Gill v Roberts
[2011] QCAT 515
•1 November 2011
| CITATION: | Gill v Roberts [2011] QCAT 515 |
| PARTIES: | Rachel Gill |
| v | |
| Anthony Dale Roberts t/as Brisbane Chiropractic Centre |
| APPLICATION NUMBER: | ADL053-11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 1 November 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Complaint is dismissed. |
| CATCHWORDS: | ANTI-DISCRIMINATION – where applicant has not complied with orders of the tribunal – where applicant is acting in a way that unnecessarily disadvantages another party – early end to proceedings 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
Rachel Gill was employed by Anthony Roberts as an assistant in his chiropractic clinic. She complained that she had been subjected to discriminatory treatment and sexual harassment at work. Her complaint was denied by Mr Roberts.
At a directions hearing held on 1 August 2011 QCAT made orders that Ms Gill file contentions in the tribunal and send a copy to Mr Roberts by 5 September 2011. Ms Gill has not complied with that order.
On 20 September 2011 a letter was sent to Ms Gill from the tribunal registry asking for an explanation for her non compliance with the order to file and serve her contentions. No response was received from Ms Gill to that letter and no explanation has been given by Ms Gill for her non compliance.
On 27 September 2011 QCAT made an order directing Ms Gill to file written submissions as to why her complaint should not be dismissed under section 48 of the Queensland Civil and Administrative Tribunal Act 2009. The submissions were required to be filed in QCAT and a copy sent to Mr Roberts by 14 October 2011. The orders made on 27 September 2011 included an order that a member of QCAT would make a decision whether to dismiss the complaint not before 26 October 2011.
No submissions were received from Ms Gill by 14 October 2011 or by 26 October 2011. None of the letters sent by QCAT to Ms Gill have been returned as unclaimed. Registry officers in the tribunal registry have made unsuccessful attempts to contact Ms Gill by telephone. The landline telephone number given to QCAT in the referral documents did not answer and there was no facility for messages. The mobile telephone number for Ms Gill in the referral documents is not a valid number as it has 12 digits instead of 10. There is no record of Ms Gill in the White Pages Directory.
QCAT expects parties to take active steps to engage in a proceeding. 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 controls the hearing process, not the parties. It is essential that when a complaint of contravention of the Anti-Discrimination Act 1991 is referred to QCAT, the applicant sets out details of the complaint at the very outset of the tribunal process. Those details should identify what facts are relied on by an applicant, what that applicant is alleging is the legal basis for the complaint, what impact the alleged contravention has had on the applicant and what outcomes the applicant is seeking from QCAT.
It is not acceptable that QCAT is left to guess these particulars of a complaint from the referral documents. It is not uncommon for the complaint and the remedies sought by an applicant to change between the time when the initial complaint was lodged with the Anti-Discrimination Commission and the time of the referral of the complaint to QCAT. Contentions filed at the start of the QCAT process enables the respondent to be informed of the particulars of the complaint and to consider whether any early challenge should be made to the content of the complaint as expressed in the contentions.
No party should be taken by surprise or rendered at a disadvantage by a complaint that is not properly described from the outset in the tribunal process. Ms Gill has not complied with the order of QCAT to file and serve her contentions. She was present at the directions hearing on 1 August 2011 and she was made familiar with what QCAT required her to do.
[10] While the factual basis of her complaint may be able to be discerned from the complaint she lodged with the Commission, Ms Gill has not expressed the legal basis on which she alleges that Mr Roberts has discriminated against her at work. She has not expressed in sufficient detail the impact that the alleged contraventions by Mr Roberts have had on her and she had not expressed at all what outcomes she is seeking for QCAT.
[11] Both QCAT and Mr Roberts are left to guess about these matters. That position is not satisfactory. I am satisfied that Ms Gill has not complied with the orders made by QCAT to file and serve her contentions. I am satisfied that her non compliance has unnecessarily disadvantaged Mr Roberts as he cannot respond to the complaint until Ms Gill’s contentions as to her complaint are disclosed.
[12] Without having the benefit of any explanation for her non compliance, I am left to draw a reasonable inference that Ms Gill has deliberately failed to file and serve her contentions and that she is not willing to take the required steps to prove her complaint at QCAT. She has failed in her duty to act quickly in any dealing relevant to the proceeding.
[13] Section 48 of the Queensland Civil and Administrative Tribunal Act 2009 permits QCAT to dismiss a proceeding if it considers a party is acting in a way that unnecessarily disadvantages another party to the proceeding. It is a very serious matter for QCAT 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 deprives an applicant of the opportunity to have a just determination of a complaint that a person’s human rights have been contravened.
[14] However, Ms Gill has not displayed a willingness to co-operate with the process by which QCAT seeks to determine her complaint. Her lack of compliance with the orders of QCAT and the resultant disadvantage to Mr Roberts must be weighed in the balance with the effects that the prospect of terminating her opportunity to have a just determination of her human rights would result in.
[15] I am satisfied that in this case I should exercise discretion to bring an early end to the complaint. Ms Gill is non compliant with the orders made by QCAT, she has not provided any explanation for her non compliance and she has not put forward any submissions to oppose the complaint being dismissed. Her lack of compliance prevents 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.
[16] The tribunal is satisfied that Ms Gill’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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