Keeley v Gympie Road Medical Centre

[2019] QCAT 415

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Keeley v Gympie Road Medical Centre & Ors [2019] QCAT 415

PARTIES:

SHANE KEELEY
(applicant)

v

GYMPIE ROAD MEDICAL CENTRE
(first respondent)

JANIS BLACKWELL
(second respondent)

BAHRAM ADELE

(third respondent)

APPLICATION NO/S:

ADL007-18

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

19 March 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

1.   The application to strike out the complaint filed on 16 November 2018 is dismissed.

2.   The matter is listed for a directions hearing in Brisbane on a time and date to be advised by the Tribunal.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – brief period of non-compliance with directions

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48

REPRESENTATION:

Applicant:

Self-represented

First and Second Respondent:

Third Respondent:

Avant Law

Meridian Lawyers

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. On 21 November 2017, Mr Keeley made a complaint to the Anti-Discrimination Commission Queensland in the following terms:

   I visited this doctor for the first time at c. 8:30am on Friday 17/11/17 for minor skin burns consultation.  During this consultation I was also asked what medication, if any, that I am currently taking, and I replied “Truvada”, the antiviral HIV regime.  At this point he also made reference to my sexuality.  Adeli then proceeded to book me in for a follow-up on Monday 20/11/17 at 1 pm, which I attended.  Upon checking in for the appointment I was then led to a side room by the Practice Manager, Janis [surname unknown] and was told that Adeli will not be treating my ailments, and I asked why.  She wouldn’t disclose, except to say that a doctor has a right to see whomever they wish; that it is their own choice.  Both Janis and Adeli had also convened briefly prior to this even, but after my arrival at the clinic, at 1 pm, to discuss me – as Janis advised – and they had taken notice of my same-sex partner, who was seated in the waiting area.  After Janis’ talking-to, I was abruptly instructed to leave the premises without delay.  The following day, Tuesday 21/11/17, I gave Adeli an opportunity to explain himself over the telephone, before make a decision on submitting this report.  He consistently attempted to cover up my discrimination by repeating his claim that it was his choice to refuse to see patients or terminate patients, and that he didn’t have to disclose a legitimate reason.  Janis also lied about attempting to contact me by phone/text prior to the Monday visit, and I can prove this from my electronic phone records.  Adeli lied and was inconsistent to me when he realised that he had committed the act.

2. A referral of the complaint was received by the Tribunal on 7 February 2018.

3. The part of the proceedings currently before me is an application for miscellaneous matters filed by the Gympie Road Medical Centre and Ms Blackwell on 16 November 2018, seeking that the referral be struck out.

4. The substantive ground for seeking that the application be struck out is that Mr Keeley had not complied with direction 2 made by Member Browne on 12 October 2018.  That direction stated:

   Shane Keeley must file two (2) copies in the Tribunal and give one (1) copy to Gympie Road Medical Centre, Janis Backwell and Bahram Adeli:

   a.Shane Keeley’s Statement of evidence, which must be page numbered:

   b.The statement from each witness to give evidence for Shane Keeley at the hearing including any experts and:

   c.Any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement by;

   4:00pm on 9 November 2018

5. Section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) relevantly provides:

   48 Dismissing, striking out or deciding if party causing disadvantage

   (1) This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by—

   (a) not complying with a tribunal order or direction without reasonable excuse; or

   (b) not complying with this Act, an enabling Act or the rules; or

   (c) asking for an adjournment as a result of conduct mentioned in paragraph (a) or (b); or

   (d) causing an adjournment; or

   (e) attempting to deceive another party or the tribunal; or

   (f) vexatiously conducting the proceeding; or

   (g) failing to attend mediation or the hearing of the proceeding without reasonable excuse.

6. At the time the strike out application was filed, Mr Keeley was 7 days overdue in the filing of his evidence.  No hearing date had been set.  The filing of strike out applications in these circumstances is to be strongly discouraged.  Striking out a proceeding is a step not lightly taken by the Tribunal.  The Tribunal expects compliance with its directions, but a failure to comply with a direction by a matter of days without the opportunity to remedy the non-compliance is not a proper basis for the striking out of proceedings.

7. I note that the Gympie Road Medical Centre filed a strike out application on 16 April 2018, which was dismissed by Member Fitzpatrick on 22 June 2018.  The complaint in that strike out application was that Mr Keeley had failed to file his statement of contentions by 4 April 2018, some 12 days earlier. 

8. The repeated filing of strike out applications by the Gympie Road Medical Centre and Ms Janis in respect of relatively brief periods of non-compliance by Mr Keeley with directions might itself be described as verging on the conduct described in s 48(1)(f). Where a party has not complied with a direction, there are other avenues which might properly be explored before a strike out application is lodged, such as requesting that the matter be set down for a directions hearing.

9. For completeness, in submissions dated 18 December 2018, the Gympie Road Medical Centre and Ms Blackwell raised the issue that Mr Keeley had also not complied with direction 1 made by Member Traves on 21 November 2018, which stated:

   Shane Keeley must file in the Tribunal two (2) copies and give to Gympie Road Medical Centre, Janis Backwell and Bahram Adeli one (1) copy of any submissions in response to the application for miscellaneous matters (application to strike out the proceedings), by:

   4pm on 12 December 2018.

   [underlining added]

10. This complaint misconceives the nature of the Tribunal’s direction, which only required “any” submissions in response to be filed.  There was no obligation on Mr Keeley to lodge submissions.

11. In submissions dated 18 December 2018, Dr Adeli raised issues relating to delays by Mr Keeley in providing a statement of contentions in April 2018.  As noted above, this was where the subject of an earlier strike out application filed which was dismissed.  I do not propose to revisit those issues in the present strike out application.

12. For the reasons set out above, the strike out application is dismissed.  It cannot be said that Mr Keeley’s case is so obviously lacking in merit that it should otherwise be struck out.

13. On 21 November 2018, Member Traves directed that if the strike out application is refused, the matter is to be listed for a directions hearing.  That is the appropriate course of action to now take.