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  4. McDowell v Cash Converters (Stores) Pty Ltd - [2022] QIRC 99

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McDowell v Cash Converters (Stores) Pty Ltd[2022] QIRC 99

McDowell v Cash Converters (Stores) Pty Ltd[2022] QIRC 99

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

McDowell v Cash Converters (Stores) Pty Ltd & Anor [2022] QIRC 099

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:

23 March 2022

MEMBER:

Knight IC

HEARD AT:

On the papers

ORDERS:

  1. The application in existing proceedings filed 11 May 2021 is granted.
  2. The time for the Complainant to file and serve the expert report of Andrea Haddock is extended to 4.00 pm on 30 March 2022.

CATCHWORDS:

INDUSTRIAL LAW – ANTI-DISCRIMINATION – application in existing proceedings seeking leave to file and rely upon expert report out of time – application granted

LEGISLATION:

Industrial Relations (Tribunal) Rules 2011 (Qld) rr 6, 45

CASES:

Cronin v Department of Agriculture, Fisheries and Forestry [2015] QIRC 018

House v The King (1936) 55 CLR 499

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

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

Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129

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

Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182

Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189

Ulowski v Miller (1968) SASR 227

APPEARANCES:

Alexander Law for the Complainant

HWL Ebsworth Lawyers for the Respondents

Reasons for Decision

  1. [1]
    This is an application in existing proceedings filed by the Complainant to the substantive proceedings, Ms Chantal McDowell ('the Complainant'), seeking leave to file and rely upon an expert report out of time. The application is opposed by the Respondents to the substantive proceedings, Cash Converters (Stores) Pty Ltd and Mr Christopher Inglis (together, 'the Respondents').

Background

  1. [2]
    On 15 September 2020 I made directions requiring the parties to supply to each other any expert reports to be relied upon at hearing by 27 November 2020. The parties were then required to file those reports by 11 December 2020. On 4 December 2020 the Complainant wrote to the Commission requesting an extension to the directions, noting she had recently instructed Counsel and COVID-19 restrictions and Christmas closures had contributed to her need for the extension.
  2. [3]
    On 7 December 2020, I made directions vacating the earlier directions and ordering as follows:
  1. 2.That the parties supply to each other, but not file in the Industrial Registry, an outline of the evidence to be given by each lay witness at the Hearing (one A4 page per witness), as well as any expert reports that will be relied upon, by 4.00 pm 29 January 2021.
  1. 3.That the parties jointly file in the Industrial Registry by 4.00 pm on 12 February 2021:

…

(c) expert reports.

  1. [4]
    The Complainant did not supply any expert reports to the Respondents in accordance with Direction 2 above, nor did she file any such reports in the Industrial Registry in accordance with Direction 3(c).

Relevant Principles

  1. [5]
    The Industrial Relations (Tribunal) Rules 2011 (Qld) ('the Rules') relevantly provide:

45 Failure to attend or to comply with directions order

…

(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.

(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. [6]
    As is apparent from the above, where a party fails to comply with a directions order, the Commission has broad powers to deal with the proceeding as it considers appropriate.
  2. [7]
    The issue for determination, here, is solely whether leave ought to be granted for the expert report to be filed out of time and subsequently relied upon at hearing.
  3. [8]
    The power to extend the time to do something is fundamentally an exercise of discretion, however it 'must be exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion.'[1]
  4. [9]
    The factors relevant to considering whether the Commission ought to exercise its power to grant an extension of time are generally well established.[2]
  5. [10]
    In Ulowski v Miller,[3] Bray CJ considered that in exercising its discretion to allow an extension of time, the Court should not be fettered by any absolute or inflexible rules. However, his Honour then observed that, generally, the five paramount factors the Court will have regard to are the:
  1. (a)
    length of the delay;
  2. (b)
    explanation for the delay;
  3. (c)
    conduct of the respondent;
  4. (d)
    prejudice to the applicant if the discretion is not exercised; and
  5. (e)
    prejudice to the respondent if the discretion is exercised.[4]
  1. [11]
    Similar guiding principles were also referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen,[5] namely, that:
  • special circumstances need not be shown, but an application for extension must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;
  • action taken by the applicant, other than by making an application under the relevant Act, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished;
  • any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of extension, although the mere absence of prejudice is not enough to justify the grant of an extension; and
  • the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted; and considerations of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.[6]
  1. [12]
    In making my decision I will be guided by the principles set out above.

Length of Delay

  1. [13]
    The present application seeking leave to file and rely upon the expert report was filed on 11 May 2021. This equates to a delay of approximately three and a half months after the date for compliance in Direction 3 in seeking to file the expert report.
  2. [14]
    It is not entirely clear to the Commission when the Complainant made disclosure of the report to the Respondents as she should have done in accordance with Direction 2. Although disputed by the Complainant in reply submissions,[7] the Respondents submit that until at least 1 April 2021 they were under the impression that no expert evidence would be filed by the Complainant.[8] Even if the report was disclosed to the Respondents on that date, this amounts to a delay of at least two months.
  3. [15]
    The Complainant made no comment in her submissions as to the length of the delay. The Respondents, however, argued the delay was unreasonable, particularly having regard to the delay caused by the extension to the directions, as well as the protracted nature of the proceedings to date.[9]

Consideration

  1. [16]
    A delay of three and half months is not an insignificant period of time. This is particularly so having regard to the fact that the report is dated 8 March 2021, but was not sought to be filed until 11 May 2021. I consider the length of the delay weighs against granting leave for the report to be filed.

Explanation for Delay

  1. [17]
    The Complainant is funded by Legal Aid Queensland ('LAQ').[10] She explains the delay as resulting from being required to obtain a funding extension from LAQ to commission the expert report.[11] The Complainant sought to request the additional funding on 8 December 2020, however, due to illness of the relevant person, the request was not made until 13 January 2021.[12]
  2. [18]
    On 28 January 2021, LAQ funding was granted for a psychological brief assessment and report to be prepared.[13] An expert psychologist was briefed on 22 February 2021 and the Complainant attended for the psychological assessment on 2 March 2021.[14] The expert report was produced on 8 March 2021.[15]
  3. [19]
    In her reply submissions, the Complainant attributed the delay in filing the report after it was obtained to the need to seek advice from Counsel as to whether the present application ought to be brought. [16]
  4. [20]
    The Complainant's representative argues the failure to file the report as directed was an administrative failure, and not the fault of the Complainant.[17] Further, the Complainant notes there has not been repeated non-compliance with the Commission's directions and the Complainant has not acted in such a way as to indicate an inability or unwillingness to cooperate to achieve a hearing.[18]
  5. [21]
    Around the same time, between 15 February 2021 and 31 March 2021, the Complainant submits the parties were in a period of negotiation during which it was hoped the proceedings may be resolved.[19]
  6. [22]
    The Respondents highlight that expert reports were first required by the directions order issued 15 September 2020, and were to be provided by 27 November 2020.[20] However, the Complainant failed to seek funding for such reports until December 2020, nearly three months after the directions were made.[21]
  7. [23]
    Further, the Respondents note the Complainant's representatives were aware that the deadline to provide expert evidence, after it had been extended, was 29 January 2021, yet the Complainant made no further request for an extension to the directions.[22]
  8. [24]
    As mentioned briefly above, the Respondents further argue that until 1 April 2021, they were under the impression the Complainant did not intend to rely upon any expert evidence.[23] In this respect the Respondents note:
  1. (a)
    a statement of agreed facts and a trial plan for hearing were filed on 12 February 2021, neither of which indicated the Complainant intended to adduce expert evidence at hearing;
  1. (b)
    the Commission contacted the Complainant's representative on 18 February 2021, prompting the Complainant to confirm that no expert witnesses would be called;
  2. (c)
    the period of negotiation between the parties did not prevent the Complainant from indicating she intended to obtain an expert report; and
  3. (d)
    the Respondents were unaware of any delay or difficulties with funding for the purpose of an expert report until notified by the Complainant on 1 April 2021.

Consideration

  1. [25]
    Whether there is a 'good reason' for the delay requires consideration of the surrounding circumstances.[24] In some cases delays of several weeks have been considered not to be excessive.[25] However, those cases are ordinarily accompanied by a substantial explanation as to the cause of the delay.[26]
  2. [26]
    The Complainant attributes the delay in obtaining the expert report to the requirement to obtain further LAQ funding, and the delay thereafter to seeking advice from Counsel as to the present application. She characterises her failure as 'administrative' in nature.
  3. [27]
    I accept there are often difficulties and delays associated with obtaining LAQ funding. I also accept there has not been repeated non-compliance of directions on the Complainant's behalf.
  4. [28]
    However, I am not persuaded there is a reasonable or sufficient explanation for the delay. This is so for several reasons.
  5. [29]
    Firstly, as highlighted by the Respondents, the earlier directions of 15 September 2020 required expert reports to be filed by 27 November 2020, however, the Complainant failed to take steps to obtain the further funding from LAQ until 8 December 2020. Relevantly, in her request for an extension to the September directions, the Complainant made no reference to any requirement or difficulty in obtaining further funds.
  6. [30]
    Secondly, the Complainant was granted further funding on 28 January 2021 and briefed the expert psychologist on 22 February 2021. In circumstances where expert reports were required to be exchanged by 29 January 2021, and filed by 12 February 2021, the Complainant was clearly aware she could not comply with the directions yet failed to seek any further extension to the dates.
  7. [31]
    Thirdly, when the expert report was not filed, the Commission contacted the parties seeking advice as to whether there would be expert evidence.
  8. [32]
    The only response received from the Complainant was to indicate the parties were in a period of negotiation.
  9. [33]
    As noted by the Respondents, these negotiations did not prevent the Complainant from disclosing her intention to obtain expert evidence, particularly where she had clearly already taken steps to obtain that evidence.
  10. [34]
    Fourthly, once the expert report was obtained on 8 March 2021, there was a further delay of two and a half months in filing the present application. While I accept the Complainant was entitled to consider the report and whether to seek leave to file it, a period of 11 weeks is, in my view, excessive.
  11. [35]
    Having regard to the circumstances surrounding the delay, I do not consider the Complainant took adequate steps to mitigate her failure to file the expert report by the directed date. Consequently, I am not persuaded she has disclosed a good reason for the delay.

Conduct of the Respondents

  1. [36]
    The Respondents submit they were unaware the Complainant intended to file expert evidence until 1 April 2021 and proceeded on that basis.[27]

Consideration

  1. [37]
    As already mentioned above, consistent with the Complainant's failure to obtain an expert report by the directed date, on 12 February 2021 an agreed statement of facts was filed which made no mention of any expert evidence on the part of the Complainant.
  2. [38]
    While I note the Complainant submits she raised the issue of delay in obtaining expert reports on at least three occasions, each of these occasions was after 12 February 2021 when the report was required to be filed.
  3. [39]
    There are limited submissions as to what passed between the parties in respect of this issue, however, on the material before me, one can appreciate why the Respondents proceeded on the basis no expert evidence would be filed until they were formally notified that was not the case on 1 April 2021.

Prejudice to the Parties

  1. [40]
    The Complainant argues leave to file the report out of time will not prejudice the Respondents because the report:
  1. (a)
    does not disclose any new matter;
  1. (b)
    is very brief, being only six pages in total;
  2. (c)
    contains findings similar to those contained in the WorkCover Statutory Claims report already disclosed to the Respondents and should therefore not cause surprise to the Respondents; and
  3. (d)
    does not have the 'potential to significantly alter the progression and finalisation of an application before the Commission',[28] particularly as hearing dates are yet to be set.[29]
  1. [41]
    Conversely, the Complainant argues that if leave is not granted, the Complainant will suffer prejudice as the report is directly relevant to matters critical to determining the substantive proceedings, including quantum of any damages, and the report was not available by the due date for filing in any event.[30]
  2. [42]
    The Respondents argue they have been prejudiced by the delay in filing the expert report as they have been required to incur additional legal costs, including the costs involved with defending the present application.[31]
  3. [43]
    Further, as mentioned above, the Respondents submit they were unaware the Complainant intended to rely upon expert evidence until her correspondence of 1 April 2021.[32] The Complainant rejects this submission, stating the issue of LAQ funding and the delay in obtaining expert reports was raised with the Respondents on one occasion in February 2021, and two occasions in March 2021.[33]
  4. [44]
    In reply submissions, the Complainant highlights the Respondents' reliance on delay noting they have separately brought an application to stay the substantive proceedings which will, necessarily, delay matters.[34]

Consideration

  1. [45]
    The Complainant submits she will suffer prejudice if the report is not filed in that it is directly relevant to matters in dispute, including the quantum of damages. She also relies on the fact that the report was not available by the due date for filing in any event.
  2. [46]
    The Respondents argue they have been prejudiced by the delay in filing, and the additional costs associated in the present application.
  3. [47]
    The purpose of the Rules as provided in r 6 is as follows:

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.[35]

  1. [48]
    It is certainly unfortunate additional expense, which might reasonably have been avoided had the Complainant disclosed her difficulties, has been incurred by virtue of the delay in filing the expert report and the present application. However, I do not consider the Respondents' decision to defend this application to have caused any prejudice to them beyond that ordinarily incurred in the course of litigation.
  2. [49]
    Further, as highlighted by the Complainant, it is difficult to accept any delay in proceeding has caused the Respondents prejudice in circumstances where they have actively sought to stay the substantive proceedings pending another matter.
  3. [50]
    However, in circumstances where material has already been filed, I accept that granting leave to the Complainant may cause some prejudice to the Respondents.
  4. [51]
    In my view, the prejudice arises not by virtue of the delay in obtaining the report, but by virtue of the fact that the Respondents, and the Commission, were not put on notice that the Complainant intended to rely on expert evidence and had taken steps to obtain the report.
  5. [52]
    The Respondents are entitled to know the case against them and have proceeded on the basis that there would be no expert evidence led. There is no mention of such evidence in any of the material filed to date such that I consider, if I decide to grant leave, it may be necessary for both parties to revise and amend their material.
  6. [53]
    Likewise, I consider it would be incumbent on the Commission to allow the Respondents a suitable opportunity to obtain their own expert evidence, if necessary, in response to that of the Complainant.
  7. [54]
    However, having regard to the purpose of the Rules and the just disposition of this matter, I consider it would be unfair not to allow the Complainant the opportunity to put forward sufficient material in support of her position.
  8. [55]
    Although the failure to file the expert report has certainly inconvenienced the parties and the Commission, I consider the prejudice the Complainant may suffer if leave is not granted, outweighs the inconvenience already suffered and any prejudice which may arise if leave is granted. That is so because of the expert report's potential relevance to the matters in dispute, including the quantum of damages that may be available to the Complainant.
  9. [56]
    While this may cause some delay to the resolution of this matter, I note this matter is not yet listed for hearing, and there is an outstanding application to stay the proceedings in any event.

Conclusion

  1. [57]
    But for the likelihood the expert report may be relevant to matters in dispute, including the quantum of damages, and that the delay in filing can be partially attributed to a requirement to obtain approval for funding, I would otherwise have declined to grant leave to the Complainant to allow the expert report to be filed.
  2. [58]
    However, on balance, in those circumstances and where the parties have not yet notified the Commission of their readiness to proceed to hearing, where the Respondents in the proceedings have sought a stay of the substantive hearing in any event, and where I am satisfied the Complainant may suffer some prejudice if the expert report is not filed, I propose to grant the application.
  3. [59]
    For the reasons given above, I am persuaded it is appropriate in this case to allow the expert report to be filed beyond the date ordered.
  4. [60]
    I order accordingly.

Order

  1. The application in existing proceedings filed 11 May 2021 is granted.
  2. The time for the Complainant to file and serve the expert report of Andrea Haddock is extended to 4.00 pm on 30 March 2022.

Footnotes

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

[2] Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129, [3]-[5] ('Lloyd'); Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182, [31]-[32] ('Sandhu').

[3] (1968) SASR 227.

[4] Ibid 280.

[5] (1984) 3 FCR 344.

[6] Ibid 348-349.

[7] Complainant's Reply Submissions filed 2 July 2021, [2].

[8] Respondents' Submissions filed 25 June 2021, [15]-[16].

[9] Ibid [22].

[10] Complainant's Submissions filed 31 May 2021, [1].

[11] Ibid [2].

[12] Ibid [3].

[13] Ibid [4].

[14] Ibid [5]-[6].

[15] Ibid [7], Report of Andrea Haddock (psychologist) attached to submissions.

[16] Complainant's Reply Submissions filed 2 July 2021, [3].

[17] Complainant's Submissions filed 31 May 2021, [16].

[18] Ibid [17], citing Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd (1990) FCR 388; Paul Scott v State of Queensland & Ors [2019] QIRC 115, [10].

[19] Ibid [8].

[20] Respondents' Submissions filed 25 June 2021, [5]-[6].

[21] Ibid [5].

[22] Ibid [10].

[23] Ibid [15].

[24] Sandhu (n 2) [38].

[25] Lloyd (n 2) [40]; Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189.

[26] Ibid.

[27] Respondents' Submissions filed 25 June 2021, [15]-[16].

[28] Citing Cronin v Department of Agriculture, Fisheries and Forestry [2015] QIRC 018, [20].

[29] Complainant's Submissions filed 31 May 2021, [14].

[30] Ibid [15].

[31] Respondents' Submissions filed 25 June 2021, [23].

[32] Ibid [15]-[16].

[33] Complainant's Reply Submissions filed 2 July 2021, [2].

[34] Ibid [5].

[35] Emphasis added.

Close

Editorial Notes

  • Published Case Name:

    McDowell v Cash Converters (Stores) Pty Ltd & Anor

  • Shortened Case Name:

    McDowell v Cash Converters (Stores) Pty Ltd

  • MNC:

    [2022] QIRC 99

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    23 Mar 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
Cronin v Department of Agriculture, Fisheries and Forestry [2015] QIRC 18
2 citations
Jump To
Cite 1 - [2015] QIRC 18
Cite 2 - [2015] QIRC 18
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Hunter Valley Dev Pty Ltd v Cohen (1984) 3 FCR 344
3 citations
Jump To
Cite 1 - (1984) 3 FCR 344
Cite 2 - (1984) 3 FCR 344
Cite 3 - (1984) 3 FCR 344
Lenijamar Pty Ltd and Others v AGC Advances Ltd (1990) FCR 388
2 citations
Jump To
Cite 1 - (1990) FCR 388
Cite 2 - (1990) FCR 388
Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129
3 citations
Jump To
Cite 1 - [2013] QIRC 129
Cite 2 - [2013] QIRC 129
Cite 3 - [2013] QIRC 129
Paul Scott v State of Queensland [2019] QIRC 115
2 citations
Jump To
Cite 1 - [2019] QIRC 115
Cite 2 - [2019] QIRC 115
Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182
3 citations
Jump To
Cite 1 - [2019] QIRC 182
Cite 2 - [2019] QIRC 182
Cite 3 - [2019] QIRC 182
Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189
2 citations
Jump To
Cite 1 - [2009] 190 QGIG 189
Cite 2 - [2009] 190 QGIG 189
Ulowski v Miller (1968) SASR 227
3 citations
Jump To
Cite 1 - (1968) SASR 227
Cite 2 - (1968) SASR 227
Cite 3 - (1968) SASR 227

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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