LLM Holdings Pty Ltd v Michalakellis - [2019] QIRC 75

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	LLM Holdings Pty Ltd & Ors v Michalakellis [2019] QIRC 075
PARTIES:	LLM Holdings Pty Ltd (First Applicant) & Grant Reesby (Second Applicant) & Sam Gibson (Third Applicant) v Dimitri Michalakellis (Respondent)
CASE NO:	AD/2018/83
PROCEEDING:	Application to set aside attendance notices
DELIVERED ON:	2 July 2019
HEARING DATE:	On the papers
HEARD AT:	Brisbane
MEMBER:	Knight IC
ORDERS:	1. The Attendance Notice to Produce dated 29 March 2019 set aside in part. 2. The Attendance Notice to Produce dated 1 April 2019 is to be complied with.
CATCHWORDS:	ANTI-DISCRIMINATION – DISCRIMINATION AND VICTIMISATION IN THE WORKPLACE – application in existing proceedings – where respondent served attendance notices to produce on applicants – where applicants object to production on grounds of relevance, oppressiveness and non-compliance with Industrial Relations (Tribunal) Rules 2011 (Qld) – whether Commission should set aside part or all of attendance notices.
LEGISLATION: CASES:	Anti-Discrimination Act 1991 (Qld) Industrial Relations (Tribunal) Rules 2011 (Qld) Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 DP World Brisbane Pty Ltd v Rogers & Anor [2014] ICQ 010 R v Marks; ex parte Australian Building Construction Employees and Builders Labourers Federation (1981) 147 CLR 471 Re Clerks (Alcoa of Australia – Mining and Refining) Consolidated Award 1985 (Print H2892) The Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604

Reasons for Decision

Mr Dimitri Michalakellis ("the respondent"), who is the complainant in the substantive proceedings, filed attendance notices to produce on 29 March 2019 ("the first notice") and 1 April 2019 ("the second notice"), which sought a range of material from LLM Holdings Pty Limited, Mr Grant Reesby and Mr Sam Gibson ("the applicants"). They are the respondents in the substantive proceedings.
On 3 April 2019, the applicants filed an application in existing proceedings seeking that the notices be set aside in their entirety pursuant to the Industrial Relations (Tribunals) Rules 2011 (Qld) ("the Rules").
On 8 April 2019, the respondent filed written submissions in opposition to the setting aside of the notices.
By correspondence, the parties enjoined the Commission to decide the objection on the papers based on the material filed heretofore without the need for a hearing.
For the reasons which follow, I have determined that the first notice is to be set aside in part, whereas the second notice is to be complied with.
Background
The substantive proceedings comprise two alleged contraventions of the Anti-Discrimination Act 2001 (Qld). The first is that, in suffering bullying at the hands of Mr Reesby, the respondent was unlawfully discriminated against on the basis of race and imputed sexuality. The second is that he was unlawfully victimised consequent upon alleging that a person committed an act that would amount to a contravention.
Through his company, Mic Industries Pty Ltd, the respondent provided motor vehicle refinishing services to LMM Holdings Pty Ltd ("Brisbane BMW") from on or around October 2015.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QIRC 75
Decision Date: 2 July 2019

CaseChat Overview and Summary

The case of LLM Holdings Pty Ltd v Michalakellis involved a dispute concerning alleged discrimination and victimisation in the workplace, which was brought before the Queensland Industrial Relations Commission. The respondent, Dimitri Michalakellis, alleged that he was subjected to bullying by an employee of LLM Holdings Pty Ltd (Brisbane BMW), Grant Reesby, based on his race and imputed sexuality. Michalakellis further claimed that he was victimised for reporting Reesby's conduct. In response, LLM Holdings Pty Ltd and its employees served attendance notices to produce certain documents. Michalakellis objected to these notices, arguing that the documents were irrelevant, oppressive, and not compliant with the Industrial Relations (Tribunal) Rules 2011 (Qld). The Commission was tasked with determining whether to set aside parts or all of the notices.

The primary legal issues the Commission had to resolve were whether the notices were relevant and not oppressive, and whether they complied with the prescribed rules. Michalakellis argued that the notices were irrelevant to the substantive claims and oppressive in nature. The applicants, LLM Holdings Pty Ltd and its employees, contended that the notices were relevant and necessary for the proceedings. Additionally, the notices were non-compliant as they were not directed to the correct party, but this non-compliance did not automatically render the notices invalid under the Rules. The Commission had to weigh the relevance and potential oppressiveness of the requested documents against the procedural non-compliance.

In its decision, the Commission set aside part of the first notice and ordered compliance with the second notice. The Commission found that while the notices were non-compliant, they did not need to be entirely set aside because setting them aside would likely lead to repetitive objections and procedural delays. Instead, the Commission declared the notices effectual but resolved the objections regarding specific documents. The Commission set aside parts of the first notice that required the production of irrelevant documents, such as the outgoing call records from Grant Reesby's phone, as these were unlikely to materially assist in determining the substantive issues. However, the Commission ordered the production of specific text messages and notes that were relevant to the respondent's claims of discrimination and victimisation.

The Commission concluded that certain documents, such as text messages between Reesby and a comparator, were relevant and necessary for the proceedings. These documents were pertinent to establishing whether Michalakellis was treated less favourably due to his race and imputed sexuality. The Commission also set aside parts of the first notice that required the production of documents already accessible to Michalakellis, such as his own medical records. The Commission ordered that the relevant documents be produced within 14 days of the decision. The second notice, which was compliant and relevant, was to be complied with in full.

Orders

Orders of the court

1. The Attendance Notice to Produce dated 29 March 2019 set aside in part.

2. The Attendance Notice to Produce dated 1 April 2019 is to be complied with.

Background

Background to the litigation

For the reasons which follow, I have determined that the first notice is to be set aside in part, whereas the second notice is to be complied with. Background The substantive proceedings comprise two alleged contraventions of the Anti-Discrimination Act 2001 (Qld). The first is that, in suffering bullying at the hands of Mr Reesby, the respondent was unlawfully discriminated against on the basis of race and imputed sexuality. The second is that he was unlawfully victimised consequent upon alleging that a person committed an act that would amount to a contravention. Through his company, Mic Industries Pty Ltd, the respondent provided motor vehicle refinishing services to LMM Holdings Pty Ltd ("Brisbane BMW") from on or around October 2015. The respondent maintains that during the period January 2016 until April 2018, an employee of Brisbane BMW by the name of Mr Reesby repeatedly called him 'gay' in response to his taste in music and the clothing he chose to wear. He also alleges Mr Reesby referred to him, using a variety of names, as a homosexual and repeatedly made derogatory remarks about him to other staff and contractors working on the lot, which related to his race, such as 'wog' and 'lazy greek'. The respondent contends he was also victimised after making a complaint in relation to Mr Reesby's conduct. In support and as part of his claim, the respondent proposes to rely on an actual person, Mr Byron Wyatt, as a comparator to demonstrate less favourable treatment. He maintains Mr Wyatt is a suitable comparator as he provided similar services and had the same need for interaction with Brisbane BMW, Mr Reesby and Mr Gibson. Both parties have thus far complied with attendance notices to produce that they have served on each other. For instance, as best I understand, the respondent has already sought, and received, log entries and security camera footage. For their part, the applicants have sought, and received, medical records from a number of medical practitioners upon whom the respondent attended. The applicants seek that the notices be set aside in their entirety as they fail to comply with the Rules, specifically: The respondent directed the notices to "LLM Holdings Pty Ltd, Grant Reesby and Sam Gibson". I accept that the notices are non-compliant, however the Rules also provide:226 Effect of failure to comply with rules(1) A failure to comply with these rules is an irregularity and does not of itself render a proceeding, document, step taken or order made in a proceeding, a nullity. (2) If there has been a failure to comply with these rules, the court, the commission, a magistrate or the registrar may—...(c) declare a document or step taken to be effectual.... The respondent is an unrepresented litigant with little to no prior experience in litigation or civil procedure. In addition, setting the notices aside would simply result in his filing the notices again, to which the respondent would doubtless object once more for the other reasons contained in its submissions. It is therefore convenient and expeditious that the notices be declared effectual, and the objections levelled by the applicants be resolved presently, notwithstanding the non-compliance of the notices.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On that basis, the applicants are to produce the purchase orders and subsequent invoices. This material was sufficiently particularised, relevant in that (as best I understand) it may or may not prove in a comparative sense that the respondent was deprived of work and does not appear to be an exercise in 'fishing'. Further, the applicants have not made specific objections to producing this material on, say, the grounds of relevance or oppressiveness. Conclusion The second notice is to be complied with within 14 days of the release of this decision. The first notice is set aside in part. The following material is to be provided by the applicants to the respondent within 14 days of the release of this decision:(a) copies of text messages sent from and received on Mr Reesby's mobile phone between 9 March 2018 and 13 April 2018 to and from Dimitri Michalakellis; (b) copies of text messages sent from and received on Mr Reesby's mobile phone between 30 December 2015 and 13 April 2018 to and from Byron Wyatt; and(c) copies of any notes taken by Mr McGee during, and regarding, his meeting with the respondent on 3 April 2018 and subsequent phone call on 4 April 2018. I order accordingly.

Ratio Decidendi

Legal Principle Established

No submissions were made as to why, besides non-compliance with r 58 of the Rules, the second notice should be set aside. Consideration The applicant has sought various medical records provided to the respondent from Baypsych consultants and Dianne Green in response to a notice of non-party disclosure issued in the substantive matter at the request of Brisbane BMW. In circumstances where the respondent is readily able to access his own medical records from Baypsych consultants and Dianne Green, I am minded to set aside this component of the first notice. The notes taken by McGee should be provided to the respondent. They relevantly bear upon the applicants' handling of the bullying complaint against Mr Reesby and, in particular, whether a comment may have been made by Mr Gibson to the respondent that "you're Greek, you should be tougher". Unlawful discrimination based on race is a component of the respondent's complaint. It is incumbent upon the first applicant to produce the documentation held by Mr McGee, the HR Manager for Brisbane BMW. In fact, it has done so in past. Handwritten notes authored by Mr McGee concerning his telephone conversation with the respondent on 9 March 2018 were included as part of the applicants' response to the earlier general protections claim filed in the Fair Work Commission by the respondent. While I accept that the text messages between Mr Reesby and Messrs Stejskal and Helbig are irrelevant in that they are not nominated as comparators by the respondent, the same cannot be said of Mr Reesby's text messages to and from Mr Wyatt. They are relevant to the proceedings because the respondent's argument relies on his establishing less favourable treatment on account of his race and imputed sexuality as opposed to his comparator, Mr Wyatt. To the extent that it was possible and as best I understand it, text messages have already been produced which were sent to and from Mr Reesby and the respondent during the period 27 January 2016 until 30 October 2017. The respondent now seeks additional text messages from Mr Reesby. I am prepared to order their production, but only insofar as they pertain to the period between the internal complaint against Mr Reesby on 9 March 2018 and the cessation of the respondent's employment. The internal complaint was said to be the event which precipitated the breakdown in the working relationship between the respondent and Mr Reesby, thus giving rise to allegations of unfavourable treatment (viz. Mr Reesby's answering "no" when the respondent asked for work; failing to provide paperwork, etc.). In respect of the outgoing call records from Mr Gibson's office and mobile phone, I am minded to set aside this component of the first notice for three reasons. First, while the records may demonstrate that Mr Gibson did not telephone the respondent, this fact, to my mind, does not strike me as sufficiently relevant to, or likely to materially assist the Commission in the determination of, the questions on which the substantive proceedings will chiefly turn, namely, was the respondent subjected to unlawful discrimination on the basis of his race and imputed sexuality, and/or was he was unlawfully victimised?