McDowell v Cash Converters (Stores) Pty Ltd (No 2)
[2022] QIRC 110
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- Unreported Judgment
- McDowell v Cash Converters (Stores) Pty Ltd (No 2)[2022] QIRC 110
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McDowell v Cash Converters (Stores) Pty Ltd (No 2)[2022] QIRC 110
McDowell v Cash Converters (Stores) Pty Ltd (No 2)[2022] QIRC 110
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | McDowell v Cash Converters (Stores) Pty Ltd & Anor (No 2) [2022] QIRC 110 |
PARTIES: | McDowell, Chantal (Complainant) v Cash Converters (Stores) Pty Ltd (First Respondent) AND Inglis, Christopher (Second Respondent) |
CASE NO: | AD/2020/15 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 25 March 2022 |
MEMBER: | Knight IC |
HEARD AT: | On the papers |
ORDER: | The application in existing proceedings seeking to stay the substantive proceedings is dismissed. |
CATCHWORDS: | INDUSTRIAL LAW – ANTI-DISCRIMINATION – application in existing proceedings seeking order staying the substantive proceedings – whether WorkCover claim and substantive proceedings constitute concurrent proceedings – consideration of balance of convenience – application dismissed |
LEGISLATION: | Anti-Discrimination Act 1991 (Qld) ss 6, 209, ch 3 Industrial Relations Act 2016 (Qld) ss 451, 452, 456, ch 8 Workers' Compensation and Rehabilitation Act 2003 (Qld) ss 5, 119 |
CASES: | Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 BM Alliance Coal Operations Pty Ltd v Michael Scully, Inspector Resources and Safety & Health Queensland [2021] ICQ 001 Colebourne v State of Queensland (Queensland Police Service) [2021] QIRC 380 Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd (2008) 2 Qd R 453 Doorley v State of Queensland (Department of Premier and Cabinet) [2019] QIRC 089 Mancini v State of Queensland (Queensland Fire and Emergency Services) [2021] QIRC 192 McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 State of Queensland (Department of Justice and Attorney-General) v Siobhan Maree Parer & Anor [2016] ICQ 013 State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 190 |
APPEARANCES: | Alexander Law for the Complainant HWL Ebsworth Lawyers for the Respondents |
Reasons for Decision
- [1]This is an application in existing proceedings filed by Cash Converters (Stores) Pty Ltd and Mr Christopher Inglis (together, 'the Respondents') seeking to stay the substantive proceedings to which they are the Respondents. The Complainant to the substantive proceedings, Ms Chantal McDowell ('the Complainant'), opposes the application.
- [2]Specifically, the Respondents seek an order pursuant to ss 451 and 452 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), that the substantive proceedings be stayed pending the finalisation of a separate WorkCover claim brought by the Complainant.
Relevant Principles
- [3]The principles relevant to an application to stay a proceeding were recently and conveniently set out by Merrell DP in Colebourne v State of Queensland (Queensland Police Service),[1] albeit in the context of a decision under appeal. There his Honour observed:
[33] ... the relevant principles that apply ... in determining whether or not to exercise discretion ... to grant a stay ... are:
- the onus is on the applicant to demonstrate a proper basis for a stay that will be fair to all parties;[2]
- the mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears;[3]
- the tribunal has a discretion whether or not to grant a stay and, if so, as to the terms that would be fair;[4]
- in the exercise of its discretion, the tribunal will weigh considerations such as the balance of convenience and the competing rights of the parties before it;[5]
- where there is a risk that the appeal will prove abortive if the applicant succeeds and a stay is not granted, tribunals will normally exercise their discretion in favour of granting a stay;[6]
- where it is apparent that unless a stay is granted, an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay; and
- although tribunals approaching applications for a stay will not generally speculate about the applicant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interests of the parties, from making some preliminary assessment about whether the applicant has an arguable case.[7]
[34] The prospects of success will obviously tend to favour the refusal of a stay if the prospects of the appeal can be seen to be very poor.[8]
[35] In general, the balance of convenience involves a consideration of whether the inconvenience or injury which the applicant would be likely to suffer if a stay is refused outweighs or is outweighed by the injury which the respondent would suffer if a stay was granted.[9]
[36] The above-mentioned principles have been applied by the Industrial Court of Queensland[10] and by the Commission[11] in respect of applications for stays of decisions, pending appeals or reviews of the decisions, in other analogous statutory contexts.[12]
- [4]Although not entirely germane to the present application, which is unrelated to any appeal or review, I will be broadly guided by the above principles in making my decision.
Submissions
- [5]It is not in dispute that both the WorkCover claim and the substantive proceedings arise out of the same facts and circumstances, namely the:
- (a)Complainant's employment with the First Respondent;
- (b)Second Respondent's alleged sexual harassment of the Complainant at an awards night on 13 August 2019;
- (c)alleged mishandling of the investigation into the above events; and
- (d)Complainant's injury which she alleges resulted from the above events.
- [6]The Respondents submit there are concurrent proceedings on foot that may result in the Complainant being compensated for the same loss twice.[13] This would, they submit, result in significant prejudice to the Respondents.[14] In making their submissions, the Respondents rely on the decision in McCauley v Club Resort Holdings Pty Ltd (No 2) ('McCauley').[15]
- [7]
- [8]In any event, the Complainant relies on correspondence from WorkCover's representative indicating that it would seek to recover any payments made to the Complainant from any settlement or judicial determination made in her favour.[18] Further, it advised any such settlement or judicial determination would end the Complainant's entitlement to workers' compensation under s 119 of the Workers' Compensation and Rehabilitation Act 2003 (Qld).[19]
- [9]
- (a)she intends to re-enter the workforce which may affect her entitlement to obtain legal aid, potentially resulting in the Complainant becoming self-represented; and
- (b)the ability to bring the substantive proceedings is a workplace right within the meaning of ch 8 of the IR Act and any stay would further impede her rights.[22]
- [10]
- [11]Finally, she argues it would not be reasonable to delay the finalisation of the substantive proceedings for a significant amount of time until the WorkCover claim is finalised.[25]
- [12]In reply submissions, the Respondents acknowledge the proposed WorkCover charge, arguing it supports an order for a stay as it will allow WorkCover to secure and finalise its refund prior to any judicial determination.[26]
- [13]With respect to delaying the substantive proceedings, the Respondents submit much of the delay to date is attributable to the Complainant.[27]
- [14]It is also said that self-represented litigants often appear before the Commission, and this is a viable option which would not materially prejudice the Complainant, should legal aid funding be withdrawn.[28]
- [15]Finally, the Respondents reject the Complainant's submissions they would suffer no real prejudice, contending the prejudice lies in the issue of not being able to fully and finally determine the issue of quantum, and therefore finalise the proceedings, until the WorkCover claim is also finalised.[29]
Consideration
Concurrent Proceedings
- [16]The Respondents argue the substantive proceedings and the WorkCover claim are concurrent proceedings, whereas the Complainant argues they are different proceedings brought within different jurisdictional contexts.
- [17]Certainly, it is not in contention in this matter that the anti-discrimination complaint which forms the basis of the substantive matter arises from similar issues to those canvassed in the Complainant's WorkCover claim.
- [18]Section 456 of the IR Act provides that the Commission may stay or dismiss an application or complaint if the act or omission the subject of the application is being, or has been, dealt with by the Commission in another proceeding.
- [19]Although the Respondents are not seeking the Commission exercise its discretion to stay the substantive proceedings on the basis of s 456, they submit the premise of the Commission exercising its power pursuant to ss 451 and 452 of the IR Act to stay the substantive proceedings may be aligned with the legislative intent of s 456 of the IR Act.[30]
- [20]The Respondents rely on McCauley where the respondents in that matter sought to have an award for damages in an anti-discrimination complaint reduced by the amount paid to the complainant in a workers' compensation claim for her permanent impairment.
- [21]In McCauley the complainant argued such a reduction should not be made and sought to distinguish between compensation for a work-related impairment under the workers' compensation legislation and damages under the anti-discrimination legislation.
- [22]However, Member Gordon determined that where the compensation in both instances was for non-financial loss awarded for sexual harassment or discrimination which happens at work, this amounted to compensation for the same loss and the award for damages ought to be reduced.[31]
- [23]The Complainant relies on Doorley where the respondent in that matter sought to challenge a general protections application as unfair and prejudicial in circumstances where the applicant had also made a complaint to the Anti-Discrimination Commission of Queensland.[32]
- [24]Although Black IC accepted the complaint raised similar issues to the application, he considered it was made 'in a different legislative context and there [was] no statutory bar to the applicant bringing concurrent proceedings in different jurisdictions.'[33]
- [25]I have formed a similar conclusion in respect of this application.
- [26]The purpose of the workers' compensation scheme in Queensland is to provide benefits for workers who sustain an injury in their employment and to encourage improved health and safety performance by employers.[34]
- [27]Under the scheme, employees can pursue common law avenues to receive damages to meet their future needs arising from disability.
- [28]In contrast, one of the principal purposes of the Anti-Discrimination Act 1991 (Qld) ('the AD Act') is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, sex, education and accommodation.[35] The AD Act also prohibits sexual harassment.[36]
- [29]In the event the Commission determines a person has contravened the AD Act, it may make any number of orders, ranging from a condition a person make a private or public apology or implement training programs directed at eliminating discrimination, to a requirement to pay compensation for loss and damage because of the contravention.[37]
- [30]Although I accept the anti-discrimination complaint raises similar issues to those canvassed in the Complainant's WorkCover claim, it is clear the claim is brought in a different legislative context.
- [31]As acknowledged by the Respondents, there is no statutory bar to the Complainant running concurrent proceedings in the workers' compensation jurisdiction. Nor am I satisfied the legislative intent of s 456, having regard to the circumstances in this matter, lends support to a decision on the part of the Commission to exercise its discretion to stay the substantive matter.
Balance of Convenience
- [32]The Respondents bear the onus of demonstrating that the stay order proposed is 'fair to all parties' having regard to the balance of convenience.
- [33]That is, the course most likely to achieve justice between the parties pending resolution of the question of whether the Respondents have contravened the AD Act.
- [34]In support of the application for a stay, the Respondents submit that if the substantive proceedings are not stayed until such time as the WorkCover claim is entirely resolved, and the Commission determined it was appropriate to make an award of damages in the Complainant's favour, this may result in the:
- (a)Complainant being compensated twice for the same loss; and
- (b)Respondents suffering significant prejudice as a result.
- [35]Although I can appreciate the Respondents' concerns in relation to progressing the substantive matter in circumstances where WorkCover has flagged a charge on any settlement or judicial determination, I have some sympathy for the Complainant's submissions in relation to the delay and the importance of the Commission hearing from witnesses, while the events are fresh in their minds.
- [36]This is particularly the case in circumstances where there appears, having regard to the materials filed in the Commission, to be considerable distance between the parties in respect of the factual circumstances out of which complaints in relation to sexual harassment and victimisation have arisen.
- [37]Moreover, although I understand why the Respondents have reservations about the utility of progressing the substantive matter against a backdrop of the proposed WorkCover statutory refund and charge against a potential judicial outcome including an order for damages, they have been unable to definitively identify any real prejudice, at this stage, particularly where a detailed consideration of the Complainant's case has not yet been undertaken.
- [38]Highlighting the substantial delays to the progress and hearing of the matter as a result of the Complainant's actions, the Respondents further submit there would be no prejudice to the Complainant if the stay was granted in circumstances where she is still in receipt of workers' compensation.
- [39]One of the difficulties with this position, however, is that the Complainant, unbeknown to the Respondents, resigned from her employment the day immediately before the present application was filed.
- [40]As best I understand, she has subsequently been referred to an Independent Medical Examination to determine her fitness for alternative work. Representatives for the Complainant submit it is likely WorkCover will review the Complainant's entitlement to a lump sum payment, with a view to finalising her claim.
- [41]In those circumstances, it does appear there is some possibility the workers' compensation claim may well be resolved before the determination of the substantive matter.
- [42]Separately, representatives for the Complainant have raised the prospect that having resigned her employment, she may well find herself in a situation where she loses her legal aid funding due to the need to re-enter the workforce, therefore resulting in a situation where she is unable to fund private representation and may well have to represent herself.
- [43]The Respondents have observed it remains open for the Complainant to be self‑represented. It is said this is a viable option and will not prejudice the Complainant.
- [44]Respectfully, I disagree.
- [45]The AD Act is complex. Demonstrating that a contravention has occurred can be a difficult task for anyone, particularly when they are required to represent themselves during a formal hearing.
- [46]In my view, issuing a stay such that the delay indirectly resulted in the loss of legal representation would be highly detrimental to the Complainant.
- [47]Having regard to the issues set out above, the balance of convenience does not favour the stay.
Conclusion
- [48]I do not consider the Respondents have discharged the requisite onus of establishing there is a proper basis for the granting of a stay. I am not persuaded this is an appropriate occasion on which I ought to exercise my discretion to grant a stay. Consequently, the application is dismissed.
- [49]I order accordingly.
Order
The application in existing proceedings seeking to stay the substantive proceedings is dismissed.
Footnotes
[1] [2021] QIRC 380.
[2] Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, 694.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid 695.
[7] Ibid.
[8] Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd (2008) 2 Qd R 453, [13].
[9] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 623.
[10] State of Queensland (Department of Justice and Attorney-General) v Siobhan Maree Parer & Anor [2016] ICQ 013, [12]; BM Alliance Coal Operations Pty Ltd v Michael Scully, Inspector Resources and Safety & Health Queensland [2021] ICQ 001, [8]-[10].
[11] State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 190, [10].
[12] Footnotes in original.
[13] Respondents' submissions filed 19 July 2022, [9].
[14] Ibid.
[15] [2013] QCAT 243 ('McCauley').
[16] Complainant's submissions filed 2 August 2022, [5].
[17] [2019] QIRC 089, [34] ('Doorley').
[18] Complainant's submissions filed 2 August 2022, [7], Annexure A.
[19] Ibid.
[20] Complainant's submissions filed 2 August 2022, [23] citing Mancini v State of Queensland (Queensland Fire and Emergency Services) [2021] QIRC 192.
[21] Ibid [24].
[22] Ibid.
[23] Complainant's submissions filed 2 August 2022, [25].
[24] Ibid.
[25] Ibid [9].
[26] Respondents' Reply Submissions filed 16 August 2022, [3].
[27] Ibid [8].
[28] Ibid.
[29] Ibid [9].
[30] Respondents' submissions filed 19 July 2022, [20].
[31] McCauley, above (n 15) [271]-[276].
[32] What is now the Queensland Human Rights Commission.
[33] Doorley, above (n 17) [34].
[34] Workers' Compensation and Rehabilitation Act 2003 (Qld) s 5.
[35] Anti-Discrimination Act 1991 (Qld) s 6.
[36] Ibid ch 3.
[37] Ibid s 209.