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Gordon v GAP Studio Brisbane Pty Ltd[2022] QIRC 324

Gordon v GAP Studio Brisbane Pty Ltd[2022] QIRC 324

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gordon v GAP Studio Brisbane Pty Ltd & Anor [2022] QIRC 324

PARTIES:

Gordon, Catherine

(Complainant)

v

GAP Studio Brisbane Pty Ltd

(First Respondent)

&

Hallett, David

(Second Respondent)

CASE NO:

AD/2022/43

PROCEEDING:

Referral of complaint

DELIVERED ON:

19 August 2022

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDER:

That the proceeding is dismissed pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011.

CATCHWORDS:

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

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 451

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

CASES:

Cady v Capital SMART Repairs Australia Pty Ltd & Anor [2019] QIRC 144

Cooper v Hopgood & Ganim [1998] QCA 114

House v R (1936) 55 CLR 499

Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200

Quinlan v Rothwell & Anor [2001] QCA 176

Seymour v Workers' Compensation Regulator [2017] QIRC 061

Smith v Workers' Compensation Regulator [2017] QIRC 070

Treanor v State of Queensland [2019] QIRC 146

Workers' Compensation Regulator v Bero [2019] QIRC 36

Workers' Compensation Regulator v Varga [2019] QIRC 028

Reasons for Decision

Background

  1. [1]
    On 6 June 2022, the Queensland Human Rights Commission filed a Form 85 - Referral of a matter in the Industrial Registry (the Referral Form).
  1. [2]
    The Referral Form listed Human Rights Claims as the Complainant's representative.
  1. [3]
    On 6 June 2022, the Industrial Registry issued a Directions Order requiring that any party seeking to be legally represented in this proceeding, file and serve on the other parties a Form 4 Application in existing proceedings.
  1. [4]
    On 16 June 2022, the First Respondent filed a Form 4 Application seeking leave to be legally represented.
  1. [5]
    On 20 June 2022, the Second Respondent advised the Industrial Registry he would be self-represented in these proceedings.
  1. [6]
    On 23 June 2022, the Industrial Registry emailed all parties annexing an Order I issued granting the First Respondent leave to be legally represented. The cover email sought the parties' availability to attend a conference and stated:

The Complainant is reminded that the Directions Order issued 6 June 2022 required that any party seeking to be legally represented was to file and serve on the other parties an application for leave to represented (Form 4) by 4:00pm on 20 June 2022. If Mr Van Oeveren is representing Ms Gordon in this matter, a Form 34 must be filed as he is a lawyer in addition to the Form 4 Application.

  1. [7]
    The parties did not advise of their availability and so on 27 June 2022, a notice of listing was issued setting down a conference for 18 July 2022 at 2:30pm.
  1. [8]
    On 12 July 2022, Human Rights Claims / Supportah Australia Pty Limited filed, via email,  a Form 35 – Notice of withdrawal of appointment of lawyer or agent on behalf of the Complainant. In the cover email, Human Rights Claims provided the Complainant's telephone number and email address. The Complainant was also copied into that email. 
  1. [9]
    On 13 July 2022, the Industrial Registry sent the Complainant a copy of the Notice of Listing dated 27 June 2022 that outlined the details of the conference listed for 18 July 2022 at 2:30pm. The Notice of Listing clearly stipulated the location of the QIRC and allowed for any person outside of Brisbane to contact the Industrial Registry in the event they desire to appear via telephone.
  1. [10]
    The Respondents appeared via telephone at the conference on 18 July 2022. The Complainant did not. My Associate dialled the Complainant's telephone number three times but was unable to reach her.
  1. [11]
    Following the conference, the Industrial Registry issued correspondence to all parties in the following terms:

Dear Ms Gordon,

A Conference in the above matter was listed for 2:30pm today, 18 July 2022. The Notice of Listing requiring attendance was issued to all parties on 27 June 2022.

On 12 July 2022, your Agent filed a Form 35 – Notice of Withdrawal of Lawyer or Agent and so, on 13 July 2022 – the Industrial Registry forwarded you the Notice of Listing requiring your attendance at the Conference today.

The Respondents attended the Conference at the required time. The Associate to Commissioner McLennan attempted to call you three times, however was unable to reach you. We note that you did not provide the Industrial Registry with an indication that you did not intend to attend, you did not seek an adjournment and have not provided an excuse for failing to attend.

Please provide an explanation for your non-attendance at the Conference by no later than 4:00pm tomorrow, 19 July 2022.

In the event you do not respond by that time, Commissioner McLennan will issue a Directions Order requiring submissions as to why this matter should or should not be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld).

  1. [12]
    The Complainant did not respond to that correspondence and so on 25 July 2022, I issued a Directions Order requiring:
  1. That the Complainant file in the Industrial Registry, and serve on the Respondent, written submissions (of no more than three pages in length and any relevant attachments) as to why the Appeal should not be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) by 4:00pm on 1 August 2022.
  1. That the Respondent file in the Industrial Registry, and serve on the Complainant, written submissions in response to the Complainant's submissions (of no more than three pages in length and any relevant attachments) by 4:00pm on 8 August 2022.
  1. That, if needed, the Complainant file in the Industrial Registry, and serve on the Respondent, written submissions (of no more than one page in length and any relevant attachments) in reply to the submissions of the Respondent, by 4:00pm on 15 August 2022.
  1. Unless any party files an application by 4:00pm on 17 August 2022 for leave to make oral submissions or further written submissions, the matter will be dealt with on the papers pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld).
  1. [13]
    The Complainant did not file written submissions as directed. As directed, the Respondents filed written submissions on 8 August 2022. The Complainant did not file any submissions in reply and neither party filed an application for leave to make oral submissions or further written submissions.
  1. [14]
    The Complainant did not comply with the notice to attend the conference on 18 July 2022, did not respond to the subsequent email requesting an explanation for her failure to appear and did not comply with the Directions Order issued on 25 July 2022. Even now, the substantive requirements remain unfulfilled. At no stage has the Complainant contacted the Industrial Registry to explain her failure to comply.
  1. [15]
    For the reasons that follow, I have determined that the Complainant's continued and unexplained non-compliance with the directions warrants the dismissal of this proceeding.
  1. [16]
    I have carefully considered the Respondents' submissions and have determined not to approach the writing of this decision by summarising the entirety of those submissions but will instead refer to key arguments in my consideration.

Rule 45

  1. [17]
    Rule 45 of the Industrial Relations (Tribunals Rules) 2011 (Qld) (the Tribunals Rules) is in the following terms:

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) .
  1. [18]
    The power under r 45(3)(a) of the Tribunals Rules involves an exercise of discretion. Foremost, discretionary powers must be "exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion."[1] In exercising that discretion, I am informed by several factors, which are set out below. Ultimately, however, I must consider the particular circumstances of this case.[2]
  1. [19]
    In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd,[3] their Honours Wilcox and Gummow JJ considered a provision under the Federal Court Rules which is materially similar to r 45 of the Tribunals Rules. In that case, their Honours identified two broad types of failure to comply with directions which would warrant the dismissal of a matter (emphasis added):

As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But 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. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. 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.

In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the Court's directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent.[4]

  1. [20]
    Such reasoning was followed by O'Connor VP in Workers' Compensation Regulator v Varga[5] and Seymour v Workers' Compensation Regulator,[6] as well as by Merrell DP in Cady v Capital SMART Repairs Australia Pty Ltd & Anor.[7]
  1. [21]
    In the exercise of my discretion under r 45 of the Tribunal Rules, I am also minded to consider the purpose of the Tribunals Rules, as set out in r 6:
  1. 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. [22]
    The terms 'just' and 'expeditious' may sometimes appear to be at odds. Australian Courts and Tribunals often wrestle with the task of maintaining the precarious balance between expeditious resolutions, and the ability of parties to prepare for and present their case. In considering that balance while dealing with an application to dismiss for want of prosecution, his Honour Thomas JA in Quinlan v Rothwell & Anor provided (emphasis added):

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.[8]

  1. [23]
    While his Honour was considering the Uniform Civil Procedure Rules 1999 (Qld), that passage has been adopted in this jurisdiction on a number of occasions[9] as the underlying question to be determined is consistent with the exercise of discretion under r 45 of the Tribunal Rules.
  1. [24]
    In Smith v Workers' Compensation Regulator, O'Connor DP (as he then was) concluded:

The Commission has an obligation to actively manage the matters filed in the Industrial Registry and to ensure the parties comply with the directions orders issued by it. The Rules aid the Commission to case manage its list; to assist the parties to prepare their cases; to ensure the efficient use of the Commission's time and resources; and to assist in the resolution of the real issues in the proceedings.[10]

Consideration

  1. [25]
    Rule 45 of the Tribunals Rules clearly applies to this proceeding insofar as the Complainant failed to attend a conference for which she had notice to attend pursuant to r 45(1)(b) and the Complainant failed to comply with a Directions Order pursuant to r 45(2)(b).
  1. [26]
    Section 451(1)(a) of the IR Act empowers the Commission to exercise its power on its own initiative. I will now consider whether I should exercise my discretion to dismiss the proceeding pursuant to r 45(3)(a) of the Tribunals Rules.

Continuing non-compliance

  1. [27]
    The Complainant's default is certainly continuing, given her failure to attend the conference for which she received notice and ongoing failure to comply with the substantive requirements outlined in the Directions Order. The Complainant has even failed to provide an informal explanation of non-compliance and instead has blatantly disregarded the Directions Order and correspondence from the Industrial Registry. 

Inability or unwillingness to co-operate

  1. [28]
    The Complainant's continuous disregard for compliance has evinced in my mind that this behaviour will be repeated, and this matter will be drawn out substantially to the Respondents' detriment. For that reason, I am not convinced that giving further chances to explain and adhere to the Directions Order or listing further conferences is appropriate as the Complainant has already evinced disregard and an intention to not proceed with the matter. Even if I am wrong on that point, the Complainant's non-compliance demonstrates an unwillingness or inability to proceed in accordance with the Tribunals Rules.
  1. [29]
    The First Respondent submits that the Complainant has not communicated with either the Respondents nor the QIRC since 12 July 2022. On several occasions, the Complainant was issued with correspondence from the Industrial Registry and copied into correspondence from the Respondents that ought to have served as a reminder of her obligations under the Directions Order and a prompt to action the requirements.
  1. [30]
    I have no doubt that the Complainant understood her obligations under the Notice of Listing and Directions Order, as these were clearly stipulated. Notwithstanding, the clear lack of regard for the substantive directions indicates that the Complainant does not want to put enough effort into giving the Commission and Respondents the courtesy of a response.
  1. [31]
    I acknowledge that the Complainant is now a self-represented litigant. In that regard, I would note that a lack of representation is a misfortune, which should be met with necessary procedural assistance, but is not a privilege entitling a self-represented litigant to special consideration at the expense of the party or parties who are represented or more experienced in the jurisdiction.[11]
  1. [32]
    In circumstances where every assistance has been provided to the Complainant, including the listing of a conference, a follow up email affording an informal opportunity to provide an explanation for failure to attend and ensuring that she is copied into all correspondence to serve as a reminder of her obligations - non-compliance with the Directions Order cannot be said to arise from her lack of understanding of the law.
  1. [33]
    Noting that the Complainant has failed to comply with a notice to attend a conference and a Directions Order, the cumulative effect of her non-compliance is substantial enough to satisfy me that the Complainant is either unwilling to comply or for some reason is unable to do so and as a result, the Respondents' case is prejudiced. 

Causing unnecessary delay, expense and prejudice

  1. [34]
    By failing to attend the conference and respond to the Directions Order, the Complainant has and continues to extend the time between now and the determination of her complaint. The documentation forwarded by the Queensland Human Rights Commission indicates the complaint was originally initiated on or about 26 May 2021 – that is over 14 months ago. Whilst the complaint is on foot, the Respondents continue to incur the expense and inevitable stress of defending the matter. That is a compelling reason to deal with this matter as expeditiously as possible.
  1. [35]
    The Complainant's default imposes an unacceptable burden on the Respondents, as they are unable to progress this matter to resolution or hearing without the Complainant's participation.
  1. [36]
    Time limits are imposed to ensure fairness between the parties as well as to ensure the expeditious advancement of the matter. Repeated failure to comply with Directions is inconsistent with r 6 of the Tribunals Rules. Further delay would create a futile and unnecessary impediment to the expeditious resolution of this matter. 
  1. [37]
    Therefore, in my opinion, the purpose of the Tribunals Rules is best fulfilled in this case by exercising the discretion under r 45 of the Tribunals Rules to dismiss the proceeding.

Other matters

  1. [38]
    The First Respondent submits there is no real question to be answered and argued the First Respondent took all reasonable steps to prevent a contravention of the AD Act. The Second Respondent alleges the Complainant's intention in filing the complaint is to bully, harass and embarrass him and presented submissions about his workplace professionalism, conduct and working relationships.
  1. [39]
    I do not consider these submissions to be as relevant as the previously considered matters. Had the matter progressed to hearing, the submissions made by the Respondents could have been tested and would have been subject of a formal hearing and decision. However, for the foregoing reasons, this matter will not proceed.
  1. [40]
    I order accordingly.

Order

  1. That the proceeding is dismissed pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011.

Footnotes

[1] House v R (1936) 55 CLR 499, 503.

[2] Cooper v Hopgood & Ganim [1998] QCA 114, 6; citing Witten v Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405.

[3] [1990] 98 ALR 200.

[4] Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200, 210.

[5] [2019] QIRC 028.

[6] [2017] QIRC 061.

[7] [2019] QIRC 144.

[8] Quinlan v Rothwell & Anor [2001] QCA 176, 8.

[9] See Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73; Workers' Compensation Regulator v Varga [2019] QIRC 028, 5-6.

[10] [2017] QIRC 070, [10].

[11] See Workers' Compensation Regulator v Bero [2019] QIRC 36; Treanor v State of Queensland [2019] QIRC 146.

Close

Editorial Notes

  • Published Case Name:

    Gordon v GAP Studio Brisbane Pty Ltd & Anor

  • Shortened Case Name:

    Gordon v GAP Studio Brisbane Pty Ltd

  • MNC:

    [2022] QIRC 324

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    19 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
Cady v Capital SMART Repairs Australia Pty Ltd [2019] QIRC 144
2 citations
Jump To
Cite 1 - [2019] QIRC 144
Cite 2 - [2019] QIRC 144
Cooper v Hopgood & Ganim[1999] 2 Qd R 113; [1998] QCA 114
2 citations
Jump To
Cite 1 - [1998] QCA 114
Cite 2 - [1998] QCA 114
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd (1990) 98 ALR 200
3 citations
Jump To
Cite 1 - (1990) 98 ALR 200
Cite 2 - (1990) 98 ALR 200
Cite 3 - (1990) 98 ALR 200
Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73
1 citation
Jump To
Cite 1 - [2005] QIC 73
Quinlan v Rothwell[2002] 1 Qd R 647; [2001] QCA 176
2 citations
Jump To
Cite 1 - [2001] QCA 176
Cite 2 - [2001] QCA 176
Seymour v Workers' Compensation Regulator [2017] QIRC 61
2 citations
Jump To
Cite 1 - [2017] QIRC 61
Cite 2 - [2017] QIRC 61
Smith v Workers' Compensation Regulator [2017] QIRC 70
2 citations
Jump To
Cite 1 - [2017] QIRC 70
Cite 2 - [2017] QIRC 70
Treanor v State of Queensland [2019] QIRC 146
2 citations
Jump To
Cite 1 - [2019] QIRC 146
Cite 2 - [2019] QIRC 146
Witten v Lombard Australia Ltd (1968) 88 W.N. (Pt 1) (N.S.W.) 405
1 citation
Jump To
Cite 1 - (1968) 88 W.N. (Pt 1) (N.S.W.) 405
Workers' Compensation Regulator v Bero [2019] QIRC 36
2 citations
Jump To
Cite 1 - [2019] QIRC 36
Cite 2 - [2019] QIRC 36
Workers' Compensation Regulator v Varga [2019] QIRC 28
3 citations
Jump To
Cite 1 - [2019] QIRC 28
Cite 2 - [2019] QIRC 28
Cite 3 - [2019] QIRC 28

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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