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  4. Clarke v The Trustee for The McDonald Stokes Family Trust Trading as Pacific Haven Bakery - [2022] QIRC 302

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Clarke v The Trustee for The McDonald Stokes Family Trust Trading as Pacific Haven Bakery[2022] QIRC 302

Clarke v The Trustee for The McDonald Stokes Family Trust Trading as Pacific Haven Bakery[2022] QIRC 302

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Clarke v The Trustee for The McDonald Stokes Family Trust Trading as Pacific Haven Bakery & Ors [2022] QIRC 302

PARTIES:

Clarke, Tracey

(Complainant)

v

The Trustee for The McDonald Stokes Family Trust Trading as Pacific Haven Bakery

(First Respondent)

&

McDonald, Ashley

(Second Respondent)

&

McDonald, Vicki

(Third Respondent)

&

McDonald, Nole

(Fourth Respondent)

&

Stokes, Glen

(Fifth Respondent)

CASE NO.:

AD/2021/54

PROCEEDING:

Application to dismiss

DELIVERED ON:

8 August 2022

HEARING DATE:

16 May 2022

MEMBER:

Power IC

HEARD AT:

Brisbane

ORDERS:

  1. The application is granted.
  1. That matter AD/2021/54 is dismissed pursuant to rule 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011 (Qld).

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – application to dismiss – where the complainant was directed to attend a hearing and failed to do so – where complainant failed to comply with directions - consideration of rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) – application granted – substantive matter dismissed

LEGISLATION:

Anti-Discrimination Act 1991 (Qld), s 166

Industrial Relations Act 2016 (Qld), s 451

Industrial Relations (Tribunals) Rules 2011 (Qld), rr 6 and 45

Uniform Civil Procedure Rules 1999 (Qld)

CASES:

Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd (1990) 27 FCR 388

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

Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd [2005] ICQ 59; (2005) 180 QGIG 1209

Quinlan v Rothwell & Anor [2002] 1 Qd R 647

White v James [2021] QIRC 169

Workers' Compensation Regulator v Varga [2019] QIRC 028

APPEARANCES:

Complainant did not appear

Ms E Ikonomou of Employsure Law Pty Ltd for the Respondents

Reasons for Decision

  1. [1]
    Ms Tracey Clarke ('the Complainant') filed a complaint in the Queensland Human Rights Commission alleging breaches of the Anti-Discrimination Act 1991 (Qld) ('AD Act') in the workplace against The Trustee for The McDonald Stokes Family Trust Trading as Pacific Haven Bakery, Ms Ashley McDonald, Ms Vicki McDonald, Mr Nole McDonald and Mr Glen Stokes (together, 'the Respondents').
  1. [2]
    On 24 February 2022, the Respondents filed an application in existing proceedings, seeking for the matter to be dismissed ('the Application') pursuant to s 451 of the Industrial Relations Act 2016 (Qld) ('the IR Act') and r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules').

Background

  1. [3]
    On 21 October 2021, the Complainant's matter was referred to the Queensland Industrial Relations Commission ('the Commission') in accordance with s 166 of the AD Act. On the same day, the Commission issued a Directions Order, directing parties seeking to be legally represented to file in the Industrial Registry and serve on the other parties an application for leave to be represented (Form 4) by 5 November 2021.
  1. [4]
    On 4 November 2021, the Respondents' representative filed an application seeking leave to be legally represented in accordance with the Directions Order dated 21 October 2021.
  1. [5]
    On 9 November 2021, an email was sent to the Complainant by the Commission, requesting for the Complainant to confirm, inter alia, as to whether she was seeking to be legally represented in this matter. No response was received from the Complainant and on 16 November 2021, the Commission sent a further email to the Complainant, requesting that a response be provided by no later than 23 November 2021.
  1. [6]
    A conciliation conference was subsequently held on 14 December 2021 where in attendance were the Respondents, the Respondents' legal representative, the Complainant and the Complainant's representative, Mr Brian Newman from Workers First. At the commencement of the conference, I directed Mr Newman to, inter alia, file the relevant form in the Commission to indicate that he was representing the Complainant in this matter.
  1. [7]
    A Further Directions Order was then issued to parties on the same day on 14 December 2021, directing parties to file a statement of facts and contentions and disclosure of relevant material between parties. The Complainant was directed to file a statement of facts and contentions by 11 January 2022.
  1. [8]
    On 14 January 2022, the Commission sent an email to Mr Newman, noting that the Complainant's statement of facts and contention was not filed in accordance with the Further Directions Order dated 14 December 2021 and directing Mr Newman to do so by no later than 21 January 2022.
  1. [9]
    On 21 January 2022, the Complainant emailed directly to the Commission, advising that Mr Newman was unwell and was unable to file the statement of facts and contentions. A mention was subsequently listed for 14 February 2022 to address the issue of non-compliance with respect to the Further Directions Order dated 14 December 2021.
  1. [10]
    On 25 January 2022, the Complainant, again, emailed directly to the Commission, requesting that the matter to be adjourned due to Mr Newman's ill health. The Commission sent a response to the Complainant, advising that the mention would be adjourned and that the Complainant was to advise the Commission upon Mr Newman's recovery to attend and/or participate in further proceedings.
  1. [11]
    No response was received from the Complainant or Mr Newman and on 24 February 2022, the Respondents filed the Application, the subject to this decision, seeking that the matter be dismissed.
  1. [12]
    The basis for the order sought by the Respondents is as follow, that:
  1. (a)
    the Complainant has failed to comply with directions on at least three occasions;
  1. (b)
    there is nothing to indicate that the Complainant's ongoing non-compliance with the directions has been reasonable and the Complainant has made no attempt to either address or explain the non-compliance;
  1. (c)
    the Complainant's non-compliance indicates an unwillingness to engage with the Commission to progress the matter;[1]
  1. (d)
    the Respondents are entitled to have the matter heard quickly and efficiently and the Complainant's conduct is contributing to the delay of the matter; and
  1. (e)
    there is no real question to be answered on the facts of the matter.
  1. [13]
    A mention was held on 11 March 2022 to address the Application. Mr Newman was, again, directed to file the relevant form to confirm that he was representing the Complainant in this matter. I also highlighted to Mr Newman the importance of communication with the Respondents and the Commission in avoiding the potential for any further delays in progressing the matter. Mr Newman subsequently filed the relevant form, a Form 33 notice of appointment of agent, on the same day.
  1. [14]
    A Further Directions Order (2) was then issued to parties after the mention, directing parties to file submissions with respect to the Application and providing that parties be heard on the Application on 19 April 2022. The Further Directions Order (2) provides that the Complainant was to file submissions in response to the Application by 4.00pm on Friday, 25 March 2022 and the Respondents were to file their submissions in response by 4.00pm on Tuesday, 5 April 2022.
  1. [15]
    On 25 March 2022 at 4.03pm, Mr Newman emailed the Commission stating that he had a personal situation requiring him to collect his daughter from school urgently. Mr Newman advised that although he would not be able to meet the 4.00pm deadline, the documents would be filed later that evening. 
  1. [16]
    Mr Newman did not file the Complainant's submissions until 27 March 2022 at 7.17pm. The Respondents filed their submissions in accordance with the Further Directions Order (2) on 5 April 2022.
  1. [17]
    As a result of the Commission's change in availability, the hearing was relisted to 16 May 2022. The hearing for the Application commenced on 16 May 2022, however, the Complainant and Mr Newman were not in attendance. Both the Commission and the Respondents received no communication from either the Complainant or Mr Newman prior to the hearing regarding their non-attendance. The Respondents were given the opportunity to provide oral submissions in support of the Application as the four individual Respondents had appeared via video conference.
  1. [18]
    During the course of the hearing, Mr Newman sent an email to the Industrial Registry advising that his family had experienced a death over the weekend and he was required to travel to be with his family in New South Wales. Mr Newman advised that because of this issue, the matter before the Commission had 'completely slipped' his mind.
  1. [19]
    The Respondents were not copied into the correspondence and so were not aware of Mr Newman's reasons for non-attendance until 26 May 2022, when the Respondents' legal representative enquired with the Commission as to whether the Complainant provided any reasoning for their failure to attend the hearing. Mr Newman responded to the Respondents' enquiry on the same day with the following:

I can assist there. I had a death in my family and was not able to attend.

I notified the registry on the morning of the conference and whilst that was an inconvenience for all parties, it was not avoidable.

I have since returned to work and will be available to assist.

  1. [20]
    In consideration of the above, in the interest of fairness, I determined that parties should be provided with a further opportunity to be heard on the Application. On 27 May 2022, a notice of listing was sent to parties, scheduling the matter for a further hearing on 13 June 2022. The notice of listing included the following information:

The hearing has been listed to allow parties a further opportunity to be heard on the application to dismiss.

The Complainant's representative, Mr Brian Newman and the Complainant, Ms Tracey Clarke is required to attend the Commission in person.

The Respondents' legal representative is required to attend however, the named Respondents are not required but may attend if they wish to do so.

  1. [21]
    On 27 May 2022, the Respondents' legal representative advised the Commission that they were unavailable on the hearing date listed due to the date being a public holiday in New South Wales.[2] The Respondents requested the hearing be adjourned to another date.
  1. [22]
    On 28 May 2022, correspondence was received by Mr Newman, stating the following:

I regret to inform the Commission that I am committed to a three day hearing in the Federal Court on the week of 13 June 2022 and committed elsewhere prior to that date.

Additionally, I commence leave for two weeks from 20 June 2022.

I respectfully request the commission considers this information with a view to vacating the current listing.

  1. [23]
    The Respondents legal representative provided further correspondence to the Commission on 30 May 2022 in response to Mr Newman's correspondence of 28 May 2022, stating the following:

The Respondent would like a further opportunity to be heard.

As the Respondent's legal representative, I can ensure availability on the two days in which Mr Newman's Federal Court matter is not in session.

  1. [24]
    On the same day, the Commission emailed Mr Newman, requesting him to confirm the dates of the hearing in the Federal Court.
  1. [25]
    On 3 June 2022, the Respondents' legal representative sent an email to Mr Newman, seeking for Mr Newman to confirm the dates of the Federal Court hearing. The Respondents further advised that, should Mr Newman's only availability be 13 June 2022, the Respondents' legal representative will ensure their attendance regardless of the public holiday to avoid further delays.
  1. [26]
    No response was received from Mr Newman and on 7 June 2022, the Commission sent further correspondence, requesting Mr Newman to confirm the hearing dates of the Federal Court matter by 4.00pm on 8 June 2022.
  1. [27]
    No response was received from Mr Newman by 4.00pm on 8 June 2022 and on 9 June 2022, parties were advised by the Commission that the matter was to proceed as listed on 13 June 2022.
  1. [28]
    On 10 June 2022, Mr Newman sent correspondence to the Commission, stating the following:

Due to a serious medical issue.

I am not available.

I will be available from the second week of July, health permitting.

I apologise for the delay but I have been incapacitated and will not be available to assist at the moment.

I am prepared to provide medical evidence confidentially to the Commission directly if required.

  1. [29]
    The Commission sent an email responding to Mr Newman's correspondence requesting that he file an affidavit, including medical evidence, by 4.00pm on the same day. No material was filed by Mr Newman and I determined to arrange for the hearing listed on 13 June 2022 to be vacated based on Mr Newman's correspondence of 10 June 2022.
  1. [30]
    On 13 June 2022, I gave parties a further opportunity to provide any further submissions regarding the Application. A Further Directions Order (3) was issued, directing parties to file any further written submissions and any affidavit material regarding the Application by 20 June 2022. The directions order provided that unless any party filed an application for leave to make further oral submissions by 4.00pm on Friday, 24 June 2022, the Application will be dealt with on the papers without any further oral hearing.
  1. [31]
    The Respondents filed further written submissions on 20 June 2022 in accordance with the Further Directions Order (3) and advised that the Respondents did not intend on filing an application for leave to make further oral submissions. No further submissions or application to make further oral submissions were filed by the Complainant or Mr Newman.

Relevant legislative provisions

  1. [32]
    Section 451 of the IR Act provides for general powers of the Commission:

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.
  1. (2)
    Without limiting subsection (1), the commission in proceedings may—
  1. (a)
    give directions about the hearing of a matter; or
  1. (b)
    make a decision it considers appropriate, irrespective of the relief sought by a party; or
  1. (c)
    make an order it considers appropriate.

…

  1. [33]
    Rule 6 of the Rules provides:

6 Purpose of rules

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. [34]
    Rule 45 of the Rules provides:

45 Failure to attend or to comply with directions order

  1. (1)
    This rule applies if—
  1. (a)
    a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and
  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).

Consideration

  1. [35]
    Rule 45 of the Rules provides that the Commission may dismiss a proceeding in a number of circumstances including if a party fails to comply with directions made by the Commission.
  1. [36]
    In Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd,[3] his Honour President Hall cited, with approval, the reasoning of Thomas JA in Quinlan v Rothwell & Anor ('Quinlan'),[4] 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.[5]

  1. [37]
    In the matter of Paul Scott v State of Queensland & Ors,[6] Vice President O'Connor stated that although the matter in Quinlan related to the application of the Uniform Civil Procedure Rules 1999 (Qld), the reasoning of Thomas JA has equal application to the matter in those proceedings involving the application of r 45 of the Rules.
  1. [38]
    In Workers' Compensation Regulator v Varga,[7] Vice President O'Connor referred to a similar provision under the Federal Court Rules citing the decision of Wilcox and Gummow JJ in Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd,[8] that the discretion conferred by the rule was:

…unconfined, except for the condition of noncompliance with a direction ... [b]ut two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases – whatever the applicant's state of mind or resources – in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent.

…

Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the Judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.[9]

  1. [39]
    I firstly note that the Commission requested that Mr Newman file an application for leave to be represented on 21 October 2021 and after multiple reminders finally filed the relevant form on 11 March 2022. The four month delay in filing a procedural form is indicative of how this matter has been conducted to date.
  1. [40]
    Mr Newman submits that he fell ill shortly after the Further Directions Order was issued on 14 December 2021. As a consequence, Mr Newman was uncontactable and was not well enough to assist the Complainant as instructed. Mr Newman submits that he did not return to work until on or about 20 February 2022. Mr Newman further submits that his place of business was directly impacted by the floods in South-East Queensland in February 2022 and was, again, prevented from assisting the Complainant.
  1. [41]
    The Respondents submits that Mr Newman's illness and the floods do not sufficiently account for the Complainant's continuous non-compliance and lack of communication with the Commission. The Respondents further submits that Mr Newman returned to work on 11 February 2022 as indicated on a Facebook post of that date, however, did not provide an update to the Commission until 10 March 2022 despite being requested to do so in an email dated 25 January 2022.
  1. [42]
    Mr Newman was directed to file submissions by 4.00pm on 25 March 2022 relating to this Application. An extension was sought, after the deadline had passed, and the submissions were ultimately filed two days later. The reason provided for the failure to file in accordance with the Commission's directions related to an urgent school pick up. I am not persuaded that Mr Newman's submissions were ever likely to have been filed on the basis that an obligation arising a few hours prior to the deadline resulted in a delay filing for over two days. The failure to file submissions relating to the Application as directed reflects a complete indifference to the Commission's processes.
  1. [43]
    The failure of Mr Newman to attend the hearing of the Application on 16 May 2022 was explained by Mr Newman as a consequence of a death in his family. I note the Respondents' submission that no evidence has been provided to support this explanation. In such circumstances, it would be expected that the Commission and other parties be made aware of the situation prior to the commenced of the hearing so arrangements could have been made to vacate the listing. 
  1. [44]
    On 27 May 2022, the hearing of this application was re-scheduled to 13 June 2022. The Respondents' requested the matter be listed for another date as 13 June 2022 was a public holiday in New South Wales. Mr Newman sent an email requesting that the hearing date be vacated due to his unavailability as a result of an upcoming Federal Court matter and personal leave. Despite requests from the Commission for Mr Newman to provide the dates of his Federal Court hearing so as to accommodate his schedule for a re-listing of the hearing, Mr Newman did not respond. The Commission contacted Mr Newman again on 7 June 2022 to provide his availability, however no response was received.
  1. [45]
    It is clear from Mr Newman's conduct that he is unwilling to engage with the Commission's proceedings in this matter. Despite attempts being made to schedule a second hearing to allow the Complainant to be heard on the Application, Mr Newman still did not engage.
  1. [46]
    The difficulty with this matter is that it appears to be the conduct of Mr Newman rather than that of the Complainant that gives rise to the Application and consequently, consideration should be given as to the role of representative error. I am mindful that the Complainant will be denied the opportunity to seek a remedy should this application to dismiss be granted. In circumstances in which the Complainant had actively engaged with her matter, I would consider dismissal to be an unfair outcome. However, in circumstances in which it is clear that the Complainant was aware of Mr Newman's non-compliance with the Commission's directions in January 2022,[10] it is, in my view, that a reasonable person in her position would have dismissed the services of Mr Newman and sought alternative representation so as to prosecute her matter. In circumstances in which the Complainant continues to engage the services of Mr Newman despite the history of non-compliance, I consider that the Complainant has demonstrated wilful blindness to the lack of compliance with the Commission's directions.
  1. [47]
    The Complainant has named four individual Respondents in the substantive matter who have suffered prejudice as a consequence of this matter not progressing in a timely manner. The Respondents are in no way responsible for the continued delay, rather, it is a consequence of the failure of the Complainant to comply with the Commission's directions. In fairness to these Respondents, this matter cannot be allowed to drag on.
  1. [48]
    The Respondents submit that this demonstrates a complete disregard to all the parties and contempt of the Commission's instructions, time and resources. I agree with this characterisation of the Complainant's conduct and have no confidence that future directions by the Commission will be followed by Mr Newman to ensure that the matter progresses expeditiously. Whilst the unfortunate circumstances of suffering COVID-19 and being impacted by floods may explain the earlier instances of non-compliance, no satisfactory explanation was provided in Mr Newman's submissions of later instances of non-compliance.
  1. [49]
    The Rules provide for the just and expeditious disposition of the business of the Commission.[11] This can only be achieved when parties comply with the Commission's directions, and failure to do so may result in the matter being dismissed. In circumstances in which the Complainant and Mr Newman have failed to prosecute the case that began at their own initiative through consistent disregard for the Commission's directions, the just and expeditious disposition of the matter requires it to be dismissed. 
  1. [50]
    Based on the considerations above and all of the circumstances of this matter, sufficient grounds exist to dismiss the substantive complaint. I am satisfied that the Complainant's failure to comply with the directions of the Commission are appropriate grounds to dismiss the substantive complaint pursuant to r 45(3)(a) of the Rules.

Order

  1. [51]
    I make the following orders:
  1. The application is granted.
  1. That matter AD/2021/54 is dismissed pursuant to rule 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011 (Qld).

Footnotes

[1] citing White v James [2021] QIRC 169.

[2] The Respondents' legal representatives are based in New South Wales.

[3] [2005] ICQ 59; (2005) 180 QGIG 1209.

[4] [2002] 1 Qd R 647.

[5] Ibid 658.

[6] [2019] QIRC 115.

[7] [2019] QIRC 028.

[8] (1990) 27 FCR 388.

[9] Ibid 396.

[10] Complainant's email dated 25 January 2022.

[11] The Rules r 6.

Close

Editorial Notes

  • Published Case Name:

    Clarke v The Trustee for The McDonald Stokes Family Trust Trading as Pacific Haven Bakery & Ors

  • Shortened Case Name:

    Clarke v The Trustee for The McDonald Stokes Family Trust Trading as Pacific Haven Bakery

  • MNC:

    [2022] QIRC 302

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    08 Aug 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
3 citations
Jump To
Cite 1 - (1990) 27 FCR 388
Cite 2 - (1990) 27 FCR 388
Cite 3 - (1990) 27 FCR 388
Paul Scott v State of Queensland [2019] QIRC 115
2 citations
Jump To
Cite 1 - [2019] QIRC 115
Cite 2 - [2019] QIRC 115
Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd [2005] ICQ 59
2 citations
Jump To
Cite 1 - [2005] ICQ 59
Cite 2 - [2005] ICQ 59
Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209
2 citations
Jump To
Cite 1 - (2005) 180 QGIG 1209
Cite 2 - (2005) 180 QGIG 1209
Quinlan v Rothwell[2002] 1 Qd R 647; [2001] QCA 176
3 citations
Jump To
Cite 1 - [2002] 1 Qd R 647
Cite 2 - [2002] 1 Qd R 647
Cite 3 - [2002] 1 Qd R 647
White v James [2021] QIRC 169
2 citations
Jump To
Cite 1 - [2021] QIRC 169
Cite 2 - [2021] QIRC 169
Workers' Compensation Regulator v Varga [2019] QIRC 28
2 citations
Jump To
Cite 1 - [2019] QIRC 28
Cite 2 - [2019] QIRC 28

Cases Citing

Case NameFull CitationFrequency
Watchorn v State of Queensland (Queensland Health) [2022] QIRC 3532 citations
1

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