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  4. Hutinel v Gardenhouse Australia Pty Ltd - [2023] QIRC 85

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Hutinel v Gardenhouse Australia Pty Ltd[2023] QIRC 85

Hutinel v Gardenhouse Australia Pty Ltd[2023] QIRC 85

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Hutinel v Gardenhouse Australia Pty Ltd [2023] QIRC 085

PARTIES:

Hutinel, Tatiana

(Complainant)

v

Gardenhouse Australia Pty Ltd

(Respondent)

CASE NO:

AD/2020/85

PROCEEDING:

Applications in existing proceedings

DELIVERED ON:

20 March 2023

HEARING DATE:

16 August 2022

MEMBER:

O'Connor VP

HEARD AT:

Brisbane

ORDER:

  1. Pursuant to r 231(6) of the Industrial Relations (Tribunals) Rules 2011 (Qld) AD/2020/85 is struck out.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – where complaint from Queensland Human Rights Commission relates to work or the work-related area – where complainant alleges impairment discrimination – where complainant failed to comply with the Industrial Relations (Tribunals) Rules 2011 (Qld) – where Industrial Registry issued notice to show cause as no action taken by the complainant for over one year – where matter may be struck out if no action taken for at least one year – where complainant sought complaint be held in abeyance – where respondent filed application to dismiss proceedings – where complainant shows no intention of prosecuting her complaint – whether further proceedings necessary or desirable in the public interest – whether respondent will be prejudiced if the proceedings are not dismissed – determined complaint be struck out.

LEGISLATION:

Industrial Relations Act 2016, s 3, s 451

Industrial Relations (Tribunals) Rules 2011 (Qld), r 5, r 6, r 45, r 230, r 231

Anti-Discrimination Act 1991, s 166

CASES:

Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18

Gambaro v Workers' Compensation Regulator [2017] ICQ 005

Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209

Quinlan v Rothwell [2002] 1 Qd R 647; [2001] QCA 176

Robertson v Hollings [2009] QCA 303

APPEARANCES:

Ms T. Hutinel representing herself.

Ms S. Casey, Ashurst Australia, Solicitors for the Respondent.

Reasons for Decision

  1. [1]
    Gardenhouse Australia Pty Ltd ('the Respondent')[1] in this matter filed an Application in existing proceedings to dismiss AD/2020/85 (the Discrimination Proceedings) on 13 September 2022.
  1. [2]
    On 30 September 2022 Ms Tatiana Hutinel, ('the Complainant') filed an Application in existing proceedings enclosing two schedules: one in relation to the workers' compensation appeal proceedings (WC/2020/144) and one in relation to the Discrimination Proceedings (AD/2020/85).
  1. [3]
    This decision refers to the Respondent's Application to dismiss in the first instance.  It is noted the Complainant's Application in existing proceedings was filed after the Respondent's Application to dismiss.  The following sets out the relevant circumstances of this matter.

Background

  1. [4]
    The Complainant made a complaint to the Queensland Human Rights Commission ('the QHRC') on 8 May 2020 ('the Complaint') and this was referred to the Queensland Industrial Relations Commission ('the Commission') on 2 September 2020 under s 166(1)(a) of the Anti‑Discrimination Act 1991 ('the AD Act').
  1. [5]
    The Industrial Registry provided the parties with a copy of the Referral made by the QHRC and issued Directions on 2 September 2020 for the parties to file and serve an application for leave to be represented.
  1. [6]
    On 1 September 2020 the Complainant emailed the Industrial Registry (not through her solicitor), updating her contact details and advising, "I decided not to have the representation of Maurice Blackburn Lawyers in the second step of the process".

The Complainant emailed the Industrial Registry on 3 September 2020 requesting that the Discrimination Proceedings be held in abeyance for the following reasons:

  1. in or about June 2020 the Complainant was too unwell to provide the Workers' Compensation Regulator ('the Regulator') with relevant documentation and comply with procedures; and
  1. the application for workers' compensation and the QHRC Complaint relate to the same employer and the 'same ownership group of companies'.
  1. [7]
    Following the Complainant's email, the Industrial Registry on 3 September 2020 issued a Directions Order vacating the orders dated 2 September 2020 and advising the matter will be placed in abeyance until notified otherwise by the Complainant that she is ready to proceed.
  1. [8]
    The Respondent submits they were not afforded an opportunity to respond to the Complainant's request before the matter was placed in abeyance by the Industrial Registry.[2]
  1. [9]
    On 29 October 2020 the Complainant filed an appeal of the decision by the Regulator to reject her application for workers' compensation (WC/2020/144) ('the Workers' Compensation Claim') in the Commission.
  1. [10]
    On 16 December 2020 the Industrial Registry emailed the Complainant seeking an update in relation to the Discrimination Proceedings.  The Complainant responded on 17 December 2020 seeking the Discrimination Proceedings continue 'on hold in abeyance' until the finalisation of the Workcover appeal.
  1. [11]
    On 7 March 2022, approximately 15 months after the last communication, the Respondent emailed the Industrial Registry noting that the matter had lapsed pursuant to r 230 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the IR (Tribunals) Rules' and seeking that the Registrar take action under r 231(1) of the IR (Tribunals) Rules to strike the matter out.
  1. [12]
    Rule 230 of the IR (Tribunals) Rules apply where no action has been taken by an applicant for at least one year and provides as follows:

230 Lapse of proceeding after at least 1 year's delay

  1. (1)
    This rule applies if -
  1. (a)
    an application starting a proceeding has been filed; and
  1. (b)
     no action has been taken by the applicant in relation to the application for at least 1 year since the last action was taken by the applicant in the application.
  1. (2)
     A party may only take further action on the application with an order of the court, commission or registrar.
  1. (3)
     An application for an order under subrule (2) must be in the approved form and state the following -
  1. (a)
    the steps taken in the proceeding;
  1. (b)
    an explanation for the circumstances of the delay;
  1. (c)
    the steps (including a timetable) proposed to be taken to progress the proceeding;
  1. (d)
    any prejudice suffered or likely to be suffered by another party to the proceeding if the application starting the proceeding is not struck out;
  1. (e)
    the merits of the proceeding;
  1. (f)
    why the court, commission or registrar should make the order despite the delay.
  1. [13]
    Rule 231 of the IR (Tribunals) Rules enables the Registrar to strike out an application and provides:

231 Striking out proceeding after at least 1 year's delay

  1. (1)
    This rule applies if -
  1. (a)
    an application starting a proceeding has been filed; and
  1. (b)
     no action has been taken by the applicant in relation to the application for at least 1 year since the last action was taken by the applicant in the application.
  1. (2)
    The registrar may, by notice, require the applicant to show cause in writing, within 21 days after the day the notice is given, why the application starting the proceeding should not be struck out.
  1. (3)
    The notice must state that the application may be struck out if the applicant does not show cause within the time stated in the notice.
  1. (4)
    The applicant's response to the notice to show cause must state the following -
  1. (a)
    the steps taken in the proceeding;
  1. (b)
    an explanation for the circumstances of the delay;
  1. (c)
    the steps (including a timetable) proposed to be taken to progress the proceeding;
  1. (d)
     any prejudice suffered or likely to be suffered by another party to the proceeding if the application is not struck out;
  1. (e)
    the merits of the proceeding;
  1. (f)
    why the court, commission or registrar should not strike out the application despite the delay.
  1. (5)
    After considering any response by the applicant to the notice to show cause, the registrar may do 1 of the following -
  1. (a)
    strike out the application;
  1. (b)
    list the matter of showing cause for hearing, with or without directions, before -
  1. (i)
    if the application is to be decided by the court - the court; or
  1. (ii)
    if the application is to be decided by the commission - the commission; or
  1. (iii)
    if the application is to be decided by the registrar - the registrar;
  1. (c)
    list the application for hearing, with or without directions;
  1. (d)
    make another order dealing with the application the registrar considers appropriate.
  1. (6)
     On a hearing of the matter of showing cause, the court, commission or registrar may do 1 of the following -
  1. (a)
    strike out the application;
  1. (b)
    list the application for hearing, with or without directions;
  1. (c)
    make another order dealing with the application the court, commission or registrar considers appropriate.
  1. (7)
    The striking out of the application starting the proceeding under this rule also disposes of any other application in the proceeding that has not been disposed of, other than in relation to costs.
  1. (8)
    If the application is struck out under this rule, the registrar must give the parties notice that the court, commission or registrar has struck out the application.
  1. [14]
    On 25 March 2022 the Deputy Industrial Registrar issued a Notice to Show Cause to the parties pursuant to r 231(1) of the IR (Tribunals) Rules.  The Complainant was required to show cause in writing within 21 days why the application should not be struck out and the response was required to be in accordance with r 231(4) of the IR (Tribunals Rules).
  1. [15]
    The Complainant provided a response to the Notice to Show Cause on 13 April 2022 seeking the matter be held in abeyance pending the outcome of the Workers' Compensation appeal proceedings.
  1. [16]
    On 27 June 2022 the Complainant emailed the Industrial Registry to enquire whether a 'final certificate' had been issued.  The Industrial Registry responded on 30 June 2022 to the effect that as there had been no discontinuance filed a 'final certificate' had not been issued.
  1. [17]
    The matter was listed for a Mention on 16 August 2022 following which directions were issued for the Respondent to file an Application to dismiss proceeding AD/2020/85 and for the Complainant to file a response.  The parties were also directed to file outlines of argument in respect of the Respondent's Application to dismiss.
  1. [18]
    A request to discontinue the Workers' Compensation Claim was filed by the Complainant on or about 31 August 2022 and approved by the Commission on 1 September 2022.

Application to dismiss proceedings

  1. [19]
    In the Application to dismiss filed on 13 September 2022, the Respondent seeks an order pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 ('the IR Act') dismissing the Complaint in its entirety on the basis that further proceedings by the Commission are not necessary or desirable in the public interest.  Due to the unreasonable delay as well as no foreseeable progress by the Complainant, the Respondent will suffer prejudice if the proceedings are not dismissed.
  1. [20]
    The Respondent states for the following reasons, it is evident that the Complainant does not intend to prosecute her Complaint:
  1. there was no reasonable basis to delay the prosecution of the Complaint pending the resolution of the Workers' Compensation claim;
  2. in any event, the Complainant filed an application to discontinue her Workers' Compensation claim on 31 August 2022.  No action has been taken to progress the Complaint since that time; and
  3. the Complainant has not taken any steps to progress the proceedings, including filing an application for an order under r 230 of the IR Rules, and has not demonstrated that progress is foreseeable.
  1. [21]
    The Complainant in her Application in existing proceedings filed on 30 September 2022 refers to various issues in the attached Schedule including the allegations, conduct constituting unlawful discrimination, effect of the discrimination and the remedies sought.
  1. [22]
    In her submissions filed on 1 November 2022 the Complainant explains in two schedules her response to the Directions Order of 17 August 2022, the content of which is consistent with earlier documents provided.  There is no intention of how to progress the proceedings despite the Respondent's Application to dismiss.
  1. [23]
    The Respondent submits the factual matters stated in the Complainant's submissions are irrelevant to the Application to dismiss and the submissions do not:
  • demonstrate any intention to take steps to progress the proceedings, either now or at all;
  • make any submissions with respect to the prejudice which will be suffered by the Respondent should the proceedings continue;
  • provide any reason why the Application to dismiss should not be granted; and
  • provide any reason why the proceedings are necessary or desirable in the public interest.[3]

Further proceedings are not necessary or desirable in the public interest

  1. [24]
    The Commission has the power to dismiss the Complaint under s 541 of the IR Act which provides:

541 Decisions generally

The court or commission may, in an industrial cause do any of the following -

  1. (a)
     make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;
  1. (b)
     dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -
  1. (i)
    the cause is trivial; or
  1. (ii)
    further proceedings by the court or commission are not necessary or desirable in the public interest;
  1. (c)
    order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate.
  1. [25]
    The Respondent submits the phrase "in the public interest" imports a discretionary value judgement and this is confined to the objects of the relevant legislation.[4]  Section 3 of the IR Act provides the main purpose of the legislation is:

3 Main purpose of Act

The main purpose of this Act is to provide for a framework for cooperative industrial relations that -

  1. (a)
    is fair and balanced; and
  1. (b)
    supports the delivery of high quality services, economic prosperity and social justice for Queenslanders.
  1. [26]
    To the extent it may confine the exercise of the Commission's discretion under s 541 of the IR Act, the purpose of the Anti-Discrimination Act 1991 (Qld) ('the AD Act') relevant to the Complaint is:

…  is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation.[5]

  1. [27]
    The public interest lies in the balancing of interests and is a question of fact and degree.[6]  In Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd,[7] his Honour President Hall, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell[8] as follows:

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. [28]
    Whilst Quinlan v Rothwell[10] related to the application of the Uniform Civil Procedure Rules 1999 (Qld) in respect of Application to dismiss for want of prosecution, the reasoning of Thomas JA has equal application to the current proceedings.
  1. [29]
    The Respondent submits there is a public interest in bringing the Discrimination Proceedings to an end as they have not been prosecuted efficiently in circumstances where the reason for the delay is unreasonable, progress by the Complainant is not foreseeable and undue prejudice will be caused should the proceedings progress.  These reasons far outweigh any public interest in allowing the Complainant to prosecute her Complaint if ever she was likely to proceed.
  1. [30]
    In the Application to dismiss, the Respondent submits it is evident that the Complainant does not intend to prosecute her Complaint for the following grounds:

Ground 1 - The Complainant shows no intention of prosecuting her Complaint

  1. [31]
    The Respondent contends there was no reasonable basis to delay the prosecution of the Complaint pending the resolution of the Workers' Compensation claim.  The Workers' Compensation claim is immaterial to the QHRC Complaint which is only concerned with whether the Complainant had an impairment, and whether she was treated less favourably because of the said impairment.  There was no reason the Complainant could not have prosecuted both proceedings at the same time.[11]
  1. [32]
    The Respondent submits that even after the Complainant discontinued her Workers' Compensation claim on 31 August 2022 and received the Application to Dismiss, the Complainant has not:
  1. indicated any desire to progress the Discrimination Proceedings;
  2. taken any action to progress the Discrimination Proceedings; or
  3. endeavoured to re-enliven the Discrimination Proceedings.[12]
  1. [33]
    In her response, the Complainant does not expressly state that she opposes the Application to Dismiss.

Ground 2 - The Respondent will suffer prejudice if the proceedings are not dismissed

  1. [34]
    The Respondent submits that as best can be understood, the Complainant's position as set out in the Complaint dated 8 May 2020 alleges that the Respondent unlawfully discriminated against her:
  1. in an email, made "disparaging" comments about her taking personal leave;
  2. when it implemented a "sham" redundancy; and
  3. following the decision to make her position redundant, required the Complainant to provide a written response about how the company can ameliorate the effects of the decision on the Complainant's position, in circumstances where she was on personal leave.[13]
  1. [35]
    In the submissions of the Respondent, the facts relied upon by the Complainant concern Ms Marcela Reyes, who has at all times been employed by Laboratorios GardenHouse Farmaceutica S.A., the Chilean company which owned and sold GardenHouse Australia to Aristo Pharma Pty Ltd on 1 February 2020.  Further, the Complainant asserts that her workloads increased, and she commenced experiencing symptoms of psychological illness from approximately November 2019 to February 2020, which pre-dates the sale of GardenHouse Australia.
  1. [36]
    Should the Discrimination Proceedings not be dismissed, the Respondent as the new owner of GardenHouse Australia, would suffer prejudice because:
  1. the Respondent will be unable to deal with matters pertaining to the facts which arose prior to the sale;
  1. it will be very difficult to respond to matters relating to Ms Reyes or any other representative of Laboratorios GardenHouse Farmaceutica S.A. in circumstances where they reside in Chile, have no obligation to assist the Respondent in the defence of the Discrimination Proceedings, and are unlikely to assist given the effluxion of time since the sale; and
  1. with the effluxion of time, the memory of relevant witnesses naturally diminishes.[14]
  1. [37]
    Notwithstanding the above, the Complainant's response traverses facts and issues not previously raised in the QHRC Complaint.  The Respondent does not have a clear understanding of whether these matters are relevant to the alleged unlawful discrimination or are supplementary issues to the actual Complaint.
  1. [38]
    The Respondent submits the Complainant's extensive response, fails to provide any reason why the Application to Dismiss should not be granted.  Further, it does not disclose any intention to progress the Discrimination Proceedings, either now or at all.
  1. [39]
    The Complainant's response attaches numerous documents, which are irrelevant as they relate to the workers' compensation proceedings (WC/2020/144) which have been withdrawn.

The Rules

  1. [40]
    Rule 5 of the IR (Tribunals) Rules provides that the Rules apply to a proceeding before the Court, the Commission, a Magistrate or the Registrar.
  1. [41]
    Rule 6 of the IR (Tribunals) Rules sets out the purpose of the rules as follows:

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. [42]
    Clearly 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.

Consideration

  1. [43]
    The Notice to Show Cause of 25 March 2022 required the Complainant to provide a response within 21 days.  In particular, the Complainant was required pursuant to r 231(2) of the IR (Tribunals) Rules to address the following:
  • the steps taken in the proceedings;
  • the explanation for the circumstances of the delay;
  • the steps (including a timetable) proposed to be taken to progress the proceedings;
  • any prejudice suffered or likely to be suffered by another party to the proceedings if the application is not struck out;
  • the merits of the proceedings; and
  • why the Court, Commission or Registrar should not strike out the application despite the delay.
  1. [44]
    On 13 April 2022, the Complainant responded in the following terms:

This letter has been presented to you as a response of the NOTICE TO SHOW CAUSE received on the 25th March 2022.

I am requesting to hold in abeyance the AD/2020/85 on the Queensland Industrial Relation Commission (QIRC).

The reason are:

  1. The Work Cover QLD Claim ... was rejected on the 1St October 2020 by Review Officer QIRC Report Ref ... The Reason for decision Ref .... includes important information with errors in content, form and time; presented by Respondent.  I disagreed with the decision of the Regulator and I contracted Lawyers.

The appeal process has been managed by Lawyer representing the complaint in Queensland Industrial Relation Commission - Brisbane

  1. During the Appeal process WC/2020/144. The Regulator has been reviewing all the information presented on the claim and requesting medical reports regarding to the General Practitioner Diagnosis: Burnout at work / Work related mental trauma diagnosis on the 10th Feb 2020.

This extra information has been created a delay during the process plus the extensive documents to support the Appeal.

  1. The merit of proceeding with both claims is to reach out Respect, Justice and Fair treatment during the presentation of a Medical Certificate in a work place in Australia and "To do the right thing" under Australian Values" by Respecting The Fair Work Act 2009", as well.

I respectfully request the matter be held abeyance pending the outcome of the QIRC Appeal which I expect to prospect [sic] Hearing in the next months.

  1. [45]
    The explanation (if it can be properly described as such) provided by the Complainant does not reasonably explain why the matter ought not to be struck out.   Critically, the Complainant has failed to explain the merits of the current proceedings.
  1. [46]
    The Complainant filed on 30 September 2022 an Application in Existing Proceedings. The application sought no relief but was filed, it was said, to provide 'Clarification about Form 4 sent by Garden House Australia related to No. WC/2020/144'.  That matter was unrelated to these proceedings but involved a workers' compensation appeal which was discontinued on 31 August 2022. 
  1. [47]
    The purpose of the IR Tribunals Rules is to provide for the just and expeditious disposition of proceedings in the Commission.[15]  It is contrary to this purpose for the Complainant to file protracted or ambiguous applications, or to supplement an application with large amounts of material that will not assist the Commission to determine the matter.
  1. [48]
    Much of the material filed by the Complainant rehearses the matters the subject of the Workers' Compensation proceedings all of which have now been discontinued and which are not relevant to these proceedings.
  1. [49]
    It is not the responsibility of the Commission to trawl through the vast amount of filed material to determine the Complainant's claim.
  1. [50]
    Although the Complainant is unrepresented, this does not excuse her non-compliance.  A lack of legal representation is a misfortune, not a privilege.[16]  In Robertson v Hollings,[17] Keane JA (with whom Fraser JA and Cullinane J agreed) said:

[L]itigation is not a learning experience.  The courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to the other parties.  It is no doubt unfortunate for Mrs Robertson that she does not have the benefit of competent legal advice and representation; but her misfortune in this regard does not license her to proceed unconstrained by the rules according to which adversarial litigation is conducted.[18]

  1. [51]
    I am satisfied that the Complainant was given an ample opportunity to explain her position, including the ability to provide a reasonable explanation as to what steps had been taken in the proceeding; to outline the circumstances for the delay; and to demonstrate the merits of the proceedings.
  1. [52]
    At the mention of this matter on 16 August 2022, the Complainant was clearly put on notice that the Respondent was seeking orders that the proceedings be struck out because of the Complainant's inordinate delay in progressing the matter and otherwise for failing to comply with the IR (Tribunals) Rules.
  1. [53]
    Moreover, I accept that the Complainant has failed to demonstrate a desire to prosecute this matter before the Commission.  Nothing in the material before the Commission gives me any confidence that the matter will proceed expeditiously if it was allowed to continue.
  1. [54]
    The ability to properly articulate the Complainant's case creates both procedural and substantive unfairness for the Respondent.  That inability to articulate her claim leaves the Respondent in the position of not being able to have any certainty about the case that they are expected to meet.
  1. [55]
    I also consider that the continued non-compliance with the IR (Tribunals) Rules creates an impediment to the just and expeditious disposition of the business of the Commission at a minimum expense.
  1. [56]
    The Respondent has sought orders that the proceedings be struck out in reliance on s 541(b)(ii) of the IR Act.
  1. [57]
    Section 541 applies only to an "industrial cause", which is defined as an "industrial dispute" or "industrial matter".[19]  No argument was advanced as to the applicability of s 541 to Anti-Discrimination matters and, in the absence of such a submission, I am not satisfied that s 541 of the IR Act has application.  In my view, it is clearly arguable that a matter before the Commission under the AD Act does not fall within this definition and, consequently, the discretion under s 541 is not enlivened.  In these circumstances, I will rely on the IR (Tribunals) Rules.
  1. [58]
    Rule 230 of the IR (Tribunals) Rules establishes a procedure which applies in circumstances where no action has been taken in relation to an application for at least one year since the last action was taken by the applicant in the application.  Rule 230 (2) provides that a party may only take further action with an order of the court, commission, or registrar.  Rule 230 (3) requires an application for an order to take further action to be in the approved form and to be accompanied by certain information.  No application under that rule has been made by the Complainant.
  1. [59]
    Rule 231 (6) of the IR (Tribunals) Rules gives the Commission a discretion to strike out the application.  As set out above, the response to the Notice to Show Cause does not demonstrate any steps taken to progress the proceedings; explains the delay only by reference to a desire to progress a workers' compensation appeal before the Commission which was ultimately discontinued; has not proposed any steps to be taken to progress the proceedings; has not made any submission in respect of any prejudice which would be suffered by the Respondent should the proceedings continue; has not set out the merits of the proceeding; and has not established why the proceedings ought to continue despite the delay.
  1. [60]
    The discretion under Rule 231(6) of the IR (Tribunals) Rules to dismiss this proceeding has, in my view, been enlivened.  The inordinate delay in progressing the matter; the prejudice likely to be suffered by the Respondent; the uncertainty associated with the Complainant's ability to progress the proceedings in an expeditious manner; the failure to comply with the rules; together with the Complainant's inability to clearly articulate the merits of the proceeding are all appropriate grounds to exercise the discretion to dismiss the proceeding.

Conclusion

  1. [61]
    In the circumstances of this matter, I consider it is appropriate to strike out the proceedings.
  1. [62]
    Accordingly, I order that:
  1. Pursuant to r 231(6) of the Industrial Relations (Tribunals) Rules 2011 (Qld) AD/2020/85 is struck out.

Footnotes

[1] The Respondent's Solicitors advised in their Outline of Argument filed on 18 October 2022 that GardenHouse Australia Pty Ltd, ACN 151 192 602 changed its business name on 7 August 2020 to 'Actor Pharmaceuticals Pty Ltd', [48].

[2] Respondent's outline of argument filed 18 October 2022, [11].

[3] Respondent's outline of argument in reply filed 8 November 2022, [3], [4].

[4] Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18, [24].

[5] Anti-Discrimination Act 1991, s 6.

[6] Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18, [28].

[7] (2005) 180 QGIG 1209.

[8] [2002] 1 Qd R 647; [2001] QCA 176.

[9] Ibid, [29].

[10] [2002] 1 Qd R 647; [2001] QCA 176.

[11] Respondent's outline of argument filed 18 October 2022, [32], [33], [35].

[12] Ibid, [36]-[37].

[13] Ibid, [39].

[14] Respondent's outline of argument filed 18 October 2022, [41].

[15] Industrial Relations (Tribunals) Rules 2011, r 6.

[16] Gambaro v Workers’ Compensation Regulator [2017] ICQ 005.

[17] [2009] QCA 303.

[18] Ibid, [11].

[19] Industrial Relations Act 2016, Schedule 5.

Close

Editorial Notes

  • Published Case Name:

    Hutinel v Gardenhouse Australia Pty Ltd

  • Shortened Case Name:

    Hutinel v Gardenhouse Australia Pty Ltd

  • MNC:

    [2023] QIRC 85

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    20 Mar 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
Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18
3 citations
Jump To
Cite 1 - [2019] ICQ 18
Cite 2 - [2019] ICQ 18
Cite 3 - [2019] ICQ 18
Gambaro v Workers' Compensation Regulator [2017] ICQ 5
2 citations
Jump To
Cite 1 - [2017] ICQ 5
Cite 2 - [2017] ICQ 5
Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209
2 citations
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Cite 1 - (2005) 180 QGIG 1209
Cite 2 - (2005) 180 QGIG 1209
Quinlan v Rothwell[2002] 1 Qd R 647; [2001] QCA 176
7 citations
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Cite 1 - [2001] QCA 176
Cite 2 - [2001] QCA 176
Cite 3 - [2001] QCA 176
Cite 4 - [2002] 1 Qd R 647
Cite 5 - [2002] 1 Qd R 647
Cite 6 - [2002] 1 Qd R 647
Cite 7 - [2002] 1 Qd R 647
Robertson v Hollings [2009] QCA 303
3 citations
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Cite 1 - [2009] QCA 303
Cite 2 - [2009] QCA 303
Cite 3 - [2009] QCA 303

Cases Citing

Case NameFull CitationFrequency
Rae v State of Queensland (Queensland Treasury) [2024] QIRC 2003 citations
Smith & Sherlock v State of Queensland (Queensland Health) (No. 3) [2024] QIRC 382 citations
1

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