Burridge v Mulla & Anor [2024] QIRC 62

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Burridge v Mulla & Anor [2024] QIRC 062 PARTIES: Burridge, Caitlin (Complainant) v Mulla, Firdous Taherkahan (First Respondent) and Shah, Ubaid (Second Respondent) CASE NO: AD/2022/27 PROCEEDING: Application in existing proceedings DELIVERED ON: 13 March 2024 MEMBER: HEARD AT: Power IC On the papers ORDER: 1. The Notice of Discontinuance is approved; 2. AD/2022/27 is discontinued pursuant to s 68(4); 3. Liberty to apply. CATCHWORDS: ANTI-DISCRIMINATION - where the parties have signed a deed of settlement – where the Respondents filed an application to dismiss – where the Complainant filed a request to discontinue proceedings – Respondent's application dismissed – proceedings discontinued -- 1 of 6 -- 2 LEGISLATION AND INSTRUMENTS: Anti-Discrimination Act 1991 (Qld) Industrial Relations Act 2016 (Qld), ss 451, 541 Industrial Relations (Tribunals) Rules 2011 (Qld), r 68 Reasons for Decision Introduction [1] Ms Caitlin Burridge ('the Complainant') filed a complaint in the Queensland Human Rights Commission on 8 December 2021 alleging contraventions of the Anti- Discrimination Act 1991 (Qld) ('the AD Act') by Firdous Taherkahan Mulla and Ubaid Shah ('the Respondents'). [2] This decision relates to an Application in Existing Proceedings in which the Respondents in the substantive matter are the Applicants, and a Request to discontinue proceeding in which the Complainant is the Applicant. To avoid confusion, the parties are referred to as the Complainant and Respondents to reflect the substantive matter. [3] Following an unsuccessful conciliation conference at the QHRC, the complaint was referred to this Commission on 22 April 2022. [4] The parties executed a Deed of Settlement on 18 May 2022 which included the following terms – • No admission of liability; • The Applicant was to pay the Respondent an agreed amount ('settlement sum'); and • Upon receipt of the settlement sum, the Respondent was to file a Notice of Discontinuance. [5] Following the execution of the Deed, a dispute arose between the parties relating to the application of taxation to the settlement sum. [6] The Respondent subsequently filed an Application in Existing Proceedings on 9 August 2022 seeking an order pursuant to section 541(b)(ii), or in the alternative section 451, of the Industrial Relations Act 2016 (Qld) ('the IR Act') that the matter be dismissed. [7] On 25 August 2022, the Complainant filed a Form 27 Request to discontinue proceeding. [8] The matter was listed for mention on 5 October 2022. At this mention parties were directed to attempt to resolve the issues of costs of the Respondent's application -- 2 of 6 -- 3 informally at first instance. [9] The parties advised the Commission on 7 October 2022 that the dispute on costs could not be resolved between the parties. [10] A Directions Order was issued by the Commission directing parties to file and serve submissions and any affidavit material in relation to the Respondent's Application in Existing Proceedings. Complainant's evidence [11] The Complainant's representative, Mr Sebastian Olsen, filed an affidavit annexing a copy of the Deed along with correspondence between the parties following the execution of the Deed. [12] The annexed correspondence outlines the dispute between the parties as to whether the settlement sum is subject to income tax or is to be treated as compensation. [13] The Complainant filed submissions which are summarised as follows – • On 9 August 2022, the respondents filed an application seeking to dismiss the complainant's proceeding; • On 25 August 2022, the Complainant's solicitors filed a Form 27 – Request to discontinue proceedings in the Industrial Registry; • As the Complainant discontinued her complaint, the substantive orders sought in the application are now unnecessary, noting that the Respondents have not objected to the complaint being discontinued pursuant to rule 68(4) of the Industrial Relations (Tribunals) Rules 2011 ('the IR Rules'); • The only remaining issue is that of costs sought by the Respondents; and • The question for the Commission is whether the interests of justice are such that they displace the general principal that each party bear their own costs. [14] The Complainant submits that the available evidence gives the Commission cause to depart from the normal convention regarding costs to order that the Respondents pay the Complainant's costs concerning the Application filed on 9 August 2022. Respondent's evidence [15] The Respondent's representative, Mr Cameron Niven, filed an affidavit annexing correspondence between the parties following the execution of the Deed. [16] Mr Niven's evidence is that the settlement sum was paid to the Complainant on -- 3 of 6 -- 4 13 June 2022 with applicable taxation withheld. [17] Mr Niven states that the Complainant sent correspondence dated 21 June 2022 stating that the Respondent had failed to pay the settlement sum in full and that the settlement sum is not taxable. Further, the Complainant's correspondence stated that if the Complainant suffers loss and damage, this will be claimed for in any action for breach of contract. The Complainant's correspondence further stated that if the balance was not deposited by 24 June 2022, the Complainant's representatives held instructions to institute court proceedings. [18] Mr Niven sent reply correspondence to the Complainant on 23 June 2022, stating inter alia the following – • Should the Complainant not comply with the Deed's provisions concerning a requirement to lodge a Notice of Discontinuance, Mr Niven would seek the Respondents instructions to commence an application within the Commission seeking the proceedings be dismissed; and • The Respondents' rights were reserved to produce the correspondence as it relates to indemnity costs. [19] Mr Niven states that he received correspondence from the Complainant's Representatives on 1 July 2022 stating, inter alia – • The Deed's indemnity would only operate when the Respondents had paid the settlement sum; • That there was no ambiguity about whether the settlement sum constituted compensation, as the only money payable in the jurisdiction would be compensation pursuant to the Anti-Discrimination Act 1991; and • That they requested to know if Mr Niven held instructions to accept a Claim and Statement of Claim. [20] Mr Niven states that some 47 days after providing the Notice, he caused an Application in Existing Proceedings to be lodged with the Commission seeking the proceedings be dismissed for want of jurisdiction and for having no reasonable prospects of success. Legislation [21] Section 541 of the IR Act is outlined as follows - 541 DECISIONS GENERALLY The court or commission may, in an industrial cause do any of the following— (a) make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause; -- 4 of 6 -- 5 (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; (c) order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate.1 Consideration [22] The Application to dismiss the substantive complaint was filed by the Respondents on 9 August 2022 following the execution of a Deed of Settlement ('the Deed') to resolve the substantive matter. [23] A dispute arose between the parties as to whether the Deed permitted the Respondent to withhold income tax from the settlement sum amount. [24] The Deed provided that a Notice of Discontinuance was to be filed in this Commission within 7 days of receipt of the settlement sum by the Complainant. [25] As a result of the dispute over the taxation of the settlement sum, the Complainant did not file a notice of discontinuance within the 7-day period. [26] It is clear from the correspondence that the delay in the filing of the discontinuance was a result of the Complainant's view that the Respondents had not complied with the terms of the Deed. The correctness of that view or otherwise is not the subject of this decision. [27] The substantive issue in the matter has been resolved and the dispute is one related to the interpretation of the relevant clauses within the Deed. Any application for enforcement of the terms of the Deed must be brought in a court of competent jurisdiction. [28] The Complainant filed a Notice of Discontinuance on 26 August 2022. The Respondent did not object to the filing of the Notice of Discontinuance as provided for in r 68(3) of the IR Rules.2 The existence of the Respondent's Application is not a substitute for a formal objection in accordance with r 68(3) of the IR Rules.3 [29] It is noted that the Respondent sent an email to the Commission on 2 September 2022 stating that "our client does wish to discontinue and is happy for this to occur", noting 1 Industrial Relations Act 2016 (Qld), s541. 2 Industrial Relations (Tribunals) Rules 2011 (Qld), r 68(3). 3 Ibid. -- 5 of 6 -- 6 however that they wished to deal with the matter of costs associated with their Application. [30] An Application to dismiss proceedings requires consideration of a number of factors, including the prospects of the matter, and is not granted lightly. In circumstances where there is no objection to the Notice of Discontinuance, there seems to be little utility in considering the Application. [31] I am satisfied that the Complainant should be allowed to discontinue the proceeding pursuant to s 68(4) of the IR Rules.4 [32] I order accordingly – 1. The Notice of Discontinuance is approved; 2. AD/2022/27 is discontinued pursuant to s 68(4); 3. Liberty to apply. 4 Industrial Relations (Tribunals) Rules 2011 (Qld), r 68(4) -- 6 of 6 --