Parfitt v Nevo[2021] QIRC 27

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision (ex tempore)

1. [1]
   The Respondents in the substantive proceedings of the matter AD/2020/2 have made an application to this Commission seeking an order that the complaint filed by Yoav Nevo be dismissed pursuant to rule 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the IR Rules). 

Background

2. [2]
   On 20 January 2020, by request pursuant to s 166 of the Anti-Discrimination Act 1991 (Qld), the Queensland Human Rights Commission referred Yoav Nevo's (the Complainant) complaint to the Queensland Industrial Relations Commission.

3. [3]
   In short, the Complainant alleges discrimination on the basis of impairment which occurred during his tertiary education placement at the Royal Brisbane and Women's Hospital – Department of Physiotherapy – Geriatric and Rehabilitation Unit from 17 June 2019 to conclusion of his placement on 19 July 2019.

4. [4]
   The parties attended a conciliation conference before Thompson IC on 25 February 2020 where the matter was not resolved.  The Respondent denies the allegations and a settlement was not reached.

5. [5]
   As the Complainant resides in Chicago, Illinois, United States of America, the Commission's sole source of contact with the Complainant has been through the Complainant's nominated email address and by invitation to conference call. 

The Application

6. [6]
   The Applicants in these proceedings rely on rule 45 of the IR Rules. Rule 45 relevantly 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).

7. [7]
   An affidavit accompanying the application was filed in the Registry by Jody Cosgrove, as representative for the Applicants, on 18 December 2020 outlining the basis for this application.  The Complainant was copied into this email by way of service and notification of these proceedings. 

8. [8]
   As detailed in Ms Cosgrove's affidavit and the Applicants' submissions filed on 27 January 2021, the Complainant's pattern of non-compliance commenced following the unsuccessful conference with Thompson IC.

9. [9]
   On 26 February 2020, Thompson IC issued a Further Directions Order requiring, inter alia, the Complainant to file and serve a statement of facts and contentions by 17 March 2020.  This document was never filed nor received by the Applicants.

10. [10]
    The Associate to Thompson IC sent emails on 23 and 25 March 2020 to the Complainant requesting an update of his intention to address the non-compliance and warning that the Directions Order would be vacated.  The Complainant provided no response.

11. [11]
    On 7 April 2020, Thompson IC issued a Further Directions Order vacating the directions issued on 26 February 2020.  The file was returned to the Registry and the Complainant was notified of such.

12. [12]
    On 2 December 2020, the Commission brought the matter on for Call Over and the parties were sent a notice of listing, confirming that parties residing out of Brisbane would be granted leave to appear through telephone or video conference.

13. [13]
    On 7 December 2020, an email was sent to the Complainant confirming the Commission would attempt to reach him between 10.00 am and 11.00 am Australian Eastern Standard Time on 8 December 2020.  The Complainant was asked to confirm his preferred contact method however no response was received.

14. [14]
    During the Call Over on 8 December 2020, the Commission attempted to reach the Complainant through a conference call at the start and conclusion of the hearing. The Complainant did not respond to these invitations. 

15. [15]
    The Applicant submits the history of these proceedings demonstrates the unresponsive nature of the Complainant's involvement in progressing this matter.

16. [16]
    It is submitted that the Complainant's failure to comply with directions orders or notices of listing creates no utility for the Commission to facilitate further proceedings in the Complainant's matter.^[1]

17. [17]
    The discretion conferred under rule 45 of the IR Rules must be exercised judicially.^[2]  The discretion to dismiss a proceeding has, in my view, been enlivened. 

18. [18]
    Having regard to the history of this matter and, in particular, the failure to comply with Directions Order dated 26 February 2020, to respond to communications from the chambers of Thompson IC and to attend both a mention on 8 December 2020 and this hearing, the Complainant has demonstrated, in my mind, an unwillingness to advance the proceeding.

19. [19]
    Appropriate grounds have been formed to exercise the discretion to dismiss the proceeding.  Accordingly, I dismiss the proceedings in matter AD/2020/2 pursuant to rule 45(3)(a) of the IR Rules.

Orders

20. [20]
    I make the following orders:

1. The application is granted;

2. Pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011, I dismiss the proceedings in matter AD/2020/2; and

3. I make no order as to costs.