Irvine and Porter v Mermaids Cafe and Bar Pty Ltd and Ingall
[2010] QCAT 393
•9 August 2010
| CITATION: | Irvine and Porter v Mermaids Cafe and Bar Pty Ltd and Ingall [2010] QCAT 393 |
| PARTIES: | Cheryth IRVINE and David PORTER |
| v | |
| Mermaids Cafe and Bar Pty Ltd and Jon INGALL |
| APPLICATION NUMBER: | ADC040-09 & ADC041-09 |
| MATTER TYPE: | Anti-Discrimination Matters |
| HEARING DATE: | 9 August 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 9 August 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Application to vacate hearing dates or to dismiss complaint is refused. |
| CATCHWORDS : | Pre-hearing dismissal sought – section 48 of the Queensland Civil and Administrative Tribunal Act 2009 – whether hearing dates should be delayed |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mermaids Cafe and Bar Pty Ltd and Jon INGALL represented by Fitz-Walter Lawyers – applicants in the application to vacate hearing dates or to dismiss complaints |
| RESPONDENT: | Cheryth IRVINE and David PORTER represented by Stephens & Tozer Solicitors – respondents in the application to vacate hearing dates or to dismiss complaints |
REASONS FOR DECISION
On 5 August 2010 an application was lodged with the Tribunal on behalf of the respondents in the proceedings seeking orders to vacate hearing dates scheduled for 23, 24 and 25 August 2010 or alternatively to dismiss the proceedings.
The Tribunal asked the applicants in the proceedings to provide submissions in response and indicated that a decision would be made on the papers on 9 August 2010.
The proceedings had been referred to the Anti-Discrimination Tribunal on 2 October 2009 and directions had been subsequently made for the parties to file and serve their contentions and copies of documents relevant to the allegations in issue in the proceedings.
On 6 May 2010 a compulsory conference was held, following which the conference member made orders to schedule the hearing for 3 days commencing 23 August 2010 noting that he had rejected the objection of the respondents in the proceedings to defer a hearing until after the determination of Ms Irvine’s workers compensation appeal in November 2010.
Directions were made on 6 May 2010 requiring Ms Irvine to disclose certain specified categories of documents relating to her workers compensation appeal or any claim for damages arising out of her employment and relating to her communications with the Department of Immigration in respect of any visa.
Directions were also made on 6 May 2010 requiring Mr Porter to provide consent to release of information from Centrelink and the Ivory Hotel and requiring Ms Irvine and Mr Porter to disclose all documents that relate to any employment since the termination of their employment by the first respondent.
A dispute about the scope of disclosure of documents was referred to a directions hearing held on 22 June 2010 and directions were made for disclosure of certain specified documents by the respondents and an extension of time was granted for Mr Porter to comply with one of the directions made on 6 May 2010.
As a result of the respondents raising objections that the applicants had not complied with their disclosure obligations, a further directions hearing was held and on 20 July 2010 further directions were made requiring the applicants to file and serve a list of all documents in their possession or under their control that come within the category of the documents ordered to be disclosed by the respondents on 6 May 2010.
A list of documents and copies of those documents were filed by the solicitors for Ms Irvine and Mr Porter with the Tribunal on 30 July 2010.
10. The solicitors for the respondents submit that Ms Irvine and Mr Porter have not complied with the directions of the Tribunal, in particular that Mr Porter has not disclosed original documents relating to his subsequent employment and that Ms Irvine has not disclosed all documents relating to her workers compensation appeal and immigration applications.
11. The respondents submit that they are prejudiced in the preparation of their case because of the failure by Ms Irvine and Mr Porter to comply with the Tribunal’s directions about disclosure of documents.
12. The solicitors for Ms Irvine and Mr Porter submit that the respondents have not been prejudiced by receiving the last segment of the disclosed documents on 2 August 2010, that Mr Porter has disclosed all the documents related to his employment and that Ms Irvine has disclosed all migration documents in her possession.
13. This proceeding has been set down for hearing since 6 May 2010. The subsequent disputes over disclosure of documents have mostly related to documents relevant to the quantification of the compensation claimed by Ms Irvine and Mr Porter and not to the issues central to either proving the complaint or defending against the complaint of discrimination and sexual harassment. Statements of evidence have been filed and steps have been taken by the parties to prepare for hearing.
14. It is one of the stated objects of the legislation that established the Tribunal that the Tribunal must deal with matters in a way that is accessible, fair, just, economical, informal and quick. This object is achieved in part by the requirements in section 28(3) of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) that the Tribunal is not bound by any practices or procedures applying to courts of record and that the Tribunal must act with as little formality and technicality and with as much speed as the proper consideration of the matters permit.
15. Consistent with that object, the Tribunal rules do not contain specific rules for the disclosure of documents by parties in a proceeding. It is an expectation of the Tribunal that parties will produce to the Tribunal and exchange copies of documents on which they will rely in the proceedings in which they are making a claim or in which they are defending a claim made against them.
16. To that end, section 28(3)(e) requires the Tribunal to ensure so far as is practicable that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts. It is the role of the Tribunal, not the role of the parties, to determine what material is necessary to be disclosed in order for all relevant facts to come under scrutiny at a hearing of the proceeding.
17. The Tribunal does not consider that subsection 28(3)(e) of the Act requires an opportunity for resolution of a claim in this case to be delayed while the parties parry arguments back and forth about the relevancy of documents. The ultimate sanction for failure by the applicants to disclose relevant material in this case about their loss of earnings will be a finding that their claim for compensation on that issue is not proved.
18. The Tribunal was not satisfied that the respondents have been prejudiced in the preparation for hearing by the failure of the applicants to disclose documents that may or may not be found to be relevant for the determination of the facts in these proceedings. To the contrary, the Tribunal considers that Ms Irvine’s and Mr Porter’s claims are more likely to be placed at risk than the defence of those claims if there has been a failure on their part to disclose relevant material to the Tribunal. Accordingly, no unfairness to the respondents has been established in permitting the hearing to proceed on the days scheduled. The hearing dates should not be vacated.
19. Non compliance with the directions of the Tribunal is not in itself sufficient to warrant a dismissal of proceedings. Under section 48 of the Act, it must be established that non compliance has resulted in unnecessary disadvantage to another party in the proceedings. The Tribunal is not satisfied that the respondents have been unnecessarily disadvantaged by the non compliance alleged to have been committed by Ms Irvine and Mr Porter with the directions of the Tribunal in terms of section 48 of the Act.
20. The Tribunal has informed the parties on three occasions (at the compulsory conference on 6 May 2010 and at the directions hearings on 22 June 2010 and 20 July 2010) of what material it requires from them in order for the Tribunal to be in a position to determine the issues in contention at the hearing. The Tribunal considers that if the applicants fail to produce that material for the hearing, the disadvantage will accrue to them and is not persuaded that disadvantage has already accrued to the respondents to such an extent that the claims of the applicants should be dismissed prior to hearing.
21. It is a very serious matter for a Tribunal to dismiss a claim without allowing a hearing of that claim to take place. Dismissal in this case would deprive the applicants of the opportunity to have a just determination of their claims which are based on allegations of the contravention of their human rights. Other remedies such as awarding of costs may be more just than dismissal of the proceedings under section 48 if the Tribunal decides after the commencement of the hearing that all relevant material has not been made available for the proper determination of the facts in the proceedings and decides to adjourn or extend the hearing to enable further evidence to be obtained.
22. 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.
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