respondent)

CASE NO:

AD/2020/90

PROCEEDING:

Application to dismiss

DELIVERED ON:

15 June 2021

HEARING DATE:

23 March 2021

MEMBER:

HEARD AT:

O'Connor VP

Brisbane

ORDER:

  1. The application is granted;
  1. Pursuant to rule 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011, I dismiss the proceedings in matter AD/2020/90; and
  1. I make no order as to costs.

CATCHWORDS:

INDUSTRIAL LAW – ANTI-DISCRIMINATION – APPLICATION TO DISMISS – where failure of respondent to comply with directions order – where respondent did not take steps to progress the substantive complaint – whether discretion to dismiss proceeding is enlivened.

LEGISLATION:

CASES:

Anti-Discrimination Act 1991 (Qld), s 11, s 166, s 204

Industrial Relations Act 2016 (Qld), s 548

Industrial Relations (Tribunals) Rules 2011 (Qld), r 6, r 45

Social Security Act 1991

AON Risk Services Aust Ltd v ANU (2009) 239 CLR 175

Cooper v Hopgood [1999] 2 Qd R 113

House v The King (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; 180 QGIG 1209

Quinlan v Rothwell & Anor [2001] QCA 176

Scott v State of Queensland & Ors [2019] QIRC 115

SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725

SZNFR v Minister for Immigration and Citizenship [2009] FCA 851

APPEARANCES:

Mr R. E. Reed of counsel, instructed by Just Us Lawyers, for the Applicants.

Mr D. Rinaldi, the Respondent in person.

Reasons for Decision

  1. [1]
    Tursa Employment & Training Ltd ('Tursa') and Danielle Doherty ('the Applicants') have made an application in existing proceedings to this Commission on 27 January 2021 seeking an order that the Complaint filed by Dion Rinaldi ('the Complainant'), being matter AD/2020/90, be dismissed pursuant to rule 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the IR Rules'). 

Background

  1. [2]
    This matter was referred to the Commission by the Queensland Human Rights Commission ('QHRC') on 6 October 2020 on the request of the Complainant, in accordance with s 166 of the Anti-Discrimination Act 1991 (Qld) ('the AD Act').
  1. [3]
    As a recipient of the Newstart allowance provided by Services Australia, the Complainant was required to meet various obligations to receive his payments.  This included attending meetings with a job provider for the purpose of assisting him in his job search.
  1. [4]
    At the relevant time of the allegations, the Complainant states to have had a foot condition which required correction through surgery.  He complained of pain and swelling on days after walking long distances.
  1. [5]
    The Complainant alleges indirect discrimination due to having been required by his job provider service to continue with physical attendance obligations despite having an impairment.
  1. [6]
    The Complainant's Referral contained a series of emails exchanged on 25 November 2019.[1] The following extract of the Complainant's initial email illustrates his request: 

Could all our future appointments be changed to phone meetings?

I've got a foot condition and am planning to have an operation to correct the toe joint. My doctor sent me for x-rays a few weeks ago and they arrived in the mail last week. The walk to and from the Tursa office is about four kilometers [sic] and causes foot pain and swelling on the day and for up to two days afterwards.

  1. [7]
    Mr Rinaldi was provided with the following response from Danielle Doherty, a Service Provider Representative from Tursa:

Hey Dion, we don't do phone interviews… is there a closer provider near you? Call 136268, they can transfer you closer to another provider.

  1. [8]
    Mr Rinaldi responded with:

Maybe I could do independent job search for the next few weeks until Austudy starts. I've also checked whether this foot condition and it is something that is protected by disability discrimination law so there is an obligation to accommodate.

  1. [9]
    Mr Rinaldi was advised by Ms Doherty: 

…first we need proof there is a Medical issue, just keep in mind disability is totally different then [sic] a medical condition… disability – is this condition long term? Then it's not classified as disability it's a medical issue. Therefore, get your doctor to give you an [sic] Centrelink medical to excuse you from attending job club and review apt, take this document down to Centrelink to get it proceeded [sic] and then you will be exempt… so this will be the only way we can address this… Austudy has this been approved, fulltime study?

  1. [10]
    The Complainant lodged his first complaint with the QHRC on 25 November 2019, attended an appointment at Tursa on 26 November 2019 and made a second complaint to the QHRC on 27 November 2019. 
  1. [11]
    In a letter to the QHRC providing further information as requested, Mr Rinaldi states:

I was treated less favourably than others when Ms Doherty closely scrutinised my compliance, verbally harassed me and interfered with my income support payment. This amounted to both discrimination and victimisation.

  1. I later obtained a medical certificate. This requirement is not essential as other employment agencies offer assistance by phone and email but this option was not offered to me by Tursa.
  2. Tursa and its employees are not part of the Department of Human Services.
  3. The interpretation of 'loss, damage or injury' by limiting it to quantifiable losses, such as loss of wages due to dismissal. Anti-discrimination law recognised damage to include injury to feelings and self-respect.
  4. Please also consider the ground of vilification in the circumstances where some of the conversation with Ms Doherty could be heard by Tursa employees and others in the office at the time to meet the criteria of public act or statement.[2]
  1. [12]
    The Complainant was subsequently transferred to an alternative employment service provider and granted a Medical Exemption.[3]

The Application

  1. [13]
    The Applicants rely on rule 45 of the IR Rules which relevantly provides:
  1. 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;
  1. (b)
    the party fails to attend the hearing or conference.
  1. (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
  1. (b)
    the party fails to comply with the order.
  1. (3)
    The court, commission or registrar may –
  1. (a)
    dismiss the proceeding; or
  1. (b)
    make a further directions order; or
  1. (c)
    make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
  1. (d)
    make orders under paragraphs (b) and (c).

Timeline

  1. [14]
    The Applicants' Supplementary Submissions, filed in the Commission on 19 March 2021 in accordance with the Notice of Listing, relevantly outlines a chronology of events leading to this application to dismiss proceedings.[4] 
  1. [15]
    On 11 December 2020, the parties attended a conciliation conference in the Commission before Merrell DP.  The matter did not resolve, and the parties were issued a Further Directions Order to proceed to hearing.
  1. [16]
    The Complainant was required by the Further Directions Order to file and serve a Statement of Facts and Contentions ('SFC') by 15 January 2021.  The Complainant did not comply with this order.
  1. [17]
    On 18 and 19 January 2021, the representatives of the Respondents in the substantive proceeding attempted to contact the Complainant by email and telephone to follow up the Complainant's SFC.
  1. [18]
    As no response had been received from the Complainant by 27 January 2021, the Respondents filed and served this application to dismiss proceedings for failure to comply with a Directions Order.
  1. [19]
    Merrell DP vacated the previous Further Directions Order and issued a Second Further Directions Order dated 28 January 2021 directing the Complainant to file and serve any affidavits and/or submissions in reply to the application to dismiss by 11 February 2021.
  1. [20]
    On 10 February 2021, the Complainant attempted to file a SFC however this was not accepted or filed by the Registry as the related Further Directions Order had been vacated on 28 January 2021.
  1. [21]
    As no materials were received by the Complainant, the matter was mentioned before Merrell DP on 19 February 2021.  A Third Further Directions Order was issued at this mention to provide the Complainant with an additional opportunity to respond to the application to dismiss.  The Complainant filed a brief affidavit in response on this same day.
  1. [22]
    To afford procedural fairness to the parties, this application to dismiss was reallocated to me for determination.
  1. [23]
    A Notice of Listing for hearing of this application was issued to the parties on 8 March 2021 with an order providing the parties a further opportunity to file and serve any submissions in response before 19 March 2021. 
  1. [24]
    No further materials were received from the Complainant.

Applicants' Position

  1. [25]
    The Applicants filed submissions in support of this application in the Industrial Registry on 26 February 2021 and 19 March 2021.
  1. [26]
    It is submitted that the Complainant's purported explanation for delay in filing a SFC is vague and unconvincing as it does not particularise how a COVID-19 related issue prevented him from complying with the order.[5] 
  1. [27]
    The Applicants allege that an inference can be drawn from these actions to indicate that the Complainant lacks proper regard for his obligations to the Commission or a willingness and capacity to comply with any future directions.[6] 
  1. [28]
    It is further raised that if an indulgence is granted to the Complainant, the prejudice occasioned to the Respondents by the delay and the need to bring the interlocutory application is not likely to be cured by an award of costs to the Respondents[7] in a jurisdiction where each party generally bears their own costs.[8]
  2. [29]
    While it is accepted that it is not the place to resolve issues of fact in an application of this nature, it is submitted that an assessment of the Complainant's prospects of success in his claim is a factor which may be considered.[9]  The Applicants suggest that there is less uncertainty when considering the prospects of this matter as the Complainant has indicated he has no intention to provide further facts and contentions or material to the Commission.[10]  
  1. [30]
    In reference to the indirect discrimination claim, the Applicants submit that the Complainant's prospects are tenuous as:
  1. (a)
    There is no evidence provided by the Complainant of a disability.
  2. (b)
    The Complainant displayed an ability to comply with requirements of physical attendance and transfer providers.
  3. (c)
    The Respondents have good prospects of showing that the requirement for attendance was reasonable.[11]
  1. [31]
    Looking to the victimisation complaint, the Applicants further submit that:
  1. (a)
    The Complainant has insufficient evidence to prove his job keeper payment was delayed. The Applicants assert that the Complainant's payment was due to be made on Friday, 29 November 2019 and was made on the following Monday, 2 December 2019.
  2. (b)
    The Complainant has insufficient evidence to demonstrate that the Respondents' actions caused the delay.[12]
  1. [32]
    The Applicants additionally dispute the Complainant's position that the matter has a 'high public interest' as there are no issues of general importance to be determined.

Complainant's Position

  1. [33]
    In his Affidavit, the Complainant provided the following reasons for delay and why the proceeding should continue:[13]
  1. During December 2020 and January 2021, there was an unexpected increase in COVID-19 causing inconvenience that contributed to my inability to complete my SFC on time.
  1. The SFC that was filed late and not accepted by the QIRC contained all the same information as the original complaint that was filed to the Queensland Human Rights Commission (QHRC). The parties agree on most facts but disagree the events amount to unlawful discrimination. The parties have already participated in a conciliation conference and mediation so the SFC would not contain any new information.
  1. The Complaint has a high public interest as it involves a Jobseeker Provider contracted by Services Australia. Jobseekers are more vulnerable group in the community. This complaint alleges bullying behaviour that includes allegations that the Respondents misusing power to interfere with Jobseeker payments.
  1. On 19 February 2021, a Third Further Directions Order was published that indicted a direction that "the proceeding be determined on the papers, unless otherwise ordered". The proceeding is not expecting to call witnesses for examination, etc., so it is convenient and efficient for both parties for the complain to proceed and not be dismissed.
  1. [34]
    During the hearing on 23 March 2021, when asked how the effects of COVID-19 contributed to his delay in filing an SFC, the Complainant stated the following:

 MR RINALDI:  We just wasn’t able to leave that region for a couple of weeks. I - - -

 HIS HONOUR:  Did you have a computer with you?

 MR RINALDI:  Yes. I – yes. I did. But I wasn’t really in the mood of spending much time working                                                         on this case - - -

 HIS HONOUR:  Well - - -

 MR RINALDI:  - - - while I was spending time with my parents. I hadn’t seen them for almost a year                                                         because of the COVID restrictions.[14]

  1. [35]
    When raised with the Complainant whether they understood their breach of obligations, the following admissions were made:

HIS HONOUR:  You didn’t comply with the directions though. You agree - - -

MR RINALDI:  That’s true. Yes.

…

MR RINALDI:  It wasn’t filed in time and – and actually I filed it after the - - -

HIS HONOUR:  And the reasons you give me, you say the COVID but you don’t say how COVID impacted upon you.

MR RINALDI:  Well, it was only for a short period of time of a few weeks over Christmas.

HIS HONOUR:  Yes. Yes. No, no, no, there’s obligations to file and the respondent attempted to remind you of those obligations. You never responded to them and, of course, they tried both by email and telephone.

MR RINALDI:  Yes.[15]

  1. [36]
    The Complainant provided the following explanation in relation to the Respondents being unable to contact him:

HIS HONOUR:  So you accept that they tried to contact you but you didn’t respond.

MR RINALDI:  Yes. Yes. That is an essential part of this process but they did attempt to contact me, and which is bad luck my 12-month period on my phone had run out over that period and - - -

HIS HONOUR:  But, equally, in the email – they attempted to email you as I understand it.

MR RINALDI:  That’s true. Yes. I – I wasn’t checking my emails regularly.

HIS HONOUR:  But you didn’t reply. No.

MR RINALDI:  No. That’s true.[16]

Consideration

  1. [37]
    In Scott v State of Queensland,[17] the Commission was called on determine an application to strike-out, in reliance of rule 45 of the IR Rules, an Anti-Discrimination matter on the basis of a failure to comply with directions. In striking out the complaint, the Commission relied on Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd[18] where 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[19] 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.[20]

  1. [38]
    In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd,[21] 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.[22]

  1. [39]
    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.[23]

  1. [40]
    The Applicants in these proceedings drew my attention to SZNFR v Minister for Immigration and Citizenship[24] which quoted SZMFT v Minister for Immigration and Citizenship:[25]

The Court observes that in considering whether to grant an extension of time to file a notice of appeal under O 52 r 15(2) of the Rules, the Court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the Court were to grant leave, and that there is merit in the substantial application: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349. There appears to be no valid reason why such considerations should not also apply to an application seeking an order of the Court that dispenses with the 21day time limit prescribed by O 52 r 5(2) of the Rules.[26]

  1. [41]
    In SZNFR v Minister for Immigration and Citizenship Flick J wrote:[27]

In the present proceeding, however, neither the reasons for decision of the Federal Magistrate nor the proposed Notice of Appeal expose any basis upon which an appeal would have any prospects of success. Even if an order were to be made pursuant to O 52 r 5(3), leave to appeal would in any event be refused: see SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543. Such a conclusion may be relied upon as a reason for an adverse exercise of the discretion conferred by O 52 r 5(3).[28]

  1. [42]
    Whilst the authorities referred to are drawn from different statutory contexts, they nevertheless identify some underlying principles which ought to be considered when determining whether a discretion under s 45 of the IR Rules is to be exercised. The Commission must be satisfied that there is an acceptable explanation for the delay; that there would be no undue prejudice to the Respondent if the Commission were to grant leave; and that there is merit in the substantial application.
  1. [43]
    Let me first address prospects of success.
  1. [44]
    Although an interlocutory application is not the place to resolve issues of fact, an assessment of the Complainant's prospects of success in his claim is a factor which may be considered.[29]
  1. [45]
    The Commission has been provided with a referral from the Human Rights Commission containing material which has informed the background of this matter. 
  1. [46]
    The Complainant's SFC, which he attempted to file in the Industrial Registry on 10 February 2021, was provided in the hearing.  The Complainant stated they were content for the Commission to rely on the document as the primary material in support of their Complaint.[30]
  1. [47]
    The Complainant further stated in his affidavit of 19 February 2021[31] and during the hearing[32] that he does not intend to provide additional evidence if this matter were to proceed.
  1. [48]
    It must be remembered that s 204 of the AD Act requires the Complainant to prove that the Respondents have contravened the AD Act.
  1. [49]
    On the material before the Commission, the following issues are raised in relation to the Complainant's prospects of success:
  • There is no evidence of a medical condition experienced on 25 or 26 November.
  • The relevant areas of the AD Act to establish factors such as indirect discrimination under s 11(2) have not been addressed.[33]
  • The named Respondents had no power or discretion to grant exceptions to the statutory requirements imposed by the Social Security Act 1991.[34]
  • There is no evidence in support of a cancellation or interference with the Complainant's payment.[35]
  1. [50]
    The Complainant made the following oral submissions pertaining to his allegations of discrimination:[36]

HIS HONOUR:  So we’re at paragraph 1 of that – of schedule A and then it speaks to the complaint of – you allege a breach of section 8 of the Anti-Discrimination Act and the allegation is that you didn’t allow – you weren’t allowed, rather, to use a phone or email communication instead of personal attendance. Now, earlier Mr Reed directed my attention to an email. Do you recall that?

MR RINALDI:  Yes.

HIS HONOUR:  And that was the email you’re talking about where they said you need to come in unless you can get excused.

MR RINALDI:  Yes. I remember that.

HIS HONOUR:  Yes.

MR RINALDI:  That isn’t exactly true. The – the Centrelink medical certificate, after a short term - -

HIS HONOUR:  Well, that’s what the email said though, wasn’t it?

MR RINALDI:  Yes. That’s right. I agree.

HIS HONOUR:  So it – it’s not correct to say they didn’t allow you. They said that you need to get an excusal from the Department.

MR RINALDI:  Well - - -

HIS HONOUR:  In order to do that you needed to file a medical certificate in the correct form.

MR RINALDI:  Well, my experience with dealing with employment service providers, both before and since this incident, are that both are more flexible. My current - - -

HIS HONOUR: But that’s what they told you, wasn’t it?

MR RINALDI:  Yes. That’s right.

  1. [51]
    The Complainant said the following when asked to clarify his claims of victimisation:[37]

HIS HONOUR:  The allegation of victimisation, so you say that they victimised because after you changed your employment service provider your Jobseeker payment was cancelled.

MR RINALDI:  Yes. So in my experience with receiving the Jobseeker payment for a few years it’s never cancelled in that way on its own. So somebody had to do something somewhere for it to suddenly not be paid.

HIS HONOUR:  Well, you moved. You moved from service providers.

MR RINALDI:  But I have changed service providers several times and it doesn’t affect the Jobseeker payment.

HIS HONOUR:  But it was only for three days and then it was restored.

MR RINALDI:  Yes. Yes.

HIS HONOUR:  And when you went to Centrelink did you ask for it to be restored?

MR RINALDI:  Yes.

HIS HONOUR:  And what did they tell you then?

MR RINALDI:  Well, they didn’t tell me how it was – was cancelled. I just had to go in in person – to speak with a person at the front desk.

HIS HONOUR:  Did you tell them that you had gone across to a new service provider?

MR RINALDI:  I probably did mention that. Yes.

HIS HONOUR:  Did you tell them that you were leaving the old service provider?

MR RINALDI:  I probably did say – but it was a – it was a quick meeting to restore it.

HIS HONOUR:  Yes. But did – well, when did you tell them that?

MR RINALDI:  Well, that was about three days after.

HIS HONOUR:  Yes. And just for my purposes, did you tell them – when I say “them” did you tell the respondent – that’s Tursa Employment & Training – did you tell them that you were leaving them?

MR RINALDI:  No. The – the way that works is that I will ring the Services Australia customer service line and just ask to be transferred to another provider. So it – it takes part - - -

HIS HONOUR:  And so when did you do that, do you remember?

MR RINALDI:  It was – it was on the day that we had – I had that – a conversation with Ms Doherty. So I was just a bit - - -

HIS HONOUR:  So sometime in November.

MR RINALDI:  Yes.

HIS HONOUR:  Did that coincide with when your payment stopped.

MR RINALDI:  Yes.

HIS HONOUR:  And that they were restored after you went and told them that you had a new service provider.

MR RINALDI:  I didn’t remember saying anything to the Centrelink person that I had a new provider.

HIS HONOUR:  But you told them you had a new service provider.

MR RINALDI:  I might have told them. Yes.

  1. [52]
    Rule 6 of the Industrial Relations (Tribunal Rules) 2011 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.

  1. [53]
    In my view, rule 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.
  1. [54]
    The discretion conferred under rule 45 of the IR Rules must be exercised judicially.[38] 
  1. [55]
    In the exercise of the Commission's discretion, justice must be done between the parties.[39]
  1. [56]
    What is clear from the evidence before the Commission is that there has been a non-compliance with the directions of the Commission both in respect of the substantive application and this application to strike-out.  Further, in respect of the substantive application, no acceptable reason has been advanced by the Complainant for his failure to comply.  His sole explanation was, '... I wasn’t really in the mood of spending much time working on this case…'.[40]  Moreover, attempts by the Respondents to contact him on 18 and 19 January 2021 were, on his own admission, ignored.
  1. [57]
    Whilst I am mindful of the need to exercise care in assessing prospects of success, I have formed the view that the Complainant has poor prospects. His prospects of success are not going to improve by the effluxion of time.  The Complainant has advised the Commission that he plans not to adduce further evidence and the evidence before the Commission, such as it is, does not suggest that he would succeed at the hearing of this matter.  The Complainant bears the onus of establishing a contravention of the AD Act.  On what he has told the Commission and from what documentation is before it, he would be unable to discharge that onus.  In those circumstances, the justice of the case would require the discretion to be exercised.
  1. [58]
    In my view, this is not a situation where the Complainant has a sufficiently arguable case to overcome the unsatisfactory explanation for his failure to comply with the directions issued by Merrell DP.
  1. [59]
    The Complainant's conduct in respect of the substantive proceedings and this application does not evidence a desire to prosecute the matter with any degree of diligence.
  1. [60]
    I appreciate that should the proceedings be struck-out, the Complainant would be denied the opportunity to have his matter determined by the Commission.  Equally, the Respondents should not be prejudiced by having to defend a matter which on its face has poor, if any, prospects of success.
  1. [61]
    On balance I have formed the view that the discretion to dismiss the proceedings has been enlivened.  Accordingly, the Application ought to be allowed and the proceedings dismissed.

Orders

  1. [62]
    I make the following orders:
  1.   The application is granted;
  1.   Pursuant to rule 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011, I dismiss the proceedings in matter AD/2020/90; and
  1.   I make no order as to costs.

Footnotes

[1] Referral filed 6 October 2020, 16.

[2] Referral filed 6 October 2020, 32.

[3] Referral filed 6 October 2020, 47.

[4] Respondents' Supplementary Submissions dated 19 March 2021, p 3.

[5] Respondents' Submissions dated 26 February 2021 [12].

[6] Respondents' Submissions dated 26 February 2021 [13].

[7] Cf AON Risk Services Aust Ltd v ANU (2009) 239 CLR 175 [97]-[99], [103], [113].

[8] Industrial Relations Act 2016, s 548, Sch 2.

[9] Cf Cooper v Hopgood [1999] 2 Qd R 113, 124.

[10] Respondents' Submissions dated 19 March 2021 [4].

[11] Respondents' Submissions dated 26 February 2021 [18].

[12] Respondents' Submissions dated 26 February 2021 [19].

[13] Affidavit of Dion Rinaldi dated 19 February 2021, [5] – [8].

[14] T1, P13, LL20-45; T1, P14, LL1-2.

[15] T1, P24, LL15-33.

[16] T1, P14, LL22-35.

[17] Scott v State of Queensland & Ors [2019] QIRC 115.

[18] [2005] QIC 73; 180 QGIG 1209. 

[19] [2001] QCA 176, [29]. 

[20] Scott v State of Queensland & Ors [2019] QIRC 115, [8] – [9].

[21] (1990) 98 ALR 200.

[22] Ibid 209.

[23] Ibid 210.

[24] SZNFR v Minister for Immigration and Citizenship [2009] FCA 851, [12].

[25] SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725.

[26] Ibid [21].

[27] SZNFR v Minister for Immigration and Citizenship [2009] FCA 851.

[28] Ibid [17].

[29] Cooper v Hopgood [1999] 2 Qd R 113, 124.

[30] T1, P26, LL9-17.

[31] Affidavit of Dion Rinaldi dated 19 February 2021, [6].

[32] T1, P18, LL17-30.

[33] T1, P8, LL30-40.

[34] T1, P9, LL4-46.

[35] T1, P2, LL3-47.

[36] T1, P16, LL20-45; T1, P17, LL1-7.

[37] T1, P19, LL20-45; T1,P20, LL1-26.

[38] House v The King (1936) 55 CLR 499, 504-505.

[39] SZNFR v Minister for Immigration and Citizenship [2009] FCA 851 [16].

[40] T1, P13, LL44-45.

Close

Editorial Notes

  • Published Case Name:

    TURSA Employment & Training Limited & Anor v Rinaldi

  • Shortened Case Name:

    TURSA Employment & Training Limited v Rinaldi

  • MNC:

    [2021] QIRC 214

  • Court:

    QIRC

  • Judge(s):

    Member O'Connor VP

  • Date:

    15 Jun 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd (1990) 98 ALR 200
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Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73
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Quinlan v Rothwell[2002] 1 Qd R 647; [2001] QCA 176
2 citations
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Cite 1 - [2001] QCA 176
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SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543
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Cite 1 - [2004] FCA 1543
SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725
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Cite 1 - [2008] FCA 1725
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Cite 1 - [2009] FCA 851
Cite 2 - [2009] FCA 851
Cite 3 - [2009] FCA 851
Cite 4 - [2009] FCA 851
Cite 5 - [2009] FCA 851

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