Abdullah v Taxi Council of Queensland Incorporated and Vogt

[2011] QCAT 45

CITATION: Abdullah v Taxi Council of Queensland Incorporated and Vogt [2011] QCAT 45

APPLICANT:	Yusef Abdullah
v
RESPONDENTS:	Taxi Council of Queensland Incorporated and Erich Vogt

APPLICATION NUMBER:   ADL083-10

MATTER TYPE: Anti-discrimination matters

HEARING DATE:     7 January 2011

HEARD AT:  Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 17 February 2011

DELIVERED AT:      Brisbane

ORDERS MADE: Application to dismiss the proceedings is refused.

CATCHWORDS :  Pre-hearing dismissal sought – section 48 of the Queensland Civil and Administrative Tribunal Act 2009 – whether party had been disadvantaged

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of the parties.

REASONS FOR DECISION

1. On 17 September 2010 the Anti-Discrimination Commission of Queensland referred a complaint by Yusef Abdullah about the Taxi Council of Queensland Incorporated and Erich Vogt to the tribunal.  The complaint alleged that the respondents had unlawfully discriminated against, and had vilified, Mr Abdullah on the grounds of his race.

2. On 19 October 2010 the tribunal made directions in which the parties were to file and serve contentions in the proceedings by specified dates.  In the directions Mr Abdullah was given until 2 November 2010 to file an application seeking to be represented in the proceedings.

3. On 1 November 2010 Mr Abdullah contacted a staff member in the tribunal registry and asked for an application for an extension of time as he would not be able to lodge his application for leave for representation by the time set out in the directions.  An application was sent to him by email on 3 November 2010.

4. On 22 November 2010 Mr Abdullah informed a staff member in the tribunal registry that he had applied for legal aid but he had no response to his application by that date.  Mr Abdullah confirmed that he intended to file in the tribunal an application for an extension of time to comply with the directions made on 19 October 2010.

5. On 17 December 2010 a letter was sent to Mr Abdullah from the tribunal registry informing him that the proceedings would be considered for dismissal due to his non compliance with the tribunal’s directions.  He was informed that he had until 22 December 2010 to file an application for an extension of time to comply with the tribunal’s directions.

6. On 22 December 2010 Mr Abdullah filed in the tribunal an application for an extension of time.  The ground set out in the application for seeking an extension of time was because he was still waiting for a response to his application for legal aid.

7. The respondents were asked for their comments to the application made by Mr Abdullah for an extension of time.  Blair Davies, chief executive officer of the Taxi Council of Queensland, responded on 23 December 2010.  He submitted that the request for extension of time should be denied and he asked that the tribunal dismiss the proceedings.  Mr Blair submitted that Mr Abdullah had engaged lawyers since at least 19 November 2010 and further protraction of the proceedings caused unnecessary harm to the Taxi Council of Queensland.

8. The tribunal granted Mr Abdullah an extension of time to comply with the directions of the tribunal and issued an amended set of directions on 7 January 2011.   A copy of the amended directions was sent to the Taxi Council of Queensland by letter dated 19 January 2011.

9. On 27 January 2011 Blair Davies requested reasons for rejecting the request made by the Taxi Council of Queensland for the dismissal of the proceedings.

10. This proceeding was commenced in September 2010 by a referral to the tribunal under the Anti-Discrimination Act 1991. Contentions had not been filed by any of the parties by 7 January 2011. The general course that proceedings follow in this tribunal is for the parties to file an initial document setting out their case, for the parties to engage in a compulsory conference at the direction of the tribunal and if the matter in dispute between the parties remains unresolved, for the parties to engage in a hearing before a member of the tribunal for a final determination of the dispute. That final determination could result in the applicant obtaining the outcomes claimed in the application or in the application being dismissed.

11. The Queensland Civil and Administrative Tribunal Act 2009 permits the tribunal to depart from that general course and permits an early end to proceedings in Part 5 of Chapter 2 of the Act. Section 47 of the Act permits the tribunal to dismiss a proceeding if it finds that the proceeding is frivolous, vexatious or misconceived, is lacking in substance or is otherwise an abuse of process. Section 48 of the Act 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.

12. The application for early dismissal of the proceedings made by the Taxi Council of Queensland, apparently based on the provisions in section 48 of the Act, submitted that the failure of Mr Abdullah to comply with the directions of the tribunal had caused unnecessary disadvantage to that respondent. The submissions did not particularise the manner in which the respondent was disadvantaged. The submissions supporting the request for dismissal asserted that the respondent was a not for profit incorporated association that uses government funding to supervise taxi ranks as a community benefit.

13. Non compliance with the directions of the tribunal is not in itself sufficient to warrant a dismissal of proceedings.  There must be established a finding that non compliance has resulted in unnecessary disadvantage to another party in the proceedings.  The Taxi Council of Queensland had not produced any evidence that it had been disadvantaged by the failure of Mr Abdullah to comply with the directions of the tribunal.

14. The tribunal is unable to find that the Taxi Council of Queensland has been caused disadvantage relevant to the provisions in section 48 of the Act by the actions of Mr Abdullah in this proceeding. In the absence of a finding of disadvantage, the tribunal has no basis to bring an early end to the proceeding unless the provisions in section 47 of the Act apply. There was no evidence produced to support a dismissal under that section.

15. It is a serious matter for the tribunal to dismiss a claim that unlawful discrimination has occurred without allowing a hearing of that claim to take place.  Dismissal of the claim at this early stage of the proceedings would deprive Mr Abdullah of the opportunity to have an independent determination made on his claim that his human rights have been unlawfully contravened.

16. In view of the Tribunal not being persuaded that pre-hearing dismissal under section 48 of the Act is a just or appropriate remedy, the application for dismissal was refused.