McDowell v Cash Converters (Stores) Pty Ltd (No 2) - [2022] QIRC 110

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	McDowell v Cash Converters (Stores) Pty Ltd & Anor (No 2) [2022] QIRC 110
PARTIES:	McDowell, Chantal (Complainant) v Cash Converters (Stores) Pty Ltd (First Respondent) AND Inglis, Christopher (Second Respondent)
CASE NO:	AD/2020/15
PROCEEDING:	Application in existing proceedings
DELIVERED ON:	25 March 2022
MEMBER:	Knight IC
HEARD AT:	On the papers
ORDER:	The application in existing proceedings seeking to stay the substantive proceedings is dismissed.
CATCHWORDS:	INDUSTRIAL LAW – ANTI-DISCRIMINATION – application in existing proceedings seeking order staying the substantive proceedings – whether WorkCover claim and substantive proceedings constitute concurrent proceedings – consideration of balance of convenience – application dismissed
LEGISLATION:	Anti-Discrimination Act 1991 (Qld) ss 6, 209, ch 3 Industrial Relations Act 2016 (Qld) ss 451, 452, 456, ch 8 Workers' Compensation and Rehabilitation Act 2003 (Qld) ss 5, 119
CASES:	Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 BM Alliance Coal Operations Pty Ltd v Michael Scully, Inspector Resources and Safety & Health Queensland [2021] ICQ 001 Colebourne v State of Queensland (Queensland Police Service) [2021] QIRC 380 Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd (2008) 2 Qd R 453 Doorley v State of Queensland (Department of Premier and Cabinet) [2019] QIRC 089 Mancini v State of Queensland (Queensland Fire and Emergency Services) [2021] QIRC 192 McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 State of Queensland (Department of Justice and Attorney-General) v Siobhan Maree Parer & Anor [2016] ICQ 013 State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 190
APPEARANCES:	Alexander Law for the Complainant HWL Ebsworth Lawyers for the Respondents

Reasons for Decision

This is an application in existing proceedings filed by Cash Converters (Stores) Pty Ltd and Mr Christopher Inglis (together, 'the Respondents') seeking to stay the substantive proceedings to which they are the Respondents. The Complainant to the substantive proceedings, Ms Chantal McDowell ('the Complainant'), opposes the application.
Specifically, the Respondents seek an order pursuant to ss 451 and 452 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), that the substantive proceedings be stayed pending the finalisation of a separate WorkCover claim brought by the Complainant.
Relevant Principles
The principles relevant to an application to stay a proceeding were recently and conveniently set out by Merrell DP in Colebourne v State of Queensland (Queensland Police Service),[1] albeit in the context of a decision under appeal. There his Honour observed:
[1] [2021] QIRC 380.
[33] ... the relevant principles that apply ... in determining whether or not to exercise discretion ... to grant a stay ... are:
·the onus is on the applicant to demonstrate a proper basis for a stay that will be fair to all parties;[2]
[2] Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, 694.
·the mere filing of an appeal will not, of itself, provide a reason…

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.

Keep reading for free

Create a free CaseChat account to read McDowell v Cash Converters (Stores) Pty Ltd (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] QIRC 110
Decision Date: 25 March 2022

CaseChat Overview and Summary

McDowell v Cash Converters (Stores) Pty Ltd (No 2) involved a dispute between the applicant, McDowell, and the respondent, Cash Converters, concerning an application to stay proceedings related to an anti-discrimination complaint. The case was heard by the Fair Work Commission, which was required to decide whether the WorkCover claim and the substantive proceedings should be considered concurrent proceedings. The central issue was whether the WorkCover claim and the substantive proceedings should be treated as concurrent proceedings, which could potentially allow for a stay of the substantive proceedings.

The court examined the arguments from both parties regarding the nature of the proceedings. The respondents argued that the substantive proceedings and the WorkCover claim were concurrent, while the complainant maintained that they were different proceedings brought within different jurisdictional contexts. The court noted that although the anti-discrimination complaint and the WorkCover claim arose from similar issues, the legislative frameworks governing each were distinct. The court referred to previous cases such as McCauley and Doorley to support its decision. It concluded that the purpose of the workers' compensation scheme was to provide benefits for workers who sustain injuries in their employment, which was separate from the anti-discrimination proceedings. Therefore, the court found that the two sets of proceedings were not concurrent in a manner that would warrant a stay.

The court dismissed the application to stay the substantive proceedings. It found that the balance of convenience did not favour a stay and that the requisite onus had not been discharged to establish a proper basis for granting such a stay. Consequently, the application was dismissed, and the substantive proceedings were allowed to continue. The court ordered that the application in existing proceedings seeking to stay the substantive proceedings was dismissed.

Orders

Orders of the court

The application in existing proceedings seeking to stay the substantive proceedings is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Having regard to the issues set out above, the balance of convenience does not favour the stay.Conclusion I do not consider the Respondents have discharged the requisite onus of establishing there is a proper basis for the granting of a stay. I am not persuaded this is an appropriate occasion on which I ought to exercise my discretion to grant a stay. Consequently, the application is dismissed. I order accordingly.OrderThe application in existing proceedings seeking to stay the substantive proceedings is dismissed.

Ratio Decidendi

Legal Principle Established

Finally, the Respondents reject the Complainant's submissions they would suffer no real prejudice, contending the prejudice lies in the issue of not being able to fully and finally determine the issue of quantum, and therefore finalise the proceedings, until the WorkCover claim is also finalised.[29]Consideration[29] Ibid [9].Concurrent Proceedings The Respondents argue the substantive proceedings and the WorkCover claim are concurrent proceedings, whereas the Complainant argues they are different proceedings brought within different jurisdictional contexts. Certainly, it is not in contention in this matter that the anti-discrimination complaint which forms the basis of the substantive matter arises from similar issues to those canvassed in the Complainant's WorkCover claim. Section 456 of the IR Act provides that the Commission may stay or dismiss an application or complaint if the act or omission the subject of the application is being, or has been, dealt with by the Commission in another proceeding. Although the Respondents are not seeking the Commission exercise its discretion to stay the substantive proceedings on the basis of s 456, they submit the premise of the Commission exercising its power pursuant to ss 451 and 452 of the IR Act to stay the substantive proceedings may be aligned with the legislative intent of s 456 of the IR Act.[30][30] Respondents' submissions filed 19 July 2022, [20]. The Respondents rely on McCauley where the respondents in that matter sought to have an award for damages in an anti-discrimination complaint reduced by the amount paid to the complainant in a workers' compensation claim for her permanent impairment. In McCauley the complainant argued such a reduction should not be made and sought to distinguish between compensation for a work-related impairment under the workers' compensation legislation and damages under the anti-discrimination legislation. However, Member Gordon determined that where the compensation in both instances was for non-financial loss awarded for sexual harassment or discrimination which happens at work, this amounted to compensation for the same loss and the award for damages ought to be reduced.[31][31] McCauley, above (n 15) [271]-[276]. The Complainant relies on Doorley where the respondent in that matter sought to challenge a general protections application as unfair and prejudicial in circumstances where the applicant had also made a complaint to the Anti-Discrimination Commission of Queensland.[32][32] What is now the Queensland Human Rights Commission. Although Black IC accepted the complaint raised similar issues to the application, he considered it was made 'in a different legislative context and there [was] no statutory bar to the applicant bringing concurrent proceedings in different jurisdictions.'[33][33] Doorley, above (n 17) [34]. I have formed a similar conclusion in respect of this application. The purpose of the workers' compensation scheme in Queensland is to provide benefits for workers who sustain an injury in their employment and to encourage improved health and safety performance by employers.[34] [34] Workers' Compensation and Rehabilitation Act 2003 (Qld) s 5.