Abdullahi v Taxi Council of Queensland Incorporated & Anor [2011] QCAT 374

CITATION: Abdullahi v Taxi Council of Queensland Incorporated & Anor [2011] QCAT 374 PARTIES: Yusef Abdullahi v Taxi Council of Queensland Incorporated Erich Vogt APPLICATION NUMBER: ADL083-10 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 22 July 2011 DELIVERED AT: Brisbane ORDERS MADE: Complaint is dismissed under s48 of the Queensland Civil and Administrative Tribunal Act 2009. CATCHWORDS: ANTI-DISCRIMINATION – non-compliance with directions – statements of evidence not filed – alleged impact changed – disadvantage to respondents – dismissal Queensland Civil and Administrative Tribunal Act 2009, s 48 APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties under section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] A complaint by Yusef Abdullahi about the Taxi Council of Queensland Incorporated and Erich Vogt was referred to the tribunal. The complaint alleged that the respondents had unlawfully discriminated against Mr Abdullah in the area of work and had vilified him on the grounds of his race. [2] The parties filed their contentions and attended a compulsory conference but were unable to resolve the complaint. Mr Abdullahi was directed to file -- 1 of 7 -- 2 and serve his statements of evidence by 17 June 2011 and to provide copies of his documents to the respondents. The respondents were directed to file and serve their statements of evidence by 18 July 2011. A hearing date of the complaint was set for 28 July 2011. [3] Mr Abdullahi was legally represented in this proceeding by Legal Aid Queensland until about the end of June 2011. His lawyer at Legal Aid Queensland sent a letter to the tribunal dated 15 June 2011. The lawyer informed the tribunal that Mr Abdullahi was not in a position to file his statements of evidence and documents on which he intended to rely at the hearing by the due date of 17 June 2011. [4] Mr Abdullahi’s lawyer asked for the progress dates to be de-listed and for a lengthy adjournment of the proceeding. His lawyer submitted that Mr Abdullahi was involved in a personal injury proceeding arising from the same incident that was the subject of his complaint of discrimination. [5] The tribunal was informed that Mr Abdullahi was seeking compensation in both claims for physical and psychological injury resulting from the assault on him by Mr Vogt on 28 March 2010. The lawyers submitted that Mr Abdullahi could not be compensated twice for the loss of income that he had sustained as a result of the assault and Mr Abdullahi had to decide what was the appropriate forum to seek that loss of income. [6] The lawyers informed the tribunal that Mr Abdullahi had new lawyers in his personal injuries claim but that it may take up to two months before his file could be transferred to the new lawyers. It was submitted that any statements filed in the discrimination proceedings would impact on Mr Abdullahi’s personal injuries claim and Legal Aid Queensland did not have the resources to provide the evidence required to be filed on behalf of Mr Abdullahi. [7] As it was estimated that it would take two or three months for the necessary information to be obtained in support of Mr Abdullahi’s claim, Legal Aid Queensland asked for an adjournment of two to three months in the proceedings before the tribunal based on an alleged contravention by the respondents of the Anti-Discrimination Act 1991. [8] The request made on behalf of Mr Abdullahi was referred to the respondents. They informed the tribunal that they opposed the request. [9] The tribunal was informed that the allegations made by Mr Abdullahi had been causing Mr Vogt anxiety and sleepless nights for more than 14 months. It was submitted that Mr Vogt had been charged by the police for assault. He had pleaded guilty to that charge, despite his firm belief that Mr Abdullahi was the initiator of the name-calling and aggression, due to the anxiety that Mr Vogt had experienced and that had affected his health. [10] It was submitted that the Magistrates Court had heard evidence from Mr Abdullahi as part of the sentencing process and had awarded merely $200 as compensation over the matter. This amount of criminal compensation had been paid by Mr Vogt. -- 2 of 7 -- 3 [11] It was further submitted that the allegations made by Mr Abdullahi had been causing a burden on the meagre resources of the Taxi Council of Queensland for more than 14 months. It was submitted that the Taxi Council was a not-for-profit organisation engaged in community service activities and that having to respond to the claim made by Mr Abdullahi was putting a strain on its resources. The Taxi Council had only four employees and the time incurred so far in responding to the complaint was considerable. [12] The Taxi Council relied on the contentions filed on its behalf which it was submitted would reveal a complete defence to the allegations that the Taxi Council was liable for any unlawful discrimination against Mr Abdullahi. It was submitted that the Taxi Council has had to incur time and costs of defending a claim for 14 months in circumstances where it expects the claim will be dismissed at a hearing. [13] It was also submitted on behalf of the Taxi Council that Mr Abdullahi has not ever presented any evidence of loss, his claims about that loss had changed over time and his credibility was adversely affected by the changes in his claims. [14] The Taxi Council submitted that Mr Abdullahi’s lawyers at Legal Aid Queensland should be able to assist him with gathering evidence so he can comply with the directions made by the tribunal. It was submitted that Mr Abdullahi had previously failed to comply with directions of the tribunal and that he had delayed and prevaricated earlier in the proceedings. It was submitted that Mr Abdullahi does not appear to hold himself accountable to the tribunal’s orders and that his delaying actions were putting a not-for-profit organisation to continuing trouble and expense and were putting Mr Vogt to continuing anxiety and strain. [15] It was submitted that Mr Abdullahi’s explanation for delay was not defensible. It was submitted that it was his problem that he had pursued remedies in three different forums – criminal, discrimination and civilly in a personal injuries claim and his problem that he was having trouble reconciling those various claims. The respondents sought orders that Mr Abdullahi should be required to comply with the tribunal’s directions or he should be made to abandon his claim. [16] The tribunal determined on 21 June 2011 that an extension of time was granted to Mr Abdullahi so that he was required to file his statements of evidence and the documents on which he intended to rely by 28 June 2011. [17] The statements of evidence by Mr Abdullahi were not filed and on 28 June 2011 Legal Aid Queensland informed the tribunal that Mr Abdullahi was no longer represented by Legal Aid Queensland in this proceeding. Mr Abdullahi did not contact the tribunal to request further time by which to comply with the tribunal’s directions. [18] Nine days after the extended deadline for the filing of his evidence, on 7 July 2011, a staff member from the tribunal registry telephoned Mr Abdullahi to enquire when he intended to file his statements of evidence. Mr Abdullahi told the registry officer that he had thought his former lawyer -- 3 of 7 -- 4 would have sent them to the tribunal. Mr Abdullahi told the registry officer that he would endeavour to file his documents by 12 July 2011 but he appeared uncertain as to what documents the tribunal required. [19] After that telephone conversation, on 7 July 2011 the tribunal made directions that Mr Abdullahi must file written submissions by 13 July 2011 as to why his complaint should not be dismissed under section 48 of the Queensland Civil and Administrative Tribunal Act 2009. The respondents were given an opportunity to make submissions as well. A direction was made that a member of the tribunal would make a decision on whether the complaint should be dismissed on the basis of the written submissions the tribunal received and without an oral hearing. [20] No submissions were received by the tribunal from Mr Abdullahi by the end of 13 July 2011. [21] Written submissions were received on behalf of the respondents on 14 July 2011. It was submitted that Mr Abdullahi had not, despite ample time and opportunity, repeated invitation and the directions made by the tribunal, produced any evidence to substantiate his contentions or alleged loss. [22] The respondents submitted that Mr Abdullahi had had the benefit of free legal representation in this proceeding while they had been put to considerable expense. It was submitted that they had been affected by the complaint process and also by the repeated delays caused by Mr Abdullahi and his failures not comply with the orders made by the tribunal. It was submitted that Mr Abdullahi had been warned that he had to show cause why the proceedings should not be dismissed and he had failed to do so. The respondents submitted that the only appropriate order would be for the tribunal to dismiss the proceeding. [23] A staff member from the tribunal registry attempted without success to contact Mr Abdullahi on his telephone on 15 July 2011 and subsequently she sent an email to Mr Abdullahi that day enquiring if he was intending to file submissions as to why his complaint should not be dismissed. [24] On 18 July 2011 an email was received at the tribunal from Mr Abdullahi. He stated that he had his documents, he did not know how to present himself in the right way and that he did not have a lawyer but he was still looking for a lawyer. He stated that he was still suffering from the trauma of being discriminated against. He did not otherwise explain why he had not complied with the directions made by the tribunal. [25] The tribunal is under an obligation arising from section 28(3)(e) of the Queensland Civil and Administrative Tribunal Act 2009 to ensure that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. For this reason directions have been made by the tribunal for the filing of statements of evidence from the complainant and from his witnesses before the hearing of this complaint. Directions were also made for the filing of other documents on which the parties will rely at the hearing. [26] Parties are expected to take active steps to engage in a proceeding and have a specific duty in section 45 of the Queensland Civil and -- 4 of 7 -- 5 Administrative Tribunal Act 2009 to act quickly in any dealing relevant to the proceeding. [27] The tribunal controls the hearing process not the parties. The evidence in support of a complaint is required to be available to the tribunal and to the other parties well before a hearing so that no party is taken by surprise or rendered at a disadvantage at the hearing. [28] Mr Abdullahi has not filed his statement containing the evidence to support the allegations he has made against the respondents. Directions were first made on 17 May 2011 that gave Mr Abdullahi over four weeks to file his statement of evidence. The directions had been made at the end of a compulsory conference. He was legally represented at that time and for that reason he appeared to have had the means of complying with the directions made by the tribunal. There was no objection raised by him to the directions that he was required to file his evidence by 17 June 2011. [29] His claim, as set out in his original complaint to the Commission and in his contentions filed in the tribunal, had stated that he had sustained a physical injury in the incident that is the subject of this complaint. It was further alleged in his contentions that he had suffered hurt, humiliation and distress, he had lost confidence and he has trouble sleeping. It was alleged in the contentions that he had lost four days of wages. [30] The factual basis of the complaint as set out in the contentions is not complex nor is the impact of the alleged contravention factually complex. Mr Abdullahi has contended that he had sustained a physical injury resulting in four days off work, some hurt, humiliation and distress and some ongoing effects on his confidence and ability to sleep. [31] Despite the lack of apparent complexity, his lawyers were unable to prepare and file the statement of evidence for Mr Abdullahi over a four week period and then were unable to prepare his statement when given a further week to comply with the directions of the tribunal. They were unable to prepare and file statements of evidence from witnesses to the incident despite Mr Abdullahi claiming in March 2010 that he knew of more than 30 drivers who had been subjected to racial name calling by Mr Vogt. [32] The explanation given by his lawyers for Mr Abdullahi’s failure to comply with the tribunal’s directions was somewhat surprising. It was stated that Mr Abdullahi was contemporaneously involved in a claim for personal injuries, his then lawyers in the discrimination complaint had not been able to obtain evidence about the impact that the alleged discriminatory conduct had had on Mr Abdullahi and as he could not be compensated twice for the same impact, it was considered that the discrimination complaint could wait until the personal injuries case was more advanced. [33] For the first time in the proceeding, Mr Abdullahi’s lawyers on 15 June 2011 had indicated that the period over which wages had been lost had increased from 4 days to eight months and that Mr Abdullahi was also claiming that he had developed a psychological injury from the incident. No attempt had been made to amend the contentions to include these significantly more adverse impacts. No medical reports had been provided to support these significant impacts and no specific details of the real -- 5 of 7 -- 6 nature of the claimed impacts were offered at any earlier stage of the proceeding. [34] Not unexpectedly, the respondents argued that they were disadvantaged by Mr Abdullahi’s request for a significant delay in the proceedings and by the explanation given for Mr Abdullahi’s failure to produce his evidence. The case they are being required to meet has changed. [35] Section 48 of the Queensland Civil and Administrative Tribunal Act 2009 permits the tribunal to dismiss a proceeding if it considers a party is acting in a way that unnecessarily disadvantages another party to the proceeding. It is a very serious matter for the tribunal to dismiss a complaint of a contravention of the Anti-Discrimination Act 1991 without allowing a hearing of that complaint to take place. Dismissal in this case would deprive Mr Abdullahi of the opportunity to have a just determination of his complaint. [36] However according to his former lawyers, Mr Abdullahi had commenced a claim for damages in another jurisdiction and he had not decided which claim he would ultimately pursue to finalisation. He was obviously not motivated to take up the opportunity to finalise the complaint in this tribunal by way of a final hearing set for 28 July 2011 as he had not prepared his evidence by the date required by the directions of the tribunal. While he delayed making a decision as to the appropriate forum to proceed in, the respondents were being adversely impacted by delay and uncertainty. [37] The tribunal was satisfied that Mr Abdullahi had acted in a way that unnecessarily disadvantaged the respondents in this proceeding. While represented by Legal Aid Queensland he did not comply with the directions made by the tribunal. The excuse given for that non compliance was not found to be reasonable by the tribunal. His lawyers had sought a long delay in the proceedings so that Mr Abdullahi could proceed with a claim for compensation arising out of the same incident involved in his complaint in another jurisdiction. Such a delay would cause unnecessary anxiety and cost to the respondents. [38] There is no complexity in the facts of this complaint. The contentions do not reveal any complexity in the impact of the alleged contravention. It is a reasonable conclusion to draw that preparing a statement of evidence about the incident and its impacts on Mr Abdullahi could have been carried out within a four week period by an experienced lawyer. An inference can be fairly drawn that the failure to prepare such a statement of evidence arose from a deliberate choice by Mr Abdullahi to keep his options open for the best forum to recover compensation arising from an incident on 28 March 2010. [39] The tribunal concludes that Mr Abdullahi was not prepared to abide by the requirements of section 45 of the Queensland Civil and Administrative Tribunal Act 2009 to act quickly in any dealing relevant to the proceeding. His non compliance with the directions made by the tribunal had the result of interfering with the objects of the tribunal to deal with matters in a way that is fair, just, economical and quick. -- 6 of 7 -- 7 [40] The tribunal was satisfied that his complaint should no longer proceed and was dismissed under section 48 of the Queensland Civil and Administrative Tribunal Act 2009. -- 7 of 7 --