Gobus v Cairns and Hinterland Hospital and Health Service & Ors [2020] QCAT 134

[4] That caution is amplified within the Tribunal context to conduct proceedings in a way that is accessible, fair, just and according to principles of natural justice.[3] Summary relief to end proceedings early should only be granted in clear cases.[4] Within this context, the Tribunal has consistently expressed its reticence to too readily prevent an independent hearing about an alleged breach of human rights:[5]

The Parliament of Queensland in the Anti-Discrimination Act 1991 expressly stated that everyone should have the right to equal protection and benefit of the law without discrimination, that the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society and that the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone.[6]

[5] The threshold to dismiss a complaint of reprisal without a full and proper hearing is therefore high. To surmount this, the respondents assert that they have been unnecessarily disadvantaged in responding to the contentions and that continuing to a hearing is an abuse of process.[7]

[6] On its face, much of Mr Gobus's material is at worst, scandalous and best, irrelevant. Allegations of conspiracy and judicial reprisal and seeking forms of relief not within the Tribunal's jurisdiction may be considered vexatious.[8] However, the Tribunal is not a jurisdiction where parties are expected to exchange particularised pleadings as would be the case in a court.[9]

[7] The adequacy of Mr Gobus's contentions is to be considered in a reasonable, realistic and pragmatic way: perfection in pleading practice is not an end in itself.[10] This is especially so in a jurisdiction that contemplates self-representation, embraces cost-effectiveness and eschews an unnecessarily technical approach.

[8] The material facts can be gleaned from a reading of the contentions and material as a whole.[11] Despite the Respondents' submissions that many of Mr Gobus's contentions make it impossible to respond in any meaningful way, they have proceeded to analyse them, respond to them, cite evidence and make submissions to refute them. The Respondents have therefore shown a commendable understanding of the case they must meet and not been unnecessarily disadvantaged.[12]

[9] Although Mr Gobus's contentions may not specifically address how the facts establish reprisal action, it is not unusual for the Tribunal to be asked to draw inferences from established facts.[13] It is then for the Tribunal Member at a full hearing to determine if the facts as established lead to a breach of the Act and an appropriate remedy.[14]

[10] A failure by Mr Gobus to expressly plead a connection between his disclosure and the alleged management action, does not lead to an inevitable conclusion that he is not contending that the alleged management action constituted reprisal action. [15] It is sufficient that the Tribunal can infer a connection from the alleged facts.

[11] In a jurisdiction where parties are often not legally represented, it is not unexpected that many of Mr Gobus's contentions have not been articulated with legal precision or may on their face appear to lack merit. The rules and procedures of the Tribunal do not result in the precise identification and statement of the issues in the way court procedures do.[16] Those issues that may be considered vexatious or irrelevant may be curtailed with proper management during the conduct of the hearing. One of the respondents is the State of Queensland. As a model litigant, it will be able to assist the Tribunal.

[12] Although many of Mr Gobus's contentions re-ventilate questions of fact and issues the subject of determinations in other jurisdictions, those findings are not determinative of the issues before the Tribunal:

The Tribunal's role [is] not to decide the case on the evidence before it but, rather, to determine whether an arguable case, no matter how weak, is demonstrated so that a strike out is either warranted, or unwarranted.[17]

[13] The essence of the findings in those other proceedings was that reprisal was found not to be a reason for Mr Gobus' dismissal. Conversely, the essential issue in these proceedings is whether the dismissal was reprisal action.

[14] While Tribunals strive for consistency in decision-making and findings in other related proceedings may be relevant and carry considerable weight, they are not determinative of these proceedings. This is because those other proceedings considered the application of other legislation to findings of fact made in those proceedings.

[15] In these proceedings, it is for the Tribunal at a full hearing and upon receiving evidence and submissions from the parties to determine the application of the Anti-Discrimination Act 1991 (Qld) to the facts as established. Any inconsistency in outcomes sought by Mr Gobus from the various proceedings is a matter of credit that can be addressed in the weight to be attached to his contentions.

[16] On the face of the material and given the findings in other jurisdictions, Mr Gobus may find it difficult to establish that he was treated in a certain manner because of his disclosure. This is because he will need to surmount the evidence of those contrary findings with evidence that is essentially the same as that adduced in those other proceedings. However, summary dismissal should not be granted simply because it appears an applicant is unlikely to succeed on an issue of fact.[18] This will need to be properly explored and considered at a full hearing, rather than dealt with summarily.

[17] The Tribunal is statutorily mandated to conduct proceedings in a way that is accessible, fair, just and according to principles of natural justice, inform itself in any way it considers appropriate, ensure that all relevant material is disclosed to it to decide the proceeding with all the relevant facts, and ensure the parties understand the nature of assertions made in the proceedings and the legal implications of the assertions.[19] In furtherance of this mandate and the integrity of a jurisdiction where parties are often self-represented, Mr Gobus should be given an opportunity to present his case at a full hearing.

[18] Questions of fact, including whether certain behaviour occurred and its underlying reasons, are properly considered at a full hearing and not dealt with summarily.[20] Similarly, whether that behaviour is sufficient to amount to reprisal action and ground a remedy is also a question to be properly determined at a full hearing. It will be a matter for the Member whether to accept Mr Gobus's evidence and conclude that it leads to any breaches of the Anti-Discrimination Act 1991 (Qld) and consequential remedies.[21]

[19] Only in a plain and obvious case should an order be made to strike out.[22] It is in the interests of justice that Mr Gobus has the opportunity to fully ventilate relevant issues. This means having a hearing where he has an opportunity to present his case to the extent that it is within the Tribunal's jurisdiction, rather than bringing the case to an end without allowing him that opportunity.

[20] It is always a very serious step to deprive a party of a cause of action without a hearing on the merits, and 'extreme care' must be taken before doing so.[23] It may be that the Mr Gobus is ultimately unable to substantiate any of his contentions, but procedural fairness requires that he be given an opportunity to do so at a full hearing.

[21] Should Mr Gobus not present his case in a way that is cogent and relevant, then his application is likely to fail but at least the Tribunal would have provided him with the opportunity to be heard in a fair and just environment.[24]

[22] The Respondents also submitted that Mr Gobus's application should be struck out because it includes "outrageous" allegations seeking relief outside the Tribunal's jurisdiction and includes "subpoena notices" to current and former Ministers of the Crown.

[23] However, seeking orders outside the Tribunal's jurisdiction is not a ground to summarily dismiss the application. This is because the Tribunal is not bound by the rules of evidence or pleading,[25] may inform itself in any way it considers appropriate[26] and must act with as little formality and technicality as a proper consideration of the issues permit.[27] If Mr Gobus proves his complaint, the Tribunal will be limited to one or more of a range of orders set out in the Act.[28]

[24] Mr Gobus is unrepresented and has mental health issues. The Tribunal has statutory obligations to ensure that a party understands the nature of assertions made in the proceeding and their legal implications and that proceedings are conducted in a way that responds to the needs of a party with impaired capacity or a physical disability.[29]

[25] Summarily dismissing Mr Gobus's application for failing to properly plead the outcomes he seeks would effectively impose an unnecessary technical requirement on a person with an impairment, contrary to the Tribunal's statutory obligations. In any event, the Tribunal is not satisfied that Mr Gobus understood that he faced the risk of his application being summarily dismissed if he did not confine the outcomes he seeks to those within the Act.

[26] Moreover, these and other procedural issues can be properly managed with appropriate case management and directions. Potential witnesses are not required to attend to give evidence in the Tribunal as a matter of course. The Tribunal has an overarching discretion on who can be called to give evidence and may refuse to allow a party to call evidence on a matter or cross-examine a witness.[30] This would appear to be an opportune case for it to exercise that discretion.

[27] The Application to strike out is refused.

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 47, 48.

[2] General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, [10] (Barwick CJ).

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 28(3)(a).

[4] Dey v Victorian Railways Commissioner (1949) 78 CLR 62; Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552, [57].

[5] McKinnon v State of Queensland and Anor (No 2) [2012] QCAT 566, [7]; Yeo v Brisbane Polo Club Inc. [2013] QCAT 261, [14] - [16]; Alexander v State of Queensland & Anor [2016] QCAT 142, [54].

[6] Harrison v Terra Search Pty Ltd & Ors [2014] QCAT 128, [9].

[7] McKinnon v State of Queensland & Anor (No 2) [2012] QCAT 566, [6].

[8] Attorney-General v Michael [1999] WASCA 181, [26], cited with approval in Lohe v Bird [2004] QSC 23 (McMurdo J).

[9] Smith v Corporation of the Synod of the Diocese of Brisbane & Ors [2013] QCAT 117, [12].

[10] Virgtel Ltd & Anor v Zabusky & Ors [2008] QSC 213, [15] (Daubney J).

[11] Talbot v Boyd Legal (A Firm) & Anor [2019] QSC 80.

[12] Mineral Resources Engineering Services Pty Ltd v Commonwealth Bank of Australia [2016] QSC 232; Harrison v Terra Search Ltd & Ors [2014] QCAT 128, [6].

[13] Alexander v State of Queensland & Anor [2016] QCAT 142, [26].

[14] McKinnon v State of Queensland & Anor (No 2) [2012] QCAT 566, [5].

[15] Jones v Queensland Health [2012] QCAT 167, [13].

[16] Olindaridge Pty Ltd & Ors v Tracey [2014] QCATA 40, [5].

[17] State of Queensland & Anor v Aigner [2013] QCATA 151, [46].

[18] Yeo v Brisbane Polo Club Inc. [2013] QCAT 261, [7] citing Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118.

[19] Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 3, 28, 29.

[20] Craig v Ravenshoe Community Centre Inc. & Ors [2012] QCAT 67, [68]; Yeo v Brisbane Polo Club Inc. [2013] QCAT 261, [6], citing General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125.

[21] McKinnon v State of Queensland & Anor (No 2) [2012] QCAT 566, [5].

[22] Yeo v Brisbane Polo Club Inc. [2013] QCAT 261, [16].

[23] Property Three Pty Ltd v Kallar & Anor [2018] QCATA 127, [21].

[24] Singh v Chief Executive of the Department of Transport and Main Roads [2010] QCAT 497, [7].

[25] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b); Smith v Corporation of the Synod of the Diocese of Brisbane & Ors [2013] QCAT 117, [12].

[26] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(c).

[27] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(d).

[28] Anti-Discrimination Act 1991 (Qld), s 209.

[29] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 29(1)(c)(ii).

[30] Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 95, 97, 98, 99.