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  4. Kerslake v State of Queensland (Department of Transport and Main Roads) - [2022] QIRC 447

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Kerslake v State of Queensland (Department of Transport and Main Roads)[2022] QIRC 447

Kerslake v State of Queensland (Department of Transport and Main Roads)[2022] QIRC 447

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Kerslake v State of Queensland (Department of Transport and Main Roads) & Or [2022] QIRC 447

PARTIES:

Kerslake, Susan

(Complainant)

v

State of Queensland (Department of Transport and Main Roads)

(First Respondent)

&

Dodds, Brian

(Second Respondent)

CASE NO:

AD/2022/68

PROCEEDING:

Referral of a complaint

DELIVERED ON:

18 November 2022

MEMBER:

Pidgeon 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 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 – substantive matter dismissed

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 451

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

CASES:

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

Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIV 73; 180 QGIG 1209

Quinlan v Rothwell & Anor[2001] QCA 176

Smith v Workers' Compensation Regulator [2017] QIRC 070

Watchorn v State of Queensland (Queensland Health) [2022] QIRC 353.

Workers' Compensation Regulator v Varga [2019] QIRC 028

Reasons for Decision

Background

  1. [1]
    Ms Kerslake first lodged her complaint with the Queensland Human Rights Commission ('QHRC') and the matter was subsequently referred to the Queensland Industrial Relations Commission ('QIRC') on 12 September 2022.
  1. [2]
    On 13 September 2022, a Directions Order was issued by the Industrial Registry which directed parties seeking leave to be legally represented to file a Form 4 - Application in existing proceedings by 27 September 2022.
  1. [3]
    On 21 September 2022, Crown Law filed the following on behalf of the First and Second Respondents:
  • Form 4 - Application;
  • Form 34 - Lawyer's notice of address for service; and
  • Form 1 - Parties list.
  1. [4]
    On 29 September 2022, the Complainant sent an email to the Registry and Crown Law.[1] In summary, the email stated: that Ms Kerslake did not wish to be contacted by Crown Law, she intended to block Crown Law representative's email address and did not intend to read its correspondence; she had previously instructed a lawyer with whom she had been unhappy with; over the past two years she had become homeless and suffered a mental health crisis; that 'you lot'[2] get to decide what the progress of the complaint 'looks like' and that if it is not the Respondent and the QIRC who works it out, it will be her.
  1. [5]
    Ms Kerslake did not seek leave for legal representation at the conciliation.
  1. [6]
    On 5 October 2022, a notice of listing was issued setting down a telephone conciliation for 2 November 2022 at 10:00 am. The notice was issued to all parties by email and stated: "A conference has been called by the Queensland Industrial Relations Commission and all named parties are required to attend as follows…". The notice clearly outlined the details of the conference and was accompanied by the following additional listing information:

Given the location of the parties, this matter has been listed as a teleconference. Could the parties please confirm their appearances and relevant contact information in writing to [email protected] by 28 October 2022 at 4:00 pm.

  1. [7]
    On 17 October 2022, Crown Law, acting for the Respondents, wrote to the Commission to confirm its appearances and contact details for the conciliation. Crown Law sent a further email on 31 October 2022 to confirm that its appearances and contact details had been noted ahead of the conciliation, and the Registry responded that day to confirm that Crown Law's correspondence had been received.
  1. [8]
    The Complainant did not confirm her appearance or contact information by 28 October 2022 at 4:00 pm as requested in the notice of listing.
  1. [9]
    As such, on 31 October 2022 at 12:35 pm, the Registry sent an email to the Complainant on behalf of my chambers which stated:

Dear Ms Kerslake

I refer to the attached Notice of Listing for a telephone conference before Commissioner Pidgeon at 10:00 am on Wednesday 2 November 2022.

Could you please confirm your attendance and your best contact details?

This email is sent on behalf of the Chambers of Industrial Commissioner Pidgeon.

  1. [10]
    As the Complainant did not respond to this email, I requested that a phone call be made to Ms Kerslake on the afternoon of 1 November 2022.  I was advised that the Complainant did not answer and that a voicemail was left requesting that Ms Kerslake confirm her attendance at the conciliation and provide her best contact number for the teleconference.
  1. [11]
    After not hearing from the Complainant, I requested that Ms Kerslake be called again on the morning of 2 November 2022 ahead of the conciliation. Ms Kerslake did not answer the call and a voicemail was left for the Complainant regarding the teleconference.
  1. [12]
    The Complainant did not respond to any of the Commission's communications regarding the conciliation. For this reason, her mobile number was added to the telephone conference hosted by Chorus Call Australia in an attempt to facilitate her attendance.
  1. [13]
    My Associate advised me that when the operator called the Commission to commence the teleconference, the operator said that Chorus Call was unable to reach the Complainant. The operator told my Associate that she left a voicemail for the Complainant which outlined the details for connecting to the call.
  1. [14]
    The Complainant did not join the teleconference and the conciliation proceeded in her absence.
  1. [15]
    Following the conference, the Registry sent the following email to Ms Kerslake requesting that she advise whether she wished to continue proceedings. The email said:

Dear Ms Kerslake

We refer to the conciliation before Commissioner Pidgeon which occurred at 10:00 am by teleconference and note that you did not attend.

A Notice of Listing was sent to you on 5 October 2022 with the details of the conciliation. The Registry sent you a reminder email on 31 October 2022 requesting that you confirm your attendance and provide your best contact number for the teleconference. Further, Commissioner Pidgeon's Associate attempted to call you on 1 November 2022 and again on 2 November 2022 and left voicemails regarding the conciliation. Chorus Call Australia attempted to connect you to the conciliation this morning and left you a voicemail which provided details for joining the teleconference.

The Commissioner asks you to advise the Commission by 4:00 pm on Friday 4 November 2022 if you wish to continue proceedings and another conciliation will be listed.

Alternatively, should you wish to discontinue your matter, please complete and return a Form 27; Request to discontinue proceeding. A link to this form can be found here.

By way of reminder, failure to attend a conference held by the Commission is a breach of the Industrial Relations (Tribunals) Rules 2011 (Qld) r 45. Non-attendance may be grounds for your matter being dismissed by the Commission.

This email is sent on behalf of the Chambers of Industrial Commissioner Pidgeon.

  1. [16]
    On 7 November 2022, Crown Law emailed the Commission requesting an update as to whether Ms Kerslake had responded to the above correspondence. That email stated:

Good morning Registrar,

I refer to your email below to Ms Kerslake (Applicant).

Can you please advise if a response has been received to this email, noting it was due by 4pm on Friday, 4 November 2022.

I look forward to hearing from you.

Regards,

…

  1. [17]
    Because the Complainant did not respond to the Commission's request to clarify whether she wished to continue her matter by 4:00 pm on 4 November 2022, I issued a Further Directions Order on 9 November 2022 which stated:

GIVEN the Complainant's failure to attend the conciliation before Commissioner Pidgeon on 2 November 2022, IT IS ORDERED:

  1. That the Complainant file in the Industrial Registry, and serve on the Respondents, written submissions (of no more than two pages in length and any relevant attachments) as to why the proceeding should not be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) by 4:00pm on 11 November 2022.
  1. That the Respondents jointly file in the Industrial Registry, and serve on the Complainant, written submissions in response to the Complainant's submissions (of no more than two pages in length and any relevant attachments) by 4:00pm on 15 November 2022.
  1. That, if needed, the Complainant file in the Industrial Registry, and serve on the Respondents, written submissions (of no more than one page in length and any relevant attachments) in reply to the submissions of the Respondents, by 4:00pm on 16 November 2022.
  1. The matter will then be dealt with on the papers pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld).
  1. [18]
    At the bottom of the Further Directions Order of 9 November 2022, the following message was noted:

FAILURE TO COMPLY WITH DIRECTIONS OF THE COMMISSION MAY LEAD TO THE MATTER BEING DISMISSED

  1. [19]
    The Complainant did not file written submissions by 4:00 pm on 11 November 2022 as directed.
  1. [20]
    Crown Law wrote to the Commission on 14 November 2022 requesting an update. After confirming that Ms Kerslake had failed to file submissions as directed, I determined to vacate the directions. Shortly thereafter, the Registry wrote to the parties on behalf of my chambers to vacate the Further Directions Order of 9 November 2022.
  1. [21]
    For the reasons that follow, I have determined that the Complainant's unexplained non-attendance at the conciliation listed on 2 November 2022, non-compliance with the directions and continued lack of communication with the Commission warrants the dismissal of this proceeding.

Rule 45

  1. [22]
    Rule 45 of the Industrial Relations (Tribunals Rules) 2011 (Qld) (the Tribunals Rules) is in the following terms:
  1. 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. [23]
    In Workers' Compensation Regulator v Varga,[3] O'Connor VP considered r 45(3) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'). In that decision, His Honour also referred to r 6 of the Rules which sets out the purpose of the 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.[4]

and stated that in his view, r 6 recognises the obligation placed, in this instance, on the Commission and implicitly on the parties to ensure the expeditious disposition of matters in the Commission.[5]

  1. [24]
    In that same decision, O'Connor VP referred to the decision of Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd,[6]  where their Honours Wilcox and Gummow JJ considered a similar provision under the Federal Court Rules and stated that the discretion conferred by the rule was:

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.[7]

  1. [25]
    In determining whether to exercise my discretion to dismiss the matter, I am also guided by Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd[8] where Hall P, considering an application to strike out for want of prosecution, cited with approval the reasoning of his Honour Thomas JA in Quinlan v Rothwell & Anor:

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.[9]

  1. [26]
    In Smith v Workers' Compensation Regulator, O'Connor DP (as he then was) said:

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. [27]
    The history of this matter from its initial referral following unsuccessful conciliation at the QHRC through to the failure to comply with directions is set out above at [1] – [21].  The history speaks for itself.
  1. [28]
    This is Ms Kerslake's complaint and it is not for the Respondent, nor the Commission, to run her matter for her.  It is not unusual in this jurisdiction for a Complainant to be self-represented. The QIRC website contains a wide range of resources, written in plain English and designed to support Complainants to understand the process involved when an application is filed or a complaint referred to the Commission.  Further to this, Ms Kerslake has been availed of communication from both the Respondent's representative and the Commission which would have clearly placed her on notice regarding her non-attendance at the conciliation and non-compliance with directions.
  1. [29]
    Section 451(1)(a) of the Industrial Relations Act 2016 (Qld) empowers the Commission to exercise its power on its own initiative.  I am satisfied that rule 45 of the Rules is enlivened as Ms Kerslake failed to attend the listed conciliation conference[11] and has failed to comply with a direction to file submissions as to why her matter should not be dismissed.[12] Ms Kerslake has been given sufficient opportunity to inform the Commission and the Respondent of any special circumstances warranting the provision of further time for her to engage with the process and, further, that she knew that the consequence of failing to comply with directions may lead to her matter being dismissed. Ms Kerslake has demonstrated that she is unwilling to co-operate or unable to do so.[13]
  1. [30]
    In the matter of Watchorn v State of Queensland (Queensland Health) ('Watchorn'),[14] McLennan IC considered the impact of the Applicant's non-compliance on the Respondent and observed:

By failing to attend the conference and respond to the Directions Orders, the Applicant party has and continues to extend the time between now and the determination of the Application. The Application was filed on 7 June 2022 – that is over three months ago. Whilst the Application is on foot, the Respondent continues 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.

The Applicant's default imposes an unacceptable burden on the Respondent, as they are unable to progress this matter to resolution or hearing without the Applicant's participation. The Respondent is not responsible for the continued delay and in fairness to the Respondent, this matter should not be permitted to drag on.

  1. [31]
    I agree with McLennan IC's observations in Watchorn. Ms Kerslake's initial complaint to the QHRC was made on 7 September 2021 and it is now over two months since it was referred to the Commission on 12 September 2022. As the history set out above demonstrates, the Respondent has at all times complied with directions and actively sought to progress the matter. It is unfair that the Respondent should continue to expend resources, time and energy on the matter in the face of the cumulative instances of non-compliance of the Complainant.
  1. [32]
    Further, it is essential that the Commission's time and resources are used efficiently to enable parties to have the issues between them resolved in a timely manner. For the foregoing reasons, the proceeding is dismissed pursuant to r 45(3)(a) of the Rules.
  1. [33]
    I so order.

Order

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

Footnotes

[1] Emphasis added.

[2] I take 'you lot' to mean the parties the email was addressed to, being the QIRC Registry and Crown Law on behalf of the Respondents.

[3] [2019] QIRC 028.

[4] Ibid [11].

[5] Ibid [12].

[6] [1990] 98 ALR 200.

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

[8] [2005] QIV 73; 180 QGIG 1209.

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

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

[11] Industrial Relations (Tribunals Rules) 2011 (Qld) rule 45(1)(a), (b).

[12] Ibid rule 45(2)(a)-(b).

[13] Lenijamar (n 5).

[14] [2022] QIRC 353, [42]-[43].

Close

Editorial Notes

  • Published Case Name:

    Kerslake v State of Queensland (Department of Transport and Main Roads) & Anor

  • Shortened Case Name:

    Kerslake v State of Queensland (Department of Transport and Main Roads)

  • MNC:

    [2022] QIRC 447

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    18 Nov 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 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 & 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
Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIV 73
2 citations
Jump To
Cite 1 - [2005] QIV 73
Cite 2 - [2005] QIV 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
Smith v Workers' Compensation Regulator [2017] QIRC 70
2 citations
Jump To
Cite 1 - [2017] QIRC 70
Cite 2 - [2017] QIRC 70
Watchorn v State of Queensland (Queensland Health) [2022] QIRC 353
2 citations
Jump To
Cite 1 - [2022] QIRC 353
Cite 2 - [2022] QIRC 353
Workers' Compensation Regulator v Varga [2019] QIRC 28
4 citations
Jump To
Cite 1 - [2019] QIRC 28
Cite 2 - [2019] QIRC 28
Cite 3 - [2019] QIRC 28
Cite 4 - [2019] QIRC 28

Cases Citing

Case NameFull CitationFrequency
Neil v Lee [2024] QIRC 932 citations
1

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