Clements v Phillips (No. 3) - [2023] QIRC 228

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Clements v Phillips (No. 3) [2023] QIRC 228
PARTIES:	Clements, Chandra Anne (Complainant) v Phillips, Darren (Respondent)
CASE NO:	AD/2021/67
PROCEEDING:	Application for joinder
DELIVERED ON:	04 August 2023
HEARING DATE:	24 May 2023
MEMBER: HEARD AT:	Power IC Brisbane
ORDER:	The application to join the non-parties is dismissed.
CATCHWORDS:	ANTI-DISCRIMINATION – INDUSTRIAL LAW - APPLICATION FOR JOINDER - where Respondent seeks to join parties in the proceeding - where Complainant resists the joinder – where non-parties resist joinder – application dismissed
LEGISLATION: CASES:	Anti-Discrimination Act 1991 (Qld), sch 1 & s 177 Corporations Act 2001 (Cth), s 601 Industrial Relations Act 2016 (Qld) 2016, ss 539 Industrial Relations (Tribunal) Rules 2011 r 41, 98 Uniform Civil Procedure Rules 1999 (Qld), r 69 Gurtner v Circuit [1968] 2 QB 587 H v T [2006] QADT 20 Just GI P/L v Pig Improvement Co Aust P/L [2001] QCA 48 McDonald v Tinbilly Travellers Pty Ltd [2006] QIRC 122 Parker v Two Champions Pty Ltd [2018] QCAT 13 Peters v Coastace Pty Ltd (2006) 227 ALR 750 Q v X [2010] QCAT 297 Sailor v Hubbucks & Black & White (Quick Service) Taxis Ltd [2006] QADT 45

APPEARANCES: Ms C. Clements as self-represented Complainant

Mr J.B. Loel of Lillas & Loel Lawyers Pty Ltd for the Respondent
Mr C. Mossman of Wotton Kearney for the non-parties

Reasons for Decision

Introduction

On 24 December 2021, the Queensland Human Rights Commission ('the QHRC') referred a complaint to the Queensland Industrial Relations Commission ('the Commission') filed by Ms Chandra Anne Clements ('the Complainant'), alleging discrimination under the Anti-Discrimination Act 1991 (Qld) ('the AD Act').
On 07 October 2022, the Complainant filed a Notice of Discontinuance to discontinue Fusable Pty Ltd (ACN 629 348 214) ('Fusable') as the First Respondent in the proceeding.
On 10 October 2022, an Order was issued confirming the parties to the proceeding pursuant to s 539(b)(i) of the Industrial Relations Act 2016 ('IR Act').
On 24 October 2022, the Notice of Discontinuance of Fusable was approved by the Commission.
On 02 December 2022, Mr Darren Phillips filed an application ('the Application') seeking an order to join Richard Marshall, Loulabelle Pty Ltd (ACN 168 277 209), Endellion Technology Pty Ltd (ACN 168 316 685) and Fusable Pty Ltd (ACN 629 348 214) ('non-parties') to be joined pursuant to s 41 of the Industrial Relations (Tribunals) Rules 2011 ('IR rules').
On 05 January 2023, a mention was held to discuss the Application.
On 17 April 2023, a Further Directions Order was issued to parties and non-parties to file written submissions for the Respondent's Application.
On 24 May 2023, the Application was heard in the Commission.

Statutory framework

Section 41 of the IR Rules provides the following:
41 Directions orders
(1)The court, commission or registrar may make an order (a directions order) about the conduct of a proceeding on the application of a party or on the initiative of the court, commission or registrar.
(2)A directions order may,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clements v Phillips (No. 3)

Details

AGLC: Clements v Phillips (No. 3) [2023] QIRC 228
Case: [2023] QIRC 228
Decision Date: 04 August 2023

CaseChat Overview and Summary

In Clements v Phillips (No. 3), the applicant sought to join additional parties in an ongoing discrimination case. The respondent, Mr Phillips, had already been named as the primary respondent. However, the applicant wished to add two non-parties to the case, who were not initially involved in the proceedings. The application was resisted by both Mr Phillips and the non-parties. The central issue before the court was whether the non-parties should be permitted to join the proceedings, particularly considering the stage of the case and the absence of any allegations against them.

The court weighed various factors in its decision, including the potential impact of joinder on the proceedings, the procedural fairness of allowing new parties to enter at such a late stage, and the lack of any real utility in joining the non-parties. The court referenced previous cases such as Parker v Two Champions Pty Ltd and Sailor v Hubbucks & Black & White (Quick Service) Taxis Ltd to guide its discretion in joining parties. It concluded that joining the non-parties would not assist in determining the matters in dispute and could lead to further delays and procedural complications. The court also noted jurisdictional concerns regarding the addition of parties against whom no original complaint was made.

Ultimately, the court dismissed the application to join the non-parties, finding that it would not facilitate an effective and complete adjudication of the matters in dispute. The court issued an order dismissing the application to join the additional parties.

Orders

Orders of the court

The application to join the non-parties is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am not persuaded that the joinder of the non-parties will assist with the determination of all matters in dispute in the proceeding. Nor am I persuaded that the non-parties will enable an effective and complete adjudication on all matters in dispute connected with the hearing. Conclusion After considering the matters outlined above and the nature of the complaint, I am of the view that the joinder application should be dismissed. Order I make the following order: The application to join the non-parties is dismissed.

Ratio Decidendi

Legal Principle Established

The Complainant made submissions about the significant disadvantage cause by the delay of the proceedings.[12] [12] T.13, L 26-28. Consideration As outlined in Parker v Two Champions Pty Ltd,[13] the Court of Appeal observed in Just GI P/L v Pig Improvement Co Aust P/L[14] that the discretion to join a party to a proceeding requires a 'balancing exercise' of the advantages and disadvantages in considering whether to grant the application to join.[13] [2018] QCAT 13.[14] [2001] QCA 48. In Sailor v Hubbucks & Black & White (Quick Service) Taxis Ltd ('Sailor')[15]the Tribunal referred to the factors outlined in H v T[16] as relevant to the exercise of discretion in matters involving an application to join a party. These factors include the following:a. the strength or weakness of the case advanced against the present respondent and against the proposed respondent;b. the fact that the proposed respondent had not been a party to the assessment and conciliation process provided by the Act;…d. the lack of any real utility in joining the proposed respondent because relief against it would have no practical effect; ande. the length of time that the complaint had been on foot, the stage of the proceedings at which the application was made, whether there was any explanation for the delay in making the application and whether joinder would delay the hearing and determination.[15] [2006] QADT 45.[16] [2006] QADT 20. I have not yet formed a view as to the strength or weakness of the case against Mr Phillips, however it is clear that there is unlikely to be any case against the non-parties given the nature of the complaint. The Complainant makes no allegations about the conduct of the non-parties and the only person who is alleged to have contravened the AD Act in the complaint is Mr Phillips. The usual process for a complaint to be made is to the QHRC before a period is allowed for conciliation of the complaint prior to referral to the Tribunal for determination. As noted in Sailor, to join someone as a party that had not been involved in the assessment and conciliation procedures under the AD Act would be to disregard the normal process. I accept the comments in H v T[17] where the Member considered that in general it is highly undesirable for the statutory process of acceptance of a complaint, conciliation of a complaint, and referral to be discarded noting that the majority of complaints are resolved without reference to the Tribunal. Joining the non-parties at this late stage in the process would deny them the opportunity to engage in the conciliation process as is the usual course of events. Alternatively, if the non-parties were to be joined, the process may have to be 're-set' to allow the non-parties to participate in conciliation causing significant time delay. [17] Ibid [31]. I also note the concerns raised in Q v X[18] that there may well be jurisdictional concerns about the ability of a Tribunal to allow a joinder of a party against whom the original complaint was not made in circumstances where the usual process of referral has not been followed. [18] [2010] QCAT 297.