Crust v Flour & Chocolate Pty Ltd & Anor [2024] QIRC 288

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Crust v Flour & Chocolate Pty Ltd & Anor [2024] QIRC 288 PARTIES: Crust, Simon (Complainant) v Flour & Chocolate Pty Ltd (First Respondent) & Scott, Lachlan (Second Respondent) CASE NO: AD/2022/71 PROCEEDING: Application in existing proceedings DELIVERED ON: 6 December 2024 MEMBER: HEARD AT: Dwyer IC On the papers ORDER: The Orders contained in paragraph [95] of these Reasons for Decision CATCHWORDS: ANTI-DISCRIMINATION ⎯ QUEENSLAND – PRACTICE AND PROCEDURE – PLEADINGS – STRIKING OUT – application in existing proceedings to strike out specified paragraphs of the complainant’s amended statement of facts and contentions – impugned pleadings technically incorrect – impugned pleadings rely on definition of direct discrimination per section 5 of Disability Discrimination Act 1992 (Cth) – source of Commission’s power to strike out pleadings – principles concerning striking out pleadings – facts reveal conventional discrimination complaint – -- 1 of 22 -- 2 proper remedy for case inadequately pleaded – application to strike out pleadings dismissed – order to amend pleadings LEGISLATION: Anti-Discrimination Act 1991 (Qld) s 5, s 10, s 35, s 166 Disability Discrimination Act 1992 (Cth) s 5 Industrial Relations Act 2016 (Qld) s 447, s 451, s 539, s 541 CASES: Agar v Hyde (2000) 201 CLR 552 Barclay Mowlem Construction Limited v Dampier Port Authority (2006) 33 WAR 82 Bond v State of Queensland (No.2) [2020] QIRC 078 Dey v Victorian Railway Commissioners (1949) 78 CLR 62 Equititrust Ltd v Tucker (No 2) [2019] QSC 248 Queensland Police Union of Employees v HS First Inc. [2023] QIRC 030 Spencer v Commonwealth of Australia (2010) 241 CLR 118 Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 Together Queensland Industrial Union of Employees v Scales & Anor (No 3) [2022] QIRC 024 Reasons for Decision Background [1] On 13 October 2021, Mr Simon Crust (‘the complainant’) complained to the Queensland Human Rights Commission (‘QHRC’) that Flour & Chocolate Pty Ltd and Lachlan Scott (‘the respondents’) discriminated against him on the basis of impairment in contravention of the Anti-Discrimination Act 1991 (Qld) (‘AD Act’). -- 2 of 22 -- 3 [2] It is useful to briefly summarise the salient facts of the substantive complaint. The complainant is hearing impaired. He applied for employment and was employed by the respondent in January 2021. The respondent is an industrial bakery and has strict policies against staff smoking at any time during their shift. It is a matter of contention between the parties as to whether the complainant was made aware of or understood the no smoking policy. [3] Within weeks of commencing his employment the complainant left the premises during an authorised break to smoke in the carpark. Upon being observed, he admitted smoking and was subsequently dismissed in February 2021. In broad terms the complainant contends that the termination of his employment amounts to discrimination on the basis of the attribute of impairment. Additionally, the complainant alleges he was denied certain opportunities or treated unfavourably within the meaning of s 15 of the AD Act. [4] On 15 August 2022, the parties participated in a conciliation conference at the QHRC, which was unsuccessful. On 13 September 2022, the complaint was referred to the Queensland Industrial Relations Commission (‘the Commission’) pursuant to s 166 of the AD Act. Proceedings before the Commission [5] Since being referred to the Commission, the complaint has already been the subject of an interlocutory application in relation to an alleged absence of sufficient particulars in the complainant’s first iteration of his Statement of Facts and Contentions (‘SOFC’). The application (filed on 3 November 2022) simply sought that ‘Proceeding AD/2022/71 be dismissed’. The basis for the application was an asserted lack of particulars and the complainant’s failure to respond to a request to provide them. [6] On 25 November 2022 the complainant subsequently filed an amended SOFC (‘ASOFC’) in response to a request for further and better particulars by the respondents. The interlocutory application was then adjourned by consent pending the outcome of a conciliation conference. [7] On 30 November 2022, a conciliation conference was convened between the parties. That conciliation process was unsuccessful, though this outcome was not arrived at immediately upon the close of the conference. [8] Subsequent to the conference, the parties were considering a proposal for resolution of the matter however, in the alternative to that being achieved, the respondents’ lawyers indicated an intention to seek leave to amend their interlocutory application (filed 3 November 2022) with respect to what they asserted were persisting deficiencies in the complainant’s pleadings. The particulars of the deficiencies were not made known to the Commission in any detail at that time. -- 3 of 22 -- 4 [9] The matter did not resolve and directions granting the respondents leave to amend their application were issued (by consent) on 9 January 2023. These reasons deal with that amended interlocutory application. The strikeout application [10] On 6 February 2023, the respondents filed an amended application in existing proceedings (‘the strikeout application’) in accordance with directions. Specifically, the respondents sought the following relief: • Proceeding AD/2022/71 is dismissed; • Paragraphs 12, 13, 17, 18, 28, 30, 31, 32 and 33(a) of the complainant’s amended statement of facts and contentions dated 25 November 2022 (‘the impugned pleadings’) be struck out; and • Various costs, including indemnity costs for the strikeout application. [11] The strikeout application was accompanied by submissions that purport to explain the basis for the application. Curiously, the submissions do not address or further explain the grounds relied on to justify the application to dismiss the entire proceeding. The conclusion of the submissions deals with costs, the impugned pleadings, and the remedy sought in relation to them namely, the striking out of the impugned paragraphs. [12] Importantly, notwithstanding that the submissions do not elaborate on the application to dismiss the proceedings sought in the strikeout application, they do not expressly resile from seeking that outcome either, thus compelling the complainant to respond to that. This aspect of the strikeout application is discussed further later in these reasons. The impugned pleadings [13] The impugned pleadings are annexed as Schedule 1 to these reasons. [14] The submissions of the respondents succinctly deal with the asserted mischief said to arise from the impugned pleadings at paragraph 2 where, it is submitted, that the impugned pleadings ‘relate to an allegation that failure to provide reasonable adjustments constitutes direct discrimination’ and contend ‘a failure to provide reasonable adjustments is not actionable under Queensland law as direct discrimination’. [15] For reasons set out below I have concluded that the respondents’ contentions about the pleadings and the law are entirely correct. In May 2023 at a mention of this matter the respondent confirmed it was not pursuing the dismissal of the entire proceeding. What I am left to consider in those circumstances is whether the striking out of the impugned pleadings is the proper manner to address the deficiency in the complainant’s pleadings. -- 4 of 22 -- 5 The submissions of the parties [16] I do not intend to exhaustively restate the submissions of the parties in these reasons. Suffice to say only the salient portions will be summarised in these reasons. The respondents’ submissions [17] In order to better illustrate the respondents’ argument, it is necessary to first set out certain relevant statutory provisions. [18] Section 5 of the AD Act provides: 5 Meaning of unjustifiable hardship Whether the supply of special services or facilities would impose "unjustifiable hardship" on a person depends on all the relevant circumstances of the case, including, for example— (a) the nature of the special services or facilities; and (b) the cost of supplying the special services or facilities and the number of people who would benefit or be disadvantaged; and (c) the financial circumstances of the person; and (d) the disruption that supplying the special services or facilities might cause; and (e) the nature of any benefit or detriment to all people concerned. [19] Section 10 of the AD Act relevantly provides: 10 Meaning of Direct Discrimination (1) Direct Discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different. … (Underlining added) [20] Section 35 of the AD Act provides: 35 Special services or facilities required (1) It is not unlawful for a person to discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if— (a) the other person would require special services or facilities; and (b) the supply of special services or facilities would impose unjustifiable hardship on the first person. (2) Whether the supply of special services or facilities would impose unjustifiable hardship depends on the circumstances set out in section 5. -- 5 of 22 -- 6 (Underlining added) [21] Section 5 of the Disability Discrimination Act 1992 (Cth) (‘the DD Act’) provides: 5 Direct disability discrimination (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and (b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different. (3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments. (Underlining added) [22] The respondents contend the impugned pleadings ought to be struck out because the term ‘reasonable adjustments’ is not contained in the AD Act, either by reference to direct discrimination or at all. The respondents contend that the impugned pleadings therefore plead no known cause of action. It is said that the impugned pleadings plead ‘reasonable adjustments’ as a positive duty when in fact no such duty is found in the AD Act. [23] In those circumstances, the respondents contend that the impugned pleadings do not display any legal ground for the matter to proceed to relief and that therefore, pursuant to the Commission’s discretion granted by s 541 of the Industrial Relations Act 2016 (Qld) (‘IR Act’), the impugned pleadings ought to be struck out as it is not in the public interest to deal with them. The complainant’s response [24] The complainant resists the strikeout application. The complainant acknowledges that the AD Act does not use the term ‘reasonable adjustments’ but contends that a positive duty make reasonable adjustments is arrived at by virtue of qualified exemption contained in the AD Act. [25] The complainant further refers to educational guidance provided by the QHRC website where the term ‘reasonable adjustments’ appears in support of their use of the term in their pleadings. The Complainant further argues that the respondents’ purported -- 6 of 22 -- 7 incomprehension of that cause of action, as it is outlined in the pleading, is feigned and otherwise implausible. [26] The complainant also draws upon references to (repealed) portions of the AD Act and various authorities referencing them to support (what seems to be) a submission that the statutory prescription to avoid technicalities in proceedings before the Commission (somehow) relaxes the need for pleadings contained in a SOFC to clearly state the case. The respondents’ reply [27] The respondents’ reply expressly confirms inter alia that they are not seeking the dismissal of the entire proceedings. This follows on from Counsel for the respondents’ statement to this effect at a mention on 23 May 2023. That was the first occasion where their position in that respect has been made known. The Commission’s power to strike out or amend Section 541 of the IR Act [28] The respondents’ submissions call for an exercise of the Commission’s discretion pursuant to s 541 of the IR Act.1 [29] Section 541 of the IR Act relevantly provides: 541 Decisions generally The court or commission may, in an industrial cause do any of the following— … (b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers— (i) the cause is trivial; or (ii) further proceedings by the court or commission are not necessary or desirable in the public interest; (Emphasis added) [30] I do not consider that s 541 of the IR Act is the most appropriate source of the Commission’s power to strike out pleadings. The opening portion of s 541 of the IR Act refers to an ‘industrial cause’. An industrial cause is defined at Sch 5 of the IR Act to include: 1 At paragraph 7 of the respondents’ submission filed on 6 February 2023 in support of the strikeout application. Note: the opening paragraph refers to s 451 of the IR Act, but thereafter the submission refers to s 541 of the IR Act. -- 7 of 22 -- 8 • An industrial matter • An industrial dispute • A work-related matter under the AD Act • Another matter within the jurisdiction of the commission. (Underlining added) [31] The term ‘cause’ used throughout s 541 of the IR Act appears to be a reference to the term ‘industrial cause’ as it appears at the commencement of the section. Further, in my view, both ‘cause’ or ‘industrial cause’ carry a connotation of totality, particularly when read in conjunction with Sch 5 of the IR Act and the consistent use of the terms ‘matter’ and ‘dispute’. [32] In my view the language of s 541 of the IR Act arguably limits the discretion granted to circumstances where consideration is being invited or given to dismissing or refraining from hearing ‘the cause’ i.e. the entire cause. I do not consider that the language of the section comfortably extends to a construction that expands the power granted by the section to include a power to e.g. ‘dismiss the cause or part of the cause’. [33] It may be the case that a ‘cause’ may contain divisible parts which, while interrelated, are each an individual cause in their own right. There may ultimately be some circumstances where those portions of such a claim are sufficiently distinct such that s 541 of the IR Act could be utilised to dismiss or refrain from further hearing them, but that is not the case here. [34] For the reasons that immediately follow, I consider there are other sources of power contained in the IR Act that more appropriately apply to an application of this nature. In the circumstances I do not intend to further consider the submissions of the respondents on matters of public interest pursuant to s 541 of the IR Act. Express powers to allow amendment [35] The Commission’s express powers to allow amendment of claims is primarily derived from s 539(d) of the IR Act, 2 which relevantly provides: 539 Powers incidental to the exercise of jurisdiction Except as otherwise provided for by this Act or the rules, the court, commission or registrar may— (a) at or before a hearing, take steps to find out whether all persons who are to be bound by a decision to be made in proceedings have been called to attend or given notice of, the proceedings; and 2 There is arguably also some power to allow amendment inferentially derived from s 536(d) of the IR Act and Rule 41(2)(e) of the Industrial Relations (Tribunals) Rules 2011 (Qld). See also Bond v State of Queensland (No.2) [2020] QIRC 078. -- 8 of 22 -- 9 (b) direct, for proceedings— (i) who the parties to the proceedings are; and (ii) by whom the parties may be represented; and (iii) persons to be called to attend the proceedings, if the persons have not been called and it appears the persons should attend the proceedings; and (iv) parties to be joined or struck out; and (v) who may be heard and on what conditions; and (c) hear and decide an industrial cause in the way that appears best suited for the purpose; and (d) allow claims in the proceedings to be amended on terms that appear fair and just; and (e) correct, amend or waive an error, defect or irregularity in the proceedings, whether substantive or formal; and (f) give directions under a decision that the court, commission or registrar considers necessary for, or conducive and appropriate to, the effective implementation of the decision; and (g) hear and decide an industrial cause in the absence of a party, or person who has been called to attend or served with a notice to appear, at the proceedings; and (h) sit at any time and in any place for hearing and deciding an industrial cause, and adjourn a sitting to any time and place; and (i) refer technical matters, accounting matters, or matters involving expert knowledge to an expert, and admit the expert’s report in evidence; and (j) extend a prescribed or stated time, before or after expiry of the time; and (k) waive compliance with the rules. (Emphasis added) [36] The term ‘claims’ is not defined in the IR Act. The ordinary meaning of the term is broad. Section 539(d) of the IR Act incorporates the term ‘claims’ with ‘in the proceedings’ which contemplates all parts of an application or proceeding that contain ‘claims’. Further, it sufficiently broad to incorporate claims of both factual and legal nature. The term ‘claim’ would therefore include claims made by or within a SOFC. [37] However, the term ‘allow’ contained in the section contemplates a power to be exercised responsively i.e. in circumstances where a party is seeking leave to amend their pleadings.3 A power to allow amendment (wherever sourced) cannot be characterised as a power that can be applied in a coercive way against a party by the Commission. Section 451 of the IR Act [38] The most appropriate source of the power to strike out pleadings in the manner contemplated by this application, or to order amendment, is found at s 451 of the IR Act. Section 451 of the IR Act confers a general power on the Commission for the performance of its functions. It relevantly provides: 451 General powers 3 For completeness, it also ought to be noted that, in my view, striking out pleadings is not within the contemplation of the terms ‘correct, amend, or waive’ a ‘defect in proceedings’ as they appear in s 539(e) of the IR Act. -- 9 of 22 -- 10 (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) [39] The general power to do all things ‘necessary or convenient’ is a broad and unfettered one, save to the extent it may be restricted by the statutory scheme in which it exists.4 In Queensland Police Union of Employees v HS First Inc.,5 the Full Bench of the Commission contemplated the exercise of the power conferred by s 451 in the context of granting summary judgment and commented in passing: [28] Similarly, it seems to us, having regard to the cases we have cited in paragraph [25] of these reasons, the general power conferred by s 451(1) and (2) of the IR Act is also broad enough to confer power on the Commission to strike out the statement of facts and contentions of a party and to order that the same party file and serve a further statement of facts and contentions. [40] Notwithstanding the erroneous basis upon which the respondents seek the Commission to exercise its discretion, the intent and basis of the strikeout application is clear. In keeping with the Commission’s obligation to perform its functions in a way that avoids unnecessary technicalities,6 I propose to proceed to consider the strikeout application in accordance with the powers available pursuant to s 451 of the IR Act. General principles on striking out [41] Where the exercise of the power conferred upon the Commission under s 451 of the IR Act would be to summarily dismiss a party’s pleading, or part of it, that power is to be used sparingly and the discretion should only be invoked in the clearest cases.7 [42] The power to strike out a sufficiently pleaded statement of facts and contentions cannot be exercised once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it.8 4 Together Queensland Industrial Union of Employees v Scales & Anor (No 3) [2022] QIRC 024, [17]-[19]. 5 [2023] QIRC 030 (Merrell DP, Pidgeon IC and Power IC). 6 Industrial Relations Act 2016 (Qld) s 447(2). 7 Agar v Hyde (2000) 201 CLR 552, [57]; Spencer v Commonwealth of Australia (2010) 241 CLR 118, [24]. 8 Equititrust Ltd v Tucker (No 2) [2019] QSC 248, [11] (Bowskill J), citing Dey v Victorian Railway Commissioners (1949) 78 CLR 62. -- 10 of 22 -- 11 [43] Pleadings serve to identify the issues to be determined in the case, disclose the arguable cause of action or defence that arises, and ensure procedural fairness by placing the other party on notice as to the case they must meet. An unduly technical or restrictive approach to pleadings should be avoided, especially in contemplation of summary dismissal.9 It is only where the criticisms of the pleadings so significantly interfere with the proper preparation of the case, and its presentation at hearing, that the criticisms should be seriously entertained by the Commission.10 [44] Importantly, in considering applications impugning pleadings, there is a need to draw a clear distinction between the party who is genuinely interested in ascertaining what issues are to be tried and the case that must be met, and the party engaged in sophistry who is interested in strategic advantage of delay and cost building, and who feigns ignorance of the substantive issues contained in the pleadings and the case required to be met.11 Consideration [45] The controversy between the parties in these interlocutory proceedings is narrow and simple. It is a controversy that reasonably minded opponents ought to have been able to resolve between themselves. Regrettably there was no such accord and, it seems to me, that the combative posturing of both parties has produced additional expense and delay in the progress of the substantive matter. [46] Following earlier challenges to the pleadings the parties participated in a conciliation conference. Without identifying positions adopted by each party, the final portion of the transcript of that conference reflects that the parties had properly embraced the conference as an opportunity to explore a resolution of the matter. Discussions were to be ongoing beyond the conference.12 [47] The same portion of transcript further reflects that if resolution was not able to be achieved from further discussions, then an application of the type now being dealt with was foreshadowed by the respondents. [48] Settlement was not reached, and the interlocutory proceedings began. While there may be facts not currently before the Commission that place a different complexion on the deterioration of settlement discussions in this matter, it is an outcome that seemed only remotely likely at the close of the conference. In those circumstances I cannot help but lament the failure of the parties in this instance to either resolve the substantive matter or 9 Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15. 10 Barclay Mowlem Construction Limited v Dampier Port Authority (2006) 33 WAR 82, [8]. 11 Ibid [10], [12]. 12 T 1-10, ll 15-36. For completeness it is proper to note generally that resolution at conferences of this type invariably occur without any admission of liability or formal concessions of any kind. -- 11 of 22 -- 12 alternatively, to reach an agreed position on the impugned pleadings without additional cost and delay associated with this interlocutory conflict. The impugned pleadings [49] The complaint in this matter is brought pursuant to the AD Act and, more particularly, Ss 10 and 15 of that Act. The impugned pleadings plainly contemplate a case that, in large part, relies on the relevant provisions of s 5 of the DD Act, an Act of the Commonwealth that has no application in these proceedings. For this reason, the criticism of the impugned pleadings by the respondent is entirely (technically) correct. [50] For completeness, and to be fair to the complainant, there are parts of the pleadings that plainly draw on the elements of s 15 of the AD Act. But these sit within the context of the flawed pleadings that the respondent had a positive obligation to make reasonable adjustments. [51] The glaring distinction between s 5 of the DD Act and s 10 of the AD Act is that the DD Act incorporates a failure to make ‘reasonable adjustments’ into its definition of ‘direct disability discrimination’ whereas, the definition at s 10 of the AD Act proscribes ‘less favourable treatment’ on the basis of the protected attribute. The dispute about the impugned pleadings [52] On a reasonable and properly objective consideration of the respondents’ criticism, it should have been a simple matter for the complainant’s representative to acknowledge the embarrassment in their pleading and to undertake to amend it. This opportunity was not taken by the complainant. [53] The respondents’ criticisms of the impugned pleadings were first brought to the Commission’s attention as an issue ancillary to conciliation. They were not fully articulated at the close of the conciliation conference. They appeared (at that time) to have the status of a ‘Plan B’ in the event discussions between the parties failed to achieve a resolution to the substantive matter. [54] From 8 December 2022 a series of emails were exchanged between the parties and the Commission that essentially advised the matter had not resolved and that the respondents now sought to proceed with an amendment to their earlier interlocutory application. Consent orders were supplied by the respondents. [55] Directions were issued in accordance with those consent orders on 9 January 2023 that required the respondents to file an amended interlocutory application by 6 February 2023.13 13 The respondents filed an interlocutory application on 3 November 2022 that simply sought the dismissal of the proceedings. The direction to file an amended interlocutory application was a reference to this application. -- 12 of 22 -- 13 [56] While I note that these interlocutory proceedings were the subject of formal directions, there is no evidence before the Commission that indicates whether the respondents made their criticism of the impugned pleadings clear (in writing) to the complainant at any time between November 2022 and February 2023. I note also that the respondents’ response to the complainant’s ASOFC does not clearly explain the criticism.14 Indeed, their response to the impugned pleadings is a ‘denial’ of the matters pleaded on the basis that those pleadings are “inaccurate, incorrect, or have no meaning at law”. [57] While this response hints at what has now become a more refined criticism, it does little to inform the complainant of the true particulars of the criticism. It is not until the strikeout application and accompanying submissions are filed on 6 February 2023 that the particularised basis relied on to impugn the pleadings is clear. [58] If there was any correspondence from the respondents inviting the complainant to further amend (as an alternative to a foreshadowed application), the Commission has not been furnished with such evidence. In the absence of such correspondence I would consider the respondents have, in part, provoked this controversy prematurely. If this be the case, it would have to impact adversely on any cost argument advanced by the respondents in respect of the interlocutory proceedings. The complainant’s response to the strikeout application [59] Notwithstanding the possible absence of a pre-emptive invitation from the respondent to the complainant to further amend the impugned pleadings, a contested hearing on this interlocutory issue could still have been avoided. [60] Upon being served with a copy of the respondents’ submissions filed 6 February 2023, the complainant was placed on notice of the respondents’ (legitimate) criticism of their pleadings.15 Instead of objectively considering the basis upon which the respondents sought to impugn the pleadings and striving for a constructive solution, the complainant has defensively ‘doubled down’ with a lengthy submission that travels up the metaphoric hill and down its accompanying dale, traversing all manner of erroneous or irrelevant subject matter. [61] Those submissions, that extend across 18 pages, barely address the criticism of the impugned pleadings. [62] They begin with an extensive retelling of the history of the matter by reference to the chronology of events post-filing. They then segue into to a discussion of ‘relevant matters of law’ which begins curiously with a replication of a repealed version of s 208 of the AD Act that has not been in force since December 2009. 14 Filed on 28 November 2022. 15 At paragraph 2. -- 13 of 22 -- 14 [63] Having informed the Commission of the state of the law in 2009, the submission then proceeds to expound upon the authorities of the Queensland Anti-Discrimination Tribunal that cite the long since repealed section. [64] In any event, the current (and repealed) version of s 208 of the AD Act, while differently worded, both deal with principles for the Commission’s evaluation of evidence in proceedings under the AD Act. It is not clear why the complainant relies on s 208 of the (repealed) AD Act to address asserted deficiencies in his pleadings. If the purpose for the submission is to assert that the pleadings contained in a SOFC are less than important in the context of the (historically) ‘non-technical’ approach prescribed for hearings by the (repealed) AD Act, such a submission is misconceived. [65] Procedural fairness requires that each party to such proceedings must plainly but comprehensively describe the case they intend to advance in their respective SOFCs. Further, the pleaded case ought to be clear well before any hearing of the matter. [66] That is not to say that the Commission imposes an onerous requirement of technical precision on parties. Clarity and comprehensiveness are all that is required. However, where a party is legally represented it would not be unreasonable to expect they would (at very least) be able to furnish a SOFC that clearly pleads their case within the statutory framework within which it is made. The complainant has not done that in this matter. [67] If it were the intention of the complainant to contend discrimination within the meaning of s 10 of the AD Act on the basis of his impairment, it is beyond trite to observe that his SOFC should (at least) contain a reference to ‘less favourable treatment’ ‘on the basis of his impairment’ and accompanying particulars.16 [68] The remainder of the complainant’s submissions simply reject the criticism of the impugned pleadings in very general terms and seek to invoke inter alia the use of the term ‘reasonable adjustments’ on the QHRC website as a legitimate basis for the pleading. It would be a novel approach to litigation indeed where causes of action were able to be drawn from text extracted from explanatory text on the website of a given court or tribunal. Suffice to say this submission is as perplexing as it is misconceived. [69] Having regard to the complainant’s submissions in response to this application, it appears he is prepared to argue all manner of misconceived arguments rather than concede an obvious (but not fatal) flaw in his pleadings. But, in fairness to the complainant, the desperate strategies to defend his flawed pleadings are likely in no small way due to the somewhat inconsistent approach of the respondents in this matter. 16 NB: there is a distinctly different meaning to the terms ‘less favourable treatment’ as it appears in section 10 of the AD act and ‘treating a worker unfavourably’ as it appears in section 15 of the AD Act. -- 14 of 22 -- 15 [70] The primary remedy sought in the interlocutory application is that ‘proceeding AD/2022/71 be dismissed’.17 Much of the complainant’s effort in his submission is therefore (understandably) devoted to defending his entire proceeding, without specific reference to the impugned pleadings. Unhelpfully, the respondents’ submissions supporting the interlocutory application do not elaborate on this proposed order. But they do not resile from it either. [71] The complainant was required to respond to the strikeout application, including the petition seeking to dismiss the proceedings in their entirety. It is not until a mention of the matter on 23 May 2023, after the complainant had filed his submissions, that the respondent expressly excluded consideration of dismissing the entire proceedings from their application.18 In those circumstances the complainant has been put to some unnecessary effort potentially at the expense of focusing on the real challenge. [72] In any event, the response from the complainant to the strikeout application is replete with misconceptions and unnecessarily combative contentions such that it has inflated the controversy around the impugned pleadings, though largely to his own determinant. A case of sophistry? [73] The complainant’s conflated pleading could (and should) have been remedied once the respondents raised the dispute. Instead, the complainant embarked on a misconceived defence of the indefensible. But in my view, it is also worth noting that the objections raised in these interlocutory proceedings by the respondents have some of the hallmarks of a contrived dispute. [74] It is somewhat unconventional to find such a significant dispute about pleadings emerging after the filing of pleadings by both parties. Ordinarily, a perceived defect in pleadings requiring interlocutory intercession of this type will usually be reserved for circumstances where the alleged defect is said to be an impediment to full or meaningful pleadings in response. An application impugning the alleged defective pleadings, especially those that are alleged to plead a cause not known at law, will usually be made before any other response is filed. [75] Yet in this matter, while some concerns about some of the impugned pleadings are broadly raised in the respondents’ response to the ASOFC, there are still relatively full and meaningful responses made. [76] The material facts of the substantive compliant are briefly summarised at the start of these reasons. These facts can be easily identified from the complainant’s ASOFCs and the respondents’ response. Putting to one side the technical flaws of the impugned pleadings, it is clear from the complainant’s ASOFC that the case advanced is that his impairment 17 The striking out of the impugned pleadings appears second on the list of ‘orders sought’ in the Form 4. It is not expressed as an alternative outcome sought by the respondents. 18 T 1-3, ll 30-40 and at paragraph 2(c) of the reply submission filed 29 May 2023. -- 15 of 22 -- 16 allegedly precluded his awareness of the no smoking policy.19 It is contended that reasonable adjustments could and ought to have been made by the respondent to better communicate the no smoking policy taking into account the complainant’s prescribed attribute.20 It is contended that the failure by the respondent to make this accommodation led to the complainant misconducting himself, and that in turn precipitated the termination of the complainant’s employment. However ineptly pleaded, that is plainly the case made by the complainant. [77] Relevantly, on the case currently pleaded by the complainant, there is no dispute as to the existence of the no smoking policies. Further, there is no dispute that the complainant engaged in conduct that breached the no smoking policy. Therefore, the case for the complainant turns entirely on whether the Commission accepts the assertion he was unaware of the no smoking policy. [78] The clear tenor of the complainant’s direct discrimination pleading is one of less favourable treatment, on the basis of an attribute, than another person without the attribute. It merely fails to use that language. The pleadings dealing discrimination in the workplace generally adopt the language of s 15 of the AD Act and, but for the technical flaws around the discrimination pleadings, are adequate. [79] In my view, there is some cause to be sceptical about the respondents’ protest of the pleadings. What is clear from the respondents’ response to the ASOFC is that they have sufficient understanding of the complainant’s case that they are able to address the critical factual question regarding the complainant’s knowledge of the no smoking policy, and to adequately mount a robust defence on the factual contest that is pivotal to the success (or failure) of the complaint. [80] The case for the respondent in this regard is very plain. Their case contends inter alia that the policy prohibiting smoking was communicated in the job advertisement to which the complainant responded.21 It is further contended that there was training about the policy on commencement of employment. The respondent also contends that the complainant is documented as having undertaken and understood that training.22 There are numerous other pleadings indicating other instances where the complainant was or ought to have been aware of the no smoking policy. [81] Additionally, there is a reference to post employment electronic communication in which the complainant apparently expresses knowledge and understanding of the relevant policy.23 19 Complainant’s amended Statement of Facts and Contentions filed 25 November 2022, [16]. 20 Complainant’s amended Statement of Facts and Contentions filed 25 November 2022, [17]. 21 Respondents’ Statement of Facts and Contentions, [2]. 22 Respondents’ Statement of Facts and Contentions, [14]. 23 Respondents’ Statement of Facts and Contentions, [31]. -- 16 of 22 -- 17 [82] There is also an ancillary contention that the complainant did not disclose or fully disclose his impairment which (presumably) goes to an argument that the attribute did not form the basis of any less favourable treatment. [83] Pleadings are not an end in themselves, instead they are a means to the ultimate attainment of justice between the parties to litigation.24 The criticism of the impugned pleadings is undoubtedly (technically) correct. But pleadings that are technically flawed do not always demand rectification. Even while the pleading of ‘less favourable treatment’ is absent, the contest between the parties in these proceedings is apparent. [84] What ought to have been obvious to the respondent in this matter is that the outcome of the factual contest as to the complainant’s awareness of the no smoking policy will be all but decisive to the complainant’s success. The respondents’ case countering the complainant’s contentions on this matter would appear to be strong given that the complainant’s knowledge or opportunity to be informed of the no smoking policy seems to be well documented. [85] While I do not consider that this application is a product of deliberate sophistry, I think that had the respondent hesitated to properly reflect on the issue, they would likely have taken a different approach to the impugned pleadings. Similarly, while it is tempting to speculate that the elaborate nature of this application was designed to build costs and cause delay, to the extent it is necessary to comment at all, I am more inclined to the view that the respondent simply reacted a little too excitedly to the prospect of vanquishing obviously defective pleadings by having them struck out. [86] A party to proceedings who is contemplating such an objection ought to take into account that the Commission performs its functions in a way that avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings.25 This does not mean that defective pleadings are ignored, but parties seeking the rectification of defects can (and should) pursue that informally and simply wherever possible. [87] In this matter, even where the complainant might have been uncooperative about rectification, a well-articulated oral application at a mention of proceedings would likely have produced the same result once the obvious flaws in the impugned pleadings were brought properly to the attention of the Commission. Conclusion [88] On the facts that are before me, it would appear that both parties have embraced this interlocutory dispute in a manner that has been disproportionate to its objective importance. One would expect that parties properly motived to end litigation would avoid unnecessary conflict where possible. 24 Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15, [13]. 25 Industrial Relations Act 2016 (Qld) s 447(2). -- 17 of 22 -- 18 [89] The approach taken by the parties has served only to add expense and delay in circumstances where little, if any, advantage has been gained by either party. There was never any realistic prospect of the entire proceedings being dismissed. So much was conceded by the respondents when they abandoned that part of their application after the filing of submissions. [90] Further, this was never a matter where the complainant’s complaint was misconceived. The facts contended for by the complainant and those put in response by the respondent reveal a relatively conventional disability discrimination complaint. Its only failing was the incompetence of the pleadings. In those circumstances it was also never going to be the case that the Commission would strike out the crucial framework of the pleaded case, but then refuse leave to rectify by amendment. This would have the same effect as dismissing the proceedings. Such a punitive approach is never warranted in circumstances where it results in an arguable case being extinguished merely for want of adequate pleadings. [91] The proper remedy in the circumstances of this case was always going to be an order or a grant of leave to the complainant to further amend his ASOFC. It is regrettable that the parties could not have used their energy and resources to arrive at this conclusion themselves. [92] Finally, it ought to be noted that the resources of this Commission are for the benefit of the public seeking to litigate their matters here. There is a collective responsibility of both the Commission and those who appear before it to ensure those resources are used efficiently and fairly, and in a way that allows all litigants to have their matters dealt with in a timely manner. Lawyers given leave to appear before the Commission have a particular responsibility to exercise proper judgment in their conduct of proceedings to ensure their matters do not excessively draw on the Commission’s resources to the prejudice of other litigants. [93] Legally represented parties who choose to invest their time and resources in elaborate interlocutory sideshows of questionable necessity should not expect the Commission to prioritise the use of its resources to resolve such matters, especially where it may be at the expense of others in genuine need of the Commission’s assistance. [94] I am reluctant to make any determination on costs at this time. I consider that much (if not all) of the costs incurred by the parties might have been avoided had they each taken a more constructive approach to resolving their differences. Having said that, I am mindful that there may be facts not currently before me that forced one or both parties to proceed in that manner. In those circumstances, prudence dictates that the parties have the opportunity to reflect on these reasons and, if they consider they have a viable claim in respect of costs, they will be at liberty to do so at a later time. -- 18 of 22 -- 19 Order [95] For all of the foregoing reasons, pursuant to s 451 of the IR Act, it is the order of the Commission that: 1. The Application to strike out paragraphs 12, 13, 17, 18, 28, 30, 31, 32 and 33(a) of the complainant’s Amended Statement of Facts and Contentions (filed 25 November 2022) is refused; 2. The complainant is to file and serve a Further Amended Statement of Facts and Contentions addressing (but not limited to) the deficiencies identified in these reasons at paragraphs 12, 13, 17, 18, 28, 30, 31, 32 and 33(a) of his Amended Statement of Facts and Contentions (filed 25 November 2022); 3. The matter will be listed for mention in the week commencing 27 January 2025 to make directions regarding Order 2 above and any other directions as required or requested; 4. Any application in relation to the costs of this application must be filed and served by 4.00 pm on 24 January 2025. -- 19 of 22 -- 20 SCHEDULE 1 ‘Impugned pleadings’ 12. The Second Respondent a. failed to consider whether or not the Complainant required reasonable adjustments in order to understand that the two-step process constituted his induction; b. in the absence of considering or providing reasonable adjustments consistent with the Complainant's impairment, failed to take reasonable steps to ensure the Complainant understood the two-step process constituted his induction; c. in the absence of considering or providing reasonable adjustments consistent with the Complainant's impairment, failed to take reasonable steps to ensure the Complainant could comprehend the two- step process constituting his induction; d. failed to advise, make aware or notify the complainant that the two-step process constituted his induction. 13. In failing to consider what reasonable adjustments were necessary and to take steps to implement those temporary adjustments to enable the Complainant to 1. Understand that the two-step process constituted his induction; and 11. Comprehend the content of the two-step process said to constitute his induction the Second Respondent discriminated against the Complainant. Particulars a. In failing to undertake the obligations outlined at paragraphs 12 and 13, the Second Respondent discriminated against the Applicant by i. denying or limiting access to opportunities for training or other benefit to a worker; [s 15(1)(b) ADA 1991]; and/or ii. denying access to an occupational training program; [s 15(1)(d) ADA 1991] and/or iii. treating the Applicant unfavourably in connection with work [s 15(1)(:f) ADA 1991]. 17. The Second Respondent a. failed to consider whether or not the Complainant required reasonable adjustments in order to understand the First Respondent's policies; b. in the absence of considering or providing reasonable adjustments consistent with the Complainant's impairment, failed to take reasonable steps to ensure the Complainant understood the First Respondent's policies; -- 20 of 22 -- 21 c. in the absence of considering or providing reasonable adjustments consistent with the Complainant's impairment, failed to take reasonable steps to ensure the Complainant could comprehend the First Respondent's policies 18. In failing to consider what reasonable adjustments were necessary and to take steps to implement those temporary adjustments to enable the Complainant to understand the First Respondent's policies the Second Respondent discriminated against the Complainant. Particulars a. In failing to undertake the obligations outlined at paragraphs 16, 17 and 18, the Second Respondent discriminated against the Applicant by i. denying or limiting access to opportunities for training or other benefit to a worker; [s 15(l){b) ADA 1991]; and/or ii. denying access to an occupational training program; [s 15(1)(d) ADA 1991] and/or iii. treating the Applicant unfavourably in connection with work [s 15(l)(f) ADA 1991]. 28. In failing to provide the Complainant with a copy of the 'Smoking Policy', or comply with its terms, the First Respondent discriminated against the Applicant. Particulars 1. The Second Respondent failed to ensure the 'Smoking Policy' was properly disseminated to a worker with an impairment and failed to comply with the Policy when he failed to consider or implement the recommendations, namely a. facilitate a 'one to two month' phasing in period; b. provide courses which assist in quitting smoking; c. subsidise the cost of nicotine replacement therapy; d. provide information regarding the negative health effects of smoking; and, e. provide information through Quitline services regarding how to quit smoking (The Strategies). 30. In summarily dismissing the Complainant the Second Respondent breached the Smoking Policy preferred response in the event that an employee is non-compliant with the Policy when he failed or refused to – a. explain the details and importance of The Policy to the Complainant; b. provide individual education to the Complainant; c. make further attempts to assist the Complainant in understanding and adhering to The Policy; and 31. The First and Second Respondent discriminated against the Complainant by failing to -- 21 of 22 -- 22 provide the Complainant with procedural fairness by neglecting to: a. notify the Complainant that the 'Smoking Policy' existed; b. provide the Complainant with a copy of The Policy in a language the Complainant could understand; c. adequately explain the 'Smoking Policy' in a language the Complainant could understand; d. educate the Complainant on the implementation of the 'Smoking Policy'; e. assist the Complainant in understanding and adhering to the 'Smoking Policy'; f. provide the Complainant with a warning or preliminary direction by management when he inadvertently breached the 'Smoking Policy' in circumstances where he had no actual or constructive knowledge of the Policy; g. provide reasonable adjustments to facilitate the Complainant's ongoing employment. 32. In failing to comply with the Policy the Second Respondent as outlined in paragraphs 24, 26, 28, 29, 30 and 31 discriminated against the Applicant by summarily dismissing the Complainant. Particulars In dismissing the Complainant, the Second Respondent discriminated against the Complainant by denying or limiting access to opportunities for training or other benefit to a worker; [s 15(1)(b) ADA 1991]; and/or dismissing a worker [s 15(1)(c) ADA 1991]; denying access to an occupational training program; [s 15(1)(d) ADA 1991] and/or treating the Applicant unfavourably in connection with work [s 15(1)(f) ADA 1991]. 33. Such discrimination outlined above constituted- a. Direct discrimination; (i) The appropriate comparator is a person who – (ia) does not have the complainant's impairment but cannot hear (example, a person wearing noise cancelling earphones for work & health safety reasons); or (ib) has an impairment different to that of the complainant (example, a person who has macular degeneration in which the person has limited vision to read words on a screen but can still perform the genuine occupational requirements of a pastry chef) -- 22 of 22 --