Robertson v Queensland Farm Management and Training Pty Ltd (No 2)
[2022] QIRC 365
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- Unreported Judgment
- Robertson v Queensland Farm Management and Training Pty Ltd (No 2)[2022] QIRC 365
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Robertson v Queensland Farm Management and Training Pty Ltd (No 2)[2022] QIRC 365
Robertson v Queensland Farm Management and Training Pty Ltd (No 2)[2022] QIRC 365
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Robertson v Queensland Farm Management and Training Pty Ltd (No 2) [2022] QIRC 365 |
PARTIES: | Robertson, B (Appellant) v Queensland Farm Management and Training Pty Ltd (Respondent) |
CASE NO: | AD/2022/6 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 26 September 2022 |
HEARING DATE | 19 July 2022 |
MEMBER: | Hartigan IC |
HEARD AT: | Brisbane |
ORDER: | Pursuant to r 226(2)(f) of the Industrial Relations (Tribunal) Rules 2011 (Qld) the proceedings is struck out. |
CATCHWORDS: | HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – where the referred complaint includes an allegation that the complainant has been the subject of an unlawful request for information – complaint of direct discrimination – attributes of age and gender identity – where the respondent filed an application in existing proceeding seeking that the complaint be struck out – where the complainant does not provide address details – where respondent contends that the complainant has not properly identified themselves – where the complainant identified as 'itinerant' – whether the complainant failed to comply with the Industrial Relations (Tribunal) Rules 2011 (Qld) – where the complainant did not provide a reasonable explanation as to why they were unable to comply with the rules – where the proceedings is struck out |
LEGISLATION: | Industrial Relations (Tribunal) Rules 2011 (Qld) r 12, r 13 and r 226. |
CASES: | |
APPEARANCES | B. Robertson, the Complainant on their own behalf. Mr G. McCartney of Simmons & McCartney for the Respondent. |
Reasons for Decision
Introduction
- [1]The Respondent filed an application in existing proceedings on 12 July 2022 ('the application') seeking that the complaint be struck out for 'want of identification of the Complainant and continued refusal to comply with the Industrial Relation Tribunal Rules 2011 (Qld) ('the Tribunal Rules') - r 12 or at all'.
- [2]The proceedings relate to a complaint referred by the Queensland Human Rights Commission ('the QHRC') to the Queensland Industrial Relations Commission ('the Commission').
- [3]The referred complaint includes an allegation that the Complainant had been the subject of an unlawful request for information, and that they had been the subject of unlawful discrimination on the basis of gender identity and age in contravention of the Anti-Discrimination Act 1991 (Qld) ('the AD Act').
- [4]The referred complaint provides the name of the Complainant as 'B. Robinson'. Although the referred complaint provides an email address, it does not provide any residential address or telephone contact details of the Complainant.
- [5]In later documents filed with the Industrial Registry, for instance, an application in existing proceedings filed on 19 May 2022, the Complainant, identifies their name as 'B. Robinson' and address as 'care of post office Gladstone'. A mobile telephone number and email address is provided in this application.
- [6]In a further application filed on 18 July 2022, the Complainant states their address as 'no fixed address'.
- [7]It appears from the referred complaint filed by the Complainant that they saw the Respondent's advertisement for a vacant job position on social media. It follows that prior to the advertisement and the subsequent complaint, the Complainant was not known to the representatives of the Respondent.
- [8]The Respondents contend that the Complainant has failed to properly identify themselves by name and address and accordingly have failed to comply with the Tribunal Rules.
The Tribunal Rules
- [9]The purpose of the Tribunal Rules is to provide for the just and expeditious disposition of the business of, relevantly, the Commission at a minimum of expense.[1] The proceedings were, as noted above, commenced by a complaint referred from the QHRC.
- [10]Rule 8(3)(c) of the Tribunal Rules provides that a complaint referral is a document starting a proceeding.
- [11]Several rules require the contact details of parties. Relevantly, r 12 of the Tribunal Rules provides that a document starting proceedings is to state contact details as follows:
12 Document starting proceeding, or application in existing proceeding, to state contact details
- (1)Unless otherwise provided by these rules, a document starting a proceeding, or an application in an existing proceeding, must not be filed unless it states—
- (a)the applicant’s residential or business address; and
- (b)the applicant’s telephone number (if any); and
- (c)if the applicant has no telephone number—a way of contacting the applicant by telephone; and
- (d)the applicant’s fax number (if any); and
- (e)the applicant’s email address (if any).
- (2)If a lawyer or agent acts for the applicant, a document starting a proceeding, or an application in an existing proceeding, must not be filed unless it states—
- (a)the name of—
- (i)the lawyer, and if the lawyer practises in a firm of lawyers, the name of the firm; or
- (ii)the agent, and if the agent is employed by a business or corporation or operates under a business name, the name of the business or corporation or the business name; and
- (b)the address of the lawyer’s or agent’s place of business; and
- (c)if the address under paragraph (b) is not the applicant’s address for service or is not a Queensland address—an address for service in Queensland; and
- (d)the lawyer’s or agent’s telephone number, email address and fax number (if any).
Note—
Under rule 125, a notice of appointment of agent must be filed and served on all parties to the proceeding. Under rule 126, a lawyer representing a party or person in the proceeding must file and serve a notice of address for service on all parties to the proceeding.
…
(my emphasis)
- [12]The general requirements for documents for filing are set out in r 13 of the Tribunal Rules, relevantly as follows:
13 General requirements for documents for filing
- (1)Unless these rules provide otherwise, a document for filing must —
…
- (m)contain the information, including the applicant’s address for service, required under rule 12.
- (2)However, if the address for service is changed under these rules, a document filed after the change must state the new address for service instead of the original address.
…
Has the Complainant complied with the Tribunal Rules?
- [13]The information the Complainant has listed in documents filed in the Commission include the provision of their name as 'B. Robinson', an email address that does not include their name and a general domain name, relevantly '[redacted]@mail.com', and a mobile telephone number.
- [14]The referred complaint and subsequent documents filed by the Complainant in the proceedings do not include the Complainant's full name or address details.
- [15]Prior to the publication of the advertisement and the Complainant's subsequent objection to the information requested in the advertisement, which initiated the Complainant commencing these proceedings, the parties were unknown to each other.
- [16]The Complainant has never personally attended a conference, mention or hearing at the Commission, and has always requested to appear by telephone, including with respect to the hearing of this application.
- [17]The Respondent maintains that the identity of the Complainant is unknown to it.
- [18]The Respondent formalised its complaint with respect to the Complainant's failure to provide the details required by rr 12 and 13 of the Tribunal Rules by filing, on 12 July 2022, this application to strike out the proceedings.
- [19]The Commission listed the matter for mention[2] and placed the Complainant on notice with respect to the requirements to provide any affidavit evidence and written submissions. Rule 12 of the Tribunal Rules was also brought to the Complainant's attention during the course of the mention. Following the mention, directions were subsequently issued requiring the Applicant to file any affidavit evidence and written submissions with respect to their response to the application.[3]
- [20]As noted above, the Complainant did not produce or rely on any affidavit evidence at the hearing of the application. During the course of the oral submissions, the Complainant after objecting to the provision of the information required by the Tribunal Rules, the Complainant purported to provide, toward the end of the hearing, details with respect to their name. Relevantly, the Complainant stated:
I identify as Bruce Robertson.[4]
- [21]It is unclear why the Complainant elected to use the words 'I Identify as…' as opposed to 'My full name is…' The choice of those words by the Complainant leaves open an inference, at least, that the Complainant has elected to use the name 'Bruce Robertson' rather than it actually being his name. Further, the Complainant stated that they were 'itinerant'.[5] When pressed for an explanation as to the factual basis upon which the Complainant claimed itinerancy, the Complainant variously responded that:
…I don’t rent a house. I don't have access to structured accommodation in the vast to near complete time frame up to and including living on a daily basis in any direction I might choose or not…[6]
- [22]It is difficult to comprehend precisely what the Complainant meant by the above submission. 'Itinerant' can have several possible meanings. It often is used to refer to someone who elects to travel from place to place. It is not suggested that it was intentional but much of the Complainant's oral submissions were unclear and opaque, and at times contradictory.
- [23]At the conclusion of the hearing the Complainant was given a further opportunity to provide written submission addressing the matters in question. The Complainant did not provide any further factual information to support the assertion that they are itinerant or any further information with respect to their location or address. Relevantly, the Complainant was given an opportunity to provide factual information with respect to his address details or the precise reasons why he could not comply with the Tribunal Rules to provide those details.
- [24]When it was put to the Complainant[7] that the Complainant knows who the Respondent is, knows the Respondent's name, and knows the Respondent's address, the Complainant responded as follows:
I – I see. They have a larger priced island and they’re commercial – somewhat smaller priced island and not commercial.[8]
- [25]It is acknowledged that during the course of the hearing on 19 July 2022, the Complainant disclosed a name which they stated they identify by.
- [26]The Complainant claimed they were itinerant but failed to provide a direct factual basis for such a claim. Nor did the Complainant submit any information that could assist from a practical perspective with remedying their non-compliance with the Tribunal Rules. It is unknown where the Complainant can be located, including it is unknown if they are located in Queensland or some other geographical location. There are a number of potential consequences that follow from that. The most obvious being that currently there is no means for the Respondent to affect personal service on the Complainant.
- [27]As noted above, at the conclusion of the hearing the Complainant was provided a further opportunity to file material with respect to their claim of itinerancy. No information addressing the claimed itinerancy was filed by the Complainant. Consequently, the Complainant has failed to provide any sound, logical or cogent information that explains why they are of no fixed address nor have they proffered any further information which might enable the requirements of rr 12 and 13 of the Tribunal Rules to be complied with, or, at least, regularised.
- [28]In the further submissions, the complaint did however refer to r 371 of the Uniform Civil Procedure Rules 1999 (Qld). It is noted that the Tribunal Rules contains an analogous provision under r 226, which relevantly provides:
226 Effect of failure to comply with rules
- (1)A failure to comply with these rules is an irregularity and does not of itself render a proceeding, document, step taken or order made in a proceeding, a nullity.
- (2)If there has been a failure to comply with these rules, the court, the commission, a magistrate or the registrar may—
- (a)set aside all or part of the proceeding; or
- (b)set aside a step taken or order made in the proceeding; or
- (c)declare a document or step taken to be ineffectual; or
- (d)declare a document or step taken to be effectual; or
- (e)make another order that could be made under these rules; or
- (f)make another order dealing with the proceeding generally as the court, commission, magistrate or registrar considers appropriate.
…
- [29]It appears the Complainant seeks to rely on the provision to contend that a failure to comply with the Tribunal Rules is nothing more than an irregularity. Unfortunately, the Complainant has taken no reasonable steps to attempt to regularise the non-compliance.
- [30]The Complainant is the party who has commenced these proceedings and in doing so has submitted to the jurisdiction. There is an expectation that the proceedings will be conducted in adherence to the Tribunal Rules.
- [31]I am satisfied that the Complainant was given several opportunities to explain their position, including to provide a reasonable explanation as to why they were unable to comply with the Tribunal Rules. I am satisfied that the explanation provided by the Complainant does not reasonably explain their non-compliance to this date, and further I consider that the Complainant continues to remain non-compliant with rr 12 and 13 of the Tribunal Rules.
- [32]The Complainant has been given several opportunities to provide a reasonable explanation in circumstances where the Complainant was on notice that the Respondent was seeking orders that the proceedings be struck out because of the Complainant's failure to comply with the Tribunal Rules. Despite these opportunities, and knowing the purpose of the hearing, the Complainant failed to adequately address the reasons for their non-compliance nor to adequately provide information to address the continued non-compliance with the Tribunal Rules.
- [33]Further, I am satisfied that the Complainant's continued non-compliance with the Tribunal Rules creates both procedural and substantive unfairness insofar as the Respondent is not properly able to identify the Complainant, or the Complainant's location in order to affect personal service on the Complainant. I also consider that the continued non-compliance with the Tribunal Rules creates an impediment to the just and expeditious disposition of the business of the Commission at a minimum expense.
- [34]The Respondent has sought orders that the proceedings be struck out. Section 226(2)(f) of the Tribunal Rules provides that if there has been a failure to comply with the Tribunal Rules the Commission may, inter alia, make another order dealing with the proceedings as the Commission considers appropriate. In the circumstances of this matter, I consider it is appropriate to strike out the proceedings.
Conclusion
- [35]For these reasons, the proceedings is struck out.
Order
- [36]Accordingly, I make the following order:
Pursuant to r 226(2)(f) of the Industrial Relations (Tribunal) Rules 2011 (Qld) the proceedings is struck out.