SP v RB as Trustee for the R and R Family Trust AND Others (No 3)
[2025] QIRC 5
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- Unreported Judgment
- SP v RB as Trustee for the R and R Family Trust AND Others (No 3)[2025] QIRC 5
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SP v RB as Trustee for the R and R Family Trust AND Others (No 3)[2025] QIRC 5
SP v RB as Trustee for the R and R Family Trust AND Others (No 3)[2025] QIRC 5
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | SP v RB as Trustee for the R and R Family Trust AND Others (No 3) [2025] QIRC 005 |
PARTIES: | SP Complainant v RB as Trustee for the R and R Family Trust First Respondent & RB Second Respondent |
CASE NO: | AD/2023/125 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 18 December 2024 |
HEARING DATE: | 18 December 2024 |
MEMBER: HEARD AT: | Pratt IC Brisbane |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – ANTI-DISCRIMINATION – APPLICATION TO ADJOURN PROCEEDINGS – where respondent filed application to adjourn proceedings – consideration of rules 5, 6 and 41(1) of the Industrial Relations (Tribunals) Rules 2011 – consideration of principles applicable to applications to adjourn proceedings in the Industrial Court of Queensland – where respondent sought to adjourn proceedings because he could not secure legal representation and would otherwise not be able to conduct proceedings – where complainant opposes application to adjourn proceedings because the respondent has had adequate time to secure legal representation and has secured legal representation in related matters – where complainant opposes application to adjourn proceedings because of the prejudice caused to the complainant by being under oath, by the multiple delays already caused by the respondent, by having to forego income, and by exacerbating her mental health issues – held that principles applicable to applications for adjournment in Industrial Court of Queensland also applicable to the Commission – held that the Commission has already allocated significant resources to the present matter – held that respondent had adequate time and opportunity to obtain legal representation – held that, should the application for adjournment be granted, prejudice would be caused to the complainant by way of thrown away costs – held that, should the application for adjournment be granted, the State would throw away significant resources – application dismissed. |
LEGISLATION: | Industrial Relations (Tribunals) Rules 2011 r 5, 6, 41 |
CASES: | Dahdah v Platinum Distributors Australia Pty Ltd [2023] FCAFC 65 Perry v State of Queensland (Queensland Health) (No. 2) [2024] ICQ 8 SP v RB as Trustee for the R and R Family Trust [2024] QIRC 280. |
APPEARANCES: | Ms M Stone of counsel, instructed by Ms A Chester of Basic Rights Queensland for the Complainant. The Respondent by telephone. |
Reasons for Decision
- [1]This matter names two respondents, however they are the one person, potentially acting in two different relevant capacities. One as a trustee of the relevant trust, the other as an individual directly interacting with the Complainant. In all practical senses the two respondents are really one. For that reasons I refer to the "Respondent" in the singular.
- [2]This is an application filed by the Respondent on 13 December 2024 to adjourn the hearing set down for 19 December 2024 and 20 December 2024 ('Application').
Background
- [3]The Queensland Human Rights Commission ('QHRC') referred this matter to this Commission on 21 September 2023. Commissioner Dwyer conferenced this matter on 6 December 2023, heard this matter on 15 February 2024, and mentioned this matter on 11 March 2024. The Respondent did not attend those listings, partly due to his apparent dilatoriness and partly due to extenuating circumstances. The Complainant filed a statement of facts and contentions ('SOFC') and an affidavit of the Complainant's own evidence on 15 February 2024. The Complainant also filed an affidavit of service on 10 April 2024 evidencing service of a notice of listing on the Respondent on 5 April 2024.
- [4]Dwyer IC then issued directions orders on 8 May 2024 requiring the Complainant to serve on the Respondent her SOFC filed on 15 February 2024 by 10 May 2024 and the Respondent to file in the Registry and serve on the Complainant his SOFC by 31 May 2024.
- [5]On 29 May 2024, the Complainant applied for leave to amend their SOFC and the supplementary affidavit, attaching the amended SOFC to that application, and for leave to be represented by a lawyer. That application for leave to be represented by a lawyer was accompanied by two affidavits from the lawyers that sought leave to appear for the Complainant. The Respondent on 31 May 2024 provided a statement of facts and contentions. Dwyer IC then mentioned this matter on 3 June 2024. The Respondent did not attend that mention.
- [6]On 10 June 2024, Dwyer IC granted leave to the Complainant to file an amended SOFC and file further supplementary affidavit and granted leave for the Complainant to be legally represented. Dwyer IC granted leave to the Respondents to file an amended SOFC and further statements of evidence by 28 June 2024, but the Respondent did not file any document by that date.
- [7]The matter was then set down for conference on 9 July 2024. Both parties attended that conference but were unable to conciliate the matter.
- [8]Following the unsuccessful conciliation conference, the Registry then referred this file to myself. I mentioned this matter on 8 August 2024 and again on 20 August 2024. The Respondent did not appear at either mention. The Complainant then filed an application in existing proceedings on 1 October 2024 that was granted on 29 November 2024.[1]
- [9]I also issued directions orders on 20 August 2024 that relevantly listed the matter for hearing on 2 December 2024 and 3 December 2024. The hearing proceeded on those dates and both parties appeared at both days on the hearing. The Respondent also made an application for adjournment on 3 December 2024, and that application was denied on the same day. The parties were not able to present the entirety of their oral evidence during those two days, and so the matter adjourned at the end of the day on 3 December 2024 and was set down for further hearing on 19 December 2024 and 20 December 2024.
- [10]The Respondent filed the Application by way of email on 13 December 2024. I directed the Complainant on 16 December 2024 to advise as to their position on the Application. The Complainant replied on 17 December 2024 saying that they opposed the adjournment. I considered the submissions of the Complainant and the Respondent and later that day listed for a hearing for 18 December 2024 to deliver my decision on whether to grant the Application.
- [11]I delivered the orders for this decision during that 18 December 2024 hearing. I informed both parties that the Application was refused and that I would publish a full set of reasons for that decision in due course. This decision is the full set of reasons for the decision on 18 December 2024 to refuse the Application.
The issue
- [12]The issue to be determined is whether the application for an adjournment should be granted in the circumstances.
Relevant law
Relevant legislation
- [13]Rule 5 of the Industrial Relations (Tribunals) Rules 2011 ('IR Rules') says:
These rules apply to a proceeding before the court, the commission, a magistrate or the registrar.
- [14]Rule 6 of IR Rules says:
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.
- [15]Rule 41(1) of IR Rules says:
(1) The court, commission or registrar may make an order (a "directions order") about the conduct of a proceeding on the application of a party or on the initiative of the court, commission or registrar.
Relevant case law
- [16]Perry v State of Queensland (Queensland Health) (No. 2)[2] ('Perry') was a matter before his Honour, Merrell DP, in the Industrial Court of Queensland. In that matter, the applicant made an application to adjourn 3 days before the matter was set to be heard.[3] His Honour observed that the effect of rules 5, 6, and 41 of the IR Rules is that the Court has the discretion to adjourn matters before the Court, and that the discretion should be exercised in light of the purpose of the IR Rules of providing for the just and expeditious disposition of the business of the Court at a minimum of expense.[4] His Honour cited as applicable to the rules about the discretion to adjourn cases the following observations of the Full Court of the Federal Court in Dahdah v Platinum Distributors Australia Pty Ltd:[5]
[N]o litigant has an entitlement to an adjournment for the obvious reason that the business of the Court must be managed with the objective of efficient organisation in the interests of all litigants that come before the Court. Similarly, in Gabrielle v Abood (No 2) [2023] NSWCA 28, Bell CJ (Kirk and Adamson JJA agreeing) stated at [6], in connection with applications for adjournments of hearings of appeals in the Court of Appeal of the Supreme Court of New South Wales:
… When matters are set down in this Court there is an expectation that they will be heard on the day on which they are set down. Matters are set down having regard to the demands of the Court, including other cases and litigants, and it is a significant and inefficient waste of Court resources where matters are required to be adjourned. That is not to say that in a sufficiently meritorious case, adjournment applications will not be entertained but they are typically only entertained and granted where there are cogent reasons for doing so.[6]
- [17]His Honour went on to conclude that there was no reason that those principles were not equally applicable to the Industrial Court of Queensland.[7] His Honour subsequently considered the application to adjourn the proceedings in that case and refused to do so.[8] His Honour noted that Ms Perry had over 4 months to arrange for legal representation and, despite apparently arranging for legal representation a month before, had not provided evidence that she had retained and instructed lawyers. His Honour was persuaded that the application should be refused as it was 'too late' for the applicant to seek an adjournment of her appeal – as the applicant made the application for adjournment on short notice despite the lengthy amount of time the applicant had to get legal representation.[9] His Honour was also further persuaded to refuse that application because the applicant had every opportunity to make written submissions and would have had have the opportunity to make oral submissions and so she would not have suffered any prejudice.[10] His Honour also found as a factor militating against the adjournment, the prejudice against the respondent, should the application be granted, of denying it a timely conclusion of the matter.[11] Finally, his Honour considered as influential in refusing the application the prejudice to other litigants in other matters, should the application be granted, of practically and retrospectively denying other litigants the opportunity to have their matters heard on the days that the hearing would have taken place.[12]
Submissions
The Respondent's application
- [18]The Respondent by way of email on at 4:57pm on 13 December 2024 applied to adjourn the hearing set down for 19 December 2024 and 20 December 2024. The Respondent submitted that he was unable to secure a legal advisor because, owing to the festive season, many legal advisors were already booked. The Respondent submitted that the earliest he could obtain a legal advisor would be February 2024. The Respondent then submits that he would be unable to proceed with the hearing in an effective manner because, without a legal advisor, he would not be able to handle the matter on his own.
The Complainant's position
- [19]The Complainant submits that the Respondent has been afforded many months to prepare for this matter and to obtain any legal advice or representation, noting that the Complainant's entire case was served on the Respondent by, at the very latest, 1 October 2024. The Complainant submits, further to this point, the Respondent has had ample opportunity to obtain legal advice and representation as the matter has been on foot in one form or another for over two years. The Complainant emphasises the fact that the Respondent did obtain legal advice and representation in relation to other matters which have a factual overlap with the matters before the Commission in this case.
- [20]The Complainant further submits that she would be significantly prejudiced by a further adjournment in circumstances where the matter is part heard and the Complainant is currently under oath. The Complainant also submits that the Complainant has endured numerous delays to date as a result of what appears to be a lack of engagement by the Respondent in the Commission process, even though the Respondent has shown a capacity to put his version of events and the case to the Complainant. The Complainant also notes that her and those caring for her children have had to forego income and work each day of the proceedings. The Complainant also submits that further adjournment would exacerbate her mental health. The Complainant also submits that any adjournment would present a significant waste of resources referring to the vacated hearing dates of the Commission and the security officer and translator costs mentioned above.
Consideration
- [21]The Commission is an inferior tribunal of record. Significant resources are devoted to conducting its business. In this case, security was arranged for each day of hearing as were translators. That cost was borne by the State. This matter has been set down for hearing for quite some time. As noted above, directions setting the hearing down for 2 and 3 December 2024 were issued on 21 August 2024. The matter has been on foot for many, many months prior. A great deal of time, energy and resources have been devoted to hearing the matter at its allotted time. In my view, I see no reason why the above-mentioned principles, adopted by his Honour in Perry, should not also apply to proceedings in the Commission. In my view, there is no less a capacity for inefficient waste of significant resources should matters be adjourned in the Commission than where matters might be adjourned in the Court.
- [22]I find some force to the Complainant's submission that the Respondent has had ample opportunity to obtain legal advice and representation. I also accept that the Respondent has done so in relation to other matters not before the Commission but which share some of the same alleged factual narrative. It is clear that the Respondent simply chose not to take advice and be represented in this matter. It seems he regrets that decision and now seeks to delay proceedings in order to obtain legal advice and arrange for representation. I cannot accept the submission that the Respondent has not had sufficient time, or fair enough notice of the proceedings, in order to obtain advice or representation. On that basis I reject the Respondent's submission that it is appropriate to adjourn in order for the Respondent to take advice and arrange for representation.
- [23]I accept the Complainant's submission as to prejudice to the Complainant resulting from further delay. I accept that there is a cost thrown away that the Complainant bears should the adjournment application be granted. Whilst that could be remedied potentially with a costs order, this jurisdiction is not one where costs may readily be ordered without substantial time and further hearing of an application for such.
- [24]I am particularly concerned about the cost that the State will throw away on security officers, translators and hearing days of the Commission should the adjournment application be granted. I have observed above that the Commission is not the Court. However, his Honour's remarks in Perry are just as fitting for proceedings in the Commission as they are for proceedings in the Court in my view. Throwing away the hearing days allocated for this matter means that other matters that lay waiting for their turn did so needlessly. Late in the process, the Respondent changed his mind about his decision to represent himself. This case is not one that I find to be sufficiently meritorious as referred to in Perry. The Respondent had plenty of time to take advice and arrange representation. I find there to be no adequate reason for the application to adjourn. Accordingly, I dismiss the application.
Order
- The application for adjournment is dismissed
Footnotes
[1] SP v RB as Trustee for the R and R Family Trust [2024] QIRC 280.
[2] [2024] ICQ 8 ('Perry').
[3] Ibid [9]-[10].
[4] Ibid [17]-[19], [21].
[5] [2023] FCAFC 65 ('Dahdah'); Ibid [20], citing Dahdah (n 5) [166].
[6] Citations omitted.
[7] Perry (n 2) [21].
[8] Ibid [22], [36]-[37].
[9] Perry (n 2) [22]-[28].
[10] Ibid [30]-[32].
[11] Ibid [32].
[12] Ibid [35].