Smith & Sherlock v State of Queensland

Industrial Relations (Tribunals) Rules 2011 (Qld), rr, Rule 45(2)(a)

Public Interest Disclosure Act 2010 (Qld)

Fuller v Toms [2010] QCA 283

Hutinel v Gardenhouse Australia Pty Ltd [2023] QIRC 085

Orchid Avenue Realty Pty Ltd v Percival [2003] QIC 160

Scott v the State of Queensland and Others [2019] QIRC 115

• [1] On 27 October 2023 the Respondents in this matter filed an application in existing proceedings seeking the following orders -

1. That the Commission strike out paragraphs [142] to [151] of the Complainant's SOFC (3) filed 9 October 2023, being each of the Complainant's contentions.

1. That the Commission strike out proceedings AD/2022/86 and 87.

• [2] The parties filed and served written submissions in accordance with a Directions Order issued by the Commission on 1 December 2023.

• [3] The Application was heard on 30 January 2024 and the decision and reasons were given from the Bench on 2 February 2024.
• [4] The decision and reasons below have been adopted from the transcript of 2 February 2024.

• [5] The Respondent submits that the Complainant's statement of facts and contentions filed on the 10th of October 2023 fails to disclose any cause of action with reasonable clarity. The Respondents submit that despite significant support from themselves and the Commission and the opportunity to file multiple versions of their statement of facts and contentions, the Complainants have failed to provide the Respondents a fair opportunity to understand the case against them. The affidavit of Tim Longwill was filed on the 10th of November 2023 and outlines the attempts made by the Respondents to seek further particulars from the Complainants, which they say were not successful. The Respondents submit that the Complainants' contentions are insufficiently particularised, fail to plead a cause of action, are legally flawed and are beyond the scope of their referred Queensland Human Rights Commission complaints.

• [6] Rule 45(2)(a) of the Industrial Relations (Tribunals) Rules 2011 (Qld) empowers the Commission to dismiss a proceeding where a party receives notice of directions or orders and fails to comply with the order. Section 451 of the Industrial Relations Act 2016 (Qld) allows the Commission to summarily dismiss an application in circumstances where a Complainant cannot comply with an order made by the Commission to articulate their case by way of a statement of facts and contentions. I note that the discretion to dismiss a proceeding must be exercised judicially. I do not consider that the Complainants have failed to comply with the order to file a statement of facts and contentions, nor am I of the view that the Complainants have not articulated their case by way of a statement of facts and contentions.

• [7] There are certainly difficulties with the way that the Complainants have chosen to express their case. However, that is not unusual in matters involving self-represented litigants. The filing of multiple statements of facts and contentions was an attempt to fulfil their obligations to provide further details, and although some of the contentions may be unclear, it would be unjust to dismiss the entire claim on that basis. I'm not satisfied that the Complainants' statement of facts and contentions is so lacking in particulars that the Respondents do not know the case they must meet.

• [8] The Respondents refer to the matter of Scott v the State of Queensland and Others,[1] and the Vice President's consideration of an application to dismiss a matter similarly brought under the Anti-Discrimination Act 1991 (Qld). I note that the history of that matter involved continual non-compliance by a Complainant with respect to directions to file a statement of facts and contentions and non-attendance in the Commission. A similar pattern of non-compliance was the basis of the application in another matter referred to by the Respondents, Hutinel v Gardenhouse Australia Pty Ltd.[2]

• [9] Those proceedings can be distinguished from this matter, in that the Complainants have complied with directions and have filed a number of versions of their statement of facts and contentions in response to requests for further and better particulars by the Respondent and directions to refile their statements by the Commission. The Complainants have attended the Commission when directed and have shown a willingness to cooperate with the Commission in having the matter proceed to trial in a timely manner. To ensure that the Complainants have a fair opportunity to have their claim determined, I have decided not to dismiss the matter.

• [10] The second order sought by the Respondents is that the Commission strike out - sorry. We'll move on the alternative order sought, which is that the Commission strike out paragraphs 142 to 151 of the Complainant's statement of facts and contentions, filed on the 9th of October, being each of the Complainant's contentions. I'll firstly address the matters referred to in the Respondents' submissions as insufficiently particularised. Whilst the allegations have not been drafted with specificity with respect to the particular words in the section of the Anti-Discrimination Act 1991 (Qld), the relevant sections and subsections have generally been identified. There are a number of unclear statements and potentially erroneous references to other statutes and provisions. However, I'm satisfied that the allegations are sufficiently clear to allow the Respondent to respond.

• [11] The Respondents submit that the Complainants repeatedly use terms such as discrimination and victimisation in a manner that makes it unclear as to whether the terms are being used in a colloquial sense to indicate some adverse treatment or in reference to a specific legal proposal. The Complainants have made it clear that they have chosen the terms carefully, particularly the terms "victimisation" or "reprisal", to reflect a particular legal course of action, depending on the date of the alleged conduct. The Respondent can respond on the basis that these terms have been used intentionally to allege particular unlawful conduct.

• [12] The Respondents make submissions relating to paragraphs 142, 146, 147, 148 and 149 of the Complainants' statement of facts and contentions, which allege that the Respondents have engaged in victimisation. Each of these paragraphs reference earlier descriptions of alleged conduct relevant to those contentions. Whilst having to cross-reference material that does not specifically outline the conduct in the context of a particular subsection of the Act may be onerous, I'm not satisfied that the Respondent is unable to respond to those allegations.

• [13] The Respondents submit that the contentions are legally flawed, particularly those of indirect discrimination on the basis of the attribute, marital status. As I understand it, the Complainants allege that s 8 of the Anti-Discrimination Act 1991 (Qld) extends the definition to include commonly associated aspects of the marital status attribute as being potentially influenced by the marital partner. As far as I'm aware, this is a novel contention. However, I'm unwilling to dismiss it before it can be fully ventilated. The opportunity for that to occur is at a hearing.

• [14] I'm satisfied that the Respondent is able to respond to the allegations. Similarly, it's appropriate that the Complainants' contentions that Mr Smith has protections arising from both the Anti-Discrimination Act 1991 (Qld) and the Public Interest Disclosure Act 2010 (Qld) be tested at a full hearing. If the Respondent holds a view that the Complainants' legal reasoning regarding "mixed attributes" and the attribute of marital status is fundamentally flawed, it can say so in its response to the statement of facts and contentions.

• [15] The Respondents submit that some of the claims are beyond the scope of their referred Queensland Human Rights Commission complaints. I note that the Complainants dispute this submission, contending that the allegations were raised in a complaint before the QHRC. The documentary evidence, including the initial complaint form, indicate that this is an arguable proposition. It is a matter for argument before the substantive decision-maker as to whether these matters were, in fact, raised before the QHRC and, if not, whether to accept matters not previously raised.

• [16] The Respondents referred the Commission to a number of matters relating to Fuller v Toms proceedings, both at trial and on appeal.[3] These decisions refer to pleadings in a different jurisdiction and in court and whilst I have considered the findings, I do not consider that they should be applied to a statement of facts and contentions filed in this commission. As determined by President Hall in Orchid Avenue Realty v Percival:[4]

... great care must be exercised to ensure that under the guise of achieving expeditious finality an applicant is not improperly deprived of the opportunity of having the case tried by the appointed tribunal ...

• [17] I'm not persuaded that the Respondent is not on proper notice of the case they must meet. It is often the case that self-represented Complainants do not present their claim in an orthodox manner covering all of the relevant legal elements. I appreciate the efforts that the Respondent have - have gone to in attempting to - to assist the Complainants; however, I am not of the view that that has all been in vain. Each of the contentions broadly outline a particular allegation referencing relevant alleged facts. I accept that some of these contentions would have been greatly improved with further particularisation; however, where there is ambiguity or a lack of clarity, the Respondent may note this in their response. If the Respondent is correct and some of the contentions are legally flawed, these allegations may well fail at hearing; however, it would be unfair to dismiss the Complainant's contentions at this stage, rather than permitting the matter to proceed to allow for a definitive, considered answer in response to evidence and argument put before the substantive decision-maker.

• [18] It would be entirely unfair, in my view, to dismiss the contentions where I am satisfied that the Respondents are broadly able to respond to the Complainant's case. It would be particularly unfair given that the lack of clarity in the Complainant's contentions extends, in part, from joining the two original claims. Whilst this joinder may ultimately make the process more efficient for all concerned, it appears that the cost of that is the presence of some overlapping or ambiguous contentions. In my view, the contentions, however, are not so ambiguous that it is not possible to discern the claim being made. I note that both parties have made submissions about the toll this litigation is taking on the individuals on both sides. I'm mindful of this and of the view that the matter should proceed to hearing and determination as soon as possible.

1. That the application in existing proceedings be dismissed.

[1] [2019] QIRC 115.

[3] [2010] QCA 283.

[4] [2003] QIC 160.