Alexander v State of Queensland & Anor [2016] QCAT 142

CITATION: Alexander v State of Queensland & Anor [2016] QCAT 142 PARTIES: Joshua Alexander (Applicant) v State of Queensland Steve Holland (Respondents) APPLICATION NUMBER: ADL066-15 MATTER TYPE: Anti-discrimination matters HEARING DATE: 15 April 2016 HEARD AT: Brisbane DECISION OF: Member Guthrie DELIVERED ON: 18 April 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to dismiss or strike out the complaint is dismissed. 2. The respondents’ application for costs of the application is dismissed. 3. The proceeding is listed for a compulsory conference on 18 May 2016 at 1:30pm. CATCHWORDS: TRIBUNAL PROCEDURE – DIRECTIONS – where directions made for conduct of the proceeding – where applicant non-compliant with directions – where application to dismiss complaint – whether non-compliance with directions – whether reasonable excuse for non-compliance – whether unnecessary disadvantage suffered because of non- compliance – whether proceeding lacking in substance – whether proceeding misconceived – whether proceeding is an abuse of process Anti-Discrimination Act 1991 (Qld), s 7 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47, s 48, s 69, s 100, s 102 -- 1 of 12 -- 2 Harbour Day Spa Pty Ltd v Three Harmony Australia [2012] QCAT 140 McCauley v Club Resort Holdings Pty Ltd and Anor [2012] QCAT 590 Sweeney v The Commissioner of State Revenue [2015] QCAT 67 REPRESENTATIVES: APPLICANT: Mr Joshua Alexander RESPONDENT: Ms S Anderson of Counsel instructed by Ms Wadley of the Public Safety Business Agency REASONS FOR DECISION [1] Mr Alexander alleges that he has suffered discrimination in the workplace as a police officer with the Queensland Police Service (the QPS). Mr Holland was Mr Alexander’s PPA supervisor in the workplace and responsible for completing his annual performance evaluation. [2] There are two applications before me. On 19 February 2016, the respondents filed an application in the Tribunal seeking a dismissal of Mr Alexander’s complaint pursuant to s 47 or s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act’) (‘the respondents’ application’). [3] Those provisions relate to the circumstances in which the Tribunal may dismiss or strike out a proceeding before a final hearing. The respondents also seek an order that Mr Alexander pay the costs of and incidental to the respondents’ defence of the complaint or costs associated with the application. In support of their application, the respondents filed an affidavit of Ms Belinda Wadley.1 The basis of the application is that Mr Alexander has unreasonably failed to comply with orders of the Tribunal, in particular, to file contentions as directed and thereby has failed to articulate a case against Mr Holland or the State of Queensland. [4] On 9 March 2016, Mr Alexander filed an application to extend time to comply. He said he had not spoken to his lawyer, Ms Arabella Douglas, since 17 February 2016 and that he was attempting to locate another lawyer. He asked for an extension of time of three weeks. [5] On 8 April 2016, Mr Alexander responded to the respondents’ application repeating that he wanted three weeks to continue with his matter and that his intention was to find another lawyer but if he could not do so, he would proceed unrepresented. 1 With annexures BJW1-BJW15. -- 2 of 12 -- 3 [6] On 13 April 2016, the respondents filed further submissions in reply to the applicant’s material. [7] I have considered all of the documentary material. I have also considered the oral submissions made at the hearing. Background [8] Mr Alexander lodged his complaint with the Anti-Discrimination Commission of Queensland (the Commission) on 21 January 2015. His complaint was referred to the Tribunal on 28 July 2015. At that time, the respondents were the State of Queensland, Steve Holland and Troy Lehmann. Minter Ellison had represented Mr Alexander while the Commission was considering the complaint. Ms Arabella Douglas was also assisting him. [9] Mr Alexander was first directed by the Tribunal to file contentions by 9 October 2015.2 The direction required the contentions set out specific things: Joshua Alexander must file in the Tribunal two copies and send another copy to [the respondents] of contentions, setting out in numbered paragraphs factual details of the conduct complained of, identifying how that conduct amounts to a breach of the Anti-Discrimination Act 1991 and identifying whether the complaint is based on direct discrimination, indirect discrimination, victimisation or sexual harassment or some other ground of unlawful conduct, setting out what sections of the Anti-Discrimination Act 1991 have been breached and the basis on which it is alleged that the breaches have occurred, particularising the impact that the conduct had on him and stating what outcomes he is seeking. [10] A compulsory conference was scheduled for 20 November 2015. Mr Alexander was further directed to file statements of evidence by 18 December 2015. A hearing was listed for 11 and 12 February 2016. [11] On 28 September 2015, the Tribunal granted leave to the respondents to be legally represented. In so doing, the Tribunal took into account the submissions of the respondents that the questions to be examined and determined by the Tribunal are not simple in nature. In support of the argument that there were complex matters in dispute, reference was made to the fact that prior to the complaint being referred to the Tribunal, two different officers of the Commission had made separate and differing decisions. It was submitted that the proceedings were unlikely to involve relatively non-contentious legal conclusions. [12] Mr Alexander did not file contentions by 9 October 2015 as directed. [13] On 16 October 2015, registry staff recorded that he was having difficulty finding legal assistance as Minter Ellison could no longer act for him due to a conflict. At the hearing, Mr Alexander said that once it became a Tribunal matter, Minter Ellison could not represent him. 2 Directions of Senior Member Endicott dated 28 August 2015. -- 3 of 12 -- 4 [14] On 2 November 2015, the Tribunal varied the directions so that Mr Alexander had until 7 December 2015 to file and serve the contentions. A compulsory conference was scheduled to take place on 25 January 2016.3 He was given until 22 February 2016 to file and serve all statements of evidence and a hearing was scheduled for 14 and 15 April. [15] On 7 December 2015, Mr Alexander filed his purported contentions and his own statement. The statement is in the same terms as that which accompanied the complaint on referral to the Tribunal. [16] On 7 December 2015, Ms Douglas lodged an application to extend the time for Mr Alexander to file the contentions to 14 December 2015, stating that Mr Alexander sought to rely on evidence from a third party which was to be obtained. [17] On 9 December 2015, the Tribunal varied the directions by giving Mr Alexander until 14 December 2015 to lodge his contentions. No other application for an extension of time to comply was lodged by Mr Alexander until he lodged the application now before me. [18] On 14 December 2015, Mr Alexander filed another document, which was essentially the same as the purported contentions he filed on 7 December 2015 with the addition of some information received from a third party. No further statements have been filed. [19] On 29 January 2016, following the compulsory conference, the Tribunal made an order dismissing the application against Mr Lehmann and directed Mr Alexander to file and serve, by 6 February 2016, amended contentions regarding the conduct of Mr Holland claimed to be in breach of the Anti- Discrimination Act 1991 (Qld) (‘ADA’). The other directions remained the same so that Mr Alexander had until 22 February 2016 to file statements of evidence and the hearing dates remained 14 and 15 April. [20] Mr Alexander failed to lodge the contentions as directed and the respondents filed the application now before me. As a result, the Tribunal vacated the directions made on 9 December 2015, cancelled the hearing and made directions around the respondents’ application. Legislative provisions [21] Section 47 of the QCAT Act applies if the Tribunal considers a proceeding is: a) Frivolous, vexatious, or misconceived; or b) Lacking in substance; or c) Otherwise an abuse of process 3 The compulsory conference ultimately occurred on 29 January 2016. -- 4 of 12 -- 5 [22] If the Tribunal considers s 47(1) is satisfied the Tribunal may, in its discretion, order the proceeding be dismissed or struck out. [23] Section 48 of the QCAT Act applies if the Tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding including by ‘not complying with a tribunal order or direction without reasonable excuse’.4 [24] If the Tribunal considers that s 48(1) is satisfied the Tribunal may, pursuant to s 48(2), order the proceeding be dismissed or struck out. In acting under s 48(2) the Tribunal must have regard to: a) The extent to which the party causing the disadvantage is familiar with the Tribunal’s practices and procedures; b) The capacity of the party causing the disadvantage to understand and act on the Tribunal’s orders and directions; c) Whether the party causing the disadvantage is acting deliberately.5 Consideration of the application of s 47 [25] The respondents say that Mr Alexander’s complaint is misconceived and lacking in substance and, given the amount of time that has elapsed and his continued non-compliance with the Tribunal’s orders, the proceeding is an abuse of process. The respondents say that Mr Alexander has failed to provide a basis for the Tribunal to consider that his complaint falls within the provisions of the ADA. They say Mr Alexander has failed, at every opportunity, to properly particularise his complaint against Mr Holland, despite numerous opportunities to do so. If he has a basis for his complaint under the ADA he should have provided particulars by now. Is Mr Alexander’s complaint against Mr Holland and the State of Queensland misconceived or lacking in substance? [26] When Mr Alexander’s complaint to the Commission was referred to the Tribunal, it included with it Mr Alexander’s statement and a number of statements of other officers upon which Mr Alexander relied to establish to the Commission that there was at least one allegation that could form the basis for a breach of the ADA. Mr Alexander has separately filed his statement in response to the Tribunal’s directions.6 That statement lists examples of what he says was his less favourable treatment by Mr Holland.7 Other parts of the statement8 seek to establish a link between the relevant attribute9 and the less favourable treatment essentially by way of inference. It is not unusual for the Tribunal to be asked to draw an inference that the attribute was the cause of the less favourable treatment. 4 QCAT Act, s 48(1)(a). 5 QCAT Act, s 48(3). 6 Statement of Joshua Alexander filed in the Tribunal on 7 December 2015. 7 Ibid, at [7]. 8 Ibid, at [9] and [10]. 9 For attributes see Anti-Discrimination Act 1991 (Qld), s 7. -- 5 of 12 -- 6 [27] Still other parts of the statement10 outline the treatment by the QPS (State of Queensland) that he says was less favourable treatment. The link between that alleged treatment and the attribute is less clear. [28] Mr Alexander has not filed any other statements in the Tribunal. However, the respondents and the Tribunal have the additional statements he lodged with the Commission including the statement of Nicholas Ruane and the statement of William Kazimierowicz. [29] The respondents argue that the statements do not establish a link between the attribute and the alleged unfavourable treatment. Further, they say that even if the alleged conduct were accepted as having occurred, which is denied, there is no evidence on which it could be found that Mr Alexander was treated any differently to any other officer at the station. It was also argued that Mr Alexander’s complaint may be to another forum and reference was made to a WorkCover claim made by Mr Alexander. [30] Mr Ruane’s statement sets out his opinion as to the knowledge of police officers at the relevant police station of Mr Alexander’s attribute. The statement also sets out some support for Mr Alexander’s complaint of less favourable treatment by Mr Holland. Mr Kazimierowicz’s statement provides similar support.11 Mr Kazimierowicz’s statement also provides some support for Mr Alexander’s complaint that he received less favourable treatment from the QPS (State of Queensland).12 [31] It is not for me to determine the substantive complaint and I make no finding as to the prospects of success of Mr Alexander’s complaint of discrimination against Mr Holland and/or the State of Queensland. However, in order for me to find that the proceeding is misconceived or lacking in substance, I must be satisfied that he does not have at least an arguable case. This is not a case where the Tribunal lacks jurisdiction. In such cases, the Tribunal has dismissed applications under s 47 as misconceived.13 This case is not one where the issues to be determined by the Tribunal have been previously determined elsewhere. Further, based on the material so far filed in the Tribunal, including the statements of other officers, I consider that Mr Alexander has at least an arguable case so that the proceeding is not lacking in substance nor is it misconceived. Is Mr Alexander’s complaint against Mr Holland and the State of Queensland an abuse of process? [32] The respondents say that the amount of time that has gone by since the complaint was referred to the Tribunal and Mr Alexander’s non-compliance with the Tribunal’s orders is an abuse of process. The respondents submit 10 Statement of Joshua Alexander filed in the Tribunal on 7 December 2015 at [39] to [45] inclusive. 11 Ibid, at [22] to [29] inclusive. 12 Ibid, see in particular [30] to [32] inclusive. 13 See for example, Harbour Day Spa Pty Ltd v Three Harmony Australia [2012] QCAT 140 and Sweeney v The Commissioner of State Revenue [2015] QCAT 67. -- 6 of 12 -- 7 that to allow Mr Alexander to continue a complaint that is unsubstantiated and lacking in any detail, would be an abuse of process. [33] Mr Alexander filed a document on 14 December 2015. While the document was filed within the time directed (following a direction giving a further week for Mr Alexander to lodge the documents) the contents lack the precision required by the direction. In relation to Mr Holland, it contends very little. Essentially, it is a repeat of the written submissions made to the Commission in response to a decision of one of its officers to lapse the complaint against Mr Lehmann. Only paragraph 27 of the document refers to Mr Holland by reference to information received from a third party. The document sets out the claimed impacts of the alleged conduct and the outcome Mr Alexander seeks but it was filed before the compulsory conference and the direction made 29 January 2016 requiring Mr Alexander to file amended contentions specifically about Mr Holland’s alleged discriminatory conduct. [34] As I have already stated, parts of Mr Alexander’s statement filed on 7 December 2015 refer to alleged discriminatory conduct by Mr Holland14 and, list what is described as ‘examples of Sergeant Holland’s treatment of me’15 but there is a lack of particularity. For example, it is unclear when the conduct occurred or in what context it occurred. The link between the attribute and the alleged unfavourable treatment is also not clear. It appears that Mr Alexander considers the link can be inferred from other circumstances such as a comparison between his treatment before and after his attribute became known. The documents do not make it clear what provisions of the ADA Mr Alexander says were breached by the respondents. [35] Mr Alexander did not lodge contentions by 5 February 2016 as directed at the compulsory conference. [36] In his response to the respondents’ application, Mr Alexander made another attempt at setting out contentions.16 However, again the document lacks the level of particularity required by the direction. It does not set out details of the conduct that Mr Alexander says was less favourable treatment of him by Mr Holland. It makes complaints about the actions or lack of action of the QPS’s senior management but, again there is little particularisation of these complaints. Further, there is no reference to the provisions of the ADA said to have been breached. Mr Alexander said that he thought that what he had lodged made it clear that he claimed a breach of s 10 ADA.17 [37] Mr Lehmann is no longer a party to the proceedings but Mr Alexander continues to refer to his alleged conduct in the purported contentions. At the hearing, Mr Alexander explained he had done so because he has a complaint against the State of Queensland and it remains a party. The 14 Statement of Joshua Alexander filed in the Tribunal on 7 December 2015, at [4] to [32] inclusive. 15 Ibid, at [7]. 16 Documents filed 8 April 2016 by the applicant. 17 ‘Direct discrimination’. -- 7 of 12 -- 8 respondents argue that any alleged conduct by Mr Lehmann no longer forms any part of the ongoing complaint. [38] I am satisfied that Mr Alexander has still not complied with Tribunal directions made 29 January 2016 and has a history of non-compliance. [39] For the reasons already given in relation to whether the proceeding is lacking in substance or misconceived and for the reasons that follow in relation to the consideration of s 48, the Tribunal is not satisfied that the non-compliance is an abuse of process. Consideration of the application of s 48 Was there non-compliance with the Tribunal orders? [40] I have already found that Mr Alexander has not complied with Tribunal orders. Does Mr Alexander have a reasonable excuse for non-compliance? [41] Mr Alexander refers in his material to his inability to secure legal representation. At the hearing, he said that Ms Douglas had been assisting him from the time he lodged his complaint with the Commission. Ms Anderson said that Ms Douglas is not a legal practitioner. Mr Alexander was uncertain whether Ms Douglas held a certificate to practice in Queensland. Her office is in New South Wales. She has not charged him for her assistance. [42] Mr Alexander said that Ms Douglas was often busy and slow to return his telephone calls. His last contact with her was 17 February 2016. He said that for about three weeks after that date, he tried to contact her. After he received the respondents’ application, he focused on that and had not engaged a legal representative. He has spoken with QPILCH and another lawyer but both suggested he wait until the outcome of this hearing before again making contact. He referred to having little spare time due to his family and work commitments. [43] In response to my questions, Mr Alexander accepted he was told at the directions hearing on 2 November 2015 that his application might be struck out if he did not comply with Tribunal directions. Mr Alexander said that, while he was aware that he was required to lodge amended contentions by 5 February 2016, he had relied on Ms Douglas to lodge the required document. Ms Douglas had assisted him from the beginning and so knew his case. Mr Alexander conceded that he had not been proactive in the matter and should have “taken ownership of it”. He said he thought that what he had put in was enough but clearly he had not understood what was required. He said it was ‘above my head’. [44] I accept that the application of the ADA is difficult to understand even for lawyers who are not familiar with the area and, in this case, Mr Alexander -- 8 of 12 -- 9 has not had any assistance since 17 February 2016 and it is unclear whether Ms Douglas is legally qualified. [45] I consider that Mr Alexander understood that the directions required that he file a document by a particular date. I consider that he understood that the directions required him to outline the conduct about which he complains. However, I do not consider that he was able to properly identify how that conduct breached the ADA by reference to the particular provisions of the ADA and do so in the form of contentions. Indeed, even when he had the assistance of Ms Douglas, the documents filed were not compliant. [46] I do not consider that Mr Alexander has acted proactively in advancing his complaint. He has not prioritised obtaining legal representation or complying with directions. He says that he wants the proceedings concluded as soon as possible but his actions to date do not indicate that it has been a priority for him. [47] Mr Alexander was aware that he was required to lodge contentions relating to Mr Holland by 5 February 2016. There was no attempt by Mr Alexander personally to comply with the direction. I consider that his inaction at that time was unreasonable. However, I accept that he thought Ms Douglas would file the appropriate document so that his non-compliance was not deliberate. [48] On balance, I find that Mr Alexander does not have a reasonable excuse for non-compliance with the Tribunal’s directions. Have the respondents been unnecessarily disadvantaged? [49] The respondents say that they have a right to have the proceedings against them dealt with expeditiously and it is now nine months since the complaint was referred to the Tribunal. It was submitted that Mr Holland is suffering stress and anxiety and is unable to apply for promotions or advance his career until the proceedings are finalised. Further, it is claimed that the QPS is unable to finalise any managerial action in relation to the parties and the wider group of officers involved at the relevant station. [50] This proceeding was first scheduled for hearing in early 2016. While that hearing was vacated, the compulsory conference in late January partially resolved the complaint so that there has been some progress. [51] I accept that while these proceedings remain undetermined Mr Holland is negatively impacted. It would not be unusual for parties to any litigious process to suffer anxiety and stress. The working relationship of the parties to this proceeding and the nature of the proceedings likely adds to the level of anxiety. There has been some disadvantage to the respondents in Mr Alexander’s failure to comply. [52] However, I am not satisfied that the disadvantage is sufficient to justify the proceeding being struck out or dismissed. -- 9 of 12 -- 10 [53] In reaching that conclusion, I have considered the matters in s 48(3) of the QCAT Act. I am not satisfied that the non-compliance was deliberate. Having not previously had a matter before the Tribunal, I accept that Mr Alexander is not familiar with the Tribunal’s practices and procedures but I do not consider that that unfamiliarity prevented his compliance. However, it is clear that in the past Mr Alexander has heavily relied on legal representatives and others to assist him. Mr Alexander understood that he was required to file a document by a particular date and that he was required by the directions to outline the conduct about which he complains. However, I do not consider that, without assistance, he is able to properly identify how that conduct amounts to a breach of the ADA, setting out the provisions said to be breached nor put it in the form of contentions. [54] Weighing all the matters I have outlined in these reasons, I am not persuaded to exercise the discretion in s 48(2) to strike out or dismiss Mr Alexander’s complaint. As SM Endicott said at [12] of McCauley v Club Resort Holdings Pty Ltd and Anor,18 the Tribunal when exercising the discretion to dismiss a claim without allowing a hearing of that claim must act with caution.19 Dismissal of the complaint without a hearing would deprive Mr Alexander of the opportunity to have an independent determination on his claim that his human rights have been unlawfully contravened in circumstances where I have concluded that his complaint is at least arguable. For the reasons given, I am also not persuaded to exercise the discretion to dismiss or strike out Mr Alexander’s complaint under s 47 of the QCAT Act. [55] The application to dismiss or strike out Mr Alexander’s complaint is dismissed. Mr Alexander’s application for an extension of time to comply and future conduct of the proceedings [56] The respondents submitted that in the event that their application was not successful, I should make a guillotine order. The respondents did not see any utility in another compulsory conference or in a compulsory conference occurring prior to Mr Alexander filing contentions that complied with the Tribunal’s directions. [57] Mr Alexander was open to another compulsory conference. Mr Alexander was unable to say with any certainty whether he would be able to engage a lawyer in the near future. The cost of legal representation will impact the extent to which he can engage the assistance of a lawyer. [58] In his application, Mr Alexander requested an extension of time for a period of three weeks. However, from what he said at the hearing, it was clear that that period of time was selected merely because he thought the Tribunal would be unlikely to entertain an extension of time for any longer period. I 18 [2012] QCAT 590. 19 Ibid at [12]. -- 10 of 12 -- 11 see no benefit in giving Mr Alexander further time to lodge contentions until he has some assistance or guidance about what is required. [59] To that end, I consider it would be useful to schedule another compulsory conference as soon as possible. The purposes of a compulsory conference, as set out in s 69 of the QCAT Act, include to identify and clarify the issues in dispute, identify the questions of fact and law to be decided, as well as to promote a settlement. At a compulsory conference, a member of the Tribunal will facilitate the achievement of those purposes. I do not consider that the absence of the amended contentions, given the other filed material, prevents a productive compulsory conference taking place. [60] I direct that the proceeding be listed for a compulsory conference on 18 May 2016 at 1:30pm. The member conducting the compulsory conference can make further directions about the conduct of the proceedings if necessary. Costs [61] The respondents have applied for the costs of the application. Under s 100 of the QCAT Act the starting position is that each party to a proceeding must bear their own costs for the proceeding. To depart from that position in the absence of some contrary provision in an enabling Act, I must be satisfied that the interests of justice require me to make a costs order. [62] In deciding whether to award costs, I may have regard to matters20 such as whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding. I have decided not to dismiss the complaint under s 48, although I have found that Mr Alexander did not have a reasonable excuse for not complying with directions and the respondents have been disadvantaged by his conduct. I may also have regard to the nature and complexity of the dispute the subject of the proceeding. As I have previously stated, the application of the ADA is often complex. The respondents own submissions in support of their application for leave to be represented indicate that the dispute is complex. Mr Alexander has been without assistance since at the very latest 17 February 2016 and may not have had the assistance of a practising Queensland legal practitioner for much longer. I can also consider the relative strengths of each case. I have already found that Mr Alexander’s case is not lacking in substance but I do not make any findings about his prospects of success. I may also consider the financial circumstances of the parties to the proceeding. I do not know Mr Alexander’s financial circumstances but he is required to pay for any legal representation he might obtain whereas the respondents, at this stage, are represented by a government agency who have engaged counsel. I have also taken into account that Mr Alexander had some difficulty properly complying with Tribunal directions without assistance. Weighing all of those matters, I am not persuaded that the interests of justice require me to order that Mr Alexander pay the costs of and associated with the respondents’ application. 20 QCAT Act, s 102(3). -- 11 of 12 -- 12 [63] The respondents’ application for the costs of their application is dismissed. -- 12 of 12 --