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Robertson v McDonald's Australia Limited[2021] QIRC 344

Robertson v McDonald's Australia Limited[2021] QIRC 344

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Robertson v McDonald's Australia Limited [2021] QIRC 344

PARTIES:

Robertson, Bruce

(Complainant)

v

McDonald's Australia Limited

(Respondent)

CASE NO:

AD/2021/7

PROCEEDING:

Application to dismiss or stay proceeding

DELIVERED ON:

8 October 2021

MEMBER:

Dwyer IC

HEARD AT:

On the papers

ORDERS:

  1. The application to dismiss or stay proceedings filed on 4 August 2021 by the respondent is dismissed;
  1. Pursuant to s 451(2)(b) and (c) of the Industrial Relations Act 2016 (Qld) matter number AD/2021/7 is stayed until 8 October 2022 or until further order; and
  1. Matter number AD/2021/7 be listed for mention on a date to be advised not before 8 October 2022.

CATCHWORDS:

INDUSTRIAL LAW – ANTI-DISCRIMINATION – complaint of aged-based discrimination – complainant filed statement of facts and contentions which were deficient – application to dismiss or stay proceeding – application to stay proceedings dismissed – Commission acting on own initiative – stay ordered 

LEGISLATION:

Anti-Discrimination Act 1991 (Qld) ss 7, 10, 11, 14, 15, 122, 124, 128, 133, 191

Industrial Relations Act 2016 (Qld) ss 451, 529

Industrial Relations (Tribunals) Rules 2011 (Qld) rr 12, 41, 125, 126

CASES:

Kelsey v Logan City Council & Ors (No. 7) [2019] QIRC 85

Spencer & The Commonwealth of Australia (2010) 241 CLR 118

Willmott v Woolworths Ltd [2014] QCAT 601

Reasons for Decision

History of the complaint

  1. [1]
    On 5 September 2020, Mr Bruce Robertson lodged a complaint ('the complaint') with the Queensland Human Rights Commission ('QHRC'). Mr Robertson named McDonald's Australia Limited as the respondent ('McDonald's').
  1. [2]
    The complaint was characterised by the QHRC as alleging contraventions of the Anti-Discrimination Act 1991 (Qld) (‘the AD Act’) with respect to age discrimination (s 7 of the AD Act) and unnecessary questions (s 124 of the AD Act).   
  1. [3]
    The particulars of Mr Robertson's complaint that can be gleaned from his material appear to be that: when applying for employment at the McDonald's Mt Isa store in 2019 (and possibly 2014) the application form required Mr Robertson to select an age range to which he belonged. Mr Robertson did not answer this question on the form. It ought to be noted that these details are by no means clearly pleaded in the complaint form.
  1. [4]
    Despite the lack of particulars and clarity, the complaint was accepted by the QHRC and the parties were directed to participate in a conciliation conference at the QHRC which was unsuccessful. The matter was subsequently referred to the Queensland Industrial Relations Commission ('the Commission'). The referral of the complaint was filed in the Industrial Registry on 16 February 2021.

Conciliation conference

  1. [5]
    On 5 May 2021 a conciliation conference was held before me. It was unsuccessful. While it is not appropriate to divulge the nature of conversations held during the conciliation conference or in private sessions with the parties, it is relevant to note that it was during this conference that I first encountered difficulties communicating with Mr Robertson. It was immediately apparent to me that Mr Robertson may be impaired in some way.
  1. [6]
    Subsequent to the conciliation conference, a Directions Order was issued requiring Mr Robertson file of a statement of facts and contentions ('SOFC') by 30 June 2021, a response SOFC from McDonald's, and for the exchange of documents between the parties.
  1. [7]
    The issuing of the Directions Order appeared to trigger Mr Robertson to send numerous emails to the Industrial Registry containing various complaints regarding the conciliation conference process, alleging bias, demanding I recuse myself, questioning McDonald's legal representative's qualifications and the decision allowing legal representation. Requests for disclosure and "data" from McDonald's were also made.
  1. [8]
    On 18 May 2021, the Industrial Registrar sent a letter to Mr Robertson addressing his administrative concerns, and a mention was listed.

First mention on 26 May 2021

  1. [9]
    Between the conciliation conference on 5 May 2021 and the mention of the matter held on 26 May 2021, Mr Robertson sent approximately 26 emails to the Industrial Registry. Mr Robertson also emailed two Form 24 – Notice to Admit Facts.
  1. [10]
    At the mention on 26 May 2021, I advised Mr Robertson that:[1]
  • It is unclear what 'data' or documents are sought to be disclosed and how they are relevant to the complaint as it stands;
  • Compliance with the existing directions (by filing his SOFC) was required as his complaint in the form referred from the QHRC contained insufficient clarity. An example of the lack of clarity was given to Mr Robertson i.e. the lack of reference to dates, times, documents, staff members and locations. Further particulars were required for the Commission and McDonald's to better understand the complaint and enable McDonald's to effectively respond. Mr Robertson was advised that filing his SOFC was required to progress his matter;
  • Any request for my recusal was required to be made in the appropriate form with supporting material, rather than a simple demand in an email;
  • The two Form 24s (Notice to Admit Facts) filed by Mr Robertson were not accepted for filing because the complaint contained insufficient clarity for McDonald's to assess whether they could or would be prepared to admit the facts requested;
  • Mr Robertson was advised that the Notice to Admit Facts may be considered later if it was appropriate to do so, once sufficient particulars were provided through his SOFC; and
  • I suggested that he may benefit from assistance from a legal representative preparing his SOFC.
  1. [11]
    During the mention, Mr Robertson requested that the complaint also be considered with respect to 'Australian Consumer Law' and the 'Migration Act'. Mr Robertson was informed that the matter would be dealt with under the AD Act.
  1. [12]
    Mr Robertson raised the issue that he was vulnerable and at a disadvantage.
  1. [13]
    At that point I took the opportunity to enquire of Mr Robertson whether he was had a disability or impairment. I made this inquiry because the manner of Mr Robertson's verbal and written communications were increasingly demonstrating to me that he appeared to suffer some form of cognitive impairment. The purpose of inviting Mr Robertson to disclose any disability or impairment was so that accommodations could be made in the future handling of Mr Robertson's matter by the Commission e.g. with respect to extensions of time and explanation of directions.[2]
  1. [14]
    In response to my inquiry Mr Robertson declined to comment.

Correspondence after the mention on 26 May 2021

  1. [15]
    After the mention on 26 May 2021, the Registry received numerous emails and phone calls from Mr Robertson. The emails contained a multitude of complaints about e.g. the Notices to Admit Facts not being accepted for filing, time delays, unprofessional behaviour of the Commission staff, communication from legal representatives for McDonald's and corruption.
  1. [16]
    Mr Robertson also emailed the Industrial Registry to file various documents:
  • On 29 May 2021, with a third Form 24 – Notice to Admit Facts;
  • On 9 June 2021, with three blank Form 2 – General Application to Queensland Industrial Relations Commission;
  • On 9 June 2021, with a Form 4 – Application in Existing Proceedings. In the 'Details of decision sought' section on the form, Mr Robertson requested information regarding why the Notices to Admit Facts were not filed and sought leave for the inclusion of various statutes identified as "the Migration act 1958 and Migration Regulations of 1991, the competition and consumer act 2010, and Corporations act 2001 (sic)".
  1. [17]
    On 9 June 2021, the Industrial Registrar sent a letter to Mr Robertson in response to his Form 4 emailed on 9 June 2021. It advised Mr Robertson that it had not been filed as it:
  • Was non-compliant with rule 12 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules') as it did not contain the applicant's residential or business address; and
  • The details of the decision sought were not relevant to the complaint and were unrelated to the jurisdiction of the Commission.
  1. [18]
    On 10 June 2021, Mr Robertson emailed a further a Form 4 – Application in Existing Proceedings. The 'Details of decision sought' section contained various complaints by Mr Robertson such as: the Industrial Registrar made an error in law by not accepting the various forms filed, the refusal to accept the Migration Act was improper, victimisation, threatening language was used in the conference, lack of due process, a decision in favour of McDonald's will cause bankruptcy. Mr Robertson also requested again that I recuse myself on the basis of 'corruption'.
  1. [19]
    After 10 June 2021, multiple further emails and phone calls with similar complaints were received from Mr Robertson. Of these, many emails forwarded correspondence with complaints Mr Robertson had sent to the solicitors for McDonald's and replies he had received. These emails concerned the conduct of the interviewer, that direct contact he had made to the store has been unsuccessful and requested an explanation of the age limit of workers and the names of workers at the store.
  1. [20]
    On 16 June 2021, a further Form 4 was emailed to the Industrial Registry requesting anonymity on the basis of privacy, dignity and human rights pursuant to s 191 of the AD Act.
  1. [21]
    From the first mention held on 26 May 2021 to a second mention held on 21 June 2021, 47 emails and numerous phone calls were received from Mr Robertson. The emails were largely incomprehensible and were replete with multiple (and relatively superficial) accusations and complaints.

Second mention on 21 June 2021

  1. [22]
    A further mention was held on 21 June 2021 due to concern about the influx of unsolicited communications from Mr Robertson and a foreboding concern of non-compliance with the direction requiring Mr Robertson to file a SOFC. It was again explained to Mr Robertson that:
  • A failure to comply with the direction may result in a stay of proceedings until he is either represented, or I was convinced he had the appropriate capacity to conduct the proceedings;[3]
  • The various Form 24 applications were in contravention of the Rules and, in any case, as I had explained previously, they would not be dealt with until the SOFC was filed and his complaint was properly particularised;[4]
  • I further invited Mr Robertson to advise whether he required the procedures of the Commission to be adjusted to accommodate any impairment or disability, as the emails received were largely incomprehensible. Mr Robertson again declined to answer;[5] and
  • Again, I suggested that Mr Robertson may be assisted in the conduct of his matter if he had representation, as his communication style was creating difficulties.

Mr Robertson's SOFC

  1. [23]
    In accordance with the directions order, Mr Robertson filed a SOFC on 30 June 2021. In summary, Mr Robertson submitted that:
  • Sections 7, 14, 122, 124, 128 and 133 of the AD Act were allegedly contravened;
  • The persons allegedly contravening the AD Act were identified as: a staff member who conducted the interview at the Mt Isa McDonald's store (he could not specify the date of the interview) and pursuant to s 133 of the AD Act, he identified the current and past CEO of McDonald's as being vicariously liable;
  • The hypothetical comparator was identified as "local, native born, native English speaking, Anglo Saxon, male, of an age under Twenty-one (21) years at the time of the interview";
  • He was treated less favourably than the hypothetical comparator as "the interviewer had an unannounced, inherent systematic, preference, and instructions to offer first and in the greater instances, employment to those under Twenty One Years of age for commercial of reduced wage costs (sic)", and that the offer of employment was affected due to his age and was not considered on merit alone;
  • A term used on a position description was "junior/younger" and indirect discrimination occurred as Mr Robertson was over 21 and could not comply with this requirement. He submits this to be a requirement for consideration of employment;
  • The interviewer made a remark to the effect of: "you are older than other applicants";
  • The A4 paper application required a date of birth to be supplied and Mr Robertson did not supply this information but received an interview due to staff shortages locally;
  • An application form for the McDonald's Bundaberg store also required applicants to identify their minimum age and Mr Robertson did not apply for this position;
  • Mr Robertson sought the order of an injunction to prohibit McDonald's from advertising positions as "junior", and an order requiring McDonald's to "implement programs to eliminate unlawful discrimination"; and
  • The compensation sought was identified as:
  • exemplary damages not less than $50,000
  • an anonymous public apology or a personally signed apology from the CEO
  • interest on an amount of compensation
  • general damages of $500 for wages and out of pocket expenses
  • $12,000 for lost opportunity to gain employment at McDonald's for the period of 6 months calculated at $20 per hour, 25 hours a week for 6 months
  • The nature of the compensation was identified as being punitive for offense embarrassment and humiliation suffered
  1. [24]
    Mr Robertson's SOFC then discussed various other matters including:
  • Another corporation purchased by McDonald's and the implications on McDonald's ability to process and individualise data to determine applicant's age;
  • The collection and commercialisation of data and data laws;
  • McDonald's New Zealand and McDonald's Australia privacy policy; and
  • Violations of "the fair work act sect 351 . Privacy act of 1988 not limited to but including s 13 g, (sic)".
  1. [25]
    Mr Robertson did not serve his SOFC on McDonald's legal representatives and this was subsequently provided on 8 July 2021 by the Industrial Registry.
  1. [26]
    Due to the delay in McDonald' s receiving the SOFC, an extension of time of one week for filing a reply on 4 August 2021 was granted to McDonald's. A further directions order was issued on 27 July 2021 extending the remaining directions by one week.

Application to dismiss or stay proceeding

  1. [27]
    On 4 August 2021, McDonald's filed a Form 4 requesting the that the Commission make orders that:
  1. The proceedings be dismissed on the basis that the complaint has no merit; or
  1. That the proceedings be stayed until Mr Robertson obtains legal representation and files a clear and concise SOFC.
  1. [28]
    McDonald's representatives filed an affidavit in support of the application. In summary, the respondent submits that:
  • The SOFC is largely incoherent and the key facts and contentions from the facts are not clear. It contains large sections which are not relevant to the complaint of discrimination;
  • McDonald's are not able to respond to the SOFC as the allegations of discrimination are vague, ambiguous and incoherent; and
  • As the parties are meant to be bound by the SOFC and subsequent response, McDonald's representatives submit that it is uncertain that will be responding to the allegations Mr Robertson will agitate at hearing.

Directions dealing with the application

  1. [29]
    On 23 August 2021, a directions order was issued for the filing of submissions regarding the respondent's application to dismiss or stay the proceeding filed on 4 August 2021.
  1. [30]
    Mr Robertson subsequently sent approximately 26 emails containing various complaints and comments and yet another Form 24 - Notice to Admit Facts. A mention of the matter was held on 7 September 2021.
  2. [31]
    At the mention, it was explained to Mr Robertson that further applications or emails would not be responded to or otherwise dealt with unless I considered it necessary. It was explained that McDonald's application to dismiss or stay proceedings filed on 4 August 2021 would be dealt with by the filing of submissions per directions that I had issued on 23 August 2021.

Submissions of the respondent

  1. [32]
    On 13 September 2021, McDonald's representatives filed submissions in support of the application seeking an order that the proceedings be stayed until Mr Robertson files a clear and concise SOFC. In summary, the respondents submit that:
  • Large parts of the SOFC are irrelevant to the proceedings;
  • Parts relating to the allegation of discrimination are largely vague and incoherent and cannot be meaningfully responded to;
  • The respondent cannot understand the allegations made and may be prejudiced if the allegation is misunderstood and responded to, as the respondent will be bound to any reply made to the SOFC;
  • The Commission has a general power to stay proceedings before it pursuant to s 451 of the Industrial Relations Act 2016 (Qld) ('the IR Act');
  • Rule 6 of the Rules states its purpose is to provide for just and expeditious disposition of the business of the commission at minimum expense. Rule 41(1) of the Rules allows the Commission to make an order about the conduct of a proceeding on the application of a party;
  • Citing the decision of Vice President O'Connor in Kelsey v Logan City Council & Ors (No. 7) (‘Kelsey’),[6] the respondent notes that interference of proceedings by a stay is serious and the justice between the parties must be balanced with consideration of relevant factors;
  • It is in the interests of both parties that the proceedings be stayed as Mr Robertson's communications note he does not understand the process required to be undertaken and the parties may be prejudiced if the proceedings continued on the SOFC filed on 30 June 2021. 

Reply submissions of Mr Robertson

  1. [33]
    In accordance with the directions, Mr Robertson filed his reply submissions on 27 September 2021. In summary, Mr Robertson submitted that:
  • The application is an interference of natural justice, is vague and incomplete, and is a ploy towards the termination of the carriage of his claim;
  • Using the complainant's Christian name in the application is embarrassing and vexing;
  • The allegation that the SOFC is incoherent is rejected, and it is sufficiently clear to be able to respond to;
  • If the contents are not understood, McDonald's and the Commission bears a degree of responsibility to seek assistance as to the contents' meaning, and all have the advantage of years of professional experience;
  • The orders sought on the application filed 4 August 2021 differ to those sought in the submissions of the respondent filed on 13 September 2021, which demonstrates bad faith;
  • The application filed on 4 August 2021 is void pursuant to rule 12 of the Rules as it does not contain a fax number. There was also a violation of rr 125 and 126 of the Rules, by reference to s 529(1) of the IR Act;
  • The signature policy of the representative's law firm has not been followed and a stamp will not suffice as a signature, the point of contact being McDonald's legal representative is a procedural violation and the respondent has breached orders of the Commission; and
  • The orders sought in the application "was a ambit and unprofessional claim with draconian and legal hegemony evident (sic)".
  1. [34]
    Mr Robertson raised other various complaints regarding the application, the conduct of the matter generally and his applications filed, which replicated his previous style of incoherent communications.

Reply submissions of the respondent

  1. [35]
    In accordance with the directions, McDonald's filed reply submissions. In summary, it submitted that:
  • Failure to include a fax number does not deem the application invalid and, in any case, it was provided on the application filed on 4 August 2021;
  • There is no requirement for the respondent's submissions to be signed and leave was granted for the respondent to be legally represented;
  • The allegation that the respondent has breached orders of the Commission is unfounded as there has been no breach;
  • There is no obligation on the respondent to seek clarification from Mr Robertson about his SOFC as it should clearly set out the facts relied upon and the contentions which should be drawn from those facts;
  • Mr Robertson's SOFC alleges he was discriminated in an interview however his submissions filed on 27 September 2021 states that this does not form part of his complaint. This is evidence that the SOFC is not coherent, and the respondent cannot understand the case against it; and
  • It seeks the proceedings be stayed until Mr Robertson gains legal representation and is able to file a SOFC that is clear and concise.

Relevant principles

  1. [36]
    The Commission is vested with the statutory powers to control proceedings, including dismissing proceedings or by imposing a stay on proceedings.[7]
  1. [37]
    While considered in the context of Federal statutory provisions governing the dismissal of proceedings, the observations of the High Court in Spencer & The Commonwealth of Australia are an apposite guide to principles to be applied to consideration of applications to dismiss.[8] In particular, I note the comments in the joint judgment of French CJ and Gummow J, where their Honours said:[9]

The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought upon the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous, vexatious or an abuse of process…

  1. [38]
    In Kelsey, Vice President O'Connor considered an application for a stay of proceedings. In that matter, the impetus for the application was the collateral criminal proceedings pending with respect to numerous respondents. To a large extent His Honour identified principles for consideration of stay proceedings peculiar to applications in that unique context. However, His Honour also identified certain relevant principles for consideration of stay applications more broadly:[10]

[24] It is accepted that Ms Kelsey has a prima facie entitlement to have her action tried within the ordinary course of the business of the Commission. It follows that it is a serious matter to interfere with that entitlement. The granting of a stay requires justification on proper grounds. The onus is on the Second to Ninth Respondents to demonstrate that it is just and convenient that Ms Kelsey 's ordinary rights should be interfered with. As stated by Hayne J in Australian Securities Commission v Cavanagh:

In my view it is therefore clear that unless reason is shown to the contrary, a plaintiff is entitled to have its action tried in the ordinary course of the procedure and business of the court and that it is a grave matter to interfere with that entitlement by a stay of proceedings, the grant of which would require justification on proper grounds. In the end the task is one of the balancing of justice between the parties taking account of all relevant factors and adjudging the case on its own merits.

(Emphasis added and citations removed)

  1. [39]
    An order refusing the right to pursue legal proceedings represents a denial of a fundamental right to seek remedy for a grievance. The consideration of an application to either dismiss or stay proceedings must involve careful and thorough consideration of the relative prejudice to each party, and the Commission ought to strive to achieve an outcome that best serves the interests of justice.

Consideration

  1. [40]
    The application seeks orders to either dismiss Mr Robertson's proceedings entirely, or in the alternative, to stay them 'until he obtains legal representation'. The submissions filed by McDonald's seek only a stay of proceedings and appear to abandon the application to dismiss the proceedings (though no formal withdrawal of this portion of the application is evident).
  1. [41]
    Having considered the submissions, I am not prepared to grant the application. However, I am prepared to make an order for a stay of proceedings for the reasons set out below.

Application to dismiss proceedings

  1. [42]
    Notwithstanding it is not an order pursued by McDonalds, I intend to deal with their application to dismiss to ensure clarity for Mr Robertson. I am not prepared to dismiss Mr Robertson's proceedings.
  1. [43]
    The basis of the application when first filed was that Mr Robertson's complaint was without merit. I do not agree with that submission. On the contrary, having regard to the semblance of the argument made by Mr Robertson thus far, it would appear to me that there may be some merit to his complaint.[11] As disorganised and confusing as Mr Robertson's material is, certain basic (alleged) facts contained within it point to the existence of an arguable case. 
  1. [44]
    While I appreciate that any existing authorities supporting Mr Robertson's argument may well be distinguished or disregarded once thoroughly argued, and while I appreciate that there are multiple defences likely to be argued by McDonald's pursuant to s 124(3) of the AD Act, there would at least appear to be a prima facie basis for the complaint that he has made.
  1. [45]
    The real difficulty for Mr Robertson to date has been his inability to lucidly present and particularise his complaint, rather than any obvious lack of merit. Consequently, I do not consider that this matter ought to be dismissed.

Stay until legally represented

  1. [46]
    I am not empowered by the IR Act (or at all) to make an order that a party to proceedings be legally represented. While the Commission does have power to deny or grant leave to a party to be legally represented, this does not extend to a power compelling a party to be legally represented. I certainly consider that Mr Robertson would be very much assisted by representation (from either a lawyer or a suitably skilled advocate) but the choice to obtain legal representation is entirely a personal choice for him to make.
  1. [47]
    In the circumstances, I am not prepared to grant either order sought by McDonald's. I am however prepared to make an order for a stay of proceedings in accordance with the general powers granted to me by s 451(2) of the IR Act.
  1. [48]
    Section 451 relevantly provides as follows:

 451  General powers

  1. (1)
    The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  2. (2)
    Without limiting subsection (1), the commission in proceedings may—
  1. (a)
    give directions about the hearing of a matter; or
  2. (b)
    make a decision it considers appropriate, irrespective of the relief sought by a party; or
  3. (c)
    make an order it considers appropriate.

 (Emphasis added)

Stay pursuant to general powers

  1. [49]
    This matter was allocated to me for preliminary case management functions i.e. convening a conciliation conference, making directions for pre-hearing conduct of the parties and determining interlocutory matters.
  1. [50]
    In the normal course of events, upon completion of the usual pre-hearing steps, the matter would be referred back to the Registry for allocation to another Member for hearing. Unfortunately, this matter has not been able to progress through the pre-hearing phase in any substantial way.
  1. [51]
    The impediment to progress has primarily been because Mr Robertson's SOFC is, in my view, deficient. I hasten to add that the SOFC is not entirely devoid of relevant particulars. I note that it is possible to identify certain alleged facts relevant to e.g. a complaint of contravention of s 124 of the AD Act. However, the document is, as a whole, disorganised and confusing. I consider that it places McDonald's at a disadvantage in understanding the case they are required to answer. I am of the view that McDonald's could not reasonably be required to respond to it. 
  1. [52]
    Were it merely a matter of a self-represented litigant's failed attempt at drafting pleadings I would consider that other remedial orders might be an appropriate response to correct the defects in the SOFC. However, more broadly in this matter, Mr Robertson has shown a propensity to conduct himself in his dealings with the Commission, the Registry, and McDonald's in a manner that augurs poorly for the efficient conduct of these proceedings.
  1. [53]
    As noted above, Mr Robertson has sent many dozens of incoherent emails in the course of this matter. Many are unsolicited, many others are prompted by (but not responsive to) simple procedural communications or directions orders issued out of my chambers. Something as simple as a listing notice for a mention can provoke a torrent of emails replete with allegations and accusations by Mr Robertson. 
  1. [54]
    While there are certainly indications of intellectual clarity evident in random passages of text in the numerous emails received from Mr Robertson, on the whole it is more than apparent that he is affected by some form of cognitive impairment. I have invited Mr Robertson to disclose the nature of any impairment on at least two occasions previously. I did so in an effort to ensure that he could be properly accommodated in the conduct of this matter. On each occasion, Mr Robertson declined to acknowledge any impairment or disability and consequently, adjustments to processes could not be made.
  1. [55]
    To be clear, Mr Robertson is not under any obligation to make such a disclosure (if there is one to be made), but had he chosen to do so, I may have been able to adjust the process of this matter to accommodate his impairment. Alternatively, it may well be that he does not have insight into his impairment.
  1. [56]
    Whatever the case may be, the communication deficit that is more than evident will prevent the efficient and fair conduct of these proceedings, and I consider that it cannot be addressed without some intervention by an intermediary on behalf of Mr Robertson.
  1. [57]
    In or about July 2021, with permission from McDonald's, I had my associate forward contact details of two not-for-profit community legal centres to Mr Robertson. They were centres who offered the type of free representation that I consider could have assisted Mr Robertson. Email correspondence subsequently received from Mr Robertson appeared to indicate he regarded my suggestion with suspicion.
  1. [58]
    It is unclear whether Mr Robertson sought assistance as suggested, but neither legal service has been involved to date and Mr Robertson has continued to appear and communicate on his own behalf.
  1. [59]
    I am of the view that the matter should not proceed further at this time. Mr Robertson cannot competently communicate with the Commission or McDonald's, and he appears unwilling to have someone communicate on his behalf.
  1. [60]
    Further, Mr Robertson's communications have often been unnecessarily hostile and combative. I do not condemn Mr Robertson for his conduct in that regard. On the contrary, I am sympathetic to Mr Robertson given the likely frustration he must be experiencing. Whether he has insight into his impairment or not, the conduct of litigation would present unique challenges for someone with impaired communication skills. I can well understand how this might lead to his blunt and aggressive approach. 
  1. [61]
    The difficulty with the matter proceeding in these circumstances is not just that McDonald's cannot respond to a case that is not clear (though that is an important consideration). More importantly, in circumstances where there is some evidence of an arguable case for Mr Robertson, the interests of justice demand he have an opportunity to pursue the matter. As counterintuitive as it may seem to him, the opportunity for Mr Robertson to pursue his case is best preserved and protected by preventing him from self-representing.
  1. [62]
    In all of those circumstances, I propose to stay these proceedings. I do not intend to stay the proceedings indefinitely. I intend to stay the proceedings for a period of 12 months.
  1. [63]
    I further intend to allow Mr Robertson through an appropriately engaged independent representative to have leave to apply to lift the stay on the basis that the representative will be continuing to represent Mr Robertson. I consider Mr Robertson's interests would be best served by representation from an independent person or organisation, skilled in advocacy in discrimination complaints. 
  1. [64]
    It ought to be understood that the effect of the stay is that, with the exception of an application from a representative acting on his behalf, no further communications will be entered into by my chambers or the Industrial Registry with Mr Robertson in these proceedings. The resources of the Commission and Industrial Registry are reserved for the administration of active matters.
  1. [65]
    If no application to lift the stay is received from Mr Robertson in the 12 month period, I will give consideration to the final disposition of the matter following expiry of the stay.             

Order

  1. [66]
    For all of the reasons set out above, I make the following orders:
  1. The application to dismiss or stay proceedings filed on 4 August 2021 by the respondent is dismissed;
  2. Pursuant to s 451(2)(b) and (c) of the Industrial Relations Act 2016 (Qld) matter number AD/2021/7 is stayed until 8 October 2022 or until further order; and
  3. Matter number AD/2021/7 be listed for mention on a date to be advised not before 8 October 2022.

Footnotes

[1] Transcript dated 26 May 2021, T1-3 – T1-5.

[2] Transcript dated 26 May 2021, T1-10 – T1-11.

[3] Transcript dated 21 June 2021, T1-3, LL25-35.

[4] Transcript dated 21 June 2021, T1-2, L35.

[5] Transcript dated 21 June 2021, T1-2, LL40-45 – T1-3.

[6] [2019] QIRC 85.

[7] Kelsey [22].

[8] (2010) 241 CLR 118.

[9] Ibid [24]-[25].

[10] Ibid [24].

[11] See for example Willmott v Woolworths Ltd [2014] QCAT 601.

Close

Editorial Notes

  • Published Case Name:

    Robertson v McDonald's Australia Limited

  • Shortened Case Name:

    Robertson v McDonald's Australia Limited

  • MNC:

    [2021] QIRC 344

  • Court:

    QIRC

  • Judge(s):

    Member Dwyer IC

  • Date:

    08 Oct 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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