Chalk v Casey & Ors [2022] QIRC 86

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Chalk v Casey & Ors [2022] QIRC 086 Chalk, Jody (Complainant) v Casey, Damien (First Respondent) & Berry, Richard (Second Respondent) & Marquis Macadamias Ltd (Third Respondent) CASE NO: AD/2020/103 PROCEEDING: Application in existing proceedings DELIVERED ON: 15 March 2022 MEMBER: HEARD AT: McLennan IC On the papers ORDER: CATCHWORDS: 1. The Form 4 Application in existing proceedings filed 17 January 2022 is dismissed. EQUAL OPPORTUNITY AND DISCRIMINATION - where Complainant did not respond to correspondence - where Respondents seek dismissal of proceeding for want of prosecution - whether proceeding -- 1 of 8 -- 2 should be dismissed pursuant to s 451(2) of the Industrial Relations Act 2016 (Qld) LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) s 4, s 451, s 541 Alexander v State of Queensland (TAFE Queensland) [2020] QIRC 096 Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18 Dawson v State of Queensland (Department of Premier and Cabinet) [2021] QIRC 342 Masel & Ors v Transport Industries Insurance Co Ltd & Ors [1995] 2 VR 328 Reasons for Decision Background [1] On 30 November 2020, Supportah Ops Pty Ltd t/as Human Rights Claims on behalf of Ms Jody Chalk (the Complainant) filed a 'Form 85 - Referral of a matter' in the Industrial Registry. [2] The matter was conferenced at the Commission on 22 January 2021 and 22 July 2021. The conferences did not result in settlement. [3] The Industrial Registry contacted the Complainant via email on 29 July 2021 and followed up again on 26 August 2021 to enquire whether the matter was ready to be reallocated for hearing. [4] The Complainant responded on 26 August 2021 and advised: The Applicant party is currently engaging in an IME process, and until time frames around this process are confirmed, the Applicant is not in a position to reliably seek trial dates. Consequently, while we view that the matter is ready to be reallocated, we are of the view it is too early to be called on for a mention for the setting of directions around the hearing. We intend to update the Registry and the Respondent at our earliest convenience as to when time frames around the IME process are known. -- 2 of 8 -- 3 [5] On 16 October 2021, Mr Craig Pollard as agent for the Respondents forwarded an email to the Complainant seeking an update on her intent to pursue the matter.1 [6] On 27 October 2021 and 8 December 2021, the Industrial Registry contacted the Complainant via email to obtain an update on the matters raised in the 26 August 2021 correspondence. The Complainant did not respond. [7] On 17 January 2022, the Respondent filed a "Form 4 - Application in existing proceedings" seeking that the proceeding "be dismissed for want of prosecution" (the Application).2 [8] On 21 January 2022, I issued a Directions Order inviting submissions with respect to the Application. Legislative framework Section 451 of the IR Act [9] The Respondents seek the matter be dismissed pursuant to s 451 of the Industrial Relations Act 2016 (Qld) (the IR Act): 451 General powers (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. [10] The Respondents rely on Masel & Ors v Transport Industries Insurance Co Ltd & Ors3 as a decision which sets out the principles in determining an Application such as this. The Respondents did not articulate or reference the principles they seek to rely upon as they did not go beyond merely mentioning the decision. Upon review of the decision, I have drawn the following: • "The guiding principle for the exercise of the discretion to dismiss a proceeding for want of prosecution was that an order for dismissal would be made if the justice of the occasion demanded it." 1 Form 4 - Application in existing proceedings, 17 January 2022, 3. 2 Ibid. 3 [1995] 2 VR 328. -- 3 of 8 -- 4 • "… inordinate and inexcusable delay by the plaintiff resulting in serious prejudice to the defendant (including the risk of an unfair trial) would not in all circumstances require the action to be dismissed for want of prosecution." • "Delay was relative and to be seen in context. In this case, considering the overall pattern of blocking and diverting conduct on the part of the appellants, the complexity of matters in issue and delay caused by the processes of the court, the appellants failed to establish that the primary judge erroneously exercised his discretion in rejecting the application to dismiss the proceeding for want of prosecution."4 Section 541(b)(ii) of the IR Act [11] Although the Respondents submissions refer only to s 451 of the IR Act, generally an application of this type would also be brought under s 541(b)(ii) of the IR Act (emphasis added): 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; (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. [12] In Campbell v State of Queensland (Department of Justice and Attorney-General),5 Justice Martin provided (emphasis added, citations removed): [25] Similarly, in Prange v Brisbane City Council, Hall P held at [3] that: "The power to dismiss proceedings pursuant to s. 331 of the Act, on the ground that further proceedings are not necessary or desirable in the public interest, is a discretionary power. The discretion is not vested in this Court. The discretion is vested in the Commission. Only in limited circumstances may this Court intervene. In House v The King at 504 to 506, Dixon, Evatt and McTiernan JJ explained: 'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the 4 [1995] 2 VR 328-329. 5 [2019] ICQ 18, [23]-[26]. -- 4 of 8 -- 5 position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’ [26] In the earlier case of Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd Hall P, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell as follows: "There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules." Should the proceeding be dismissed? Respondents' Submissions [13] The basis of the Application is that the Complainant has not taken action in relation to the claim for approximately six months and the Complainant clearly has no intent to pursue the claim in a timely matter.6 In that regard, the Respondents refer to s 4 of the IR Act which provides the main purpose of the IR Act is to be achieved primarily by: … (p) providing for effective, responsive and accessible mechanisms to support negotiations and resolve industrial disputes; (q) establishing an independent court and tribunal to facilitate fair, balanced and productive industrial relations…7 … [14] The Respondents outlined a chronology of the matter, noting the initial complaint was filed with the Anti-Discrimination Commission Queensland on 16 July 2020.8 Markedly, that chronology illustrates the numerous occasions on which the Industrial Registry and the Respondents have contacted the Complainant in an attempt to progress the matter or 6 Form 4 - Application in existing proceedings, 17 January 2022, 3; Respondents' Submissions, 22 January 2022, 1 [1]. 7 Respondents' Submissions, 22 January 2022, 3 [14]. 8 Ibid 1 [2]. -- 5 of 8 -- 6 at the very least seek an update with respect to the Independent Medical Examination (the IME). [15] The Respondents submit the matters subject of the complaint allegedly occurred in May 2020 and that the delay is decaying the recollections and evidence which may be utilised by the Respondents.9 Further, the First Respondent is no longer employed by the Third Respondent and is no longer available to assist in the defence as is the case for many other "seasonal" staff members.10 The Respondents submit it is unjust for the matter to be held in abeyance because the reasonable prospects of defence will be diminished before the Complainant decides to re-enliven the claim to take advantage of an improved prospect of success.11 [16] The Respondents contend that a matter need not be in abeyance for 12 months before an application to dismiss can be made.12 Complainant's Submissions [17] The Complainant contends there is a sound explanation for the delay, summarised as follows: • the delay has been caused by issues arising out of scheduling an IME including the conduct of the IME provider; • the IME is relevant to the consideration of damages for the purpose of s 209 of the Anti-Discrimination Act 1991 (Qld); • the resultant medico-legal report will be critical evidence and of significant value to the Commissioner hearing the matter; and • the steps taken by the Complainant to progress the matter have ultimately resulted in an IME booking in May 2022.13 [18] I have reviewed the affidavit of Sophie Wheeler dated 7 February 2022 which outlines the correspondence around scheduling an IME appointment. [19] In response to the Respondents' submissions regarding prejudice and the interests of justice, the Complainant contends: • the Form 1 filed by the Respondents on 30 April 2021 indicates the Respondents are jointly represented and the Application purports to be made on behalf of all 9 Respondent's Submissions, 22 January 2022, 2 [10]. 10 Ibid [10]-[11]. 11 Ibid 3 [13]. 12 Ibid 2 [12]. 13 Complainant's Submissions, 7 February 2022, 1 [4]-[13]. -- 6 of 8 -- 7 Respondents - therefore it does not make sense that the First Respondent is not available to assist; • the Respondents have not identified with any specificity any witnesses it may have sought to call, but can no longer access; • the matters at hand relate to processes and procedures around reasonable adjustments which are primarily matters of documents and less affected by memory; • any prejudice experienced by the Respondents is perceived rather than material; • the Respondents rely on generalised statements without any evidence in support of their claim of prejudice; and • the balance of prejudice favours keeping the matter open.14 [20] The Complainant also contends that the powers under s 451 of the IR Act are not intended to be exercised in the way sought by the Respondent. The Respondent contends that s 451(2) considers the giving of directions about the hearing of the matter in the first instance.15 [21] Further, or in the alternative, the Complainant submits that dismissal of the matter would be unreasonably harsh in the circumstances, and not appropriate.16 The Complainant contends the Respondents could have sought a mention be listed to discuss the subject matter of this Application but did not.17 Consideration [22] The Respondents have not convinced me that the proceeding should be dismissed for want of prosecution. My reasons follow. [23] There is certainly a need for a level of efficiency in the use of the Commission and out of fairness to the Respondents. However, I am satisfied that the cause for the delay is reasonable at this point in time. The delay pertains to obtaining an IME which I accept may be useful to the Commission at the Hearing of this matter. I also accept that the delay has not resulted from the Complainant's actions but rather there appears to be some confusion or miscommunication with the IME provider. Significantly, an IME has been booked for May 2022 and therefore progress is foreseeable. [24] While the Respondents' submissions regarding prejudice are generalised, the points raised are valid. The seasonal nature of employment referred to is notable and I accept 14 Complainant's Submissions, 7 February 2022, 3 [14] - [35]. 15 Ibid 4 [39] - [41]. 16 Ibid [44]. 17 Ibid [47]. -- 7 of 8 -- 8 this proceeding should be progressed quickly to reduce any issues associated with that. Ultimately however, I do not accept that the prejudice against the Respondents is strong enough to dismiss the proceeding. The Complainant correctly points out that it appears the Respondents are all represented by the same agent - therefore any argument about a Respondent no longer being of assistance is quite peculiar. [25] Overall, the prejudice to be suffered by the Complainant in the event I were to dismiss the proceeding is that she would lose the opportunity to have her case heard. That prejudice is significant. [26] With respect to the Complainant's submissions regarding the inappropriateness of ordering dismissal under s 451 of the IR Act, I note I have previously concluded in Alexander v State of Queensland (TAFE Queensland) that in the alternative to s 541 of the IR Act, I would dismiss proceedings under s 451(2)(c) of the IR Act.18 Vice President O'Connor similarly determined to dismiss an application under that provision in Dawson v State of Queensland (Department of the Premier and Cabinet).19 Although it may not be the most appropriate provision under which an application to dismiss can be determined, I do not accept that it is not possible to do so. [27] Despite the order I will make, I note the conduct of the Complainant has been disrespectful to the Commission and the Respondents. The Complainant has not provided any explanation for why she did not respond to various correspondence and it is unacceptable for the Complainant to expect this matter can be run on her terms. I note particularly the Complainant's attempt to shift the blame to the Respondents for not calling on a mention rather than proceeding to file this Application. It is the fault of the Complainant that the Respondents had to raise this issue formally and although unsuccessful I do not find it unreasonable that the Application was brought, particularly noting the weight of allegations against them. Further conduct of the kind seen from the Complainant in this matter may very well result in a different decision in the future. Conclusion [28] For the reasons outlined above, I have accepted that the balance of prejudice favours keeping the matter open and that an order to dismiss is not appropriate at this time. [29] I order accordingly. Order: 1. The Form 4 Application in existing proceedings filed 17 January 2022 is dismissed. 18 [2020] QIRC 096, 18 [85]. 19 [2021] QIRC 342. -- 8 of 8 --