Lemeki v State of Queensland

[2013] QCAT 262

CITATION: Lemeki v State of Queensland [2013] QCAT 262

PARTIES:	Rebecca Lemeki (Applicant)
v
State of Queensland (First Respondent)
David Hall (Second Respondent)

APPLICATION NUMBER: ADL017-13

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Clare Endicott, Senior Member

DELIVERED ON: 11 June 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application by Rebecca Lemeki for a direction requiring the respondents to produce certain specified documents is dismissed.

CATCHWORDS: ANTI-DISCRIMINATION – where complaint made that employee had been discriminated against in employment based on pregnancy – where order sought for respondents to produce documents – where application was premature – where issues in dispute not yet defined

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. Rebecca Lemeki has complained that she was unlawfully discriminated against by her employer on the basis of her pregnancy.  She contends that after informing her employer of her pregnancy in April 2012, she was directed to hand over several of her duties to another employee, she was not offered formal training for her role and she was excluded from general meetings in the workplace.  Ms Lemeki contends that in May 2012 she was informed that her contract would not be renewed due to performance issues.  She was directed to conduct a hand-over of her role to another employee and to train that person in the role. 

2. Ms Lemeki contends that she applied for another contracted position but was not successful.  She contends that she was not afforded any support by her employer in securing employment within the Department where she was employed.  Ms Lemeki contends she was extremely distraught and was required to take a period of stress leave until her contract expired on 30 June 2012.

3. An application was filed by Ms Lemeki seeking orders that the respondents produce certain specified documents to her before she filed her contentions as she submitted that she would be prejudiced in her ability to prepare, file and serve her contentions without the disclosure by the respondents of the information sought by her. She submitted that she had been deprived of the opportunity to know the reasons for the position adopted by the respondents and that no evidence in support of alleged performance issues had been adduced by the respondents to support that assertion.  

4. Ms Lemeki submitted in her application for the production of documents that production of the specified documents would ensure the speedy, efficient and fair conduct of the proceedings and would assist her to clarify and narrow down the issues in dispute prior to the hearing of the complaint which would save costs.  Ms Lemeki did not disclose whether she had requested copies of these documents from the respondents before filing her application to QCAT. 

5. The respondents opposed the application.  It was submitted by the respondents that they were not required to file contentions in response until 29 July 2013 and that until that time, the issues as between the parties would not be clearly defined.   It was submitted that the application was premature and that any documents on which the respondents intend to rely will be produced into evidence attached to the statements of one of the parties or a witness for one of the parties.  Documents will in that manner be available to QCAT and to Ms Lemeki for consideration.

6. The respondents submitted that the request amounted to a “fishing expedition” and compliance with the application would be oppressive and would be inconsistent with the statutory objects of QCAT to deal with matters in a way which is economical, informal and quick.  It was submitted that allowing the application would amount to an abuse of process and that Ms Lemeki was not prejudiced in any way in the preparation of her contentions by not having access to the information she sought.  The respondents sought a dismissal of the application.

7. Ms Lemeki subsequently filed her contentions on 31 May 2013 in accordance with the directions of QCAT and did not disclose any hardship in formulating or stating her case in that document.  

8. I was not persuaded by Ms Lemeki that an order was appropriate for the production of documents at this stage of the proceedings.  At QCAT, it is not common for directions to be given to parties in anti-discrimination complaints to produce documents to each other unless some prior efforts have been made to obtain the documents by an informal request made between the parties and that request has been refused.  There was no suggestion made in the application that a request had been made and refused. Indeed, the respondents voluntarily provided copies of documents relating to the alleged performance issues and other issues as part of their response to the application. 

9. Parties are expected to provide copies to the tribunal and to each other of documents that are directly relevant to the issues in dispute, that constitute evidence of relevant facts needed to determine the issues and that are documents in the sole possession of one party.  Such documents are most commonly provided on request or via the filed statements of evidence of the parties.

10. I accept the submissions of the respondents that this application is not consistent with the objects of QCAT to be economical and informal and was made prematurely.  The application could not be properly considered before the contentions of the respondents were filed and the issues in dispute were able to be defined.  The information sought by the application was clearly not essential for the preparation of the contentions but rather was sought to assist Ms Lemeki to prove her complaint either at a hearing or to assist her in resolving the complaint at a conference. 

11. There would be some instances where access to documents held by one party would be essential at this early stage of proceedings such as when documents could assist in the clarification of “who did what to whom” when basic relevant facts were unknown to the complainant and a request for documents could not as a result be precisely or adequately formulated before contentions were prepared. However this is not one of those instances.  Ms Lemeki has identified exactly how she alleges she was unlawfully discriminated against and she was seeking, by her application, the evidence to establish her complaint. 

12. The application is premature and unnecessary at this stage of the proceeding.  The application does not assist QCAT to meet its statutory objects and it is appropriate to refuse the application.