de Bhal v Tangalooma Transport Pty Ltd
[2011] QCAT 592
•21 November 2011
| CITATION: | de Bhal v Tangalooma Transport Pty Ltd and Anor [2011] QCAT 592 |
| PARTIES: | Sean David de Bhal |
| v | |
| Tangalooma Transport Pty Ltd Tangalooma Pty Ltd |
| APPLICATION NUMBER: | ADL062-11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 21 November 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Complaint is dismissed. |
| CATCHWORDS: | ANTI-DISCRIMINATION – complaint based on an impairment – where applicant did not attend compulsory conference – where applicant did not comply with directions to file statements – where applicant has not provided a satisfactory explanation for his non compliance Queensland Civil and Administrative Tribunal Act 2009, s 48 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties under section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Dr de Bhal lived as a tenant in a villa at a resort on Tangalooma Island operated by either one or both of the respondent companies. Dr de Bhal contends that as a result of a back injury, he is unable to stand and sit for lengthy periods of time and he is unable to walk any reasonable distance. He had used a motorised device, called a Segway, to assist him with mobility at the Tangalooma resort and in particular to travel from the villa to amenity facilities and to and from the car park areas.
On 15 March 2010 he was verbally told that he could no longer use the Segway on the concreted pathways at the resort. Later that day he was handed a letter from the resort manager prohibiting him from using the Segway within the resort grounds until he submitted to the directors of the resort a safety plan for the operation of the Segway and until he listed his insurance cover for third party injury and property damage.
Dr de Bhal seeks an order from QCAT that he has been subject to unlawful discrimination and he seeks an outcome whereby he can again use the Segway at the Tangalooma resort.
Dr de Bhal was directed to attend a conference at QCAT under section 67 of the Queensland Civil and Administrative Tribunal Act 2009. He did not attend the conference held on 13 September 2011 although his legal representative did attend. The complaint was not resolved at the conference.
Directions were made at the end of the conference requiring Dr de Bhal to file and serve the statements of evidence and all other documents on which he intended to rely at the hearing of his complaint by 4 October 2011. One of the directions made on 13 September 2011 was in the following terms: No party will be allowed to present any evidence at the hearing that is not contained in the statements without justifying the need for such additional evidence to the Tribunal.
Dr de Bhal did not comply with the directions made on 13 September 2011. On 6 October 2011 a letter was sent to Dr de Bhal by the tribunal registry pointing out that his statements had not been filed and informing him that he was required to lodge his material immediately.
By letter dated 10 October 2011 the legal representative for Dr de Bhal requested an extension of time to 15 October 2011 to file the applicant’s statement. In a telephone conversation on 11 October 2011 with the legal representative for Dr de Bhal, a case officer from the tribunal registry requested the filing of an application for an extension of time to cover this request.
No application for an extension of time was filed by Dr de Bhal. The tribunal case officer telephoned his legal representative’s firm on 18 October 2011 and 26 October 2011 but on both occasions the legal representative was not available to speak to the case officer.
On 25 October 2011 an application was filed by the respondents seeking various orders including dismissal of the complaint under section 48 of the Queensland Civil and Administrative Tribunal Act 2009 relying on the non compliance by Dr de Bhal with the directions of QCAT. A copy of the application was sent by email to the legal representative of Dr de Bhal on 26 October 2011.
[10] The tribunal made directions on 1 November 2011 requiring Dr de Bhal to file submissions by 18 November 2011 as to why his complaint should not be dismissed under section 48. The directions also indicated that a member of the tribunal would determine on the basis of the written submissions without an oral hearing whether the complaint should be dismissed.
[11] No submissions were received from Dr de Bhal in response to the dismissal application.
[12] Parties have a specific duty in section 45 of the Queensland Civil and Administrative Tribunal Act 2009 to act quickly in any dealing relevant to the proceeding. QCAT expects parties to take active steps to engage in a proceeding.
[13] QCAT controls the progress of a proceeding. The tribunal makes directions setting out a timetable for the parties to complete various stages of a proceeding. If a party does not comply with QCAT’s directions, consequences usually follow. However, QCAT readily considers extensions of time or changes to the timetable if a reasonable basis is put forward for such changes to a timetable.
[14] QCAT considers that it is essential that an applicant sets out details of the complaint in written contentions at the very outset of the tribunal process. At a later stage of the proceeding QCAT considers it essential that the applicant sets out the evidence and provides to QCAT copies of the documents on which that party will rely on well before the date of hearing of the complaint. In that way, the facts to be relied on and sought to be proved, together with the legal basis for the complaint, are known to the respondents and they can prepare their evidence in response in a timely manner before the hearing and can re-assess the merits of their response.
[15] No party should be taken by surprise or rendered at a disadvantage by a complaint that is not properly prepared in accordance with the directions of the tribunal. Dr de Bhal has not complied with QCAT’s directions to file the evidence on which he intends to rely at the hearing. His complaint is based on impairment but he has not provided evidence of that impairment. He has not provided evidence as to the factual basis of his complaint. The referral documents from the Anti-Discrimination Commission do not constitute his evidence.
[16] Without his filed evidence, QCAT and the respondents are left to surmise how Dr de Bhal intends to prove the elements of his complaint of direct discrimination. QCAT has been given no indication of what witnesses he intends to call, whether lay or medical. That position is totally unsatisfactory.
[17] I am satisfied that Dr de Bhal has not complied with the orders made by QCAT to file and serve his statements of evidence and copies of documents on which he intends to rely. I am satisfied that his non compliance with the orders made by QCAT has unnecessarily disadvantaged the respondents. They cannot respond to Dr de Bhal’s evidence as that evidence has not been disclosed.
[18] Dr de Bhal has not made any response to the application to dismiss his complaint. His legal representative in a letter dated 10 October 2011 stated that the failure by Dr de Bhal to that date to file his statements of evidence arose because Dr de Bhal had been busy with another legal matter. No further explanation has been given about his continuing failure to comply with QCAT’s directions after 10 October 2011.
[19] Without having the benefit of any explanation for his non compliance, I can reasonably infer that Dr de Bhal has deliberately failed to file his statements of evidence and that he is not willing to take the steps required by QCAT to prove his complaint. Dr de Bhal has not acted quickly in his dealings in this proceeding.
[20] Section 48 provides QCAT with the power to dismiss a proceeding if it considers a party is acting in a way that unnecessarily disadvantages another party to the proceeding. I am aware that it is a very serious step to dismiss a complaint of a contravention of the Anti-Discrimination Act 1991 without allowing a hearing of that complaint to take place. An early dismissal of a proceeding under section 48 will deprive Dr de Bhal of the opportunity to have QCAT make a just determination on his complaint that his human rights have been contravened by the respondents.
[21] Dr de Bhal’s non compliance with the orders of QCAT and the resultant disadvantage to the respondents who do not know the case to which they must respond in their evidence must be weighed against the prospect that Dr de Bhal’s rights to have a determination of his complaint will be brought to a summary end.
[22] I am satisfied that in this case the weighing of the balance must result in an early end to the complaint. Dr de Bhal has not been compliant with the orders made by QCAT. He has not provided a satisfactory explanation for his non compliance up to 10 October 2011. He has not provided any explanation for his non compliance after that date. He has not responded to the application for the dismissal of his complaint. His lack of compliance has prevented QCAT from dealing with this matter in accordance with its statutory objects i.e. to deal with matters in a way that is fair, just, economical and quick.
[23] The tribunal is satisfied that Dr de Bhal’s complaint should no longer proceed and is dismissed under section 48 of the Queensland Civil and Administrative Tribunal Act 2009.
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