McCauley v Club Resort Holdings Pty Ltd - [2012] QCAT 590

CITATION:

McCauley v Club Resort Holdings Pty Ltd and Anor [2012] QCAT 590

PARTIES:	Robyn Louise McCauley (Applicant)
v
Club Resort Holdings Pty Ltd (First Respondent) Steven Barringtom (Second Respondent)

APPLICATION NUMBER:

ADL047-11

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

9 November 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application to strike out the complaint is dismissed.

2. The application for costs is dismissed.

3. Robyn McCauley must file her statements of evidence and send a copy to the respondents by 4:00pm on 23 November 2012.

4. The respondents must file their statements of evidence and send a copy to Robyn McCauley by 4:00pm on 25 January 2013.

5. No party will be allowed to present any evidence at the hearing that is not contained in the statements without justifying the need for such additional evidence to the Tribunal.

6. Unless the Tribunal otherwise orders all witnesses must attend the hearing in person for cross examination. Any application for a witness to attend the hearing by a remote means or by remote conferencing must be made prior to 14 days before the hearing.

CATCHWORDS:

ANTI-DISCRIMINATION – where non compliance with directions – where application to strike out complaint made – where disadvantage caused was found not to detract from proper preparation for hearing – where costs refused

Queensland Civil and Administrative Tribunal Act 2009, ss 48, 100

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Robyn Louise McCauley represented by Adam Taylor of Turner Freeman Lawyers

RESPONDENT:

Club Resort Holdings Pty Ltd and Steven Barrington represented by Chris Mossman of Macpherson and Kelley Lawyers

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

Ms McCauley has complained that she was subjected to unlawful discriminatory conduct and to sexual harassment in the workplace. Her complaint has been referred to QCAT for determination. Her complaint is disputed by the respondents.
The tribunal made directions for the parties to file their statements of evidence in preparation for a hearing scheduled for two days in February 2013. Ms McCauley failed to comply with the direction to file her statements of evidence by 31 August 2012. The tribunal held a directions hearing on 5 November 2013 in order to ascertain whether the parties intended to proceed further with the matter.
The respondents filed an application on 5 November 2012 seeking an order that the complaint be struck out due to non compliance by Ms McCauley with the directions of the tribunal and seeking an order for costs. The application was also sent to the legal firm representing Ms McCauley but the lawyer in charge of the matter at that firm was not in his office that day and he had not had a proper opportunity to consider the applications by the time of the directions hearing in the afternoon.
I allowed time for the legal representative for Ms McCauley to make submissions on the applications before making any decision on the applications.
The respondents have submitted that they have been disadvantaged by the failure of Ms McCauley to file her statements of evidence in accordance with the directions of the tribunal. Specifically it was submitted on their behalf that they had incurred legal costs in directing their lawyers to pursue Ms McCauley’s non-compliance, they are unaware of Ms McCauley’s evidentiary case and they are unable to prepare their own evidentiary case responding to the complaint.
The respondents rely on section 48 of the QCAT Act and assert that they have been unnecessarily disadvantaged by Ms McCauley’s failure to comply with the directions of the tribunal.
It is worth noting that the tribunal brought on the directions hearing on its own initiative as part of its own case management process and not at the request of the respondents. The concern of the tribunal was that the hearing dates set in February 2013 were at risk of being wasted if the parties were not ready to proceed to a hearing at that time. These dates had been set in April 2012 and the timetable up to the hearing had been deliberately set at a generous pace to allow all parties sufficient time to prepare for hearing. Parties at present have to wait for over six months for a final hearing date and any hearings that are not proceeding on their set dates can be readily replaced at relatively short notice by other matters requiring a hearing.
Ms McCauley via her legal representative has provided an explanation for her non-compliance. Mr Taylor admits that he had not made an adequate record of the due date for filing the statements of evidence of Ms McCauley. As a consequence he admits that he overlooked the due date. Even after that date, he concedes that he was contacted by a QCAT registry officer who reminded him that the statements were then overdue and instead of taking immediate steps towards filing the statements of evidence, he took no action.
Mr Taylor has submitted that Ms McCauley is in no way responsible for the non compliance with the directions of the tribunal. That submission is not accepted by me. Ms McCauley has a responsibility to act quickly in any dealing relevant to her proceeding.[1] She may rely on her legal representative for legal advice and for legal assistance but she has the responsibility to take the matter forward at the tribunal. There was no evidence presented that Ms McCauley was unaware of the directions made on 16 April 2012 including the dates by which her statements of evidence were due to be filed.
[1] Section 45 of the QCAT Act.
However, I do accept Mr Taylor’s submissions that there is no evidence that Ms McCauley has deliberately caused disadvantage to the respondents. She may well have relied on her legal representative to prepare her statements of evidence in accordance with the tribunal’s directions and may not have appreciated the implications of permitting her statements to be overdue for filing. I have not been provided with any information about Ms McCauley’s familiarity with the tribunal’s practices and procedures. The tribunal registry staff followed up the overdue statements of evidence with Ms McCauley’s legal representatives and not with Ms McCauley directly. I consider it is likely that she was not aware that non compliance with directions could result in her complaint being struck out.
I am not persuaded by the submissions of the respondents that this complaint should be struck out under section 48 of the QCAT Act. There has been a disadvantage caused by Ms McCauley’s non compliance with the directions of the tribunal in that the respondents will have a considerably shorter time to prepare their statements of evidence before the hearing date. However as there are still 15 weeks before the hearing, the current disadvantage is only slight indeed. A truncated adjusted timetable can still provide a fair opportunity for all parties to prepare and present their evidence before the hearing.
The tribunal when exercising its discretion to dismiss a claim without allowing a hearing of that claim must act with caution. Dismissal of the complaint without a hearing would deprive Ms McCauley of the opportunity to have an independent determination made on her claim that her human rights have been unlawfully contravened.
The submissions made by the respondents that without timely filed evidence they are left guessing as to the case of Ms McCauley is difficult to accept. The parties have been involved in other legal proceedings in which a great deal of evidence has been presented by Ms McCauley. While all that evidence would not be relevant to her anti-discrimination complaint, the extent of what she can prove or what she hopes to prove to QCAT is already known to the respondents from those other proceedings. I have no doubt that they should be able to prepare their evidence within a tighter timetable than was originally formulated in April 2012.
The application for a strike out is dismissed. The respondents have applied for costs. I am not convinced that they should have their costs of the strike out application or alternatively their costs incurred as a result of the non compliance by Ms McCauley. Under section 100 of the QCAT Act the starting position is that each party to a proceeding must bear their own costs for the proceeding. To depart from that position, in the absence of some contrary provision in an enabling Act, the tribunal must be satisfied that the interests of justice require it to make a costs order.
One of the factors that may be relevant to that consideration is whether a party is acting in a way that unnecessarily disadvantages another party. While there has been some disadvantage caused to the respondents, that disadvantage is slight and will not detract from their opportunity to prepare fully for the hearing in February 2013. The arguments put forward by the respondents to support the costs application are not compelling.
I have taken the opportunity to make further directions for the conduct of this matter to hearing. If any other directions are required, the parties can apply to the tribunal at any time.