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Rae v State of Queensland (Queensland Treasury)[2024] QIRC 200

Rae v State of Queensland (Queensland Treasury)[2024] QIRC 200

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Rae v State of Queensland (Queensland Treasury) & Ors [2024] QIRC 200

PARTIES:

Rae, Darryl

(Applicant)

v

State of Queensland (Queensland Treasury)

(First Respondent)

and

Garvey, Kylie

(Second Respondent) (formerly the Third Respondent)

CASE NO.:

AD/2023/120

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

15 August 2024

MEMBER:

Power IC

HEARD AT:

Brisbane

ORDER:

The orders are contained in paragraph [28] of these reasons for decision.

CATCHWORDS:

ANTI-DISCRIMINATION ACT – QUEENSLAND – INDUSTRIAL TRIBUNAL RULES – Interlocutory application to strike out parts of the Complainant's amended statement of facts and contentions – where Directions Order was not followed – where Respondents have not been put on notice of case to meet – interlocutory application allowed in part.

LEGISLATION:

Anti-Discrimination Act 1991 (Qld)

Industrial Relations Act 2016 (Qld), s 451

Industrial Relations (Tribunals) Rules 2011 (Qld) r 46, 41(2)(o)

CASES:

Dare v Pulham (1982) 148 CLR 658

Hutinel v Gardenhouse Australia Pty Ltd [2023] QIRC 085

Queensland Police Union of Employees v HS First Inc. [2023] QIRC 030

Reasons for Decision

Introduction

  1. [1]
    On 26 October 2023, Mr Darryl Rae ('the Complainant') filed a complaint pursuant to the Anti‑Discrimination Act 1991 (Qld) ('the AD Act') against the State of Queensland (Queensland Treasury) and Ms Kylie Garvey ('the Respondents').[1]
  1. [2]
    A Further Directions Order was issued by the Commission on 9 November 2023 directing the Complainant to file and serve a Statement of Facts and Contentions ('SOFC'). The Complainant filed his SOFC on 8 January 2024. The Respondent filed a 'Form 4 – Application in existing proceedings' on 24 January 2024 requesting that the Complainant be ordered to refile and serve an amended Statement of Facts and Contentions which included sufficient particulars to comply with order 2 of the Further Directions Order.
  1. [3]
    A mention was held on 15 February 2024 during which I explained to the Complainant, who is not legally represented, the difficulties with his SOFC and the need to file an amended SOFC that was compliant with the Further Directions Order issued on 9 November 2023.
  1. [4]
    Following the mention, a Further Directions Order (3) was issued directing the Complainant to file an amended SOFC. On 22 March 2024, the Complainant filed the same SOFC with a minor number of changes. These changes did not address the concerns raised at the mention.
  1. [5]
    On 11 April 2024, the Respondents filed a second Form 4 Application in which they sought orders striking out a number of paragraphs from the Complainant's SOFC. The Respondents submitted via an annexure to the Form 4 Application that the relevant paragraphs in the Complainant's SOFC failed to plead a cause of action in the matter, or otherwise lacked sufficient particulars to allow the Respondents a fair opportunity to respond.
  1. [6]
    The matter was heard on 3 May 2024 and the Complainant was ordered to file a Further Amended SOFC with a number of paragraphs struck out, and with other paragraphs amended to reflect the details required in the Further Directions Order (3). The Complainant was advised that if the Further Amended SOFC did not reflect these orders, a hearing would be called.
  1. [7]
    A Further Directions Order (7) was issued on 3 May 2024 directing the Complainant to file the Further Amended SOFC. The Respondents were also directed to file any objections to the Complainant's Further Amended SOFC. The Complainant filed his Further Amended SOFC on 31 May 2024, and the Respondents filed their objections on 14 June 2024.
  1. [8]
    A Further Directions Order (8) was issued on 18 June 2024 directing the Complainant to file submissions in reply to the Respondents' objections.
  1. [9]
    The Complainant filed submissions in accordance with the Further Directions Orders (8) and parties made oral submissions at a hearing of the Application on 30 July 2024.
  1. Legislative framework
  1. [10]
    Rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the IR Rules') is a source of power for the Commission to dismiss a proceeding or make further orders following the failure of a party to comply with a directions order –
  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. [11]
    Section 451(2)(c) of the Industrial Relations Act 2016 (Qld) ('the IR Act') is outlined as follows–
  1. (1)
    The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  1. (2)
    Without limiting subsection (1) , the commission in proceedings may—
  1. (a)
    give directions about the hearing of a matter; or
  1. (b)
    make a decision it considers appropriate, irrespective of the relief sought by a party; or
  1. (c)
    make an order it considers appropriate.
  1. [12]
    As considered in Queensland Police Union of Employees v HS First Inc.,[2] s 451 of the IR Act confers a broad range of general powers on the Commission including the power to dismiss a party's SOFC.

Consideration

  1. [13]
    The Complainant's complaint to the QHRC was outlined in the following terms –

On 28 July 2021 at 16:08 I was contacted by an employee of Queensland Treasury on …offering me an interview for a employment opportunity that I applied for some week before [sic]. At the time I was working in Lockhart River, a remote Aboriginal community in Far North Queensland, where I did not have access to my electronic diary as internet coverage is poor. I accepted the verbal offer of an interview that I had been offered and the Treasury officer advised me that I will have an email sent to me advising me of the date, time and other details. When I advised the officer that I was working in Lockhart River, she asked me if I was Aboriginal, despite this not being an Identified position along with my age as she said that I sounded old of the phone [sic]. I advised the officer that I have a mild disability which I had discussed with Mr David Matthews form [sic] Queensland Treasury in the past. The following weeks Queensland went into a lockdown for COVID. Several weeks later I telephone Queensland Treasury, to ask the status of the interview progress which I was told that they have already been held. I made a complaint to Queensland Treasury, including the Under Treasurer who I believe they have not been honest and transparent about the original process and the investigation. It is evident that I have had my human rights breached as I identify as an Aboriginal person, a person with a disability and based on my age, as per the questions from the officer who rang me to offer the interview.

The actions from Queensland Treasury have caused me anxiety, stress and the loss of my self worth. I have also suffered a financial loss and had my credibility and integrity attacked by Treasury officers.

  1. [14]
    The Further Directions Order, Further Directions Order (3), and Further Directions Order (7) issued to parties contained the following direction regarding the Complainant's SOFC –
  1. 1.
    That the Complainant's statement of facts and contentions must:
  1. (a)
    if the complaint referred by the Queensland Human Rights Commission (the QHRC) contained allegations of direct, and, or in the alternative, indirect discrimination, identify the attribute or attributes, within the meaning of s 7 of the Anti-Discrimination Act 1991 (the AD Act), upon which each allegation is made;
  1. (b)
    for a complaint of direct discrimination:
  1. (i)
    identify the section or sections of the AD Act alleged to have been contravened;
  1. (ii)
    identify the name or names of the persons alleged to have contravened the AD Act;
  1. (iii)
    if the Complainant relies upon an actual person as the comparator, state the name of the comparator and why that person is an appropriate comparator;
  1. (iv)
    in the alternative, if the Complainant relies upon a hypothetical comparator as the appropriate comparator, describe the hypothetical comparator;
  1. (v)
    describe how the Complainant contends he was treated less favourably, than the appropriate comparator, by the person or persons alleged to have contravened the AD Act;
  1. (c)
    for a complaint of indirect discrimination:
  1. (i)
    identify the section or sections of the AD Act alleged to have been contravened;
  1. (ii)
    identify the term the Complainant alleges was imposed by the Respondents (the term);
  1. (iii)
    state why the Complainant could not comply or was not able to comply with the term;
  1. (iv)
    state how the Complainant contends a higher proportion of persons without the Complainant's attribute could comply or were able to comply with the term; and;
  1. (v)
    state why the term is not reasonable;
  1. (d)
    …
  1. (e)
    if the complaint referred by the QHRC included an allegation of making an unlawful request for information:
  1. (i)
    state the name of the person or persons who engaged in the conduct alleged to be an unlawful request for information within the meaning of s 124 of the AD Act;
  1. (ii)
    state the exact circumstances upon which the Complainant relies to claim the conduct alleged was an unlawful request for information within the meaning of s 124 of the AD Act;
  1. (f)
    …
  1. (g)
    if the complaint referred by the QHRC included any other allegation of a work-related contravention of the AD Act:
  1. (i)
    state the name of the person or persons who engaged in the conduct alleged to be the work-related contravention within the meaning of the AD Act;
  1. (ii)
    state the section of the AD Act alleged to have been contravened; and
  1. (iii)
    state the exact circumstances upon which the Complainant relies to claim the conduct alleged was a work-related contravention of the AD Act;
  1. (h)
    having regard to s 209(1) of the AD Act, state all the orders sought by the Complainant;
  1. (i)
    …
  1. (j)
    …
  1. [15]
    The Complainant's SOFC did not comply with the directions in the multiple Further Directions Orders issued in this matter. Following the first Form 4 Application filed by the Respondent and a mention held in which the deficiencies were explained, the Complainant was given a further opportunity to file an Amended SOFC.
  1. [16]
    The Complainant's Amended SOFC was similarly deficient and non-compliant with the Directions Order.
  1. [17]
    The Respondent's second Form 4 Application again raised deficiencies with the Complainant's Amended SOFC. These deficiencies were explained again to the Complainant at the hearing held on 3 May 2024. 
  1. [18]
    The Complainant did not address these deficiencies in the Further Amended SOFC filed on 31 May 2024. As per order 3 of the Further Directions Order (7), the Respondents filed objections that outlined in detail the deficiencies in the Complainant's Further Amended SOFC. The Complainant did not address any of these deficiencies in his submissions in reply.
  1. [19]
    The purpose of documents such as a SOFC is to identify material facts upon which the parties intend to rely and to define the issues to be tried with clarity sufficient to enable the parties to have an opportunity to meet the case advanced against them.[3] The Further Directions Order included detailed instructions to ensure that the SOFC does in fact fulfil this purpose.
  1. [20]
    Although I am mindful that the Complainant is unrepresented, I note the statement of Vice President O'Connor in Hutinel v Gardenhouse Australia Pty Ltd [2023] QIRC 085 –

Although the Complainant is unrepresented, this does not excuse her non-compliance. A lack of legal representation is a misfortune, not a privilege. In Robertson v Hollings, 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.

[citations omitted]

…[4]

  1. [21]
    In circumstances where the Complainant has been given multiple opportunities to comply with the Further Directions Order, I see no utility in directing the Complainant to re-file his SOFC to outline the matters that have not been addressed.
  1. [22]
    The following paragraphs of the Complainant's SOFC fail to comply with order 2 of the Directions Order in that they do not plead a cause of action –
  • The final sentence of paragraph 1;
  • Paragraphs 3, 6, 7, 8, 9, 12, 13, 14, 15, 16, 18, 22, 55, 68,
  1. [23]
    Paragraphs 31, 32, 33 contain irrelevant allegations of fact.
  1. [24]
    Paragraphs 50 and 51 do not contain sufficient particulars to allow the Respondents a fair opportunity to respond. The assertions made in these paragraphs may form the basis of evidence to be led at hearing, but they do not comply with order 2. 
  1. [25]
    Paragraphs 6, 7, 9, 60, 62 of the Complainant's SOFC involve allegations that were beyond the scope of the Complainant's referred complaint from the QHRC and, in the absence of an application to expand the scope or extend time, are outside the jurisdiction of matters before this Commission.
  1. [26]
    I note the Respondent's submissions regarding paragraphs 20, 23, 24, 27, 62, 63, 64, 65, 66. Whilst the paragraphs contain some ambiguity, in my view the Respondents are able to respond to the content of these paragraphs.
  1. [27]
    I note the Respondents' objection to paragraphs 2, 5, 17, 21 and 40 on the basis that the Complainant has failed to identify which 'Respondent' is alleged to have been involved in the alleged contravention. It appears that throughout the SOFC the Complainant has used the term 'Respondent' to refer to the First Respondent and the term 'GARVIE' to refer to the Second Respondent. The Respondents should prepare their response on that basis.
  1. Order
  1. [28]
    I make the following order:
  1. Pursuant to s 451(2)(c) of the Industrial Relations Act 2016, that the following sections of the Complainant's amended Statement of Facts and Contentions be struck out –
  • The final sentence of paragraph 1;
  • Paragraphs 3, 6, 7, 8, 9, 12, 13, 14, 15, 16, 18, 22, 55, 68,
  • Paragraphs 31, 32, 33
  • Paragraphs 50 and 51
  • Paragraphs 6, 7, 9, 60, 62
  1. That the Complainant file and serve an amended Statement of Facts and Contentions in accordance with Order 1 by 4pm on 23 August 2024.

Footnotes

[1] The initial Second Respondent was subsequently removed from the claim at the request of the Complainant.

[2] [2023] QIRC 030, 27.

[3] Dare v Pulham (1982) 148 CLR 658, 664 (in reference to pleadings).

[4] Hutinel v Gardenhouse Australia Pty Ltd [2023] QIRC 085, 50.

Close

Editorial Notes

  • Published Case Name:

    Rae v State of Queensland (Queensland Treasury) & Ors

  • Shortened Case Name:

    Rae v State of Queensland (Queensland Treasury)

  • MNC:

    [2024] QIRC 200

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    15 Aug 2024

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
Dare v Pulham (1982) 148 CLR 658
2 citations
Jump To
Cite 1 - (1982) 148 CLR 658
Cite 2 - (1982) 148 CLR 658
Hutinel v Gardenhouse Australia Pty Ltd [2023] QIRC 85
3 citations
Jump To
Cite 1 - [2023] QIRC 85
Cite 2 - [2023] QIRC 85
Cite 3 - [2023] QIRC 85
Queensland Police Union of Employees v HS First Inc. [2023] QIRC 30
2 citations
Jump To
Cite 1 - [2023] QIRC 30
Cite 2 - [2023] QIRC 30

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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