Kurepa-Rofe v State of Queensland & Makinson

[2013] QCAT 530

CITATION: Kurepa-Rofe v State of Queensland & Makinson [2013] QCAT 530

PARTIES:	Mirjana (Miriam) Kurepa-Rofe (Applicant)
v
State of Queensland (First Respondent)
David Makinson (Second Respondent)

APPLICATION NUMBER: ADL056-13

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 10 October 2013

DELIVERED AT: Brisbane

ORDERS MADE: State of Queensland and David Makinson are not required to file their contentions in response until after the parties have participated in the compulsory conference.

CATCHWORDS:

PROCEDURAL DIRECTIONS – where dispute over contentions – where application to strike out contentions made – where compulsory conference will provide opportunity to resolve this preliminary dispute – where filing of contentions in response dispensed with prior to the conference

Queensland Civil and Administrative Tribunal Act 2009 ss 3, 4, 29, 69

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. Directions were made on 5 August 2013 for the parties to file contentions, to attend a compulsory conference and then to file statements of evidence for a hearing scheduled for February 2014.   A folder of documents was filed in the Tribunal by Ms Kurepa-Rofe on 2 September 2013 which purported to include her contentions filed in accordance with the directions made on 5 August 2013 together with supporting documents.

2. The legal representatives for the respondents applied to strike out the contentions.  It was alleged that Ms Kurepa-Rofe had failed to meet the requirements of what should constitute her contentions and that her conduct in filing documents that did not comply with the Tribunal’s directions has caused unnecessary disadvantage to the respondents.

3. The application to strike out the filed contentions would require a response from Ms Kurepa-Rofe and most likely an oral hearing.  A compulsory conference is scheduled to take place on 25 October 2013. 

4. I was satisfied that there was insufficient time under the directions made on 5 August 2013 to deal fairly with the strike out application and keep to the original timetable whereby the respondents would have to file their contentions in response by 14 October 2013 before the conference on 25 October 2013.  I was also satisfied that it was in the interests of the parties as well as in the interests of justice that the compulsory conference should remain scheduled for 25 October 2013.

5. The purposes of a compulsory conference are set out in section 69 of the QCAT Act. Importantly for this matter, the conference can be used to identify and clarify the issues in dispute and to identify the questions of fact and law to be decided by the tribunal. The conference would in my view be the ideal opportunity for the parties to discuss the disputed contentions and to endeavour to identify jointly the issues that are in dispute. Such a discussion will take place in a confidential environment and will not prejudice any later arguments or submissions that will be made by the parties if the strike out application is not withdrawn by the conclusion of the conference.

6. It has been the attitude adopted by QCAT since its commencement in December 2009 that a compulsory conference can provide an ideal opportunity for the Tribunal to discharge its obligations under section 29 of the QCAT Act. The member conducting the conference can actively assist one or more of the parties to understand the nature of the assertions made in the proceedings and the legal implications of those assertions in a manner that is not open to a member deciding the proceeding or deciding some disputed aspect of a proceeding.

7. I was satisfied that the member conducting the conference would be able to explain how the contentions should assist in expounding the complaint and could actively assist the parties to come to some resolution of the dispute over the current filed contentions. Resolution of that initial procedural issue by means of the scheduled conference should be fairly attempted before any hearing of the strike out application. That is frankly the QCAT way enshrined in sections 3 and 4 of the QCAT Act.

8. Until the dispute over the current filed contentions is resolved, it is unnecessary to require the respondents to file their contentions in response.  Any such document filed before the dispute over the current contentions is resolved would in my expectation be regarded by the respondents as only an interim document and is likely in those circumstances to be of little practical use to the Tribunal.  Contentions in response delivered while a dispute exists over the contentions filed by Ms Kurepa-Rofe is unlikely to provide a helpful response to the issues later identified at the conference as being in dispute.  I formed what I considered to be a reasonable inference that, if forced to file a response prior to the conference, the likely response by the respondents would be a formal denial that the matters contended by Ms Kurepa-Rofe could establish actionable and unlawful discriminatory conduct by them. 

9. With a view to avoiding the filing of what I anticipated would be an interim document by way of contentions in response prior to the conference, I directed on 10 October 2013 that the respondents were not required to file their contentions in response until after the compulsory conference. The member conducting the conference has full powers to attempt to resolve the dispute over the contentions.  If a resolution cannot be reached on that issue, directions can be made at the end of the conference for an oral hearing before another member to decide that issue.