DR v IU & Ors [2023] QIRC 251

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: DR v IU & Ors [2023] QIRC 251 PARTIES: DR (Complainant) v IU (First Respondent) QV (Second Respondent) GJ (Third Respondent) AN (Fourth Respondent) CC (Fifth Respondent) SB (Sixth Respondent) CASE NO: AD/2022/78 PROCEEDING: Referral of a complaint DELIVERED ON: 21 August 2023 MEMBER: HEARD AT: Dwyer IC Brisbane ORDER: 1. Pursuant to s 451(2)(b) of the Industrial Relations Act 2016 (Qld) these proceedings be stayed until 21 August 2024. -- 1 of 7 -- 2 2. These proceedings be listed for mention on a date to be advised that is not before 22 August 2024. 3. The parties are at liberty to apply. 4. Pursuant to r 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 (Qld), the names of the parties in these proceedings are not to be published. CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – complaint of discrimination on the basis of impairment – where Complainant filed material that raises doubt as to his capacity to conduct proceedings on his own behalf – Commission acting on own initiative – stay ordered LEGISLATION AND OTHER INSTRUMENTS: CASES: Industrial Relations Act 2016 (Qld) ss 447 and 451 Industrial Relations (Tribunals) Rules 2011 (Qld) r 97 Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2023] QIRC 167 Kelsey v Logan City Council & Ors (No.7) [2019] QIRC 085 Robertson v McDonald's Australia Limited [2021] QIRC 344 Reasons for Decision (delivered ex tempore) Introduction [1] The Complainant in this matter ('DR') made an application to the Queensland Human Rights Commission ('QHRC') on 10 April 2022, alleging inter alia, impairment discrimination in the area of work. The matter was not resolved at the QHRC and was referred to the Queensland Industrial Relations Commission ('the Commission') on 24 October 2022 ('these proceedings'). -- 2 of 7 -- 3 [2] On 21 August 2023, the matter was listed for telephone mention before the Commission to resolve concerns the Commission had with respect to the capacity of DR to conduct these proceedings on his own behalf. [3] During the mention, the Commission explained to DR that the Commission intended to stay his application due to concerns it held about the impact of his mental health on his capacity to conduct these proceedings. Upon hearing this, DR became agitated, argumentative, and aggressive. After a short outburst, and before the Commission could deliver its reasons for staying these proceedings, DR terminated his telephone connection to the Commission. [4] The reasons that follow were delivered in the absence of DR. Relevant background [5] Following the referral of these proceedings to the Commission in October 2022, a conciliation conference was held on 3 November 2022. No resolution of the matter was reached. Consequently, directions were issued to the parties on 8 November 2022 requiring the filing of statements of facts and contentions ('SOFC'). [6] After the filing by each party of their SOFC, a further conciliation conference was scheduled for 7 June 2023. In the weeks leading up to the conciliation conference, DR filed three separate interlocutory applications making a series of requests for various orders. Some of the orders being sought were conventional (albeit premature). Other orders sought were sufficiently unconventional that they caused some preliminary concerns of the Commission as to DR's understanding of the process that he had initiated and the jurisdiction of the Commission. [7] More importantly, annexed to one of these applications was a document titled 'Functional Capacity Assessment' that had been completed by an occupational therapist in relation to DR ('the report'). The date of the report is 7 October 2021. The report contained concerning details as to the capacity of DR to conduct his daily affairs on his own behalf. In particular, the report provides, under the heading 'Cognition and Behaviour':1 “[DR's] cognition was assessed using the MOCA.2 He scored 7/22 which indicates that marked cognitive impairment exists. [DR] was agreeable to completing the assessment however, when he was asked to answer questions, he became very frustrated and agitated, which impacted his ability to engage with the questions. He demonstrated difficulty regulating his emotions when he was unable to answer questions proficiently. [DR] reports that he has had ongoing concerns with verbal- impulsivity and emotional regulation which has affected his ability to maintain meaningful 1 The report appears to have been prepared in the context of assessing DR's suitability to receive benefits under the NDIS or some other welfare scheme. 2 The Montreal Cognitive Assessment (or MoCA) is a screening tool which is used to assess mild cognitive impairment. -- 3 of 7 -- 4 relationships throughout his life. He appears to have marked difficulties with his executive functioning including self-regulation, reasoning, judgment, working memory, problem- solving, mental flexibility, and self-control. [DR] has some compulsive behaviours, particularly when experiencing auditory hallucinations, which inhibit him from conducting his usual activities of daily living (such as maintaining employment).” (Emphasis added) [8] The above quoted passage is but one portion of a lengthy report, most of which paints a similarly concerning picture of DR's cognitive capacity.3 [9] With the Commission now aware of the matters set out in the report, DR was invited at the conference on 7 June 2023 to comment on the significance of the report with respect to his ability to conduct the proceedings further. At that time he did not indicate that the report was outdated or that he had been reassessed.4 [10] Following the conference on 7 June 2023, the matter was adjourned to allow the Respondents to consider whether they wish to make an application. Since that time the Respondents have taken no steps in the proceedings. They have not brought any application. [11] In the circumstances, it now falls to the Commission to address the issue of DR's capacity. Legal principles – staying proceedings. [12] Section 447 of the Industrial Relations Act 2016 (Qld) ('the IR Act') relevantly provides: 447 Commissions functions (1) The commission's functions include the following – … (n) dealing with – (i) applications brought under this Act or another Act, including for public service appeals; or (ii) claims relating to dismissals. … (2) The commission must perform its functions in a way that – (a) is consistent with the objects of this Act; and (b) avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act. (Emphasis added) 3 Additionally, DR's conduct at the recent mention of the proceedings on 21 August 2023 clearly reflects all of the characteristics listed in the quoted passage and the impact they have on his ability to properly engage with the Commission in legal proceedings. 4 A similar request was made of him at the mention on 21 August 2023 and he was still unable to inform the Commission that this report was in anyway outdated or that he had a subsequent or different evaluation. -- 4 of 7 -- 5 [13] Section 451 of the IR Act provides: 451 General powers (1) The commission has the power to do all things necessary or convenient to be done for the performance of its functions. (2) Without limiting subsection (1), the commission in proceedings may— (a) give directions about the hearing of a matter; or (b) make a decision it considers appropriate, irrespective of the relief sought by a party; or (c) make an order it considers appropriate. (Emphasis added) [14] In Kelsey v Logan City Council & Ors (No.7),5 ('Kelsey') Vice President O'Connor identified certain relevant principles to be considered for stay applications: [24] It is accepted that Ms Kelsey has a prima facie entitlement to have her action tried within the ordinary course of the business of the Commission. It follows that it is a serious matter to interfere with that entitlement. The granting of a stay requires justification on proper grounds. The onus is on the Second to Ninth Respondents to demonstrate that it is just and convenient that Ms Kelsey 's ordinary rights should be interfered with. As stated by Hayne J in Australian Securities Commission v Cavanagh: In my view it is therefore clear that unless reason is shown to the contrary, a plaintiff is entitled to have its action tried in the ordinary course of the procedure and business of the court and that it is a grave matter to interfere with that entitlement by a stay of proceedings, the grant of which would require justification on proper grounds. In the end the task is one of the balancing of justice between the parties taking account of all relevant factors and adjudging the case on its own merits. (Emphasis added and citations removed) [14] The Commission as currently constituted has previously observed that an order staying the right to pursue legal proceedings represents a denial of a fundamental right to seek remedy for a grievance. The consideration of an application to either dismiss or stay proceedings must involve careful and thorough consideration of the relative prejudice to each party, and the Commission ought to strive to achieve an outcome that best serves the interests of justice.6 [15] The Commission is vested with the statutory powers to control proceedings, including dismissing proceedings or by imposing a stay on proceedings. The power extends to circumstances where the interests of justice require a stay of proceedings.7 5 [2019] QIRC 085, [24]. 6 Robertson v McDonald's Australia Limited [2021] QIRC 344, [36] – [39]. 7 Kelsey v Logan City Council & Ors [2019] QIRC 085, [22]. -- 5 of 7 -- 6 [16] Section 451 of the IR Act allows the Commission in proceedings to make a decision it considers appropriate, irrespective of the relief sought by a party or an order it considers appropriate.8 Consideration [17] DR provided the report to the Commission as an attachment to an interlocutory application filed on 2 June 2023. The Commission did not seek the report, nor did the Respondents require it. Notwithstanding that DR supplied the report in an entirely unsolicited fashion, it has now been placed before the Commission and it is sufficiently important to the fair conduct of this matter that it cannot be ignored. [18] The report provides extensive details confirming DR's significant cognitive impairment. As such, it raises a serious concern for the Commission that DR lacks capacity to conduct these proceedings on his own behalf. Given the report is dated October 2021, it is open to conclude that (in the absence of evidence to the contrary) DR has been lacking in capacity since before he filed these proceedings and that he continues to lack capacity. Until the concerns of the Commission are displaced, fairness to DR requires the matter to be stayed. [19] Ordinarily, a party facing the prospect of a stay of their proceedings would have an opportunity to be heard on the matter. However, in the circumstances of this case, the Commission finds itself in the difficult position of being privy to the report that discloses DR's serious cognitive impairment in clear and compelling terms. In those circumstances, not only is there little utility in seeking submissions on a stay from DR, but the exercise in doing so would itself be inherently unfair. [20] The only avenue open to ensure fair and practical conduct of these proceedings at this point is to stay the application until such time as DR can displace the concerns about his capacity. In the circumstances, I propose to stay the matter for a period of 12 months from the date of this decision. Non-publication of names [21] For completeness, I would add that I consider it appropriate to make orders anonymising the parties to these proceeding. In light of the content of the report disclosed above and the serious question it raises as to the capacity of DR (dating back to the period before his application was filed in the QHRC), caution ought to be exercised to avoid unnecessary or unwarranted public disclosure of these matters. 8 Industrial Relations Act 2016 (Qld) s 451(2)(b). -- 6 of 7 -- 7 [22] It is one thing to rigorously apply the rule of open justice to a competent litigant possessed of all capacity and free will.9 It is another thing again to impose the rule on a person who, possibly afflicted by a serious mental illness, started a proceeding they may not have started had they been unimpaired by mental illness. Order [23] In all of the circumstances, I make the following order: 1. Pursuant to s 451(2)(b) of the Industrial Relations Act 2016 (Qld) these proceedings be stayed until 21 August 2024. 2. These proceedings be listed for mention on a date to be advised that is not before 22 August 2024. 3. The parties are at liberty to apply. 4. Pursuant to r 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 (Qld), the names of the parties in these proceedings are not to be published. 9Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2023] QIRC 167, [21] – [24]. -- 7 of 7 --