Cady v Capital SMART Repairs Australia Pty Ltd & Anor [2019] QIRC 144

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

Paul Scott v State of Queensland & Ors. [2019] QIRC 115

Mr M. Alden of Cornwalls for the First and Second Respondents.

[1] Mr Wayne Cady was employed by Capital SMART Repairs Australia Pty Ltd ('Capital') as a 'Paint Prepper' at Capital's Darra site.

[2] On about 10 December 2018, he resigned from his employment with Capital.

[3] By complaint form dated 20 February 2019, Mr Cady lodged a complaint with the Anti‑Discrimination Commission Queensland alleging that he had been the subject of sexual harassment and victimisation in the workplace in contravention of the Anti‑Discrimination Act 1991.

[4] On 3 June 2019, Mr Cady's complaint was referred to the Queensland Industrial Relations Commission ('the Commission') in accordance with s 166 of the Anti-Discrimination Act 1991 ('the Complainant's proceeding').

[5] By Directions Order of the Commission dated 10 June 2019, it was ordered that any party seeking to be legally represented was to file and serve an application for leave by 21 June 2019. By notice filed on 24 June 2019, Workers First Pty Ltd were appointed as the agent for Mr Cady. By Order dated 5 July 2019, Cornwalls were given leave to legally represent the Respondents.

[6] By Further Directions Order dated 5 July 2019, Mr Cady was directed to file in the Industrial Registry and serve the Respondents, by 4.00 p.m. on Monday, 5 August 2019, a statement of facts and contentions in relation to his complaint referred by the Anti‑Discrimination Commission Queensland to the Commission. The Respondents were directed to jointly file in the Industrial Registry, and serve and Mr Cady, by 4.00 p.m. on Monday, 29 August 2019, their responses to Mr Cady's statement of facts and contentions. The Further Directions Order also provided that following disclosure, the parties were directed to participate in a conciliation conference, before me, today at 2.00 p.m.

[7] By notice filed on 15 August 2019, Workers First Pty Ltd withdrew as Mr Cady's agent.

[8] By application in existing proceedings filed by the Respondents on 13 September 2019, ('the Respondents' application') the Respondents sought an order that the matter be dismissed pursuant to r 45(2) and (3) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules').

[9] The basis for the order sought is set out in an affidavit sworn by Mr Martin Alden, a partner of Cornwalls, on 12 September 2019 and filed with the Respondents' application namely, that:

• the Respondents deny the allegations made by Mr Cady;

• on 9 August 2019, Workers First Pty Ltd forwarded an email to the Commission, which was subsequently forwarded to Cornwalls, in which Workers First Pty Ltd advised it was still waiting to receive instructions from Mr Cady and had been unable to contact him to receive his instructions on how he wished to proceed with the matter;

• on 12 August 2019, Cornwalls informed the Commission that the Respondents had not received Mr Cady's statement of facts and contentions as ordered by the Further Directions Order dated 5 July 2019;

• on 14 August 2019, Workers First Pty Ltd emailed the Commission, which was subsequently forwarded to Cornwalls, advising it had been unable to contact Mr Cady and receive clear instructions and therefore was withdrawing its representation;

• on 2 September 2019, Cornwalls informed the Commission that the Respondents had still not received Mr Cady's statement of facts and contentions as ordered by the Further Directions Order dated 5 July 2019; and

• as at 12 September 2019, Mr Cady had still not served the statement of facts and contentions on the Respondents and the Respondents had not received any other correspondence from Mr Cady in relation to the requisite statement of facts and contentions.

[10] By Further Directions Order dated 16 September 2019:

• the conciliation conference listed for 2.00 p.m. today was vacated;

• Mr Cady was ordered to file in the Industrial Registry, and serve on the Respondents, any affidavit in response to the Respondents' application by 4.00 p.m. on Friday, 27 September 2019; and

• the Respondents' application was set down for hearing at 2.00 p.m. today.

[11] Mr Cady has not filed any affidavit material.

[12] The matter was called at the commencement of today's hearing. Mr Cady did not attend today's hearing. No other notice or advice was received by the Commission from Mr Cady about his non-attendance today or his non-compliance with the Further Directions Order dated 5 July 2019.

[13] Accordingly, I heard the Respondents' application in Mr Cady's absence.

[14] Rule 5 of the Rules provides that the Rules apply to a proceeding before the Court, the Commission, a Magistrate or the Registrar. Rule 6 relevantly provides that the purpose of the Rules is to provide for the just and expeditious disposition of the business of the Commission at a minimum of expense

1. Failure to attend or to comply with directions order

(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.

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

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

[16] Rule 45 was recently considered by O'Connor VP in the matter of Paul Scott v State of Queensland & Ors.[1] That case involved an application, made pursuant to r 45 of the Rules, by the Respondents to dismiss a complaint referred to the Commission from the Anti‑Discrimination Commission Queensland under the Anti-Discrimination Act 1991 because of the Complainant's failure to comply with Directions Orders made by the Commission.

[17] In granting the Respondents' application, his Honour relevantly stated:[2]

[8] In Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd 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 & Anor 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] Whilst Quinlan v Rothwell & Anor related to the application of the Uniform Civil Procedure Rules 1999 in respect of application to dismiss for want of prosecution, in my respectful view, the reasoning of Thomas JA has equal application to the current proceedings.

[10] In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd, Wilcox and Gummow JJ in dealing with a similar provision under the Federal Court Rules stated that the discretion conferred by the rule was:

unconfined, except for the condition of noncompliance with a direction ... [b]ut two situations are obvious candidates for the exercise of the power." The first were "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". The second were 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.

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.

[18] Vice President O'Connor also said that the discretion conferred under r 45 must be exercised judicially.[3]

The Complainant's proceeding should be dismissed

[19] Like in the case of Scott, Mr Cady did not appear today. No explanation has been given for his non-attendance today or for his failure to comply with the Further Directions Order dated 5 July 2019.

[20] In my view, this is a case where I should exercise my discretion to dismiss the Complainant's proceeding as referred to the Commission from the Anti-Discrimination Commission Queensland.

[21] Mr Cady's non-compliance with the Further Directions Order dated 5 July 2019 is not minor. The first order made was for Mr Cady to file and serve a statement of facts and contentions in relation to his complaints that the Respondents contravened the Anti‑Discrimination Act 1991. It seems to me that Mr Cady's silence and his non‑compliance indicates an inability or unwillingness to cooperate with the Commission and the Respondents in having the matter ready to be dealt with by the Commission either by way of conciliation or final hearing.

[22] For the above reasons, pursuant to r 45(3) of the Rules, I dismiss the Complainant's proceeding.

[1] [2019] QIRC 115.

[3] [2019] QIRC 115, [13] citing House v The King [1936] HCA 40; (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).