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Khattabi v QANTAS Airways Limited[2025] QIRC 173

Khattabi v QANTAS Airways Limited[2025] QIRC 173

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Khattabi v QANTAS Airways Limited & Ors [2025] QIRC 173

PARTIES:

Khattabi, Yahya

(Complainant)

v

QANTAS Airways Limited

(First Respondent)

&

Flight Training Adelaide Pty Ltd

(Second Respondent)

&

Steyn, Pierre

(Third Respondent)

CASE NO:

AD/2024/68

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

31 July 2025

MEMBER:

Knight IC

HEARD AT:

Brisbane

ORDERS:

  1. The application is granted; and
  1. Pursuant to r 45(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld), matter AD/2024/68 is dismissed.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION ON THE BASIS OF RACE – APPLICATION IN EXISTING PROCEEDINGS – APPLICATION TO DISMISS – Directions Orders issued by the Queensland Industrial Relations Commission in relation to the conciliation and case management of the Complaint – where Complainant failed to comply with directions orders – where application brought by the First Respondent to dismiss proceeding – consideration of r 45 of the Industrial Relations (Tribunal) Rules 2011 – application granted – Complainant's substantive proceeding is dismissed

LEGISLATION:

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

CASES:

Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2012] QSC 413

Fellows v State of Queensland (Department of Education, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor) [2024] QIRC 120

House v R (1936) 55 CLR 499

Kelsey v Logan City Council & Ors [2022] QCA 238 [37]

Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388

Marijanovic v Chalmers Industries Pty Ltd and Davis [2008] QADT 4

Pittaway v Noosa Cat Australia Pty Ltd & Ors [2016] QCA 4

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

Quinlan v Rothwell [2002] 1 Qd R 647

Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service) & Ors (No 2) [2021] QIRC 324

Smith v Workers' Compensation Regulator [2017] QIRC 070

Wong v Medical Board of Queensland & Ors [2006] QADT 41

Workers' Compensation Regulator v Varga [2019] QIRC 028

Reasons for Decision

Introduction

  1. [1]
    On 28 October 2024, the Queensland Human Rights Commission (QHRC) referred a complaint made by Mr Khattabi against QANTAS Airways Limited (the First Respondent; Qantas), Flight Training Adelaide Pty Ltd (the Second Respondent; FTA) and Mr Pierre Steyn (the Third Respondent) to the Queensland Industrial Relations Commission (QIRC).[1]
  1. [2]
    The complaint concerned allegations in the work area of race discrimination.[2]
  1. [3]
    Mr Khattabi's complaint also alleged he had been the subject of an unlawful request for information in the area of work in contravention of the Anti-Discrimination Act 1991 (Qld) (AD Act).[3]
  1. [4]
    In November 2024, the file was allocated to my Chambers for case management and conciliation.[4]
  1. [5]
    Aspects of the complaint filed by Mr Khattabi related to events which occurred more than twelve months prior to the date it was filed with the QHRC.[5]
  1. [6]
    On 27 March 2025, Qantas filed an application in existing proceedings.[6] The application was made on two grounds. Firstly, Qantas sought orders permitting it to bring an application in respect of the out‑of‑time components of Mr Khattabi’s complaint. Secondly, within the same application, Qantas sought orders requiring Mr Khattabi, in the substantive proceedings, to file an amended Statement of Facts and Contentions (SOFC).
  1. [7]
    On 13 May 2025, Qantas made a separate application in existing proceedings seeking an order that the complaint be dismissed pursuant to rule 45(3) of the Industrial Relations (Tribunal) Rules 2011 (Qld) (the Tribunal Rules), due to Mr Khattabi's repeated non-compliance with directions issued by the Commission related to the progression of both the substantive matter and the separate application referred to earlier in this decision.[7]
  1. [8]
    The question for my determination is whether I should dismiss the proceedings.

History of the Proceedings

  1. [9]
    The management of an Anti-Discrimination complaint of this type encompasses a broad range of functions, including convening conciliations with a view to resolving the complaint, issuing Directions Orders, and resolving interlocutory matters prior to hearing where conciliation does not resolve the matter.
  1. [10]
    In this regard, it is useful to summarise the history of the proceeding and case management of this complaint before the Commission.
  1. [11]
    On 29 October 2024, the day after Mr Khattabi’s complaint was referred to the QIRC, the Industrial Registry provided the parties with a link to the Anti-Discrimination Guide (AD Guide).[8]
  1. [12]
    The AD Guide provides an overview of how the QIRC manages Anti-Discrimination complaints referred from the QHRC under the AD Act. It is written primarily for self-represented parties and details how referrals from the QHRC are processed, setting out the roles of complainants and respondents, time limits, and guidance on preparing a Statement of Facts and Contentions for different types of claims.
  1. [13]
    The guide also provides a 'roadmap' of these matters at the QIRC and outlines what to expect at conferences, which aim to encourage settlement and clarify issues, and at hearings, which are more formal and involve witness evidence, cross-examination, and submissions. The guide concludes with practical advice on etiquette, communication with the Industrial Registry, resources for legislation and cases, and a glossary of commonly used terms, with appendices addressing electronic filing practices and codes of conduct.
  1. [14]
    On 6 November 2024, a notice of listing (NOL) was issued, directing the parties to attend  a conciliation Conference at the Commission, in person, on 2 December 2024 at 1.30 p.m. At this stage, other than the referred complaint, no further materials had been received by the Commission.
  1. [15]
    The NOL noted that all named parties were required to appear in person. The NOL clearly outlined the date, time and location of the listed Conference.
  1. [16]
    On 13 November 2024, Mr Khattabi confirmed, through the Industrial Registry, that he would attend the Conference on 2 December 2024.[9] The Respondents' respectively confirmed their appearances for the Conference.[10]
  1. [17]
    On the same day, my Chambers provided a further PDF copy of the AD Guide to the parties via the Industrial Registry.[11] At that time, it was suggested that the Guide may assist in preparing for the Conference listed for 2 December 2024.
  1. [18]
    This occurred in circumstances where Mr Khattabi had sent correspondence to the Industrial Registry in which he indicated a belief that the matter was proceeding directly to a hearing.[12]
  1. [19]
    On 2 December 2024, the Respondents and their representatives, the majority of whom flew from interstate, arrived at the Commission for the scheduled Conference.
  1. [20]
    After establishing Mr Khattabi was not present, the conciliation was temporarily adjourned, while efforts were made to locate him, namely:
  • At 1.30 p.m. I requested my Associate check the Commission hallways to determine if Mr Khattabi was present.
  • At 1.39 p.m. my Associate attempted to contact Mr Khattabi via the telephone number provided in the Complaint material, however, the call went through to voicemail whereafter my Associate left Mr Khattabi a detailed voicemail requesting that he urgently contact the Commission.
  • Similarly, representatives from the Industrial Registry took steps to contact     Mr Khattabi in the same period.
  1. [21]
    I understand that at some point after the conference was adjourned and the actions above were taken, Mr Khattabi contacted the Industrial Registry seeking to attend via Telephone.
  1. [22]
    Subsequently, my Associate attempted to contact Mr Khattabi at 2.00 p.m. to join him to the Conference by teleconference. However, Mr Khattabi again failed to answer his phone, prompting my Associate to leave a second voicemail requesting an urgent return call. Mr Khattabi did not respond. The Industrial Registry also attempted to contact       Mr Khattabi, but the calls were directed to voicemail.
  1. [23]
    My Associate attempted to contact Mr Khattabi on one final occasion. However, again, the phone call was diverted to voicemail. Mr Khattabi's failure to attend the Conference was the first instance of non-compliance (the first non-compliance).
  1. [24]
    Following his non-attendance at the Conference, the Industrial Registry emailed the parties requesting that Mr Khattabi advise of his intentions regarding the matter.[13]
  1. [25]
    Mr Khattabi advised the Industrial Registry by email on 3 December 2024 that he still wished to pursue his complaint.[14]
  1. [26]
    On 5 December 2024, a further NOL was issued, setting the matter down for  a telephone Mention on 21 January 2025 at 10.30 a.m., with a view to identifying further dates for conciliation and issuing Directions for the filing of certain materials.
  1. [27]
    On 21 January 2025 a telephone Mention went ahead during which the Complainant and Respondent’s views were sought in relation to the timing of further Directions for the matter. During the Mention, Mr Khattabi indicated that he would file a SOFC within two weeks.[15]
  1. [28]
    It was during this Mention that the issue of the out-of-time allegations contained within  Mr Khattabi's complaint were first raised. At the time, I responded to a query about the way the QIRC, in a procedural sense, ordinarily deals with complaints that are filed beyond the twelve-month statutory time frame.[16]
  1. [29]
    I also informed the parties that, notwithstanding the QHRC may have initially accepted complaints that are filed outside the twelve-month time limit,[17] the QIRC routinely revisits out of time allegations.[18]
  1. [30]
    Mr Khattabi was subsequently directed to file in the Industrial Registry and serve on the Respondents a SOFC in relation to his complaint.[19]
  1. [31]
    On or around 12 February 2025 Mr Khattabi sought and received approval for an extension for the filing of his SOFC until 28 February 2025.[20]
  1. [32]
    The AD Guide was sent to Mr Khattabi again on 12 February 2025.[21] This was prompted by the view that it may assist him in the preparation of his SOFC.
  1. [33]
    On 18 February 2025 Mr Pienaar, on behalf of the Second Respondent, emailed the Industrial Registry to query whether the Respondents could:[22]

... pursue the out of time option against the claim, as tabled by Commissioner Knight as an option under the QIRC.

May I ask whether this option is available to all the respondents involved in this claim and if so, what is our next step?

  1. [34]
    The Industrial Registry on behalf of my Chambers subsequently responded to Mr Pienaar on 18 February 2025 as follows:[23]

Commissioner Knight will set the matter down for a further mention once Mr Khattabi has complied with the most recent Directions Order and all the Respondents have had an opportunity to review the materials that are filed and served.

In the meantime, there may be value in all parties taking some time to consider the relevant provisions within the Anti-Discrimination Act 1991, namely sections 138 and 175, and where possible, seek legal advice and/or further guidance in relation to the out of time issues that have been raised.

  1. [35]
    On 28 February 2025, Mr Khattabi filed and served a SOFC in relation to his complaint.[24]
  1. [36]
    Following correspondence received on 3 March 2025, in which Mr Khattabi expressed concerns regarding the progression of the matter, a further copy of the AD Guide was sent to the parties,.[25] 
  1. [37]
    In the correspondence of 3 March 2025, Mr Khattabi again referred to the complaint being before me for hearing,[26] notwithstanding that it had earlier been made clear that the matter was before me for case management and conciliation.[27]
  1. [38]
    The Guide was re-sent in an effort to clarify the Commission’s processes. In the same correspondence, my Chambers included the decision of Fellows v State of Queensland (Department of Education, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor).[28]
  1. [39]
    The decision was provided to the parties to assist with their understanding of how the QIRC exercises separate discretion under s 175 of the AD Act when determining whether to accept out-of-time allegations, notwithstanding earlier decisions of the QHRC.
  1. [40]
    The parties were then requested to advise of their availability for a Conciliation Conference between March 2025 and mid-April 2025.[29]
  1. [41]
    By Further Directions Order dated 10 March 2025, the Respondents were each directed to file in the Industrial Registry and serve on Mr Khattabi by 31 March 2025, a response to the Complainant's SOFC.  The parties were also directed to exchange lists of relevant documents and, subsequently, to provide requested documents.
  1. [42]
    Mr Khattabi, in correspondence dated 13 March 2025, raised concerns about the Conciliation Conference being delayed due to the unavailability of parties until late April 2025. 
  1. [43]
    On 24 March 2025, my Chambers through the Industrial Registry responded to Mr Khattabi's concerns and informed the parties as follows:[30]

Commissioner Knight has considered the correspondence received from the Parties in respect to the timing of the Conciliation Conference and the concerns raised by Mr Khattabi.

One of the primary difficulties in setting a conciliation conference when not all the respondents are available is that it can hinder the ability to resolve the matter in its entirety.

On this occasion, Commissioner Knight has decided that the conciliation conference will proceed at a time when all parties are available.

In the meantime, the Second Further Directions Order issued on 10 March 2025 will ensure the matter continues to progress and prevent any delays should it not resolve at the conference.

  1. [44]
    On 18 March 2025 a NOL was issued to the parties to attend a conciliation Conference in May 2025.
  1. [45]
    On the same day, the Industrial Registry received correspondence from Qantas concerning the out-of-time issues previously raised at the Mention on 21 January 2025. Through its representatives, Qantas advised:

...

The Complainant filed the original complaint in the QHRC on 26 September 2023, which was 18 months and four days after the First Alleged Incident. This was six months and four days outside the time period permitted under section 138 of the Act.

Proposed revised orders

If the Commission is minded to hear the First Respondent’s out of time application at this stage, the First Respondent respectfully requests that:

(a) the orders in the Directions Order be vacated;

(b) directions be made for the filing and service of an out of time application by the

First Respondent and submissions by each party;

(c) the out of time application be determined on the papers or listed for hearing; and

(d) such other orders as the Commission requires in relation to the out of time

application.

  1. [46]
    After considering the correspondence, my Chambers listed a Telephone Mention for 27 March 2025 at 2.15 p.m.
  1. [47]
    Within the NOL, the parties were requested to confirm their appearances and contact details.
  1. [48]
    Mr Khattabi failed to confirm his attendance for the Mention.
  1. [49]
    At 10.57 a.m. on 27 March 2025 the Industrial Registry, sent a further email to Mr Khattabi, as set out below:

Dear Mr Khattabi,

I refer to the attached Notice of Listing.

The Parties were required to notify the Industrial Registry of their appearances for today’s Telephone Mention by 10:00 AM. The Industrial Registry have received the appearance details of the Respondents in this matter.

The Commission has not yet received your appearance or contact details.

Please confirm you will be attending and provide your best contact number for the Telephone Mention as soon as possible.

Your prompt attention to this matter is appreciated.

  1. [50]
    In further attempts to confirm Mr Khattabi's attendance, the Industrial Registry contacted him by telephone—twice in the morning and once more at 1.16 p.m. on 27 March 2025.
  2. [51]
    On the same date, Qantas filed an application in existing proceedings.[31] The application was made on two grounds.
  1. [52]
    Firstly, Qantas sought orders permitting it to bring an application in respect of the out‑of‑time components of Mr Khattabi’s complaint. This was on the basis that the first alleged incident referred to in Mr Khattabi’s Statement of Facts and Contentions (SOFC) occurred in March 2022.
  1. [53]
    In the  application, Qantas provided that Mr Khattabi filed his original complaint with the QHRC on 26 September 2023, being 18 months and four days after the first alleged incident.[32] Qantas submitted this was six months and four days outside the time limit prescribed by s 138 of the AD Act.[33]
  1. [54]
    Secondly, within the same application, Qantas sought orders requiring Mr Khattabi, in the substantive proceedings, to file an amended SOFC to address pleading deficiencies in the SOFC filed on 28 February 2025.[34]
  1. [55]
    Mr Khattabi failed to appear at the Mention on 27 March 2025 (the second non-compliance). Following the conclusion of the Mention, correspondence was sent to Mr Khattabi through the Industrial Registry. That correspondence advised Mr Khattabi of what had transpired at the Mention, including the First Respondent’s application concerning the out‑of‑time aspects of his complaint and perceived deficiencies in his SOFC. Mr Khattabi was provided with instructions on how to access the transcript of the Mention. Further, Mr Khattabi was requested to advise the Commission as to how he intended to respond to the matters raised during the Mention.
  1. [56]
    On 8 April 2025, a NOL was issued setting down an in-person Mention for 14 April 2025 at 4.00 p.m. with a view of progressing the matter. Mr Khattabi again failed to confirm his attendance for the Mention.
  1. [57]
    On 11 April 2025, my Chambers through the Industrial Registry sent the following correspondence:[35]

It is noted that the Complainant has not yet confirmed their attendance for Monday’s Mention. The Complainant is requested to confirm their appearance as soon as possible, and by no later than 3:00 pm today, 11 April 2025.

  1. [58]
    On 11 April 2025, Mr Khattabi emailed both the Industrial Registry and the Respondents as follows:[36]

I am currently writing a formal complaint against Commissioner Knight due to failure to uphold procedural fairness while remaining impartial.

It is therefore inappropriate for me to attend any mention with the aforementioned commissioner until this matter is investigated, resolved and a new commissioner is assigned.

The complaint will be filed with the registry next week.

  1. [59]
    The reasons as to why Mr Khattabi considered I had failed to 'uphold procedural fairness while remaining impartial' were not clear from the email. My Chambers did not receive a copy of a complaint, nor did Mr Khattabi file an application seeking that I recuse myself from the matter.
  1. [60]
    Mr Khattabi failed to appear at the Mention on 14 April 2025. This was the third instance of non-compliance (the third non-compliance).
  1. [61]
    At the Mention, I informed the parties that the file would be placed in abeyance pending the filing of any formal complaint or application by Mr Khattabi. I advised the parties that, in the absence of such a filing within one week, the matter would be listed for a further Mention.[37]
  1. [62]
    On 24 April 2025, Mr Khattabi sent correspondence to the Industrial Registry indicating, once again, that he was in the process of finalising a formal complaint concerning my alleged conduct, which he stated would be submitted the following week.[38]
  1. [63]
    Although there were several such emails sent to the Industrial Registry, to my knowledge, no formal application seeking my recusal was filed in the Industrial Registry.
  1. [64]
    On 28 April 2025, to progress the matter and better understand Mr Khattabi’s position, a further NOL was issued setting down an in-person Mention for 2 May 2025 at 9.00 a.m. The NOL clearly outlined the time and date of the Mention.
  1. [65]
    As Mr Khattabi had, by this time, failed to attend several Mentions, the NOL advised the parties that non-compliance could result in the exercise of the Commission's discretion to dismiss the matter pursuant to r 45 of the Tribunal Rules.
  1. [66]
    The additional information accompanying the NOL stated as follows:

The Mention will proceed in-person. Parties and their representatives are required to attend in-person at the Queensland Industrial Relations Commission.

Any party located outside of Brisbane can seek leave from the Commission to appear via Telephone.

Please advise appearances by no later than 4:00pm Wednesday 30 April 2025.

The Applicant is advised that their attendance is required. The Applicant is directed to reviewr 45 of the Industrial Relations (Tribunals) Rules 2011 (‘the Industrial Rules’).

Failure to comply with the Notice of Listing, may result in the Commission considering the exercise of its powers pursuant to r 45 of the Industrial Rules.

  1. [67]
    The AD Guide was sent to Mr Khattabi on a fifth occasion on 28 April 2025.[39] By that stage, it remained apparent, having regard to correspondence forwarded to the Commission by Mr Khattabi, that he did not seem to understand the Commission’s procedures for case managing Anti-Discrimination matters.
  1. [68]
    In particular, Mr Khattabi appeared to be aggrieved about the need to determine the application in existing proceedings concerning the out-of-time allegations of his complaint, ahead of the determination of the substantive matter. By this time, he had also advised via email, that he was unwilling to attend a conciliation with Qantas.[40]
  1. [69]
    In correspondence from the QIRC to the parties, it was again stated that the AD Guide may provide assistance in understanding the processes of the Commission.[41] The parties were specifically requested to direct their attention to page six of the AD Guide which provides a flow chart for Anti-Discrimination matters. The email stated as follows:[42]

Further, attached to this email is a copy of the Anti-Discrimination Guide. The Commission notes that this document has been previously circulated to the Parties by the Industrial Registry on 29 October 2024, and by Commissioner Knight’s Chambers on 13 November 2024, 12 February 2025, and 4 March 2025. However, Commissioner Knight requests that all parties review this document prior to the Telephone Mention.

Please pay particular attention to page 6, which outlines how Anti-Discrimination matters progress in the Commission, and in particular, the processes that need to be followed prior to a date being set down for the Hearing of the substantive matter.

  1. [70]
    On 30 April 2025, Mr Khattabi sent correspondence to the Industrial Registry advising that he would not be attending the Mention listed for 2 May 2025, as directed.[43]
  1. [71]
    The Mention on 2 May 2025 proceeded. The Respondents were all in attendance. Mr Khattabi did not attend (the fourth non-compliance). 
  1. [72]
    During the Mention, the First Respondent pressed the need to resolve the out-of-time allegations, raised concerns about Mr Khattabi's non-attendance, and made submissions requesting the Commission exercise its discretion to dismiss the matter pursuant to r 45 of the Tribunal Rules.[44]
  1. [73]
    A Fourth Further Directions Order was issued on 2 May 2025. The Further Directions Order [4] set out the following:[45]

FOLLOWING the mention held before Industrial Commissioner Knight on 2 May 2025, IT IS ORDERED:

  1. That the Complainant file in the Industrial Registry and serve on the Respondents written submissions and any other supporting materials in respect of whether the Commission should exercise its discretion under s 175(2) of the Act to deal with any out-of-time allegations contained in the Complainant's Statement of Facts and Contentions filed on 28 February 2025 (of no more than five (5) pages in length, type-written, line and a-half spaced, 12‑point font size and with numbered paragraphs and numbered pages) by 4.00pm on Friday, 9 May 2025.
  1. That the Respondents file in the Industrial Registry and serve on the Complainant written submissions and any other supporting materials in respect of whether the Commission should exercise its discretion under s 175(2) of the Act to deal with any out-of-time allegations contained in the Complainant's Statement of Facts and Contentions filed on 28 February 2025 (of no more than five (5) pages in length, type-written, line and a-half spaced, 12‑point font size and with numbered paragraphs and numbered pages) by 4.00pm on Friday, 16 May 2025.
  1. That, if required, the Complainant file in the Industrial Registry and serve on the Respondents any written submissions in reply (of no more than three (3) pages in length, type-written, line and a-half spaced, 12‑point font size and with numbered paragraphs and numbered pages) by 4.00pm on Wednesday, 21 May 2025.
  1. That the matter is listed for hearing before Knight IC at 10.00am on Thursday, 22 May 2025 at the Queensland Industrial Relations Commission, Central Plaza 2, 66 Eagle Street, (Cnr Elizabeth and Creek Streets), Brisbane.
  1. [74]
    In direct non-compliance with the relevant Directions, Mr Khattabi failed to file submissions in respect of whether the Commission should exercise its discretion under s 175(2) of the Act (the fifth non-compliance).
  1. [75]
    In an attempt to progress the matter, a NOL was subsequently issued for a Mention before me on 13 May 2025 at 2.30 p.m.
  1. [76]
    Mr Khattabi did not attend the Mention, nor did he provide any explanation for his absence (the sixth non-compliance).
  1. [77]
    When Mr Khattabi failed to attend the Mention on 13 May 2025, Qantas made a formal application that  Mr Khattabi’s matter be dismissed pursuant to r 45 of the Tribunal Rules.[46]
  1. [78]
    Mr Khattabi was subsequently directed to file submissions as to why his complaint should not be dismissed under r 45 of the Tribunal Rules by 22 May 2025.
  1. [79]
    Mr Khattabi failed to file submissions in accordance with Direction 3 of Further Directions Order [6] (the seventh non-compliance).

The application of the Industrial Relations (Tribunal) Rules 2011

  1. [80]
    Rule 5 of the Tribunal Rules provides that the rules apply to a proceeding before the Court, the Commission, a Magistrate or the Registrar. Rule 6 provides that the purpose of the Tribunal Rules is to provide for the just and expeditious disposition of the business of the Commission, at a minimum of expense.
  1. [81]
    The power to dismiss a proceeding exists by virtue of r 45 of the Tribunal Rules.
  1. [82]
    Rule 45 gives the Commission a power to dismiss the proceedings in circumstances where there is a failure to attend or comply with directions. It provides:

45 Failure to attend or to comply with directions order

(1) This rule applies if–

(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;

(b) the party fails to attend the hearing or conference.

(2) This rule also applies if–

(a) A party to a proceeding receives notice of a directions order made by the court, commission or registrar; and

(b) The party fails to comply with the order.

(3) The court, commission or registrar may—

(a) dismiss the proceeding; or

(b) make a further directions order; or

(c) make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or

(d) make orders under paragraphs (b) and (c).

  1. [83]
    Rule 45 of the Tribunal Rules is clearly enlivened in circumstances where Mr Khattabi has not only failed to attend several Mentions, including instances where he was put on notice regarding r 45(1), but also failed to comply with Directions Orders pursuant to r 45(2).
  1. [84]
    The power under r 45(3)(a) of the Tribunal Rules involves an exercise of discretion. Foremost, discretionary powers must be 'exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion.'[47]
  1. [85]
    This cautionary approach has been affirmed by the Court of Appeal (Qld) in Kelsey v Logan City Council & Ors:[48]

As observed by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129, there is a need for exceptional caution in exercising the power to summarily dismiss a proceeding whether it be inherent or under statutory rules. While it is appropriate to exercise the power in circumstances where the proceeding amounts to an abuse of process or is vexatious, the court must otherwise take “great care” if it exercises a discretion to terminate proceedings.

  1. [86]
    In considering whether to exercise my discretion, I have also had regard to the decision of President Hall in Quaedvlieg v Boral Resources (Qld) Pty Ltd,[49] where, in the context of an application to strike out for want of prosecution, his Honour cited with approval the reasoning of Thomas JA in Quinlan v Rothwell[50] 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.[51] (emphasis added)

  1. [87]
    While his Honour was considering the Uniform Civil Procedure Rules 1999 (Qld), the above passage has been adopted in this jurisdiction in circumstances where the underlying question to be determined is consistent with the exercise of discretion under r 45 of the Tribunal Rules.[52]
  1. [88]
    In Pittaway v Noosa Cat Australia Pty Ltd & Ors, North J stated in reference to the effects of delay that it is:[53]

... not the only ground for the jurisdiction to be enlivened. It remains that “contumelious disregard” for orders or the requirements of the rules of court may still enliven jurisdiction though it is not a necessary nor decisive consideration.

  1. [89]
    Relevantly to the present matter, the significance of a history of non-compliance, and the cumulative effect of a party's defaults was considered at length in Lenijamar Pty Ltd v AGC (Advances) Ltd, where their Honours Wilcox and Gummow JJ considered a similar provision under the Federal Court Rules, stating:[54]

... two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases – whatever the applicant's state of mind or resources – in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.[55]

  1. [90]
    Further authority for this view can be found in Aqwell Pty Ltd v BJC Drilling Services Pty Ltd, where Applegarth J observed the principles affirmed in Lenijamar Pty Ltd:

... will be engaged when a plaintiff is either unwilling to co-operate in having the matter ready for trial in an acceptable period, or, for some reason, is unable to do so. This will be so where there has been a persistent failure to comply with directions, the absence of any genuine explanation for default and an unwillingness to take control of the action to enable it to be heard within a reasonable time.[56]

  1. [91]
    In Smith v Workers' Compensation Regulator, O'Connor DP (as his Honour then was) concluded:[57]

The Commission has an obligation to actively manage the matters filed in the Industrial Registry and to ensure the parties comply with the directions orders issued by it. The Rules aid the Commission to case manage its list; to assist the parties to prepare their cases; to ensure the efficient use of the Commission's time and resources; and to assist in the resolution of the real issues in the proceedings…(emphasis added)

The Respondents' Submissions

  1. [92]
    In summary, Qantas submits that despite having many opportunities to do so, Mr Khattabi has repeatedly failed to comply with orders of the Commission.
  1. [93]
    Ms A-Khavari, on behalf of Qantas, made the following submissions, which have been extracted from the Transcript:[58]

MS A-KHAVARI: So the – Qantas makes the application that the proceedings AD/2024/68 be dismissed under rule 43 of the – just one moment.

COMMISSIONER: Forty-five, I think it is.

MS A-KHAVARI: Thank you. Rule 45 of the rules. That application is made on the basis of a series of failures by Mr Khattabi to comply with orders of the Commission. The first non-compliance was in relation to a compulsory conference that was scheduled on the 2nd of December 2024 where Mr Khattabi did not attend. Following that conference, is the respondent – first respondent’s understanding that Mr Khattabi provided a letter from a hospital indicating that he was, in fact, admitted into that hospital. As stated at the last conference – at the last mention, the legitimacy of that letter – while no formal allegation is made, it is noted that it is not on letterhead and is not signed.

The next non-compliance that the first respondents would submit occurred was in relation to a further mention on the 27th of March 2025 where Mr Khattabi did not attend. And on the 14th of April 2025, there was a further mention scheduled under an order and Mr Khattabi did not attend. Then on the 28th of April 2025, the Queensland Industrial Relations Commission emailed the parties regarding the mention that was then scheduled for the 2nd of May 2025 and formally put Mr Khattabi on notice that a failure to comply with the listing may result in the Commission exercising its discretion under rule 45 of the rules.

Mr Khattabi then emailed the Commission on the 30th of April 2025 and stated that he will not attend the mention that’s listed for 2nd May 2025 in direct non-compliance with the order to attend a mention on the 2nd of May 2025. On the 2nd of May 2025, Mr Khattabi again failed to attend a mention, and the respondents at that time – the first respondent made some oral submissions requesting that the Commission exercise its discretion to dismiss the matter under rule 45. The Commission elected to not do so at that time in order to give Mr Khattabi a further opportunity to progress his matter.

It's then suggested that – or it was a requirement that the hearing be – that the respondent was unable to attend a hearing for the out of time issue due to a conflict with another hearing and the matter was then relisted to be heard at a mention today in order that the scheduling for the hearing of the out of time application could occur. And at the mention today, Mr Khattabi has also failed to attend. And, on that basis, there now has been a significant number of non-attendance by Mr Khattabi over an extended period of time.

It's submitted to the Commission that this ongoing non-compliance by Mr Khattabi is causing prejudice to the first respondent in that on each of these occasions – the first occasion, being the compulsory conference, Qantas and its representatives some of those were located interstate and were required to travel for an in person conference where Mr Khattabi did not attend, but also in terms of the preparation for an attendance at multiple mentions where Mr Khattabi has not attended has caused prejudice – or has caused the incursion of costs. And also is preventing the progress of the matter, noting the usual prejudice of an extended protraction of a matter in terms of witness memories and the like and the disadvantage that can be caused as a result.

Due to the ongoing non-compliance, Qantas submits that the Commission should now exercise its discretion under rule 45 and seek to dismiss the matter. That being said, acknowledging that it would be procedurally fair for this application to be brought to Mr Khattabi’s attention, and, as deemed appropriate, for any response or submissions to be ordered. I don’t have anything further to add to that, Commissioner, unless I can be of further assistance.

COMMISSIONER: Ms A-Khavari, you ran through several dates and occasions in your submissions, so I’m wondering is it also the case in respect of 45(2) your submissions encompass the – there was a further directions order that was issued on the 2nd of May and that was in respect of the filing and serving of the respondent’s written submissions. So is your application extending to 45(1) and (2) insofar as it also relates to the failure by Mr Khattabi to file materials in respect of the actual out of time issue?

MS A-KHAVARI: It does. And I apologise if I neglected to mention that because I certainly intended to. It does extend to the failure to comply with a court – with the Commission order to file those submissions which he neglected to do so.

  1. [94]
    Mr Pienaar, for the Second Respondent (FTA), and Mr Steyn, the Third Respondent, made the following submissions in support of those advanced by the First Respondent:[59]

MR PIENAAR: Thank you, Commissioner. At the risk of duplicating and regurgitating the clear process that has been formed by the first respondent as part of the submission, we would support that from the second respondent’s position.

COMMISSIONER: Thank you for that, Mr Pienaar. And the third respondent? Mr Steyn?

MR STEYN: Commissioner, thank you. I support that view.

COMMISSIONER: Yes.

MR STEYN: Nothing to add.

Consideration

  1. [95]
    The question for my determination in these proceedings is whether I should dismiss Mr Khattabi’s complaint pursuant to r 45(3) of the Tribunal Rules.
  1. [96]
    In my view, the conduct set out earlier in this decision, clearly falls within the parameters identified by Wilcox and Gummow JJ in Lenijamar,[60] namely, a demonstrated pattern of non-compliance by Mr Khattabi, which evidences an inability or unwillingness to co-operate with the processes of the Commission.
  2. [97]
    For the reasons that follow, I have determined this is a matter where I should exercise my discretion to dismiss Mr Khattabi’s complaint.
  1. [98]
    Mr Khattabi has repeatedly failed to attend the Commission when his complaint has been listed for Mention and has not complied with Directions.
  1. [99]
    While Mr Khattabi did not file a formal application that I recuse myself from this matter, it is notable that at one point during the case management of his Anti-Discrimination complaint, my Chambers received correspondence where he asserted that I had failed to 'uphold procedural fairness while remaining impartial'.[61]
  1. [100]
    The basis for Mr Khattabi’s concerns was not clear from the correspondence, but in several emails to the Commission over the relevant period, he expressed an expectation that his complaint would progress to an immediate hearing,[62] without the QIRC addressing the Respondent’s concerns in relation to the out-of-time allegations included within his complaint.
  1. [101]
    The difficulty with his approach is that although the QHRC may have accepted Mr Khattabi’s original complaint, the Commission must consider exercising a separate discretion, pursuant to s 175(2) of the AD Act, as to whether it will deal with any out-of-time allegations.
  1. [102]
    Section 175 of the Act does not specify how the question of whether the Tribunal ought to exercise its discretion to hear the complaint is to be broached.[63] However, once the issue is raised, it is well settled that the onus of proof is on the applicant, as the party requiring an extension of time, to satisfy the Commission that on the balance of fairness it is reasonable that the Commission deal with the complaint.[64]
  1. [103]
    I was therefore obliged to deal with the First Respondent’s application and its concerns about the out of time components of the complaint as efficiently as possible.
  1. [104]
    Mr Khattabi was provided with ample opportunity, and in fact directed to make submissions to the Commission about the issue.
  1. [105]
    Separately, it was also open to Mr Khattabi to make a formal application to recuse myself from the process or raise his concerns at the numerous Mentions that were set down to progress the matter, but which he did not attend.
  1. [106]
    Although Mr Khattabi did not make such an application, even if he did, the fact that I issued Directions in response to an application in existing proceedings concerning whether the Commission should exercise its discretion under s 175(2) of the AD Act to deal with any out-of-time allegations, does not demonstrate that I have failed to be impartial.
  1. [107]
    While Mr Khattabi’s engagement with the proceedings was not ideal before the statutory time limit issue was formally raised, his compliance with Directions issued by the Commission after the application was made by Qantas was non-existent.
  1. [108]
    To assist Mr Khattabi in gaining a better understanding of the process the QIRC adopts when dealing with Anti-Discrimination matters, my Chambers through the Registry, repeatedly forwarded a copy of the AD Guide.
  1. [109]
    Further steps were taken to draw Mr Khattabi’s attention to a flow chart within the document which detailed the processes the Commission follows during the conciliation and case management of Anti-Discrimination matters. Mr Khattabi was also provided with an earlier decision of this Commission that considered s 175(2) of the AD Act to assist his understanding of the relevant sections of the AD Act.[65]
  1. [110]
    Mr Khattabi was further put on notice, in writing, on no less than two occasions that a continued failure to comply with Directions of the Commission may lead to his complaint being dismissed.
  1. [111]
    Mr Khattabi was also afforded an opportunity to respond to Qantas’ application seeking an order that his complaint be dismissed due to repeated non-compliance with directions issued by the Commission,[66] however, he failed to make any submissions.
  1. [112]
    The cumulative effect of Mr Khattabi's non-compliance is substantial enough to satisfy me that he is unwilling to comply. He has demonstrated a persistent disregard for the Directions of the Commission and appears intent upon pursuing his complaint only on terms of his own choosing, if at all.
  1. [113]
    Compliance with Directions Orders is necessary to not only ensure fairness between the parties but to also expedite the progression of the matter.
  1. [114]
    A repeated failure by a party to comply with Directions is inconsistent with r 6 of the Tribunal Rules.
  1. [115]
    Mr Khattabi’s history of non-compliance with the Directions of the Commission persuades me that such conduct is likely to continue, with the result that the resolution of this matter will be unnecessarily protracted to the detriment of the Respondents.
  1. [116]
    It is therefore my view that the proper application of the Tribunal Rules is best achieved by the exercise of the discretion conferred by r 45 of the Tribunal Rules. The circumstances amply justify, and indeed compel, the dismissal of Mr Khattabi's complaint.

Conclusion

  1. [117]
    For the reasons outlined above, the substantive proceeding ought to be dismissed under r 45(3) of the Tribunal Rules.

Orders

  1. [118]
    I make the following orders:
  1. The application is granted.
  1. Pursuant to r 45(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld), matter AD/2024/68 is dismissed.

I certify that the preceding [118] paragraphs are a true copy of the Reasons for Decision of Industrial Commissioner Knight.

M. L. KNIGHT

Industrial Commissioner

Dated: 12 August 2025

Footnotes

[1] Form 85 – Referral of a Matter filed 28 October 2024.

[2] Ibid, Attachment 1 'Complaint Form' dated 26 September 2023.

[3] Anti-Discrimination Act 1991 (Qld) s 124.

[4] Email from Listings Manager (Industrial Registry) to Associate Knight dated 29 October 2024.

[5] Form 85 – Referral of a Matter filed 28 October 2024, 4.

[6] Form 4 – Application in existing proceedings and Form 20 – Affidavit of Janet Anne Dransfield, filed 27 March 2025.

[7] See [6] and T1-4 ll 39-41.

[8] Email from the Industrial Registry to the parties dated 29 October 2024; Anti-Discrimination Guide (Queensland Industrial Relations Commission Registry, 2021) ('Anti-Discrimination Guide').

[9] Email from Mr Khattabi to the Industrial Registry dated 13 November 2024.

[10] Email from Mr Pienaar to the Industrial Registry dated 26 November 2024; Email from Ms Dransfield and Ms Cooper dated 28 November 2024.

[11] Email from the Industrial Registry to the parties dated 13 November 2024.

[12] Email from Mr Khattabi to the Industrial Registry dated 12 November 2024.

[13] Email from the Industrial Registry to the parties dated 2 December 2024.

[14] Email from Mr Khattabi to the Industrial Registry dated 3 December 2024.

[15] T1-4 – T-5.

[16] T1-6 ll 24-38.

[17] Form 85 – Referral of a Matter, filed 28 October 2024, 4. 

[18] T1-6 ll 40-43.

[19] Directions Order issued 11 February 2025.

[20] Further Directions Order issued 13 February 2025.

[21] Email from the Industrial Registry to the parties dated 12 February 2025.

[22] Email from Mr Pienaar to the Industrial Registry dated 18 February 2025.

[23] Email from the Industrial Registry to the parties dated 18 February 2025.

[24] Complainant's Statement of Facts and Contentions filed 28 February 2025.

[25] Email from the Industrial Registry to the parties dated 4 March 2025.

[26] Email from Mr Khattabi to the Industrial Registry dated 3 March 2025.

[27] Email from the Industrial Registry to Mr Khattabi dated 11 November 2024.

[28] [2024] QIRC 120.

[29] Email from the Industrial Registry to the parties dated 4 March 2025.

[30] Email from the Industrial Registry to the parties dated 24 March 2025.

[31] Form 4 – Application in existing proceedings and Form 20 – Affidavit of Janet Anne Dransfield, filed 27 March 2025.

[32] Form 85 – Referral of a Matter, filed 28 October 2024, Attachment 1 'Complaint Form' dated 26 September 2023.

[33] Anti‑Discrimination Act 1991 (Qld).

[34] Form 4 – Application in existing proceedings and Form 20 – Affidavit of Janet Anne Dransfield, filed 27 March 2025.

[35] Email from the Industrial Registry to the parties dated 11 April 2025.

[36] Email from Mr Khattabi to the Industrial Registry dated 11 April 2025.

[37] T1-4 ll 18-39.

[38] Email from Mr Khattabi to the Industrial Registry dated 24 April 2025.

[39] Email from the Industrial Registry to the parties dated 28 April 2025.

[40] Email from Mr Khattabi to the Industrial Registry dated 24 April 2025. 

[41] Email from the Industrial Registry to the parties dated 28 April 2025.

[42] Email from the Industrial Registry to the parties dated 28 April 2025.

[43] Email from Mr Khattabi to the Industrial Registry dated 30 April 2025.

[44] T1-8 ll 11-48.

[45] Further Directions Order [4] issued 2 May 2025.

[46] T1-5 – 1-6.

[47] House v R (1936) 55 CLR 499, 503. 

[48] [2022] QCA 238 [37].

[49] (2005) 180 QGIG 1209.

[50] [2002] 1 Qd R 647.

[51] Ibid, 658, quoted in Quaedvlieg v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209, 1210.

[52] See Quaedvlieg v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209; Workers' Compensation Regulator v Varga [2019] QIRC 028, 5-6. 

[53] [2016] QCA 4.

[54] (1990) 27 FCR 388 [36]. 

[55] Ibid.

[56] Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2012] QSC 413, [50] per Applegarth J.

[57] [2017] QIRC 070, [10].

[58] T1-4 – T1-6.

[59] T1-6 ll 26-37.

[60] (1990) 27 FCR 388, [36]. 

[61] Email from Mr Khattabi to the Industrial Registry dated 11 April 2025.

[62] Email from Mr Khattabi to the Industrial Registry dated 12 November 2024; Email from Mr Khattabi to the Industrial Registry dated 30 April 2025.

[63] Wong v Medical Board of Queensland & Ors [2006] QADT 41, [21]-[22].

[64] Marijanovic v Chalmers Industries Pty Ltd and Davis [2008] QADT 4, [12]; Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service) & Ors (No 2) [2021] QIRC 324.

[65] Fellows v State of Queensland (Department of Education, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor [2024] QIRC 120.

[66] T1-4 ll 39-41.

Close

Editorial Notes

  • Published Case Name:

    Khattabi v QANTAS Airways Limited & Ors

  • Shortened Case Name:

    Khattabi v QANTAS Airways Limited

  • MNC:

    [2025] QIRC 173

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    31 Jul 2025

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
Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2012] QSC 413
2 citations
Jump To
Cite 1 - [2012] QSC 413
Cite 2 - [2012] QSC 413
Fellows v State of Queensland (Department of Education, Office of Industrial Relations and Office of the Work Health and Safety Prosecutor) [2024] QIRC 120
3 citations
Jump To
Cite 1 - [2024] QIRC 120
Cite 2 - [2024] QIRC 120
Cite 3 - [2024] QIRC 120
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
1 citation
Jump To
Cite 1 - (1964) 112 CLR 125
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Kelsey v Logan City Council [2022] QCA 238
2 citations
Jump To
Cite 1 - [2022] QCA 238
Cite 2 - [2022] QCA 238
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
3 citations
Jump To
Cite 1 - (1990) 27 FCR 388
Cite 2 - (1990) 27 FCR 388
Cite 3 - (1990) 27 FCR 388
Marijanovic v Chalmers Industries Pty Ltd and Davis [2008] QADT 4
2 citations
Jump To
Cite 1 - [2008] QADT 4
Cite 2 - [2008] QADT 4
Pittaway v Noosa Cat Australia Pty Ltd[2016] 2 Qd R 556; [2016] QCA 4
2 citations
Jump To
Cite 1 - [2016] QCA 4
Cite 2 - [2016] QCA 4
Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209
4 citations
Jump To
Cite 1 - (2005) 180 QGIG 1209
Cite 2 - (2005) 180 QGIG 1209
Cite 3 - (2005) 180 QGIG 1209
Cite 4 - (2005) 180 QGIG 1209
Quinlan v Rothwell[2002] 1 Qd R 647; [2001] QCA 176
2 citations
Jump To
Cite 1 - [2002] 1 Qd R 647
Cite 2 - [2002] 1 Qd R 647
Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service) (No 2) [2021] QIRC 324
2 citations
Jump To
Cite 1 - [2021] QIRC 324
Cite 2 - [2021] QIRC 324
Smith v Workers' Compensation Regulator [2017] QIRC 70
2 citations
Jump To
Cite 1 - [2017] QIRC 70
Cite 2 - [2017] QIRC 70
Wong v Medical Board of Queensland & Ors [2006] QADT 41
2 citations
Jump To
Cite 1 - [2006] QADT 41
Cite 2 - [2006] QADT 41
Workers' Compensation Regulator v Varga [2019] QIRC 28
2 citations
Jump To
Cite 1 - [2019] QIRC 28
Cite 2 - [2019] QIRC 28

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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