Amanda Flynn Charity Limited v Dawson [2013] QCATA 124

CITATION: Amanda Flynn Charity Limited & Anor v Dawson [2013] QCATA 124 PARTIES: Amanda Flynn Charity Limited Peter Lawrence Flynn (Applicants/Appellants) v Beth Narelle Dawson (Respondent) APPLICATION NUMBER: APL445-12 MATTER TYPE: Appeals HEARING DATE: 6 March 2013 HEARD AT: Brisbane DECISION OF: K O’Callaghan, Senior Member K Buxton, Member DELIVERED ON: 22 April 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave is granted to appeal. 2. The appeal is dismissed. 3. The matter be listed for a directions hearing on a date to be advised by the Tribunal. CATCHWORDS: APPEAL – LEAVE TO APPEAL – where not a final decision – where question of whether general importance considered – where issue of whether Anti-Discrimination proceedings should be dismissed, stayed or transferred to Supreme Court. Anti-Discrimination Act 1991, s 166 Queensland Civil and Administrative Tribunal Act 2009, s 52(1), s 142(3)(a)(i) Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2003] NSW CA 192 Di Carlo v Dubois (2007) QCA 316 House v The King (1937) 55 CLR 499 Waite v Kings College [2004] QADT 22 -- 1 of 7 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Tucker of counsel instructed by Nicholson Solicitors. RESPONDENT: Mr Wright, solicitor of Kerin Lawyers. REASONS FOR DECISION [1] Ms Dawson was employed by Amanda Flynn Charity Ltd in a managerial role. Although a lengthy contract of employment was entered into, the employment relationship lasted only three months. Litigation concerning the circumstances surrounding the ending of the employment relationship has ensued. [2] The litigation includes proceedings commenced by Dawson in January 2010 in the Supreme Court for damages for breach of contract and battery; PIPA proceedings for damages for personal injury; and a criminal trial of Flynn for sexual assault. These current proceedings arise as a consequence of a complaint of sexual harassment made by Dawson to the Anti-Discrimination Commission on 29 January 2010. The complaint was referred to QCAT for determination pursuant to the Anti- Discrimination Act.1 [3] In August 2012 Flynn sought orders from the Tribunal:- 1. Striking out the Tribunal proceedings as an abuse of process, alternatively; 2. To transfer the proceedings to the Supreme Court to be heard and determined with the Supreme Court proceedings, or alternatively; 3. To stay the Tribunal proceedings pending the determination of the Supreme Court proceedings. [4] The application was determined by a Tribunal Member on the papers. She gave oral reasons for her decision on 4 December 2012 dismissing the application to strike out and refusing to transfer or stay the proceedings. [5] Flynn seeks to appeal that decision. [6] Because the Tribunal’s decision is not a final decision, leave of the Appeal Tribunal is required.2 [7] Leave will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a 1 Anti-Discrimination Act 1991, s 166. 2 QCAT Act 2009, s 142(3)(a)(i). -- 2 of 7 -- 3 reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant caused by some error? [8] Flynn submits leave should be granted as the question of when it is appropriate to transfer proceedings to another Court and what matters are relevant in exercising that discretion are important questions of procedure and a matter of public importance. [9] Dawson disputes this and says there is no question of general importance which warrants the granting of leave to appeal. The application involves the consideration of the issue of in what circumstances it may be appropriate for two proceedings which arise out of the same facts to be running in different forums. In particular whether it is appropriate where one proceeding involves a Tribunal exercising statutory jurisdiction. This is a question which we consider to be of general importance which a decision of the Appeal Tribunal would be to the public advantage. Leave to appeal is granted. [10] The Tribunal’s decision involved an exercise of the Member’s discretion. In such a case, to allow the appeal it is not enough that the Appeal Tribunal may have come to a different decision had it heard the original application. There must appear that some error has been made in exercising the discretion.3 The Tribunal’s decision [11] The Tribunal’s reasons for the dismissal in summary were:  Although a number of factual matters were similar she rejected the motion that both proceedings arose out of the same factual matrix entirely.  The claims were part of different statutory frameworks – which might require proceedings in different courts.  The conduct alleged could lead to different criminal and civil proceedings as well as sexual harassment claims which could be heard in QCAT.  Different statutes exist for different purposes.  The Supreme Court proceedings would be dealt with in accordance with common law or industrial law. The sexual harassment claims may not be properly ventilated in the Supreme Court.  Dawson seeks an apology which relief is not available in the Supreme Court. 3 House v The King (1937) 55 CLR 499. -- 3 of 7 -- 4  The proceedings before the Tribunal are not complex and will not require a lengthy hearing.  There was no need to stay the proceedings. It was preferable to have the matters finally ventilated at least with respect to the sexual harassment allegations in the Tribunal. Grounds of appeal [12] The appellants rely on 12 grounds of appeal. In their submissions they group them together for convenience. [13] We will deal with them in a similar way.  The Member erred in finding that the proceedings did not “arise out of the same factual matrix entirely.” [14] The appellant submits that the factual allegations underpinning the claims are identical (as evidenced by the fact that the particulars in the statement of claim and the referral are the same). [15] It is correct that the allegations of sexual harassment underpin both proceedings. In the anti-discrimination proceedings it is submitted the alleged sexual harassment amounts to unlawful discriminatory conduct. In the Supreme Court proceedings, the same conduct is said to have played a role in the termination of Dawsons employment and amount to battery for which damages should be awarded. We do not accept however that the Member erred in finding that the proceedings do not arise out of the same factual matrix entirely. In making that statement the Member goes on to explain it in the context of the issues in the proceedings being part of different statutory frameworks. Although the facts and the allegations are the same the focus on the facts and the issues are different.  The Member erred in not having proper regard to:-  the principal that it is prima face vexatious for a claimant to commence two actions for the same remedies; and  The undesirability of inconsistent findings of fact made by different forums in which the same factual (and legal) issues stand to be determined. [16] In making these submissions the appellants referred the Appeal Tribunal to Court of Appeal decisions from New South Wales and Queensland where these points were made.4 [17] It is noted that the Queensland case involved a lengthy history of numerous applications, trials and appeals to the Courts involving the same parties. There was also an element of vexation in that it was 4 Di Carlo v Dubois (2007) QCA 316; Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2003] NSW CA 192. -- 4 of 7 -- 5 observed that the applicant had failed to honour an undertaking to withdraw earlier proceedings. [18] In the New South Wales case, whilst noting the principles referred to above, the Court of Appeal upheld a decision not to grant a stay observing that “the jurisdiction to stay proceedings on the basis that they constitute abuse of process has been exercised cautiously, reflecting the paramountcy given to a litigants right to have access to justice.”5 [19] Neither party directed the Appeal Tribunal to a decision of the President of the former Anti-Discrimination Tribunal which is more on point.6 [20] In that case the applicant had a matter referred by the Commissioner to the Anti-Discrimination Tribunal and, whilst the matter was pending in the Commission, commenced proceedings in the District Court for damages for breach of contract, negligence and breach of statutory duty. The facts in each proceeding were identical. [21] In refusing an application to stay the Tribunal proceedings, Sofronoff P concluded:- (i) Traditionally, the conduct of two sets of proceedings claiming identical relief was considered oppressive to the defendant and, consequently, an abuse of process.7 (ii) However, the Tribunal exercises a statutory jurisdiction to adjudicate claims of contravention of the Act. No other Court or Tribunal exercises that jurisdiction. The applicant is entitled to pursue, and the Tribunal is obliged to hear and determine, such claims.8 (iii) Concerns expressed by the defendant in relation to prejudice arising from double recovery would necessarily be dealt with in the subsequent proceeding. Legal principle would prohibit double compensation for the same injury.9 (iv) The prospect of conflicting findings between the Tribunal and the Court was wholly immaterial. A prospect of different findings is inevitable given Parliament’s creation of a separate and exclusive jurisdiction while leaving unaffected the right of a litigant to pursue different relief in another forum. [22] The Member in this matter took a similar approach. Although both proceedings involve the same facts, there is no abuse of process because the proceedings arise out of different statutory and legal frameworks. There is no reason to fetter Dawsons right to pursue Anti-Discrimination proceedings in this Tribunal. The Appeal Tribunal agrees with and adopts 5 Paragraph 51 of the decision. 6 Waite v Kings College [2004] QADT 22. 7 Para 16 of the decision. 8 Para 17. 9 Para 20. -- 5 of 7 -- 6 the reasoning of Sofronoff P and rejects the appellants submission that the Member erred in not relying on the principles referred to above to guide her decision.10  The Member erred (when exercising her discretion not to transfer the proceedings) in concluding that:  The QCAT proceedings could be conducted in the short timeframe and  Whilst the wastage of resources of the Tribunal may be relevant in considering whether to transfer the proceedings, the wastage of parties resources was not a relevant consideration. [23] The second point indicates a misunderstanding of the Member’s finding. She did not find that wastage of parties resources was an irrelevant factor but rather noted that the fact that a party may want a longer hearing then the Tribunal would accommodate would not necessarily be an appropriate reason to transfer the proceedings. There is no error in this reasoning. [24] The discreet issue of whether there has been unlawful discriminatory conduct and if so the appropriate relief to be given is not a complex issue in this case and could be heard by the Tribunal in a relatively short period of time. The Supreme Court proceedings which are much broader will take longer. Apparently the pleadings have not closed and disclosure has not yet been completed. It was not an erroneous exercise of discretion for the Member to decide that the Supreme Court was not a more appropriate forum to determine the discreet issue of compensation for sexual harassment.11  The Member erred in failing to have any proper regard to the fact that Dawson failed improperly, to inform the Anti-Discrimination Commissioner that she had commenced Supreme Court proceedings prior to making that complaint. [25] The appellants made much of the fact that Dawson, when completing the complaint document ticked the “no” box when asked whether she had any existing case in “any Court … about anything included in the complaint”. [26] The original application to have the proceedings “struck out” was based on this point. [27] Dawson submitted at the original hearing and again in the appeal that at the time she filled out the complaint form the Supreme Court proceedings were restricted to damages for breach of the employment contract. In her view this was not about the matter of sexual harassment included in the complaint. An amendment was subsequently made to the Supreme Court pleadings to claim damages for physical injury arising out of the alleged 10 Para 26 of appellants submission. 11 s 52(1) QCAT Act. -- 6 of 7 -- 7 sexual harassment. We can see no error in the Member exercising her discretion not to strike out the proceedings for this reason. [28] It can’t be assumed as suggested by the appellants that if the existence of the Supreme Court proceedings had been known to the Commissioner then he would have been likely to reject the complaint. [29] The appellants have not convinced us that there has been any error made by the Member in exercising her discretion in deciding to dismiss the application to strike out, transfer or stay these proceedings in QCAT. [30] It is appropriate that the Anti-Discrimination claim be heard separately in the Tribunal which was provided with specific statutory jurisdiction to do that. The appeal is dismissed and the matter is to be listed for a directions hearing to enable it to progress. -- 7 of 7 --