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  4. Robertson v McDonald's Australia Limited (No. 7) - [2023] QIRC 191

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Robertson v McDonald's Australia Limited (No. 7)[2023] QIRC 191

Robertson v McDonald's Australia Limited (No. 7)[2023] QIRC 191

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Robertson v McDonald's Australia Limited (No. 7) [2023] QIRC 191

PARTIES:

Robertson, B

(Complainant)

v

McDonald's Australia Limited

(Respondent)

CASE NO.:

AD/2021/7

PROCEEDING:

Applications in existing proceedings

DELIVERED ON:

23 June 2023

HEARING DATE:

23 June 2023

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDERS:

The orders contained in paragraph [40] of these reasons for decision.

CATCHWORDS:

COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – REASONABLE APPREHENSION OF BIAS GENERALLY – CONDUCT, INCLUDING PUBLISHED STATEMENTS – Complainant alleges age discrimination and the asking of unnecessary questions against the Respondent – Complainant filed and served statement of facts and contentions – application for disqualification on the ground of apprehended bias – whether any reasonable apprehension of bias arises – other applications in existing proceedings filed by the Complainant – application for disqualification on the ground of apprehended bias dismissed – Complainant's other applications in existing proceedings dismissed

LEGISLATION:

Industrial Relations (Tribunals) Rules 2011, r 49

CASES:

Attorney-General for the State of Queensland v Wood [2023] QSC 78

Dunstan v Orr [2022] FCA 1006

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 66 Fam LR 369

Robertson v McDonald's Australia Limited (No. 5) [2023] QIRC 092

Robertson v McDonald's Australia Limited (No. 6) [2023] QIRC 093

APPEARANCES:

The Complainant on his own behalf.

Ms L. Dearlove of Colin Biggers & Paisley and Ms N. Longhurst of McDonald's Australia Limited for the Respondent.

Reasons for Decision

Introduction

  1. [1]
    On 5 September 2020, Mr B. Robertson made a complaint to the Queensland Human Rights Commission ('QHRC') against McDonald's Australia Limited ('McDonald's'). The complaint concerned allegations, in the work area, of age discrimination and asking unnecessary questions contrary to the provisions of the Anti‑Discrimination Act 1991.
  2. [2]
    On 16 February 2021, the complaint was referred from the QHRC to this Commission ('Mr Robertson's complaint').
  3. [3]
    Mr Robertson's complaint has been allocated to me for hearing and determination.
  4. [4]
    I have, to date, made a number of interlocutory decisions in relation to Mr Robertson's complaint in response to a number of Applications in existing proceedings filed by          Mr Robertson.
  5. [5]
    Presently before me are four more applications made by Mr Robertson.  Mr Robertson seeks:
  • in respect of an Application in existing proceedings filed on 17 April 2023, an order that I make a determination that two notices to admit facts Mr Robertson served on McDonald's are reasonably able to be understood ('the notices to admit facts application');
  • in respect of an oral application made on 8 May 2023, an order that I recuse myself from further hearing and determining his complaint on the ground of apprehended bias ('the recusal application');
  • in respect of an Application in existing proceedings filed on 17 May 2023, an order that McDonald's provides to him the contract or deed between it and an organisation referred to as 'SmartRecruiter' or, in the alternative, an order that McDonald's provides to him the criteria used by 'SmartRecruiter' to screen Australian applicants for employment with McDonald's ('the SmartRecruiter application'); and
  • in respect of an Application in existing proceedings filed on 14 June 2023, an order that his complaint '… be discontinued' and then be '… heard' between 60 and 100 days after the date of that order ('the application to discontinue').
  1. [6]
    In the hearing today, Mr Robertson refused to make any oral submissions in support of these applications in the absence of him having legal advice, and he applied to have these applications adjourned until such time as he has obtained legal advice following him resolving a dispute he has with Legal Aid Queensland about the provision of further legal advice to him. For the same reasons I have given in an earlier interlocutory proceeding,[1] I refused to adjourn the hearing of Mr Robertson's applications for the reasons advanced by him. Despite the absence of oral submissions from Mr Robertson, I will assess the merits of these applications. Written submissions were made by the parties about the recusal application.  McDonald's also made oral submissions opposing the other relief sought by Mr Robertson.
  2. [7]
    For the reasons that follow:
    • the notice to admit facts application is dismissed;
    • the recusal application is dismissed;
    • the SmartRecruiter application is dismissed; and
    • the application to discontinue is dismissed.

The notice to admit facts application

  1. [8]
    On 28 March 2023, Mr Robertson filed and served, pursuant to r 49 of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'), a Notice to admit facts ('the First Notice').
  2. [9]
    On the same day, Mr Robertson filed and served a further Notice to admit facts which sought admissions about different facts ('the Second Notice').
  3. [10]
    On 6 April 2023, McDonald's filed and served responses, in respect of the First and Second Notices, stating that it did not understand the facts set out in the First and Second Notices but that, in any event, it disputed the facts.
  4. [11]
    The First Notice stated:
  1. That on 21/6/21 (+/-1 day )M.A.L had 7 "activities" in relation my social media account
  2. That M.A.L careers page has 2200 + vacancies listed (as at 27/3/23) not a single One states "Junior position". "Youth wages etc
  3. That employment applicant data is retained for Three years of (unsuccessful) M.A.L careers applicant/s
  4. That A.I is used by SmartRrcruiter [sic] to determine age/s and or age characteristics Junior/Senior and or younger older /youngest.
  5. That M.A.L and or Third party/ies has sought to determine the identity of the applicant in A.D.2021/7
  1. [12]
    The Second Notice stated:
  1. Employment application/s Via M.A.L online careers page (unsuccessful applicant/s) data is retained for Three years.
  2. That retention is or as understood to be Six Months in (personalized/identifiable applicant ) form.
  3. That unidentified retention is or as understood as to be 2.5 Years.
  4. That the Recent D.O.B question/s in M.A.L careers page has potential for financial benefit/s including, potential wages saving/s
  5. That council refused generally to provide information related to the applicant to the applicant ,without reasoning the refusal
  1. [13]
    This application by Mr Robertson is misconceived.
  2. [14]
    As Mr Robertson well knew at the date he made the present application seeking the Commission to make a '… determination' about the clarity of the First and Second Notices, being 17 April 2023, McDonald's, on 6 April 2023, had made an application to dismiss Mr Robertson's complaint of unlawful discrimination on the basis that Mr Robertson has repeatedly failed to file an appropriate statement of facts and contentions ('McDonald's application').
  3. [15]
    Even if I had the power to make the determination sought by Mr Robertson (which I doubt), there would be no utility in doing so until I make a determination about McDonald's application. This is because, assuming the facts referred to in the First and Second Notices have some relevance to an issue in dispute between Mr Robertson and McDonald's, the only litigious role that the First and Second Notices could play would be at the trial of Mr Robertson's complaint. For the same reasons, whether or not McDonald's responses served on Mr Robertson comply with r 49(2) of the Rules is not a matter that should or needs to be presently determined.
  4. [16]
    For these reasons, the notice to admit facts application must be dismissed.

The recusal application

  1. [17]
    In the recent decision of Attorney-General for the State of Queensland v Wood,[2] Davis J relevantly stated:

Legal principles

[13] It is well-established that the test for determination of applications for disqualification for apprehended bias is an objective one:

“[whether] a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”

[14] The application of the test is a two-part process. Firstly, “it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits”. Secondly, there must be a logical connection between that matter and the feared departure from the judge deciding the case on its merits.[3]

  1. [18]
    That these are the established legal principles was also recently confirmed by the High Court of Australia in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[4] where Kiefel CJ and Gageler J relevantly stated:
  1. The criterion for the determination of an apprehension of bias on the part of a judge was definitively stated in Ebner by reference to previous authority and has often been repeated. The criterion is whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". The "double might" serves to emphasise that the criterion is concerned with "possibility (real and not remote), not probability".
  1. Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair‑minded lay observer.[5]
  1. [19]
    The identification of the factor Mr Robertson claims might lead me to resolve his complaint on other than its legal and factual merits is, as best as I can make out from his written submissions, the fact that I have made an interlocutory decision not to stay his complaint whilst he attempts to resolve, with Legal Aid Queensland, his dispute with that organisation not to provide him with further legal advice.
  1. [20]
    It is true that I have made a decision not to grant an application made by Mr Robertson to stay or postpone the hearing and determination of his complaint because of the unresolved issue he has with Legal Aid Queensland about the provision of further legal assistance to him. However, there were meritorious reasons for declining to grant that application by Mr Robertson. In the decision,[6] where I determined that application, I relevantly stated:

[21] Also, as I have stated, it is not the function of the Commission to provide litigants with funding to obtain private legal advice. Whether or not LAQ is going to provide Mr Robertson with legal advice is a matter between it and Mr Robertson. Given the stage of Mr Robertson's complaint, I will not adjourn any proceeding in relation to his complaint pending any decision made by the LAQ about whether or not it will provide Mr Robertson with advice in relation to his complaint. Indeed, on the material before me, the present situation between Mr Robertson and LAQ is that he has made a complaint to it, a complaint which is pending, and that it has not provided him with further legal advice. As I understand his submissions, Mr Robertson has sought the intervention of the Attorney-General in relation to his complaint with LAQ.

[22] Mr Robertson's complaint was first referred to this Commission on 16 February 2021, almost two years ago. The resources of the Commission are not infinite. It is in the public interest that Mr Robertson's complaint be ultimately determined as soon as is reasonably possible. There are many other applicants in matters before this Commission who want their matters heard and determined. The continual delay in finalising Mr Robertson's complaint affects those applicants having their matters heard and determined. In addition, McDonald's has the right to have its application heard and determined in an expeditious way. Mr Robertson's unresolved complaint with LAQ is not a basis for any further delay in determining Mr Robertson's complaint.

  1. [21]
    In Dunstan v Orr,[7] Wigney J relevantly stated:
  1. Apprehended bias will not generally be established by “pointing to adverse findings” in the judgment, even where the findings involve strong adverse credit findings: Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 at [234] (Ward JA, Basten JA and Emmett AJA agreeing). Similarly, the fact that “a judge has not accepted submissions, or has taken a view of evidence in a way that one of the litigants disagrees with or asserts is wrong in principle, is not enough to establish a reasonable apprehension of bias”: Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366; [2007] NSWCA 83 at [95]; see also SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 at [36]; Spalla v St George Wholesale Finance Pty Ltd [2006] FCA 416 at [14]; DOQ17 v Australian Financial Security Authority (No 2) (2018) 363 ALR 681; [2018] FCA 1270 at [33]. In Hamod v State of New South Wales (No 11) [2008] NSWSC 967, Harrison J said (at [20]) that unfavourable decisions against a party “are not, and can never be, without more sufficient to support or establish the existence or manifestation of an objective apprehension of bias”.
  1. [22]
    Without Mr Robertson pointing to more, the fact that I did not grant his application to stay or adjourn the hearing and determination of his complaint, pending the resolution of his issue with Legal Aid Queensland, cannot reasonably be seen to be a factor that might lead me to resolve Mr Robertson's complaint on anything other than its legal and factual merits.
  1. [23]
    In any event, there is no logical connection between that factor and an apprehension that I may not decide his complaint on its merits. The fact that I did not grant Mr Robertson the adjournment does not give rise to the articulation of a logical connection between that factor and the apprehension that I will determine his complaint on anything other than the law and the facts proven before me. While the practical effect of my decision not to grant Mr Robertson the stay or adjournment means that Mr Robertson may well be representing himself against lawyers who appear for McDonald's, that does not logically mean, having regard to the law and the relevant facts that may be proven before me, I will not decide his complaint by reference to those matters.
  1. [24]
    Another factor pointed to by Mr Robertson said to give rise to an apprehension of bias on my part is my decision to strike out his second statement of facts and contentions filed on 30 September 2022.[8] I made this decision because Mr Robertson's second statement of facts and contentions did not put McDonald's on notice of the case that it had to meet in respect of Mr Robertson's complaint.[9]
  2. [25]
    For the same reasons given earlier, my decision to strike out that statement of facts and contentions cannot reasonably be seen to be a factor that might lead me to resolve Mr Robertson's complaint on anything other than its legal and factual merits. Further, because of the reasons I struck out that statement of facts and contentions, there is no logical connection between that factor and an apprehension that I may not decide his complaint on its merits. The decision to strike out that statement of facts and contentions was made to ensure procedural fairness to McDonald's.
  3. [26]
    For the sake of completeness, Mr Robertson also seems to submit that an apprehension of bias on my part arises because I have allegedly been indifferent to Mr Robertson's allegation that McDonald's lawyers have attempted to pervert the course of justice. This is a scandalous submission made against McDonald's lawyers that should not have been made. There is no evidence of any kind that may support Mr Robertson making that kind of an allegation. In all the matters that have come before me concerning Mr Robertson's complaint, I have not observed any improper conduct by McDonald's lawyers.
  4. [27]
    For these reasons, the recusal application must be dismissed.

The SmartRecruiter application

  1. [28]
    As best as I understand this application, Mr Robertson seeks an order that I compel McDonald's to provide to him the written agreement between McDonald's and SmartRecruiter that concerns the service that organisation provides to McDonald's for the recruitment of applicants for employment; or that I order McDonald's supply to Mr Robertson the criteria utilised by SmartRecruiter in providing such a service to McDonald's.
  2. [29]
    This application is misconceived for the same reasons given above in respect of the notices to admit facts application.
  3. [30]
    McDonald's presently have an application before the Commission to strike out Mr Robertson's complaint because he has consistently failed to serve on McDonald's a statement of facts and contentions that properly puts McDonald's on notice of the case it has to meet in respect of the complaint he made to the QHRC as referred to this Commission.
  4. [31]
    Whether or not any such written agreement between McDonald's and SmartRecruiter is relevant to Mr Robertson's complaint, or whether the criteria that may be utilised by SmartRecruiter in providing its services to McDonald's are relevant to Mr Robertson's complaint, cannot be presently determined until McDonald's is properly put on notice, by a statement of facts and contentions, of the case it has to come to meet.
  5. [32]
    For these reasons, the SmartRecruiter application must be dismissed.

The application to discontinue

  1. [33]
    In reality, this is an application to temporarily adjourn the hearing and determination of Mr Robertson's complaint.
  2. [34]
    I will not grant such an application. There are two reasons for this.
  3. [35]
    First, Mr Robertson's complaint against McDonald's was made to the QHRC on 5 September 2020, and that complaint was then referred by the QHRC to this Commission on 16 February 2021. The respondent, McDonald's, has been dealing with Mr Robertson's complaint in this Commission for nearly two and a half years. It is entitled to have the case against it heard and determined as efficiently as possible. Further, it is in the public interest that the Commission brings this litigation to finality as soon as is reasonably possible.
  4. [36]
    Secondly, as Mr Robertson well knows, McDonald's has brought an application to dismiss Mr Robertson's complaint on the basis of Mr Robertson's continued failure to serve on McDonald's a statement of facts and contentions that puts McDonald's on proper notice of the case it has to meet. Again, McDonald's is entitled to have that application heard and determined in an efficient manner.
  5. [37]
    For these reasons, I dismiss the application to discontinue.

Conclusion

  1. [38]
    For the reasons I have given, there is no merit in any of these four applications made by Mr Robertson.
  2. [39]
    All four applications must be dismissed.

Orders

  1. [40]
    I make the following orders:
  1. The Application in existing proceedings filed by the Complainant on 17 April 2023 in Case No. AD/2021/7 is dismissed.
  2. The oral application made by the Complainant on 8 May 2023 in Case No. AD/2021/7 is dismissed.
  3. The Application in existing proceedings filed by the Complainant on 17 May 2023 in Case No. AD/2021/7 is dismissed.
  4. The Application in existing proceedings filed by the Complainant on 14 June 2023 in Case No. AD/2021/7 is dismissed

I certify that the preceding [40] paragraphs are a true copy of the Reasons for Decision of Deputy President Merrell.

J.W. MERRELL, Deputy President:   ………………………………

(Signature)

23 June 2023

Footnotes

[1] Robertson v McDonald's Australia Limited (No. 5) [2023] QIRC 092, [21]-[22].

[2] [2023] QSC 78.

[3] Citations omitted.

[4] [2023] HCA 15; (2023) 66 Fam LR 369.

[5] Citations omitted. See also Gordon J [67]-[71], Edelman J [162], Steward J [194], Gleeson J [225] and              Jagot J [273]-[274].

[6] Robertson v McDonald's Australia Limited (No. 5) [2023] QIRC 092.

[7] [2022] FCA 1006.

[8] Robertson v McDonald's Australia Limited (No. 6) [2023] QIRC 093 at [57].

[9] Ibid [33]-[40].

Close

Editorial Notes

  • Published Case Name:

    Robertson v McDonald's Australia Limited (No. 7)

  • Shortened Case Name:

    Robertson v McDonald's Australia Limited (No. 7)

  • MNC:

    [2023] QIRC 191

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    23 Jun 2023

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
Attorney-General v Wood [2023] QSC 78
2 citations
Jump To
Cite 1 - [2023] QSC 78
Cite 2 - [2023] QSC 78
DOQ17 v Australian Financial Security Authority (No 2) (2018) 363 ALR 681
1 citation
Jump To
Cite 1 - (2018) 363 ALR 681
DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270
1 citation
Jump To
Cite 1 - [2018] FCA 1270
Dunstan v Orr [2022] FCA 1006
2 citations
Jump To
Cite 1 - [2022] FCA 1006
Cite 2 - [2022] FCA 1006
Hamod v State of New South Wales (No 11) [2008] NSWSC 967
1 citation
Jump To
Cite 1 - [2008] NSWSC 967
Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366
1 citation
Jump To
Cite 1 - (2007) 170 A Crim R 366
Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83
1 citation
Jump To
Cite 1 - [2007] NSWCA 83
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
2 citations
Jump To
Cite 1 - [2023] HCA 15
Cite 2 - [2023] HCA 15
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural. Affairs (2023) 66 Fam LR 369
2 citations
Jump To
Cite 1 - (2023) 66 Fam LR 369
Cite 2 - (2023) 66 Fam LR 369
Robertson v McDonald's Australia Limited (No. 5) [2023] QIRC 92
3 citations
Jump To
Cite 1 - [2023] QIRC 92
Cite 2 - [2023] QIRC 92
Cite 3 - [2023] QIRC 92
Robertson v McDonald's Australia Limited (No. 6) [2023] QIRC 93
2 citations
Jump To
Cite 1 - [2023] QIRC 93
Cite 2 - [2023] QIRC 93
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128
1 citation
Jump To
Cite 1 - (2016) 332 ALR 128
Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88
1 citation
Jump To
Cite 1 - [2016] NSWCA 88
Spalla v St George Wholesale Finance Pty Ltd [2006] FCA 416
1 citation
Jump To
Cite 1 - [2006] FCA 416
SZCOS v Minister for Immigration & Citizenship [2008] FCA 570
1 citation
Jump To
Cite 1 - [2008] FCA 570

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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