Cohen v State of Queensland (Department of Education) & Anor [2023] QIRC 99

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Cohen v State of Queensland (Department of Education) & Anor [2023] QIRC 099 Cohen, Tami (Complainant) v State of Queensland (Department of Education) (First Respondent) & Walker, Andrew (Second Respondent) CASE NO: AD/2022/88 PROCEEDING: Referral of a complaint DELIVERED ON: 4 April 2023 MEMBER: HEARD AT: ORDER: McLennan IC On the papers That the proceeding is dismissed pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011. CATCHWORDS: LEGISLATION: HUMAN RIGHTS – DISCRIMINATION – OTHER MATTERS – whether to dismiss proceeding – where complainant was directed to attend a conference and failed to do so – where complainant failed to comply with directions – consideration of r 45 of the Industrial Relations (Tribunals) Rules 2011 – proceeding dismissed Industrial Relations Act 2016 (Qld) s 451 Industrial Relations (Tribunals) Rules 2011 (Qld) r 6, r 45 -- 1 of 10 -- 2 CASES: Cady v Capital SMART Repairs Australia Pty Ltd & Anor [2019] QIRC 144 Cooper v Hopgood & Ganim [1998] QCA 114 House v R (1936) 55 CLR 499 Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200 Seymour v Workers' Compensation Regulator [2017] QIRC 061 Smith v Workers' Compensation Regulator [2017] QIRC 070 Workers' Compensation Regulator v Varga [2019] QIRC 028 Reasons for Decision Background [1] On 1 December 2022, the Queensland Human Rights Commission filed a Form 85 – Referral of a matter regarding a complaint made by Ms Tami Cohen (the Complainant) under the Anti-Discrimination Act 1991 (Qld) (the Complaint). [2] On 5 December 2022, the Industrial Registry issued a Directions Order requiring that any party seeking to be legally represented file and serve a Form 4 Application in existing proceedings by 23 January 2023. The Respondent filed the relevant documentation on 19 January 2023. The Complainant did not seek to be legally represented. [3] On 30 January 2023, the Industrial Registry sought the parties' availability to attend a conference in February – March 2023. The Complainant advised she would be available "at the end of March due to work commitment" and the Respondents advised their availability in late March included 20 and 21 March 2023. [4] In light of the parties' availability, on 8 February 2023, a notice of listing was issued setting down a conference for 21 March 2023 at 10:00am. [5] The notice of listing was issued to both parties and stated: "A matter has been listed before the Queensland Industrial Relations Commission and, unless otherwise advised, all named parties are required to appear." The notice clearly outlined the time and date of the listed conference. [6] On 13 February 2023, the Complainant requested that she "appear via phone/teams" as she lives on the Sunshine Coast. On 14 February 2023, leave was granted for the -- 2 of 10 -- 3 Complainant to appear via telephone and the Industrial Registry requested that she confirm her best contact number. The Complainant did not respond to that request. [7] On 21 March 2023, the Respondents appeared at the listed conference. The Complainant did not physically appear and was not contactable via the telephone number provided in the Complaint. I am satisfied that the Commission's external telephone provider attempted to telephone the Complainant four times – at 9:57am, 10:00am, 10:04am and 10:12am. The provider advised that their telephone calls went through to the Complainant's personalised voicemail. My Associate also dialled the Complainant's telephone number at 10:01am which went through to the Complainant's personalised voicemail. My Associate left the Complainant a voicemail message requesting an urgent return call, but the Complainant did not return that call. [8] Following the conference on 21 March 2023, the Industrial Registry emailed the parties, providing: Dear Ms Cohen, On 8 February 2023, a Notice of Listing was issued in the abovementioned matter requiring attendance at a Conference listed for 10:00am today. On 13 February 2023, you sought leave to attend via telephone. On 14 February 2023, leave was granted for you to do so. We attempted to telephone you numerous times this morning but were unable to reach you. Please provide an explanation for your non-attendance by 9:00am tomorrow, 22 March 2023. If you do not provide a satisfactory response by that time, a Directions Order will be issued requiring submissions as to whether this matter should be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld). [9] On 21 March 2023, the Complainant responded as follows: Thank you Team, I am working at a school in Caboolture with very limited reception coverage. I have not received any call today. I am on school holidays starting on 30/03 and will be based on the Sunshine Coast so my reception will be much better. I am more than happy to wait until then to ensure this call can go ahead. Thank you [10] In response to the Complainant's email, on 22 March 2023, I issued a Directions Order, requiring: 1. That the Complainant file in the Industrial Registry and serve on the Respondent, an affidavit by 4:00pm on 24 March 2023 that contains answers to the following questions: a. Having received the Notice of Listing requiring attendance at a Conference at 10:00am on 21 March 2023, why did you choose to accept work at a school in Caboolture "with very limited reception coverage"? b. What arrangement, if any, did you put in place to participate in the Conference via telephone at the nominated time? c. If you did not receive numerous phone calls at or around 10:00am on 21 March 2023, why did you not take immediate steps to make enquiries with the Industrial Registry? -- 3 of 10 -- 4 d. Please provide an extract of your mobile phone records to demonstrate that you did not receive any phone calls at or about 10:00am on 21 March 2023. Note: Commissioner McLennan is aware that in addition to the numerous attempts to join you by teleconference by the external provider, Madam Associate herself called your number and left a message on your voicemail at precisely 10:01am and the record of that call is available. [11] In response to that correspondence, on 22 March 2023, the Complainant replied: This is ridiculous! An affidavit? Do you understand that I am at work? Working educating children’s and therefore cannot take a day off to go and write an affidavit or to have it signed by a JP?????? This only goes to show that you don’t even want to have this matter heard!! Shame on you! [12] In response to the Complainant's concerns, I issued an amended Directions Order in terms identical to that produced at [10] above except that the deadline was pushed back to 4:00pm on 27 March 2023. In the body of the email, the Industrial Registry advised: Dear Ms Cohen, Commissioner McLennan is not satisfied with the explanation provided in your email of 21 March 2023. Out of an abundance of fairness to you, you have been directed to provide an affidavit in which you swear to its contents (rather than a simple email) and address specific questions in Commissioner McLennan’s mind given the brevity of the explanation provided by you on 21 March 2023. The Directions Order requiring a response by 4:00pm on Friday was issued as Commissioner McLennan understood you work as a casual supply teacher. However, the attached Amended Directions Order gives you until 4:00pm on Monday, 27 March 2023 should you require the weekend to prepare an affidavit and have it witnessed by a JP or lawyer. In the event you do not comply with the Amended Directions Order, the parties will be invited to provide submissions as to whether or not this matter should be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld). [13] The Complainant did not comply with the Directions Order. The only form of correspondence that the Industrial Registry received from the Complainant was an email addressed to QCAT enquiring about "My QCAT Matter" that was seemingly sent to the Industrial Registry in error on 28 March 2023. The Industrial Registry responded to that correspondence alerting the Complainant to the apparent error. [14] On 28 March 2023, I issued another Directions Order requiring: 1. That the Complainant file in the Industrial Registry, and serve on the Respondents, written submissions (of no more than three pages in length and any relevant attachments) as to why the matter should not be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) by 12:00pm on 30 March 2023. 2. That the Respondents file in the Industrial Registry, and serve on the Complainant, written submissions in response to the Complainant's submissions (of no more than three pages in length and any relevant attachments) by 12:00pm on 3 April 2023. -- 4 of 10 -- 5 3. That, if needed, the Complainant file in the Industrial Registry, and serve on the Respondent, written submissions (of no more than one page in length and any relevant attachments) in reply to the submissions of the Respondent, by 12:00pm on 4 April 2023. 4. Unless any party files an application by 4:00pm on 4 April 2023 for leave to make oral submissions or further written submissions, the matter will be dealt with on the papers pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld). [15] In the body of the email attaching the Directions Order dated 28 March 2023, the Industrial Registry outlined: As the Complainant has not complied with the Directions Order issued 22 March 2023, please find attached a further Directions Order issued today at the hand of Industrial Commissioner McLennan. The parties are required to file submissions as to whether or not the matter should be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) which provides: (1) This rule applies if— (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. (2) This rule also applies if— (a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and (b) the party fails to comply with the order. (3) The court, commission or registrar may— (a) dismiss the proceeding; or (b) make a further directions order; or (c) make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or (d) make orders under paragraphs (b) and (c). [16] The Complainant did not file written submissions as directed. As directed, the Respondents filed written submissions on 3 April 2023. The Complainant did not file any submissions in reply and neither party filed an application for leave to make oral submissions or further written submissions within the prescribed timeframes. [17] The Complainant did not comply with the notice to attend the conference on 21 March 2023 and did not comply with the subsequent Directions Order requiring an affidavit expanding on her explanation for her failure to appear (even though the deadline for filing that affidavit was extended in light of the Complainant's work commitments). The Complainant also failed to comply with the subsequent Directions Order requiring submissions as to whether or not her matter should be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld). Even now, the substantive requirements remain unfulfilled. The Complainant has not contacted the Industrial Registry to explain the latest failures to comply. [18] For the reasons that follow, I have determined that the Complainant's continued and unexplained non-compliance warrants the dismissal of this proceeding. -- 5 of 10 -- 6 [19] I have carefully considered the Respondents' submissions and although I have determined not to approach the writing of this decision by summarising the entirety of those submissions, I will refer to key arguments in my consideration. Rule 45 [20] Rule 45 of the Industrial Relations (Tribunals Rules) 2011 (Qld) (the Tribunals Rules) is in the following terms: 45 Failure to attend or to comply with directions order (1) This rule applies if— (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. (2) This rule also applies if— (a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and (b) the party fails to comply with the order. (3) The court, commission or registrar may— (a) dismiss the proceeding; or (b) make a further directions order; or (c) make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or (d) make orders under paragraphs (b) and (c). [21] The power under r 45(3)(a) of the Tribunals Rules involves an exercise of discretion. Foremost, discretionary powers must be "exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion."1 In exercising that discretion, I am informed by several factors, which are set out below. Ultimately, however, I must consider the particular circumstances of this case.2 [22] In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd,3 their Honours Wilcox and Gummow JJ considered a provision under the Federal Court Rules which is materially similar to r 45 of the Tribunals Rules. In that case, their Honours identified two broad types of failure to comply with directions which would warrant the dismissal of a matter (emphasis added): As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: 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 and 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. Although the 1 House v R (1936) 55 CLR 499, 503. 2 Cooper v Hopgood & Ganim [1998] QCA 114, 6; citing Witten v Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405. 3 [1990] 98 ALR 200. -- 6 of 10 -- 7 history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. 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. In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the Court's directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent.4 [23] Such reasoning was followed by O'Connor VP in Workers' Compensation Regulator v Varga5 and Seymour v Workers' Compensation Regulator,6 as well as by Merrell DP in Cady v Capital SMART Repairs Australia Pty Ltd & Anor.7 [24] In the exercise of my discretion under r 45 of the Tribunals Rules, I am also minded to consider the purpose of the Tribunals Rules, as set out in r 6: 6 Purpose of rules 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. [25] In Smith v Workers' Compensation Regulator, O'Connor DP (as he then was) concluded: The Commission has an obligation to actively manage the matters filed in the Industrial Registry and to ensure the parties comply with the directions orders issued by it. The Rules aid the Commission to case manage its list; to assist the parties to prepare their cases; to ensure the efficient use of the Commission's time and resources; and to assist in the resolution of the real issues in the proceedings.8 Consideration [26] Rule 45 of the Tribunals Rules clearly applies to this proceeding insofar as the Complainant failed to attend a conference for which she had been issued notice to attend pursuant to r 45(1)(b). Further, the Complainant failed to comply with Directions Orders pursuant to r 45(2)(b). [27] Section 451(1)(a) of the IR Act empowers the Commission to exercise its power on its own initiative. I will now consider whether I should exercise my discretion to dismiss the proceeding pursuant to r 45(3)(a) of the Tribunals Rules. 4 Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] 98 ALR 200, 210. 5 [2019] QIRC 028. 6 [2017] QIRC 061. 7 [2019] QIRC 144. 8 [2017] QIRC 070, [10]. -- 7 of 10 -- 8 Continuing non-compliance [28] The Complainant's default is certainly continuing, given her failure to attend the conference for which she received ample notice and ongoing failure to comply with the substantive requirements outlined in the Directions Orders. [29] The Complainant stated that her failure to attend the conference was due to working at a school with "very limited reception coverage" and she had "not received any call" on 21 March 2023. However, that explanation does not sufficiently account for the Complainant's subsequent non-compliance and lack of communication with the Commission. Further, that explanation is not supported by any evidence despite the Complainant being given the opportunity to do so. [30] The Complainant was directed to file an affidavit supporting her explanation for failing to attend the conference. That direction was made to afford the Complainant the opportunity to respond to several questions and give her the opportunity to provide evidence in support of the explanation. I raised the questions because the explanation appeared peculiar. Of particular concern was the fact that the Industrial Registry had not received any correspondence from the Complainant in proximity to the commencement of the conference. It seemed peculiar that the Complainant would not contact the Industrial Registry to ascertain why she had not received a telephone call or, knowing that the reception was limited, the Complainant did not make alternative arrangements to be contactable. [31] The deadline for providing a response was extended out of fairness to the Complainant, however she still did not comply. Failure to answer the questions in the form of an affidavit as directed reflects an indifference to the Commission's processes. [32] Even if the "limited reception coverage" explanation accounted for failure to comply with the requirement to attend the conference, it does not explain the later instances of non- compliance, particularly as the Complainant was made well aware that this issue could result in her matter being dismissed. Inability or unwillingness to co-operate [33] The Applicant's continuous disregard for compliance has evinced in my mind that this behaviour will be repeated, and this matter will be drawn out substantially to the Respondents' detriment. I am not convinced that giving further chances to explain and adhere to the Directions Orders or listing further conferences is appropriate as the Complainant has already evinced disregard for the Commission's processes. Even if I am wrong on that point, the Complainant's non-compliance demonstrates an unwillingness or inability to proceed in accordance with the Tribunals Rules. -- 8 of 10 -- 9 [34] On several occasions, the Complainant was issued with correspondence from the Industrial Registry and copied into correspondence from the Respondents that ought to have served as a reminder of her obligations under the Directions Orders and a prompt to action the requirements. [35] The Complainant emailed the Industrial Registry after the notice was issued requesting leave to appear via telephone – therefore I am satisfied the Complainant was aware of the listing. Further, the Complainant's initial explanation for failing to attend was that she did not have telephone reception. However, it is clearly unreasonable that in those circumstances, the Complainant did not endeavour to contact the Industrial Registry in some way to ascertain the status of a conference listed in her own matter. [36] I have no doubt that the Complainant understood her obligations under the Directions Orders, as these were clearly stipulated. That was also evidenced when the Complainant responded to the direction to file an affidavit with, "This is ridiculous!" The clear lack of regard for the substantive directions indicates that the Complainant does not want to put enough effort into giving the Commission and Respondents the courtesy of a proper response. [37] Noting that the Complainant has failed to comply with a notice to attend a conference and several sets of Directions Orders, the cumulative effect of the non-compliance is substantial enough to satisfy me that the Complainant is either unwilling to comply or for some reason is unable to do so and as a result, the Respondents' position is prejudiced. Causing unnecessary delay, expense and prejudice [38] By failing to attend the conference and respond to the Directions Orders, the Complainant has and continues to extend the time between now and the determination of the Complaint. The impact of the initial non-compliance alone was that the Respondents prepared for and blocked out a considerable period of time to either physically or remotely attend the Commission. Further, I spent considerable time getting across all materials filed and blocked out a substantial period of time for the conference only for the Complainant to provide a poor excuse and expect that the Conference could easily be rescheduled to suit her. [39] The Complaint was filed on 1 December 2022 – that is over four months ago. Whilst the Complaint is on foot, the Respondents (including an individually named Respondent) continue to incur the expense and inevitable stress of defending the matter. That is a compelling reason to deal with this matter as expeditiously as possible. [40] The Complainant's default imposes an unacceptable burden on the Respondents, as they are unable to progress this matter to resolution or hearing without the Complainant's participation. The Respondents are not responsible for the continued delay and in fairness to the Respondents, this matter should not be permitted to drag on. -- 9 of 10 -- 10 [41] Time limits are imposed to ensure fairness between the parties as well as to ensure the expeditious advancement of the matter. Repeated failure to comply with Directions is inconsistent with r 6 of the Tribunals Rules. [42] Therefore, in my opinion, the purpose of the Tribunals Rules is best fulfilled in this case by exercising the discretion under r 45 of the Tribunals Rules to dismiss the proceeding. [43] I order accordingly. Order 1. That the proceeding is dismissed pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011. -- 10 of 10 --